If you believe the Commissioner's rate is not appropriate for the current income year, you may choose a different instalment rate under Subdivision 45-F.
No other amount is instalment income unless it is covered by another provision of this section or by Subdivision 45-H or 45-I.
The operation of this section and other provisions relating to instalment income is affected by sections 45-855 and 45-860 (about a member of a consolidated group during a period before the members of the group are treated as a single entity for the purposes of this Part.)
If during that period you are a partner in a partnership, or a beneficiary of a trust, your instalment income also includes some of the partnership's or trust's instalment income for the period (except in some cases). See Subdivision 45-H or 45-I.
This is so only if the gain (or gains) referred to in paragraph (a) exceeds the loss (or losses) referred to in paragraph (b).
This is so only if the gain (or gains) referred to in paragraph (a) equals or exceeds the loss (or losses) referred to in paragraph (b).
For example, although a partnership does not pay instalments, it is necessary to work out the partnership's instalment income in order to work out instalments payable by the partners. See Subdivision 45-H.
The entity must make the choice mentioned in paragraph (b) in accordance with subsection (4).
If paragraph (b) applies, see subsection (3) for the time at which you become a monthly payer.
You cannot choose to be an annual payer while you are the head company of a consolidated group to which Subdivision 45-Q applies: see section 45-720.
and at the end of the *starting instalment quarter, you satisfy the following conditions:
You cannot choose to be an annual payer while you are the head company of a consolidated group to which Subdivision 45-Q applies: see section 45-720.
You cannot choose to be an annual payer while you are the head company of a consolidated group to which Subdivision 45-Q applies: see section 45-720.
If choosing a rate leads you to pay an instalment that is too low, you may be liable to general interest charge under section 45-230.
If you choose a rate under this section, you must use it even if the Commissioner later gives you a new instalment rate.
If you choose a rate under this section, you must use it even if the Commissioner later gives you a new instalment rate.
If a rate you have chosen for an instalment quarter is not appropriate for a later instalment quarter in the same income year, you should choose another rate under subsection (1) for the later quarter. If the earlier rate is too low, you may be liable to general interest charge under section 45-230.
is taken to be a reference to so much of that income as is reasonably attributable to the period in that quarter or those quarters (as appropriate) during which you are not a subsidiary member of the group.
is taken to be a reference to so much of the acceptable amount of instalment or acceptable amounts of instalments, worked out under subsection (3), (3A), (3B), (3C) or (3D) for that quarter or those quarters (as appropriate), as is reasonably attributable to the period in that quarter or those quarters (as appropriate) during which you are not a *subsidiary member of the group.
Your instalment income will still include a distribution by the partnership that is ordinary income. See section 45-120.
Your instalment income will still include a distribution by the trust that is ordinary income. See section 45-120.
Your instalment income will instead include a distribution by the trust: see section 45-285.
(It does not matter whether the trust income or trust capital is included in your assessable income for the income year that is or includes that period.)
(It does not matter whether the trust income or trust capital is included in your assessable income for the income year that is or includes that period.)
the beneficiary or beneficiaries count as persons who hold units in the unit trust, and the trustee of the holding trust does not.
(It does not matter whether the trust income or trust capital is included in your assessable income for the income year that is or includes that period.)
it is reasonable to conclude that the rights attaching to any of the interests are capable of being varied or abrogated in such a way (even if they are not in fact varied or abrogated in that way) that, directly or indirectly, the trust would be disqualified under subsection (1).
However, the instalment rate must be a nil rate if either component of the formula is nil.
Your instalments for earlier instalment quarters may have been worked out on a basis other than GDP-adjusted notional tax.
This subsection will be repealed on 1 July 2025: see Part 2 of Schedule 5 to the Treasury Laws Amendment (2020 Measures No. 3) Act 2020.
This subsection will be repealed on 1 July 2027: see Part 2 of Schedule 5 to the Treasury Laws Amendment (Cost of Living Support and Other Measures) Act 2022.
This subsection will be repealed on 1 July 2028: see Part 2 of Schedule 4 to the Treasury Laws Amendment (2023 Measures No. 2) Act 2023.
If your estimate leads you to pay an instalment that is too low, you may be liable to general interest charge under section 45-232.
unless a later application of this subsection requires him or her to use a later estimate you make under subsection (1) of this section.
This means that if an estimate you have made is not appropriate for a later instalment quarter in the same income year, you should choose under paragraph 45-112(1)(b) to work out the amount of your instalment for that later quarter on the basis of a new estimate under this section. If the instalment that the Commissioner works out on the basis of the earlier estimate is too low, you may be liable to general interest charge under section 45-232.
Except as provided in the rest of this Subdivision or elsewhere, this Part applies according to its terms to a multi-rate trustee. For example, a multi-rate trustee can become an annual payer under Subdivision 45-E.
This means that a multi-rate trustee may pay instalments on the basis of GDP-adjusted notional tax if the trustee otherwise satisfies the relevant test that applies to an individual.
However, the instalment rate must be a nil rate if either component of the formula is nil.
as appropriate.
(whether those purposes and objects are stated expressly or not).
An entity may get 2 or more tax benefits from the same scheme. One reason is that the scheme may affect 2 or more components of the entity's tax position for an income year. Another reason is that the scheme may affect the tax position for 2 or more income years.
To the extent that you also got a tax detriment from the scheme, you get a credit: see section 45-625.
In special circumstances theCommissioner can remit some or all of the general interest charge: see section 45-640.
(It does not matter whether that income year is the same as the one referred to in section 45-600.)
An entity may get 2 or more tax detriments from the same scheme. One reason is that the scheme may affect 2 or more components of the entity's tax position for an income year. Another reason is that the scheme may affect the tax position for 2 or more income years.
for which this Act expressly provides. However, this subsection does not cover an entity doing such a thing under:
For the application of this Subdivision to a provisional head company of a MEC group: see section 45-915.
The operation of this subsection because of paragraph (a) may be affected by section 45-880.
An example of this is when an interposed company becomes the new head company of a consolidated group. Under this section and section 45-740, this Subdivision may start applying to the company as if it had already become the head company when it is not yet such a company.
are taken for the purposes of this Part to be parts of that head company (rather than separate entities) during that period.
That means, amongst other things, the head company would be liable to pay instalments for that period as if the subsidiary members were parts of the head company.
You stop being an annual payer when this Subdivision starts applying to you as the head company of a consolidated group: see section 45-160.
is taken to be something that had happened to the interposed company, whether or not the assessment or amendment is made before the completion time.
An assessment mentioned in subsection (5) may therefore be taken to be the base assessment of the interposed company for the purposes of this Part.
For example, if the Commissioner has given an initial head company instalment rate to the original company during an earlier instalment quarter, the rate is not, despite this section, treated as if it had been given to the interposed company for the purposes of section 45-705. Subject to the other provisions in that section, this Subdivision therefore starts applying to the interposed company under subsection 45-705(4).
Under paragraph (b), this section could apply to an entity that, at the time of becoming a subsidiary member of the group, was not a subsidiary member of another consolidated group, or was a member of another consolidated group but this Subdivision did not apply to the head company of that other group at that time.
the Commissioner may again exercise the power under subsection (2) in relation to the membership change, as if:
the head company is, in addition to any credit to which it is entitled under section 45-30 for that year, entitled to a credit in relation to instalments payable by an entity that is a *subsidiary member of the group at any time during that year.
that amount is not to be taken into account in working out the credit to which the head company of another of those groups is entitled under that subsection.
This section applies to members of a MEC group with the modifications set out in section 45-930.
17/80 of the head company's benchmark tax represents an amount that is 85% of one quarter of that benchmark tax.
take into account only an amount of instalment or credit covered by that provision that is reasonably attributable to a period in that *consolidation transitional year of the *head company during which it is a subsidiary member of the group.
a reference to an instalment quarter in a *consolidation transitional year of the head company in any of those provisions includes a reference to the last instalment quarter of that subsidiary member ending before the end of that instalment quarter of the head company.
45-S, applies to its *provisional head company at that time.
History
S 45-885 inserted by No 16 of 2003.
Subdivision 45-S - MEC groups
History
Subdiv 45-S inserted by No 16 of 2003.
SECTION 45-900
WHAT THIS SUBDIVISION IS ABOUT
This Subdivision sets out how this Part applies in relation to MEC groups and their members.
History
S 45-900 inserted by No 16 of 2003.
Preliminary
SECTION 45-905
45-905
OBJECTS OF SUBDIVISION
The objects of this Subdivision are to:
(a)
extend the operation of this Part (except sections 45-705 and 45-740 and this Subdivision) so that it can apply in relation to *MEC groups and their members; and
(b)
modify the rules in this Part for that extended operation so that they take account of the special characteristics of MEC groups.
History
S 45-905 inserted by No 16 of 2003.
General modification rules
SECTION 45-910
EXTENDED OPERATION OF PART TO COVER MEC GROUPS
45-910(1)
This Part (except sections 45-705 and 45-740 and this Subdivision) has effect in relation to members of a *MEC group in the same way in which it has effect in relation to *members of a *consolidated group.
45-910(2)
However, that effect is subject to the modifications set out in the following table and elsewhere in this Subdivision.
|
Modifications of this Part
|
|
Item
|
A reference in this Part to:
|
Is taken to be a reference to:
|
| 1 |
a *consolidated group |
a *MEC group |
| 2 |
the *head company of a *consolidated group |
the *provisional head company of a *MEC group |
| 3 |
a *subsidiary member of a *consolidated group |
a member (other than the *provisional head company) of a *MEC group |
Exceptions
45-910(3)
The modifications set out in the table do not apply to the following provisions:
(a)
this Subdivision;
(b)
subsection 45-30(4) (see section 45-930);
(c)
(Repealed by No 12 of 2012)
(d)
note 2 at the end of section 45-700;
(e)
sections 45-705 and 45-740 (see sections 45-913, 45-915 and 45-920);
(f)
subparagraphs 45-760(1)(c)(i) and (ii);
(g)
the note at the end of section 45-850;
(h)
sections 45-865 and 45-870 (see section 45-930);
(i)
paragraphs (1)(b), (c), (d) and (e), and subsection (5), of section 45-880;
(j)
paragraphs (1)(a), (b) and (c), and subsection (4), of section 45-885.
Note:
The provisions covered by paragraphs (d), (f), (g), (i) and (j) apply to members of a MEC group without any modifications.
History
S 45-910(3) amended by No 12 of 2012, s 3 and Sch 6 items 186-187, by repealing para (c) and omitting "(c)," after "paragraphs" in the note at the end, effective 21 March 2012. Para (c) formerly read:
(c)
the note at the end of subsection 45-330(5);
History
S 45-910 inserted by No 16 of 2003.
Extended operation of Subdivision 45-Q
SECTION 45-913
45-913
SECTIONS 45-705 AND 45-740 DO NOT APPLY TO MEMBERS OF MEC GROUPS
In applying Subdivision 45-Q to members of a *MEC group, the Subdivision has effect as if:
(a)
section 45-705 had no effect and section 45-915 had effect instead; and
(b)
section 45-740 had no effect and section 45-920 had effect instead.
History
S 45-913 inserted by No 16 of 2003.
SECTION 45-915
APPLICATION OF SUBDIVISION 45-Q TO PROVISIONAL HEAD COMPANY
Period during which Subdivision applies to provisional head company
45-915(1)
Subject to sections 45-880 and 45-885 (as applied under this Subdivision), Subdivision 45-Q applies to a company as the *provisional head company of a *MEC group during the period:
(a)
starting at the start of the *instalment quarter of the company determined under subsection (2), (3) or (4); and
(b)
ending:
(i)
at the end of the instalment quarter of the company determined under paragraph (6)(a) or (b); or
(ii)
just before the instalment quarter of the company determined under paragraph (6)(c).
Note:
The application of Subdivision 45-Q to the provisional head company is subject to the modifications set out in this section and elsewhere in this Subdivision.
When the period begins - initial head company instalment rate
45-915(2)
Subdivision 45-Q starts to apply to a company as the *provisional head company of a *MEC group at the start of an *instalment quarter under this subsection if, during that quarter, the Commissioner gives the company (as that provisional head company) the *initial head company instalment rate.
Note:
The operation of this subsection may be affected by section 45-885 (as applied under this Subdivision).
When the period begins - group created from consolidated group
45-915(3)
Subdivision 45-Q starts to apply to a company as the *provisional head company of a *MEC group at the start of an *instalment quarter (the
starting quarter
) under this subsection if all of the following conditions are satisfied:
(a)
during the starting quarter, the Commissioner is notified of the creation of the MEC group from a *consolidated group (see subsection (5));
(b)
the company is the provisional head company of the MEC group when the Commissioner is so notified;
(c)
either of the following applies:
(i)
Subdivision 45-Q applied to the *head company of the consolidated group at the end of the previous instalment quarter;
(ii)
the Commissioner gives the *initial head company instalment rate to the head company of the consolidated group during the starting quarter.
Note:
For the application of Subdivision 45-Q to a head company of a consolidated group: see section 45-705.
When the period begins - new provisional head company
45-915(4)
Subdivision 45-Q starts to apply to a company as the *provisional head company of a *MEC group at the start of an *instalment quarter (the
starting quarter
) under this subsection if both of the following conditions are satisfied:
(a)
the company is appointed as the provisional head company of the MEC group under subsection 719-60(3) of the Income Tax Assessment Act 1997 during the starting quarter;
(b)
one of the following applies:
(i)
Subdivision 45-Q applied to the former provisional head company of the MEC group at the end of the previous instalment quarter;
(ii)
the Commissioner gives the *initial head company instalment rate to the former provisional head company of the MEC group during the starting quarter;
(iii)
the Commissioner is notified during the starting quarter of the creation of the MEC group from a *consolidated group and Subdivision 45-Q applied to the *head company of the consolidated group at the end of the previous instalment quarter;
(iv)
the Commissioner is notified during the starting quarter of the creation of the MEC group from a consolidated group and the Commissioner gives the initial head company instalment rate to the head company of the consolidated group during the starting quarter.
When the period begins - modified timing for provisional head company that is monthly payer
45-915(4A)
Subsection (4B) applies if:
(a)
apart from subsection (4B), Subdivision 45-Q starts to apply to a company as the *provisional head company of a *MEC group at a particular time because of the operation of subsection (2), (3) or (4); and
(b)
the company is a *monthly payer; and
(c)
the Commissioner gave the *initial head company instalment rate as mentioned in subsection (2), subparagraph (3)(c)(ii), subparagraph (4)(b)(ii) or subparagraph (4)(b)(iv) in an *instalment month.
History
S 45-915(4A) inserted by No 124 of 2013, s 3 and Sch 1 item 32, applicable to starting instalment months that start on or after 1 January 2014. For application and transitional provisions, see note under s 45-138.
45-915(4B)
Treat subsection (2), (3) or (4) (as the case requires) as providing that Subdivision 45-Q starts to apply to the company as the *provisional head company of the *MEC group at the start of the next *instalment month.
Note:
For the application of this Subdivision to a monthly payer, see sections 45-703 and 45-910.
History
S 45-915(4B) inserted by No 124 of 2013, s 3 and Sch 1 item 32, applicable to starting instalment months that start on or after 1 January 2014. For application and transitional provisions, see note under s 45-138.
Notification of creation of MEC group from consolidated group
45-915(5)
For the purposes of subsections (3) and (4), the Commissioner is notified of the creation of a *MEC group from a *consolidated group when the Commissioner receives a notice of the consolidation of the MEC group under subsection 719-40(1) of the Income Tax Assessment Act 1997.
When the period ends
45-915(6)
Subdivision 45-Q stops applying to a company as the *provisional head company of a *MEC group at the earliest of the following times after the company becomes the provisional head company:
(a)
the end of the *instalment quarter during which the MEC group ceases to exist (other than because a *consolidated group is *created from the MEC group);
(b)
the end of the instalment quarter during which a consolidated group is created from the MEC group;
(c)
just before the instalment quarter during which another company is appointed as the provisional head company of the MEC group under subsection 719-60(3) of the Income Tax Assessment Act 1997.
Note:
The operation of this subsection because of paragraph (a) may be affected by section 45-880 (as applied under this Subdivision).
45-915(7)
To avoid doubt, Subdivision 45-Q does not apply to a company as the *provisional head company of a *MEC group for any time at all if:
(a)
subsection (2), (3) or (4), and subsection (6), would, apart from this subsection, apply to the company; but
(b)
the time at which Subdivision 45-Q would stop applying to the company under subsection (6) is before the time at which that Subdivision would start to apply to the company under subsection (2), (3) or (4).
45-915(8)
To avoid doubt, Subdivision 45-Q may apply to a company as the *provisional head company of a *MEC group at a time when the company is not in fact the provisional head company of the group.
Note:
An example of this is when a company replaces another company as the provisional head company of a MEC group. Under this section and section 45-920, Subdivision 45-Q may start applying to the company as if it had already become the provisional head company when it is not yet such a company.
History
S 45-915 inserted by No 16 of 2003.
SECTION 45-917
45-917
ASSUMPTION FOR APPLYING SECTION 45-710 (SINGLE ENTITY RULE)
In applying section 45-710 to members of a *MEC group at a particular time, the company that is the *provisional head company of the group at that time must be assumed to be the *head company of the group at all times during the period:
(a)
throughout which the group is in existence; and
(b)
that is all or a part of the income year of the company that includes that particular time.
History
S 45-917 inserted by No 16 of 2003.
SECTION 45-920
CHANGE OF PROVISIONAL HEAD COMPANY
Object
45-920(1)
The object of this section (except subsection (9)) is to ensure that, for the purposes of this Part, when a company becomes the new *provisional head company of a *MEC group:
(a)
the company inherits the history of the former provisional head company; and
(b)
the history of the new provisional head company is effectively ignored.
45-920(2)
This section applies to a *provisional head company of a *MEC group (the
new provisional head company
) that is appointed under subsection 719-60(3) of the Income Tax Assessment Act 1997 if one of the following conditions is satisfied:
(a)
the conditions in subsection 45-915(4) are satisfied in relation to the new provisional head company (whether or not Subdivision 45-Q applies to the company as the provisional head company of the group for any period of time);
(b)
the new provisional head company is so appointed during the *instalment quarter of the company in which the MEC group is *created from a *consolidated group and either:
(i)
the Commissioner gives the *initial head company instalment rate to the *head company of the consolidated group during that instalment quarter; or
(ii)
Subdivision 45-Q applied to the head company of the consolidated group at the end of the previous instalment quarter.
45-920(3)
Everything that happened before the starting time in relation to the company (the
former company
) that was the *provisional head company of the *MEC group immediately before the starting time:
(a)
is taken to have happened in relation to the new provisional head company instead of in relation to the former company; and
(b)
is taken to have happened in relation to the new provisional head company instead of what would (apart from this section) be taken to have happened in relation to the new provisional head company before the starting time;
just as if, at all times before the starting time:
(c)
the new provisional head company had been the former company; and
(d)
the former company had been the new provisional head company.
45-920(4)
For the purposes of this section, the
starting time
is the time at which the *cessation event happened to the former company (the event that results in the appointment of the new provisional head company).
45-920(5)
To avoid doubt, subsection (3) also covers everything that, immediately before the starting time, was taken to have happened in relation to the former company because of:
(a)
section 701-1 of the Income Tax Assessment Act 1997 (single entity rule); or
(b)
section 701-5 of that Act (entry history rule); or
(c)
section 703-75 of that Act (effects of an interposed company becoming the *head company of a *consolidated group); or
(d)
section 719-90 of that Act (effects of a change of head company of a *MEC group); or
(e)
section 45-710 in this Schedule (single entity rule for the purposes of this Part), including an application of that section under this Subdivision; or
(f)
section 45-740 in this Schedule (effects of an interposed company becoming the head company of a consolidated group for the purposes of this Part); or
(g)
this section; or
(h)
one or more previous applications of any of the provisions covered by paragraphs (a) to (g).
45-920(6)
In addition, and without affecting subsection (3):
(a)
an assessment of the former company for an income year that ends before the income year that includes the starting time; or
(b)
an amendment of the assessment;
is taken to be something that had happened to the new provisional head company, whether or not the assessment or amendment is made before the starting time.
45-920(7)
This section has effect for the purposes of applying this Part to members of the *MEC group in relation to an *instalment quarter of the new provisional head company that ends after the starting time.
Note:
An assessment mentioned in subsection (6) may therefore be taken to be the base assessment of the new provisional head company for the purposes of this Part.
45-920(8)
Subsections (1) to (7) are to be disregarded in applying section 45-915 (about the application of Subdivision 45-Q to a company as the *provisional head company of a *MEC group).
Note:
For example, if the Commissioner has given an initial head company instalment rate to the former company during an earlier instalment quarter, the rate is not, despite this section, treated as if it had been given to the new provisional head company for the purposes of section 45-915. Subject to the other provisions in that section, Subdivision 45-Q therefore starts applying to the new provisional head company under subsection 45-915(4).
Special rule for the former company
45-920(9)
A provision of this Part that applies on an entity becoming a member (other than the *provisional head company) of a *MEC group does not apply to the former company when it becomes such a member at the starting time.
Note:
Section 45-755 (the entry rule, as applied under this Subdivision) therefore does not apply to the former company on the company becoming such a member of the MEC group.
History
S 45-920 inserted by No 16 of 2003.
SECTION 45-922
45-922
LIFE INSURANCE COMPANY
In applying Subdivision 45-Q to members of a *MEC group for an *instalment quarter of the *provisional head company of the group in an income year of the provisional head company, the company is taken to be a *life insurance company for that quarter if:
(a)
one or more life insurance companies are members of the group at any time during that quarter; or
(b)
one or more life insurance companies were members of the group at any time during a previous instalment quarter of the company in that year.
History
S 45-922 inserted by No 16 of 2003.
Extended operation of Subdivision 45-R
SECTION 45-925
45-925
ADDITIONAL MODIFICATIONS OF SECTIONS 45-855 AND 45-860
In applying sections 45-855 and 45-860 to members of a *MEC group, those sections have effect as if, in addition to the modifications set out in the table in section 45-910:
(a)
a reference in those sections to subsection 45-705(2) were a reference to subsection 45-915(2); and
(b)
a reference in those sections to subparagraph 45-705(3)(c)(ii), (4)(d)(ii) or (iv) were a reference to subparagraph 45-915(3)(c)(ii), (4)(b)(ii) or (iv).
History
S 45-925 inserted by No 16 of 2003.
SECTION 45-930
MODIFICATIONS OF SECTIONS 45-865 AND 45-870 AND A RELATED PROVISION
45-930(1)
In applying sections 45-865 and 45-870, and subsection 45-30(4) (which is related to section 45-865), to members of a *MEC group, those provisions have effect as if:
(a)
a reference in those provisions to a *consolidated group were a reference to a *MEC group; and
(b)
a reference in those provisions to a MEC group were a reference to a consolidated group.
Note:
This means a reference in those provisions to the head company of a consolidated group has effect as if it were a reference to the head company of a MEC group. Similarly, a reference in those provisions to a subsidiary member of a consolidated group has effect as if it were a reference to a subsidiary member of a MEC group.
45-930(2)
However, the modifications in subsection (1) do not apply to subsection 45-865(4) and the note at the end of section 45-865.
Note:
This means subsection 45-865(4) and the note apply to members of a MEC group without any modifications.
History
S 45-930 inserted by No 16 of 2003.
SECTION 45-935
45-935
ADDITIONAL MODIFICATIONS OF SECTION 45-885
In applying section 45-885 to members of a *MEC group, that section has effect as if, in addition to the modifications set out in the table in section 45-910, it had been modified as set out in the following table:
|
Modifications of section 45-885
|
|
Item
|
Provision:
|
Modification:
|
| 1 |
Paragraph 45-885(1)(e) |
The paragraph is taken to have been replaced by the following paragraph: |
| |
|
(e) |
within 28 days after the starting time, or within such further period (if any) as the Commissioner allows, the Commissioner receives a notice under section 719-76 of the Income Tax Assessment Act 1997 in relation the consolidation of that other MEC group, at and after the starting time, under section 719-50 of the Income Tax Assessment Act 1997. |
| 2 |
Subsection 45-885(2) (including the note at the end of the subsection) |
A reference to paragraph 45-760(2)(a) is taken to be a reference to that paragraph as applied under this Subdivision |
| 3 |
The note at the end of subsection 45-885(2) |
The reference to section 45-705 is taken to be a reference to section 45-915 |
History
S 45-935 amended by No 56 of 2010, s 3 and Sch 5 item 192, by substituting "the Commissioner receives a notice under section 719-76 of the Income Tax Assessment Act 1997 in relation the consolidation" for "the Commissioner receives a notice of the consolidation" in table item 1. [
CCH Note
: The word "to" was not included after "in relation" in this item.] For application provision see note under s 45-885(1).
S 45-935 inserted by No 16 of 2003.
PART 2-15 - RETURNS AND ASSESSMENTS
History
Pt 2-15 inserted by No 110 of 2014.
Division 70 - Tax receipts
History
Div 70 inserted by No 110 of 2014.
Guide to Division 70
SECTION 70-1
WHAT THIS DIVISION IS ABOUT
The Commissioner must provide you with a tax receipt for an income year if you are an individual taxpayer and the total tax assessed to you for the income year is $100 or more (or such other amount as determined by the Commissioner from time to time).
The tax receipt must include information about how the total tax assessed to you for the income year is notionally used to finance different categories of Commonwealth government expenditure.
The tax receipt must also include information about the total amount of Commonwealth government debt, for the current and previous financial years, and the expected total amount of interest to be paid on that debt during the current financial year.
History
S 70-1 inserted by No 110 of 2014, s 3 and Sch 4 item 2, applicable to assessments for the 2014-15 income year and later income years.
Subdivision 70-A - Tax receipts
History
Subdiv 70-A inserted by No 110 of 2014, s 3 and Sch 4 item 2, applicable to assessments for the 2014-15 income year and later income years.
SECTION 70-5
TAX RECEIPT TO BE PROVIDED TO CERTAIN INDIVIDUAL TAXPAYERS
70-5(1)
The Commissioner must give you a *tax receipt in respect of an income year if:
(a)
the Commissioner is required to give you a notice of assessment in respect of the income year and has not previously given you a notice in respect of the income year; and
(b)
you are an individual; and
(c)
the amount of income tax you owe (as worked out under step 4 of subsection 4-10(3) of the Income Tax Assessment Act 1997) for the *financial year that corresponds to the income year is equal to or greater than:
(i)
if subparagraph (ii) does not apply - $100; or
(ii)
if the Commissioner has made a determination under subsection (2) - the amount specified in the determination; and
(d)
the notice is given to you within the period of 18 months after the end of the income year.
70-5(2)
The Commissioner may, by legislative instrument, make a determination that specifies an amount for the purposes of subparagraph (1)(c)(ii).
70-5(3)
The *tax receipt must include the following information:
(a)
your name;
(b)
the amount mentioned in paragraph (1)(c);
(c)
how the amount mentioned in paragraph (1)(c) is notionally used to finance different categories of Commonwealth government expenditure (other than expenditure that relates to amounts collected under the *GST law that are paid to the States and Territories);
(d)
an estimate of the total face value of Commonwealth stock and securities on issue at the end of the previous *financial year;
(e)
an estimate of the expected total face value of Commonwealth stock and securities on issue at the end of the financial year;
(f)
the expected total interest to be paid during the financial year in respect of the Commonwealth stock and securities referred to in paragraph (e).
Note:
The allocation of how the total tax assessed to you is spent is a notional calculation and may not represent how the tax assessed to you is actually spent.
70-5(4)
For the purposes of determining the amounts in paragraphs (2)(d) to (f), the Commissioner must use the information in the budget economic and fiscal outlook report prepared for the purpose of section 10 of the Charter of Budget Honesty Act 1998 in respect of the *financial year referred to in paragraph (1)(c).
70-5(5)
For the purposes of determining the form of the information to be included in the *tax receipt, the Commissioner must seek the advice of the Minister and take that advice into account.
70-5(6)
The Commissioner must give you the *tax receipt as soon as practicable.
History
S 70-5 inserted by No 110 of 2014, s 3 and Sch 4 item 2, applicable to assessments for the 2014-15 income year and later income years.
PART 2-30 - COLLECTING MEDICARE LEVY WITH INCOME TAX
History
Pt 2-30 inserted by No 56 of 2010, s 3 and Sch 6 item 160, effective 3 June 2010.
Division 90 - Medicare levy and Medicare levy surcharge
History
Div 90 inserted by No 56 of 2010, s 3 and Sch 6 item 160, effective 3 June 2010.
Subdivision 90-A - Treatment like income tax
History
Subdiv 90-A inserted by No 56 of 2010, s 3 and Sch 6 item 160, effective 3 June 2010.
SECTION 90-1
90-1
LAWS APPLY IN RELATION TO MEDICARE LEVY AND MEDICARE LEVY SURCHARGE AS THEY APPLY IN RELATION TO INCOME TAX
Except so far as the contrary intention appears, this Schedule and the Income Tax Assessment Act 1997 apply, and are taken always to have applied, in relation to the following in the same way as they apply in relation to income tax and *tax:
(a)
*Medicare levy;
(b)
*Medicare levy (fringe benefits) surcharge.
History
S 90-1 amended by No 12 of 2012, s 3 and Sch 6 item 244, by substituting para (a) and (b), applicable income years starting on or after 1 July 2008. Para (a) and (b) formerly read:
(a)
Medicare levy (as defined in section 251R of the Income Tax Assessment Act 1936);
(b)
*Medicare levy surcharge.
S 90-1 inserted by No 56 of 2010, s 3 and Sch 6 item 160, effective 3 June 2010.
PART 2-35 - EXCESS SUPERANNUATION CONTRIBUTIONS
History
Pt 2-35 heading substituted by No 21 of 2015, s 3 and Sch 1 item 20, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years. The heading formerly read:
PART 2-35 - EXCESS CONCESSIONAL CONTRIBUTIONS
Pt 2-35 inserted by No 118 of 2013, s 3 and Sch 1 item 2, effective 29 June 2013. No 118 of 2013, s 3 and Sch 1 Pt 7 contains the following application, transitional and saving provisions:
Part 7 - Application, transitional and saving provisions
Division 1 - Application and transitional provisions
110 Application
(1)
Subject to this Part, the amendments made by this Schedule [of No 118 of 2013] apply:
(a)
so far as they affect assessments relating to an income year - to assessments for the 2013-14 income year and later income years; and
(b)
so far as they affect assessments relating to a financial year - to assessments for the 2013-2014 financial year and later financial years; and
(c)
otherwise - to acts done or omitted to be done, or states of affairs existing, or periods ending, on or after the start of the first income year starting on or after 1 July 2013.
(2)
Subitem (1) does not apply to item 1 of this Schedule [of No 118 of 2013].
…
Division 2 - Saving provisions
112 Making and amending assessments, and doing other things etc., in relation to past matters
112
Even though an Act is repealed or amended by this Act [No 118 of 2013], the repeal or amendment is disregarded for the purpose of doing any of the following under any Act or legislative instrument (within the meaning of the Legislative Instruments Act 2003):
(a)
making or amending an assessment (including under a provision that is itself repealed or amended);
(b)
exercising any right or power, performing any obligation or duty or doing any other thing (including under a provision that is itself repealed or amended);
in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.
113 Saving of provisions about effect of assessments
113
If a provision or part of a provision that is repealed or amended by this Schedule [of No 118 of 2013] deals with the effect of an assessment, the repeal or amendment is disregarded in relation to assessments made, before or after the repeal or amendment applies, in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.
114 Saving of provisions about general interest charge and interest
114
If:
(a)
a provision or part of a provision that is repealed or amended by this Act [No 118 of 2013] provides for the payment of:
(i)
general interest charge or shortfall interest charge; or
(ii)
an amount of interest worked out under subsection 292-425(2) of the Income Tax Assessment Act 1997; and
(b)
in a particular case, the period in respect of which the charge or interest is payable (whether under the provision or under the Taxation Administration Act 1953) has not begun, or has begun but not ended, when the provision is repealed or amended;
then, despite the repeal or amendment, the provision or part continues to apply in the particular case until the end of the period.
115 Saving of regulations - allocated amounts
(1)
This item applies to a regulation if:
(a)
the regulation was made for the purposes of subsection 292-25(3) of the Income Tax Assessment Act 1997; and
(b)
the regulation was in force immediately before the commencement of this item [29 June 2013].
(2)
The regulation has effect, after the commencement of this item [29 June 2013], as if it had been made under subsection 291-25(3) of the Income Tax Assessment Act 1997 as amended by this Act [No 118 of 2013].
116 Saving of regulations - notional taxed contributions
(1)
This item applies to a regulation if:
(a)
the regulation was made for the purposes of subsection 292-170(1) of the Income Tax Assessment Act 1997; and
(b)
the regulation was in force immediately before the commencement of this item [29 June 2013].
(2)
The regulation has effect, after the commencement of this item [29 June 2013], as if it had been made under subsection 291-170(1) of the Income Tax Assessment Act 1997 as amended by this Act [No 118 of 2013].
117 Saving of regulations - transitional rules for notional taxed contributions
(1)
This item applies to a regulation if:
(a)
the regulation was made for the purposes of a provision of section 292-170 of the Income Tax Assessment Act 1997 mentioned in column 1 of an item of the table in subitem (3); and
(b)
the regulation was in force immediately before the commencement of this item [29 June 2013].
(2)
The regulation has effect, after the commencement of this item [29 June 2013], as if it had been made under the provision of section 291-170 of the Income Tax (Transitional Provisions) Act 1997 mentioned in column 2 of that item of the table, as inserted by this Act [No 118 of 2013].
(3)
This is the table mentioned in subitems (1) and (2):
|
Saving of regulations - notional taxed contributions
|
|
Item
|
Column 1
Provision of the
Income Tax Assessment Act 1997
under which the existing regulation was made
|
Column 2
Provision of the
Income Tax (Transitional Provisions) Act 1997
under which the regulation is taken, after the commencement of this item [29 June 2013], to have been made
|
| 1 |
Paragraph 292-170(6)(d) |
Paragraph 291-170(2)(d) |
| 2 |
Subparagraph 292-170(7)(e)(ii) |
Subparagraph 291-170(3)(e)(ii) |
| 3 |
Paragraph 292-170(7)(f) |
Paragraph 292-170(3)(f) |
| 4 |
Paragraph 292-170(8)(d) |
Paragraph 292-170(4)(d) |
| 5 |
Subparagraph 292-170(9)(e)(ii) |
Subparagraph 291-170(5)(e)(ii) |
| 6 |
Paragraph 292-170(9)(f) |
Paragraph 292-170(5)(f) |
118 Saving of determination about discretion to disregard contributions
Determination relating to concessional contributions
(1)
This item applies to a determination if:
(a)
the determination was made under section 292-465 of the Income Tax Assessment Act 1997 in relation to concessional contributions for a financial year; and
(b)
the determination was in force immediately before the commencement of this item [29 June 2013].
(2)
The determination has effect, after the commencement of this item [29 June 2013], as if it had been made under section 291-465 of that Act as amended by this Act [No 118 of 2013].
Determination relating to non-concessional contributions
(3)
This item applies to a determination if:
(a)
the determination was made under section 292-465 of the Income Tax Assessment Act 1997 in relation to non-concessional contributions for a financial year; and
(b)
the determination was in force immediately before the commencement of this item [29 June 2013].
(4)
The determination has effect, after the commencement of this item [29 June 2013], as if it had been made under section 292-465 of thatAct as amended by this Act [No 118 of 2013].
119 Part does not limit operation of the Acts Interpretation Act 1901
119
This Part does not limit the operation of the Acts Interpretation Act 1901.
(Repealed) Division 95 - Excess concessional contributions charge
History
Div 95 repealed by No 45 of 2021, s 3 and Sch 2 item 6, applicable in relation to excess concessional contributions for a financial year starting on or after 1 July 2021. Div 95 formerly read:
Division 95 - Excess concessional contributions charge
Guide to Division 95
SECTION 95-1 WHAT THIS DIVISION IS ABOUT
You are liable to pay a charge on the income tax you pay on excess concessional contributions.
The charge is applied at a uniform rate that is the same as the shortfall interest charge.
The period for the excess concessional contributions charge starts at the start of the income year and ends just before tax is due to be paid under your first assessment for the year.
History
S 95-1 inserted by No 118 of 2013, s 3 and Sch 1 item 2, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
Subdivision 95-A - Object of Division
History
Subdiv 95-A inserted by No 118 of 2013, s 3 and Sch 1 item 2, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
SECTION 95-5 OBJECT OF DIVISION
95-5
The object of this Division is to neutralise benefits that taxpayers could otherwise receive from *excess concessional contributions, so that they do not receive an advantage in the form of:
(a)
the later time at which *tax is collected, as compared to tax that is collected through the Pay as you go system; and
(b)
the earnings on the contributions, which receive a concessional tax rate and remain in superannuation even if the contributions are released under Division 131.
History
S 95-5 amended by No 81 of 2016, s 3 and Sch 10 item 29, by substituting "131" for"96" in para (b), effective 1 July 2018. For application provisions, see note under Div 131 heading.
S 95-5 inserted by No 118 of 2013, s 3 and Sch 1 item 2, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
Subdivision 95-B - Excess concessional contributions charge
History
Subdiv 95-B inserted by No 118 of 2013, s 3 and Sch 1 item 2, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
SECTION 95-10 LIABILITY TO EXCESS CONCESSIONAL CONTRIBUTIONS CHARGE
95-10(1)
If:
(a)
you have *excess concessional contributions for a *financial year; and
(b)
you are liable to pay an amount of *tax (your
actual tax
) for the corresponding income year; and
(c)
your actual tax exceeds the amount of tax you would be liable to pay for the income year if the excess concessional contributions were disregarded;
the excess is an amount of tax on which you are liable to pay
excess concessional contributions charge
.
Note 1:
Excess concessional contributions are included in assessable income and give rise to a tax offset: see section 291-15 of the Income Tax Assessment Act 1997.
Note 2:
In this Act,
tax
is an assessed amount: see subsection 995-1(1) of the Income Tax Assessment Act 1997.
95-10(2)
If you would not be liable to pay *tax for the income year if the *excess concessional contributions were disregarded, apply paragraph (1)(c) as if you would be liable to pay a nil amount of tax.
Period for which the charge is payable
95-10(3)
The liability is for each day in the period:
(a)
beginning on the first day of the income year; and
(b)
ending on the day before the day on which *tax under your first notice of assessment for that income year is due to be paid, or would be due to be paid if there were any.
History
S 95-10 inserted by No 118 of 2013, s 3 and Sch 1 item 2, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
SECTION 95-15 AMOUNT OF EXCESS CONCESSIONAL CONTRIBUTIONS CHARGE
95-15
The *excess concessional contributions charge for a day is worked out by multiplying the rate worked out under section 4 of the Superannuation (Excess Concessional Contributions Charge) Act 2013 for that day by the sum of the following amounts:
(a)
the amount of *tax on which you are liable to pay the charge;
(b)
the excess concessional contributions charge on that amount from previous days.
History
S 95-15 inserted by No 118 of 2013, s 3 and Sch 1 item 2, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
SECTION 95-20 WHEN EXCESS CONCESSIONAL CONTRIBUTIONS CHARGE IS DUE AND PAYABLE
95-20(1)
The *excess concessional contributions charge you are liable to pay for an income year is due and payable on the day on which *tax is due to be paid under your first notice of assessment for that income year that includes an amount of tax on which you are liable to pay the charge.
Note:
For when income tax is due and payable, see section 5-5 of the Income Tax Assessment Act 1997.
Determination required
95-20(2)
An amount of *excess concessional contributions charge is only due and payable if the Commissioner gives you an *excess concessional contributions determination stating the amount of the charge (although it may be taken by subsection (1) to have been due and payable at a time before the determination was made).
Note:
For excess concessional contributions determinations, see Division 97.
Amended determinations
95-20(3)
However, if the Commissioner amends your *excess concessional contributions determination, any extra charge resulting from the amendment is due and payable 21 days after the Commissioner gives you notice of the amended determination.
History
S 95-20 inserted by No 118 of 2013, s 3 and Sch 1 item 2, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
SECTION 95-25 GENERAL INTEREST CHARGE
95-25
If an amount of *excess concessional contributions charge or *shortfall interest charge on excess concessional contributions charge that you are liable to pay remains unpaid after the time by which it is due to be paid, you are liable to pay the *general interest charge on the unpaid amount for each day in the period that:
(a)
begins on the day on which the amount was due to be paid; and
(b)
ends on the last day on which, at the end of the day, any of the following remains unpaid:
(i)
the excess concessional contributions charge or shortfall interest charge;
(ii)
the general interest charge on any of the excess concessional contributions charge or shortfall interest charge.
Note 1:
The general interest charge is worked out under Part IIA.
Note 2:
Shortfall interest charge is worked out under Division 280 in this Schedule.
Note 3:
See section 5-10 of the Income Tax Assessment Act 1997 for when the amount of shortfall interest charge becomes due and payable.
History
S 95-25 inserted by No 118 of 2013, s 3 and Sch 1 item 2, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
Div 95 inserted by No 118 of 2013, s 3 and Sch 1 item 2, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
(Repealed) Division 96 - Releasing money from superannuation
History
Div 96 repealed by No 81 of 2016, s 3 and Sch 10 item 30, effective 1 July 2018. For application provisions, see note under Div 131 heading. Div 96 formerly read:
Division 96 - Releasing money from superannuation
Subdivision 96-A - Releasing money from superannuation
Guide to Subdivision 96-A
SECTION 96-1 WHAT THIS SUBDIVISION IS ABOUT
You may elect to release from your superannuation interests:
(a) up to 85% of your excess concessional contributions for a financial year; and
(b) your non-concessional contributions that exceed your non-concessional contributions cap for the financial year, and 85% of any associated earnings.
Superannuation providers will usually be required to pay an amount from the superannuation interests. However, for certain interests the provider may choose whether or not to pay.
Released concessional contributions are paid to the Commissioner. You get a credit for the released amount. Surplus credits are refunded to you under Division 3A of Part IIB.
Released non-concessional contributions and associated earnings are paid to you.
History
S 96-1 substituted by No 21 of 2015, s 3 and Sch 1 item 21, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years. S 96-1 formerly read:
SECTION 96-1 WHAT THIS SUBDIVISION IS ABOUT
You may elect to release up to 85% of your excess concessional contributions for a financial year from a superannuation interest.
Superannuation providers will usually be required to pay an amount from the superannuation interest. However, for certain interests the provider may choose whether or not to pay.
Released amounts are paid by the superannuation provider to the Commissioner.
You get a credit for the released amount. Surplus credits are refunded to you under Division 3A of Part IIB.
Requesting a release authority
SECTION 96-5 ELECTING TO RELEASE EXCESS CONCESSIONAL CONTRIBUTIONS
Original determinations
96-5(1)
If you receive an *excess concessional contributions determination for a *financial year, you may elect to release from a *superannuation interest an amount not exceeding 85% of the *excess concessional contributions stated in the determination.
Note 1:
For excess concessional contributions determinations, see Subdivision 97-A.
Note 2:
Released excess concessional contributions are not included in your non-concessional contributions (a gross-up also applies): see subsection 292-90(1A) of the Income Tax Assessment Act 1997.
History
S 96-5(1) amended by No 21 of 2015, s 3 and Sch 1 items 23 and 24, by inserting "for a *financial year" and substituting "Subdivision 97-A" for "Division 97" in note 1, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
Amended determinations
96-5(2)
However, if the *excess concessional contributions determination is an amended determination increasing the stated amount of your *excess concessional contributions, you may elect to release an amount not exceeding:
(a)
85% of the excess concessional contributions stated in the amended determination; less
(b)
any amount you elect to release under subsection (1) in relation to an earlier determination.
Requirements for election
96-5(3)
You make the election by:
(a)
notifying the Commissioner of the amount you elect to release; and
(b)
identifying the *superannuation interest or interests you have from which the amount is to be released; and
(c)
if you identify more than one superannuation interest - stating the amount to be released from each such interest.
96-5(4)
The election must:
(a)
be in the *approved form; and
(b)
be given to the Commissioner within:
(i)
21 days after receiving notice of the *excess concessional contributions determination or amended excess concessional contributions determination; or
(ii)
a further period allowed by the Commissioner.
Unsuccessful elections - making a further election
96-5(5)
If:
(a)
you make a valid election under this section; and
(b)
the Commissioner gives you a notice under subsection 96-40(1) stating an amount (the
unreleased amount
) that a *superannuation provider did not pay in relation to the release authority issued in relation to that election;
you may make a further election to release the unreleased amount from another superannuation interest you have.
History
S 96-5(5) amended by No 21 of 2015, s 3 and Sch 1 item 25, by substituting "subsection 96-40(1)" for "section 96-40" in para (b), applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
96-5(6)
The further election must comply with subsection (3) and paragraph (4)(a), and must be given to the Commissioner within:
(a)
21 days after receiving the notice mentioned in paragraph (5)(b); or
(b)
a further period allowed by the Commissioner.
Election is irrevocable
96-5(7)
An election under this section is irrevocable.
SECTION 96-7 ELECTING TO RELEASE NON-CONCESSIONAL CONTRIBUTIONS ETC.
Original determinations
96-7(1)
If you receive an *excess non-concessional contributions determination for a *financial year, you may:
(a)
elect to release the *total release amount stated in the determination from your *superannuation interests; or
(b)
elect not to release that total release amount if the value of your superannuation interests is nil; or
(c)
elect not to release that total release amount for some other reason.
Note 1:
For excess non-concessional contributions determinations, see Subdivision 97-B.
Note 2:
The released amount will be non-assessable non-exempt income (see section 303-17 of the Income Tax Assessment Act 1997), but an amount corresponding to your associated earnings on those excess contributions will be included in your assessable income (see Subdivision 292-B of that Act).
Note 3:
If the value of your superannuation interests is between nil and that total release amount, you could first make an election under paragraph (a) and then a further election under paragraph (b) (see subsection (6)).
Note 4:
An election purportedly made under paragraph (b) will be invalid if the value of your superannuation interests was not nil.
Amended determinations
96-7(2)
However, if that determination is an amended determination that increased the *total release amount, any election under subsection (1) relating to the amended determination is to be made as if that new total release amount were reduced by:
(a)
if you made an election under paragraph (1)(a) for each earlier *excess non-concessional contributions determination you received for the *financial year - the sum of any amounts paid to you in response to release authorities issued in relation to those determinations; or
(b)
otherwise - the total release amount stated in the most recent of those earlier determinations.
96-7(3)
Receiving an amended determination does not prevent you from making an election under subsection (1) in relation to an earlier determination.
Requirements for election
96-7(4)
You make an election under paragraph (1)(a) by identifying:
(a)
one or more superannuation providers who hold one or more *superannuation interests for you; and
(b)
the amount each superannuation provider is to release.
96-7(5)
An election under paragraph (1)(a), (b) or (c) relating to an *excess non-concessional contributions determination must:
(a)
be in the *approved form; and
(b)
be given to the Commissioner within:
(i)
60 days after the Commissioner issued notice of that determination; or
(ii)
a further period allowed by the Commissioner.
Unsuccessful release - making a further election
96-7(6)
If:
(a)
you make a valid election under paragraph (1)(a); and
(b)
the Commissioner gives you a notice under subsection 96-40(2) stating an amount (the
unpaid amount
) that a *superannuation provider did not pay in relation to the release authority issued in relation to that election;
you may make a further election under paragraph (1)(a) or (b) for the release, or non-release, of the unpaid amount.
Note:
That further election would be under paragraph (1)(b) if the value of your superannuation interests is now nil.
96-7(7)
The further election must comply with subsection (4) and paragraph (5)(a), and must be given to the Commissioner within:
(a)
60 days after the Commissioner issued the notice mentioned in paragraph (6)(b); or
(b)
a further period allowed by the Commissioner.
Election is irrevocable
96-7(8)
An election under this section is irrevocable.
History
S 96-7 inserted by No 21 of 2015, s 3 and Sch 1 item 26, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
Issuing a release authority to superannuation provider
SECTION 96-10 RELEASE AUTHORITIES FOR ELECTIONS UNDER SECTION 96-5
96-10(1)
If you make a valid election under section 96-5, the Commissioner must issue a release authority to each *superannuation provider that holds a *superannuation interest identified in the election.
History
S 96-10(1) amended by No 21 of 2015, s 3 and Sch 1 item 28, by omitting "in relation to *excess concessional contributions you have for a *financial year" after "section 96-5", applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
96-10(2)
The release authority must:
(a)
state the amount to be released from the *superannuation interest, as stated in the election; and
(b)
be dated; and
(c)contain any other information that the Commissioner considers relevant.
SECTION 96-12 RELEASE AUTHORITIES FOR ELECTIONS UNDER SECTION 96-7
96-12(1)
The Commissioner must issue one or more release authorities under this section if you make a valid election under paragraph 96-7(1)(a).
96-12(2)
A release authority may be issued to:
(a)
a *superannuation provider identified in the election; or
(b)
any other superannuation provider who holds one or more *superannuation interests for you.
96-12(3)
Each release authority must:
(a)
state the total amount to be released by the *superannuation provider from *superannuation interests held by the provider for you; and
(b)
be dated; and
(c)
contain any other information that the Commissioner considers relevant.
History
S 96-12 inserted by No 21 of 2015, s 3 and Sch 1 item 29, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
SECTION 96-15
SECTION 96-15 VARYING AND REVOKING A RELEASE AUTHORITY
96-15
The Commissioner may vary or revoke a release authority at any time before the Commissioner receives a notice under section 96-35 relating to the release authority.
History
S 96-15 amended by No 21 of 2015, s 3 and Sch 1 item 30, by substituting "notice under section 96-35" for "payment", applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
Complying with a release authority
SECTION 96-20 OBLIGATIONS OF SUPERANNUATION PROVIDERS
96-20(1)
A *superannuation provider issued with a release authority under section 96-10 must, within 7 days after the release authority is issued, pay to the Commissioner the lesser of:
(a)
the amount stated in the release authority; and
(b)
the sum of the *maximum available release amounts for each *superannuation interest held by the superannuation provider for the individual in *superannuation plans.
Note 1:
Subsection 288-95(3) provides for an administrative penalty for failing to comply with this section.
Note 2:
For the taxation treatment of the payment, see section 96-60.
History
S 96-20(1) amended by No 21 of 2015, s 3 and Sch 1 item 31, by omitting "that has been" after "A *superannuation provider", applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
96-20(1A)
A *superannuation provider issued with a release authority under section 96-12 must, within 21 days after the release authority is issued (or a further period allowed by the Commissioner), pay to the individual the lesser of:
(a)
the amount stated in the release authority; and
(b)
the sum of the *maximum available release amounts for each *superannuation interest held by the superannuation provider for the individual in *superannuation plans.
Note 1:
Subsection 288-95(3) provides for an administrative penalty for failing to comply with this section.
Note 2:
For the taxation treatment of the payment, see section 96-60.
History
S 96-20(1A) inserted by No 21 of 2015, s 3 and Sch 1 item 32, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
Exception - interests not subject to compulsory release
96-20(2)
However, the *maximum available release amount for a *superannuation interest is not to be included in the sum worked out under paragraph (1)(b) if the interest is of any of the following kinds (a
voluntary release interest
):
(a)
a *defined benefit interest;
(b)
a superannuation interest in a *non-complying superannuation fund;
(c)
a superannuation interest that is treated as a separate interest under regulations made for the purposes of section 307-200 of the Income Tax Assessment Act 1997 in circumstances where the interest is supporting a *superannuation income stream.
96-20(3)
Despite paragraph (1A)(b), the *maximum available release amount for a *defined benefit interest is not to be included in the sum worked out under that paragraph.
History
S 96-20(3) inserted by No 21 of 2015, s 3 and Sch 1 item 33, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
SECTION 96-25 VOLUNTARY COMPLIANCE WITH A RELEASE AUTHORITY RELATING TO VOLUNTARY RELEASE INTERESTS AND DEFINED BENEFIT INTERESTS
96-25(1)
A *superannuation provider issued with a release authority under section 96-10 may, within 7 days after the release authority is issued, pay to the Commissioner the lesser of:
(a)
the amount stated in the release authority; and
(b)
the sum of the *maximum available release amounts for each voluntary release interest held by the superannuation provider for the individual in *superannuation plans.
History
S 96-25(1) amended by No 21 of 2015, s 3 and Sch 1 item 35, by omitting "that has been" after "A *superannuation provider", applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
96-25(2)
A *superannuation provider issued with a release authority under section 96-12 may, within 21 days after the release authority is issued (or a further period allowed by the Commissioner), pay to the individual the lesser of:
(a)
the amount stated in the release authority; and
(b)
the sum of the *maximum available release amounts for each *defined benefit interest held by the superannuation provider for the individual in *superannuation plans.
History
S 96-25(2) substituted by No 21 of 2015, s 3 and Sch 1 item 36, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years. S 96-25(2) formerly read:
96-25(2)
However, the amount mentioned in paragraph (1)(a) must be reduced by any amount the provider pays to the Commissioner under section 96-20 in relation to the release authority.
96-25(3)
For the purposes of paragraph (1)(a) or (2)(a), reduce the amount mentioned in that paragraph by any amount the provider pays under section 96-20 in relation to the release authority.
History
S 96-25(3) inserted by No 21 of 2015, s 3 and Sch 1 item 36, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
SECTION 96-30
SECTION 96-30 MEANING OF
MAXIMUM AVAILABLE RELEASE AMOUNT
96-30
The
maximum available release amount
for a *superannuation interest at a particular time is the total amount of all the *superannuation lump sums that could be payable from the interest at that time.
SECTION 96-35 NOTIFYING COMMISSIONER
96-35(1)
A *superannuation provider issued with a release authority under section 96-10 or 96-12 must notify the Commissioner of a payment made in accordance with this Subdivision.
History
S 96-35(1) amended by No 21 of 2015, s 3 and Sch 1 items 37 and 38, by omitting "that has been" after "A *superannuation provider" and inserting "or 96-12", applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
96-35(2)
A *superannuation provider that:
(a)
has been issued with a release authority under section 96-10 or 96-12; and
(b)
is not required to pay an amount under section 96-20, or is required under that section to pay an amount less than the amount stated in the release authority;
must notify the Commissioner that the provider is not required to comply with the release authority.
History
S 96-35(2) amended by No 21 of 2015, s 3 and Sch 1 item 39, by inserting "or 96-12" in para (a), applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
96-35(3)
A notice under this section must be given in the *approved form:
(a)
within 7 days after the release authority is issued, if the release authority was issued under section 96-10; or
(b)
within 21 days after the release authority is issued (or a further period allowed by the Commissioner), if the release authority was issued under section 96-12.
Note:
Subsection 286-75(1) provides for an administrative penalty for failing to comply with this section.
History
S 96-35(3) substituted by No 21 of 2015, s 3 and Sch 1 item 40, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years. S 96-35(3) formerly read:
96-35(3)
A notice under this section must be given:
(a)
in the *approved form; and
(b)
within 7 days after the release authority is issued.
Note:
Subsection 286-75(1) provides for an administrative penalty for failing to comply with this section.
SECTION 96-40 NOTIFYING INDIVIDUAL - UNSUCCESSFUL RELEASE ATTEMPT
96-40(1)
The Commissioner must notify an individual if, in relation to the individual's election under section 96-5, the Commissioner:
(a)
receives a notice from a *superannuation provider under subsection 96-35(2); or
(b)
does not receive a payment from a superannuation provider of the full amount stated in a release authority within the time mentioned in subsection 96-20(1) or 96-25(1).
96-40(2)
The Commissioner must notify an individual if, in relation to the individual's election under paragraph 96-7(1)(a):
(a)
the Commissioner receives a notice from a *superannuation provider under subsection 96-35(2); or
(b)
the individual does not receive a payment from a superannuation provider of the full amount stated in a release authority within the time mentioned in subsection 96-20(1A) or 96-25(2).
96-40(3)
A notice under subsection (1) or (2) must:
(a)
be in writing; and
(b)
identify the *superannuation provider; and
(c)
state how much of the amount stated in the release authority was not paid within the applicable time.
History
S 96-40 substituted by No 21 of 2015, s 3 and Sch 1 item 41, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years. S 96-40 formerly read:
SECTION 96-40 NOTIFYING INDIVIDUAL OF UNSUCCESSFUL RELEASE ATTEMPT
96-40(1)
If the Commissioner:
(a)
receives a notice from a *superannuation provider under subsection 96-35(2); or
(b)
does not receive a payment from a superannuation provider of the full amount stated in a release authority within the time mentioned in subsection 96-20(1);
the Commissioner must give the individual a written notice under this section.
96-40(2)
The notice must:
(a)
identify the *superannuation provider; and
(b)
state how much of the amount stated in the release authority was not paid to the Commissioner.
SECTION 96-42 NOTIFYING INDIVIDUAL - SUCCESSFUL RELEASES UNDER SECTION 96-12
96-42(1)
A *superannuation provider issued with a release authority under section 96-12 must notify an individual of a payment made to the individual in accordance with the release authority and this Subdivision.
96-42(2)
The notice must be given in the *approved form within:
(a)
21 days after the release authority is issued; or
(b)
a further period allowed by the Commissioner.
Note:
Subsection 286-75(2AA) provides an administrative penalty for failing to comply with this section.
History
S 96-42 inserted by No 21 of 2015, s 3 and Sch 1 item 41, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
SECTION 96-45 COMPENSATION FOR ACQUISITION OF PROPERTY
96-45(1)
If the operation of section 96-20 would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from an entity otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the entity.
96-45(2)
If the Commonwealth and the entity do not agree on the amount of the compensation, the entity may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
Consequences of releasing amounts
SECTION 96-50 ENTITLEMENT TO CREDITS
96-50(1)
If a *superannuation provider pays an amount in relation to a release authority issued under section 96-10 in relation to an election you make, you are entitled to a credit equal to that amount.
Note:
Division 3 of Part IIB provides for the treatment of credits that an entity is entitled to under a taxation law.
96-50(2)
The credit arises on the day the Commissioner receives the amount.
SECTION 96-55 INTEREST FOR LATE PAYMENTS OF MONEY RECEIVED BY THE COMMISSIONER IN ACCORDANCE WITH RELEASE AUTHORITY
96-55(1)
You are entitled to an amount of interest worked out under subsection (2) if:
(a)
the Commissioner is required under Division 3A of Part IIB to refund all or part of a credit you are entitled to under section 96-50; and
(b)
the Commissioner does not so refund all or part of that credit within 60 days after receiving the payment that gave rise to the credit.
96-55(2)
The interest is to be calculated:
(a)
on so much of the amount of the credit as the Commissioner fails to refund under that Division; and
(b)
for the period:
(i)
beginning 60 days after the day the Commissioner receives the amount; and
(ii)
ending on the day the Commissioner refunds the amount mentioned in paragraph (1)(a); and
(c)
on a daily basis; and
(d)
at the *base interest rate for the day the interest is calculated.
SECTION 96-60
SECTION 96-60 INCOME TAX TREATMENT OF AMOUNTS RELEASED - PROPORTIONING RULE DOES NOT APPLY
96-60
Section 307-125 of the Income Tax Assessment Act 1997 (the proportioning rule) does not apply to a payment made as required or permitted under this Subdivision.
Note:
The income tax treatment of released amounts is also affected by Subdivision 292-B, and sections 303-15 and 303-17, of that Act.
History
S 96-60 amended by No 21 of 2015, s 3 and Sch 1 item 42, by substituting the note, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years. The note formerly read:
Note:
Further provision about the income tax treatment of amounts released is in section 303-15 of that Act.
Div 96 inserted by No 118 of 2013, s 3 and Sch 1 item 2, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
Division 97 - Excess contributions determinations
History
Div 97 heading substituted by No 21 of 2015, s 3 and Sch 1 item 43, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years. The heading formerly read:
Division 97 - Excess concessional contributions determinations
Div 97 inserted by No 118 of 2013, s 3 and Sch 1 item 2, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
Subdivision 97-A - Excess concessional contributions determinations
History
Subdiv 97-A inserted by No 118 of 2013, s 3 and Sch 1 item 2, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
Guide to Subdivision 97-A
SECTION 97-1
WHAT THIS SUBDIVISION IS ABOUT
The Commissioner must give you a determination stating the amount of your excess concessional contributions.
History
S 97-1 amended by No 45 of 2021, s 3 and Sch 2 item 7, by omitting "and any excess concessional contributions charge" after "excess concessional contributions", applicable in relation to excess concessional contributions for a financial year starting on or after 1 July 2021.
S 97-1 inserted by No 118 of 2013, s 3 and Sch 1 item 2, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 97-5 |
Determination of excess concessional contributions |
| 97-10 |
Review |
Operative provisions
SECTION 97-5
DETERMINATION OF EXCESS CONCESSIONAL CONTRIBUTIONS
97-5(1)
If you have *excess concessional contributions for a *financial year, the Commissioner must make a written determination stating the amount of those excess concessional contributions.
History
S 97-5(1) substituted by No 45 of 2021, s 3 and Sch 2 item 9, applicable in relation to excess concessional contributions for a financial year starting on or after 1 July 2021. S 97-5(1) formerly read:
97-5(1)
If you have *excess concessional contributions for a *financial year, the Commissioner must make a written determination stating:
(a)
the amount of those excess concessional contributions; and
(b)
the amount (if any) of *excess concessional contributions charge you are liable to pay for the corresponding income year.
97-5(2)
A determination under this section is an
excess concessional contributions determination
.
97-5(3)
The Commissioner may amend a determination at any time.
97-5(4)
(Repealed by No 81 of 2016)
History
S 97-5(4) repealed by No 81 of 2016, s 3 and Sch 10 item 90, effective 1 January 2017 and applicable to documents (however described) that the Commissioner gives on or after 1 July 2017 under taxation laws. S 97-5(4) formerly read:
97-5(4)
Notice of the determination may be included in any other notice given to you by the Commissioner.
97-5(5)
Notice of a determination given by the Commissioner under this section is prima facie evidence of the matters stated in the notice.
History
S 97-5 inserted by No 118 of 2013, s 3 and Sch 1 item 2, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
SECTION 97-10
97-10
REVIEW
If you are dissatisfied with an *excess concessional contributions determination made in relation to you, you may object against the determination in the manner set out in Part IVC.
History
S 97-10 inserted by No 118 of 2013, s 3 and Sch 1 item 2, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
Subdivision 97-B - Excess non-concessional contributions determinations
History
Subdiv 97-B inserted by No 21 of 2015, s 3 and Sch 1 item 44, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
Guide to Subdivision 97-B
SECTION 97-20
WHAT THIS SUBDIVISION IS ABOUT
The Commissioner must give you a determination stating:
(a) the amount by which your non-concessional contributions exceed your non-concessional contributions cap; and
(b) a proxy amount for your associated earnings on this excess; and
(c) the total amount that can be released from your superannuation interests in relation to this excess and those earnings.
History
S 97-20 inserted by No 21 of 2015, s 3 and Sch 1 item 44, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 97-25 |
Excess non-concessional contributions determinations |
| 97-30 |
Associated earnings |
| 97-35 |
Review |
Operative provisions
SECTION 97-25
EXCESS NON-CONCESSIONAL CONTRIBUTIONS DETERMINATIONS
97-25(1)
If your *non-concessional contributions for a *financial year (the
contributions year
) exceed your *non-concessional contributions cap for the contributions year, the Commissioner must make a written determination stating:
(a)
the amount of the excess; and
(b)
the amount of your associated earnings worked out under section 97-30; and
(c)
the following amount (the
total release amount
):
97-25(2)
A determination under this section is an
excess non-concessional contributions determination
.
97-25(3)
The Commissioner may amend a determination at any time.
97-25(4)
(Repealed by No 81 of 2016)
History
S 97-25(4) repealed by No 81 of 2016, s 3 and Sch 10 item 90, effective 1 January 2017 and applicable to documents (however described) that the Commissioner gives on or after 1 July 2017 under taxation laws. S 97-25(4) formerly read:
97-25(4)
Notice of the determination may be included in any other notice given to you by the Commissioner.
97-25(5)
Notice of a determination given by the Commissioner under this section is prima facie evidence of the matters stated in the notice.
History
S 97-25 inserted by No 21 of 2015, s 3 and Sch 1 item 44, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
SECTION 97-30
ASSOCIATED EARNINGS
97-30(1)
You are taken to have associated earnings equal to the sum (rounded down to the nearest dollar) of the amounts worked out under the following formula for each of the days during the period:
(a)
starting on the first day of the contributions year; and
(b)
ending on the day the Commissioner makes the first *excess non-concessional contributions determination you receive for the contributions year.
where:
excess
means the amount of the excess referred to in paragraph 97-25(1)(a).
proxy rate
means the lower of:
(a)
the rate worked out under subsection 8AAD(1) for the first day of that period as if the base interest rate (within the meaning of subsection 8AAD(2)) for that day were the average of the base interest rates for each of the days of the contributions year; and
(b)
a rate determined under subsection (2) for the contributions year.
sum of earlier daily proxy amounts
means the sum of the amounts worked out under the formula for each of the earlier days (if any) during that period.
Note:
Any excess non-concessional contributions determination you receive after the first one for the contributions year is an amended determination.
97-30(2)
The Minister may, by legislative instrument, determine a rate for a specified *financial year.
History
S 97-30 inserted by No 21 of 2015, s 3 and Sch 1 item 44, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
SECTION 97-35
97-35
REVIEW
If you are dissatisfied with an *excess non-concessional contributions determination made in relation to you, you may object against the determination in the manner set out in Part IVC.
History
S 97-35 inserted by No 21 of 2015, s 3 and Sch 1 item 44, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
Chapter 3 - Collection, recovery and administration of other taxes
History
Ch 3 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
PART 3-10 - INDIRECT TAXES
History
Pt 3-10 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
Division 105 - General rules for indirect taxes
History
Div 105 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
Guide to Division 105
SECTION 105-1
WHAT THIS DIVISION IS ABOUT
This Division contains rules relating to the administration of the indirect tax laws.
Note 1:
Administration rules relevant to particular indirect tax laws are in Divisions 110, 111 and 112.
Note 2:
For assessment of assessable amounts under indirect tax laws, see Division 155.
The rules in this Division deal with the following:
(a) (Repealed by No 39 of 2012)
(b) (Repealed by No 39 of 2012)
(c) limits on credits, refunds and recovering amounts;
(d) (Repealed by No 74 of 2010)
(e) the effect of not passing on refunds of overpaid amounts;
(f) charges and penalties;
(g) (Repealed by No 39 of 2012)
(h) refunding indirect tax because of Australia's international obligations;
(i) requirements for notifications.
History
S 105-1 amended by No 39 of 2012, s 3 and Sch 1 item 257, by repealing para (a) and (b), effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012. Para (a) and (b) formerly read:
(a)
how assessments are made or amended and their effect;
(b)
review of assessments;
S 105-1 amended by No 70 of 2015, s 3 and Sch 6 item 52, by omitting "your address for service of documents and" before "requirements" from para (i), applicable on and after 1 July 2015.
S 105-1 amended by No 39 of 2012, s 3 and Sch 1 items 200 and 201, by substituting note 1 and 2 for note, and repealing para (g), effective 1 July 2012. For application provisions see note under s 8AAZLG(2).
The note and para (g) formerly read:
Note:
Administration rules relevant to particular indirect tax laws are in Divisions 110, 111 and 112.
(g)
the evidentiary effect of official indirect tax documents;
S 105-1 amended by No 74 of 2010, s 3 and Sch 2 item 22, by repealing para (d), effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1). Para (d) formerly read:
(d) the effect of relying on a ruling;
S 105-1 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
(Repealed) Subdivision 105-A - Assessments
History
Subdiv 105-A repealed by No 39 of 2012, s 3 and Sch 1 item 258, effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012.
Subdiv 105-A inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
105-3
105-3
(Repealed) SECTION 105-3 APPLICATION OF SUBDIVISION
(Repealed by No 39 of 2012)
History
S 105-3 repealed by No 39 of 2012, s 3 and Sch 1 item 258, effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012. S 105-3 formerly read:
SECTION 105-3 APPLICATION OF SUBDIVISION
105-3
This Subdivision applies to:
(a)
*tax periods, and *fuel tax return periods, starting before 1 July 2012; and
(b)
*indirect tax payable by you on an importation of goods, if:
(i)
the indirect tax does not relate to any tax periods; and
(ii)
the liability to pay the indirect tax arose before 1 July 2012.
Note:
This Subdivision will be repealed on 1 January 2017: see Part 2 of Schedule 1 to the Indirect Tax Laws Amendment (Assessment) Act 2012.
S 105-3 inserted by No 39 of 2012, s 3 and Sch 1 item 233, effective 1 July 2012.
105-5
105-5
(Repealed) SECTION 105-5 COMMISSIONER MAY MAKE ASSESSMENT OF INDIRECT TAX
(Repealed by No 39 of 2012)
History
S 105-5 repealed by No 39 of 2012, s 3 and Sch 1 item 258, effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012. S 105-5 formerly read:
SECTION 105-5 COMMISSIONER MAY MAKE ASSESSMENT OF INDIRECT TAX
105-5(1)
The Commissioner may at any time make an assessment of:
(a)
your *net amount, or any part of your net amount, for a *tax period; or
(b)
your *net fuel amount, or any part of your net fuel amount, for a tax period or *fuel tax return period.
105-5(2)
The Commissioner may at any time make an assessment of the amount of *indirect tax payable by you on an importation of goods.
105-5(3)
The Commissioner may make an assessment under this section even if he or she has already made an assessment for the *tax period, *fuel tax return period or importation concerned.
Note:
An assessment made under this section is a reviewable indirect tax decision: see Subdivision 105-B.
S105-5 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
105-10
105-10
(Repealed) SECTION 105-10 REQUEST FOR ASSESSMENT
(Repealed by No 39 of 2012)
History
S 105-10 repealed by No 39 of 2012, s 3 and Sch 1 item 258, effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012. S 105-10 formerly read:
SECTION 105-10 REQUEST FOR ASSESSMENT
105-10(1)
You may request the Commissioner in the *approved form to make an assessment of:
(a)
your *net amount for a *tax period; or
(b)
your *net fuel amount for a tax period or *fuel tax return period; or
(c)
an amount of *indirect tax payable by you on an importation of goods.
105-10(2)
The Commissioner must comply with the request if it is made within:
(a)
4 years after:
(i)
the end of the *tax period or *fuel tax return period; or
(ii)
the importation; or
(b)
such further period as the Commissioner allows.
S 105-10 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
105-15
105-15
(Repealed) SECTION 105-15 INDIRECT TAX LIABILITIES DO NOT DEPEND ON ASSESSMENT
(Repealed by No 39 of 2012)
History
S 105-15 repealed by No 39 of 2012, s 3 and Sch 1 item 258, effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012. S 105-15 formerly read:
SECTION 105-15 INDIRECT TAX LIABILITIES DO NOT DEPEND ON ASSESSMENT
105-15(1)
Your liability to pay *indirect tax or a *net fuel amount, and the time by which a *net amount, a net fuel amount or an amount of indirect tax must be paid, do not depend on, and are not in any way affected by, the making of an assessment under this Subdivision.
105-15(2)
The Commissioner's obligation to pay:
(a)
a *net amount under section 35-5 of the *GST Act; or
(b)
a *net fuel amount under section 61-5 of the Fuel Tax Act 2006;
and the time by which it must be paid, do not depend on, and are not in any way affected by, the making of an assessment under this Subdivision.
Note:
However, a notice of assessment can be used as evidence of liability: see section 105-100.
S 105-15 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
105-20
105-20
(Repealed) SECTION 105-20 COMMISSIONER MUST GIVE NOTICE OF THE ASSESSMENT
(Repealed by No 39 of 2012)
History
S 105-20 repealed by No 39 of 2012, s 3 and Sch 1 item 258, effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012. S 105-20 formerly read:
SECTION 105-20 COMMISSIONER MUST GIVE NOTICE OF THE ASSESSMENT
105-20(1)
The Commissioner must give you notice of an assessment as soon as practicable after the assessment is made. However, failing to do so does not affect the validity of the assessment.
105-20(2)
The Commissioner may give you the notice electronically if you are required to lodge or have lodged your *GST returns electronically.
S 105-20 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
105-25
105-25
(Repealed) SECTION 105-25 AMENDMENT OF ASSESSMENT
(Repealed by No 39 of 2012)
History
S 105-25 repealed by No 39 of 2012, s 3 and Sch 1 item 258, effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012. S 105-25 formerly read:
SECTION 105-25 AMENDMENT OF ASSESSMENT
105-25
The Commissioner may amend an assessment at any time. An amended assessment is an assessment for all purposes of any *indirect tax law.
Note 1:
However, there is a time limit on the recovery of overpaid or underpaid net amounts, net fuel amounts and indirect tax: see sections 105-50 and 105-55.
Note 2:
An amendment under this section is a reviewable indirect tax decision: see Subdivision 105-B.
S 105-25 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
105-30
105-30
(Repealed) SECTION 105-30 LATER ASSESSMENT PREVAILS IN CASE OF INCONSISTENCY
(Repealed by No 39 of 2012)
History
S 105-30 repealed by No 39 of 2012, s 3 and Sch 1 item 258, effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012. S 105-30 formerly read:
SECTION 105-30 LATER ASSESSMENT PREVAILS IN CASE OF INCONSISTENCY
105-30
If there is an inconsistency between assessments that relate to the same *tax period, *fuel tax return period or importation of goods, the later assessment prevails to the extent of the inconsistency.
S 105-30 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
(Repealed) Subdivision 105-B - Review of indirect tax decisions
History
Subdiv 105-B repealed by No 39 of 2012, s 3 and Sch 1 item 258, effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012.
Subdiv 105-B inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
105-40
105-40
(Repealed) SECTION 105-40 REVIEWABLE INDIRECT TAX DECISIONS
(Repealed by No 39 of 2012)
History
S 105-40 repealed by No 39 of 2012, s 3 and Sch 1 item 258, effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012. S 105-40 formerly read:
SECTION 105-40 REVIEWABLE INDIRECT TAX DECISIONS
105-40(1)
You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that is a *reviewable indirect tax decision relating to you.
105-40(2)
A decision under section 105-5 or 105-25 involving an assessment of a *net amount, a *net fuel amount or an amount of *indirect tax is a
reviewable indirect tax decision
.
Note:
This Subdivision will be repealed on 1 January 2017: see Part 2 of Schedule 1 to the Indirect Tax Laws Amendment (Assessment) Act 2012.
S 105-40 amended by No 39 of 2012, s 3 and Sch 1 item 234, s 3 and Sch 1 item 234, by inserting the note at the end, effective 1 July 2012.
S 105-40 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006. No 73 of 2006, s 3 and Sch 5 item 57 contained the following application provision:
(1)
Section 105-40 in Schedule 1 to the Taxation Administration Act 1953 applies to:
(a)
a reviewable indirect tax decision (within the meaning of section 62 of the Taxation Administration Act 1953 as in force immediately before the commencement of this item) if an application for the review of the decision had not been made before the commencement of this item; or
(b)
a reviewable indirect tax decision (within the meaning of section 105-40 in that Schedule) made after the commencement of this item [CCH Note: the item commenced 1 July 2006].
Subdivision 105-C - Limits on credits, refunds and recovering amounts
History
Subdiv 105-C inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
105-50
105-50
(Repealed) SECTION 105-50 TIME LIMIT ON RECOVERY BY THE COMMISSIONER
(Repealed by No 39 of 2012)
History
History
S 105-50(3) inserted by No 91 of 2008. For further application provision see note under s 105-50(1).
S 105-50 repealed by No 39 of 2012, s 3 and Sch 1 item 259, effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012. S 105-50 formerly read:
SECTION 105-50 TIME LIMIT ON RECOVERY BY THE COMMISSIONER
105-50(1)
Any unpaid *net amount, *net fuel amount or amount of *indirect tax (together with any relevant *general interest charge under this Act) ceases to be payable 4 years after it became payable by you.
History
S 105-50(1) amended by No 91 of 2008, s 3 and Sch 2 items 2 to 4, by inserting the subsection (1) number, by substituting "this Act" for "section 105-80", and by omitting all the words after "it became payable by you" effective 1 July 2008. Act No 91 of 2008, Sch 2 item 16 contained the following application provision:
16 Application
(1)
The amendments made to section 105-50 of Schedule 1 to the Taxation Administration Act 1953 by this Schedule apply in relation to an amount that:
(a)
is:
(i)
an unpaid net amount, net fuel amount or amount of indirect tax of a kind referred to in subsection 105-50(1) of Schedule 1 to that Act as amended by this Schedule; or
(ii)
an amount of excess of a kind referred to in subsection 105-50(2) of Schedule 1 to that Act as amended by this Schedule; or
(iii)
an amount of any relevant general interest charge under that Act that relates to an amount referred to in subparagraph (i) or (ii); and
(b)
became payable by you before the commencement of this Schedule;
unless, before that commencement, the Commissioner notified you in writing that the amount was payable.
…
(3)
To avoid doubt, this item does not prevent amendments made by this Schedule from applying to amounts that become payable, or entitlements that arise, on or after 1 July 2008.
The words after "it became payable by you" formerly read:
unless:
(a) within those 4 years the Commissioner has required payment of the amount by giving a notice to you; or
(b) the Commissioner is satisfied that the payment of the amount was avoided by fraud or evaded.
105-50(2)
If:
(a)
an amount was paid to you, or applied under Division 3 of Part IIB of this Act, as:
(i)
a refund in relation to a *net amount, *net fuel amount or amount of *indirect tax; or
(ii)
an amount of indirect tax that was overpaid or wrongly paid; and
(b)
that amount exceeded the amount (if any) that you were entitled to be paid, or to have applied under Division 3 of Part IIB of this Act;
the amount of the excess (together with any relevant *general interest charge under this Act) ceases to be payable 4 years after it became payable by you.
History
S 105-50(2) inserted by No 91 of 2008, s 3 and Sch 2 item 5, effective 1 July 2008. For further application provision see note under s 105-50(1).
105-50(3)
However, subsection (1) does not apply to an amount, and subsection (2) does not apply to an amount of an excess, if:
(a)
within those 4 years the Commissioner has required payment of the amount or the amount of excess by giving a notice to you; or
(b)
the Commissioner is satisfied that:
(i)
the payment of the amount was avoided by fraud or evaded; or
(ii)
the payment of the amount of excess, or its application under Division 3 of Part IIB of this Act, was brought about by fraud or evasion.
History
S 105-50(3) inserted by No 91 of 2008, s 3 and Sch 2 item 5, effective 1 July 2008. For further application provision see note under s 105-50(1).
Sunsetting provision
105-50(4)
This section applies in relation to payments and refunds that:
(a)
relate to *tax periods, and *fuel tax return periods, that start before 1 July 2012; or
(b)
do not relate to any tax periods or fuel tax return periods, but relate to liabilities or entitlements that arose before 1 July 2012.
Note:
This section will be repealed on 1 January 2017: see Part 2 of Schedule 1 to the Indirect Tax Laws Amendment (Assessment) Act 2012.
History
S 105-50(4) inserted by No 39 of 2012, s 3 and Sch 1 item 235, effective 1 July 2012.
S 105-50 inserted by No 73 of 2006, s 3 and Sch 5 item 41, applicable to a decision made before or after 1 July 2006.
105-55
105-55
(Repealed) SECTION 105-55 TIME LIMIT ON REFUNDS ETC. FROM THE COMMISSIONER
(Repealed by No 39 of 2012)
History
History
S 105-55(5) amended by No 91 of 2008. For further application provision see note under s 105-55(1).
S 105-55 repealed by No 39 of 2012, s 3 and Sch 1 item 259, effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012. S 105-55 formerly read:
SECTION 105-55 TIME LIMIT ON REFUNDS ETC. FROM THE COMMISSIONER
105-55(1)
You are not entitled to a refund, other payment or credit to which this subsection applies in respect of a *tax period or importation unless:
(a)
within 4 years after:
(i)
the end of the tax period; or
(ii)
the importation;
as the case requires, you notify the Commissioner (in a *GST return or otherwise) that you are entitled to the refund, other payment or credit; or
(b)
within that period the Commissioner notifies you (in a notice of assessment or otherwise) that you are entitled to the refund, other payment or credit; or
(c)
in the case of a credit - the credit is taken into account in working out:
(i)
a *net amount or *net fuel amount that the Commissioner may recover from you only because of subparagraph 105-50(3)(b)(i); or
(ii)
an amount of excess referred to in subsection 105-50(2) that the Commissioner may recover from you only because of subparagraph 105-50(3)(b)(ii).
Note:
Division 93 of the GST Act puts a time limit on your entitlement to an input tax credit. Division 47 of the Fuel Tax Act 2006 puts a time limit on your entitlement to a fuel tax credit.
History
S 105-55(1) amended by No 20 of 2010, s 3 and Sch 1 item 15, by inserting the note at the end, applicable, and taken to have applied, in relation to acquisitions and adjustments that are taken into account in:
(a) GST returns given to the Commissioner under the A New Tax System (Goods and Services Tax) Act 1999 after 7.30 pm Australian Eastern Standard Time on 12 May 2009; or
(b) assessments made by the Commissioner under Subdivision 105-A in Schedule 1 to the Taxation Administration Act 1953 after that time; or
(c) amendments of:
(i) GST returns referred to in paragraph (a); or
(ii) assessments referred to in paragraph (b).
S 105-55(1) amended by No 91 of 2008, s 3 and Sch 2 items 7 to 9, by substituting ", other payment or credit" for "or credit" in the text before the paras and in para (a) and (b), and by substituting para (c), effective 1 July 2008. Act No 91 of 2008, Sch 2 item 16 contained the following application provision:
16 Application
…
(2)
The amendments made to section 105-55 of Schedule 1 to the Taxation Administration Act 1953 by this Schedule apply in relation to a refund, other payment or credit:
(a)
that is of a kind referred to in subsection 105-55(1) or (3) of Schedule 1 to that Act as amended by this Schedule; and
(b)
to which you became entitled before the commencement of this Schedule;
unless, before that commencement, you notified the Commissioner in writing, or the Commissioner notified you in writing, that you were entitled to the refund, other payment or credit.
(3)
To avoid doubt, this item does not prevent amendments made by this Schedule from applying to amounts that become payable, or entitlements that arise, on or after 1 July 2008.
Para (c) formerly read:
(c)
in the case of a credit - the credit is taken into account in working out a *net amount or *net fuel amount that the Commissioner may recover from you only because of paragraph 105-50(b).
105-55(2)
Subsection (1) applies to:
(a)
a refund in relation to a *net amount or *net fuel amount in respect of a particular *tax period; or
(aa)
another payment that represents some or all of an amount:
(i)
that you paid as an amount of *indirect tax payable by you in respect of a particular tax period; and
(ii)
that exceeded the amount (if any) of such tax that you were liable to pay in respect of that tax period; or
(b)
an *input tax credit or *fuel tax credit that is attributable to a particular tax period; or
(c)
a *wine tax credit the amount of which could have been included in a reduction of your *net amount for a tax period under section 21-15 of the *Wine Tax Act; or
(d)
a refund of an amount of *indirect tax relating to an importation.
History
S 105-55(2) amended by No 91 of 2008, s 3 and Sch 2 item 10, by substituting para (a) and (aa) for para (a), effective 1 July 2008. For further application provision see note under s 105-55(1). Para (a) formerly read:
(a)
a refund under section 35-5 of the *GST Act or section 61-5 of the Fuel Tax Act 2006 in respect of a particular *tax period; or
105-55(2A)
A request by you to the Commissioner to treat a document as a *tax invoice for the purposes of attributing a credit to a *tax period is taken to be a notification, for the purposes of paragraph (1)(a), of your entitlement to the credit if:
(a)
you made the request within the 4 year period referred to in that paragraph in relation to the credit; and
(b)
the Commissioner agrees to the request (whether or not within that period).
History
S 105-55(2A) inserted by No 20 of 2010, s 3 and Sch 1 item 16, applicable, and taken to have applied, in relation to acquisitions and adjustments that are taken into account in:
(a) GST returns given to the Commissioner under the A New Tax System (Goods and Services Tax) Act 1999 after 7.30 pm Australian Eastern Standard Time on 12 May 2009; or
(b) assessments made by the Commissioner under Subdivision 105-A in Schedule 1 to the Taxation Administration Act 1953 after that time; or
(c) amendments of:
(i) GST returns referred to in paragraph (a); or
(ii) assessments referred to in paragraph (b).
Fuel tax - non-business taxpayers
105-55(3)
If you are neither *registered for GST nor *required to be registered for GST, you are not entitled to a refund, other payment or *fuel tax credit to which this subsection applies in respect of a *fuel tax return period, acquisition, manufacture or importation unless:
(a)
within 4 years after:
(i)
the end of the fuel tax return period; or
(ii)
the acquisition, manufacture or importation;
(as the case requires) you notify the Commissioner that you are entitled to the refund, other payment or credit; or
(b)
within that period the Commissioner notifies you (in a notice of assessment or otherwise) that you are entitled to the refund, other payment or credit; or
(c)
in the case of a fuel tax credit - the credit is taken into account in working out:
(i)
a *net fuel amount that the Commissioner may recover from you only because of subparagraph 105-50(3)(b)(i); or
(ii)
an amount of excess referred to in subsection 105-50(2) that the Commissioner may recover from you only because of subparagraph 105-50(3)(b)(ii).
Note:
Division 47 of the Fuel Tax Act 2006 puts a time limit on your entitlement to a fuel tax credit.
History
S 105-55(3) amended by No 20 of 2010, s 3 and Sch 1 item 18, by inserting the note at the end, applicable, and taken to have applied, in relation to acquisitions, manufacturing, importations and adjustments that are taken into account in:
(a) returns given to the Commissioner under section 61-15 of the Fuel Tax Act 2006 on or after 1 July 2010; or
(b) amendments of such returns.
S 105-55(3) amended by No 91 of 2008, s 3 and Sch 2 items 11 to 13, by inserting ", other payment" in the text before the paras and in para (a) and (b), and by substituting para (c), effective 1 July 2008. For further application provision see note under s 105-55(1). Para (c) formerly read:
(c)
in the case of a fuel tax credit - the credit is taken into account in working out a *net fuel amount that the Commissioner may recover from you only because of paragraph 105-50(b).
105-55(4)
Subsection (3) applies to:
(a)
a refund in relation to a *net fuel amount attributable to a *fuel tax return period; or
(b)
a *fuel tax credit for *taxable fuel that you acquire, manufacture or import.
History
S 105-55(4)(a) amended by No 91 of 2008, s 3 and Sch 2 item 14, by substituting "in relation to" for ", under section 61-5 of the Fuel Tax Act 2006, of", effective 1 July 2008. For further application provision see note under s 105-55(1).
105-55(5)
To avoid doubt, if, under subsection (3), you are not entitled to a *fuel tax credit, then you are not entitled to a refund or other payment in relation to the credit.
History
S 105-55(5) amended by No 91 of 2008, s 3 and Sch 2 item 15, by substituting "or other payment" for "under section 61-5 of the Fuel Tax Act 2006", effective 1 July 2008. For further application provision see note under s 105-55(1).
Sunsetting provision
105-55(6)
This section applies in relation to payments and refunds that:
(a)
relate to *tax periods, and *fuel tax return periods, that start before 1 July 2012; or
(b)
do not relate to any tax periods, or fuel tax return periods, but relate to liabilities or entitlements that arose before 1 July 2012.
Note:
This section will be repealed on 1 January 2017: see Part 2 of Schedule 1 to the Indirect Tax Laws Amendment (Assessment) Act 2012.
History
S 105-55(6) inserted by No 39 of 2012, s 3 and Sch 1 item 236, effective 1 July 2012.
S 105-55 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
105-60
105-60
(Repealed) SECTION 105-60 RELIANCE ON COMMISSIONER'S INTERPRETATION OF AN INDIRECT TAX LAW (OTHER THAN A FUEL TAX LAW)
(Repealed by No 74 of 2010)
History
S 105-60 repealed by No 74 of 2010, s 3 and Sch 2 item 23, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1). S 105-60 formerly read:
SECTION 105-60 RELIANCE ON COMMISSIONER'S INTERPRETATION OF AN INDIRECT TAX LAW (OTHER THAN A FUEL TAX LAW)
105-60(1)
This section applies to you if:
(a)
the Commissioner alters a previous *indirect tax ruling that applied to you; and
(b)
relying on the previous ruling, you have underpaid a *net amount or an amount of *indirect tax, or the Commissioner has overpaid an amount under section 35-5 of the *GST Act, in respect of one or more:
(i)
*taxable supplies or *taxable importations; or
(ii)
*wine taxable dealings; or
(iii)
*taxable supplies of luxury cars or *taxable importations of luxury cars; or
(iv)
*creditable acquisitions or *creditable importations;
that happened before the alteration.
Note:
For reliance on the Commissioner's interpretation of a fuel tax law, see Division 357.
105-60(2)
Unless the Commissioner is satisfied that you contributed to the giving, or continuing in force, of the earlier ruling by a misstatement or by suppressing a material fact:
(a)
the underpaid *net amount or *indirect tax ceases to be payable; or
(b)
the overpaid amount under section 35-5 of the *GST Act is taken to have been payable in full;
from when the previous ruling was made.
105-60(3)
In deciding whether an *indirect tax ruling applies to you, or whether a ruling has been altered:
(a)
a *private indirect tax ruling applies only to the entity to whom it was given; and
(b)
so far as a private indirect tax ruling conflicts with an earlier *public indirect tax ruling, the private indirect tax ruling prevails; and
(c)
so far as a public indirect tax ruling conflicts with an earlier private indirect tax ruling, the public indirect tax ruling prevails; and
(d)
an alteration that a later indirect tax ruling makes to an earlier indirect tax ruling is disregarded so far as the alteration results from a change in the law that came into operation after the earlier indirect tax ruling was given.
S 105-60 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
105-65
105-65
(Repealed) SECTION 105-65 RESTRICTION ON GST REFUNDS
(Repealed by No 34 of 2014)
History
S 105-65 repealed by No 34 of 2014, s 3 and Sch 2 item 27, effective 1 July 2018. For transitional provision, see note under s 14ZW(1). S 105-65 formerly read:
SECTION 105-65 RESTRICTION ON GST REFUNDS
105-65(1)
The Commissioner need not give you a refund of an amount to which this section applies, or apply (under Division 3 or 3A of Part IIB) an amount to which this section applies, if:
(a)
you overpaid the amount, or the amount was not refunded to you, because a *supply was treated as a *taxable supply, or an *arrangement was treated as giving rise to a taxable supply, to any extent; and
(b)
the supply is not a taxable supply, or the arrangement does not give rise to a taxable supply, to that extent (for example, because it is *GST-free); and
(c)
one of the following applies:
(i)
the Commissioner is not satisfied that you have reimbursed a corresponding amount to the recipient of the supply or (in the case of an arrangement treated as giving rise to a taxable supply) to an entity treated as the recipient;
(ii)
the recipient of the supply, or (in the case of an arrangement treated as giving rise to a taxable supply) the entity treated as the recipient, is *registered or *required to be registered.
Note:
Divisions 3 and 3A of Part IIB deal with payments, credits and RBA surpluses.
105-65(2)
This section applies to the following amounts that relate to a *tax period starting on or before the day the Tax Laws Amendment (2014 Measures No. 1) Act 2014 receives the Royal Assent:
(a)
in the case of a *supply:
(i)
so much of any *assessed net amount or amount of *GST as you have overpaid (as mentioned in paragraph (1)(a)); or
(ii)
so much of any assessed net amount that is payable to you under section 35-5 of the *GST Act as the Commissioner has not refunded to you (as mentioned in paragraph (1)(a)), either by paying it to you or by applying it under Division 3 of Part IIB of this Act;
(b)
in the case of an *arrangement:
(i)
so much of any assessed net amount or amount of GST to which subparagraph (a)(i) would apply if the arrangement were a supply; or
(ii)
so much of any assessed net amount to which subparagraph (a)(ii) would apply if the arrangement were a supply.
Note:
Division 3 of Part IIB deals with payments, credits and RBA surpluses.
History
S 105-65(2) amended by No 34 of 2014, s 3 and Sch 2 item 19, by inserting "that relate to a *tax period starting on or before the day the Tax Laws Amendment (2014 Measures No. 1) Act 2014 receives the Royal Assent", effective 30 May 2014. See note under s 105-65(3) of Sch 1.
S 105-65(2) amended by No 39 of 2012, s 3 and Sch 1 items 202-205, by substituting "*assessed net amount" for "*net amount" in para (a)(i), and substituting "assessed net amount" for "net amount" in para (a)(ii), (b)(i) and (b)(ii), effective 1 July 2012. For application provisions see note under s 8AAZLG(2).
105-65(3)
The Commissioner must notify you in writing of any decision relating to you made under subsection (1) after the day mentioned in subsection (2).
History
S 105-65(3) inserted by No 34 of 2014, s 3 and Sch 2 item 20, effective 30 May 2014. No 34 of 2014, s 3 and Sch 2 items 21 to 24 contain the following provisions:
Division 2 - Validating certain past objections and reviews
21 Definitions
In this Division:
AAT
means the Administrative Appeals Tribunal.
refund decision
means a decision under subsection 105-65(1) in Schedule 1 to the Taxation Administration Act 1953.
22 Validating objections, Commissioner decisions and AAT decisions
Validating objections, Commissioner decisions and AAT decisions
22(1)
This item applies to each of the following things:
(a)
an objection, purportedly made before 28 June 2013 as a taxation objection under section 105-40, or Subdivision 155-C, in Schedule 1 to the Taxation Administration Act 1953 against a refund decision;
(b)a decision of the Commissioner, purportedly made before the commencement of this Division under Part IVC of that Act in relation to an objection covered by paragraph (a);
(c)
a decision of the AAT, purportedly made before the commencement of this Division in relation to a decision covered by paragraph (b);
(d)
any other thing, purportedly done before the commencement of this Division under or in relation to Part IVC of that Act (other than an order purportedly made by a court) in relation to an objection covered by paragraph (a) or a decision covered by paragraph (b) or (c);
to the extent that, apart from this item, the thing would not be valid or effective because taxation objections are unable to be made under section 105-40, or Subdivision 155-C, in Schedule 1 to that Act against refund decisions.
22(2)
The thing is as valid, and is taken always to have been as valid, as it would have been if:
(a)
taxation objections were able to be made under section 105-40, or Subdivision 155-C, in Schedule 1 to that Act against refund decisions; and
(b)
refund decisions were taxation decisions for the purposes of Part IVC of that Act.
No second objection available
22(3)
Despite subsection 105-65(4) in Schedule 1 to the Taxation Administration Act 1953, a taxation objection cannot be made under that subsection against a refund decision that is the subject of an objection covered by paragraph (1)(a).
23 Extension of time for lodging an objection
23(1)
Subitem (3) applies if, on 28 June 2013, a person has not lodged, and was not prevented by section 14ZW of the Taxation Administration Act 1953 from lodging, a purported taxation objection under section 105-40, or Subdivision 155-C, in Schedule 1 to that Act against a refund decision.
23(2)
When considering section 14ZW of that Act under subitem (1), assume that such a purported taxation objection would have been a valid taxation objection.
Extension of time for lodging an objection
23(3)
The person may lodge a taxation objection, under section 105-65 in Schedule 1 to that Act against that refund decision, before the end of whichever of the following ends last:
(a)
60 days after notice of the refund decision has been served on the person;
(b)
4 years after the end of the tax period to which the refund decision relates;
(c)
60 days after the commencement of this Division.
23(4)
Subitem (3) applies despite paragraph 14ZW(1)(bh) of that Act.
24 Extension of time for pending objections etc.
24(1)
This item applies if:
(a)
before 28 June 2013, a person lodged an objection covered by paragraph 22(1)(a); and
(b)
on or after that day, a period had not expired for the person to take further action under, or as described in, Part IVC of the Taxation Administration Act 1953 in relation to that objection; and
(c)
the person chose not to take that action within that period; and
(d)
that period expired before the commencement of this Division.
24(2)
Part IVC of that Act, and the Administrative Appeals Tribunal Act 1975, apply as if that period were reset so as to be 60 days starting at the commencement of this Division.
105-65(4)
You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that was made under subsection (1).
Note:
This section will be repealed on 1 July 2018: see Part 3 of Schedule 2 to the Tax Laws Amendment (2014 Measures No. 1) Act 2014.
History
S 105-65(4) inserted by No 34 of 2014, s 3 and Sch 2 item 20, effective 30 May 2014. See note under s 105-65(3) of Sch 1.
S 105-65 substituted by No 91 of 2008, s 3 and Sch 2 item 17, effective 1 July 2008. Act No 91 of 2008, s 3 and Sch 2 item 18, contained the following application provision:
18 Application
The amendment made by item 17 applies to amounts overpaid or not refunded:
(a)
to which section 105-65 of the Taxation Administration Act 1953 (as amended by this Part) applies; and
(b)
that are in respect of tax periods starting on or after 1 July 2008.
S 105-65 formerly read:
SECTION 105-65 RESTRICTION ON REFUNDS
105-65(1)
The Commissioner need not give you a refund to which this section applies, or apply an amount under Division 3 or 3A of Part IIB to which this section applies, if:
(a)
you overpaid the amount, or the amount was not refunded to you, because a *supply was treated as a *taxable supply to any extent; and
(b)
the supply is not a taxable supply to that extent (for example, because it is *GST-free); and
(c)
one of the following applies:
(i)
the Commissioner is not satisfied that you have reimbursed a corresponding amount to the recipient of the supply;
(ii)
the recipient is *registered or *required to be registered.
Note:
Divisions 3 and 3A of Part IIB deal with payments, credits and RBA surpluses.
105-65(2)
This section applies to:
(a)
so much of any *net amount or amount of *indirect tax as you have overpaid; or
(b)
so much of any net amount that is payable to you under section 35-5 of the *GST Act as the Commissioner has not paid to you or applied under Division 3 of Part IIB of this Act.
Note:
Division 3 of Part IIB deals with payments, credits and RBA surpluses.
S 105-65 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
Subdivision 105-D - General interest charge and penalties
History
Subdiv 105-D inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
SECTION 105-80
GENERAL INTEREST CHARGE
105-80(1)
If any of an amount (the
liability
) to which this section applies remains unpaid after the time by which it is due to be paid, you are liable to pay the *general interest charge on the unpaid amount of the liability for each day in the period that:
(a)
started at the beginning of the day by which the liability was due to be paid; and
(b)
finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i)
the liability;
(ii)
general interest charge on any of the liability.
Note:
The general interest charge is worked out under Division 1 of Part IIA.
105-80(2)
This section applies to either of the following amounts that you are liable to pay:
(a)
an *assessed net fuel amount;
(b)
an assessed amount of *indirect tax (including an *assessed net amount).
History
S 105-80(2) amended by No 39 of 2012, s 3 and Sch 1 item 206, by substituting para (a) and (b), effective 1 July 2012. For application provisions see note under s 8AAZLG(2).
Para (a) and (b) formerly read:
(a)
a *net fuel amount;
(b)
an amount of *indirect tax.
S 105-80 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
SECTION 105-85
AMENDING ACTS CANNOT IMPOSE PENALTIES OR GENERAL INTEREST CHARGE EARLIER THAN 28 DAYS AFTER ROYAL ASSENT
105-85(1)
An Act that amends an *indirect tax law does not have the effect of making you liable to:
(a)
a penalty for an offence against an indirect tax law; or
(b)
*general interest charge under section 105-80;
for any act or omission that happens before the 28th day (the
postponed day
) after the day on which the amending Act receives the Royal Assent.
105-85(2)
If the amending Act would (apart from this section) have the effect of making you liable to such a penalty or charge because you contravened a requirement to do something:
(a)
within a specified period ending before the postponed day; or
(b)
before a specified time happening before the postponed day;
the requirement has effect instead by reference to a period ending at the start of the postponed day, or by reference to the start of the postponed day, as the case requires.
105-85(3)
This section does not relieve you from liability to such a penalty or charge to the extent to which the liability would have existed if the amending Act had not been enacted.
History
S 105-85 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
(Repealed) Subdivision 105-E - (Repealed by No 39 of 2012)
History
Subdiv 105-E repealed by No 39 of 2012, s 3 and Sch 1 item 207, effective 1 July 2012. For application provisions see note under s 8AAZLG(2).
Subdiv 105-E formerly read:
Subdivision 105-E - Evidence
SECTION 105-100 PRODUCTION OF ASSESSMENT OR DECLARATION IS CONCLUSIVE EVIDENCE
105-100
The production of:
(a)
a notice of assessment under this Part; or
(b)
a declaration under:
(i)
section 165-40 or subsection 165-45(3) of the *GST Act; or
(ii)
section 75-40 or subsection 75-45(3) of the Fuel Tax Act 2006;
is conclusive evidence:
(c)
that the assessment or declaration was properly made; and
(d)
except in proceedings under Part IVC of this Act on a review or appeal relating to the assessment or declaration - that the amounts and particulars in the assessment or declaration are correct.
History
S 105-100 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
SECTION 105-105 CERTIFICATE OF AMOUNT PAYABLE IS PRIMA FACIE EVIDENCE
105-105
The presentation of a certificate signed by the Commissioner or a Deputy Commissioner certifying that, from the time specified in the certificate, an amount was payable under an *indirect tax law (whether to or by the Commissioner) is prima facie evidence:
(a)
that the amount is payable from that time; and
(b)
that the particulars stated in the certificate are correct.
History
S 105-105 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
SECTION 105-110 SIGNED COPIES ARE EVIDENCE
105-110(1)
The production of a document signed by the Commissioner or a Deputy Commissioner that appears to be a copy of, or extract from, any document made or given by or to an entity for the purposes of an *indirect tax law is evidence of the matters set out in the document to the same extent as the original document would have been evidence of those matters.
105-110(2)
To avoid doubt, subsection (1) applies to a copy or extract of a document that was given by or to the Commissioner on a data processing device or by way of electronic transmission, unless it is shown that the document was not authorised.
History
S 105-110 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
Subdiv 105-E inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
Subdivision 105-F - Indirect tax refund schemes
History
Subdiv 105-F inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
SECTION 105-120
REFUND SCHEME - DEFENCE RELATED INTERNATIONAL OBLIGATIONS
105-120(1)
The Commissioner must, on behalf of the Commonwealth, pay you an amount equal to the amount of *indirect tax borne by you in respect of an acquisition (within the meaning of the *GST Act) if:
(a)
you are in a class of entities determined by the *Defence Minister; and
(b)
the acquisition is covered by a determination of the Defence Minister; and
(c)
the acquisition is made:
(i)
by or on behalf of a *visiting force that is; or
(ii)
by a member (within the meaning of the Defence (Visiting Forces) Act 1963) of the visiting force who is; or
(iii)
by any other entity that is;
covered by a determination of the Defence Minister; and
(d)
at the time of the acquisition, it was intended for:
(i)
the official use of the visiting force; or
(ii)
the use of a member (within the meaning of the Defence (Visiting Forces) Act 1963) of the visiting force; or
(iii)
any other use;
and that use is covered by a determination of the Defence Minister; and
(e)
you claim the amount in the *approved form.
105-120(2)
The amount is payable:
(a)
in accordance with the conditions and limitations; and
(b)
within the period and manner;
determined by the *Defence Minister.
105-120(3)
The *Defence Minister may only determine an entity under subparagraph (1)(c)(iii) or a use under subparagraph (1)(d)(iii) if the Commonwealth is under an international obligation to grant *indirect tax concessions in relation to the kind of entity or the kind of use.
105-120(4)
A determination under this section is a legislative instrument.
History
S 105-120 inserted by No 73of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
SECTION 105-125
REFUND SCHEME - INTERNATIONAL OBLIGATIONS
105-125(1)
The Commissioner must, on behalf of the Commonwealth, pay you, or an entity in a class of entities determined by the Commissioner, an amount equal to the amount of *indirect tax borne by you in respect of an acquisition (within the meaning of the *GST Act) made by you if:
(a)
you are a kind of entity specified in the regulations; and
(b)
the acquisition is of a kind specified in the regulations; and
(c)
you or the entity claims the amount in the *approved form.
105-125(2)
The amount is payable:
(a)
in accordance with the conditions and limitations; and
(b)
within the period and manner;
set out in the regulations.
105-125(3)
The regulations may only specify a kind of entity for the purposes of paragraph (1)(a) or a kind of acquisition for the purposes of paragraph (1)(b) if the Commonwealth is under an international obligation to grant *indirect tax concessions in relation to the kind of entity or the kind of acquisition.
105-125(4)
A determination by the Commissioner under subsection (1) is not a legislative instrument.
History
S 105-125 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
Subdivision 105-G - Other administrative provisions
History
Subdiv 105-G inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
105-140
105-140
(Repealed) SECTION 105-140 ADDRESS FOR SERVICE
(Repealed by No 70 of 2015)
History
S 105-140 repealed by No 70 of 2015, s 3 and Sch 6 item 53, applicable on and after 1 July 2015. S 105-140 formerly read:
SECTION 105-140 ADDRESS FOR SERVICE
105-140(1)
Your address for service for the purposes of an *indirect tax law is:
(a)
if you are registered in the *Australian Business Register - the address shown in the Register under subsection 25(2) of the A New Tax System (Australian Business Number) Act 1999 as your address for service; or
(b)
if you are not registered in that Register - the address last notified by you in a document under an indirect tax law; or
(c)
if you have not notified an address in a document under an indirect tax law - your Australian place of business or residence last known to the Commissioner; or
(d)
any other address that the Commissioner reasonably believes to be your address for service.
Note:
If you are a company, see also sections 444-10 and 444-15.
History
S 105-140(1) amended by No 42 of 2009, s 3 and Sch 6 item 34, by inserting "under subsection 25(2) of the A New Tax System (Australian Business Number) Act 1999" in para (a), effective 23 June 2009.
105-140(2)
If:
(a)
under an *indirect tax law, you are:
(i)
liable to pay an amount of *indirect tax; or
(ii)
entitled to a credit; and
(b)
you change your address for service;
you must notify the Commissioner in writing of the new address within 28 days after the change.
105-140(3)
If:
(a)
a notice or other document must be served on you:
(i)
under an *indirect tax law; or
(ii)
in proceedings for recovery of an amount under an indirect tax law; and
(b)
you have notified the Commissioner of an Australian address for service;
the Commissioner may serve the notice or document by post to that address.
105-140(4)
However, if:
(a)
you must lodge or have lodged *GST returns electronically; and
(b)
you notify the Commissioner of an address for effecting service by way of electronic transmission;
the Commissioner may serve a notice of assessment, or notice of penalty or *general interest charge under an *indirect tax law, on you by electronic transmission to that address.
S 105-140 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
SECTION 105-145
COMMISSIONER MUST GIVE THINGS IN WRITING
105-145(1)
Any notice, approval, direction, authority or declaration that the Commissioner may give, or must give, to you under an *indirect tax law must be in writing.
105-145(2)
However, this does not prevent the Commissioner giving any of those things to you by electronic transmission if a provision of an *indirect tax law allows the Commissioner to do so.
History
S 105-145 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
Division 110 - Goods and services tax
History
Div 110 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
Guide to Division 110
SECTION 110-1
WHAT THIS DIVISION IS ABOUT
This Division gives you the right to object against reviewable GST decisions that relate to you. Section 110-50 sets out the reviewable GST decisions.
History
S 110-1 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
Subdivision 110-F - Review of GST decisions
History
Subdiv 110-F inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
SECTION 110-50
REVIEWABLE GST DECISIONS
110-50(1)
You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that is:
(a)
a *reviewable GST decision relating to you; or
(b)
a *reviewable GST transitional decision relating to you.
History
S 110-50(1) amended by No 39 of 2012, s 3 and Sch 1 item 208, by repealing the note at the end, effective 1 July 2012. For application provisions see note under s 8AAZLG(2).
The note formerly read:
Note:
You may object to a decision relating to you under section 105-5 or 105-25 involving an assessment of a net amount or indirect tax: see Subdivision 105-B.
110-50(2)
Each of the following decisions is a
reviewable GST decision
:
|
Reviewable GST decisions under GST Act
|
|
Item
|
Decision
|
Provision of GST Act under which decision is made
|
| 1 |
refusing to register you |
subsection 25-5(1) |
| 2 |
registering you |
subsection 25-5(2) |
| 3 |
deciding the date of effect of your registration |
section 25-10 |
| 4 |
refusing to cancel your registration |
subsection 25-55(1) |
| 5 |
cancelling your registration |
subsection 25-55(2) |
| 6 |
refusing to cancel your registration |
section 25-57 |
| 7 |
deciding the date on which the cancellation of your registration takes effect |
section 25-60 |
| 8 |
determining that the *tax periods that apply to you are each individual month |
subsection 27-15(1) |
| 9 |
deciding the date of effect of a determination |
subsection 27-15(2) |
| 10 |
refusing to revoke your election under section 27-10 |
subsection 27-22(1) |
| 11 |
deciding the date of effect of a revocation |
subsection 27-22(3) |
| 12 |
refusing to revoke a determination under section 27-15 |
subsection 27-25(1) |
| 13 |
deciding the date of effect of a revocation |
subsection 27-25(2) |
| 14 |
determining that a specified period is a *tax period that applies to you |
section 27-30 |
| 15 |
refusing a request for a determination |
section 27-37 |
| 16 |
revoking a determination under section 27-37 |
subsection 27-38(1) |
| 17 |
deciding the date of a revocation |
subsection 27-38(2) |
| 18 |
refusing to permit you to account on a cash basis |
subsection 29-45(1) |
| 19 |
deciding the date of effect of your permission to account on a cash basis |
subsection 29-45(2) |
| 20 |
revoking your permission to account on a cash basis |
subsection 29-50(3) |
| 21 |
deciding the date of effect of the revocation of your permission to account on a cash basis |
subsection 29-50(4) |
| 22 |
refusing an application for a decision that an event is a *fund-raising event |
paragraph 40-165(1)(c) |
| 23 |
approving another day of effect |
paragraph 48-71(1)(b) |
| 24 |
revoking an approval of a day of effect |
subsection 48-71(2) |
| 25-28 |
(Repealed by No 74 of 2010) |
|
| 29 |
refusing an application for approval |
section 49-5 |
| 30 |
refusing an application for approval or revocation |
subsection 49-70(1) |
| 31 |
revoking an approval under Division 49 |
subsection 49-70(2) |
| 32 |
refusing an application for revocation |
subsection 49-75(1) |
| 33 |
revoking the approval of a *GST religious group |
subsection 49-75(2) |
| 34 |
deciding the date of effect of any approval, or any revocation of an approval, under Division 49 |
section 49-85 |
| 35 |
approving another day of effect |
paragraph 51-75(1)(b) |
| 36 |
revoking an approval of a day of effect |
subsection 51-75(2) |
| 37-41 |
(Repealed by No 74 of 2010) |
|
| 42 |
refusing an application for registration |
section 54-5 |
| 43 |
deciding the date of effect of registration as a *GST branch |
section 54-10 |
| 44 |
refusing to cancel the registration of a *GST branch |
subsection 54-75(1) |
| 45 |
cancelling the registration of a *GST branch |
subsection 54-75(2) |
| 46 |
deciding the date of effect of the cancellation of the registration of a *GST branch |
section 54-80 |
| 47 |
cancelling the registration of an Australian resident agent |
subsection 57-25(1) |
| 48 |
determining that the *tax periods that apply to a resident agent are each individual month |
subsection 57-35(1) |
| 49 |
deciding the date of effect of a determination |
subsection 57-35(2) |
| 49A |
cancelling the registration of a *representative of an *incapacitated entity |
subsection 58-25(1) |
| 49B |
deciding to direct a *representative of an *incapacitated entity to give to the Commissioner a *GST return |
paragraph 58-50(1)(b) |
| 50 |
cancelling the registration of a *non-profit sub-entity |
subsection 63-35(1) |
| 51 |
refusing to allow, or allowing, a further period within which to make an agreement that the margin scheme is to apply |
paragraph 75-5(1A)(b) |
| 52 |
refusing a request to allow an annual apportionment election to take effect from the start of another *tax period |
paragraph 131-10(2)(b) |
| 53 |
disallowing an annual apportionment election |
subsection 131-20(3) |
| 53A |
refusing to make requested decision about excess GST |
subsection 142-15(1) |
| 54 |
(Repealed by No 118 of 2009) |
|
| 55 |
refusing a request to allow an annual *tax period election to take effect from the start of another tax period |
paragraph 151-10(2)(b) |
| 56 |
refusing a request to be allowed to make an annual *tax period election on a specified day |
subsection 151-20(3) |
| 57 |
disallowing an annual *tax period election |
subsection 151-25(3) |
| 58 |
refusing a request to allow an election to pay *GST by instalments to take effect from the start of another *tax period |
paragraph 162-15(2)(b) |
| 59 |
refusing a request to be allowed to make an election on a specified day |
subsection 162-25(3) |
| 60 |
disallowing an election to pay *GST by instalments |
subsection 162-30(3) |
| 61 |
(Repealed by No 39 of 2012) |
|
| 62 |
making a declaration to negate or reduce a GST disadvantage |
subsection 165-45(3) |
| 63 |
deciding whether to grant a request for a declaration to negate or reduce a GST disadvantage |
subsection 165-45(5) |
History
S 110-50(2) amended by No 39 of 2012, s 3 and Sch 1 item 260, by repealing table item 61, effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012. Table item 61 formerly read:
| "61 |
making a declaration that states:
(a) the amount that is (and has been at all times) a *net amount for a *tax period that ended before 1 July 2012; or
(b) the amount that is (and has been at all times) the amount of *GST on a *taxable importation, if the GST was payable before 1 July 2012 |
subsection 165-40(1)" |
S 110-50(2) amended by No 34 of 2014, s 3 and Sch 2 item 15, by inserting table item 53A, applicable in relation to working out your net amount for a tax period starting on or after 31 May 2014.
S 110-50(2) amended by No 39 of 2012, s 3 and Sch 1 item 237, by substituting "making a declaration that states: (a) the amount that is (and has been at all times) a *net amount for a *tax period that ended before 1 July 2012; or (b) the amount that is (and has been at all times) the amount of *GST on a *taxable importation, if the GST was payable before 1 July 2012" for "making a declaration to negate a GST benefit" in cell at table item 61, column headed "Decision", effective 1 July 2012.
S 110-50(2) amended by No 39 of 2012, s 3 and Sch 1 item 209, by substituting "subsection 165-40(1)" for "section 165-40" in cell at table item 61, column headed "Provision of GST Act under which decision is made", effective 1 July 2012. For application provisions see note under s 8AAZLG(2).
S 110-50(2) amended by No 74 of 2010, s 3 and Sch 1 items 41 and 42, by substituting table items 23 and 24 for table items 23 to 28 and substituting table items 35 and 36 for table items 35 to 41, applicable to tax periods starting on or after 1 July 2010. Table items 23 to 28 and 35 to 41 formerly read:
23 ... refusing an application for approval ... section 48-5
24 ... refusing an application for approval or revocation ... subsection 48-70(1)
25 ... ... revoking an approval under Division 48 ... subsection 48-70(2)
26 ... refusing an application for revocation ... subsection 48-75(1)
27 ... revoking the approval of a *GST group ... subsection 48-75(2)
28 ... deciding the date of effect of any approval, or any revocation of an approval, under Division 48 ... section 48-85
35 ... refusing an application for approval ... section 51-5
36 ... disallowing an election to consolidate *GST returns relating to *GST joint ventures ... subsection 51-52(5)
37 ... refusing an application for approval or revocation ... subsection 51-70(1)
38 ... revoking an approval under Division 51 ... subsection 51-70(2)
39 ... refusing an application for revocation ... subsection 51-75(1)
40 ... revoking the approval of a *GST joint venture ... subsection 51-75(2)
41 ... deciding the date of effect of any approval, or any revocation of an approval, under Division 51 ... section 51-85
S 110-50(2) (table) amended by No 118 of 2009, s 3 and Sch 1 items 47 and 48, by inserting table items 49A and 49B and repealing table item 54, effective 4 December 2009. Table item 54 formerly read:
54 ... cancelling the registration of a *representative of an *incapacitated entity ... subsection 147-10(1)
S 110-50(2) (table) amended by No 97 of 2008, s 3 and Sch 3 item 181, by substituting "registration" for "*registration" in table items 3 to 7, 42 to 47, 50 and 54, effective 3 October 2008.
110-50(3)
A decision under section 24B of the A New Tax System (Goods and Services Tax Transition) Act 1999 refusing an application for a determination under that section, or making a determination under that section, is a
reviewable GST transitional decision
.
Division 111 - Wine tax and luxury car tax
History
Div 111 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
Guide to Division 111
SECTION 111-1
WHAT THIS DIVISION IS ABOUT
This Division gives you the right to object against decisions that relate to you disallowing the whole or part of a claim for a wine tax credit.
It also explains how contracts to supply wine or a luxury car are affected if a wine tax law or luxury car tax law changes.
History
S 111-1 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
Subdivision 111-C - Review of wine tax decisions
History
Subdiv 111-C inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
SECTION 111-50
REVIEWABLE WINE TAX DECISIONS
111-50(1)
You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that is a *reviewable wine tax decision relating to you.
History
S 111-50(1) amended by No 39 of 2012, s 3 and Sch 1 item 210, by repealing the note at the end, effective 1 July 2012. For application provisions see note under s 8AAZLG(2).
The note formerly read:
Note:
You may object to a decision relating to you under section 105-5 or 105-25 involving an assessment of a net amount or indirect tax: see Subdivision 105-B.
111-50(2)
Each of the following decisions is a
reviewable wine tax decision
:
|
Reviewable wine tax decisions
|
|
Item
|
Decision
|
Provision of Wine Tax Act under which decision is made
|
| 1 |
disallowing the whole or a part of your claim for a *wine tax credit |
section 17-45 |
| 2 |
deciding the date of effect of your approval as a New Zealand participant |
section 19-7 |
| 3 |
refusing to approve you as a New Zealand participant |
section 19-7 |
| 4 |
revoking your approval as a New Zealand participant |
section 19-8 |
| 5 |
deciding the date of effect of revocation of your approval as a New Zealand participant |
section 19-8 |
History
S 111-50 inserted by No 73 of 2006, s 3 and Sch 5 items 41 and 59, applicable to a decision made before or after 1 July 2006.
Subdivision 111-D - Effect on contracts from amendments to laws
History
Subdiv 111-D inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
SECTION 111-60
ALTERATION OF CONTRACTS IF COST OF COMPLYING WITH AGREEMENT IS AFFECTED BY LATER ALTERATION TO WINE TAX OR LUXURY CAR TAX LAWS
111-60(1)
If, after a contract involving a *supply, or a *taxable dealing in relation to *wine, has been made, an alteration to the *wine tax law or the *luxury car tax law happens and the alteration directly causes an increase or decrease in the cost to a party to the agreement of complying with the agreement, then the contract is altered as follows:
(a)
if the cost is increased - by allowing the party to add the increase to the contract price;
(b)
if the cost is decreased - by allowing the other party to deduct the decrease from the contract price.
History
S 111-60(1) amended by No 70 of 2015, s 3 and Sch 6 item 55, by substituting ", or a *taxable dealing in relation to *wine," for "or a *wine taxable dealing", effective 25 June 2015.
111-60(2)
The contract is not altered if:
(a)
the contract has express written provision to the contrary; or
(b)
it is clear from the terms of the contract that the alteration of the *wine tax law or the *luxury car tax law has been taken into account in the agreed contract price.
History
S 111-60 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
Division 112 - Fuel tax
History
Div 112 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
Guide to Division 112
SECTION 112-1
WHAT THIS DIVISION IS ABOUT
This Division gives you the right to object against reviewable fuel tax decisions that relate to you. Section 112-50 sets out the reviewable fuel tax decisions.
Subdivision 112-E - Review of fuel tax decisions
History
Subdiv 112-E inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
SECTION 112-50
REVIEWABLE FUEL TAX DECISIONS
112-50(1)
You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that is a *reviewable fuel tax decision relating to you.
History
S 112-50(1) amended by No 39 of 2012, s 3 and Sch 1 item 211, by repealing the note at the end, effective 1 July 2012. For application provisions see note under s 8AAZLG(2).
The note formerly read:
Note:
You may object to a decision relating to you under section 105-5 or 105-25 involving an assessment of a net fuel amount: see Subdivision 105-B.
112-50(2)
Each of the following decisions is a
reviewable fuel tax decision
:
|
Reviewable fuel tax decisions
|
|
Item
|
Decision
|
Provision of the
Fuel Tax Act 2006
under which decision is made
|
| 1 |
(Repealed by No 39 of 2012) |
|
| 2 |
making a declaration to negate or reduce a *fuel tax disadvantage |
subsection 75-45(3) |
| 3 |
deciding whether or not to grant a request to negate or reduce a *fuel tax disadvantage |
subsection 75-45(5) |
History
S 112-50(2) amended by No 39 of 2012, s 3 and Sch 1 item 261, by repealing table item 1, effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012. Table item 1 formerly read:
| "1 |
making a declaration that states the amount that is (and has been at all times) the *net fuel amount for a *tax period, or *fuel tax return period, that ended before 1 July 2012 |
subsection 75-40(1)" |
S 112-50(2) amended by No 39 of 2012, s 3 and Sch 1 item 238, by substituting "making a declaration that states the amount that is (and has been at all times) the *net fuel amount for a *tax period, or *fuel tax return period, that ended before 1 July 2012" for "making a declaration to negate a *fuel tax benefit" in cell at table item 1, column headed "Decision", effective 1 July 2012.
S 112-50(2) amended by No 39 of 2012, s 3 and Sch 1 item 212, by substituting "subsection 75-40(1)" for "section 75-40" in cell at table item 1, column headed "Provision of the Fuel Tax Act 2006 under which decision is made", effective 1 July 2012. For application provisions see note under s 8AAZLG(2).
History
S 112-50 inserted by No 73 of 2006, s 3 and Sch 5 item 41, effective 1 July 2006.
PART 3-15 - MAJOR BANK LEVY
History
Pt 3-15 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
Former Pt 3-15 repealed by No 96 of 2014, s 3 and Sch 1 item 65, effective 30 September 2014. No 96 of 2014, s 3 and Sch 1 items 122-124 contain the following transitional provisions:
Part 3 - Transitional provisions
122 Objects
122
The objects of this Part are:
(a)
to provide for the winding-up of the minerals resource rent tax; and
(b)
to ensure the administration, collection and recovery of the minerals resource rent tax for the MRRT years ending on or before the day this Schedule commences; and
(c)
to continue taxpayers' rights and obligations relating to MRRT years ending before that commencement.
123 Effect of repeals and amendments on preceding MRRT years
123(1)
Despite the repeals and amendments made by this Schedule, the Acts amended or repealed continue to apply, after the commencement of this Schedule, in relation to any MRRT year ending on or before the day this Schedule commences as if those repeals and amendments had not happened.
123(2)
For the purposes of that continued application, any MRRT year that:
(a)
started before the commencement of this Schedule; and
(b)
would, apart from this subitem, end on or after that commencement;
is taken to end on the day this Schedule commences.
123(3)
To avoid doubt, for the purposes of that continued application, section 190-20 of the Minerals Resource Rent Tax Act 2012 applies in relation to an MRRT year referred to in subitem (2) whether or not the MRRT year is an accounting period referred to in section 190-10 of that Act.
Note 1:
Section 190-20 of the Minerals Resource Rent Tax Act 2012 (to the extent that it continues to apply because of this item) will adjust threshold amounts under that Act in relation to the final MRRT year.
Note 2:
Subsection 115-110(2) in Schedule 1 to the Taxation Administration Act 1953 (to the extent that it continues to apply because of this item) will adjust instalment quarters under that Act in relation to the final MRRT year.
124 Continuation of Commissioner's power to make certain legislative instruments
124(1)
Despite the repeal by this Act of section 117-5 in Schedule 1 to the Taxation Administration Act 1953, the Commissioner's power under subsection 117-5(5) in that Schedule to make legislative instruments continues after that repeal.
124(2)
This item does not affect any other powers of the Commissioner under Schedule 1 to the Taxation Administration Act 1953, as it continues to apply because of item 123 of this Schedule.
Pt 3-15 formerly read:
PART 3-15 - MINERALS RESOURCE RENT TAX
Division 115 - Instalments
History
Div 115 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Guide to Division 115
SECTION 115-1 WHAT THIS DIVISION IS ABOUT
115-1
You pay quarterly instalments of MRRT under this Division if you have mining revenue or pre-mining revenue for a quarter or a positive instalment rate.
Instalments give rise to a credit once an assessment of the MRRT is made.
The amount of a quarterly instalment is the product of your instalment income for the quarter and your applicable instalment rate.
The applicable instalment rate may be a rate chosen by you, a rate given to you by the Commissioner, or a statutory default rate.
General interest charge may be payable if a rate you choose for a quarter is too low, having regard to the amount of MRRT you are liable to pay for the year.
History
S 115-1 amended by No 88 of 2013, s 3 and Sch 7 item 176, by inserting "or pre-mining revenue" after "mining revenue", effective 1 July 2012.
S 115-1 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Subdivision 115-A - Preliminary
History
Subdiv 115-A inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-5 OBJECTS OF THIS DIVISION
115-5
The objects of this Division are:
(a)
to ensure the efficient collection of *MRRT by the payment of quarterly instalments; and
(b)
to calculate total instalments for the *MRRT year that are as close as possible to the amount of MRRT you are liable to pay for the year.
History
S 115-5 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note underPart 3-15 heading.
Subdivision 115-B - Liability for instalments
History
Subdiv 115-B inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-10 LIABILITY FOR INSTALMENTS
115-10(1)
You are liable to pay an instalment under this Division in relation to an *instalment quarter in an *MRRT year, if:
(a)
you have a *mining project interest or *hold a *pre-mining project interest; and
(b)
either:
(i)
you have *mining revenue or *pre-mining revenue relating to the instalment quarter; or
(ii)
your *applicable instalment rate for the instalment quarter is greater than nil.
Note 1:
For provisions about collection and recovery of amounts you are liable to pay under this Division, see Part 4-15.
Note 2:
For
applicable instalment rate
, see section 115-45.
Meaning of
instalment quarter
115-10(2)
For an *MRRT year (whether it ends on 30 June or not), the following are the
instalment quarters
:
(a)
your first
instalment quarter
consists of the first 3 months of the MRRT year;
(b)
your second
instalment quarter
consists of the fourth, fifth and sixth months of the MRRT year;
(c)
your third
instalment quarter
consists of the seventh, eighth and ninth months of the MRRT year;
(d)
your fourth
instalment quarter
consists of the tenth, 11th and 12th months of the MRRT year.
Note:
There is a special rule for MRRT years that are not 12 months: see Subdivision 115-H.
History
S 115-10 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-15 INFORMATION TO BE GIVEN TO THE COMMISSIONER
115-15(1)
If you are liable to pay an instalment for an *instalment quarter (even if it is a nil amount), you must notify the Commissioner of the amount of your *instalment income for the quarter.
115-15(2)
You must notify the Commissioner in the *approved form and on or before the day when the instalment is due (regardless of whether it is paid).
115-15(3)
Subsection (1) does not apply to you for an *instalment quarter if:
(a)
a nil rate determination under subsection 115-45(2) or (3) applies to you for the quarter; and
(b)
you are exempted from compliance with subsection (1) for the quarter:
(i)
by a written notice the Commissioner gives you; or
(ii)
by a legislative instrument that the Commissioner makes, exempting a class of entities.
115-15(4)
An exemption under subsection (3) may be combined in the same document as a nil rate determination.
History
S 115-15 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-20 CREDIT FOR INSTALMENTS PAYABLE
115-20(1)
You are entitled to a credit when the Commissioner makes an assessment of the amount (including a nil amount) of *MRRT you are liable to pay.
115-20(2)
The amount of the credit is:
(a)
the total of each instalment payable by you for the *MRRT year (even if you have not yet paid it); less
(b)
the total of each credit that you have claimed under section 115-60 or 115-100.
115-20(3)
The making of the assessment, and the resulting credit entitlement, do not affect the liability to pay an instalment.
Note:
How the credit is applied is set out in Division 3 of Part IIB.
History
S 115-20 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-25 WHEN INSTALMENTS ARE DUE
115-25
An instalment you are liable to pay in relation to an *instalment quarter is due on or before the 21st day of the month after the end of that quarter.
History
S 115-25 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-30 GENERAL INTEREST CHARGE ON LATE PAYMENT
115-30
If you fail to pay some or all of an instalment by the time by which the instalment is due to be paid, you are liable to pay the *general interest charge on the unpaid amount for each day in the period that:
(a)
started at the beginning of the day by which the instalment was due to be paid; and
(b)
finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i)
the instalment;
(ii)
general interest charge on any of the instalment.
History
S 115-30 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Subdivision 115-C - Working out instalment amounts
History
Subdiv 115-C inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-35 HOW TO WORK OUT THE AMOUNT OF AN INSTALMENT
115-35
The amount of an instalment you are liable to pay in relation to *MRRT, in relation to an *instalment quarter, is:
| |
Your *instalment income for the *instalment quarter |
× |
*Applicable instalment rate |
|
History
S 115-35 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-40 MEANING OF
INSTALMENT INCOME
115-40
Your
instalment income
for an *instalment quarter in an *MRRT year is the sum of the amounts worked out under column 2 of the table in subsection 30-25(2) of the Minerals Resource Rent Tax Act 2012 for each *mining revenue event that:
(a)
happens during the instalment quarter; and
(b)
results in an amount (including a nil amount) being included:
(i)
under section 30-10 of that Act in your *mining revenue for a *mining project interest for the MRRT year; or
(ii)
under section 70-40 of that Act in your *pre-mining revenue for a *pre-mining project interest for the MRRT year.
Note 1:
Special rules affect the calculation of instalment income for project interests that are transferred or split: see Subdivision 115-G.
Note 2:
If you have chosen to use the alternative valuation method under Division 175 of the Minerals Resource Rent Tax Act 2012, your unadjusted revenue amounts under section 175-30 of that Act will be the same as the amounts worked out under column 2 of the table in subsection 30-25(2) of that Act.
History
S 115-40 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-45 MEANING OF
APPLICABLE INSTALMENT RATE
115-45(1)
Your
applicable instalment rate
, for an *instalment quarter in an *MRRT year (the
current year
), is worked out using the first applicable item in the table.
|
Applicable instalment rate for an instalment quarter for MRRT
|
|
Item
|
Column 1
If:
|
Column 2
Your applicable instalment rate is:
|
| 1 |
A nil rate determination under subsection (2) or (3) applies to you for the *instalment quarter |
Nil. |
| |
|
|
| 2 |
You have chosen an instalment rate under Subdivision 115-D for:
(a) the *instalment quarter; or
(b) an earlier instalment quarter in the current year |
The rate you chose for the instalment quarter, or, if you did not choose a rate for the instalment quarter, the rate you chose for the most recent earlier instalment quarter in the current year for which you chose a rate. |
| |
|
|
| 3 |
The Commissioner has given you an instalment rate under Subdivision 115-E before the end of the *instalment quarter (whether in the current year or an earlier *MRRT year) |
The most recent instalment rate given to you by the Commissioner before the end of the instalment quarter. |
| |
|
|
| 4 |
None of items 1, 2 and 3 applies |
The rate that applies to you under Subdivision 115-F. |
Note:
If you choose a rate under Subdivision 115-D, you must use it for the rest of the MRRT year even if the Commissioner later gives you a different instalment rate.
Nil rate determinations
115-45(2)
The Commissioner may, by giving you written notice, determine a nil rate for you for an *MRRT year if, in the Commissioner's opinion, you are unlikely to be liable to pay *MRRT for the MRRT year.
115-45(3)
The Commissioner may, by legislative instrument, determine a nil rate for a class of entities for an *MRRT year if, in the Commissioner's opinion, each entity in the class is unlikely to be liable to pay *MRRT for the MRRT year.
115-45(4)
A determination applies for the *instalment quarter in which the Commissioner makes it, and for later quarters in the *MRRT year.
Note:
The determination does not apply in later MRRT years.
115-45(5)
However, if the Commissioner later gives you an instalment rate under Subdivision 115-E, the determination stops applying to you for the instalment quarter in which you are given that later rate, and for later quarters.
Note 1:
This may mean the nil rate determination does not apply to you for any instalment quarter (if the Commissioner makes the determination, then later in the same quarter gives you an instalment rate under Subdivision 115-E).
Note 2:
For whether the rate the Commissioner gives you under Subdivision 115-E is your
applicable instalment rate
for an instalment quarter, see the table in subsection (1).
History
S 115-45 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Subdivision 115-D - Instalment rate chosen by you
History
Subdiv 115-D inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Choosing an instalment rate
SECTION 115-50 CHOOSING A VARIED INSTALMENT RATE
115-50
You may choose an instalment rate for an *instalment quarter in an *MRRT year under this Subdivision.
Note 1:
If choosing a rate leads you to pay an instalment that is too low, you may be liable to general interest charge under section 115-65.
Note 2:
You would also use this rate for later instalment quarters in the MRRT year, unless you choose another rate for the later instalment quarter under this section (see section 115-45).
Note 3:
Division 119 is about choices under the MRRT law.
History
S 115-50 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-55 NOTIFYING COMMISSIONER OF VARIED INSTALMENT RATE
115-55(1)
If you choose an instalment rate for an *instalment quarter under section 115-50, you must notify the Commissioner of the rate.
115-55(2)
You must notify the Commissioner in the *approved form and on or before the day the instalment for the *instalment quarter is due (regardless of whether it is paid).
Note:
The Commissioner may combine this approved form with the approved form for the notice you are required to give under section 115-15: see subsection 388-50(2).
History
S 115-55 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Variation credits
SECTION 115-60 CREDIT ON USING VARIED RATE IN CERTAIN CASES
115-60(1)
You are entitled to claim a credit if:
(a)
you are liable to pay an instalment for an *instalment quarter (the
current quarter
) in an *MRRT year; and
(b)
the amount of your instalment for the current quarter is to be worked out using an instalment rate you chose under section 115-50; and
(c)
that rate is lower than your *applicable instalment rate for the previous quarter in the same year; and
(d)
the amount worked out using the method statement is greater than nil.
Method statement
Step 1.
Add up the instalments you are liable to pay for the earlier *instalment quarters in the year (even if you have not yet paid all of them).
Step 2.
Subtract from the step 1 amount each earlier credit that you have claimed under this section or section 115-100 in respect of the year.
Step 3.
Multiply the total of your *instalment income for those earlier *instalment quarters by your *applicable instalment rate for the current quarter.
Step 4.
Subtract the step 3 amount from the step 2 amount.
Step 5.
If the result is a positive amount, it is the amount of the credit you can claim.
Example:
In the first instalment quarter in an MRRT year, a miner has instalment income of $100m and an applicable instalment rate of 15%, which has been given by the Commissioner.
In the second instalment quarter in the MRRT year, the miner has instalment income of $80m and uses the same rate given by the Commissioner (15%).
In the third instalment quarter in the MRRT year, the miner has instalment income of $70m and chooses an instalment rate of 12%.
The miner uses the method statement to work out a credit as follows:
Step 1: The instalment of $15m for the first instalment quarter ($100m × 15%), plus the instalment of $12m for the second instalment quarter ($80m × 15%) gives a total step 1 amount of $27m.
Step 2: No earlier credits have been claimed, so there is no amount to subtract from the step 1 amount - the step 2 amount is $27m.
Step 3: The total of the instalment income for the earlier quarters is $180m, multiplied by the rate for the current quarter (12%), equals $21.6m.
Step 4: $27m − $21.6m = $5.4m.
Step 5: The miner has a credit of $5.4m.
The miner also has an instalment liability for the current quarter of $8.4m ($70m × 12%).
After applying the $5.4m credit, the miner will be liable to pay an amount of $3m for the quarter.
115-60(2)
A claim for a credit must be made in the *approved form on or before the day on which the instalment for the current quarter is due.
Note:
How the credit is applied is set out in Division 3 of Part IIB.
115-60(3)
The credit entitlement does not affect your liability to pay an instalment.
History
S 115-60 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
General interest charge payable in certain cases if instalments are too low
SECTION 115-65 LIABILITY TO GIC ON SHORTFALL IN INSTALMENTS WORKED OUT ON THE BASIS OF VARIED RATE
115-65(1)
You are liable to pay the *general interest charge under this section if:
(a)
an instalment rate (the
varied rate
) you choose under section 115-50 is your *applicable instalment rate for an *instalment quarter (the
variation quarter
) in an *MRRT year; and
(b)
the varied rate is less than 85% of your *benchmark instalment rate for the MRRT year.
Note:
For the Commissioner's power to remit general interest charge, see section 8AAG.
115-65(2)
You are liable to pay the *general interest charge on the amount worked out as follows:
(Rate discrepancy × Your *instalment income for the variation quarter) + Credit adjustment
where:
credit adjustment
means:
(a)
if, as a result of using the varied rate for the variation quarter, you claimed a credit under section 115-60 - the amount worked out as follows:
| |
Rate discrepancy |
× |
Your *instalment income for the earlier instalment quarters in the *MRRT year |
|
or the sum of the amounts of the credits, whichever is less; and
(b)
otherwise - nil.
rate discrepancy
means the difference between the varied rate and the lesser of:
(a)
the rate that would have been your *applicable instalment rate for the variation quarter if you did not choose an instalment rate for the variation quarter or an earlier *instalment quarter in the *MRRT year; and
(b)
your *benchmark instalment rate for that MRRT year.
115-65(3)
You are liable to pay the charge for each day in the period that:
(a)
started at the beginning of the day by which the instalment for the variation quarter was due to be paid; and
(b)
finishes at the end of the day on which your *assessed MRRT for the *MRRT year is due to be paid.
115-65(4)
The Commissioner must give you written notice of the *general interest charge to which you are liable under subsection (2). You must pay the charge within 14 days after the notice is given to you.
115-65(5)
If any of the *general interest charge to which you are liable under subsection (2) remains unpaid at the end of the 14 days referred to in subsection (4), you are also liable to pay the general interest charge on the unpaid amount for each day in the period that:
(a)
starts at the end of those 14 days; and
(b)
finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i)
the unpaid amount;
(ii)
general interest charge on the unpaid amount.
History
S 115-65 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-70 WORKING OUT YOUR
BENCHMARK INSTALMENT RATE
115-70
Your
benchmark instalment rate
for an *MRRT year is the percentage worked out to 2 decimal places (rounding up if the third decimal place is 5 or more) using the formula:
| |
The amount of *MRRT you are liable to pay for the *MRRT year |
× 100 |
| |
Your *instalment income for the *MRRT year |
However, your
benchmark instalment rate
for the MRRT year is a nil rate if either component of the fraction is nil.
History
S 115-70 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Subdivision 115-E - Instalment rate given to you by Commissioner
History
Subdiv 115-E inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-75 COMMISSIONER INSTALMENT RATE FOR MRRT
115-75(1)
The Commissioner may give you an instalment rate from time to time, by giving you written notice of:
(a)
the instalment rate; and
(b)
the modified MRRT liability, as worked out under subsection (2), for the purposes of working out the instalment rate.
Note:
For whether the rate the Commissioner gives you is your
applicable instalment rate
for an instalment quarter, see section 115-45.
115-75(2)
An instalment rate that the Commissioner gives you must be the percentage worked out to 2 decimal places (rounding up if the third decimal place is 5 or more) using the formula:
| |
Your modified liability for MRRT for the *base year |
× 100 |
| |
Your *instalment income for the base year |
where:
modified liability for MRRT
is the amount of *MRRT you are liable to pay for the *base year, subject to section 115-80.
Note:
The instalment rate worked out under this subsection could exceed the MRRT rate. One reason for this is that not all amounts of mining revenue are included in instalment income.
115-75(3)
The
base year
is the most recent *MRRT year for which an assessment of *MRRT has been made for you.
115-75(4)
However, the instalment rate must be a nil rate if either component of the fraction is nil.
115-75(5)
Despite subsections (2) to (4), the Commissioner may give you an instalment rate worked out on a different basis if, having regard to the object of this Division and the circumstances, the Commissioner is of the opinion:
(a)
that it would be reasonable to work out the rate under this subsection; and
(b)
that the rate so worked out is reasonable.
Example:
The following are some examples of circumstances in which a rate may be worked out on a different basis:
(a) an entity joins or leaves a consolidated group;
(b) a mining project interest is transferred or split;
(c) there is no base year for the mining project interest;
(d) there was a significant amount of one-off capital expenditure in the base year;
(e) MRRT allowances applied in a later year are expected to be significantly less than MRRT allowances applied in the base year;
(f) there is a change in the economic circumstances of the mining industry.
115-75(6)
To avoid doubt, an instalment rate the Commissioner works out under subsection (5) may be higher, or lower, than the rate worked out under subsection (2) (if a rate can be worked out under that subsection).
History
S 115-75 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-80 COMMISSIONER MAY TAKE CHANGES, AND PROPOSED CHANGES, TO THE LAW INTO ACCOUNT
115-80
For the purposes of working out your modified liability for *MRRT for a *base year, the Commissioner may work out an amount:
(a)
as if provisions of an Act or regulations, as they may reasonably be expected to apply for the purposes of your assessment for a later *MRRT year, had applied for the purposes of the base year; and
(b)
as if provisions of an Act or regulations had applied for the purposes of the base year if:
(i)
in the Commissioner's opinion, the provisions are likely to be enacted or made; and
(ii)
the application of the provisions reduces the instalment rate being given to you.
Note:
Taking law changes, and proposed law changes, into account in working out the instalment rate means total instalments for the year are as close as possible to your likely MRRT for the year.
History
S 115-80 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Subdivision 115-F - Default instalment rate
History
Subdiv 115-F inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-85 DEFAULT INSTALMENT RATE
Instalment rate for instalment income relating to iron ore
115-85(1)
The rate that applies to you for an *instalment quarter in which your *instalment income only includes amounts relating to iron ore is:
(a)
if paragraph (b) does not apply - 8%; or
(b)
if the regulations prescribe a rate for the instalment quarter for the purposes of this subsection - that rate.
Instalment rate for instalment income relating to other taxable resources
115-85(2)
The rate that applies to you for an *instalment quarter in which your *instalment income only includes amounts relating to *taxable resources other than iron ore, is:
(a)
if paragraph (b) does not apply - 3%; or
(b)
if the regulations prescribe a rate for the instalment quarter for the purposes of this subsection - that rate.
Instalment rate for instalment income relating to iron ore and other taxable resources
115-85(3)
The rate that applies to you for an *instalment quarter in which your *instalment income includes amounts relating both to iron ore and to other *taxable resources is the sum of the following, worked out to 2 decimal places (rounding up if the third decimal place is 5 or more):
(a)
the rate that would apply for the quarter if your instalment income only included amounts relating to iron ore, multiplied by the proportion of your total instalment income for the quarter that relates to iron ore;
(b)
the rate that would apply for the quarter if your instalment income only included amounts relating to taxable resources other than iron ore, multiplied by the proportion of your total instalment income for the quarter that relates to taxable resources other than iron ore.
Example:
In an instalment quarter, you have $200m in instalment income from mining project interests that relate to iron ore, and $100m in instalment income from mining project interests that relate to coal.
Under subsection (1), the default instalment rate for iron ore is 8%, and under subsection (2) the default instalment rate for coal is 3%.
The rate that applies to you for the quarter is 6.33% [(.08 × 200m/300m) + (.03 × 100m/300m)].
Regulations not to be made in first MRRT year
115-85(4)
The regulations may prescribe a rate for the purposes of subsection (1) or (2) for an *instalment quarter in the 2013-2014 *MRRT year or a later year.
History
S 115-85 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Subdivision 115-G - Special rules for project interests that are transferred or split
History
Subdiv 115-G inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-90 EFFECT OF TRANSFER OR SPLIT OF PROJECT INTEREST ON INSTALMENT INCOME
Instalment quarters that have ended before transfer or split happens - instalment income not affected by transfer or split
115-90(1)
In working out, under section 115-40, your *instalment income for an *instalment quarter that ends before a *mining project transfer, *mining project split, *pre-mining project transfer or *pre-mining project split happens:
(a)
include amounts that:
(i)
relate to *mining revenue events that happen during the instalment quarter; and
(ii)
would, apart from the application of Division 120, 125, 145 or 150 of the Minerals Resource Rent Tax Act 2012 in relation to the transfer or split, be included in your *mining revenue or *pre-mining revenue as mentioned in section 115-40; and
(b)
do not include amounts that:
(i)
relate to mining revenue events that happen during the instalment quarter; and
(ii)
are included in your mining revenue or pre-mining revenue as mentioned in section 115-40 only because of the application of those Divisions in relation to the transfer or split.
Note 1:
For the original miner or explorer (paragraph (a) case):
(a) a credit may be available under section 115-100; and
(b) the effect of paragraph (a) is modified in some circumstances: see section 115-105.
Note 2:
For the new miner or explorer (paragraph (b) case), additional "catch up" instalment income may be included in the quarter in which the transfer or split happens: see section 115-95.
Instalment quarter in which transfer or split happens - instalment income transfers with interest
115-90(2)
In working out, under section 115-40, your *instalment income for an *instalment quarter in which a *mining project transfer, *mining project split, *pre-mining project transfer or *pre-mining project split happens:
(a)
include amounts that:
(i)
relate to *mining revenue events that happen during the instalment quarter; and
(ii)
because of the application of Division 120, 125, 145 or 150 of the Minerals Resource Rent Tax Act 2012 in relation to the transfer or split, are included in your *mining revenue or *pre-mining revenue as mentioned in section 115-40; and
(b)
do not include amounts that:
(i)
relate to mining revenue events that happen during the instalment quarter; and
(ii)
because of the application of those Divisions in relation to the transfer or split, are not included in your mining revenue or pre-mining revenue as mentioned in section 115-40.
History
S 115-90 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-95 ADDITIONAL INSTALMENT INCOME FOR NEW MINER OR NEW EXPLORER
115-95(1)
Your
instalment income
for an *instalment quarter in an *MRRT year includes an amount worked out under subsection (2) if:
(a)
a *mining project transfer, *mining project split, *pre-mining project transfer or *pre-mining project split happens in the instalment quarter; and
(b)
you have the relevant *mining project interest or *pre-mining project interest after the transfer or split.
115-95(2)
The amount is the sum of the amounts worked out under column 2 of the table in subsection 30-25(2) of the Minerals Resource Rent Tax Act 2012 for each *mining revenue event that:
(a)
happens before the start of the *instalment quarter in which the transfer or split happens; and
(b)
because of the application of Division 120, 125, 145 or 150 of the Minerals Resource Rent Tax Act 2012 in relation to the transfer or split, results in an amount (including a nil amount) being included in your *mining revenue or *pre-mining revenue as mentioned in section 115-40.
Note 1:
The additional instalment income amount is nil if the transfer or split happens in the first quarter of an MRRT year, and the miner or explorer that has the interest before the transfer or split has the same MRRT year as each miner or explorer that has the interest after the transfer or split.
Note 2:
For the instalment quarter in which the transfer or split happens, instalment income from before the transfer or split is included under subsection 115-90(2).
History
S 115-95 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-100 CREDIT FOR ORIGINAL MINER OR ORIGINAL EXPLORER FOR INSTALMENT QUARTERS BEFORE TRANSFER OR SPLIT
115-100(1)
You are entitled to claim a credit if:
(a)
a *mining project transfer, *mining project split, *pre-mining project transfer or *pre-mining project split happens in relation to a *mining project interest or *pre-mining project interest in an *instalment quarter in an *MRRT year; and
(b)
your *instalment income for an earlier instalment quarter in the MRRT year for which you are liable to pay an instalment includes one or more amounts relating to the mining project interest; and
(c)
the amount worked out using the method statement is greater than nil.
Method statement
Step 1.
Add up the instalments you are liable to pay for the earlier *instalment quarters in the year (even if you have not yet paid all of them).
Step 2.
Subtract from the step 1 amount each earlier credit that you have claimed under this section or section 115-60 in respect of the year.
Step 3.
For each earlier *instalment quarter in the year, work out your *instalment income under section 115-40 without including amounts that:
(a) relate to *mining revenue events that happen during the instalment quarter; and
(b) because of the application of Division 120, 125, 145 or 150 of the Minerals Resource Rent Tax Act 2012 in relation to a transfer or split, are not included in your *mining revenue or *pre-mining revenue as mentioned in section 115-40.
Note:
Step 3 effectively recalculates instalment income disregarding paragraph 115-90(1)(a).
Step 4.
Multiply the step 3 amount by your *applicable instalment rate for that quarter.
Step 5.
Sum the amounts worked out under step 4.
Step 6.
Subtract the step 5 amount from the step 2 amount.
Step 7.
If the result is a positive amount, it is the amount of the credit you can claim.
Claim to be made in approved form
115-100(2)
A claim for a credit must be made in the *approved form on or before the day on which the instalment for the current quarter is due.
History
S 115-100 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-105 ADJUSTED INSTALMENT INCOME FOR ORIGINAL MINERS OR EXPLORERS
115-105(1)
Despite subsection 115-90(1), the provisions mentioned in subsection (2) have effect as if your *instalment income for an *instalment quarter that ends before a *mining project transfer, *mining project split, *pre-mining project transfer or *pre-mining project split happens did not include amounts that:
(a)
relate to *mining revenue events that happen during the instalment quarter; and
(b)
because of the application of Division 120, 125, 145 or 150 of the Minerals Resource Rent Tax Act 2012 in relation to the transfer or split, are not included in your *mining revenue or *pre-mining revenue as mentioned in section 115-40.
Note:
Subsection (1) effectively recalculates instalment income disregarding paragraph 115-90(1)(a).
115-105(2)
The provisions are:
(a)
subsection 115-65(2) (about GIC on instalment shortfalls); and
(b)
section 115-70 (about your benchmark instalment rate for an *MRRT year); and
(c)
subsection 115-75(2) (about working out a Commissioner instalment rate).
History
S 115-105 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Subdivision 115-H - Special rules for transitional accounting periods
History
Subdiv 115-H inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 115-110 INSTALMENT QUARTERS IN TRANSITIONAL ACCOUNTING PERIODS
115-110(1)
An *MRRT year that is a period longer than 12 months has the following
instalment quarters
in addition to the instalment quarters mentioned in subsection 115-10(2):
(a)
your fifth
instalment quarter
consists of the 13th, 14th and 15th months of the MRRT year;
(b)
your sixth
instalment quarter
consists of the 16th, 17th and 18th months of the MRRT year;
(c)
your seventh
instalment quarter
consists of the 19th, 20th and 21st months of the MRRT year;
(d)
your eighth
instalment quarter
consists of the 22nd, 23rd and 24th months of the MRRT year.
115-110(2)
Despite subsection (1) and subsection 115-10(2):
(a)
you do not have any
instalment quarters
that begin after the end of an *MRRT year; and
(b)
an
instalment quarter
that would otherwise end after the end of an MRRT year consists instead of the period from the start of the instalment quarter to the end of the MRRT year.
Note:
You will only have an MRRT year that is not a 12 month period if you are moving from one accounting period to another: see Division 190 of the Minerals Resource Rent Tax Act 2012.
History
S 115-110 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Division 117 - MRRT returns and starting base returns
History
Div 117 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Guide to Division 117
SECTION 117-1 WHAT THIS DIVISION IS ABOUT
117-1
You are obliged to give the Commissioner an MRRT return for each MRRT year in which you have a mining project interest or pre-mining project interest, unless the Commissioner does not require you to lodge a return.
You are also obliged to give the Commissioner a starting base return for the first MRRT year.
History
S 117-1 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Operative provisions
SECTION 117-5 WHO MUST GIVE MRRT RETURNS
117-5(1)
If you have a *mining project interest, or *hold a *pre-mining project interest, during an *MRRT year, you must give the Commissioner an *MRRT return for that year that relates to all such interests.
117-5(2)
You must give the return whether or not you are liable to pay *MRRT for the *MRRT year.
117-5(3)
You must give your *MRRT return for the *MRRT year to the Commissioner:
(a)
on or before the first day of the sixth month after the end of the year; or
(b)
within such further period as the Commissioner allows; or
(c)
if you are a member of a class of entities for which the Commissioner has determined a period under paragraph (5)(a) - within that further period;
whichever is the latest.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
117-5(4)
Despite subsection (1), you are not required to give the Commissioner an *MRRT return for an *MRRT year if:
(a)
you have made a valid choice under section 200-10 of the Minerals Resource Rent Tax Act 2012 (choosing to use the simplified MRRT method) that has effect at the end of the year; or
(b)
you are a member of a class of entities that the Commissioner has exempted from providing a return for that year under paragraph (5)(b).
117-5(5)
The Commissioner may, by legislative instrument, do either or both of the following:
(a)
determine a further period within which a class of entities may provide an *MRRT return for an *MRRT year;
(b)
exempt a class of entities from providing an MRRT return for an MRRT year.
History
S 117-5 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 117-10 THE FORM AND CONTENTS OF MRRT RETURNS
117-10(1)
Your *MRRT return for an *MRRT year must be in the *approved form.
117-10(2)
The *approved form for an *MRRT return must require information to be provided relating to the following:
(a)
your *taxable mining profit for the *MRRT year;
(b)
your *MRRT payable for the MRRT year.
Note:
If you have chosen the simplified MRRT method under Division 200 of the Minerals Resource Rent Tax Act 2012, both of these amounts will be zero.
History
S 117-10 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 117-15 ADDITIONAL MRRT RETURNS
117-15(1)
In addition to the *MRRT returns required under section 117-5, you must give the Commissioner:
(a)
such further or fuller MRRT returns; or
(b)
such other MRRT returns for an *MRRT year or a specified period, whether or not you have given the Commissioner an MRRT return for the same period;
as the Commissioner directs you to give (including any MRRT return in your capacity as agent or trustee).
117-15(2)
The *approved form for a further or fuller *MRRT return may require information to be provided relating to:
(a)
the *MRRT year to which the return relates; or
(b)
one or more preceding MRRT years; or
(c)
both the MRRT year to which the return relates, and one or more preceding MRRT years.
History
S 117-15 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 117-20 STARTING BASE RETURNS
117-20(1)
In addition to the *MRRT returns required under section 117-5 or 117-15, you must give the Commissioner a *starting base return for the first *MRRT year if you make a choice under section 85-5 of the Minerals Resource Rent Tax Act 2012.
117-20(2)
The *starting base return must relate to all *starting base assets (and all property or rights that are expected to be starting base assets after the time mentioned in subsection 80-25(2) of that Act) that you *hold that relate to the mining project interest or *pre-mining project interest to which that choice relates.
117-20(3)
A *starting base return is not valid unless you give it to the Commissioner:
(a)
on or before the first day of the sixth month after the end of the first *MRRT year of the entity that had the mining project interest, or *held the *pre-mining project interest, on 1 July 2012; or
(b)
within such further period as the Commissioner allows.
117-20(4)
A *starting base return must be in the *approved form.
117-20(5)
The *approved form must require information to be provided relating to:
(a)
the *base value of all *starting base assets mentioned in subsection (2) for the first *MRRT year; or
(b)
what would be the base value of any other property or right mentioned in that subsection for that year if it were a starting base asset.
117-20(6)
In addition to the *starting base return required under subsection (1) (and the *MRRT returns required under section 117-5 or 117-15), you must give the Commissioner such further or fuller starting base returns as the Commissioner directs you to give (including any starting base return in your capacity as agent or trustee).
History
S 117-20(6) inserted by No 88 of 2013, s 3 and Sch 7 item 177, effective 1 July 2012.
S 117-20 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 117-25 ELECTRONIC LODGEMENT OF MRRT RETURNS AND STARTING BASE RETURNS
117-25
You must *lodge electronically your *MRRT returns and *starting base returns, unless the Commissioner otherwise approves.
Note:
Section 388-75 in this Schedule deals with signing returns.
History
S 117-25 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 117-30 MRRT RETURNS AND STARTING BASE RETURNS TREATED AS BEING DULY MADE
117-30
An *MRRT return or *starting base return purporting to be made or signed by or on behalf of an entity is treated as having been duly made by the entity or with the entity's authority until the contrary is proved.
History
S 117-30 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Division 119 - Making choices
History
Div 119 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Guide to Division 119
SECTION 119-1 WHAT THIS DIVISION IS ABOUT
119-1
A choice you make under the MRRT law must be made in accordance with the general rules in this Division (subject to any more specific rule in the MRRT law).
History
S 119-1 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Operative provisions
SECTION 119-5 MAKING CHOICES
119-5(1)
If a provision of the *MRRT law allows, or requires, you to make a choice about a matter, the choice is not valid unless you make it:
(a)
no later than:
(i)
if you are required to give the Commissioner an *MRRT return for the first *MRRT year in which the choice applies - the earlier of the day on which that obligation is met or the day on which that obligation falls due; or
(ii)
otherwise - the last day in the period within which you would be required to give the Commissioner such a return if you were required to give the Commissioner such a return; or
(b)
within a further time that the Commissioner allows.
119-5(2)
The way your *MRRT return for an *MRRT year is prepared is sufficient evidence of you making the choice.
119-5(3)
However, you must give the Commissioner notice of the choice in the *approved form if:
(a)
you are not required to give the Commissioner an *MRRT return for that MRRT year; or
(b)
the *MRRT law expressly requires you to give the choice to the Commissioner; or
(c)
the Commissioner requests you to do so.
History
S 119-5 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 119-10 CHOICES ARE IRREVOCABLE
119-10
A choice under the *MRRT law is irrevocable.
History
S 119-10 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 119-15 DIVISION SUBJECT TO MORE SPECIFIC RULES
119-15
This Division is subject to any specific rules in the *MRRT law outside this Division.
History
S 119-15 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Division 121 - Reporting
History
Div 121 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Guide to Division 121
SECTION 121-1 WHAT THIS DIVISION IS ABOUT
121-1
If a mining project transfer, mining project split, pre-mining project transfer or pre-mining project split happens, the original entity must give the new entity all the information the new entity will need to satisfy its MRRT obligations in relation to the interest it has acquired.
History
S 121-1 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Operative provisions
SECTION 121-5 OBJECT OF THIS DIVISION
121-5
The object of this Division is to provide entities with access to the information necessary for them to comply with their obligations under the *MRRT law.
History
S 121-5 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 121-10 INFORMATION NOTICE FOR TRANSFERS AND SPLITS OF MINING AND PRE-MINING PROJECT INTERESTS
121-10(1)
An entity (the
original entity
) must give another entity (the
new entity
) a notice if:
(a)
the original entity had a *mining project interest before a *mining project transfer or *mining project split, and the new entity has the interest, or part of the interest, after the transfer or split; or
(b)
the original entity *held a *pre-mining project interest before a *pre-mining project transfer or *pre-mining project split, and the new entity holds the interest, or part of the interest, after the transfer or split.
121-10(2)
The notice must contain:
(a)
the amount of each *allowance component relating to the new entity's interest; and
(b)
the information the original entity has that is necessary for the new entity to work out, for the *MRRT year in which the transfer or split happens or for later MRRT years:
(i)
the *starting base losses for its interest; and
(ii)
the amounts that are included in the new entity's *mining revenue or *pre-mining revenue for its interest; and
(iii)
the amounts that are included in the new entity's *mining expenditure or *pre-mining expenditure for its interest; and
(iv)
the amount of a *rehabilitation tax offset for its interest; and
(c)
for a split - the new entity's *split percentage for its interest; and
(d)
the information the original entity has that is necessary for the new entity to work out the new entity's *instalment income for an *instalment quarter in the MRRT year in which the transfer or split happens.
121-10(3)
The original entity must also give the new entity a notice containing information about a thing mentioned in section 120-20, 125-30, 145-25 or 150-30 of the Minerals Resource Rent Tax Act 2012 (events that happen after a transfer or split) in relation to the transfer or split.
121-10(4)
The original entity must give the notice:
(a)
in writing, or in another form acceptable to the new entity; and
(b)
for a notice under subsection (1) - within 60 days of the *mining project transfer, *mining project split, *pre-mining project transfer or *pre-mining project split; and
(c)
for a notice under subsection (3) - within 60 days of the day on which the thing happens.
Note:
Section 286-75 provides an administrative penalty for a breach of this section. A breach of this section may also be an offence under section 8C, and making a false or misleading statement when providing the information may be an offence under section 8K or 8N.
History
S 121-10 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 121-12 NOTICE OF REHABILITATION EXPENDITURE
121-12(1)
If:
(a)
an amount of expenditure is incurred by a trustee or bondholder (the
trustee
) out of an amount provided as security as mentioned in subsection 35-70(1) of the Minerals Resource Rent Tax Act 2012; and
(b)
the amount is for rehabilitation of an area that is the *project area for a *mining project interest the other entity has at the time the amount is incurred;
the trustee must give the other entity a notice containing the information the trustee has that is necessary for the other entity to determine the extent, if any, to which the amount is *mining expenditure for the other entity.
121-12(2)
The trustee must give the notice:
(a)
in writing, or in another form acceptable to the new entity; and
(b)
within 60 days of the incurring of the amount.
Note:
Section 286-75 provides an administrative penalty for a breach of this section. A breach of this section may also be an offence under section 8C, and making a false or misleading statement when providing the information may be an offence under section 8K or 8N.
History
S 121-12 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 121-15 SUBSTANTIATION REQUIREMENT
121-15(1)
An entity that receives information from another entity under this Division may request the other entity to provide further and better particulars of the information, including:
(a)
if relevant, the underlying document or information on which it was based; and
(b)
in relation to an amount, the way in which it was calculated.
121-15(2)
The other entity must comply with the request within 60 days of the request being made.
Note:
Section 286-75 provides an administrative penalty for a breach of this section. A breach of this section may also be an offence under section 8C, and making a false or misleading statement when providing the information may be an offence under section 8K or 8N.
History
S 121-15 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Division 123 - Record keeping
History
Div 123 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Guide to Division 123
SECTION 123-1 WHAT THIS DIVISION IS ABOUT
123-1
You are required to keep records relating to your mining operations or pre-mining operations in accordance with this Division.
History
S 123-1 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Operative provisions
SECTION 123-5 WHAT RECORDS YOU MUST KEEP
123-5(1)
You must keep records of every act, transaction, event or circumstance relating to your *mining operations or *pre-mining operations that are relevant to working out any of the following:
(a)
whether you are, or another entity is, liable to pay *MRRT for an *MRRT year;
(b)
whether you are, or another entity is, entitled to an offset under Division 45 (low profit offsets) or Division 225 (rehabilitation tax offsets) of the Minerals Resource Rent Tax Act 2012.
123-5(2)
If the necessary records of an act, transaction, event or circumstance:
(a)
do not already exist - you must create them or have someone else create them; or
(b)
no longer exist - you must reconstruct them or have someone else reconstruct them.
123-5(3)
If you make any choice, election, estimate, determination or calculation under the *MRRT law, you must keep records containing particulars of:
(a)
the choice, election, estimate, determination or calculation; and
(b)
in the case of an estimate, determination or calculation - the basis on which, and the method by which, the estimate, determination or calculation was made.
123-5(4)
The records must be:
(a)
in English, or readily accessible and easily convertible into English; and
(b)
such as to enable the things mentioned in subsection (1) or (3) (as the case requires) to be readily ascertained.
History
S 123-5 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 123-10 RETAINING RECORDS
123-10
You must retain the records required by section 123-5 until the latest of the following:
(a)
if it is a record mentioned in subsection (1) of that section - 5 years after the completion of the act, transaction, event or circumstance to which it relates;
(b)
if it is a record mentioned in subsection (3) of that section - 5 years after the choice, election, estimate, determination or calculation was made;
(c)
5 years after you prepared or obtained the records;
(d)
if the records are relevant to an assessment of *MRRT for an *MRRT year - the end of the *period of review for that assessment.
History
S 123-10 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 123-15 OFFENCE FOR FAILING TO KEEP OR RETAIN RECORDS
123-15(1)
An entity commits an offence if:
(a)
the entity is required to keep or retain a record under this Division; and
(b)
the entity does not keep or retain the record in accordance with this Division; and
(c)
the Commissioner has not notified the entity that the entity does not need to retain the record; and
(d)
the entity is not a company that has been finally dissolved.
Penalty: 30 penalty units.
123-15(2)
Subsection (1) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
123-15(3)
For the purposes of section 288-25, section 123-10 does not require an entity to retain a record if:
(a)
the Commissioner notifies the entity that the entity does not need to retain the record; or
(b)
the entity is a company that has been finally dissolved.
Note:
Section 288-25 imposes an administrative penalty if an entity does not keep or retain records as required by this Division.
History
S 123-15 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Division 125 - Miscellaneous
History
Div 125 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 125-1 ADDRESS FOR SERVICE
125-1(1)
Your address for service for the purposes of the *MRRT law is:
(a)
a physical address in Australia; or
(b)
a postal address in Australia; or
(c)
an electronic address;
that you have given the Commissioner as your address for service for the purposes of the MRRT law.
125-1(2)
If you have given the Commissioner more than one address for service for the purposes of subsection (1), your address for service is such of those addresses as the Commissioner considers reasonable in the circumstances.
125-1(3)
If you have not given the Commissioner an address for service, your address for service is the address that the Commissioner reasonably believes to be your address for service for the purposes of the *MRRT law.
125-1(4)
For the purposes of the *MRRT law, a document (however described) may be given:
(a)
in the manner specified in section 28A of the Acts Interpretation Act 1901; or
(b)
if your address for service is an electronic address - by sending it to that address.
125-1(5)
Despite section 29 of the Acts Interpretation Act 1901, a document under subsection (4) of this section is taken to be given at the time the Commissioner leaves or posts it.
125-1(6)
This section has effect despite paragraphs 9(1)(d) and 9(2)(d) of the Electronic Transactions Act 1999.
History
S 125-1 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Former Pt 3-15 inserted by No 14 of 2012, s 3 and Sch 1 item 8, effective 1 July 2012.
No 14 of 2012 (as amended by No 88 of 2013), s 3 and Sch 4 was repealed by No 96 of 2014, s 3 and Sch 1 item 46, contains the following application and transitional provisions:
Schedule 4 - Application and transitional provisions
Part 1 - Preliminary
1 Application of Act
1
The MRRT law extends to matters and things whether occurring before or after 1 July 2012 (except where a contrary intention appears).
1A Administration of this Schedule
1A
The Commissioner has the general administration of this Schedule.
History
S 1A inserted by No 88 of 2013, s 3 and Sch 7 item 72, effective 1 July 2012.
Part 2 - General liability rules
2 Modified time of supply for prepayments before 1 July 2012
2
Paragraph 30-35(a) of the Minerals Resource Rent Tax Act 2012 is disregarded in working out the time a miner makes a supply of a taxable resource or thing produced using a taxable resource if consideration for the supply is received or becomes receivable at a time before 1 July 2012.
3 Recoupment or offsetting of mining expenditure
3
An amount is included under section 30-40 of the Minerals Resource Rent Tax Act 2012 in a miner's mining revenue for a mining project interest for the MRRT year starting on 1 July 2012 to the extent that:
(a)
the amount is received, or becomes receivable, before the start of that MRRT year; and
(b)
had the amount been received, or become receivable, in that MRRT year, it would have given rise under that section to an amount of mining revenue for the mining project interest for the miner.
4 Compensation for loss of taxable resources
4
Section 30-50 of the Minerals Resource Rent Tax Act 2012 does not apply in relation to amounts relating to loss of, destruction of or damage that happens to a taxable resource before 1 July 2012.
5 Hire purchase agreements entered into before 1 July 2012
5
Without limiting section 35-55 of the Minerals Resource Rent Tax Act 2012, that section also applies in relation to hire purchase agreements entered into before 1 July 2012.
Note:
The property may be a starting base asset if the requirements in Subdivision 80-C of the Minerals Resource Rent Tax Act 2012 are met.
Part 3 - MRRT allowances
6 Royalty amounts paid on taxable resources extracted before 1 July 2012
6
To avoid doubt, a liability a miner incurs on or after 1 July 2012 gives rise to a royalty credit under section 60-20 of the Minerals Resource Rent Tax Act 2012 if the requirements in that section are met, whether the relevant taxable resource was extracted on, before, or after that day.
Part 4 - Specialist liability rules
7 Combining mining project interests before commencement
Combining mining project interests
7(1)
Two or more mining project interests are taken by Division 115 of the Minerals Resource Rent Tax Act 2012 to be the same mining project interest from a particular time before 1 July 2012 if those interests would be taken to be the same mining project interest under that Division from that time if the time was after 1 July 2012.
Downstream integration of mining project interests
7(2)
If:
(a)
disregarding paragraph 255-10(d) of the Minerals Resource Rent Tax Act 2012 (choosing to treat mining project interests as integrated), a mining project interest would have been integrated with another mining project interest at a time during the period:
(i)
starting on 2 May 2010; and
(ii)
ending just before the start of 1 July 2012; and
(b)
the miner makes a valid choice under section 255-20 of that Act on or before the day on which the obligation to give an MRRT return for the first MRRT year falls due;
the requirement in paragraph 255-10(d) of that Act is taken to be satisfied at all times during the period starting at the time mentioned in paragraph (a) of this subitem and ending when the miner makes that choice.
8 Transferring and splitting mining project interests
8
To avoid doubt, Divisions 120 and 125 of the Minerals Resource Rent Tax Act 2012 apply in relation to mining project interests before 1 July 2012 in the same way as those Divisions apply in relation to mining project interests after that day.
9 Transferring and splitting pre-mining project interests
9
To avoid doubt, Divisions 145 and 150 of the Minerals Resource Rent Tax Act 2012 apply in relation to pre-mining project interests before 1 July 2012 in the same way as those Divisions apply in relation to pre-mining project interests after that day.
10 Substituted accounting periods
10
Despite section 10-25 of the Minerals Resource Rent Tax Act 2012, if:
(a)
an entity has, under section 18 of the Income Tax Assessment Act 1936, accounting periods that are not financial years; and
(b)
one of those accounting periods starts before 1 July 2012 and ends after that day;
the period starting on 1 July 2012 and ending at the end of that accounting period is an
MRRT year
.
History
S 10 amended by No 88 of 2013, s 3 and Sch 7 item 73, by substituting "an entity" for "a miner" in para (a), effective 1 July 2012.
11 Schemes entered into before 2 May 2010
11
Without limiting Division 210 of the Minerals Resource Rent Tax Act 2012 (or that Division as it applies because of item 12 of this Schedule), that Division also applies in relation to a scheme if:
(a)
the scheme was entered into before 2 May 2010; and
(b)
it is reasonable to conclude that an entity (whether alone or with others) would have entered into or carried out the scheme, or part of the scheme, with the purpose mentioned in paragraph 210-10(1)(c) of that Act had the MRRT law been in force when the scheme was entered into.
12 Schemes to increase the base value of starting base assets
12(1)
Without limiting Division 210 of the Minerals Resource Rent Tax Act 2012, that Division also applies as if an entity gets or got an MRRT benefit from a scheme if:
(a)
the entity holds a starting base asset; and
(b)
the base value of that asset for the first MRRT year is, or could reasonably be expected to be, larger than it would be apart from the scheme.
12(2)
For the purposes of subitem (1), the Commissioner may make, under section 210-25 of the Minerals Resource Rent Tax Act 2012, a determination stating the base value of the starting base asset for the first MRRT year.
12(3)
This item applies to property or rights that are expected to be starting base assets as mentioned in subsection 117-20(2) in Schedule 1 to the Taxation Administration Act 1953 as if the property or rights were a starting base asset.
13 Choice to consolidate for MRRT purposes before commencement
13
Despite paragraph 215-10(4)(a) of the Minerals Resource Rent Tax Act 2012, a choice that the head company of a consolidated group or MEC group or the provisional head company of a MEC group makes under section 215-10 of that Act has effect on and after a day (the day of effect) if:
(a)
the choice is made on 1 July 2012 or within such further time as the Commissioner allows; and
(b)
the day of effect is between 2 May 2010 and the day the choice is made; and
(c)
the consolidated group or MEC group existed on the day of effect; and
(d)
the company notifies the Commissioner, under subsection 215-10(3) of that Act, that the choice is to apply from the day of effect.
Part 5 - Administration
14 Reporting requirements for transfers and splits of interests before 1 July 2012
14(1)
Without limiting Division 121 in Schedule 1 to the Taxation Administration Act 1953, that Division also applies in relation to a mining project transfer, mining project split, pre-mining project transfer or pre-mining project split that happened between 1 May 2010 and 30 June 2012.
14(2)
However, despite paragraphs 121-10(4)(b) and (c) in that Schedule, an entity's obligation to give a notice that arises because of subitem (1) is taken to have been complied with if it is given by the later of the following:
(a)
21 July 2012;
(b)
21 days after receiving a notice that another entity is obliged to give the entity because of subitem (1).
15 Starting base assessments
15(1)
Without limiting Division 155 in Schedule 1 to the Taxation Administration Act 1953, that Division also applies in relation to a starting base asset as if:
(a)
the base value of the starting base asset for the first MRRT year were an assessable amount within the meaning of that Division that was mentioned in column 1 of the table in subsection 155-15(1) of that Division; and
(b)
a starting base return for that year in relation to the starting base asset were a document mentioned in column 3 of that table in relation to that assessable amount; and
(c)
the Commissioner were the recipient mentioned in column 2 of that table in relation to that starting base return.
History
S 15(1) amended by No 88 of 2013, s 3 and Sch 7 item 74, by inserting para (c), effective 1 July 2012.
15(2)
This item applies to property or rights that are expected to be starting base assets as mentioned in subsection 117-20(2) in Schedule 1 to the Taxation Administration Act 1953 as if the property or rights were a starting base asset.
15(3)
Without limiting subitem (1), from the first time an assessment (a
general assessment
) is made of the MRRT payable by an entity for an MRRT year (or that no MRRT is payable by the entity for the year):
(a)
an assessment (a
starting base assessment
) that the Commissioner is treated as having made because of subsection 155-15(1) in Schedule 1 to the Taxation Administration Act 1953 in relation to that base value is taken, for the purposes of this Act, to form part of the general assessment; and
(b)
any objection against the general assessment under section 155-90 in Schedule 1 to that Act must not relate to matters to which the starting base assessment relates; and
(c)
any amendment of the general assessment under Subdivision 155-B in that Schedule must not relate to matters to which the starting base assessment relates, except to the extent necessary to give effect to the starting base assessment (including the starting base assessment as amended).
History
S 15(3) inserted by No 88 of 2013, s 3 and Sch 7 item 75, effective 1 July 2012.
15(4)
Without limiting sections 155-45 to 155-60 in Schedule 1 to that Act, the Commissioner may amend a general assessment at any time to the extent necessary to give effect to the starting base assessment (including the starting base assessment as amended).
History
S 15(4) inserted by No 88 of 2013, s 3 and Sch 7 item 75, effective 1 July 2012.
Division 115 - General provisions relating to the major bank levy
History
Div 115 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
SECTION 115-1
WHAT THIS DIVISION IS ABOUT
An ADI that is liable to pay levy under the Major Bank Levy Act 2017 must give quarterly returns to the Commissioner.
An amount of levy is due and payable when an ADI's last PAYG instalment within an instalment quarter is due.
History
S 115-1 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
TABLE OF SECTIONS
TABLE OF SECTIONS
| 115-5 |
Returns |
| 115-10 |
When major bank levy is due and payable |
SECTION 115-5
RETURNS
115-5(1)
An *ADI that is liable to pay levy for a *quarter under the Major Bank Levy Act 2017 must give to the Commissioner a return relating to the levy, in the *approved form.
115-5(2)
The return must be given on or before the *
MBL reporting day
for the *quarter.
115-5(3)
The
MBL reporting day
for the *quarter is the day by which the *ADI is required to give to *APRA a report, in accordance with a standard determined by APRA under section 13 of the Financial Sector (Collection of Data) Act 2001, that:
(a)
relates to the *quarter; and
(b)
states the total liabilities amount (within the meaning of the Major Bank Levy Act 2017) for the quarter in relation to the ADI.
History
S 115-5 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
SECTION 115-10
WHEN MAJOR BANK LEVY IS DUE AND PAYABLE
115-10(1)
An amount of levy under the Major Bank Levy Act 2017 that an *ADI is liable to pay for a *quarter is due and payable on the first day:
(a)
that occurs on or after the *MBL reporting day for the quarter; and
(b)
on which the last instalment that the ADI is liable to pay within an *instalment quarter is due under Subdivision 45-B.
115-10(2)
If that amount remains unpaid after it is due and payable, the *ADI is liable to pay *general interest charge on the unpaid amount for each day in the period that:
(a)
started at the beginning of the day by which the amount was due to be paid; and
(b)
finishes at the end of the last day at the end of which either of the following remains unpaid:
(i)
the amount;
(ii)
general interest charge on any of the amount.
History
S 115-10 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to the quarter starting on 1 July 2017 as if the MBL reporting day for the quarter were the same day as the MBL reporting day for the quarter starting on 1 October 2017.
Division 117 - Anti-avoidance
History
Div 117 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
Guide to Division 117
SECTION 117-1
WHAT THIS DIVISION IS ABOUT
This Division applies to deter schemes that give entities MBL benefits.
If the sole or dominant purpose of entering into a scheme is to give an entity such a benefit, the Commissioner may negate the MBL benefit an entity gets from the scheme by making a determination.
History
S 117-1 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
Subdivision 117-A - Application of this Division
History
Subdiv 117-A inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
SECTION 117-5
117-5
OBJECT OF THIS DIVISION
The object of this Division is to deter *schemes to give entities benefits that reduce or defer liabilities to levy under the Major Bank Levy Act 2017.
History
S 117-5 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
SECTION 117-10
APPLICATION OF THIS DIVISION
117-10(1)
This Division applies if:
(a)
an entity gets or got an *MBL benefit from a *scheme; and
(b)
taking account of the matters described in section 117-20, it is reasonable to conclude that an entity that (whether alone or with others) entered into or carried out the scheme, or part of the scheme, did so for the sole or dominant purpose of that entity or another entity getting an MBL benefit from the scheme; and
(c)
the scheme:
(i)
has been or is entered into at or after 7.30 pm, by legal time in the Australian Capital Territory, on 9 May 2017; or
(ii)
has been or is carried out or commenced at or after that time (other than a scheme that was entered into before that time).
117-10(2)
It does not matter whether the *scheme, or any part of the scheme, was entered into or carried out inside or outside Australia.
History
S 117-10 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
SECTION 117-15
MEANING OF
MBL BENEFIT
117-15(1)
An entity gets an
MBL benefit
from a *scheme, if:
(a)
an amount of levy under the Major Bank Levy Act 2017 that is payable by the entity under this Act apart from this Division is, or could reasonably be expected to be, smaller than it would be apart from the scheme or a part of the scheme; or
(b)
all or part of an amount of levy under the Major Bank Levy Act 2017 that is payable by the entity under this Act apart from this Division is, or could reasonably be expected to be, payable later than it would have been apart from the scheme or a part of the scheme.
117-15(2)
To avoid doubt, a smaller liability mentioned in paragraph (1)(a) includes a case where the liability is zero, or there is no such liability for a particular *quarter.
History
S 117-15 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
SECTION 117-20
117-20
MATTERS TO BE CONSIDERED IN DETERMINING PURPOSE
The following matters are to be taken into account under section 117-10 in considering an entity's purpose in entering into or carrying out the *scheme, or part of the scheme:
(a)
the manner in which the scheme was entered into or carried out;
(b)
the form and substance of the scheme;
(c)
the time at which the scheme was entered into and the length of the period during which the scheme was carried out;
(d)
the effect that the Major Bank Levy Act 2017, and any other *taxation law to the extent that it applies in relation to that Act, would have in relation to the scheme apart from this Division;
(e)
any change in the financial position of the entity that has resulted, or may reasonably be expected to result, from the scheme;
(f)
any change that has resulted, or may reasonably be expected to result, from the scheme in the financial position of an entity (a
connected entity
) that has or had a connection or dealing with the entity, whether the connection or dealing is or was of a business or other nature;
(g)
any other consequence forthe entity or a connected entity of the scheme having been entered into or carried out;
(h)
the nature of the connection (whether of a business or other nature) between the entity and a connected entity.
History
S 117-20 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
Subdivision 117-B - Commissioner may negate effects of schemes for MBL benefits
History
Subdiv 117-B inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
SECTION 117-25
COMMISSIONER MAY NEGATE ENTITY'S MBL BENEFITS
117-25(1)
For the purpose of negating an *MBL benefit the entity mentioned in paragraph 117-10(1)(a) gets or got from the *scheme, the Commissioner may:
(a)
make a determination stating the amount that is (and has been at all times) the entity's liability for levy under the Major Bank Levy Act 2017, for a specified *quarter that has ended; or
(b)
make a determination stating the amount that is (and has been at all times) a particular amount mentioned in paragraph 5(2)(a) or (b) of that Act, for a specified quarter that has ended.
117-25(2)
A determination under this section is not a legislative instrument.
117-25(3)
The Commissioner may take such action as the Commissioner considers necessary to give effect to the determination.
History
S 117-25 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
SECTION 117-30
117-30
DETERMINATION HAS EFFECT ACCORDING TO ITS TERMS
For the purpose of making an *assessment, a statement in a determination under this Subdivision has effect according to its terms, despite the provisions of a *taxation law outside of this Division.
History
S 117-30 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
SECTION 117-35
117-35
COMMISSIONER MAY DISREGARD SCHEME IN MAKING DETERMINATIONS
For the purposes of making a determination under this Subdivision, the Commissioner may:
(a)
treat a particular event that actually happened as not having happened; and
(b)
treat a particular event that did not actually happen as having happened and, if appropriate, treat the event as:
(i)
having happened at a particular time; and
(ii)
having involved particular action by a particular entity; and
(c)
treat a particular event that actually happened as:
(i)
having happened at a time different from the time it actually happened; or
(ii)
having involved particular action by a particular entity (whether or not the event actually involved any action by that entity).
History
S 117-35 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
SECTION 117-40
117-40
ONE DETERMINATION MAY COVER SEVERAL QUARTERS ETC.
To avoid doubt, statements relating to different *quarters and different *MBL benefits may be included in a single determination under this Subdivision.
History
S 117-40 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
SECTION 117-45
COMMISSIONER MUST GIVE COPY OF DETERMINATION TO ENTITY AFFECTED
117-45(1)
The Commissioner must give a copy of a determination under this Subdivision to the entity whose liability for levy under the Major Bank Levy Act 2017 is stated in the determination.
117-45(2)
A failure to comply with subsection (1) does not affect the validity of the determination.
History
S 117-45 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
SECTION 117-50
117-50
OBJECTIONS
If the entity whose liability for levy under the Major Bank Levy Act 2017 is stated in a determination under this Subdivision is dissatisfied with the determination, the entity may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953.
History
S 117-50 inserted by No 64 of 2017, s 3 and Sch 1 item 15, applicable in relation to quarters starting on or after 1 July 2017.
PART 3-17 - LAMINARIA AND CORALLINA DECOMMISSIONING LEVY
History
Pt 3-17 inserted by No 24 of 2022, s 3 and Sch 1 item 11, effective 2 April 2022 and applicable in relation to financial years starting on or after 1 July 2021.
Division 125 - General provisions relating to Laminaria and Corallina decommissioning levy
History
Div 125 inserted by No 24 of 2022, s 3 and Sch 1 item 11, effective 2 April 2022 and applicable in relation to financial years starting on or after 1 July 2021.
SECTION 125-1
WHAT THIS DIVISION IS ABOUT
You must give the Commissioner a return relating to Laminaria and Corallina decommissioning levy if you are a leviable entity for a financial year.
An amount of levy is due and payable 21 days after the day the Commissioner gives you a notice of assessment.
This Division contains other rules relating to the administration of the levy, including rules dealing with charges and assessments.
History
S 125-1 inserted by No 24 of 2022, s 3 and Sch 1 item 11, effective 2 April 2022 and applicable in relation to financial years starting on or after 1 July 2021.
TABLE OF SECTIONS
TABLE OF SECTIONS
| 125-5 |
Returns |
| 125-10 |
When Laminaria and Corallina decommissioning levy and related charges are due and payable |
| 125-15 |
Assessments of Laminaria and Corallina decommissioning levy |
SECTION 125-5
RETURNS
125-5(1)
You must give the Commissioner a return relating to *Laminaria and Corallina decommissioning levy in the *approved form if you are a leviable entity (within the meaning of the Offshore Petroleum (Laminaria and Corallina Decommissioning Cost Recovery Levy) Act 2022) for a financial year that is a levy year (within the meaning of that Act).
Note:
You are required to give the Commissioner a return in accordance with this subsection even if the amount of that levy you are liable to pay is nil.
125-5(2)
The return must be given within 6 months after the end of the financial year.
History
S 125-5 inserted by No 24 of 2022, s 3 and Sch 1 item 11, effective 2 April 2022 and applicable in relation to financial years starting on or after 1 July 2021.
SECTION 125-10
WHEN LAMINARIA AND CORALLINA DECOMMISSIONING LEVY AND RELATED CHARGES ARE DUE AND PAYABLE
Original assessments
125-10(1)
If you are liable to pay an amount of *Laminaria and Corallina decommissioning levy for a financial year, the amount is due and payable 21 days after the day the Commissioner gives you a notice of assessment for the financial year.
Amended assessments
125-10(2)
If the Commissioner amends your assessment of an amount of *Laminaria and Corallina decommissioning levy, any extra levy resulting from the amendment is due and payable 21 days after the day the Commissioner gives you notice of the amended assessment.
Shortfall interest charge
125-10(3)
If you are liable to pay an amount of *shortfall interest charge under section 280-102D, the amount is due and payable 21 days after the day the Commissioner gives you notice of the charge.
General interest charge
125-10(4)
If an amount of levy or *shortfall interest charge payable under this section remains unpaid after it is due and payable, you are liable to pay *general interest charge on the unpaid amount for each day in the period that:
(a)
started at the beginning of the day by which the amount was due to be paid; and
(b)
finishes at the end of the last day at the end of which any of the following remains unpaid:
(i)
the amount of levy or shortfall interest charge;
(ii)
general interest charge on any of the amount of levy or shortfall interest charge.
History
S 125-10 inserted by No 24 of 2022, s 3 and Sch 1 item 11, effective 2 April 2022 and applicable in relation to financial years starting on or after 1 July 2021.
SECTION 125-15
ASSESSMENTS OF LAMINARIA AND CORALLINA DECOMMISSIONING LEVY
125-15(1)
In applying Division 155 in relation to an amount of *Laminaria and Corallina decommissioning levy:
(a)
apply the provisions of that Division with the modification set out in subsection (2) of this section; and
(b)
disregard section 155-70.
125-15(2)
Despite subsection 155-35(2), the
period of review
, for an assessment of an amount of *Laminaria and Corallina decommissioning levy, is:
(a)
the period:
(i)
starting on the day on which the Commissioner first gives notice of the assessment to you under section 155-10; and
(ii)
ending on the last day of the period of 6 months starting the day after that day; or
(b)
if the period of review is extended under subsection 155-35(3) or (4) - the period as so extended.
History
S 125-15 inserted by No 24 of 2022, s 3 and Sch 1 item 11, effective 2 April 2022 and applicable in relation to financial years starting on or after 1 July 2021.
PART 3-20 - SUPERANNUATION
History
Pt 3-20 heading substituted by No 81 of 2016, s 3 and Sch 1 item 13, effective 1 January 2017 and applicable on and after 1 July 2017. The heading formerly read:
PART 3-20 - SUSTAINING THE SUPERANNUATION CONTRIBUTION CONCESSION
Pt 3-20 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. No 82 of 2013, s 3 and Sch 3 item 39 contains the following application provision:
39 Application
(1)
Subject to this item, the amendments made apply to the 2012-13 income year and later income years.
…
No retrospective administrative penalty
(3)
Despite subitem (1), the amendments made do not give rise to a liability to an administrative penalty under section 286-75 in Schedule 1 to the Taxation Administration Act 1953 for failing to do a thing by a particular day, if the day is before the day this Act receives the Royal Assent [28 June 2013].
Modification for certain notice provisions
(4)
Despite subitem (1), section 133-75 in Schedule 1 to the Taxation Administration Act 1953, as inserted, does not require the Commissioner to give a notice before 1 July 2014.
Division 131 - Releasing money from superannuation
History
Div 131 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. No 81 of 2016, s 3 and Sch 10 Div 3 contains the following application provisions:
Division 3 - Application of amendments
49 Main case
(1)
The amendments made apply in relation to:
(a)
excess concessional contributions determinations issued on or after 1 July 2018 (whether for financial years commencing before, on or after 1 July 2018); and
(b)
excess non-concessional contributions determinations issued on or after 1 July 2018 (whether for financial years commencing before, on or after 1 July 2018); and
(c)
notices of excess non-concessional contributions tax assessments issued on or after 1 July 2018 (whether for financial years commencing before, on or after 1 July 2018); and
(d)
notices of assessments of amounts of Division 293 tax issued on or after 1 July 2018 (whether for income years commencing before, on or after 1 July 2018).
(2)
Those amendments so apply as if:
(a)
the reference to this Subdivision in subsection 131-10(2) in Schedule 1 to the Taxation Administration Act 1953 included a reference to each of the following:
(i)
Division 96 in that Schedule (as in force on 30 June 2018);
(ii)
Division 135 in that Schedule (as in force on 30 June 2018);
(iii)
section 292-415 of the Income Tax Assessment Act 1997 (as in force on 30 June 2018); and
(b)
the reference to this Subdivision in subsection 131-15(4) in that Schedule included a reference to Division 135 in that Schedule (as in force on 30 June 2018).
Note:
For an amended determination or assessment, the reference to all release authorities in paragraph 131-20(1)(b) in that Schedule includes any of the following issued for an earlier determination or assessment of that kind given to the relevant individual for the relevant financial year or income year:
(a) release authorities issued under section 131-15 in that Schedule;
(b) release authorities issued under former section 292-405 of the Income Tax Assessment Act 1997, former Division 96 in that Schedule or former item 1 or 2 of the table in subsection 135-10(1) in that Schedule, as applicable.
50 Elections not yet acted on
(1)
This item applies to you if:
(a)
you make a valid election under section 96-5 or 96-7 in Schedule 1 to the Taxation Administration Act 1953; and
(b)
in response to the election, the Commissioner does not issue a release authority under section 96-10 or 96-12 in that Schedule before 1 July 2018.
(2)
The amendments made apply as if:
(a)
the election were a valid request made under section 131-5 in that Schedule; and
(b)
the reference to this Subdivision in subsection 131-10(2) in that Schedule included a reference to Division 96 in that Schedule (as in force on 30 June 2018).
51 Requests made after 1 July 2018 within a period that started before that day
(1)
This item applies to you if:
(a)
you could have made a valid election under section 96-5 or 96-7 in Schedule 1 to the Taxation Administration Act 1953; and
(b)
you did not give the election to the Commissioner before 1 July 2018; and
(c)
as on 30 June 2018, the period for giving the election to the Commissioner under that section was to end after that day.
(2)
The amendments made apply as if:
(a)
section 131-5 in that Schedule permitted you to make a request that is the same in substance as the election you could have made; and
(b)
the period under that section for giving the request to the Commissioner were 60 days starting on the same day that the period referred to in paragraph (1)(c) of this item started; and
(c)
the reference to this Subdivision in subsection 131-10(2) in that Schedule included a reference to Division 96 in that Schedule (as in force on 30 June 2018).
52 Release authorities for ENCC tax issued to individuals before 1 July 2018 but not to superannuation providers before that day
(1)
This item applies to you if:
(a)
the Commissioner issues you with a release authority under section 292-405 of the Income Tax Assessment Act 1997 in relation to an excess non-concessional contributions tax assessment; and
(b)
under subsection 292-410(4) of that Act, the Commissioner could have given the release authority to one or more superannuation providers before 1 July 2018; and
(c)
the Commissioner did not do so.
(2)
This item also applies to you if:
(a)
the Commissioner issues you with a release authority under section 292-405 of the Income Tax Assessment Act 1997 in relation to an excess non-concessional contributions tax assessment; and
(b)
by the end of 30 June 2018, the Commissioner had not given the release authority to any superannuation provider; and
(c)
apart from subitem (3) of this item, the conditions in subsection 292-410(3) of that Act are satisfied for that release authority after 30 June 2018.
(3)
The amendments made apply as if:
(a)
subsection 131-15(3) in Schedule 1 to the Taxation Administration Act 1953 permitted the Commissioner to issue a release authority, relating to the excess non-concessional contributions tax assessment, to one or more superannuation providers; and
(b)
subsection 131-20(2) in that Schedule also disregarded any amounts that:
(i)
were stated in any other release authorities issued under section 292-405 of the Income Tax Assessment Act 1997 (as in force on 30 June 2018) for that assessment and given to a superannuation provider; but
(ii)
were not paid by the superannuation provider.
53 Release authorities issued to individuals before 1 July 2018 but assessed Division 293 tax is still payable on or after that day
(1)
This item applies to you if:
(a)
the Commissioner issues you with a release authority under item 1 of the table in subsection 135-10(1) in Schedule 1 to the Taxation Administration Act 1953 in relation to an amount of assessed Division 293 tax; and
(b)
under subsection 135-45(1) in that Schedule, the Commissioner could have given the release authority to one or more superannuation providers before 1 July 2018; and
(c)
the Commissioner did not do so.
(2)
This item also applies to you if:
(a)
the Commissioner issues you with a release authority under item 1 of the table in subsection 135-10(1) in Schedule 1 to the Taxation Administration Act 1953 in relation to an amount of assessed Division 293 tax; and
(b)
as on 30 June 2018, the 120-day period referred to in subsection 135-45(1) in that Schedule for the release authority is to end after that day; and
(c)
apart from subitem (3) of this item, paragraphs 135-45(1)(a) and (b) in that Schedule are satisfied for that release authority at the end of that 120-day period.
(3)
The amendments made apply as if:
(a)
subsection 131-15(4) in that Schedule permitted the Commissioner to issue a release authority, relating to the assessment of the amount of Division 293 tax, to one or more superannuation providers; and
(b)
the reference to this Subdivision in subsection 131-15(4) in that Schedule included a reference to Division 135 in that Schedule (as in force on 30 June 2018); and
(c)
subsection 131-20(2) in that Schedule also disregarded any amounts that:
(i)
were stated in any other release authorities issued under Division 135 in that Schedule (as in force on 30 June 2018) for that assessment and given to a superannuation provider; but
(ii)
were not paid by the superannuation provider.
54 Notice on or after 1 July 2018 of amounts not paid for release authorities issued before that day
(1)
This item applies to you if:
(a)
a release authority is issued under Division 96 in Schedule 1 to the Taxation Administration Act 1953 in relation to you before 1 July 2018; and
(b)
the Commissioner gives you a notice under section 96-40 in that Schedule on or after 1 July 2018 stating an amount (the
unreleased amount
) that a superannuation provider did not pay in relation to the release authority.
(2)
The amendments made apply as if:
(a)
subsection 131-5(4) in that Schedule permitted you to make a request to release the unreleased amount from another of your superannuation interests; and
(b)
the notice mentioned in paragraph (1)(b) of this item were a notice mentioned in paragraph 131-5(4)(b) in that Schedule; and
(c)
the reference to this Subdivision in subsection 131-10(2) in that Schedule included a reference to Division 96 in that Schedule (as in force on 30 June 2018).
Subdivision 131-A - Releasing money from superannuation
History
Subdiv 131-A inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
Guide to Subdivision 131-A
SECTION 131-1
WHAT THIS SUBDIVISION IS ABOUT
You may request the Commissioner to require the release of an amount from your superannuation interests if you are given:
(a) an excess concessional contributions determination or excess non-concessional contributions determination; or
(b) a notice of assessment of an amount of Division 293 tax; or
(c) a first home super saver determination.
The Commissioner may also require the release of an amount from your superannuation interests in related circumstances.
Superannuation providers must usually pay the amount required to be released. However, for defined benefit superannuation interests the provider may choose whether or not to pay.
Released amounts are paid to the Commissioner. You get a credit for the released amount. Surplus credits are refunded to you under Division 3A of Part IIB.
History
S 131-1 amended by No 132 of 2017, s 3 and Sch 1 item 2, by substituting para (b) and (c) for para (b), effective 1 July 2018. Para (b) formerly read:
(b) a notice of assessment of an amount of Division 293 tax.
S 131-1 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Requesting a release authority
|
| 131-5 |
Requesting the release of amounts from superannuation interests |
| 131-10 |
Restrictions on the total amount you can request to be released |
| 131-12 |
Withdrawing or amending your request for a release authority relating to an FHSS determination |
|
Issuing a release authority to superannuation provider
|
| 131-15 |
Issuing release authorities |
| 131-20 |
Amount to be stated in a release authority |
| 131-25 |
Contents of a release authority |
| 131-30 |
Varying or revoking a release authority |
|
Complying with a release authority
|
| 131-35 |
Obligations of superannuation providers |
| 131-40 |
Voluntary compliance with a release authority relating to defined benefit interests |
| 131-45 |
Meaning of maximum available release amount |
| 131-50 |
Notifying Commissioner |
| 131-55 |
Notifying you |
| 131-60 |
Compensation for acquisition of property |
|
Consequences of releasing amounts
|
| 131-65 |
Entitlement to credits |
| 131-70 |
Interest for late payments of money received by the Commissioner in accordance with release authority |
| 131-75 |
Income tax treatment of amounts released - proportioning rule does not apply |
|
Repayments if your entitlement to a credit ceases for a release authority relating to an FHSS determination
|
| 131-80 |
Repayments if your entitlement to a credit ceases for a release authority relating to an FHSS determination |
Requesting a release authority
SECTION 131-5
REQUESTING THE RELEASE OF AMOUNTS FROM SUPERANNUATION INTERESTS
131-5(1)
You may make a request under this section for a *financial year if you are given any of the following:
(a)
an *excess concessional contributions determination for the financial year;
(b)
an *excess non-concessional contributions determination for the financial year;
(c)
a notice of assessment of an amount of *Division 293 tax payable for the income year that corresponds to the financial year;
(d)
a *first home super saver determination.
History
S 131-5(1) amended by No 132 of 2017, s 3 and Sch 1 item 3, by inserting para (d), effective 1 July 2018.
131-5(2)
You make the request by:
(a)
notifying the Commissioner of the total amount to be released; and
(b)
identifying your *superannuation interest or interests from which that total amount is to be released; and
(c)
if you identify more than one superannuation interest - stating the amount to be released from each such interest.
131-5(3)
The request must:
(a)
ensure that the total amount to be released for the determination or assessment complies with section 131-10; and
(b)
be in the *approved form; and
(c)
be given to the Commissioner within:
(i)
60 days after the Commissioner issues the determination or notice referred to in subsection (1); or
(ii)
a further period allowed by the Commissioner.
Unsuccessful requests - making a further request
131-5(4)
If:
(a)
you make a valid request under this section; and
(b)
the Commissioner gives you a notice under subsection 131-55(1) stating an amount (the
unreleased amount
) that a *superannuation provider did not pay in relation to a release authority issued for that request;
you may make a further request to release the unreleased amount from another of your *superannuation interests.
131-5(5)
The further request must comply with subsection (2) and paragraphs (3)(a) and (b), and must be given to the Commissioner within:
(a)
60 days after the Commissioner issues the notice mentioned in paragraph (4)(b); or
(b)
a further period allowed by the Commissioner.
Most requests are irrevocable
131-5(6)
Subject to section 131-12 (about requests relating to FHSS determinations), a request under this section is irrevocable.
History
S 131-5(6) substituted by No 75 of 2023, s 3 and Sch 4 item 14, effective 15 September 2024. For application and transitional provisions, see note under s 131-30. S 131-5(6) formerly read:
Request is irrevocable
131-5(6)
A request under this section is irrevocable.
History
S 131-5 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
SECTION 131-10
RESTRICTIONS ON THE TOTAL AMOUNT YOU CAN REQUEST TO BE RELEASED
131-10(1)
The total amount you can request to be released complies with this section if that amount:
(a)
if item 1, 3 or 4 of the following table applies- does not exceed the relevant amount referred to in that item; or
(b)
if item 2 of the following table applies - is nil or equals the relevant amount referred to in that item.
|
Amount you can request to be released
|
|
Item
|
If the request relates to this kind of determination or assessment (see subsection 131-5(1)):
|
The relevant amount is:
|
| 1 |
an *excess concessional contributions determination |
85% of the contributions stated in that determination |
| 2 |
an *excess non-concessional contributions determination |
the *total release amount stated in that determination |
| 3 |
an assessment of an amount of *Division 293 tax |
that amount of Division 293 tax |
| 4 |
a *first home super saver determination |
the *FHSS maximum release amount stated in that determination |
History
S 131-10(1) amended by No 132 of 2017, s 3 and Sch 1 items 4 and 5, by substituting "item 1, 3 or 4" for "item 1 or 3" in para (a) and inserting table item 4, effective 1 July 2018.
131-10(2)
However, for an amended determination or assessment, reduce the relevant amount referred to in the above table by any amount released under this Subdivision for an earlier determination or assessment of that kind that you are given for the *financial year or corresponding income year.
131-10(3)
An amendment of a determination or assessment does not affect the validity of a request you make under section 131-5 before you are given the amended determination or the notice of the amended assessment.
History
S 131-10 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
SECTION 131-12
WITHDRAWING OR AMENDING YOUR REQUEST FOR A RELEASE AUTHORITY RELATING TO AN FHSS DETERMINATION
131-12(1)
You may, by notifying the Commissioner in the *approved form, withdraw or amend your valid request made under section 131-5 if:
(a)
your request relates to a *first home super saver determination given to you; and
(b)
in the case of amending your request - you satisfy paragraphs 138-10(2)(a) and (b); and
(c)
the Commissioner has not already issued a release authority in relation to your request.
131-12(2)
Your amended request is treated as a valid request under section 131-5 if it complies with subsection 131-5(2) and paragraphs 131-5(3)(a) and (c).
131-12(3)
Withdrawing your request does not prevent you from making a later request under section 131-5 in relation to the *first home super saver determination.
History
S 131-12 inserted by No 75 of 2023, s 3 and Sch 4 item 15, effective 15 September 2024. For application and transitional provisions, see note under s 131-30.
Issuing a release authority to superannuation provider
SECTION 131-15
ISSUING RELEASE AUTHORITIES
Issuing in response to a valid request
131-15(1)
If you make a valid request under section 131-5, the Commissioner must issue a release authority to each *superannuation provider that holds a *superannuation interest identified in the request.
Issuing if you do not make a valid request in response to an excess non-concessional contributions determination etc.
131-15(2)
If:
(a)
on a particular day, the Commissioner issues you with:
(i)
an *excess non-concessional contributions determination for a *financial year; or
(ii)
a notice to which paragraph 131-5(4)(b) applies for such a determination; and
(b)
within 60 days after that day, you do not make a valid request under section 131-5 for that determination;
the Commissioner may issue a release authority to one or more *superannuation providers that hold *superannuation interests for you.
Issuing if you are liable to pay excess non-concessional contributions tax
131-15(3)
If you are given a notice of an *excess non-concessional contributions tax assessment for a *financial year, the Commissioner may issue a release authority to one or more *superannuation providers that hold *superannuation interests for you.
Issuing if you have an unpaid amount of assessed Division 293 tax that is not deferred to a debt account
131-15(4)
If:
(a)
for an income year, you are given a notice of assessment of an amount of *Division 293 tax that is not *deferred to a debt account for a *superannuation interest; and
(b)
on the 60th day after the day the Commissioner issues that notice, the sum of the following falls short of that amount of tax:
(i)
any payments of that tax for the income year that you have already made;
(ii)
any amounts that have already been released under this Subdivision for that assessment;
the Commissioner may issue a release authority to one or more *superannuation providers that hold superannuation interests for you.
History
S 131-15 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
SECTION 131-20
AMOUNT TO BE STATED IN A RELEASE AUTHORITY
131-20(1)
The amount to be released from one or more *superannuation interests under a release authority issued under section 131-15 must be:
(a)
for a release authority issued under subsection 131-15(1) - the amount stated in the request; or
(b)
otherwise - worked out so that the total amount stated for all release authorities for the applicable determination or assessment does not exceed:
(i)
for a release authority issued under subsection 131-15(2) - the *total release amount stated in the determination referred to in that subsection; or
(ii)
for a release authority issued under subsection 131-15(3) or (4) - the amount of tax stated in the assessment referred to in that subsection.
131-20(2)
For the purposes of paragraph (1)(b), disregard an amount stated in another release authority to the extent that a notice given under subsection 131-50(2) states that the amount will not be paid.
History
S 131-20 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
SECTION 131-25
131-25
CONTENTS OF A RELEASE AUTHORITY
Each release authority issued under section 131-15 must:
(a)
be issued to a single *superannuation provider; and
(b)
state the amount to be released from each *superannuation interest under the release authority; and
(c)
be dated; and
(d)
contain any other information that the Commissioner considers relevant.
History
S 131-25 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
SECTION 131-30
VARYING OR REVOKING A RELEASE AUTHORITY
Release authority not relating to an FHSS determination
131-30(1)
The Commissioner may decide to vary or revoke a release authority issued:
(a)
under section 131-15; and
(b)
in relation to a determination, or assessment, mentioned in paragraph 131-5(1)(a), (b) or (c) and given to you;
at any time before the Commissioner is given a notice under section 131-50 relating to the release authority.
Release authority relating to an FHSS determination
131-30(2)
For a release authority issued under section 131-15 in relation to a *first home super saver determination given to you, the Commissioner may decide to:
(a)
vary the release authority if:
(i)
the varied release authority would be consistent with paragraph 131-5(3)(a); and
(ii)
you satisfy paragraphs 138-10(2)(a) and (b); or
(b)
revoke the release authority;
at any time before the Commissioner begins treating, under Division 3 of Part IIB, any credit to which you have become entitled under section 131-65 in relation to the release authority.
131-30(3)
The Commissioner may make a decision under subsection (2):
(a)
on the Commissioner's own initiative; or
(b)
on application by you to the Commissioner in the *approved form.
131-30(4)
If a release authority is varied or revoked under subsection (2) at a particular time, then any entitlement under section 131-65 you had to a credit relating to the release authority ceases at that time.
131-30(5)
The revocation of a release authority under subsection (2) does not prevent you from making a later request under section 131-5 in relation to the same *first home super saver determination.
Reissuing varied release authorities
131-30(6)
If the Commissioner varies a release authority under this section at a particular time, then:
(a)
at that time, the release authority (as issued before the variation) ceases to be in force; and
(b)
the Commissioner must reissue the release authority (as varied) under section 131-15.
Review
131-30(7)
If you are dissatisfied with a decision under subsection (2) by the Commissioner in relation to you:
(a)
to vary or revoke a release authority; or
(b)
not to vary or revoke a release authority;
you may object against it in the manner set out in Part IVC of this Act.
History
S 131-30 substituted by No 75 of 2023, s 3 and Sch 4 item 16, effective 15 September 2024. No 75 of 2023, s 3 and Sch 4 items 28-30 contain the following application and transitional provisions:
28 Application of amendments etc.
(1)
The amendments made by this Schedule apply in relation to first home super saver determinations made, or to be made, on or after 1 July 2018.
(2)
However, the amendments made by this Schedule of the following provisions apply in relation to first home super saver determinations made, or to be made, on or after the commencement of this Schedule:
(a)
paragraph 138-10(2)(a) in Schedule 1 to the Taxation Administration Act 1953;
(b)
subsection 313-40(2) of the Income Tax Assessment Act 1997.
(3)
Subitem (4) applies for the purposes of subsection 313-35(1) of the Income Tax Assessment Act 1997, if the first home super saver determination mentioned in paragraph (a) of that subsection is made before the commencement of this Schedule.
(4)
Treat the reference in subparagraph 313-35(1)(c)(i) of that Act (as inserted by this Schedule) to "90 days" as instead being a reference to "14 days".
29 Transitional - variations or revocations of release authorities before commencement
29
A variation of a release authority, or a revocation of a release authority, as the result of a decision made:
(a)
under section 131-30 in Schedule 1 to the Taxation Administration Act 1953; and
(b)
before the commencement of this Schedule;
continues in force (and may be dealt with) on or after that commencement as if that decision had been made under subsection 131-30(1) in that Schedule (as amended by this Schedule).
30 Transitional - assisting individuals who have unsuccessfully attempted to obtain FHSS released amounts
(1)
This item applies if:
(a)
a first home super saver determination (the
original determination
) was made in relation to you during the period:
(i)
starting on 1 July 2018; and
(ii)
ending immediately before the commencement of this Schedule; and
(b)
after the original determination was made, you begin holding an interest that:
(i)
relates to real property or land; and
(ii)
is an interest of a kind mentioned in paragraph 138-10(2)(a) in Schedule 1 to the Taxation Administration Act 1953 (as amended by this Schedule); and
(c)
during the 3-year period starting at the commencement of this Schedule, you take one or more of the following actions:
(i)
apply, under subsection 138-13(2) in Schedule 1 to the Taxation Administration Act 1953, to amend the original determination;
(ii)
amend, under subsection 131-12(1) in that Schedule, your valid request relating to the original determination;
(iii)
apply, under subsection 131-30(3) in that Schedule, to vary a release authority issued in relation to the original determination; and
(d)
when you take such an action, the Commissioner has not begun treating, under Division 3 of Part IIB of the Taxation Administration Act 1953, any credit to which you have become entitled:
(i)
under section 131-65 in Schedule 1 to that Act; and
(ii)
in relation to a release authority relating to any first home super saver determination made in relation to you.
(2)
For the purposes of an action covered by paragraph (1)(c), each of the following provisions in Schedule 1 to the Taxation Administration Act 1953:
(a)
paragraph 138-13(1)(a);
(b)
paragraph 131-12(1)(b);
(c)
subparagraph 131-30(2)(a)(ii);
applies to you as if you satisfy paragraph 138-10(2)(a) in that Schedule.
Note:
This means the fact that you now hold that interest relating to real property or land does not prevent you from seeking to:
(a) amend the original determination; or
(b) amend your valid request for a release authority relating to the original determination; or
(c) vary a release authority issued in relation to the original determination.
(3)
However, any amendment of the original determination as a result of this item:
(a)
must not state an FHSS maximum release amount that exceeds what that amount could have been at the time the original determination was made; and
(b)
must reflect the limits that were in paragraphs
138-35(1)(a) and
(b) in Schedule
1 to the
Taxation Administration Act 1953 at the time the original determination was made.
(4)
Subdivisions
313-C to
313-E of the
Income Tax Assessment Act 1997 do not apply to you in circumstances relating to, or resulting from, (whether directly or indirectly) an action covered by paragraph (1)(c) of this item.
S 131-30 formerly read:
SECTION 131-30 VARYING AND REVOKING A RELEASE AUTHORITY
131-30
The Commissioner may vary or revoke a release authority issued under section 131-15 at any time before the Commissioner is given a notice under section 131-50 relating to the release authority.
S 131-30 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
Complying with a release authority
SECTION 131-35
OBLIGATIONS OF SUPERANNUATION PROVIDERS
131-35(1)
A *superannuation provider issued with a release authority under section 131-15 must, within 10 *business days after the release authority is issued (or a further period allowed by the Commissioner), pay to the Commissioner the lesser of:
(a)
the amount stated in the release authority; and
(b)
the sum of the *maximum available release amounts for each *superannuation interest held by the superannuation provider for you in *superannuation plans.
Note 1:
Subsection 288-95(3) provides for an administrative penalty for failing to comply with this section.
Note 2:
For the taxation treatment of the payment, see section 131-75.
Exception - defined benefit interests not subject to compulsory release
131-35(2)
However, the *maximum available release amount for a *superannuation interest is not to be included in the sum worked out under paragraph (1)(b) if the interest is a *defined benefit interest.
History
S 131-35 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
SECTION 131-40
VOLUNTARY COMPLIANCE WITH A RELEASE AUTHORITY RELATING TO DEFINED BENEFIT INTERESTS
131-40(1)
A *superannuation provider issued with a release authority under section 131-15 may, within 10 *business days after the release authority is issued (or a further period allowed by the Commissioner), pay to the Commissioner the lesser of:
(a)
the amount stated in the release authority; and
(b)
the sum of the *maximum available release amounts for each *defined benefit interest held by the superannuation provider for you in *superannuation plans.
131-40(2)
For the purposes of paragraph (1)(a), reduce the amount mentioned in that paragraph by any amount the provider pays under section 131-35 in relation to the release authority.
History
S 131-40 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
SECTION 131-45
131-45
MEANING OF MAXIMUM AVAILABLE RELEASE AMOUNT
The
maximum available release amount
for a *superannuation interest at a particular time is the total amount of all the *superannuation lump sums that could be payable from the interest at that time.
History
S 131-45 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
SECTION 131-50
NOTIFYING COMMISSIONER
131-50(1)
A *superannuation provider issued with a release authority under section 131-15 must notify the Commissioner of a payment made in accordance with this Subdivision.
131-50(2)
A *superannuation provider that:
(a)
has been issued with a release authority under section 131-15; and
(b)
is not required to pay an amount under section 131-35, or is required under that section to pay an amount less than the amount stated in the release authority;
must notify the Commissioner that the provider is not required to comply with the release authority.
131-50(3)
A notice under this section must be given in the *approved form within the period applying under subsection 131-35(1) or 131-40(1) for the release authority.
Note:
Subsection 286-75(1) provides for an administrative penalty for failing to comply with this section.
History
S 131-50 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
SECTION 131-55
NOTIFYING YOU
131-55(1)
The Commissioner must notify you if, in relation to a release authority issued under section 131-15 in relation to you, the Commissioner:
(a)
is given a notice from a *superannuation provider under section 131-50; or
(b)
does not receive a payment from a superannuation provider of the full amount stated in the release authority within the time mentioned in subsection 131-35(1) or 131-40(1).
131-55(2)
A notice under subsection (1) must:
(a)
be in writing; and
(b)
identify the *superannuation provider; and
(c)
state how much of the amount stated in the release authority was not paid within the applicable time.
History
S 131-55 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
SECTION 131-60
COMPENSATION FOR ACQUISITION OF PROPERTY
131-60(1)
If the operation of section 131-35 would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from an entity otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the entity.
131-60(2)
If the Commonwealth and the entity do not agree on the amount of the compensation, the entity may institute proceedings in:
(a)
the Federal Court of Australia; or
(b)
the Supreme Court of a State or Territory;
for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
History
S 131-60 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
Consequences of releasing amounts
SECTION 131-65
ENTITLEMENT TO CREDITS
131-65(1)
If a *superannuation provider pays an amount in relation to a release authority issued under section 131-15 in relation to you, you are entitled to a credit equal to that amount.
Note:
Division 3 of Part IIB provides for the treatment of credits that you are entitled to under a taxation law.
131-65(2)
The credit arises on the day the Commissioner receives the amount.
Exception for voluntary payments of Division 293 tax debt account
131-65(3)
However, if the amount paid in relation to the release authority relates to an amount of *assessed Division 293 tax that is *deferred to a debt account for a *superannuation interest:
(a)
subsection (1) does not apply in relation to the payment; and
(b)
treat the payment as if it were a voluntary payment under section 133-70 in relation to that debt account.
History
S 131-65 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
SECTION 131-70
INTEREST FOR LATE PAYMENTS OF MONEY RECEIVED BY THE COMMISSIONER IN ACCORDANCE WITH RELEASE AUTHORITY
131-70(1)
You are entitled to an amount of interest worked out under subsection (2) if:
(a)
the Commissioner is required under Division 3A of Part IIB to refund all or part of a credit you are entitled to under section 131-65; and
(b)
the Commissioner does not so refund all or part of that credit within 60 days after receiving the payment that gave rise to the credit.
131-70(2)
The interest is to be calculated:
(a)
on so much of the amount of the credit as the Commissioner fails to refund under that Division; and
(b)
for the period:
(i)
beginning 60 days after the day the Commissioner receives the amount; and
(ii)
ending on the day the Commissioner refunds the amount mentioned in paragraph (1)(a); and
(c)
on a daily basis; and
(d)
at the *base interest rate for the day the interest is calculated.
History
S 131-70 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
SECTION 131-75
131-75
INCOME TAX TREATMENT OF AMOUNTS RELEASED - PROPORTIONING RULE DOES NOT APPLY
Section 307-125 of the Income Tax Assessment Act 1997 (the proportioning rule) does not apply to a payment made as required or permitted under this Subdivision.
Note:
The income tax treatment of released amounts is also affected by Subdivision 292-B, and section 303-15, of that Act.
History
S 131-75 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. For application provision, see note under Div 131 heading.
Repayments if your entitlement to a credit ceases for a release authority relating to an FHSS determination
SECTION 131-80
REPAYMENTS IF YOUR ENTITLEMENT TO A CREDIT CEASES FOR A RELEASE AUTHORITY RELATING TO AN FHSS DETERMINATION
Repaying the superannuation provider if it still holds a superannuation interest for you
131-80(1)
If:
(a)
a *superannuation provider pays an amount (the
released amount
) to the Commissioner under section 131-35 or 131-40 in relation to you; and
(b)
your entitlement under section 131-65 to a credit relating to the released amount ceases under subsection 131-30(4) or 138-13(3); and
(c)
the Commissioner reasonably believes that the provider still holds a *superannuation interest for you; and
(d)
the Commissioner reasonably believes that, were the released amount to be repaid to the provider, the provider:
(i)
could allocate the repayment (the
repaid amount
) to that superannuation interest; and
(ii)
could later pay an amount equal to the repaid amount in response to a release authority issued under this Division in relation to a later *first home super saver determination given to you;
the Commissioner must repay the released amount to the provider.
131-80(2)
The Commissioner must make the repayment within 30 *business days after the day the Commissioner starts holding the reasonable belief necessary to satisfy both paragraphs (1)(c) and (d).
What happens if the original provider cannot be repaid
131-80(3)
However, if the Commissioner cannot repay the released amount under subsection (1), the Commissioner must only pay an equivalent amount to the released amount if an item of the following table applies.
|
When the Commissioner must pay the equivalent amount
|
|
Item
|
If the Commissioner reasonably believes that:
|
then the Commissioner must pay the equivalent amount to:
|
| 1 |
(a) |
another release authority has been issued under section 131-15: |
the other *superannuation provider. |
| |
|
(i) |
to another *superannuation provider in relation to you; and |
|
| |
|
(ii) |
in relation to a *first home super saver determination (an
FHSS determination
) given to you; and |
|
| |
(b) |
the other provider still holds a *superannuation interest for you; and |
|
| |
(c) |
were the equivalent amount to be paid to the other provider, the other provider: |
|
| |
|
(i) |
could allocate the equivalent amount to that superannuation interest; and |
|
| |
|
(ii) |
could later pay an amount equal to the equivalent amount in response to a release authority issued under this Division in relation to a later FHSS determination given to you |
|
| 2 |
(a) |
another *superannuation provider holds a *superannuation interest for you; and |
the other *superannuation provider. |
| |
(b) |
you or your *legal personal representative has notified the Commissioner of this in the *approved form |
|
| 3 |
(a) |
you satisfy a condition of release, with a nil cashing restriction, of benefits specified in a standard referred to in paragraph 31(2)(h) of the Superannuation Industry (Supervision) Act 1993; and |
you or your *legal personal representative (as applicable). |
| |
(b) |
you or your *legal personal representative has notified the Commissioner of this in the *approved form |
|
131-80(4)
The Commissioner must pay the equivalent amount:
(a)
in accordance with the item of the table that is the first to so apply; and
(b)
within 30 *business days after the day that item starts to so apply.
History
S 131-80 inserted by No 75 of 2023, s 3 and Sch 4 item 17, effective 15 September 2024. For application and transitional provisions, see note under s 131-30.
Division 133 - Division 293 tax
History
Div 133 heading substituted by No 81 of 2016, s 3 and Sch 1 item 14, effective 1 January 2017 and applicable on and after 1 July 2017. The heading formerly read:
Division 133 - Deferred payment
Div 133 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
Guide to Division 133
SECTION 133-1
WHAT THIS DIVISION IS ABOUT
Payment of Division 293 tax is deferred to the extent to which the tax is attributable to defined benefit interests from which no superannuation benefit has yet become payable.
This reflects the fact that money generally cannot be released from defined benefit interests until a superannuation benefit is paid, usually upon retirement.
History
S 133-1 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
Subdivision 133-A - Deferral determination
History
Subdiv 133-A inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
Guide to Subdivision 133-A
SECTION 133-5
WHAT THIS SUBDIVISION IS ABOUT
The Commissioner determines the amount of your tax that is deferred to a debt account by working out the extent to which your assessed tax is attributable to defined benefit interests.
History
S 133-5 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 133-10 |
Determination of tax that is
deferred to a debt account
|
| 133-15 |
Defined benefit tax
|
| 133-20 |
How to attribute the defined benefit tax to defined benefit interests |
| 133-25 |
Determination reducing tax deferred to a debt account |
| 133-30 |
General provisions applying to determinations under this Subdivision |
Operative provisions
SECTION 133-10
DETERMINATION OF TAX THAT IS
DEFERRED TO A DEBT ACCOUNT
133-10(1)
The Commissioner must make a determination specifying the amount the Commissioner has ascertained as being the extent to which your *assessed Division 293 tax for an income year is *defined benefit tax attributable to a *superannuation interest.
Note 1:
For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
Note 2:
For general provisions, including review, see section 133-30.
133-10(2)
The amount of *assessed Division 293 tax specified in the determination is
deferred to a debt account
for the *superannuation interest.
133-10(3)
However, the Commissioner must not make a determination under this section in relation to a *superannuation interest if, at the time the determination is to be made, the *end benefit for the superannuation interest has become payable.
History
S 133-10(3) substituted by No 81 of 2016, s 3 and Sch 10 item 55, effective 1 January 2017 and applicable in relation to superannuation interests from which the end benefit becomes payable on or after 1 July 2017. S 133-10(3) formerly read:
133-10(3)
However, the Commissioner must not make a determination under this section in relation to a *superannuation interest if, at the time the determination is to be made:
(a)
the *end benefit for the superannuation interest has become payable; or
(b)
a notice under section 133-125 has been made in relation to the superannuation interest.
Note:
For the meaning of
end benefit
, see section 133-130.
133-10(4)
Subsection (1) does not apply if the Commissioner ascertains that no part of your *assessed Division 293 tax for an income year is *defined benefit tax attributable to a *superannuation interest.
History
S 133-10 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 133-15
DEFINED BENEFIT TAX
133-15(1)
Your
defined benefit tax
for an income year is the amount worked out using the formula:
| *Division 293 tax for the income year |
× |
Defined benefit contribution component
*Taxable contributions for the income year |
where:
defined benefit contribution component
means the amount worked out as follows:
(a)
work out the lesser of the following for the corresponding *financial year:
(i)
your *low tax contributions;
(ii)
the total amount of your *defined benefit contributions in respect of all *defined benefit interests you have in the financial year;
(b)
subtract from the result of paragraph (a) the difference (if any) between:
(i)
your *taxable contributions for the income year; and
(ii)
your low tax contributions for the corresponding financial year.
Note:
A difference may exist for paragraph (b) because of the $250,000 high income threshold: see subsection 293-20(1) of the Income Tax Assessment Act 1997.
History
S 133-15(1) amended by No 81 of 2016, s 3 and Sch 2 item 19, by substituting "$250,000" for "$300,000" in the note, effective 1 January 2017 and applicable in relation to the 2017-18 income year and later income years.
Exception - defined benefit contribution component is nil or less
133-15(2)
However, if the defined benefit contribution component mentioned in subsection (1) is nil, or a negative amount, no part of the *Division 293 tax for the income year is
defined benefit tax
.
History
S 133-15 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 133-20
HOW TO ATTRIBUTE THE DEFINED BENEFIT TAX TO DEFINED BENEFIT INTERESTS
133-20(1)
If you have one *defined benefit interest in a *financial year, your *defined benefit tax for the corresponding income year is attributable to that interest.
133-20(2)
If you have more than one *defined benefit interest in a *financial year, your *defined benefit tax for the corresponding income year is attributable to each such interest in proportion to the *defined benefit contributions for the interest for the financial year.
History
S 133-20 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 133-25
DETERMINATION REDUCING TAX DEFERRED TO A DEBT ACCOUNT
133-25(1)
If an amount of *assessed Division 293 tax that is *deferred to a debt account for a *superannuation interest is reduced as a result of an amended assessment, the Commissioner must make a determination under this section in respect of the reduced amount.
133-25(2)
The amount so determined is a
deferral reversal
for the *superannuation interest.
Note:
For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
History
S 133-25 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 133-30
GENERAL PROVISIONS APPLYING TO DETERMINATIONS UNDER THIS SUBDIVISION
133-30(1)
The Commissioner must:
(a)
make a determination as soon as practicable after:
(i)
for a determination under section 133-10 - assessing the amount (whether by way of a first assessment or an amended assessment); or
(ii)
for a determination under section 133-25 - amending the assessment; and
(b)
give you notice in writing of the determination as soon as practicable after making it.
133-30(2)
(Repealed by No 81 of 2016)
History
S 133-30(2) repealed by No 81 of 2016, s 3 and Sch 10 item 91, effective 1 January 2017 and applicable to documents (however described) that the Commissioner gives on or after 1 July 2017 under taxation laws. S 133-30(2) formerly read:
133-30(2)
The Commissioner:
(a)
may include 2 or more determinations under this Subdivision in the same notice; and
(b)
may include a notice under this Subdivision in a notice of an assessment under this Act.
133-30(3)
The validity of the determination is not affected because any of the provisions of this Act have not been complied with.
Review
133-30(4)
If you are dissatisfied with a determination made under this Subdivision in relation to you, you may object against the determination in the manner set out in Part IVC.
133-30(5)
If you are dissatisfied with a decision the Commissioner makes not to make a determination under this Subdivision:
(a)
you may object against the decision in the manner set out in Part IVC; and
(b)
for the purpose of working out the period within which the objection must be lodged, notice of the decision is taken to have been served on you on the day notice is given to you of:
(i)
for a determination under section 133-10 - the assessment of the amount; or
(ii)
for a determination under section 133-25 - the amended assessment.
Note:
For the period within which objections must be lodged, see section 14ZW.
History
S 133-30 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
Subdivision 133-B - Debt account
History
Subdiv 133-B inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
Guide to Subdivision 133-B
SECTION 133-55
WHAT THIS SUBDIVISION IS ABOUT
The Commissioner keeps debt accounts for tax that is deferred to a debt account for a superannuation interest.
You can make voluntary payments of the debt account.
History
S 133-55 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 133-60 |
Debt account to be kept for deferred tax |
| 133-65 |
Interest on debt account balance |
| 133-70 |
Voluntary payments |
| 133-75 |
Commissioner must notify superannuation provider of debt account |
Operative provisions
SECTION 133-60
DEBT ACCOUNT TO BE KEPT FOR DEFERRED TAX
Accounts to be kept
133-60(1)
The Commissioner is to keep a debt account for *Division 293 tax for you for a *superannuation interest, if an amount of your *assessed Division 293 tax is *deferred to a debt account for the superannuation interest.
Account to be debited for Division 293 tax
133-60(2)
The Commissioner must debit the debt account for the amount of *assessed Division 293 tax that is *deferred to a debt account for the *superannuation interest.
History
S 133-60 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 133-65
INTEREST ON DEBT ACCOUNT BALANCE
Interest to be debited at end of financial year
133-65(1)
If a debt account for a *superannuation interest is in debit at the end of a *financial year, the Commissioner is to debit the account for interest on the amount by which the account is in debit, calculated at the *long term bond rate for that financial year.
Note:
Interest would not be debited to a debt account that is no longer being kept by the Commissioner because the assessed Division 293 tax liability being tracked in the account has been finally discharged as mentioned in subsection 133-105(3).
Remission of interest - deferral reversal
133-65(2)
The Commissioner may remit the whole or any part of an amount of interest debited, or to be debited, from a debt account under subsection (1) if:
(a)
the debt account is credited:
(i)
under section 133-70 because of a *deferral reversal; or
(ii)
because a determination under section 133-10 is varied or revoked; and
(b)
the Commissioner is satisfied that, because of that credit, it would be fair and reasonable to do so.
Remission of interest - special circumstances
133-65(3)
The Commissioner may remit the whole or any part of an amount of interest debited, or to be debited, to a debt account under subsection (1) if the Commissioner is satisfied that, because special circumstances exist, it would be fair and reasonable to do so.
History
S 133-65 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 133-70
VOLUNTARY PAYMENTS
133-70(1)
You may make payments to the Commissioner for the purpose of reducing the amount by which a debt account for a *superannuation interest is in debit.
133-70(2)
The Commissioner is to:
(a)
acknowledge receipt of the payment to you; and
(b)
credit the payment to the debt account; and
(c)
notify you of the revised balance of the debt account.
The credit mentioned in paragraph (b) is to be made when the payment is received.
133-70(3)
The amount of a *deferral reversal for the *superannuation interest is to be treated as if it were a voluntary payment under this section in relation to the debt account for that interest. However, paragraphs (2)(a) and (c) do not apply in relation to that amount.
History
S 133-70 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 133-75
133-75
COMMISSIONER MUST NOTIFY SUPERANNUATION PROVIDER OF DEBT ACCOUNT
If the Commissioner starts to keep a debt account for *Division 293 tax for you for a *superannuation interest, the Commissioner must give the *superannuation provider in relation to the superannuation interest a notice saying so.
History
S 133-75 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
Subdivision 133-C - Compulsory payment
History
Subdiv 133-C inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
Guide to Subdivision 133-C
SECTION 133-100
WHAT THIS SUBDIVISION IS ABOUT
The deferred tax liability must be paid when a superannuation benefit becomes payable from the superannuation interest.
In some cases, the amount that must be paid is capped.
History
S 133-100 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Debt account discharge liability
|
| 133-105 |
Liability to pay debt account discharge liability |
| 133-110 |
When debt account discharge liability must be paid |
| 133-115 |
General interest charge |
| 133-120 |
Meaning of
debt account discharge liability
|
| 133-125 |
Notice of debt account discharge liability |
|
End benefit
|
| 133-130 |
Meaning of
end benefit
|
| 133-135 |
Superannuation provider may request debt account status |
| 133-140 |
End benefit notice - superannuation provider |
| 133-145 |
End benefit notice - material changes or omissions |
Debt account discharge liability
SECTION 133-105
LIABILITY TO PAY DEBT ACCOUNT DISCHARGE LIABILITY
133-105(1)
You are liable to pay the amount of your *debt account discharge liability for a *superannuation interest if the *end benefit for the interest becomes payable.
133-105(2)
The liability arises:
(a)
unless paragraph (b) applies - at the time the *end benefit becomes payable; or
(b)
if the end benefit is a *superannuation death benefit - just before you die.
Note 1:
For paragraph (a), a release authority allows money to be released from the superannuation plan to pay this amount: see subsection 135-10(1).
Note 2:
For paragraph (b), the debt will be recovered from your estate: see Subdivision 260-E.
133-105(3)
Payment of your *debt account discharge liability for a *superannuation interest discharges your liability for so much of your total *assessed Division 293 tax for all income years as is *deferred to a debt account for the superannuation interest.
History
S 133-105 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 133-110
133-110
WHEN DEBT ACCOUNT DISCHARGE LIABILITY MUST BE PAID
The amount of your *debt account dischargeliability for a *superannuation interest is due and payable at the end of 21 days after the day on which the *end benefit for the superannuation interest is paid.
History
S 133-110 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 133-115
133-115
GENERAL INTEREST CHARGE
If your *debt account discharge liability remains unpaid after the time by which it is due and payable, you are liable to pay the *general interest charge on the unpaid amount for each day in the period that:
(a)
begins on the day on which the debt account discharge liability was due to be paid; and
(b)
ends on the last day on which, at the end of the day, any of the following remains unpaid:
(i)
the debt account discharge liability;
(ii)
general interest charge on any of the debt account discharge liability.
Note:
The general interest charge is worked out under Part IIA.
History
S 133-115 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 133-120
MEANING OF DEBT ACCOUNT DISCHARGE LIABILITY
133-120(1)
The
debt account discharge liability
for a *superannuation interest for which the Commissioner keeps a debt account is the amount by which the debt account is in debit at the time the *end benefit for the superannuation interest becomes payable.
History
S 133-120(1) substituted by No 81 of 2016, s 3 and Sch 10 item 56, effective 1 January 2017 and applicable in relation to superannuation interests from which the end benefit becomes payable on or after 1 July 2017. S 133-120(1) formerly read:
133-120(1)
The
debt account discharge liability
for a *superannuation interest for which the Commissioner keeps a debt account is the lesser of:
(a)
the amount by which the debt account is in debit at the earlier of:
(i)
the time the *end benefit for the superannuation interest becomespayable; and
(ii)
the time a notice under section 133-125 is made; and
(b)
the end benefit cap specified in a notice given to the Commissioner by the *superannuation provider under subsection (2) or section 133-140 (as the case requires).
133-120(1A)
However, if the end benefit cap for the *superannuation interest stated in a notice given to the Commissioner under subsection (2) of this section or section 133-140 is less than the amount mentioned in subsection (1) of this section, the
debt account discharge liability
for the superannuation interest is an amount equal to the end benefit cap.
History
S 133-120(1A) inserted by No 81 of 2016, s 3 and Sch 10 item 56, effective 1 January 2017 and applicable in relation to superannuation interests from which the end benefit becomes payable on or after 1 July 2017.
133-120(2)
If requested by the Commissioner, the *superannuation provider in relation to a *superannuation interest must give the Commissioner notice of the amount (the
end benefit cap
) that is 15% of the employer-financed component of any part of the *value of the superannuation interest that accrued after 1 July 2012.
Note:
If a person is dissatisfied with a notice given to the Commissioner under this subsection, the person may make a complaint under the AFCA scheme (within the meaning of the Corporations Act 2001).
History
S 133-120(2) amended by No 76 of 2023, s 3 and Sch 2 item 728, by omitting "Chapter 7 of" before "the Corporations Act 2001" from the note, effective 20 October 2023.
S 133-120(2) amended by No 13 of 2018, s 3 and Sch 1 item 54, by substituting the note, effective 6 March 2018. No 13 of 2018, s 3 and Sch 1 item 58 contains the following application provision:
58 Application of amendments
(1)
The amendments made apply on and after the day that is:
(a)
the day specified under subitem (2); or
(b)
if no such day is specified - the day that is 12 months after the day (the
Part 3 application day
) on and after which the amendments made by Part 3 apply.
Note:
For the application of the amendments made by Part 3: see item 44.
(2)
The Minister may, by notifiable instrument, specify a day for the purposes of paragraph (1)(a). The day must not be:
(a)
earlier than the Part 3 application day; or
(b)
later than 12 months after the Part 3 application day.
(3)
If the day specified under subitem (2) is the Part 3 application day, the amendments made apply on and from the time immediately after the start of the Part 3 application day.
The note formerly read:
Note:
If a person is dissatisfied with a notice given to the Commissioner under this subsection, the person may make a complaint:
(a) under the AFCA scheme (within the meaning of Chapter 7 of the Corporations Act 2001), but not before the authorisation of the scheme comes into force; or
(b) under section 15CA of the Superannuation (Resolution of Complaints) Act 1993, but not on or after the day on or after which complaints cannot be made because of section 14AB of that Act.
S 133-120(2) amended by No 13 of 2018, s 3 and Sch 1 item 26, by substituting the note, effective 6 March 2018 and applicable on and after the day on which the first authorisation of an external dispute resolution scheme, under Part 7.10A of the Corporations Act 2001, comes into force. The note formerly read:
Note:
A person may make a complaint to the Superannuation Complaints Tribunal under section 15CA of the Superannuation (Resolution of Complaints) Act 1993 if the person is dissatisfied with notice given to the Commissioner under this subsection.
133-120(3)
For the purposes of subsection (2), the *value of the *superannuation interest is to be worked out at the end of the *financial year before the financial year in which the *end benefit becomes payable.
133-120(4)
A notice under subsection (2) must be given:
(a)
in the *approved form; and
(b)
within 14 days of the Commissioner making the request.
History
S 133-120 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 133-125
NOTICE OF DEBT ACCOUNT DISCHARGE LIABILITY
133-125(1)
The Commissioner must give you a notice under this section if the *end benefit becomes payable from a *superannuation interest for which the Commissioner keeps a debt account.
History
S 133-125(1) substituted by No 81 of 2016, s 3 and Sch 10 item 57, effective 1 January 2017 and applicable in relation to superannuation interests from which the end benefit becomes payable on or after 1 July 2017. S 133-125(1) formerly read:
133-125(1)
The Commissioner must give you a notice under this section if:
(a)
the *end benefit becomes payable from a *superannuation interest for which the Commissioner keeps a debt account; or
(b)
the Commissioner receives a notice from you under section 133-135 in relation to such a superannuation interest.
133-125(2)
The notice must state that you are liable to pay your *debt account discharge liability for the *superannuation interest and specify:
(a)
the amount of that debt; and
(b)
the day on which that debt is due and payable; and
(c)
whether the amount of that debt is:
(i)
the amount by which the debt account is in debit as mentioned in subsection 133-120(1); or
(ii)
the end benefit cap mentioned in subsection 133-120(1A).
History
S 133-125(2) amended by No 81 of 2016, s 3 and Sch 10 items 58 and 59, by substituting "subsection 133-120(1)" for "paragraph 133-120(1)(a)" in para (c)(i) and "subsection 133-120(1A)" for "paragraph 133-120(1)(b)" in para (c)(ii), effective 1 January 2017 and applicable in relation to superannuation interests from which the end benefit becomes payable on or after 1 July 2017.
133-125(3)
If you are dissatisfied with a notice given under this section in relation to you, you may object against it in the manner set out in Part IVC of this Act.
133-125(4)
However, you cannot object against a notice stating that the amount you are liable to pay is the amount by which the debt account is in debit, unless you are seeking to be liable to pay the end benefit cap specified in a notice given to the Commissioner by the *superannuation provider under subsection (2) or section 133-140 (as the case requires).
History
S 133-125 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
End benefit
SECTION 133-130
MEANING OF END BENEFIT
133-130(1)
A *superannuation benefit is the
end benefit
for a *superannuation interest if it is the first superannuation benefit to become payable from the interest, disregarding a benefit that is any of the following:
(a)
a *roll-over superannuation benefit paid to a *complying superannuation plan that is a *successor fund;
(b)
a benefit that becomes payable under the condition of release specified in item 105 of the table in Schedule 1 to the Superannuation Industry (Supervision) Regulations 1994 (about severe financial hardship);
(c)
a benefit that becomes payable under the condition of release specified in item 107 of that table (about compassionate ground);
(d)
a benefit specified in an instrument under subsection (2).
133-130(2)
The Minister may, by legislative instrument, specify a *superannuation benefit for the purposes of paragraph (1)(d).
[
CCH Note:
Legislative Instrument F2013L02050, effective from 1 July 2012, provides that, for subsection 133-130(2), the superannuation benefits specified in the following table are excluded from being an end benefit for the purposes of the taxation law.
|
Table of superannuation benefits that are not end benefits
|
|
Item
|
A superannuation benefit that is a:
|
| 1 |
Family law superannuation payment.] |
133-130(3)
(Repealed by No 127 of 2021)
History
S 133-130(3) repealed by No 127 of 2021, s 3 and Sch 3 item 43, effective 1 January 2022. S 133-130(3) formerly read:
133-130(3)
Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply in relation to an instrument made under subsection (2).
S 133-130(3) substituted by No 126 of 2015, s 3 and Sch 1 item 602, effective 5 March 2016. S 133-130(3) formerly read:
133-130(3)
Despite subsection 12(2) of the Legislative Instruments Act 2003, a legislative instrument made under subsection (2) may be expressed to take effect from any time on or after 1 July 2012.
133-130(4)
(Repealed by No 127 of 2021)
History
S 133-130(4) repealed by No 127 of 2021, s 3 and Sch 3 item 43, effective 1 January 2022. S 133-130(4) formerly read:
133-130(4)
Despite subsection 12(1A) (retrospective commencement of legislative instruments) of the Legislation Act 2003, an instrument made under subsection (2) of this section must not commence before 1 July 2012.
S 133-130(4) amended by No 78 of 2018, s 3 and Sch 2 item 18, by substituting "12(1A)" for "12(3)", effective 25 August 2018.
S 133-130(4) inserted by No 126 of 2015, s 3 and Sch 1 item 602, effective 5 March 2016.
History
S 133-130 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 133-135
SUPERANNUATION PROVIDER MAY REQUEST DEBT ACCOUNT STATUS
133-135(1)
If:
(a)
a *superannuation provider has been given a notice under section 133-75 saying that the Commissioner has started to keep a debt account for a *superannuation interest; and
(b)
the superannuation provider receives a request to pay the *end benefit from the superannuation interest or the end benefit becomes payable from the superannuation interest;
the superannuation provider may, in the *approved form, request the Commissioner to advise as to the status of the debt account.
133-135(2)
If the Commissioner receives a request, the Commissioner must advise the *superannuation provider as soon as practicable whether or not the debt account is in debit.
History
S 133-135 substituted by No 81 of 2016, s 3 and Sch 10 item 60, effective 1 January 2017 and applicable in relation to superannuation interests from which the end benefit becomes payable on or after 1 July 2017. S 133-135 formerly read:
SECTION 133-135 END BENEFIT NOTICE - INDIVIDUAL
133-135(1)
If an individual requests a *superannuation provider to pay the *end benefit from a *superannuation interest for which the Commissioner keeps a debt account, the individual must notify the Commissioner of the request.
133-135(2)
The notice must be given within 21 days after making the request.
133-135(3)
A notice under this section must be given in the *approved form.
S 133-135 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 133-140
END BENEFIT NOTICE - SUPERANNUATION PROVIDER
133-140(1)
If the *end benefit becomes payable from a *superannuation interest for which the Commissioner keeps a debt account, the *superannuation provider in relation to the interest must give the Commissioner a notice stating:
(a)
unless subsection (1A) applies - the amount of the end benefit cap mentioned in subsection 133-120(2) for the superannuation interest; and
(b)
the expected date of payment of the benefit.
Note:
If a person is dissatisfied with a notice given to the Commissioner under this subsection, the person may make a complaint under the AFCA scheme (within the meaning of the Corporations Act 2001).
History
S 133-140(1) amended by No 76 of 2023, s 3 and Sch 2 item 729, by omitting "Chapter 7 of" before "the Corporations Act 2001" from the note, effective 20 October 2023.
S 133-140(1) amended by No 13 of 2018, s 3 and Sch 1 item 55, by substituting the note, effective 6 March 2018. For application provision, see note under s 133-120(2). The note formerly read:
Note:
If a person is dissatisfied with a notice given to the Commissioner under this subsection, the person may make a complaint:
(a) under the AFCA scheme (within the meaning of Chapter 7 of the Corporations Act 2001), but not before the authorisation of the scheme comes into force; or
(b) under section 15CA of the Superannuation (Resolution of Complaints) Act 1993, but not on or after the day on or after which complaints cannot be made because of section 14AB of that Act.
S 133-140(1) amended by No 13 of 2018, s 3 and Sch 1 item 27, by substituting the note, effective 6 March 2018 and applicable on and after the day on which the first authorisation of an external dispute resolution scheme, under Part 7.10A of the Corporations Act 2001, comes into force. The note formerly read:
Note:
A person may make a complaint to the Superannuation Complaints Tribunal under section 15CA of the Superannuation (Resolution of Complaints) Act 1993 if the person is dissatisfied with notice given to the Commissioner under this section.
S 133-140(1) amended by No 81 of 2016, s 3 and Sch 10 item 61, by substituting para (a), effective 1 January 2017 and applicable in relation to superannuation interests from which the end benefit becomes payable on or after 1 July 2017. Para (a) formerly read:
(a)
the amount of the end benefit cap mentioned in subsection 133-120(2) for the superannuation interest (unless the provider has already given the Commissioner notice of the end benefit cap under that subsection); and
133-140(1A)
The notice does not need to state the amount of the end benefit cap if:
(a)
the *superannuation provider has already given the Commissioner notice of the end benefit cap under subsection 133-120(2); or
(b)
before the end of the period mentioned in subsection (2), the Commissioner has advised the superannuation provider under subsection 133-135(2) that the debt account is not in debit.
History
S 133-140(1A) inserted by No 81 of 2016, s 3 and Sch 10 item 62, effective 1 January 2017 and applicable in relation to superannuation interests from which the end benefit becomes payable on or after 1 July 2017.
133-140(2)
The notice must be given within 14 days after the earlier of:
(a)
the *superannuation provider receiving a request (if any) to pay the *superannuation benefit; and
(b)
the superannuation benefit becoming payable.
133-140(3)
However, this section does not apply if the *superannuation provider has not been given a notice under section 133-75 saying that the Commissioner has started to keep a debt account for the *superannuation interest.
133-140(4)
A notice under this section must be given in the *approved form.
History
S 133-140 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 133-145
END BENEFIT NOTICE - MATERIAL CHANGES OR OMISSIONS
133-145(1)
If an entity that gives the Commissioner a notice under section 133-140 becomes aware of a material change or material omission in any information given to the Commissioner in the notice, the entity must:
(a)
tell the Commissioner of the change in the *approved form; or
(b)
give the omitted information to the Commissioner in the approved form.
History
S 133-145(1) amended by No 81 of 2016, s 3 and Sch 10 item 63, by omitting "133-135 or" before "133-140", effective 1 January 2017 and applicable in relation to superannuation interests from which the end benefit becomes payable on or after 1 July 2017.
133-145(2)
Information required by this section must be given no later than 7 days after the entity becomes aware of the change or omission.
History
S 133-145 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
Division 135 - Releasing money from superannuation
History
Div 135 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
Guide to Division 135
SECTION 135-1
WHAT THIS DIVISION IS ABOUT
This Division contains rules about release authorities, which allow money to be released from a superannuation plan to pay your debt account discharge liability.
History
S 135-1 amended by No 81 of 2016, s 3 and Sch 10 item 31, by substituting "your debt account discharge liability" for "amounts relating to the Division 293 tax", effective 1 July 2018. For application provisions, see note under Div 131 heading.
S 135-1 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
Subdivision 135-A - When the Commissioner must issue a release authority
History
Subdiv 135-A inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
Guide to Subdivision 135-A
SECTION 135-5
WHAT THIS SUBDIVISION IS ABOUT
The Commissioner must issue you with a release authority to allow money to be released from a superannuation plan to pay your debt account discharge liability.
History
S 135-5 amended by No 81 of 2016, s 3 and Sch 10 item 32, by omitting "assessed Division 293 tax that is due and payable, make voluntary payments in reduction of a debt account, or pay" after "plan to pay", effective 1 July 2018. For application provisions, see note under Div 131 heading.
S 135-5 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 135-10 |
Release authorities |
Operative provisions
SECTION 135-10
RELEASE AUTHORITIES
135-10(1)
If the condition mentioned in column 1 of an item in the following table is satisfied:
(a)
the Commissioner must issue you with a release authority under that item; and
(b)
you have a
release entitlement
:
(i)
equal to the amount mentioned in column 2 of that item; and
(ii)
arising at the time mentioned in column 3 of that item.
|
Release entitlement
|
|
Item
|
Column 1
Condition:
|
Column 2
Amount of the release entitlement:
|
Column 3
Time at which the release entitlement arises:
|
| 1-2 |
(Repealed by No 81 of 2016) |
| 3 |
You become liable to pay your *debt account discharge liability for a *superannuation interest |
The amount of your debt account discharge liability |
On the giving of the notice under section 133-125 |
Note:
A release authority issued under item 3 of the table can only be given to the superannuation provider that holds the superannuation interest to which the debt account relates: see subsection 135-40(3).
History
S 135-10(1) amended by No 81 of 2016, s 3 and Sch 10 item 33, by repealing table items 1 and 2, effective 1 July 2018. For application provisions, see note under Div 131 heading. Table items 1 and 2 formerly read:
| 1 |
An amount of your *assessed Division 293 tax for an income year is due and payable in accordance with subsection 293-65(1) or 293-70(1) |
The amount of tax that is due and payable as mentioned in column 1 |
On assessing the amount |
| 2 |
An amount of your *assessed Division 293 tax for an income year is *deferred to a debt account for a *superannuation interest |
The amount so deferred |
On the making of the determination under section 133-10 |
Requirements for release authority
135-10(2)
A release authority must:
(a)
state the amount of the *release entitlement in respect of which it is given; and
(b)
be dated; and
(c)
contain any other information that the Commissioner considers relevant.
Commissioner may issue a further release authority
135-10(3)
The Commissioner may at any time issue you with a further release authority in respect of a *release entitlement if:
(a)
the Commissioner is satisfied that it is reasonable in the circumstances to do so; and
(b)
the Commissioner has issued you with an earlier release authority in respect of that release entitlement.
Despite paragraph (2)(a), the further release authority must state the amount the Commissioner considers reasonable in the circumstances, but not exceeding the amount of the release entitlement.
Note:
For variation and revocation of release authorities, see subsection 33(3) of the Acts Interpretation Act 1901.
Release authority not to be issued to trustee of deceased estate
135-10(4)
To avoid doubt, this section does not require or permit the Commissioner to issue a release authority to the trustee of a deceased estate.
History
S 135-10 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
Subdivision 135-B - When a release authority can be given to a superannuation provider
History
Subdiv 135-B inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
Guide to Subdivision 135-B
SECTION 135-35
WHAT THIS SUBDIVISION IS ABOUT
You may give a release authority to a superannuation provider within 120 days of being issued with it.
History
S 135-35 amended by No 81 of 2016, s 3 and Sch 10 item 34, by omitting "The Commissioner may give the release authority to a superannuation provider if you fail to pay assessed Division 293 tax that is due and payable within 120 days after the release authority being issued.", effective 1 July 2018. For application provisions, see note under Div 131 heading.
S 135-35 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
S 135-35 amended by No 81 of 2016. For application provisions, see note under Div 131 heading.
S 135-35 inserted by No 82 of 2013. For application provision, see note under Pt 3-20 heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 135-40 |
When you may give release authority to superannuation provider |
| 135-45 |
(Repealed by No 81 of 2016) |
Operative provisions
SECTION 135-40
WHEN YOU MAY GIVE RELEASE AUTHORITY TO SUPERANNUATION PROVIDER
135-40(1)
You may give the release authority to a *superannuation provider that holds a *superannuation interest for you within 120 days after the date of the release authority.
135-40(2)
You may request the *superannuation provider, in writing, to pay a specified amount in relation to the release authority.
Note 1:
For the amount that the provider pays under a release authority, see section 135-85.
Note 2:
If excess amounts are paid in relation to a release authority:
(a) the excess is assessable income (see section 304-20 of the Income Tax Assessment Act 1997); and
(b) you are liable to an administrative penalty (see section 288-100 in this Schedule).
135-40(3)
However, a release authority issued under item 3 of the table in subsection 135-10(1) (for debt account discharge liability) may only be given to the *superannuation provider that holds the *superannuation interest to which the debt account relates.
History
S 135-40 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
135-45
135-45
(Repealed) SECTION 135-45 WHEN COMMISSIONER MAY GIVE RELEASE AUTHORITY TO SUPERANNUATION PROVIDER
(Repealed by No 81 of 2016)
History
S 135-45 repealed by No 81 of 2016, s 3 and Sch 10 item 35, effective 1 July 2018. For application provisions, see note under Div 131 heading. S 135-45 formerly read:
SECTION 135-45 WHEN COMMISSIONER MAY GIVE RELEASE AUTHORITY TO SUPERANNUATION PROVIDER
135-45(1)
The Commissioner may, at any time, give a release authority issued under item 1 of the table in subsection 135-10(1) to one or more *superannuation providers that hold a *superannuation interest for you, if, at the end of 120 days after the date of the release authority:
(a)
some or all of the *assessed Division 293 tax that is due and payable in accordance with subsection 293-65(1) or 293-70(1) (as the case requires) is unpaid; and
(b)
the Commissioner reasonably believes any of the following:
(i)
that you have not given the release authority to a superannuation provider that holds a superannuation interest for you in accordance with section 135-40;
(ii)
that you have given the release authority to one or more superannuation providers in accordance with that section, but that the sum of the amounts to be paid by the providers under those release authorities falls short of the amount of your assessed Division 293 tax;
(iii)
that the total of the *values of every superannuation interest (other than a *defined benefit interest) held for you by superannuation providers to which the release authority has been given falls short of the amount of your assessed Division 293 tax.
Note:
No payment may be made from a defined benefit interest: see subsection 135-75(4).
135-45(2)
The Commissioner may request the *superannuation provider, in writing, to pay a specified amount in relation to the release authority.
Note:
For the amount that the provider pays under a release authority, see section 135-85.
S 135-45 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
Subdivision 135-C - Release of superannuation money under a release authority
History
Subdiv 135-C inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
Guide to Subdivision 135-C
SECTION 135-70
WHAT THIS SUBDIVISION IS ABOUT
This Subdivision sets out a general requirement for a superannuation provider to comply with a release authority.
The Subdivision also includes provisions about how much must be paid, who it must be paid to, which interest it is to be paid from, and how the payments are treated by the Commissioner.
History
S 135-70 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 135-75 |
Requirement for superannuation provider to release money |
| 135-80 |
Compensation for acquisition of property |
| 135-85 |
Release amount |
| 135-90 |
How the Commissioner applies amounts received under a release authority |
| 135-95 |
Defined benefit interests - releasing amounts to pay debt account discharge liability |
| 135-100 |
Income tax treatment of amounts released - proportioning rule does not apply |
Operative provisions
SECTION 135-75
REQUIREMENT FOR SUPERANNUATION PROVIDER TO RELEASE MONEY
135-75(1)
If:
(a)
a *superannuation provider has been given a release authority in accordance with Subdivision 135-B; and
(b)
the amount mentioned in section 135-85 (the
release amount
) is greater than nil;
the superannuation provider must pay the release amount within 30 days after receiving the release authority.
Who superannuation provider pays the amount to
135-75(2)
The release amount must be paid to the Commissioner.
135-75(3)
(Repealed by No 81 of 2016)
Note 1:
Section 288-95 provides for an administrative penalty for failing to comply with this section.
Note 2:
For the taxation treatment of the payment, see sections 303-20 and 304-20 of the Income Tax Assessment Act 1997.
Note 3:
For reporting obligations on the superannuation provider in these circumstances, see section 390-65 in this Schedule.
History
S 135-75(3) (not including the notes) repealed by No 81 of 2016, s 3 and Sch 10 item 36, effective 1 July 2018. For application provisions, see note under Div 131 heading. S 135-75(3) formerly read:
135-75(3)
However, if the release authority was:
(a)
issued under item 1 of the table in subsection 135-10(1) (which is about Division 293 tax that is due and payable within 21 days); and
(b)
given to the *superannuation provider by the individual under section 135-40;
the release amount may be paid to the individual.
Which superannuation interest the amount is to be paid from
135-75(4)
The payment must be made out of one or more *superannuation interests (other than a *defined benefit interest) held by the *superannuation provider for the individual.
History
S 135-75 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 135-80
COMPENSATION FOR ACQUISITION OF PROPERTY
135-80(1)
If the operation of section 135-75 would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from an entity otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the entity.
135-80(2)
If the Commonwealth and the entity do not agree on the amount of the compensation, the entity may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
History
S 135-80 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 135-85
135-85
RELEASE AMOUNT
The amount is the least of the following amounts:
(a)
the amount stated in the release authority, as issued by the Commissioner;
(b)
if the individual or Commissioner requests the *superannuation provider, in writing, to pay a specified amount in relation to the release authority - that amount;
(c)
the sum of the *maximum available release amounts for each *superannuation interest (other than a *defined benefit interest) held by the superannuation provider for the individual in *superannuation plans.
Note:
For the
maximum available release amount
, see section 131-45.
History
S 135-85 amended by No 81 of 2016, s 3 and Sch 10 item 37, by substituting "131-45" for "96-30" in the note, effective 1 July 2018. For application provisions, see note under Div 131 heading.
S 135-85 substituted by No 118 of 2013, s 3 and Sch 1 item 101, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading. S 135-85 formerly read:
SECTION 135-85 RELEASE AMOUNT
135-85(1)
The amount is the least of the following amounts:
(a)
the amount stated in the release authority, as issued by the Commissioner;
(b)
if the individual or Commissioner requests the *superannuation provider, in writing, to pay a specified amount in relation to the release authority - that amount;
(c)
the sum of the amounts covered by subsection (2) for each *superannuation interest (other than a *defined benefit interest) held by the superannuation provider for the individual in *superannuation plans.
135-85(2)
The amount covered by this subsection for a *superannuation interest at a particular time is the total amount of all the *superannuation lump sums that could be payable from the interest at that time.
S 135-85 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 135-90
135-90
HOW THE COMMISSIONER APPLIES AMOUNTS RECEIVED UNDER A RELEASE AUTHORITY
If the Commissioner receives a payment under a release authority, it is taken for the purposes of Part IIB to have been received in respect of a current or anticipated tax debt of the individual.
Note:
Part IIB is about running balance accounts and the application of payments and credits.
History
S 135-90(1) amended by No 81 of 2016, s 3 and Sch 10 item 38, by omitting "(1)" before "If the", effective 1 July 2018. For application provisions, see note under Div 131 heading.
135-90(2)
(Repealed by No 81 of 2016)
History
S 135-90(2) repealed by No 81 of 2016, s 3 and Sch 10 item 39, effective 1 July 2018. For application provisions, see note under Div 131 heading. S 135-90(2) formerly read:
Exception for voluntary payments of Division 293 tax debt account
135-90(2)
However, if the Commissioner receives the payment under a release authority issued under item 2 of the table in subsection 135-10(1) in respect of a *superannuation interest, the payment is to be treated as if it were a voluntary payment under section 133-70 in relation to the debt account for that interest.
135-90(3)
(Repealed by No 81 of 2016)
History
S 135-90(3) repealed by No 81 of 2016, s 3 and Sch 10 item 39, effective 1 July 2018. For application provisions, see note under Div 131 heading. S 135-90(3) formerly read:
Commissioner to notify individual if payment received
135-90(3)
If:
(a)
the release authority was given by the Commissioner in accordance with section 135-45; and
(b)
the payment is made to the Commissioner;
the Commissioner must, as soon as possible, give the individual written notice that the payment has been made.
History
S 135-90 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 135-95
135-95
DEFINED BENEFIT INTERESTS - RELEASING AMOUNTS TO PAY DEBT ACCOUNT DISCHARGE LIABILITY
The exclusion of *defined benefit interests from subsection 135-75(4) and paragraph 135-85(c) is to be disregarded for a release authority issued under item 3 of the table in subsection 135-10(1) (about debt account discharge liability).
History
S 135-95 amended by No 118 of 2013, s 3 and Sch 1 item 102, by substituting "paragraph 135-85(c)" for "paragraph 135-85(1)(c)", effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
S 135-95 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 135-100
135-100
INCOME TAX TREATMENT OF AMOUNTS RELEASED - PROPORTIONING RULE DOES NOT APPLY
Section 307-125 of the Income Tax Assessment Act 1997 (the proportioning rule) does not apply to a payment made as required or permitted under this Division.
Note:
Further provisions about the income tax treatment of amounts released are in sections 303-20 and 304-20 of that Act.
History
S 135-100 inserted by No 82 of 2013, s 3 and Sch 3 item 2, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
Division 136 - Transfer balance cap
History
Div 136 inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
Guide to Division 136
SECTION 136-1
WHAT THIS DIVISION IS ABOUT
If you have excess transfer balance in your transfer balance account, the Commissioner may require you and your superannuation income stream provider to reduce the total amount of your superannuation income streams that are in the retirement phase.
History
S 136-1 inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
Subdivision 136-A - Excess transfer balance determinations
History
Subdiv 136-A inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
Guide to Subdivision 136-A
SECTION 136-5
WHAT THIS SUBDIVISION IS ABOUT
If your transfer balance account exceeds the transfer balance cap, the excess must be reduced by commuting in full or in part your superannuation income streams that are in the retirement phase.
If you have more than one superannuation income stream, you may choose which one to commute.
History
S 136-5 inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 136-10 |
Excess transfer balance determination |
| 136-15 |
Review |
| 136-20 |
Electing to commute a different superannuation income stream |
| 136-25 |
Notifying Commissioner of transfer balance debits |
Operative provisions
SECTION 136-10
EXCESS TRANSFER BALANCE DETERMINATION
136-10(1)
If you have *excess transfer balance in your *transfer balance account at the end of a day, the Commissioner may make a written determination stating the amount of that excess transfer balance.
Note:
It is not necessary for the Commissioner to issue a determination under this subsection if the Commissioner becomes aware that you no longer have an excess transfer balance. You are still liable to pay excess transfer balance tax if no determination is issued: see Subdivision 294-F of the Income Tax Assessment Act 1997.
136-10(2)
A determination under this section is an
excess transfer balance determination
.
136-10(3)
The amount of *excess transfer balance stated in an *excess transfer balance determination is a
crystallised reduction amount
.
136-10(4)
The Commissioner may amend or revoke an *excess transfer balance determination at any time before a commutation authority relating to the determination is issued under section 136-55.
136-10(5)
Notice of a determination given by the Commissioner under this section is prima facie evidence of the matters stated in the notice.
Determination to include default commutation notice
136-10(6)
A determination made under subsection (1) must include a notice:
(a)
stating that, if you do not make an election under section 136-20 within the period specified in that section, the Commissioner will issue one or more commutation authorities; and
(b)
specifying:
(i)
the *superannuation income stream provider or providers to whom a commutation authority will be issued; and
(ii)
the *superannuation income stream or streams that the providers will be obliged to commute in full or in part; and
(iii)
if more than one commutation authority will be issued - the amount to be stated in each commutation authority, or the method the Commissioner will use to work out the amount to be stated in each commutation authority.
136-10(7)
A notice included with an *excess transfer balance determination in accordance with subsection (6) is a
default commutation notice
.
History
S 136-10 inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
SECTION 136-15
REVIEW
136-15(1)
If you are dissatisfied with an *excess transfer balance determination made in relation to you, you may object against the determination in the manner set out in Part IVC.
136-15(2)
However, for the purposes of Part IVC, the *default commutation notice does not form part of the taxation decision.
History
S 136-15 inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
SECTION 136-20
ELECTING TO COMMUTE A DIFFERENT SUPERANNUATION INCOME STREAM
136-20(1)
This section applies to you if:
(a)
you receive an *excess transfer balance determination under section 136-10; and
(b)
you are the *retirement phase recipient of 2 or more *superannuation income streams.
136-20(2)
You may elect which of those *superannuation income streams is to be fully or partially commuted for the purpose of reducing the *transfer balance in your *transfer balance account by the *crystallised reduction amount.
Requirements for election
136-20(3)
You make an election under subsection (2) by:
(a)
identifying the *superannuation income stream or streams to be commuted in full or in part and the *superannuation income stream provider for each such stream; and
(b)
if you identify more than one superannuation income stream - stating the amount to be commuted from each such income stream.
136-20(4)
The election must:
(a)
be in the *approved form; and
(b)
be given to the Commissioner within:
(i)
60 days after the *excess transfer balance determination or amended excess transfer balance determination is issued; or
(ii)
a further period allowed by the Commissioner.
Election is irrevocable
136-20(5)
An election under this section is irrevocable.
History
S 136-20 inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
SECTION 136-25
NOTIFYING COMMISSIONER OF TRANSFER BALANCE DEBITS
136-25(1)
This section applies to you if you have received an *excess transfer balance determination.
136-25(2)
You may notify the Commissioner in the *approved form of the amount of a *transfer balance debit that arises in your *transfer balance account if the debit arises in the period:
(a)
beginning when the determination is made; and
(b)
ending at the earlier of:
(i)
the time you made an election under section 136-20; and
(ii)
the end of the period within which an election under section 136-20 may be made.
History
S 136-25 inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
Subdivision 136-B - Commutation authorities
History
Subdiv 136-B inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
Guide to Subdivision 136-B
SECTION 136-50
WHAT THIS SUBDIVISION IS ABOUT
The Commissioner must issue a commutation authority to a superannuation income stream provider, unless you have notified the Commissioner that you have already reduced your excess transfer balance by the crystallised reduction amount.
A superannuation income stream provider will usually be required to commute the superannuation income stream stated in the authority.
History
S 136-50 inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Obligations of Commissioner
|
| 136-55 |
Issuing of commutation authorities |
| 136-60 |
Varying and revoking a commutation authority |
| 136-65 |
Issuing further commutation authorities |
| 136-70 |
Notifying of non-commutable excess transfer balance |
|
Obligations of superannuation income stream providers
|
| 136-80 |
Obligations on superannuation income stream providers |
| 136-85 |
Notifying the Commissioner |
| 136-90 |
Notifying you |
Obligations of Commissioner
SECTION 136-55
ISSUING OF COMMUTATION AUTHORITIES
Commutation authority must be issued if there is a commutable amount
136-55(1)
The Commissioner must issue a commutation authority under this section to one or more *superannuation income stream providers if:
(a)
an *excess transfer balance determination has been issued to you; and
(b)
the excess transfer balance determination has not been revoked; and
(c)
the period mentioned in subsection 136-20(4) has ended; and
(d)
an amount (the
commutable amount
) greater than nil remains after reducing the *crystallised reduction amount by the sum of any *transfer balance debits notified to the Commissioner under section 136-25.
Issuing in response to a valid election
136-55(2)
If you have made a valid election under section 136-20, the Commissioner must issue a commutation authority under this section to each *superannuation income stream provider identified in your election.
136-55(3)
If the total of the amounts stated in your election under section 136-20 falls short of the commutable amount, the Commissioner must also issue a commutation authority to one or more *superannuation income stream providers specified in the *default commutation notice.
Issuing if you do not make a valid election
136-55(4)
If you have not made a valid election under section 136-20, the Commissioner must issue a commutation authority to each *superannuation income stream provider specified in the *default commutation notice.
Requirements for commutation authority
136-55(5)
Each commutation authority must:
(a)
specify the *superannuation income stream that the *superannuation income stream provider is to commute, in full or in part; and
(b)
state the amount (the
reduction amount
) by which the superannuation income stream is to be reduced; and
(c)
be dated; and
(d)
contain any other information that the Commissioner considers relevant.
136-55(6)
The total of all reduction amounts stated in commutation authorities issued under this section relating to an *excess transfer balance determination must not exceed the commutable amount.
History
S 136-55 inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
SECTION 136-60
136-60
VARYING AND REVOKING A COMMUTATION AUTHORITY
The Commissioner may vary or revoke a commutation authority at any time before the Commissioner receives a notice under section 136-85 relating to the commutation authority.
History
S 136-60 inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
SECTION 136-65
ISSUING FURTHER COMMUTATION AUTHORITIES
136-65(1)
The Commissioner may issue a commutation authority under this section to one or more *superannuation income stream providers under this section if:
(a)
a commutation authority (the
original commutation authority
) was issued under section 136-55; and
(b)
the *superannuation income stream provider to which the original commutation authority was issued:
(i)
paid a *superannuation lump sum that fell short of the reduction amount stated in the original commutation authority; or
(ii)
did not comply with the original commutation authority.
136-65(2)
A commutation authority issued under this section must include the matters set out in subsection 136-55(5).
136-65(3)
The Commissioner may issue a commutation authority under this section to any *superannuation income stream provider of a *superannuation income stream of which you are the *retirement phase recipient.
136-65(4)
The total of all reduction amounts stated in commutation authorities issued under this section relating to an *excess transfer balance determination must not exceed the difference between:
(a)
the commutable amount mentioned in subsection 136-55(1); and
(b)
the sum of:
(i)
any *superannuation lump sums notified to the Commissioner under section 136-85 in respect of the determination; and
(ii)
any *transfer balance debits arising in your *transfer balance account under item 5 of the table in subsection 294-80(1) of the Income Tax Assessment Act 1997 because of any original commutation authority.
History
S 136-65 inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
SECTION 136-70
NOTIFYING OF NON-COMMUTABLE EXCESS TRANSFER BALANCE
136-70(1)
The Commissioner must notify you in writing if, at the end of a day after the Commissioner has issued an *excess transfer balance determination to you:
(a)
the sum of all *transfer balance debits arising in your *transfer balance account since the determination was issued falls short of the *crystallised reduction amount; and
(b)
you have *excess transfer balance in your transfer balance account; and
(c)
either:
(i)
the only *superannuation income streams of which you are a *retirement phase recipient are *capped defined benefit income streams; or
(ii)
you are no longer a retirement phase recipient of any superannuation income stream.
Note:
A debit arises in your transfer balance account when the Commissioner issues a notice under this section: see item 7 of the table in subsection 294-80(1) of the Income Tax Assessment Act 1997.
136-70(2)
A notice under subsection (1) must state the amount of the *excess transfer balance mentioned in paragraph (1)(b).
History
S 136-70 inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
Obligations of superannuation income stream providers
SECTION 136-80
OBLIGATIONS ON SUPERANNUATION INCOME STREAM PROVIDERS
136-80(1)
A *superannuation income stream provider issued with a commutation authority under this Subdivision must, within 60 days after the commutation authority is issued, pay by way of commutation of the specified *superannuation income stream, a *superannuation lump sum equal to the lesser of:
(a)
the reduction amount stated in the commutation authority; and
(b)
the *maximum available release amount for the *superannuation interest that supports the specified superannuation income stream.
Exception for capped defined benefit income streams
136-80(2)
Despite subsection (1), if the specified *superannuation income stream is a *capped defined benefit income stream, the *superannuation income stream provider may choose not to comply with the commutation authority.
Exception for deceased member
136-80(3)
Despite subsection (1), if the *retirement phase recipient has died, the *superannuation income stream provider may choose not to comply with the commutation authority.
History
S 136-80 inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
SECTION 136-85
NOTIFYING THE COMMISSIONER
136-85(1)
A *superannuation income stream provider issued with a commutation authority under this Subdivision must notify the Commissioner of the amount of a *superannuation lump sum paid in accordance with the commutation authority.
136-85(2)
If a *superannuation income stream provider chooses under subsection 136-80(2) or (3) not to comply with the commutation authority, the provider must notify the Commissioner of that choice.
136-85(3)
A notice under this section must be in the *approved form and must be given within 60 days after the commutation authority is issued.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
History
S 136-85 inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
SECTION 136-90
NOTIFYING YOU
136-90(1)
A *superannuation income stream provider issued with a commutation authority under this Subdivision must notify you if the superannuation income stream provider:
(a)
pays a *superannuation lump sum in accordance with the commutation authority; or
(b)
chooses under subsection 136-80(2) not to comply with the commutation authority.
136-90(2)
A notice under this section must be in the *approved form and must be given within 60 days after the commutation authority is issued.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
History
S 136-90 inserted by No 81 of 2016, s 3 and Sch 1 item 15, effective 1 January 2017 and applicable on and after 1 July 2017.
Division 138 - First home super saver scheme
History
Div 138 inserted by No 132 of 2017, s 3 and Sch 1 item 1, effective 1 July 2018.
Guide to Division 138
SECTION 138-1
WHAT THIS DIVISION IS ABOUT
If you have had voluntary contributions into superannuation, you may be eligible to have those contributions and their associated earnings released for the purposes of purchasing or constructing your first home.
History
S 138-1 inserted by No 132 of 2017, s 3 and Sch 1 item 1, effective 1 July 2018.
Subdivision 138-A - First home super saver determination
History
Subdiv 138-A inserted by No 132 of 2017, s 3 and Sch 1 item 1, effective 1 July 2018.
Guide to Subdivision 138-A
SECTION 138-5
WHAT THIS SUBDIVISION IS ABOUT
If you satisfy particular criteria, you may request that the Commissioner make a determination stating your FHSS maximum release amount and the components that make up that amount.
History
S 138-5 inserted by No 132 of 2017, s 3 and Sch 1 item 1, effective 1 July 2018.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 138-10 |
First home super saver determination |
| 138-12 |
Withdrawing or amending your request |
| 138-13 |
Amending or revoking a first home super saver determination |
| 138-15 |
Review |
Operative provisions
SECTION 138-10
FIRST HOME SUPER SAVER DETERMINATION
First home super saver determination
138-10(1)
A
first home super saver determination
is a written determination stating:
(a)
your *FHSS maximum release amount; and
(b)
the amount of each of the following components that make up your FHSS maximum release amount:
(i)
your *concessional contributions;
(ii)
your *non-concessional contributions;
(iii)
your associated earnings.
Requesting a first home super saver determination
138-10(2)
You may request the Commissioner, in the *approved form, to make a *first home super saver determination if:
(a)
you have never held:
(i)
a legal interest in an estate in fee simple in real property in Australia; or
(ii)
a legal interest in a lease of land in Australia (including a renewal or extension of such a lease) as described in paragraph 104-115(1)(b) of the Income Tax Assessment Act 1997; or
(iii)
a company title interest (within the meaning of Part X of the Income Tax Assessment Act 1936) in land in Australia; and
(b)
you are 18 years or older; and
(c)
subsection (2C) applies for you.
History
S 138-10(2) amended by No 75 of 2023, s 3 and Sch 4 items 20-22, by substituting para (a)(i), inserting "a legal interest in" in para (a)(ii) and substituting para (c), effective 15 September 2024. For application and transitional provisions, see note under s 131-30. Para (a)(i) and (c) formerly read:
(i)
a freehold interest in real property in Australia; or
(c)
you have not previously requested a release authority under Division 131 in relation to a first home super saver determination that has been made in relation to you.
138-10(2A)
If the Commissioner determines that you have suffered a financial hardship, you are taken to have satisfied paragraph (2)(a).
138-10(2B)
The regulations may specify the circumstances in which the Commissioner is to determine that a person has suffered a financial hardship for the purposes of subsection (2A).
138-10(2C)
This subsection applies for you if:
(a)
you have not previously made a valid request for a release authority under Division 131 in relation to a *first home super saver determination made in relation to you; or
(b)
one of the following subparagraphs applies for each of your previous valid requests for such a release authority:
(i)
you have withdrawn the request;
(ii)
the Commissioner has revoked the release authority issued in relation to the request (whether or not the release authority had previously been varied);
(iii)
after one or more amendments of the request, you have withdrawn the latest of those amended requests;
(iv)
the Commissioner has revoked the release authority issued in relation to the latest of one or more amendments of the request (whether or not the release authority had previously been varied).
History
S 138-10(2C) inserted by No 75 of 2023, s 3 and Sch 4 item 23, effective 15 September 2024. For application and transitional provisions, see note under s 131-30.
Making a first home super saver determination etc.
138-10(3)
If you make a valid request under subsection (2), the Commissioner must make a *first home super saver determination in relation to you.
138-10(4)
(Repealed by No 75 of 2023)
History
S 138-10(4) repealed by No 75 of 2023, s 3 and Sch 4 item 24, effective 15 September 2024. For application and transitional provisions, see note under s 131-30. S 138-10(4) formerly read:
138-10(4)
The Commissioner may amend or revoke a *first home super saver determination at any time before a release authority relating to the determination is issued under Division 131.
138-10(5)
Notice of a determination given by the Commissioner under this section is prima facie evidence of the matters stated in the notice.
History
S 138-10 inserted by No 132 of 2017, s 3 and Sch 1 item 1, effective 1 July 2018.
SECTION 138-12
WITHDRAWING OR AMENDING YOUR REQUEST
138-12(1)
You may, by notifying the Commissioner in the *approved form, withdraw or amend your valid request made under section 138-10 if:
(a)
in the case of amending your request - you satisfy paragraphs 138-10(2)(a) to (c); and
(b)
the Commissioner has not already made a *first home super saver determination in relation to your request.
138-12(2)
Your amended request is treated as a valid request under section 138-10.
138-12(3)
Withdrawing your request does not prevent you from making a later request under section 138-10.
History
S 138-12 inserted by No 75 of 2023, s 3 and Sch 4 item 25, effective 15 September 2024. For application and transitional provisions, see note under s 131-30.
SECTION 138-13
AMENDING OR REVOKING A FIRST HOME SUPER SAVER DETERMINATION
138-13(1)
The Commissioner may decide to:
(a)
amend a *first home super saver determination made in relation to you if you satisfy paragraphs 138-10(2)(a) to (c); or
(b)
revoke a first home super saver determination made in relation to you;
at any time before the Commissioner begins treating, under Division 3 of Part IIB, any credit to which you have become entitled under section 131-65 in relation to a release authority relating to the determination.
Note:
Like other first home super saver determinations, an amended determination will need to comply with Subdivision 138-B.
138-13(2)
The Commissioner may make a decision under subsection (1):
(a)
on the Commissioner's own initiative; or
(b)
on application by you to the Commissioner in the *approved form.
138-13(3)
If a *first home super saver determination is amended or revoked under subsection (1) at a particular time, then at that time:
(a)
each of the following ceases to be valid or in force:
(i)
any request under section 131-5 for a release authority in relation to that determination;
(ii)
any release authority issued in relation to such a request; and
(b)
any entitlement under section 131-65 you had to a credit relating to such a request ceases.
Note:
Paragraphs (a) and (b) apply to a request or release authority whether or not it has been amended or varied.
138-13(4)
Notice of an amended determination given by the Commissioner under this section is prima facie evidence of the matters stated in the notice. For the purposes of paragraph 131-5(3)(c), the Commissioner is treated as issuing the amended determination at the time this notice is given.
History
S 138-13 inserted by No 75 of 2023, s 3 and Sch 4 item 25, effective 15 September 2024. For application and transitional provisions, see note under s 131-30.
SECTION 138-15
138-15
REVIEW
If you are dissatisfied with:
(a)
a *first home super saver determination in relation to you; or
(b)
a decision the Commissioner makes not to make a determination under subsection 138-10(2A); or
(c)
a decision the Commissioner makes under subsection 138-13(1):
(i)
to amend or revoke a determination; or
(ii)
not to amend or revoke a determination;
you may object against the determination, or the decision, as the case requires, in the manner set out in Part IVC.
History
S 138-15 amended by No 75 of 2023, s 3 and Sch 4 item 26, by inserting para (c), effective 15 September 2024. For application and transitional provisions, see note under s 131-30.
S 138-15 inserted by No 132 of 2017, s 3 and Sch 1 item 1, effective 1 July 2018.
Subdivision 138-B - FHSS maximum release amount
History
Subdiv 138-B inserted by No 132 of 2017, s 3 and Sch 1 item 1, effective 1 July 2018.
Guide to Subdivision 138-B
SECTION 138-20
WHAT THIS SUBDIVISION IS ABOUT
Your FHSS maximum release amount comprises your eligible non-concessional contributions, 85% of your eligible concessional contributions, and your associated earnings.
There are limits on the amount of contributions that may be eligible for release.
History
S 138-20 inserted by No 132 of 2017, s 3 and Sch 1 item 1, effective 1 July 2018.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 138-25 |
FHSS maximum release amount |
| 138-30 |
FHSS releasable contributions amount |
| 138-35 |
Eligible contributions |
| 138-40 |
Associated earnings |
Operative provisions
SECTION 138-25
138-25
FHSS MAXIMUM RELEASE AMOUNT
Your
FHSS maximum release amount
is the sum of:
(a)
your *FHSS releasable contributions amount worked out under section 138-30; and
(b)
your associated earnings worked out under section 138-40.
History
S 138-25 inserted by No 132 of 2017, s 3 and Sch 1 item 1, effective 1 July 2018.
SECTION 138-30
FHSS RELEASABLE CONTRIBUTIONS AMOUNT
138-30(1)
Your
FHSS releasable contributions amount
is the sum of the following amounts for each *financial year that starts on 1 July 2017 or a later 1 July:
(a)
your *FHSS eligible non-concessional contributions for the financial year;
(b)
85% of your *FHSS eligible concessional contributions for the financial year.
Order of counting contributions
138-30(2)
In determining which contributions are to be counted towards your *FHSS releasable contributions amount, contributions are to be counted in the order in which they were made (from earliest to latest).
138-30(3)
For subsection (2):
(a)
if an *FHSS eligible concessional contribution, and an *FHSS eligible non-concessional contribution, is made in respect of you at the same time, the FHSS eligible non-concessional contribution is taken to have been made first; and
(b)
if, for a particular *financial year, you personally made both *FHSS eligible concessional contributions and *FHSS eligible non-concessional contributions, the FHSS eligible non-concessional contributions are taken to have been made first.
Example:
For paragraph (b), in the 2018-2019 financial year, you made voluntary contributions of $1,000 each fortnight, up to a total of $25,000. At the end of the financial year, you claim a deduction for $15,000 (leaving $10,000 of the contributions as non-concessional contributions).
If all of the non-concessional contributions are eligible to be released under section 138-35, the first 10 contributions made for the financial year are taken to have been the non-concessional contributions, and the later contributions are taken to be the concessional contributions.
History
S 138-30 inserted by No 132 of 2017, s 3 and Sch 1 item 1, effective 1 July 2018.
SECTION 138-35
ELIGIBLE CONTRIBUTIONS
Limits on amount of eligible contributions
138-35(1)
For the purposes of this Subdivision:
(a)
the maximum amount of contributions that may be eligible to be released is $50,000; and
(b)
the maximum amount of contributions made in a particular *financial year that may be eligible to be released is $15,000.
History
S 138-35(1) amended by No 10 of 2022, s 3 and Sch 2 item 1, by substituting "$50,000" for "$30,000", effective 23 February 2022 and applicable in relation to requests made on or after 1 July 2022 for the Commissioner to make a first home super saver determination.
Eligible contributions
138-35(2)
A *concessional contribution, or *non-concessional contribution, for a *financial year is not eligible to be released unless it:
(a)
is made in respect of you in the financial year; and
(b)
is:
(i)
an employer contribution that is not a mandated employer contribution (within the meaning of Part 5 of the Superannuation Industry (Supervision) Regulations 1994); or
(ii)
a member contribution (within the meaning of that Part) that is made by you;
other than a contribution to the extent it is required to be made because of a law of the Commonwealth or of a State or Territory, or the rules of the relevant *superannuation fund; and
(c)
is not a contribution made in respect of a *defined benefit interest; and
(d)
is not a contribution to a *constitutionally protected fund.
138-35(3)
If:
(a)
you have *excess concessional contributions for a *financial year (
your excess amount
); and
(b)
your excess amount is greater than your *concessional contributions for the financial year that are not eligible to be released under subsection (2) (
your non-eligible contributions
);
concessional contributions that are equal to the difference between your excess amount and your non-eligible contributions are not eligible to be released.
138-35(4)
If:
(a)
you have *non-concessional contributions for the *financial year that exceed your non-concessional contributions cap for the financial year (
your excess amount
); and
(b)
your excess amount is greater than your non-concessional contributions for the financial year that are not eligible to be released under subsection (2) (
your non-eligible contributions
);
non-concessional contributions that are equal to the difference between your excess amount and your non-eligible contributions are not eligible to be released.
138-35(5)
For the purposes of this section, disregard paragraph 292-90(1)(b) of the Income Tax Assessment Act 1997.
Note:
Under paragraph 292-90(1)(b) of the Income Tax Assessment Act 1997, your non-concessional contributions for a financial year would include the amount of your excess concessional contributions (if any) for the financial year.
History
S 138-35 inserted by No 132 of 2017, s 3 and Sch 1 item 1, effective 1 July 2018.
SECTION 138-40
ASSOCIATED EARNINGS
138-40(1)
You are taken to have associated earnings equal to the sum of the amounts worked out under subsection (2) for each contribution counted in your *FHSS releasable contributions amount.
138-40(2)
The amount for a contribution is equal to the sum (rounded down to the nearest dollar) of the amounts worked out under the following formula for each of the days during the period mentioned in subsection (3).
| Shortfall interest charge rate |
× |
( |
Amount of contribution |
+ |
Sum of earlier daily proxy amounts |
) |
where:
amount of contribution
means the amount of the contribution that is counted in your *FHSS releasable contributions amount.
shortfall interest charge rate
means the rate, worked out under subsection 280-105(2), for the day.
sum of earlier daily proxy amounts
means the sum of the amounts worked out for the contribution under the formula for each of the earlier days (if any) during the period for the contribution.
138-40(3)
The period starts:
(a)
if the contribution is made in the *financial year starting on 1 July 2017 - on 1 July 2017; and
(b)
if the contribution is made in the financial year starting on 1 July 2018, or a later financial year - on the first day of the month in which the contribution is made or taken to have been made (see subsection 138-30(2));
and ends on the day the Commissioner makes the *first home super saver determination for which the associated earnings are being worked out.
History
S 138-40 inserted by No 132 of 2017, s 3 and Sch 1 item 1, effective 1 July 2018.
PART 3-30 - DIVERTED PROFITS TAX
History
Pt 3-30 inserted by No 27 of 2017, s 3 and Sch 1 item 44, applicable in relation to DPT tax benefits for a year of income that starts on or after 1 July 2017 (whether or not the DPT tax benefit arises in connection with a scheme that was entered into, or was commenced to be carried out, before 1 July 2017).
Division 145 - Assessments of diverted profits tax
History
Div 145 inserted by No 27 of 2017, s 3 and Sch 1 item 44, applicable in relation to DPT tax benefits for a year of income that starts on or after 1 July 2017 (whether or not the DPT tax benefit arises in connection with a scheme that was entered into, or was commenced to be carried out, before 1 July 2017).
Guide to Division 145
SECTION 145-1
WHAT THIS DIVISION IS ABOUT
The Commissioner can make an assessment of diverted profits tax. The entity that is the subject of the assessment can appeal to the Federal Court against the Commissioner's decision to make the assessment. Such an appeal can be made generally no earlier than 12 months after the day on which the Commissioner first gives notice of the assessment to the entity.
History
S 145-1 inserted by No 27 of 2017, s 3 and Sch 1 item 44, applicable in relation to DPT tax benefits for a year of income that starts on or after 1 July 2017 (whether or not the DPT tax benefit arises in connection with a scheme that was entered into, or was commenced to be carried out, before 1 July 2017).
TABLE OF SECTIONS
TABLE OF SECTIONS
| 145-5 |
DPT assessments - modified application of Division 155 |
| 145-10 |
When DPT assessments can be made |
| 145-15 |
Period of review of DPT assessments |
| 145-20 |
Review of assessments |
| 145-25 |
Restricted DPT evidence |
SECTION 145-5
145-5
DPT ASSESSMENTS - MODIFIED APPLICATION OF DIVISION 155
In applying Division 155 in relation to an amount of *diverted profits tax:
(a)
apply the provisions of that Division with the modifications set out in sections 145-10 to 145-25; and
(b)
disregard sections 155-15, 155-20, 155-25, 155-30, 155-40, 155-45, 155-50, 155-55 and 155-70.
History
S 145-5 inserted by No 27 of 2017, s 3 and Sch 1 item 44, applicable in relation to DPT tax benefits for a year of income that starts on or after 1 July 2017 (whether or not the DPT tax benefit arises in connection with a scheme that was entered into, or was commenced to be carried out, before 1 July 2017).
SECTION 145-10
145-10
WHEN DPT ASSESSMENTS CAN BE MADE
Despite subsection 155-5(1), the Commissioner can make an assessment (the
DPT assessment
) of the amount of *diverted profits tax only at a time in the period:
(a)
starting on the day on which the Commissioner first gives the entity that is the subject of the assessment a notice of assessment under Part IV of the Income Tax Assessment Act 1936 for the income year mentioned in paragraph 177J(1)(a) of the Income Tax Assessment Act 1936 (as that paragraph applies in relation to the amount of diverted profits tax); and
(b)
ending on the last day of the period of 7 years starting the day after that day.
History
S 145-10 inserted by No 27 of 2017, s 3 and Sch 1 item 44, applicable in relation to DPT tax benefits for a year of income that starts on or after 1 July 2017 (whether or not the DPT tax benefit arises in connection with a scheme that was entered into, or was commenced to be carried out, before 1 July 2017).
SECTION 145-15
PERIOD OF REVIEW OF DPT ASSESSMENTS
145-15(1)
Despite subsection 155-35(2), the
period of review
, for the *DPT assessment, is:
(a)
the period:
(i)
starting on the day on which the Commissioner first gives notice of the assessment to the entity that is the subject of the assessment under section 155-10; and
(ii)
ending on the last day of the period of 12 months starting the day after that day; or
(b)
if:
(i)
the entity, by written notice given to the Commissioner, specifies a shorter period in accordance with subsection (2); and
(ii)
the Federal Court of Australia has not made an order under subsection (3) in respect of the written notice;
that shorter period; or
(c)
if the period of review is extended under subsection 155-35(3) or (4) - the period as so extended.
145-15(2)
For the purposes of subparagraph (1)(b)(i), the shorter period must:
(a)
start on the day mentioned in subparagraph (1)(a)(i); and
(b)
end on a day that is at least 30 days after the day on which the entity gives the written notice to the Commissioner.
145-15(3)
For the purposes of subparagraph (1)(b)(ii), the Federal Court of Australia may make an order under this subsection in respect of the written notice if:
(a)
the Commissioner has started to examine the entity's affairs in relation to the assessment; and
(b)
the Commissioner has not completed the examination within the shorter period specified in the written notice; and
(c)
the Commissioner, within 30 days after the day on which the entity gives the written notice to the Commissioner, applies to the Court for the order; and
(d)
the Court is satisfied that it was not reasonably practicable, or it was inappropriate, for the Commissioner to complete the examination within the shorter period specified in the written notice, because of:
(i)
any action taken by the entity; or
(ii)
any failure by the entity to take action that it would have been reasonable for the entity to take.
145-15(4)
Despite subsection 155-35(5), in relation to the *DPT assessment:
(a)
an order may be made under subsection 155-35(3) only once; and
(b)
consent may be given under subsection 155-35(4) only once.
History
S 145-15 inserted by No 27 of 2017, s 3 and Sch 1 item 44, applicable in relation to DPT tax benefits for a year of income that starts on or after 1 July 2017 (whether or not the DPT tax benefit arises in connection with a scheme that was entered into, or was commenced to be carried out, before 1 July 2017).
SECTION 145-20
REVIEW OF ASSESSMENTS
145-20(1)
Section 155-90 does not apply during the *period of review mentioned in section 145-15.
145-20(2)
In applying Part IVC of this Act as a result of section 155-90 after the end of that *period of review:
(a)
have regard only to the provisions of that Part mentioned in subsection (3); and
(b)
apply those provisions with the modifications set out in subsection (4); and
(c)
disregard the other provisions of that Part; and
(d)
apply section 145-25 (restricted DPT evidence).
145-20(3)
For the purposes of paragraph (2)(a), the provisions of that Part are as follows:
(a)
sections 14ZL and 14ZP;
(b)
subsection 14ZR(1);
(c)
subsection 14ZZ(1);
(d)
Division 5 (apart from section 14ZZS).
145-20(4)
For the purposes of paragraph (2)(b), the modifications are as follows:
(a)
treat the Commissioner's decision to make the *DPT assessment as an objection decision;
(b)
treat subsection 14ZZ(1) as reading "The entity that is the subject of the DPT assessment may appeal to the Federal Court of Australia against the objection decision.";
(c)
treat the reference in section 14ZZN to "within 60 days after the person appealing is served with notice of the decision" as being a reference to "within 60 days after the end of the period of review mentioned in section 145-15 in Schedule 1";
(d)
disregard paragraph 14ZZO(a);
(e)
treat paragraph 14ZZO(b) as reading "the appellant has the burden of proving that the DPT assessment is excessive or otherwise incorrect and what the DPT assessment should have been";
(f)
treat the reference in section 14ZZR to a taxation decision as being a reference to the Commissioner's decision to make the DPT assessment.
History
S 145-20 inserted by No 27 of 2017, s 3 and Sch 1 item 44, applicable in relation to DPT tax benefits for a year of income that starts on or after 1 July 2017 (whether or not the DPT tax benefit arises in connection with a scheme that was entered into, or was commenced to be carried out, before 1 July 2017).
SECTION 145-25
RESTRICTED DPT EVIDENCE
145-25(1)
*Restricted DPT evidence is not admissible in evidence in proceedings under Part IVC on an appeal to the Federal Court of Australia related to the *DPT assessment.
145-25(2)
Restricted DPT evidence
means information or documents that:
(a)
the entity that is the subject of the *DPT assessment (or an associate (within the meaning of section 318 of the Income Tax Assessment Act 1936) of that entity), had in its custody or under its control at a time before, during or after the *period of review; and
(b)
the Commissioner did not have in his or her custody or under his or her control at any time in the period of review.
145-25(3)
Subsection (1) does not prevent *restricted DPT evidence from being admissible in evidence in the proceedings if:
(a)
the Commissioner consents to the admission of the restricted DPT evidence in accordance with subsection (4); or
(b)
the court in which the proceedings take place considers that the admission of the restricted DPT evidence is necessary in the interests of justice; or
(c)
the restricted DPT evidence is expert evidence that:
(i)
comes into existence after the *period of review; and
(ii)
is based on evidence that the Commissioner had in his or her custody or under his or her control at any time in the period of review.
145-25(4)
For the purposes of paragraph (3)(a), the Commissioner may give the consent if the Commissioner considers that it is reasonable to do so.
145-25(5)
In making a decision under paragraph (3)(a) or (b), the Commissioner or the court must have regard to:
(a)
whether, if the *restricted DPT evidence were not admissible in evidence in the proceedings, the remaining information or documents that are relevant to the proceedings are, or are likely to be, misleading; and
(b)
whether it would have been reasonable for the entity that is the subject of the *DPT assessment (or the associate of that entity mentioned in paragraph (2)(a)) to have given the Commissioner the restricted DPT evidence within the *period of review.
145-25(6)
The Commissioner must give a consent for the purposes of paragraph (3)(a) if failure to do so would have the effect, for the purposes of the Constitution, of making any tax or penalty incontestable.
145-25(7)
A consent for the purposes of paragraph (3)(a) is to be in writing.
145-25(8)
If the Commissioner gives a consent for the purposes of paragraph (3)(a), the Commissioner must give the entity that is the subject of the *DPT assessment a copy of the consent as soon as practicable afterwards.
History
S 145-25 inserted by No 27 of 2017, s 3 and Sch 1 item 44, applicable in relation to DPT tax benefits for a year of income that starts on or after 1 July 2017 (whether or not the DPT tax benefit arises in connection with a scheme that was entered into, or was commenced to be carried out, before 1 July 2017).
Chapter 4 - Generic assessment, collection and recovery rules
History
Ch 4 heading inserted by No 73 of 2006, s 3 and Sch 5 item 42, effective 1 July 2006.
PART 4-1 - RETURNS AND ASSESSMENTS
History
Pt 4-1 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012.
No 39 of 2012, s 3 and Sch 1 item 239 contains the following application provision:
239 Application of amendments
(1)
The amendments made by Divisions 1, 2 and 3 of this Part apply in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012.
(2)
The amendments made by Divisions 1, 2 and 3 of this Part also apply in relation to payments and refunds that:
(a)
do not relate to any tax periods or fuel tax return periods; and
(b)
relate to liabilities or entitlements that arose on or after 1 July 2012.
Division 155 - Assessments
History
Div 155 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
Guide to Division 155
SECTION 155-1
155-1
WHAT THIS DIVISION IS ABOUT
This Division contains rules relating to assessments.
The rules in this Division deal with the following:
(a) how assessments are made or amended and their effect;
(b) review of assessments.
History
S 155-1 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
Subdivision 155-A - Making assessments
History
Subdiv 155-A inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 155-5
COMMISSIONER MAY MAKE ASSESSMENT
155-5(1)
The Commissioner may at any time make an assessment of an *assessable amount (including an assessment that the amount is nil).
Note 1:
For amendment of assessments, see Subdivision 155-B.
Note 2:
An assessment can be reviewed: see Subdivision 155-C.
155-5(2)
Each of the following is an
assessable amount:
(a)
a *net amount;
(b)
a *net fuel amount;
(c)
an amount of *indirect tax not included in an amount covered by another paragraph of this subsection;
(d)
a credit under an *indirect tax law not included in an amount covered by another paragraph of this subsection;
(e)
(Repealed by No 96 of 2014)
(f)
an amount of *Division 293 tax payable for an income year in relation to an individual's *taxable contributions for the income year;
(g)
an amount of *excess exploration credit tax for an income year;
(h)
an amount of *excess transfer balance tax payable for an *excess transfer balance period;
(i)
an amount of levy under the Major Bank Levy Act 2017 for a *quarter;
(j)
an amount of *diverted profits tax;
(k)
an amount of *first home super saver tax for an income year;
(l)
an amount of *Laminaria and Corallina decommissioning levy for a financial year.
Note:
This Division has a modified operation in relation to diverted profits tax (see Division 145).
History
S 155-5(2) amended by No 24 of 2022, s 3 and Sch 1 item 12, by inserting para (l), effective 2 April 2022 and applicable in relation to financial years starting on or after 1 July 2021.
S 155-5(2) amended by No 132 of 2017, s 3 and Sch 1 item 17, by inserting para (k), effective 1 July 2018.
S 155-5(2) amended by No 27 of 2017, s 3 and Sch 1 item 45, by inserting para (j) and the note, applicable in relation to DPT tax benefits for a year of income that starts on or after 1 July 2017 (whether or not the DPT tax benefit arises in connection with a scheme that was entered into, or was commenced to be carried out, before 1 July 2017).
S 155-5(2) amended by No 64 of 2017, s 3 and Sch 1 item 16, by inserting para (i), applicable in relation to quarters starting on or after 1 July 2017.
S 155-5(2) amended by No 81 of 2016, s 3 and Sch 1 item 16, by inserting para (h), effective 1 January 2017 and applicable on and after 1 July 2017.
S 155-5(2) amended by No 21 of 2015, s 3 and Sch 6 item 31, by inserting para (g), applicable in relation to the 2015-16, 2016-17 and 2017-18 income years, but not in relation to any later income years.
S 155-5(2) amended by No 82 of 2013, s 3 and Sch 3 item 3, by inserting para (f) effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
S 155-5(2) amended by No 96 of 2014, s 3 and Sch 1 item 66, by repealing para (e), effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. Para (e) formerly read:
(e)
an amount of *MRRT payable for an *MRRT year in relation to a *taxable mining profit for the MRRT year;
S 155-5(2) amended by No 14 of 2012, s 3 and Sch 2 item 2, by inserting para (e), effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
History
S 155-5 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 155-10
COMMISSIONER MUST GIVE NOTICE OF ASSESSMENT
155-10(1)
The Commissioner must give you notice of an assessment of an *assessable amount of yours as soon as practicable after the assessment is made.
Note:
This section also applies to an amended assessment: see section 155-80.
155-10(2)
The Commissioner may give you the notice electronically if you are required to lodge, or have lodged, the return (if any) that relates to the *assessable amount electronically.
History
S 155-10 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 155-15
SELF-ASSESSMENT
155-15(1)
The Commissioner is treated as having made an assessment under section 155-5 of an *assessable amount mentioned in an item of the following table, if the document mentioned in the item is given to the recipient mentioned in the item:
|
Self-assessed amounts
|
|
Item
|
Column 1
Assessable amount
|
Column 2
Recipient
|
Column 3
Document
|
| 1 |
your *net amount for a *tax period |
the Commissioner |
your *GST return for the tax period |
| |
|
|
|
| 2 |
your *net fuel amount for a *tax period |
the Commissioner |
your *fuel tax return for the tax period |
| |
|
|
|
| 3 |
the *GST payable by you on a *taxable importation |
the Collector (within the meaning of the Customs Act 1901) or the Department administered by the Minister administering Part XII of that Act |
return, given as described in one of the following provisions, in relation to the importation: |
| |
|
|
(a) paragraph 69(8)(a), (b), (c) or (da), or 70(7)(a), of the Customs Act 1901; |
| |
|
|
(b) regulations prescribed for the purposes of paragraph 69(8)(d) of that Act |
| 4 |
an amount of *excess exploration credit tax for an income year |
the Commissioner |
return given under section 418-160 for the income year |
| 5 |
an amount of levy under the Major Bank Levy Act 2017 for a *quarter |
the Commissioner |
return given undersection 115-5 for the quarter |
Note:
There is no self-assessment of Division 293 tax, excess transfer balance tax or first home super saver tax.
History
S 155-15(1) amended by No 40 of 2023, s 3 and Sch 4 item 17, by substituting ", (c) or (da)" for "or (c)" in para (a) of table item 3, column 3, effective 1 July 2023.
S 155-15(1) amended by No 132 of 2017, s 3 and Sch 1 item 18, by substituting ", excess transfer balance tax or first home super saver tax" for "or excess transfer balance tax" in the note, effective 1 July 2018.
S 155-15(1) amended by No 64 of 2017, s 3 and Sch 1 item 17, by inserting table item 5, applicable in relation to quarters starting on or after 1 July 2017.
S 155-15(1) amended by No 81 of 2016, s 3 and Sch 1 item 17, by substituting "Division 293 tax or excess transfer balance tax" for "Division 293 tax" in the note, effective 1 January 2017 and applicable on and after 1 July 2017.
S 155-15(1) amended by No 41 of 2015, s 3 and Sch 5 item 152, by substituting cell at table item 3, column 2, effective 1 July 2015. No 41 of 2015, s 3 and Sch 5 item 159(1) contains the following saving and transitional provision:
159 Saving and transitional provisions
(1)
Section 155-15 in Schedule 1 to the Taxation Administration Act 1953, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to a document mentioned in column 3 of item 3 of the table in subsection 155-15(1) in that Schedule that was given to Customs before that commencement.
…
The cell at table item 3, column 2 formerly read:
Customs
S 155-15(1) amended by No 21 of 2015, s 3 and Sch 6 item 32, by inserting table item 4, applicable in relation to the 2015-16, 2016-17 and 2017-18 income years, but not in relation to any later income years.
S 155-15(1) amended by No 110 of 2014, s 3 and Sch 5 item 134, by substituting the cell at table item 3, column 3, effective 16 October 2014 and applicable in relation to GST payable on or after the day this Act receives the Royal Assent on taxable importations. The cell formerly read:
return given under paragraph 69(5)(c) or 70(7)(a) of the Customs Act 1901 in relation to the importation
S 155-15(1) amended by No 96 of 2014, s 3 and Sch 1 item 67, by repealing table item 4, effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. Table item 4 formerly read:
| "4 |
the *MRRT payable by you for an *MRRT year in relation to your *taxable mining profit for the MRRT year |
the Commissioner |
your *MRRT return for the MRRT year" |
S 155-15(1) amended by No 82 of 2013, s 3 and Sch 3 item 4, by inserting the note at the end, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
S 155-15(1) amended by No 14 of 2012, s 3 and Sch 2 item 3, by inserting table item 4, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
155-15(2)
The assessment is treated as having been made on the day the document is given to the recipient mentioned in column 2.
155-15(3)
The amount assessed is:
(a)
if the document is required to state the *assessable amount - the amount (including a nil amount) stated; or
(b)
otherwise - the amount (including a nil amount) worked out in accordance with the information stated in the document.
155-15(4)
The document is treated as being a notice of the assessment:
(a)
signed by the Commissioner; and
(b)
given to you under section155-10 on the day the document is given to the recipient.
155-15(5)
This section does not apply to an *assessable amount if the Commissioner has already assessed the assessable amount on or before the day mentioned in paragraph (4)(b).
History
S 155-15 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 155-20
ASSESSMENT OF INDIRECT TAX ON IMPORTATIONS AND CUSTOMS DEALING
155-20(1)
The Commissioner is treated as having made an assessment under section 155-5 of the *GST, *luxury car tax or *wine tax (whichever is applicable) payable by you on a *taxable importation, *taxable importation of a luxury car or *customs dealing, if:
(a)
the document mentioned in column 1 of an item of the following table is communicated to the Department administered by the Minister administering Part XII of the Customs Act 1901, in respect of the importation or dealing; and
(b)
a Collector (within the meaning of the Customs Act 1901) gives the document mentioned in column 2 of the item to an entity in respect of the importation or dealing.
|
Customs documents
|
|
Item
|
Column 1
Document communicated
|
Column 2
Document given to an entity
|
| 1 |
an *import declaration |
an *import declaration advice |
| |
|
|
| 2 |
a self-assessed clearance declaration (within the meaning of the Customs Act 1901) |
a *self-assessed clearance declaration advice |
History
S 155-20(1) amended by No 41 of 2015, s 3 and Sch 5 items 153-155, by substituting "the Department administered by the Minister administering Part XII of the Customs Act 1901," for "Customs" in para (a), "a Collector (within the meaning of the Customs Act 1901)" for "Customs" in para (b) and substituting table heading to column 1, effective 1 July 2015. No 41 of 2015, s 3 and Sch 5 items 159(2) and (3) contain the following saving and transitional provisions:
159 Saving and transitional provisions
…
(2)
Section 155-20 in Schedule 1 to the Taxation Administration Act 1953, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to the following documents given before that commencement:
(a)
a document mentioned in column 1 of item 1 or 2 of the table in subsection 155-20(1) in that Schedule communicated to Customs in respect of an importation or dealing;
(b)
a document mentioned in column 2 of that table item given by Customs to an entity in respect of that importation or dealing.
(3)
If:
(a)
before the commencement of this item, a document mentioned in column 1 of item 1 or 2 of the table in subsection 155-20(1) in Schedule 1 to the Taxation Administration Act 1953 was communicated to Customs in respect of an importation or dealing; but
(b)
before that commencement, Customs had not given the document mentioned in column 2 of that table item to an entity in respect of that importation or dealing;
then section 155-20 in that Schedule applies on and after that commencement as if the document mentioned in column 1 of that table item had been communicated to the Department administered by the Minister administering Part XII of the Customs Act 1901.
…
The table heading to column 1 formerly read:
Column 1
Document communicated to Customs
155-20(2)
The assessment is treated as having been made on the day a Collector (within the meaning of the Customs Act 1901) gives the document mentioned in paragraph (1)(b) to the entity.
History
S 155-20(2) amended by No 41 of 2015, s 3 and Sch 5 item 156, by substituting "a Collector (within the meaning of the Customs Act 1901)" for "Customs", effective 1 July 2015. For saving and transitional provisions, see note under s 155-20(1).
155-20(3)
The amount assessed is the amount (including a nil amount) worked out in accordance with the information stated in the 2 documents.
155-20(4)
The 2 documents are treated as together being a notice of the assessment:
(a)
signed by the Commissioner; and
(b)
given to you under section 155-10 on the day a Collector (within the meaning of the Customs Act 1901) gives the document mentioned in paragraph (1)(b) of this section to the entity.
History
S 155-20(4) amended by No 41 of 2015, s 3 and Sch 5 item 157, by substituting "a Collector (within the meaning of the Customs Act 1901)" for "Customs" in para (b), effective 1 July 2015. For saving and transitional provisions, see note under s 155-20(1).
155-20(5)
This section does not apply if the Commissioner has already assessed the *GST, *luxury car tax or *wine tax on or before the day mentioned in paragraph (4)(b).
History
S 155-20 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 155-25
155-25
SPECIAL ASSESSMENT
For the purposes of making, under section 155-5, an assessment of an *assessable amount that relates to a period (e.g. a tax period), the Commissioner may treat part of the period as being the whole period.
History
S 155-25 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 155-30
DELAYS IN MAKING ASSESSMENTS
155-30(1)
You may give the Commissioner a written notice requiring the Commissioner to make an assessment of an *assessable amount of yours, if, 6 months after the day on which the relevant return (if any) for the assessable amount is given to the Commissioner, the Commissioner has not given to you notice of an assessment of the assessable amount under section 155-10.
155-30(2)
You may object, in the manner set out in Part IVC of this Act, against the Commissioner's failure to make the assessment if the Commissioner does not make the assessment within 30 days after the day the notice is given under subsection (1).
155-30(3)
This section does not apply to the following *assessable amounts:
(a)
the *Division 293 tax payable by you in relation to an income year in relation to your *taxable contributions for the income year;
(b)
the *excess transfer balance tax payable by you for an *excess transfer balance period;
(c)
the *first home super saver tax payable by you for an income year;
(d)
the *Laminaria and Corallina decommissioning levy payable by you for a financial year.
History
S 155-30(3) amended by No 24 of 2022, s 3 and Sch 1 item 13, by inserting para (d), effective 2 April 2022 and applicable in relation to financial years starting on or after 1 July 2021.
S 155-30(3) amended by No 132 of 2017, s 3 and Sch 1 item 19, by inserting para (c), effective 1 July 2018.
S 155-30(3) substituted by No 81 of 2016, s 3 and Sch 1 item 18, effective 1 January 2017 and applicable on and after 1 July 2017. S 155-30(3) formerly read:
155-30(3)
This section does not apply if the *assessable amount is the *Division 293 tax payable by you in relation to an income year in relation to your *taxable contributions for the income year.
S 155-30(3) substituted by No 96 of 2014, s 3 and Sch 1 item 68, effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. S 155-30(3) formerly read:
155-30(3)
This section does not apply to the following *assessable amounts:
(a)
the *MRRT payable by you for an *MRRT year in relation to your *taxable mining profit for the MRRT year;
(b)
the *Division 293 tax payable by you in relation to an income year in relation to your *taxable contributions for the income year.
S 155-30(3) substituted by No 82 of 2013, s 3 and Sch 3 item 5, effective 28 June 2013. For application provision, see note under Pt 3-20 heading. S 155-30(3) formerly read:
155-30(3)
This section does not apply if the *assessable amount is the *MRRT payable by you for an *MRRT year in relation to your *taxable mining profit for the MRRT year.
S 155-30(3) inserted by No 14 of 2012, s 3 and Sch 2 item 4, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
History
S 155-30 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
Subdivision 155-B - Amending assessments
History
Subdiv 155-B inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
When Commissioner may amend assessments
SECTION 155-35
AMENDMENT DURING PERIOD OF REVIEW
Amendment
155-35(1)
The Commissioner may amend an assessment of an *assessable amount within the *period of review for the assessment.
Note 1:
An amendment of anassessment can be reviewed: see Subdivision 155-C.
Note 2:
This section also applies to amended assessments: see section 155-80. However, there are limits on how amended assessments can be amended: see sections 155-65 and 155-70.
Meaning of
period of review
155-35(2)
The
period of review
, for an assessment of an *assessable amount of yours, is:
(a)
the period:
(i)
starting on the day on which the Commissioner first gives notice of the assessment to you under section 155-10; and
(ii)
ending on the last day of the period of 4 years starting the day after that day; or
(b)
if the period of review is extended under subsection (3) or (4) of this section - the period as so extended.
Extensions
155-35(3)
The Federal Court of Australia may order an extension of the *period of review for an assessment of an *assessable amount of yours for a specified period, if:
(a)
the Commissioner has started to examine your affairs in relation to the assessment; and
(b)
the Commissioner has not completed the examination within the period of review for the assessment; and
(c)
the Commissioner, during the period of review, applies to the Federal Court of Australia for an order extending the period; and
(d)
the Court is satisfied that it was not reasonably practicable, or it was inappropriate, for the Commissioner to complete the examination within the period of review, because of:
(i)
any action taken by you; or
(ii)
any failure by you to take action that it would have been reasonable for you to take.
155-35(4)
You may, by written notice given to the Commissioner, consent to the extension of the *period of review for an assessment of an *assessable amount of yours for a specified period, if:
(a)
the Commissioner has started to examine your affairs in relation to the assessment; and
(b)
the Commissioner has not completed the examination within the period of review for the assessment; and
(c)
the Commissioner, during the period of review, requests you to consent to extending the period of review.
155-35(5)
An order may be made under subsection (3), or consent given under subsection (4), in relation to an assessment of an *assessable amount more than once.
History
S 155-35 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 155-40
AMENDMENT DURING PERIOD OF REVIEW - CERTAIN APPLICATIONS TAKEN TO BE NOTICES
155-40(1)
An application made by you for an amendment of an assessment of an *assessable amount of yours is treated as being a notice of the amended assessment given to you by the Commissioner under section 155-10, if:
(a)
the application is in the *approved form; and
(b)
the Commissioner makes the amendment:
(i)
to give effect to the decision on the application; and
(ii)
during the *period of review for the assessment; and
(c)
the amendment the Commissioner makes is the entire amendment for which you applied, and nothing else.
155-40(2)
The notice is treated as having been given to you on whichever of the following is applicable:
(a)
the first day the Commissioner adjusts the balance of an *RBA of yours as a result of the amendment;
(b)
the day a Collector (within the meaning of the Customs Act 1901) gives an *import declaration advice, or a *self-assessed clearance declaration advice, to an entity in respect of the relevant *taxable importation, *taxable importation of a luxury car or *customs dealing as a result of the amendment.
History
S 155-40(2) amended by No 41 of 2015, s 3 and Sch 5 item 158, by substituting "a Collector (within the meaning of the Customs Act 1901)" for "Customs" in para (b), effective 1 July 2015. No 41 of 2015, s 3 and Sch 5 item 159(4) contains the following saving and transitional provision:
159 Saving and transitional provisions
…
(4)
Section 155-40 in Schedule 1 to the Taxation Administration Act 1953, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to an advice mentioned in paragraph 155-40(2)(b) in that Schedule that was given by Customs to an entity before that commencement.
History
S 155-40 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 155-45
155-45
AMENDMENT ON APPLICATION
The Commissioner may amend an assessment of an *assessable amount of yours at any time, if you apply for an amendment in the *approved form during the *period of review for the assessment. The Commissioner may amend the assessment to give effect to his or her decision on the application.
Note:
The Commissioner must give you notice of the amended assessment under section 155-10: see section 155-80.
History
S 155-45 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 155-50
155-50
AMENDMENT TO GIVE EFFECT TO PRIVATE RULING
The Commissioner may amend an assessment of an *assessable amount of yours at any time, if:
(a)
you apply for a *private ruling during the *period of review for the assessment; and
(b)
the Commissioner makes a private ruling because of the application.
The Commissioner may amend the assessment to give effect to the ruling.
History
S 155-50 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 155-55
155-55
AMENDMENT TO GIVE EFFECT TO CERTAIN ANTI-AVOIDANCE DECLARATIONS
The Commissioner may amend an assessment of an *assessable amount at any time, if:
(a)
the Commissioner makes a declaration under subsection 165-45(3) of the *GST Act (about compensating adjustments for anti-avoidance declarations); or
(b)
the Commissioner makes a declaration under subsection 75-45(3) of the Fuel Tax Act 2006 (about compensating adjustments for anti-avoidance declarations).
(c)
(Repealed by No 96 of 2014)
The Commissioner may amend the assessment to give effect to the declaration.
History
S 155-55 amended by No 96 of 2014, s 3 and Sch 1 items 70-72, by substituting "declarations)." for "declarations); or" in para (b), repealing para (c) and omitting "or determination" after "effect to the declaration", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. Para (c) formerly read:
(c)
the Commissioner makes a determination under section 210-30 of the Minerals Resource Rent Tax Act 2012 (about compensating adjustments for anti-avoidance determinations); or
S 155-55 substituted by No 14 of 2012, s 3 and Sch 2 item 5, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
S 155-55 formerly read:
SECTION 155-55 AMENDMENT TO GIVE EFFECT TO CERTAIN ANTI-AVOIDANCE DECLARATIONS
155-55
The Commissioner may amend an assessment of an *assessable amount at any time, if:
(a)
the Commissioner makes a declaration under subsection 165-45(3) of the *GST Act (about compensating adjustments for anti-avoidance declarations); or
(b)
the Commissioner makes adeclaration under subsection 75-45(3) of the Fuel Tax Act 2006 (about compensating adjustments for anti-avoidance declarations).
The Commissioner may amend the assessment to give effect to the declaration.
S 155-55 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
155-57
155-57
(Repealed) SECTION 155-57 AMENDMENT TO GIVE EFFECT TO MRRT ANTI-PROFIT SHIFTING RULES
(Repealed by No 96 of 2014)
History
S 155-57 repealed by No 96 of 2014, s 3 and Sch 1 item 73, effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. S 155-57 formerly read:
SECTION 155-57 AMENDMENT TO GIVE EFFECT TO MRRT ANTI-PROFIT SHIFTING RULES
155-57
The Commissioner may amend an assessment of an *assessable amount of yours at any time for the purposes of giving effect to Division 205 (about anti-profit shifting) of the Minerals Resource Rent Tax Act 2012.
S 155-57 inserted by No 14 of 2012, s 3 and Sch 2 item 5, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 155-60
155-60
AMENDMENT BECAUSE OF REVIEW, OBJECTION OR FRAUD
Despite anything in this Subdivision, the Commissioner may amend an assessment of an *assessable amount of yours at any time:
(a)
to give effect to a decision on a review or appeal; or
(b)
as a result of an objection made by you, or pending a review or appeal; or
(c)
if he or she is of the opinion there has been fraud or evasion.
History
S 155-60 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
Special rules about amending amended assessments
SECTION 155-65
155-65
AMENDING AMENDED ASSESSMENTS
The Commissioner cannot amend an amended assessment of an *assessable amount under section 155-35 if the *period of review for the assessment has ended.
Note:
The Commissioner can amend amended assessments at any time under sections 155-45 to 155-60.
History
S 155-65 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 155-70
REFRESHED PERIOD OF REVIEW
155-70(1)
This section applies if the Commissioner has made one or more amendments of an assessment of an *assessable amount of yours under section 155-35 about a particular.
155-70(2)
Despite section 155-65, the Commissioner may amend (the
later amendment
) the amended assessment after the end of the *period of review for the assessment, if:
(a)
the Commissioner makes the later amendment before the end of the period of 4 years starting on the day after the day on which the Commissioner gave notice of the last of the amendments mentioned in subsection (1) to you under section 155-10; and
(b)
the later amendment is about the particular mentioned in subsection (1) of this section; and
(c)
the Commissioner has not previously amended the assessment under this section about that particular.
History
S 155-70 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
General rules
SECTION 155-75
REFUNDS OF AMOUNTS OVERPAID
155-75(1)
This section applies if:
(a)
an assessment of an *assessable amount of yours is amended; and
(b)
as a result of the amendment, a *tax-related liability (the
earlier liability
) of yours is reduced.
155-75(2)
For the purposes of any *taxation law that applies the *general interest charge, the amount by which the *tax-related liability is reduced is taken never to have been payable.
Note 1:
The general interest charge is worked out under Part IIA of this Act.
Note 2:
Subsection 8AAB(4) of this Act lists the provisions that apply the charge.
155-75(3)
The Commissioner must apply the amount of any *tax-related liability overpaid in accordance with Divisions 3 and 3A of Part IIB of this Act (about running balance accounts and the application of payments and credits).
155-75(4)
However, if:
(a)
a later amendment of an assessment of an *assessable amount is made; and
(b)
all or some of your earlier liability in relation to a particular is reinstated;
this section is taken not to have applied to the extent that the earlier liability is reinstated.
History
S 155-75 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 155-80
155-80
AMENDED ASSESSMENTS ARE ASSESSMENTS
An amended assessment of an *assessable amount is an assessment for all purposes of any *taxation law.
Note:
The Commissioner must give notice of the amended assessment under section 155-10. Under section 155-40, an application for an amendment is treated as being a notice of the amendment in certain circumstances.
History
S 155-80 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
Subdivision 155-C - Validity and review of assessments
History
Subdiv 155-C inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 155-85
155-85
VALIDITY OF ASSESSMENT
The validity of any assessment of an *assessable amount is not affected by non-compliance with the provisions of this Act or of any other *taxation law.
History
S 155-85 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 155-90
155-90
REVIEW OF ASSESSMENTS
You may object, in the manner set out in Part IVC of this Act, against an assessment of an *assessable amount of yours if you are dissatisfied with the assessment.
Note:
If an individual is dissatisfied with a statement given to the Commissioner by a superannuation provider under section 390-5 in this Schedule, the individual may make a complaint under the AFCA scheme (within the meaning of the Corporations Act 2001).
History
S 155-90 amended by No 76 of 2023, s 3 and Sch 2 item 730, by omitting "Chapter 7 of" before "the Corporations Act 2001" from the note, effective 20 October 2023.
S 155-90 amended by No 13 of 2018, s 3 and Sch 1 item 56, by substituting the note, effective 6 March 2018. For application provision, see note under s 133-120(2). The note formerly read:
Note:
If an individual is dissatisfied with a statement given to the Commissioner by a superannuation provider under section 390-5 in this Schedule, the individual may make a complaint:
(a) under the AFCA scheme (within the meaning of Chapter 7 of the Corporations Act 2001), but not before the authorisation of the scheme comes into force; or
(b) under section 15CA of the Superannuation (Resolution of Complaints) Act 1993, but not on or after the day on or after which complaints cannot be made because of section 14AB of that Act.
S 155-90 amended by No 13 of 2018, s 3 and Sch 1 item 28, by substituting the note, effective 6 March 2018 and applicable on and after the day on which the first authorisation of an external dispute resolution scheme, under Part 7.10A of the Corporations Act 2001, comes into force. The note formerly read:
Note:
An individual may make a complaint to the Superannuation Complaints Tribunal under section 15CA of the Superannuation (Resolution of Complaints) Act 1993 if the individual is dissatisfied with a statement given to the Commissioner by a superannuation provider under section 390-5 in this Schedule.
S 155-90 renumbered from s 155-90(1) by No 96 of 2014, s 3 and Sch 1 item 74, by omitting "(1)" before "You", effective 30 September 2014. For transitional provisions, see note under Pt 3-15 heading.
S 155-90(1) amended by No 82 of 2013, s 3 and Sch 3 item 16, by inserting the note, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
S 155-90(1) renumbered from s 155-90 by No 14 of 2012, s 3 and Sch 2 item 6, by inserting "(1)" before "You", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
S 155-90 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision see note under Part 4-1 heading.
155-90(2)
(Repealed by No 96 of 2014)
History
S 155-90(2) repealed by No 96 of 2014, s 3 and Sch 1 item 75, effective 30 September 2014. For transitional provisions, see note under Pt 3-15 heading. S 155-90(2) formerly read:
155-90(2)
You cannot object under subsection (1) against an assessment ascertaining that:
(a)
you have no *taxable mining profit for an *MRRT year; or
(b)
you have a taxable mining profit and no *MRRT payable for an MRRT year;
unless you are seeking an increase in your liability.
S 155-90(2) inserted by No 14 of 2012, s 3 and Sch 2 item 7, effective 1 July 2012. For application and transitional provisions, see note under Part 3-15 heading.
Subdivision 155-D - Miscellaneous
History
Subdiv 155-D inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision, see note under Part 4-1 heading.
SECTION 155-95
155-95
ENTITIES
This Division applies, in relation to an *assessable amount under a *taxation law, to an entity under that taxation law in the same way as the Division applies to an entity under the Income Tax Assessment Act 1997.
History
S 155-95 inserted by No 39 of 2012, s 3 and Sch 1 item 1, effective 1 July 2012. For application provision, see note under Part 4-1 heading.
PART 4-15 - COLLECTION AND RECOVERY OF TAX-RELATED LIABILITIES AND OTHER AMOUNTS
History
Pt 4-15 inserted by No 179 of 1999.
Division 250 - Introduction
History
Div 250 inserted by No 179 of 1999.
Subdivision 250-A - Guide to Part 4-15
SECTION 250-1
WHAT THIS PART IS ABOUT
This Part deals with the methods by which the Commissioner may collect and recover amounts of taxes and other liabilities.
These rules may affect you if you are liable to pay an amount of a tax-related liability (see, for example, Division 255). Some of the rules may also affect you because of your relationship with someone else who is liable for such an amount (see Division 260).
History
S 250-1 inserted by No 179 of 1999.
TABLE OF SECTIONS
TABLE OF SECTIONS
| 250-5 |
Some important concepts about tax-related liabilities |
| 250-10 |
Summary of tax-related liabilities |
SECTION 250-5
SOME IMPORTANT CONCEPTS ABOUT TAX-RELATED LIABILITIES
250-5(1)
A tax-related liability may arise for an entity before it becomes due and payable by that entity.
Example:
Under Part 2-5, an entity's liability to pay a withheld amount may arise before the amount is due and payable.
250-5(2)
For some tax-related liabilities, an assessment needs to be made before the amount of the relevant liability becomes due and payable.
Example:
Under Division 5 of the Income Tax Assessment Act 1997, an amount of income tax needs to be assessed before it becomes due and payable.
History
S 250-5(2) amended by No 79 of 2010, s 3 and Sch 1 item 42, by substituting "Division 5 of the Income Tax Assessment Act 1997" for "Division 1 of Part VI of the Income Tax Assessment Act 1936" in the example, effective 1 July 2010.
250-5(3)
An amount of a tax-related liability may become payable by an entity (for example, when the amount has been assessed) before it is due and payable by that entity.
History
S 250-5 inserted by No 179 of 1999.
SECTION 250-10
SUMMARY OF TAX-RELATED LIABILITIES
250-10(1)
The following table is an index of each tax-related liability under the Income Tax Assessment Act 1936. The key provision for the liability, as set out in the table, specifies when the liability becomes due and payable.
Note 1:
The Commissioner may vary the time at which the amount becomes due and payable. See Subdivision 255-B.
Note 2:
Members and former members of consolidated groups and MEC groups may be jointly and severally liable to pay certain tax-related liabilities related to the group's activities (see Division 721 of the Income Tax Assessment Act 1997).
|
Tax-related liabilities under the
Income Tax Assessment Act 1936
|
|
Item
|
Topic
|
Provision
|
| 5 |
trustee beneficiary non-disclosure tax |
102UO |
| 10 |
withholding tax on dividend, interest or royalty |
128C(1) |
| 15 |
special tax payable on dealings by offshore banking units |
128NB(3) |
| 20 |
mining withholding tax |
128W(1) |
| 25 |
(Repealed by No 80 of 2006) |
|
| 30-45 |
(Repealed by No 16 of 2003) |
|
| 50 |
late lodgment penalty |
former subsection 163A(3) |
| 55 |
(Repealed by No 79 of 2010) |
|
| 60 |
(Repealed by No 101 of 2006) |
|
| 65 |
(Repealed by No 79 of 2010) |
|
| 70 |
excessive tax offset refunds |
172A(2) |
| 75 |
(Repealed by No 79 of 2010) |
|
| 80 |
diverted profits tax |
subsection 177P(3) |
| 85 |
shortfall interest charge for diverted profits tax |
section 177R |
| 90 |
family trust distribution tax |
271-75 in Schedule 2F |
| 100 |
interest payable under section 102AAM (about distributions from non resident trust estates) |
5-5 of the Income Tax Assessment Act 1997 |
| 105 |
(Repealed by No 4 of 2018) |
|
History
Archived:
S 250-10(1) table item 60 repealed as inoperative by No 101 of 2006, s 3 and Sch 1 item 298, effective 14 September 2006. For application and savings provisions and for former wording see the CCH Australian Income Tax Legislation archive.
History
S 250-10(1) amended by No 8 of 2019, s 3 and Sch 8 item 57, by substituting "former subsection 163A(3)" for "163A(3)" in table item 50, effective 1 April 2019.
S 250-10(1) amended by No 4 of 2018, s 3 and Sch 6 item 25, by repealing table item 105, effective 21 February 2018. For application provisions, see note under s 8AB. Table item 105 formerly read:
| 105 |
tax payable under section 159GZZZZH (Tax payable where infrastructure borrowing certificate cancelled) |
5-5 of the Income Tax Assessment Act 1997 |
S 250-10(1) amended by No 27 of 2017, s 3 and Sch 1 item 46, by inserting table items 80 and 85, applicable in relation to DPT tax benefits for a year of income that starts on or after 1 July 2017 (whether or not the DPT tax benefit arises in connection with a scheme that was entered into, or was commenced to be carried out, before 1 July 2017).
S 250-10(1) amended by No 88 of 2013, s 3 and Sch 5 item 23, by inserting table item 70, applicable to assessments made on or after 1 July 2013 for the 2013-14 income year or later income years.
S 250-10(1) amended by No 79 of 2010, s 3 and Sch 1 items 43 and 44, by omitting table items 55 and 65 to 85, and inserting table items 100 and 105, effective 1 July 2010. Table items 55 and 65 to 85 formerly read:
55 … income tax, including any liability taken to be income tax for the purposes of section 204 … 204
65 … estimate of unremitted amounts … 222AGB(2)
70 … amount payable under a payment agreement … 222ALA
75 … penalty under Subdivision B of Part 9 … 222AOE
80 … penalty under Subdivision C of Part 9 … 222APE
85 … penalty for failing to ensure that a company complies with a payment agreement … 222AQA
S 250-10(1) amended by No 143 of 2007, s 3 and Sch 4 item 48, by substituting "trustee" for "ultimate" in table item 5, apply to the first income year starting on or after 24 September 2007 and later income years.
S 250-10(1) amended by No 80 of 2006, s 3 and Sch 4 item 12, by repealing table item 25, applicable in relation to transfers made into a company's share capital account after 25 May 2006. The table item formerly read:
25 ... untainting tax ... 160ARDZ
S 250-10(1) amended by No 16 of 2003.
250-10(2)
The following table is an index of each tax-related liability under other Acts. The key provision for the liability, as set out in the table, specifies when the liability becomes due and payable.
Note 1:
The Commissioner may vary the time at which the amount becomes due and payable. See Subdivision 255-B.
Note 2:
Members and former members of consolidated groups and MEC groups may be jointly and severally liable to pay certain tax-related liabilities related to the group's activities (see Division 721 of the Income Tax Assessment Act 1997).
Note 3:
Companies that are or were members of the same wholly-owned group as an NZ franking company may be jointly and severally liable to pay certain tax-related liabilities of the NZ franking company (see Division 220 of the Income Tax Assessment Act 1997).
Note 4:
Penalties under Division 175 of the Australian Charities and Not-for-profits Commission Act 2012, and related general interest charge, are treated in the same way as tax-related liabilities: see subsection 175-70(2) of that Act.
Note 5:
A liability for a fee that is due and payable under subsection 113(5) of the Foreign Acquisitions and Takeovers Act 1975 is a tax-related liability if the power of the Treasurer to recover the fee under that subsection is delegated to the Commissioner of Taxation under section 137 of that Act (see subsections 138(1) and (2) of that Act).
History
Archived:
S 250-10(2) table items 75, 80 and 150 to 165 repealed as inoperative by No 101 of 2006, s 3 and Sch 1 item 299 and Sch 5 item 157, effective 14 September 2006. For application and savings provisions and for former wording see the CCH Australian Income Tax Legislation archive.
History
S 250-10(2) amended by No 90 of 2024, s 3 and Sch 2 item 8, by inserting table items 39C to 39F, effective 2 October 2024.
S 250-10(2) amended by No 61 of 2023, s 3 and Sch 1 items 146 and 147, by substituting "AASL" for "TSL" and "Australian Apprenticeship Support Loans Act 2014" for "Trade Support Loans Act 2014" in table item 36D, effective 1 January 2024. For transitional provisions, see note under s 11-1.
S 250-10(2) amended by No 75 of 2022, s 3 and Sch 4 item 37, by substituting "labour mobility program withholding tax" for "Seasonal Labour Mobility Program withholding tax" in table item 39AA, applicable in relation to salary, wages, commission, bonuses and allowances paid on or after 1 July 2022.
S 250-10(2) amended by No 24 of 2022, s 3 and Sch 1 item 14, by inserting table items 136AA and 136AB, effective 2 April 2022 and applicable in relation to financial years starting on or after 1 July 2021.
S 250-10(2) amended by No 45 of 2021, s 3 and Sch 2 items 10 and 11, by repealing table items 37AD and 135Q, applicable in relation to excess concessional contributions for a financial year starting on or after 1 July 2021. Table items 37AD and 135Q formerly read:
| 37AD |
shortfall interest charge on excess concessional contributions charge |
5-10 |
Income Tax Assessment Act 1997 |
| 135Q |
excess concessional contributions charge |
95-20 in Schedule 1 |
Taxation Administration Act 1953 |
S 250-10(2) amended by No 24 of 2021, s 3 and Sch 2 item 33, by inserting table items 69AE and 69AF, effective 29 March 2021.
S 250-10(2) amended by No 24 of 2021, s 3 and Sch 1 item 47, by inserting table items 69AC and 69AD, effective 23 March 2021.
S 250-10(2) amended by No 38 of 2020, s 3 and Sch 2 item 13, by inserting table item 143, effective 9 April 2020.
S 250-10(2) amended by No 22 of 2020, s 3 and Sch 3 item 5, by inserting table item 142, effective 24 March 2020.
S 250-10(2) amended by No 116 of 2018, s 3 and Sch 1 item 59, by inserting table item 36AA, effective 1 July 2019.
S 250-10(2) amended by No 16 of 2019, s 3 and Sch 3 items 36 and 37, by inserting table items 69AA, 69AB and 69BA, effective 13 March 2019. For application and transitional provisions, see note under s 8AAB(4).
S 250-10(2) amended by No 132 of 2017, s 3 and Sch 1 item 20, by inserting table item 38BD, effective 1 July 2018.
S 250-10(2) amended by No 81 of 2016, s 3 and Sch 10 item 40, by substituting "131-35" for "96-20" in table item 135R, effective 1 July 2018. For application provisions, see note under Div 131 heading.
S 250-10(2) amended by No 23 of 2018, s 3 and Sch 1 item 73, by repealing table item 145, effective 1 April 2018. For general application and transitional provisions, see note under s 8AAB(4). Table item 145 formerly read:
| 145 |
termination payment surcharge |
11(2) | Termination Payments Tax (Assessment and Collection) Act 1997 |
S 250-10(2) amended by No 126 of 2017, s 3 and Sch 3 items 10 and 11, by inserting note 5 and table items 24D and 24E, effective 15 December 2017.
S 250-10(2) amended by No 64 of 2017, s 3 and Sch 1 item 18, by inserting table item 136, applicable in relation to quarters starting on or after 1 July 2017.
S 250-10(2) amended by No 81 of 2016, s 3 and Sch 1 item 19, by inserting table item 38BC, effective 1 January 2017 and applicable on and after 1 July 2017.
S 250-10(2) amended by No 10 of 2016, s 3 and Sch 1 item 42, by inserting "or 14-205" in table item 101, effective 26 February 2016. For application provision, see note under s 14-205.
S 250-10(2) amended by No 10 of 2016, s 3 and Sch 2 item 28, by inserting table item 101, effective 26 February 2016. For application provision, see note under Subdiv 14-D heading.
S 250-10(2) amended by No 169 of 2015, s 3 and Sch 1 item 99, by inserting table items 36B and 36C, effective 1 January 2016.
S 250-10(2) amended by No 70 of 2015, s 3 and Sch 1 item 166, by repealing table items 24D, 24E and 38C, effective 1 July 2015. Table items 24D, 24E and 38C formerly read:
| 24D |
returnable Government FHSA contributions |
43 |
First Home Saver Accounts Act 2008 |
| 24E |
returnable underpaid amounts in relation to Government FHSA contributions |
47 |
First Home Saver Accounts Act 2008 |
| 38C |
FHSA misuse tax |
section 345-110 |
Income Tax Assessment Act 1997 |
S 250-10(2) amended by No 21 of 2015, s 3 and Sch 1 item 45, by substituting "superannuation" for "concessional" in table item 135R, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
S 250-10(2) amended by No 21 of 2015, s 3 and Sch 6 item 33, by inserting table item 38D, applicable in relation to the 2015-16, 2016-17 and 2017-18 income years, but not in relation to any later income years.
S 250-10(2) amended by No 2 of 2015, s 3 and Sch 2 items 91-93, by substituting "90" for "90(1)" in cell at table item 25, column headed "Provision", repealing table item 30 and omitting "and additional tax" after "petroleum resource rent tax" in table item 40, column headed "Topic", effective 25 February 2015. No 2 of 2015, s 3 and Sch 2 items 95-99, contain the following savings provisions:
Division 2 - Savings provisions
95 Object
95
The object of this Division is to ensure that, despite the repeals and amendments made by Division 1 of this Part, the full legal and administrative consequences of:
(a)
any act done or omitted to be done; or
(b)
any state of affairs existing; or
(c)
any period ending;
before such a repeal or amendment commences, can continue to arise and be carried out, directly or indirectly through an indefinite number of steps, even if some or all of those steps are taken after the repeal or amendment commences.
96 Making and amending assessments, and doing other things, in relation to past matters
96
Even though an Act is amended by Division 1 of this Part, the amendment is disregarded for the purpose of doing any of the following under any Act or legislative instrument:
(a)
making or amending an assessment (including under a provision that is itself repealed or amended);
(b)
exercising any right or power, performing any obligation or duty or doing any other thing (including under a provision that is itself repealed or amended);
in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the amendment commences.
97 Saving of provisions about effect of assessments
97
If a provision or part of a provision that is repealed or amended by Division 1 of this Part deals with the effect of an assessment, the repeal or amendment is disregarded in relation to assessments made, before or after the repeal or amendment commences, in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment commences.
98 Repeals disregarded for the purposes of dependent provisions
98
If the operation of a provision (the
subject provision
) of any Act or legislative instrument depends to any extent on a provision of an Act, and that provision is repealed by Division 1 of this Part, the repeal is disregarded so far as it affects the operation of the subject provision.
99 Division does not limit operation of section 7 of the
Acts Interpretation Act 1901
99
This Division does not limit the operation of section 7 of the Acts Interpretation Act 1901.
Table item 30 formerly read:
| 30 |
additional tax under Part VIII |
90(2) |
Fringe Benefits Tax Assessment Act 1986 |
S 250-10(2) amended by No 96 of 2014, s 3 and Sch 1 item 76, by repealing table items 39C, 39D and 136, effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. Table items 39C, 39D and 136 formerly read:
| 39C |
MRRT |
50-5 |
Minerals Resource Rent Tax Act 2012 |
| 39D |
shortfall interest charge on shortfall in MRRT |
50-10 |
Minerals Resource Rent Tax Act 2012 |
| 136 |
quarterly MRRT instalment |
115-25 in Schedule 1 |
Taxation Administration Act 1953 |
S 250-10(2) amended by No 82 of 2014, s 3 and Sch 1 item 23, by inserting table item 36D, effective 18 July 2014.
S 250-10(2) amended by No 32 of 2014, s 3 and Sch 1 item 4, by repealing table item 142, effective 28 May 2014. For the transitional provision, see note under s 8AAB(4). Table item 142 formerly read:
| 142 |
tax bonus overpayments subsection 8(3) Tax Bonus for Working Australians Act (No. 2) 2009 |
S 250-10(2) amended by No 124 of 2013, s 3 and Sch 1 item 33, by inserting table item 115A, applicable to starting instalment months that start on or after 1 January 2014. For application and transitional provisions, see note under s 45-138.
S 250-10(2) amended by No 118 of 2013, s 3 and Sch 1 items 33, 82, 103 to 105, by inserting table items 37AD, 135Q and 135R, repealing table items 38A and 38BA, and inserting "non-concessional" after "excess" in table item 37AB, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading. Table items 38A and 38BA formerly read:
| 38A |
excess concessional contributions tax |
292-385 |
Income Tax Assessment Act 1997 |
| 38BA |
amount in accordance with refunded excess concessional contributions release authority |
292-420(4)(a) |
Income Tax Assessment Act 1997 |
S 250-10(2) amended by No 82 of 2013, s 3 and Sch 3 items 17 to 21, by inserting table items 37AA, 37AB, 37AC, 38BB, 41 and 136A and repealing table item 73, effective 28 June 2013. For application provision, see note under Pt 3-20 heading. Table item 73 formerly read:
| 73 |
shortfall interest charge |
Division 280 in Schedule 1 |
Taxation Administration Act 1953 |
S 250-10(2) amended by No 169 of 2012, s 3 and Sch 3 item 14A, by inserting note 4, effective 3 December 2012.
S 250-10(2) amended by No 99 of 2012, s 3 and Sch 1 item 15, by inserting table item 110, applicable to an individual in relation to amounts withheld by a company, if: (a) the amounts are withheld during an income year of the individual starting on or after 1 July 2011; and (b) the company is required to pay the amounts withheld to the Commissioner on or after 29 June 2012.
S 250-10(2) amended by No 75 of 2012, s 3 and Sch 4 item 14, by inserting table item 38BA, applicable in relation to excess concessional contributions for the financial year beginning on 1 July 2011 and later financial years.
S 250-10(2) amended by No 39 of 2012, s 3 and Sch 1 item items 214 to 220, by substituting table items 5, 12A and 12B and repealing table item 12, substituting "assessed GST" for "GST" in table item 10, column headed "Topic", substituting "assessed luxury car tax" for "luxury car tax" in table item 15, column headed "Topic", substituting "assessed wine tax" for "wine tax" in table item 20, column headed "Topic", substituting "assessed net fuel amount" for "net fuel amount" in table item 36, column headed "Topic", and substituting "61-5(2)" for "61-5(3)," in table item 36, column headed "Provision", effective 1 July 2012. For application provisions see note under s 8AAZLG(2). Table items 5, 12, 12A and 12B formerly read:
| 5 |
net amount, including amounts in respect of luxury car tax and wine equalisation tax |
33-3, 33-5 |
A New Tax System (Goods and Services Tax) Act 1999 |
| 12 |
excess refund of GST |
35-5(2) |
A New Tax System (Goods and Services Tax) Act 1999 |
| 12A |
GST on supplies made in settlement of claims under insurance policies |
78-90 |
A New Tax System (Goods and Services Tax) Act 1999 |
| 12B |
GST on supplies made in satisfaction of debts |
105-20 |
A New Tax System (Goods and Services Tax) Act 1999 |
S 250-10(2) amended by No 26 of 2012, s 3 and Sch 1 item 42, by inserting table item 45B, applicable in relation to premiums, and amounts in respect of premiums, paid on and after 1 July 2012.
S 250-10(2) amended by No 58 of 2012, s 3 and Sch 1 item 27, by inserting table item 39AA, effective 21 June 2012.
S 250-10(2) amended by No 14 of 2012, s 3 and Sch 1 items 9 and 10, by inserting table items 39C, 39D and 136, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
S 250-10(2) amended by No 39 of 2012, s 3 and Sch 4 item 19, by inserting table items 12A and 12B, effective 15 April 2012.
S 250-10(2) amended by No 68 of 2011, s 3 and Sch 1 item 36, by inserting table item 24CA, effective 1 December 2011.
S 250-10(2) amended by No 79 of 2010, s 3 and Sch 1 items 45 and 46, by inserting table items 36A, 37, 138 and 139, effective 1 July 2010.
S 250-10(2) amended by No 20 of 2010, s 3 and Sch 5 items 8 to 11, by inserting table items 12, 16 and 18 and substituting "61-5(3), 61-10" for "61-10" in table item 36, effective 24 March 2010.
S 250-10(2) amended by No 20 of 2010, s 3 and Sch 2 items 21 and 22, by inserting table items 13 and 21, applicable in relation to goods acquired, and wine purchased, on or after 1 July 2010.
S 250-10(2) amended by No 133 of 2009, s 3 and Sch 3 items 42 and 43, by omitting "section" before "20F" in table item 68, omitting "section" before "20M" in table item 69 and inserting table items 69A and 69B, applicable in relation to: (a) the last unclaimed money day (within the meaning of the Superannuation (Unclaimed Money and Lost Members) Act 1999) occurring before 1 July 2010; and (b) later unclaimed money days.
S 250-10(2) amended by No 133 of 2009, s 3 and Sch 1 item 79, by inserting table item 100, applicable in relation to the ESS interests mentioned in subsections 83A-5(1) and (2) of the Income Tax (Transitional Provisions) Act 1997.
S 250-10(2) amended by No 88 of 2009, s 3 and Sch 2 item 18, by substituting "298-15" for "Divisions 284, 286 and 288" in the column headed "Provision" of table item 140, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
S 250-10(2) amended by No 27 of 2009, s 3 and Sch 1 item 66, by inserting table items 67A and 67B, effective 27 March 2009.
S 250-10(2) amended by No 6 of 2009, s 3 and Sch 1 item 7, by inserting table item 142, effective 18 February 2009.
S 250-10(2) amended by No 151 of 2008, s 3 and Sch 1 item 25, by inserting table items 68 and 69, effective 18 December 2008.
S 250-10(2) amended by No 97 of 2008, s 3 and Sch 3 item 182, by omitting "section" from table items 38A, 38B and 67, effective 3 October 2008.
S 250-10(2) amended by No 32 of 2008, s 3 and Sch 1 item 55, by inserting table items 39A and 39B, applicable to fund payments made in relation to the first income year starting on or after the first 1 July after 23 June 2008 and later income years.
S 250-10(2) amended by No 45 of 2008, s 3 and Sch 1 items 62 and 63, by inserting table items 24D, 24E and 38C, effective 26 June 2008.
S 250-10(2) amended by No 15 of 2007, s 3 and Sch 1 item 384 and 385, by inserting table items 38A, 38B and 67, applicable to the 2007-2008 income year and later years.
S 250-10(2) amended by No 101 of 2006, s 3 and Sch 2 items 966 and 967, by inserting table items 95 and 157, effective 14 September 2006. For application and savings provisions see the CCH Australian Income Tax Legislation archive.
S 250-10(2) amended by No 100 of 2006, s 3 and Sch 1 item 4, by inserting table item 137, applicable to claims for assistance in collection of foreign tax debts made after 14 September 2006.
S 250-10(2) amended by No 80 of 2006, s 3 and Sch 4 item 13, by inserting table item 37A, applicable in relation to transfers made into a company's share capital account after 25 May 2006.
S 250-10(2) amended by No 78 of 2006, s 3 and Sch 1 item 11, by inserting table item 45A, applicable only in relation to instalment transfers under the Petroleum Resource Rent Tax Assessment Act 1987 for financial years that start on or after 1 July 2006.
S 250-10(2) amended by No 74 of 2006, s 3 and Sch 1 items 98 to 100, by repealing table items 21, 23 and 37 and substituting table items 24A, 24B and 24C for table item 24B, effective 1 July 2006. The table items formerly read:
21 ... coal excise duty ... 23 ... Coal Excise Act 1949
23 ... stock deficiency ... 50 ... Distillation Act 1901
24B ... stock deficiency ... 105 ... Excise Act 1901
37 ... penalty surcharge ... 8 ... Fuel (Penalty Surcharge) Administration Act 1997
S 250-10(2) amended by No 73 of 2006, s 3 and Sch 5 item 43, by inserting table item 36, effective 1 July 2006.
S 250-10(2) amended by No 58 of 2006, s 3 and Sch 7 item 166, by repealing table item 100, effective 22 June 2006. Table item 100 formerly read:
100 ... penalty for failure to withhold ... 16-75 in Schedule 1 ... Taxation Administration Act 1953
S 250-10(2) amended by No 58 of 2006, s 3 and Sch 7 item 164, by inserting "33-3," in table item 5, applicable to GST returns, and net amounts, for tax periods ending on or after 22 February 2001.
S 250-10(2) amended by No 75 of 2005, No 67 of 2003, No 66 of 2003, No 54 of 2003, No 16 of 2003, No 73 of 2001, No 25 of 2001, No 91 of 2000, No 77 of 2000 and No 60 of 2000.
History
S 250-10 inserted by No 179 of 1999.
Subdivision 250-B - Object of this Part
SECTION 250-25
250-25
OBJECT
The object of this Part is to ensure that unpaid amounts of *tax-related liabilities and other related amounts are collected or recovered in a timely manner.
History
S 250-25 inserted by No 179 of 1999.
Division 255 - General rules about collection and recovery
History
Div 255 inserted by No 179 of 1999.
Subdivision 255-A - Tax-related liabilities
SECTION 255-1
MEANING OF
TAX-RELATED LIABILITY
255-1(1)
A
tax-related liability
is a pecuniary liability to the Commonwealth arising directly under a *taxation law (including a liability the amount of which is not yet due and payable).
Note 1:
See section 250-10 for an index of tax-related liabilities.
Note 2:
A taxation law, or a provision of it, may be excluded from being applied to this Part. See section 265-65.
255-1(2)
A civil penalty under Division 290 of this Schedule or Part 5 of the Tax Agent Services Act 2009 is not a
tax-related liability
.
History
S 255-1(2) amended by No 114 of 2009, s 3 and Sch 1 item 22, by inserting "of this Schedule or Part 5 of the Tax Agent Services Act 2009", effective 1 March 2010.
S 255-1(2) inserted by No 32 of 2006, s 3 and Sch 3 items 9 and 10, applicable in relation to conduct engaged in on or after 6 April 2006.
History
S 255-1 inserted by No 179 of 1999.
SECTION 255-5
RECOVERING A TAX-RELATED LIABILITY THAT IS DUE AND PAYABLE
255-5(1)
An amount of a *tax-related liability that is due and payable:
(a)
is a debt due to the Commonwealth; and
(b)
is payable to the Commissioner.
255-5(2)
The Commissioner, a *Second Commissioner or a *Deputy Commissioner may sue in his or her official name in a court of competent jurisdiction to recover an amount of a *tax-related liability that remains unpaid after it has become due and payable.
Note:
The tables in section 250-10 set out each provision that specifies when an amount of a tax-related liability becomes due and payable. The Commissioner may vary that time under Subdivision 255-B.
History
S 255-5(2) amended by No 39 of 2012, s 3 and Sch 4 item 20, by substituting "*Second Commissioner or a *Deputy Commissioner" for "Second Commissioner or a Deputy Commissioner", effective 15 April 2012.
History
S 255-5 inserted by No 179 of 1999.
Subdivision 255-B - Commissioner's power to vary payment time
History
Subdiv 255-B inserted by No 179 of 1999 (as amended by No 44 of 2000).
SECTION 255-10
TO DEFER THE PAYMENT TIME
Deferrals for particular taxpayers
255-10(1)
The Commissioner may, having regard to the circumstances of your particular case, defer the time at which an amount of a *tax-related liability is, or would become, due and payable by you (whether or not the liability has already arisen). If the Commissioner does so, that time is varied accordingly.
Note:
General interest charge or any other relevant penalty, if applicable for any unpaid amount of the liability, will begin to accrue from the time as varied. See, for example, paragraph 5-15(a) of the Income Tax Assessment Act 1997.
History
S 255-10(1) amended by No 79 of 2010, s 3 and Sch 1 item 47, by substituting "paragraph 5-15(a) of the Income Tax Assessment Act 1997" for "paragraph 204(3)(a) of the Income Tax Assessment Act 1936" in the note, effective 1 July 2010.
255-10(2)
The Commissioner must do so by written notice given to you.
Deferrals for classes of taxpayers
255-10(2A)
The Commissioner, having regard to the circumstances of the case, may, by notice published on the Australian Taxation Office website, defer the time at which amounts of *tax-related liabilities are, or would become, due and payable by a class of taxpayers (whether or not the liabilities have already arisen).
History
S 255-10(2A) inserted by No 79 of 2010, s 3 and Sch 1 item 7, effective 1 July 2010.
255-10(2B)
If the Commissioner does so, that time is varied accordingly.
Note:
General interest charge and any other relevant penalties, if applicable for any unpaid amounts of the liabilities, will begin to accrue from the time as varied. See, for example, paragraph 5-15(a) of the Income Tax Assessment Act 1997.
History
S 255-10(2B) inserted by No 79 of 2010, s 3 and Sch 1 item 7, effective 1 July 2010.
255-10(2C)
A notice published under subsection (2A) is not a legislative instrument.
History
S 255-10(2C) inserted by No 79 of 2010, s 3 and Sch 1 item 7, effective 1 July 2010.
Deferral does not affect time for giving form
255-10(3)
A deferral under this section does not defer the time for giving an *approved form to the Commissioner.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
History
S 255-10(3) amended by No 79 of 2010, s 3 and Sch 1 item 8, by substituting "this section" for "subsection (1)", effective 1 July 2010.
S 255-10(3) inserted by No 91 of 2000.
History
S 255-10 inserted by No 179 of 1999 (as amended by No 44 of 2000).
SECTION 255-15
TO PERMIT PAYMENTS BY INSTALMENTS
255-15(1)
The Commissioner may, having regard to the circumstances of your particular case, permit you to pay an amount of a *tax-related liability by instalments under an *arrangement between you and the Commissioner (whether or not the liability has already arisen).
255-15(2)
The *arrangement does not vary the time at which the amount is due and payable.
Note:
Despite an arrangement under this section, any general interest charge or other relevant penalty, if applicable for any unpaid amount of the liability, begins to accrue when the liability is due and payable under the relevant taxation law, or at that time as varied under section 255-10 or 255-20.
History
S 255-15 inserted by No 179 of 1999 (as amended by No 44 of 2000).
SECTION 255-20
TO BRING FORWARD THE PAYMENT TIME IN CERTAIN CASES
255-20(1)
If the Commissioner reasonably believes that you may leave Australia before the time at which an amount of a *tax-related liability becomes due and payable by you, the Commissioner may bring that time forward. If the Commissioner does so, that time is varied accordingly.
Note:
General interest charge or any other relevant penalty, if applicable for any unpaid amount of the liability, will begin to accrue from the time as varied. See, for example, paragraph 5-15(a) of the Income Tax Assessment Act 1997.
History
S 255-20(1) amended by No 79 of 2010, s 3 and Sch 1 item 48, by substituting "paragraph 5-15(a) of the Income Tax Assessment Act 1997" for "paragraph 204(3)(a) of the Income Tax Assessment Act 1936" in the note, effective 1 July 2010.
255-20(2)
The Commissioner must do so by written notice given to you.
History
S 255-20 inserted by No 179 of 1999 (as amended by No 44 of 2000).
Subdivision 255-C - Service of documents if person absent from Australia or cannot be found
History
Subdiv 255-C heading substituted by No 64 of 2020, s 3 and Sch 3 item 128, effective 1 July 2020. The heading formerly read:
Subdivision 255-C - Recovery proceedings
Subdiv 255-C inserted by No 179 of 1999 (as amended by No 44 of 2000 and No 91 of 2000).
Guide to Subdivision 255-C
SECTION 255-35
WHAT THIS SUBDIVISION IS ABOUT
This Subdivision deals with the service of documents on people who are absent from Australia or cannot be found.
History
S 255-35 amended by No 64 of 2020, s 3 and Sch 3 item 129, by substituting "the service of documents on people who are absent from Australia or cannot be found" for "procedural and evidentiary matters relating to proceedings to recover an amount of a tax-related liability", effective 1 July 2020.
S 255-35 inserted by No 179 of 1999 (as amended by No 44 of 2000 and No 91 of 2000).
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 255-40 |
Service of documents if person absent from Australia or cannot be found |
| 255-45 |
(Repealed by No 64 of 2020) |
| 255-50 |
(Repealed by No 64 of 2020) |
| 255-55 |
(Repealed by No 64 of 2020) |
Operative provisions
SECTION 255-40
SERVICE OF DOCUMENTS IF PERSON ABSENT FROM AUSTRALIA OR CANNOT BE FOUND
255-40(1)
This section applies if a document needs to be served on a person in respect of a proceeding to recover an amount of a *tax-related liability, and the Commissioner, after making reasonable inquiries, is satisfied that:
(a)
the person is absent from Australia and does not have any agent in Australia on whom the document can be served; or
(b)
the person cannot be found.
255-40(2)
The Commissioner may, without the court's leave, serve the document by posting it, or a sealed copy of it, in a letter addressed to the person at any Australian address of the person (including the person's Australian place of business or residence) that is last known to the Commissioner.
255-40(3)
If the Commissioner, after making reasonable inquiries, is satisfied that the person has an address in a foreign country, a constituent part of a foreign country or a foreign territory (an
overseas address
), the Commissioner may, without the court's leave, serve the document on the person at that overseas address in accordance with an agreement between Australia and:
(a)
a foreign country or a constituent part of a foreign country; or
(b)
a foreign territory;
that deals with the service of documents on tax matters.
History
S 255-40(3) substituted by No 64 of 2020, s 3 and Sch 3 item 130, effective 1 July 2020. S 255-40(3) formerly read:
255-40(3)
For the purposes of giving effect to a provision of an international agreement of a kind referredto in Subdivision 263-A (about foreign revenue claims), if a document needs to be served on a person and the Commissioner, after making reasonable inquiries, is satisfied that:
(a)
the person is absent from Australia and does not have an agent in Australia on whom the document can be served; and
(b)
the person has an address in a foreign country, a constituent part of a foreign country or a foreign territory;
the Commissioner may serve the document on the person at the address mentioned in paragraph (b).
S 255-40(3) inserted by No 100 of 2006, s 3 and Sch 1 item 5, applicable to claims for assistance in collection of foreign tax debts made after 14 September 2006.
History
S 255-40 inserted by No 179 of 1999 (as amended by No 44 of 2000 and No 91 of 2000).
255-45
255-45
(Repealed) SECTION 255-45 EVIDENTIARY CERTIFICATE
(Repealed by No 64 of 2020)
History
S 255-45 repealed by No 64 of 2020, s 3 and Sch 3 item 131, effective 1 July 2020. S 255-45 formerly read:
SECTION 255-45 EVIDENTIARY CERTIFICATE
255-45(1)
A certificate:
(a)
stating one or more of the matters covered by subsection (2) or (3); and
(b)
signed by the Commissioner, a *Second Commissioner or a *Deputy Commissioner;
is prima facie evidence of the matter or matters in a proceeding to recover an amount of a *tax-related liability.
History
S 255-45(1) amended by No 39 of 2012, s 3 and Sch 4 item 21, by substituting "*Second Commissioner or a *Deputy Commissioner" for "Second Commissioner or a Deputy Commissioner" in para (b), effective 15 April 2012.
S 255-45(1) amended by No 100 of 2006, s 3 and Sch 1 item 6, by inserting "or (3)" in para (a), applicable to claims for assistance in collection of foreign tax debts made after 14 September 2006.
255-45(2)
A certificate may state:
(a)
that a person named in the certificate has a *tax-related liability; or
(b)
that an *assessment relating to a tax-related liability has been made, or is taken to have been made, under a *taxation law; or
(c)
that notice of an assessment, or any other notice required to be served on a person in respect of an amount of a tax-related liability, was, or is taken to have been, served on the person under a *taxation law; or
(d)
that the particulars of a notice covered by paragraph (c) are as stated in the certificate; or
(e)
that a sum specified in the certificate is, as at the date specified in the certificate, a debt due and payable by a person to the Commonwealth.
255-45(3)
A certificate may state:
(a)
that a *foreign revenue claim for an amount specified in the certificate has been made by the competent authority under the relevant international agreement; or
(b)
that the relevant requirements of the relevant international agreement have been complied with in relation to the foreign revenue claim; or
(c)
that the claim was registered under Division 263 on the date specified in the certificate; or
(d)
that, as at the date of the certificate, the Commissioner has or has not received advice from the competent authority under the relevant international agreement about the reduction or discharge of an amount to be recovered under the claim; or
(e)
that the particulars of any reduction or discharge of an amount to be recovered under the claim are as specified in the certificate.
History
S 255-45(3) inserted by No 100 of 2006, s 3 and Sch 1 item 7, applicable to claims for assistance in collection of foreign tax debts made after 14 September 2006.
S 255-45 inserted by No 179 of 1999 (as amended by No 44 of 2000 and No 91 of 2000).
255-50
255-50
(Repealed) SECTION 255-50 CERTAIN STATEMENTS OR AVERMENTS
(Repealed by No 64 of 2020)
History
S 255-50 repealed by No 64 of 2020, s 3 and Sch 3 item 131, effective 1 July 2020. S 255-50 formerly read:
SECTION 255-50 CERTAIN STATEMENTS OR AVERMENTS
255-50(1)
In a proceeding to recover an amount of a *tax-related liability, a statement or averment about a matter in the plaintiff's complaint, claim or declaration is prima facie evidence of the matter.
255-50(2)
This section applies even if the matter is a mixed question of law and fact. However, the statement or averment is prima facie evidence of the fact only.
255-50(3)
This section applies even if evidence is given in support or rebuttal of the matter or of any other matter.
255-50(4)
Any evidence given in support or rebuttal of the matter stated or averred must be considered on its merits. This section does not increase or diminish the credibility or probative value of the evidence.
255-50(5)
This section does not lessen or affect any onus of proof otherwise falling on a defendant.
S 255-50 inserted by No 179 of 1999 (as amended by No 44 of 2000 and No 91 of 2000).
255-55
255-55
(Repealed) SECTION 255-55 EVIDENCE BY AFFIDAVIT
(Repealed by No 64 of 2020)
History
S 255-55 repealed by No 64 of 2020, s 3 and Sch 3 item 131, effective 1 July 2020. S 255-55 formerly read:
SECTION 255-55 EVIDENCE BY AFFIDAVIT
255-55
In a proceeding to recover an amount of a *tax-related liability:
(a)
a person may give evidence by affidavit; and
(b)
the court may require the person to attend before it:
(i)
to be cross-examined on that evidence; or
(ii)
to give other evidence relating to the proceedings.
S 255-55 inserted by No 179 of 1999 (as amended by No 44 of 2000 and No 91 of 2000).
Subdivision 255-D - Security deposits
History
Subdiv 255-D inserted by No 79 of 2010, s 3 and Sch 1 item 9, effective 1 July 2010.
SECTION 255-100
COMMISSIONER MAY REQUIRE SECURITY DEPOSIT
255-100(1)
The Commissioner may require you to give security for the due payment of an existing or future *tax-related liability of yours if:
(a)
the Commissioner has reason to believe that:
(i)
you are establishing or *carrying on an *enterprise in Australia; and
(ii)
you intend to carry on that enterprise for a limited time only; or
(b)
the Commissioner reasonably believes that the requirement is otherwise appropriate, having regard to all relevant circumstances.
Note:
A requirement to give security under this section is not a tax-related liability. As such, the collection and recovery provisions in this Part do not apply to it.
255-100(2)
The Commissioner may require you to give the security:
(a)
by way of a bond or deposit (including by way of payments in instalments); or
(b)
by any other means that the Commissioner reasonably believes is appropriate.
255-100(3)
The Commissioner may require you to give security under this section:
(a)
at any time the Commissioner reasonably believes is appropriate; and
(b)
as often as the Commissioner reasonably believes is appropriate.
Example:
The Commissioner may require additional security if he or she reasonably believes that the original security requirement underestimated the amount of the likely tax-related liability.
History
S 255-100 inserted by No 79 of 2010, s 3 and Sch 1 item 9, effective 1 July 2010.
SECTION 255-105
NOTICE OF REQUIREMENT TO GIVE SECURITY
Commissioner must give notice of requirement to give security
255-105(1)
If the Commissioner requires you to give security under section 255-100, he or she must give you written notice of the requirement.
Content of notice
255-105(2)
The notice must:
(a)
state that you are required to give the security to the Commissioner; and
(b)
explain why the Commissioner requires the security; and
(c)
set out the amount of the security; and
(d)
describe the means by which you are required to give the security under subsection 255-100(2); and
(e)
specify the time by which you are required to give the security; and
(f)
explain how you may have the Commissioner's decision to require you to give the security reviewed.
255-105(3)
To avoid doubt, a single notice may relate to security for the payment of 2 or more existing or future *tax-related liabilities, but must comply with subsection (2) in relation to each of them.
When notice is given
255-105(4)
Despite section 29 of the Acts Interpretation Act 1901, a notice under subsection (1) is taken to be given at the time the Commissioner leaves or posts it.
Note:
Section 28A of the Acts Interpretation Act 1901 may be relevant to giving a notice under subsection (1).
Miscellaneous
255-105(5)
A failure to comply with this section does not affect the validity of the requirement to give the security under section 255-100.
History
S 255-105 inserted by No 79 of 2010, s 3 and Sch 1 item 9, effective 1 July 2010.
SECTION 255-110
255-110
OFFENCE
You commit an offence if:
(a)
the Commissioner requires you to give security under section 255-100; and
(b)
you fail to give that security as required.
Penalty: 100 penalty units.
History
S 255-110 inserted by No 79 of 2010, s 3 and Sch 1 item 9, effective 1 July 2010.
SECTION 255-115
ORDER TO COMPLY WITH REQUIREMENT
255-115(1)
The Federal Court of Australia may, on the application of the Commissioner, order you to comply with a requirement to give security under section 255-100, if the Commissioner has given you notice of the requirement under subsection 255-105(1).
255-115(2)
If the Court makes an order under subsection (1), the Court may also order you to comply with such other requirements made, or that could be made, in relation to you under the taxation law as the Court considers necessary to ensure the effectiveness of the requirement referred to in that subsection.
255-115(3)
An order under subsection (1) or (2) may require you to comply with the requirement on or before a day specified in the order.
255-115(4)
If an order under subsection (1) or (2) is not given to you orally by the court, the proper officer of the court must cause a copy of the order to be served on you in the prescribed manner, or otherwise as may be ordered by the court.
History
S 255-115 inserted by No 8 of 2019, s 3 and Sch 5 item 14, effective 1 April 2019 and applicable in relation to a requirement to give security in relation to a tax-related liability if the Commissioner gives notice of the requirement under subsection 255-105(1) in Schedule 1 to the Taxation Administration Act 1953 on or after 1 July 2018.
SECTION 255-120
OFFENCE
255-120(1)
You commit an offence if:
(a)
you are subject to an order under subsection 255-115(1) or (2); and
(b)
you fail to comply with the order.
Penalty: 50 penalty units or imprisonment for 12 months, or both.
255-120(2)
An offence against subsection (1) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
255-120(3)
Subsection (1) does not apply to the extent that you are not capable of complying with the order.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.
History
S 255-120 inserted by No 8 of 2019, s 3 and Sch 5 item 14, effective 1 April 2019 and applicable in relation to a requirement to give security in relation to a tax-related liability if the Commissioner gives notice of the requirement under subsection 255-105(1) in Schedule 1 to the Taxation Administration Act 1953 on or after 1 July 2018.
Division 260 - Special rules about collection and recovery
History
Div 260 inserted by No 179 of 1999.
Guide to Division 260
SECTION 260-1
WHAT THIS DIVISION IS ABOUT
This Division deals with the collection and recovery of an amount from a person who is not personally liable to pay that amount. Apart from Subdivision 260-A, which covers a wider range of amounts, this Division primarily deals with amounts of tax-related liabilities.
History
S 260-1 inserted by No 179 of 1999.
Subdivision 260-A - From third party
History
Subdiv 260-A inserted by No 179 of 1999 (as amended by No 44 of 2000).
SECTION 260-5
COMMISSIONER MAY COLLECT AMOUNTS FROM THIRD PARTY
Amount recoverable under this Subdivision
260-5(1)
This Subdivision applies if any of the following amounts (the
debt
) is payable to the Commonwealth by an entity (the
debtor
) (whether or not the debt has become due and payable):
(a)
an amount of a *tax-related liability;
(b)
a judgment debt for a *tax-related liability;
(c)
costs for such a judgment debt;
(d)
an amount that a court has ordered the debtor to pay to the Commissioner following the debtor's conviction for an offence against a *taxation law.
Commissioner may give notice to an entity
260-5(2)
The Commissioner may give a written notice to an entity (the
third party
) under this section if the third party owes or may later owe money to the debtor.
Third party regarded as owing money in these circumstances
260-5(3)
The third party is taken to owe money (the
available money
) to the debtor if the third party:
(a)
is an entity by whom the money is due or accruing to the debtor; or
(b)
holds the money for or on account of the debtor; or
(c)
holds the money on account of some other entity for payment to the debtor; or
(d)
has authority from some other entity to pay the money to the debtor.
The third party is so taken to owe the money to the debtor even if:
(e)
the money is not due, or is not so held, or payable under the authority, unless a condition is fulfilled; and
(f)
the condition has not been fulfilled.
How much is payable under the notice
260-5(4)
A notice under this section must:
(a)
require the third party to pay to the Commissioner the lesser of, or a specified amount not exceeding the lesser of:
(i)
the debt; or
(ii)
the available money; or
(b)
if there will be amounts of the available money from time to time - require the third party to pay to the Commissioner a specified amount, or a specified percentage, of each amount of the available money, until the debt is satisfied.
When amount must be paid
260-5(5)
The notice must require the third party to pay an amount under paragraph (4)(a), or each amount under paragraph (4)(b):
(a)
immediately after; or
(b)
at or within a specified time after;
the amount of the available money concerned becomes an amount owing to the debtor.
Debtor must be notified
260-5(6)
The Commissioner must send a copy of the notice to the debtor.
Setting-off amounts
260-5(7)
If an entity other than the third party has paid an amount to the Commissioner that satisfies all or part of the debt:
(a)
the Commissioner must notify the third party of that fact; and
(b)
any amount that the third party is required to pay under the notice is reduced by the amount so paid.
History
S 260-5 inserted by No 179 of 1999 (as amended by No 44 of 2000).
SECTION 260-10
260-10
NOTICE TO COMMONWEALTH, STATE OR TERRITORY
If the third party is the Commonwealth, a State or a Territory, the Commissioner may give the notice to a person who:
(a)
is employed by the Commonwealth, or by the State or Territory (as appropriate); and
(b)
has the duty of disbursing public money under a law of the Commonwealth, or of the State or Territory (as appropriate).
History
S 260-10 inserted by No 179 of 1999 (as amended by No 44 of 2000).
SECTION 260-15
260-15
INDEMNITY
An amount that the third party pays to the Commissioner under this Subdivision is taken to have been authorised by:
(a)
the debtor; and
(b)
any other person who is entitled to all or a part of the amount;
and the third party is indemnified for the payment.
History
S 260-15 inserted by No 179 of 1999 (as amended by No 44 of 2000).
SECTION 260-20
OFFENCE
260-20(1)
The third party must not fail to comply with the Commissioner's notice.
Penalty: 20 penalty units
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
260-20(2)
The court may, in addition to imposing a penalty on a person convicted of an offence against subsection (1) in relation to failing to pay an amount under the notice, order the person to pay to the Commissioner an amount not exceeding that amount.
History
S 260-20 inserted by No 179 of 1999 (as amended by No44 of 2000).
Subdivision 260-B - From liquidator
SECTION 260-40
260-40
SUBDIVISION DOES NOT APPLY TO SUPERANNUATION GUARANTEE CHARGE
This Subdivision does not apply to a *tax-related liability that is superannuation guarantee charge imposed by the Superannuation Guarantee Charge Act 1992.
History
S 260-40 inserted by No 179 of 1999.
SECTION 260-45
LIQUIDATOR'S OBLIGATION
260-45(1)
This Subdivision applies to a person who becomes a liquidator of a company.
260-45(2)
Within 14 days after becoming liquidator, the liquidator must give written notice of that fact to the Commissioner.
260-45(3)
The Commissioner must, as soon as practicable, notify the liquidator of the amount (the
notified amount
) that the Commissioner considers is enough to discharge any *outstanding tax-related liabilities that the company has when the notice is given.
260-45(4)
The liquidator must not, without the Commissioner's permission, part with any of the company's assets before receiving the Commissioner's notice.
260-45(5)
However, subsection (4) does not prevent the liquidator from parting with the company's assets to pay debts of the company not covered by either of the following paragraphs:
(a)
the *outstanding tax-related liabilities;
(b)
any debts of the company which:
(i)
are unsecured; and
(ii)
are not required, by an *Australian law, to be paid in priority to some or all of the other debts of the company.
260-45(6)
After receiving the Commissioner's notice, the liquidator must set aside, out of the assets available for paying amounts covered by paragraph (5)(a) or (b) (the
ordinary debts
), assets with a value calculated using the following formula:
where:
amount of remaining ordinary debts
means the sum of the company's ordinary debts other than the *outstanding tax-related liabilities.
260-45(7)
The liquidator must, in his or her capacity as liquidator, discharge the *outstanding tax-related liabilities, to the extent of the value of the assets that the liquidator is required to set aside.
260-45(8)
The liquidator is personally liable to discharge the liabilities, to the extent of that value, if the liquidator contravenes this section.
History
S 260-45 inserted by No 179 of 1999.
SECTION 260-50
260-50
OFFENCE
The liquidator must not fail to comply with subsection 260-45(2), (4), (5), (6) or (7).
Penalty: 10 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
History
S 260-50 inserted by No 179 of 1999.
SECTION 260-55
260-55
JOINT LIABILITY OF 2 OR MORE LIQUIDATORS
If there are 2 or more persons who become liquidators of the company, the obligations and liabilities under this Subdivision:
(a)
apply to all the liquidators; but
(b)
may be discharged by any of them.
History
S 260-55 inserted by No 179 of 1999.
SECTION 260-60
260-60
LIQUIDATOR'S OTHER OBLIGATION OR LIABILITY
This Subdivision does not reduce any obligation or liability of a liquidator arising elsewhere.
History
S 260-60 inserted by No 179 of 1999.
Subdivision 260-C - From receiver
SECTION 260-75
RECEIVER'S OBLIGATION
260-75(1)
This Subdivision applies to a person (the
receiver
) who, in the capacity of receiver, or of receiver and manager, takes possession of a company's assets for the company's debenture holders.
260-75(2)
Within 14 days after taking possession of the assets, the receiver must give written notice of that fact to the Commissioner.
260-75(3)
The Commissioner must, as soon as practicable, notify the receiver of the amount (the
notified amount
) that the Commissioner considers is enough to discharge any *outstanding tax-related liabilities that the company has when the notice is given.
260-75(4)
The receiver must not, without the Commissioner's permission, part with any of the company's assets before receiving the Commissioner's notice.
260-75(5)
However, subsection (4) does not prevent the receiver from parting with the company's assets to pay debts of the company not covered by either of the following paragraphs:
(a)
the *outstanding tax-related liabilities;
(b)
any debts of the company which:
(i)
are unsecured; and
(ii)
are not required, by an *Australian law, to be paid in priority to some or all of the other debts of the company.
260-75(6)
After receiving the Commissioner's notice, the receiver must set aside, out of the assets available for paying amounts covered by paragraph (5)(a) or (b) (the
ordinary debts
), assets with a value calculated using the following formula:
where:
amount of remaining ordinary debts
means the sum of the company's ordinary debts other than the *outstanding tax-related liabilities.
260-75(7)
The receiver must, in his or her capacity as receiver, or as receiver and manager, discharge the *outstanding tax-related liabilities, to the extent of the value of the assets that the receiver is required to set aside.
260-75(8)
The receiver is personally liable to discharge the liabilities, to the extent of that value, if the receiver contravenes this section.
History
S 260-75 inserted by No 179 of 1999.
SECTION 260-80
260-80
OFFENCE
The receiver must not fail to comply with subsection 260-75(2), (4), (5), (6) or (7).
Penalty: 10 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
History
S 260-80 inserted by No 179 of 1999.
SECTION 260-85
260-85
JOINT LIABILITY OF 2 OR MORE RECEIVERS
If 2 or more persons (the
receivers
) take possession of a company's assets, for the company's debenture holders, in the capacity of receiver, or of receiver and manager, the obligations and liabilities under this Subdivision apply to:
(a)
all the receivers; but
(b)
may be discharged by any of them.
History
S 260-85 inserted by No 179 of 1999.
SECTION 260-90
260-90
RECEIVER'S OTHER OBLIGATION OR LIABILITY
This Subdivision does not reduce any obligation or liability of the receiver or receivers arising elsewhere.
History
S 260-90 inserted by No 179 of 1999.
Subdivision 260-D - From agent winding up business for foreign resident principal
History
Subdiv 260-D (heading) substituted by No 41 of 2005.
SECTION 260-105
OBLIGATION OF AGENT WINDING UP BUSINESS FOR FOREIGN RESIDENT PRINCIPAL
260-105(1)
This Subdivision applies to an agent whose principal:
(a)
is a foreign resident; and
(b)
has instructed the agent to wind up so much of the principal's business as is carried on in Australia.
History
S 260-105(1) amended by No 41 of 2005.
260-105(2)
Within 14 days after receiving the instructions, the agent must give written notice of that fact to the Commissioner.
260-105(3)
The Commissioner must, as soon as practicable after receiving the notice, notify the agent of the amount (the
notified amount
) that the Commissioner considers is enough to discharge any *outstanding tax-related liabilities that the principal has when the notice is given.
260-105(4)
Before receiving the Commissioner's notice, the agent must not, without the Commissioner's permission, part with any of the principal's assets that are available for discharging the *outstanding tax-related liabilities.
260-105(5)
After receiving the notice, the agent must set aside:
(a)
out of the assets available for discharging the *outstanding tax-related liabilities, assets to the value of the notified amount; or
(b)
all of the assets so available, if their value is less than the notified amount.
260-105(6)
The agent must, in that capacity, discharge the *outstanding tax-related liabilities, to the extent of the value of the assets that the agent is required to set aside.
260-105(7)
The agent is personally liable to discharge the liabilities, to the extent of that value, if the agent contravenes this section.
History
S 260-105 inserted by No 179 of 1999.
SECTION 260-110
260-110
OFFENCE
A person must not fail to comply with subsection 260-105(2), (4), (5) or (6).
Penalty: 10 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
See section 4AA of the Crimes Act 1914 for the current value of penalty units.
History
S 260-110 inserted by No 179 of 1999.
SECTION 260-115
260-115
JOINT LIABILITY OF 2 OR MORE AGENTS
If 2 or more agents are jointly instructed by the principal to wind up the business, the obligations and liabilities under this Subdivision:
(a)
apply to all the agents; but
(b)
may be discharged by any of them.
History
S 260-115 inserted by No 179 of 1999.
SECTION 260-120
260-120
AGENT'S OTHER OBLIGATION OR LIABILITY
This Subdivision does not reduce any obligation or liability of the agent or agents arising elsewhere.
History
S 260-120 inserted by No 179 of 1999.
Subdivision 260-E - From deceased person's estate
SECTION 260-140
ADMINISTERED ESTATE
260-140(1)
This section applies if:
(a)
a person has an *outstanding tax-related liability when the person dies; and
(b)
either of the following is granted after the death:
(i)
probate of the person's will;
(ii)
letters of administration of the person's estate.
260-140(2)
The Commissioner may, in respect of the liability, deal with the trustee of the deceased person's estate as if:
(a)
the deceased person were still alive; and
(b)
the trustee were the deceased person.
260-140(3)
Without limiting subsection (2), the trustee must:
(a)
provide any returns and other information that the deceased person was liable to provide, or would have been liable to provide if he or she were still alive; and
(b)
provide any additional returns or other information relating to the liability that the Commissioner requires; and
(c)
in the trustee's representative capacity, discharge the liability and any penalty imposed in respect of the liability under a *taxation law (including any *general interest charge) for which the deceased person would be liable if he or she were still alive.
260-140(4)
If:
(a)
the amount of the liability requires an *assessment under a *taxation law but the assessment has not been made; and
(b)
the trustee fails to provide a return or other information in relation to assessing that amount as required by the Commissioner;
the Commissioner may assess that amount. If the Commissioner does so, the assessment has the same effect as if it were made under that taxation law.
260-140(5)
A trustee who is dissatisfied with an *assessment under subsection (4) may object in the manner set out in Part IVC.
260-140(6)
Part IVC applies in relation to the objection as if the trustee were the deceased person.
History
S 260-140 inserted by No 179 of 1999.
SECTION 260-145
UNADMINISTERED ESTATE
260-145(1)
This section applies if neither of the following is granted within 6 months after a person's death:
(a)
probate of the person's will;
(b)
letters of administration of the person's estate.
260-145(2)
The Commissioner may determine the total amount of *outstanding tax-related liabilities that the person had at the time of death.
260-145(3)
The Commissioner must publish notice of the determination in a manner that results in the notice being accessible to the public and reasonably prominent.
History
S 260-145(3) amended by No 69 of 2023, s 3 and Sch 1 item 143, by substituting "in a manner that results in the notice being accessible to the public and reasonably prominent" for "twice in a daily newspaper circulating in the State or Territory in which the person resided at the time of death", effective 1 January 2024.
260-145(4)
A notice of the determination is conclusive evidence of the *outstanding tax-related liabilities, unless the determination is amended.
260-145(5)
A person who is dissatisfied with the determination may object in the manner set out in Part IVC if the person:
(a)
claims an interest in the estate; or
(b)
is granted probate of the deceased person's will or letters of administration of the estate.
260-145(6)
Part IVC applies in relation to the objection as if the person making it were the deceased person.
History
S 260-145 inserted by No 179 of 1999.
SECTION 260-150
COMMISSIONER MAY AUTHORISE AMOUNT TO BE RECOVERED
260-150(1)
The Commissioner may, in writing, authorise a person (the
authorised person
) who is:
(a)
a member or a special member of the Australian Federal Police; or
(b)
a member of the police force of a State or Territory; or
(c)
any other person;
to recover:
(d)
the total amount of the *outstanding tax-related liabilities of a deceased person as determined under section 260-145 (about unadministered estates); and
(e)
any reasonable costs incurred by the authorised person in recovering that amount;
by seizing and disposing of any property of the deceased person.
260-150(2)
The authorised person may seize and dispose of the property as prescribed by the regulations.
History
S 260-150 inserted by No 179 of 1999.
Division 263 - Mutual assistance in the administration of foreign tax laws
History
Div 263 heading amended by No 64 of 2020, s 3 and Sch 3 item 132, by substituting "
the administration of foreign tax laws
" for "
collection of foreign tax debts
", effective 1 July 2020.
Div 263 inserted by No 100 of 2006, s 3 and Sch 1 item 8, applicable to claims for assistance in collection of foreign tax debts made after 14 September 2006.
Subdivision 263-A - Foreign revenue claims
History
Subdiv 263-A inserted by No 100 of 2006, s 3 and Sch 1 item 8, applicable to claims for assistance in collection of foreign tax debts made after 14 September 2006.
Guide to Subdivision 263-A
SECTION 263-5
WHAT THIS SUBDIVISION IS ABOUT
This Subdivision can be activated if there is in force an agreement between Australia and a foreign country or territory that contains an article relating to assistance in collection of foreign tax debts.
The Commissioner can collect from an entity an amount in respect of a tax debt that the person owes to such a country or territory or take action to conserve assets of the entity.
The Commissioner is required to remit amounts collected to the foreign country or territory concerned.
History
S 263-5 inserted by No 100 of 2006, s 3 and Sch 1 item 8, applicable to claims for assistance in collection of foreign tax debts made after 14 September 2006.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 263-10 |
Meaning of foreign revenue claim |
| 263-15 |
Requirements for foreign revenue claims |
| 263-20 |
Foreign Revenue Claims Register |
| 263-25 |
Registering claims |
| 263-30 |
When amount is due and payable |
| 263-35 |
Amending the Register etc. |
| 263-40 |
Payment to competent authority |
Operative provisions
SECTION 263-10
263-10
MEANING OF
FOREIGN REVENUE CLAIM
A
foreign revenue claim
is a claim made to the Commissioner:
(a)
in accordance with an agreement (the
international agreement
) between Australia and:
(i)
a foreign country or a constituent part of a foreign country; or
(ii)
a foreign territory; and
(b)
for one or both of these purposes:
(i)
the recovery by the Commissioner of an amount from an entity (the
debtor
) in respect of taxes imposed otherwise than by an *Australian law (including any associated amounts);
(ii)
the conserving of assets for the purposes of a recovery of that kind.
History
S 263-10 amended by No 64 of 2020, s 3 and Sch 3 item 133, by substituting para (a), effective 1 July 2020. Para (a) formerly read:
(a)
in accordance with an agreement (the
international agreement
) between Australia and:
(i)
a foreign country or a constituent part of a foreign country; or
(ii)
an overseas territory;
(the
overseas entity
); and
S 263-10 inserted by No 100 of 2006, s 3 and Sch 1 item 8, applicable to claims for assistance in collection of foreign tax debts made after 14 September 2006.
SECTION 263-15
263-15
REQUIREMENTS FOR FOREIGN REVENUE CLAIMS
A *foreign revenue claim must:
(a)
be made by or on behalf of an entity that is, under the relevant international agreement, the competent authority; and
(b)
be consistent with the provisions of that agreement; and
(c)
be made in the *approved form; and
(d)
specify the amount owed by the debtor in Australian currency (calculated as at the day the claim is made); and
(e)
be accompanied by a declaration by the competent authority stating that the claim fulfils the requirements of that agreement.
History
S 263-15 inserted by No 100 of 2006, s 3 and Sch 1 item 8, applicable to claims for assistance in collection of foreign tax debts made after 14 September 2006.
SECTION 263-20
FOREIGN REVENUE CLAIMS REGISTER
263-20(1)
The Commissioner must keep a register called the Foreign Revenue Claims Register (the
Register
).
263-20(2)
The regulations may make provision in relation to the form in which the Register may be kept.
263-20(3)
The register is not a legislative instrument.
History
S 263-20 inserted by No 100 of 2006, s 3 and Sch 1 item 8, applicable to claims for assistance in collection of foreign tax debts made after 14 September 2006.
SECTION 263-25
263-25
REGISTERING CLAIMS
If the Commissioner is satisfied that a *foreign revenue claim has been made in accordance with section 263-15, the Commissioner must register the claim by entering particulars of it in the Register within 90 days after receiving the claim.
History
S 263-25 inserted by No 100 of 2006, s 3 and Sch 1 item 8, applicable to claims for assistance in collection of foreign tax debts made after 14 September 2006.
SECTION 263-30
WHEN AMOUNT IS DUE AND PAYABLE
263-30(1)
When particulars of a *foreign revenue claim are entered in the Register, the amount owed by the debtor becomes a pecuniary liability to the Commonwealth by the debtor.
Note 1:
The amount to be recovered from the debtor will be a primary tax debt for the purposes of Part IIB and the Commissioner may allocate the debt to a running balance account under that Part.
Note 2:
For provisions about collection and recovery of the debt, see Part 4-15.
263-30(1A)
To avoid doubt, the amount owed by the debtor may not be the same as the amount (if any) entered in the Register.
History
S 263-30(1A) inserted by No 14 of 2009, s 3 and Sch 2 item 1, applicable to foreign revenue claims, the particulars of which are in the Register at 26 March 2009 or are entered in the Register after 26 March 2009.
263-30(2)
The amount owed by the debtor becomes due and payable 30 days after notice of the particulars of the *foreign revenue claim isgiven to the debtor or on a later day specified in the notice.
History
S 263-30(2) amended by No 14 of 2009, s 3 and Sch 2 item 2, by substituting "The amount owed by the debtor" for "That amount", applicable to foreign revenue claims, the particulars of which are in the Register at 26 March 2009 or are entered in the Register after 26 March 2009.
263-30(3)
If that amount remains unpaid after it is due and payable, the debtor is liable to pay *general interest charge on the unpaid amount for each day in the period that:
(a)
started at the beginning of the day by which the amount was due to be paid; and
(b)
finishes at the end of the last day at the end of which either of the following remains unpaid:
(i)
the amount;
(ii)
general interest charge on any of the amount.
History
S 263-30 inserted by No 100 of 2006, s 3 and Sch 1 item 8, applicable to claims for assistance in collection of foreign tax debts made after 14 September 2006.
SECTION 263-35
AMENDING THE REGISTER ETC.
263-35(1)
The Commissioner may, with the agreement of the relevant competent authority, amend the Register to correct an error.
263-35(2)
The Commissioner may, with the agreement of the relevant competent authority:
(a)
remove from the Register the particulars of a *foreign revenue claim; or
(b)
reduce an amount to be recovered from a debtor under the claim.
263-35(2A)
To avoid doubt, the Commissioner may reduce an amount to be recovered from a debtor under paragraph (2)(b) without amending the Register.
History
S 263-35(2A) inserted by No 14 of 2009, s 3 and Sch 2 item 4, applicable to foreign revenue claims, the particulars of which are in the Register at 26 March 2009 or are entered in the Register after 26 March 2009.
263-35(3)
A debtor may, after receiving a copy of the particulars of a *foreign revenue claim entered in the Register, apply to the Commissioner in the *approved form to have those particulars removed from the Register.
263-35(4)
The Commissioner may, after considering the application, remove those particulars from the Register.
263-35(5)
If the Commissioner removes particulars of a *foreign revenue claim relating to the recovery of an amount from the Register under paragraph (2)(a) or subsection (4), the debtor is entitled to a credit for the purposes of Part IIB equal to the sum of:
(a)
the amount (as reduced by any previous application of subsection (6)); and
(b)
any *general interest charge for which the debtor is liable as a result of the foreign revenue claim.
Note:
How the credit is applied is set out in Part IIB.
History
S 263-35(5) substituted by No 14 of 2009, s 3 and Sch 2 item 5, applicable to foreign revenue claims, the particulars of which are in the Register at 26 March 2009 or are entered in the Register after 26 March 2009. S 263-35(5) formerly read:
263-35(5)
If the Commissioner removes particulars of a *foreign revenue claim relating to the recovery of an amount from the Register under paragraph (2)(a) or subsection (4), the debtor is taken never to have been liable to pay an amount (including any *general interest charge) as a result of the foreign revenue claim.
263-35(6)
If the Commissioner reduces the amount to be recovered from a debtor under a *foreign revenue claim under paragraph (2)(b), the debtor is entitled to a credit for the purposes of Part IIB equal to the amount of the reduction.
Note:
How the credit is applied is set out in Part IIB.
History
S 263-35(6) amended by No 14 of 2009, s 3 and Sch 2 item 6, by substituting "the debtor is entitled to a credit for the purposes of Part IIB equal to the amount of the reduction" for "the amount of the reduction is taken never to have been payable by the debtor" and inserting the note at the end, applicable to foreign revenue claims, the particulars of which are in the Register at 26 March 2009 or are entered in the Register after 26 March 2009.
S 263-35 (renumbered from s 363-35 by No 56 of 2010, s 3 and Sch 6 item 110) inserted by No 100 of 2006, s 3 and Sch 1 item 8, applicable to claims for assistance in collection of foreign tax debts made after 14 September 2006.
SECTION 263-40
PAYMENT TO COMPETENT AUTHORITY
263-40(1)
The Commissioner must, if the Commissioner recovers all or part of an amount to be recovered from a debtor under a registered *foreign revenue claim, pay that amount to the competent authority concerned or to another entity on behalf of that competent authority.
263-40(2)
The Commissioner may also pay to the competent authority all or part of an amount that the Commissioner has received and that is attributable to *general interest charge in relation to the claim.
263-40(3)
The Commissioner may also pay to the competent authority all or part of an amount that the Commissioner has received and that is attributable to any of the following in relation to the claim:
(a)
judgment interest;
(b)
costs that:
(i)
have been recovered in the course of legal proceedings; and
(ii)
represent an amount that has previously been paid by the competent authority to the Commonwealth in relation to the recovery of the claim.
History
S 263-40(3) inserted by No 14 of 2009, s 3 and Sch 2 item 8, applicable to foreign revenue claims, the particulars of which are in the Register at 26 March 2009 or are entered in the Register after 26 March 2009.
S 263-40 inserted by No 100 of 2006, s 3 and Sch 1 item 8, applicable to claims for assistance in collection of foreign tax debts made after 14 September 2006.
Subdivision 263-B - Service of documents in Australia on behalf of foreign revenue authorities
History
Subdiv 263-B inserted by No 64 of 2020, s 3 and Sch 3 item 134, effective 1 July 2020.
Guide to Subdivision 263-B
SECTION 263-55
WHAT THIS SUBDIVISION IS ABOUT
This Subdivision can be activated if there is in force an agreement between Australia and a foreign country or foreign territory that deals with service of documents on tax matters.
If a foreign government agency asks the Commissioner to serve a document relating to foreign taxes on an entity in Australia in accordance with the agreement, the Commissioner may serve the document in the same way as a similar document under an Australian taxation law may be served.
History
S 263-55 inserted by No 64 of 2020, s 3 and Sch 3 item 134, effective 1 July 2020.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 263-60 |
Meaning of foreign service of document request |
| 263-65 |
Service of document subject to foreign service of document request |
Operative provisions
SECTION 263-60
263-60
MEANING OF
FOREIGN SERVICE OF DOCUMENT REQUEST
A
foreign service of document request
is a request made to the Commissioner:
(a)
in accordance with an agreement (the
international agreement
) between Australia and:
(i)
a foreign country or a constituent part of a foreign country; or
(ii)
a foreign territory;
that deals with service of documents on tax matters; and
(b)
by a *foreign government agency; and
(c)
for the service of one or more documents on an entity in Australia in relation to taxes imposed otherwise than by an *Australian law.
History
S 263-60 inserted by No 64 of 2020, s 3 and Sch 3 item 134, effective 1 July 2020.
SECTION 263-65
SERVICE OF DOCUMENT SUBJECT TO FOREIGN SERVICE OF DOCUMENT REQUEST
263-65(1)
If a *foreign service of document request is made to the Commissioner, the Commissioner may serve a document covered by the request in the same way that a similar document under a *taxation law may be served.
263-65(2)
The Commissioner must also serve a translation of the document into English, or a summary of the document in English, if:
(a)
the document is in a language other than English; and
(b)
the Commissioner is satisfied that the entity being served would not understand the language of the document.
263-65(3)
Before serving a translation of the document into English, or a summary of the document in English, the Commissioner must be satisfied that the translation or summary is accurate.
History
S 263-65 inserted by No 64 of 2020, s 3 and Sch 3 item 134, effective 1 July 2020.
Division 265 - Other matters
History
Div 265 inserted by No 179 of 1999.
Subdivision 265-A - Right of person to seek recovery or contribution
Guide to Subdivision 265-A
SECTION 265-35
WHAT THIS SUBDIVISION IS ABOUT
This Division deals with a person's right to recover from another person an amount paid in discharge of a tax-related liability if:
• the person has paid the amount for or on behalf of the other person;
• the persons are jointly liable to pay the amount.
History
S 265-35 inserted by No 179 of 1999.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 265-40 |
Right of recovery if another person is liable |
| 265-45 |
Right of contribution if persons are jointly liable |
Operative provisions
SECTION 265-40
265-40
RIGHT OF RECOVERY IF ANOTHER PERSON IS LIABLE
A person who has paid an amount of a *tax-related liability for or on behalf of another person may:
(a)
recover that amount from the other person as a debt (together with the costs of recovery) in a court of competent jurisdiction; or
(b)
retain or deduct the amount out of money held by the person that belongs to, or is payable to, the other person.
History
S 265-40 inserted by No 179 of 1999.
SECTION 265-45
RIGHT OF CONTRIBUTION IF PERSONS ARE JOINTLY LIABLE
265-45(1)
If 2 or more persons are jointly liable to pay an amount of a *tax-related liability, they are each liable for the whole of the amount.
265-45(2)
If one of the persons has paid an amount of the liability, the person may recover in a court of competent jurisdiction, as a debt, from another of those persons:
(a)
an amount equal to so much of the amount paid; and
(b)
an amount equal to so much of the costs of recovery under this section;
as the court considers just and equitable.
Note:
Item 15 of Schedule 6 to the Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006 has the effect that, in addition to its normal application in relation to tax-related liabilities arising on or after 1 July 2000, subsection (2) also applies to such liabilities arising before that date, where amounts of the liabilities are paid after the commencement of that item.
History
S 265-45 amended by No 101 of 2006, s 3 and Sch 2 item 968, by inserting the note, effective 14 September 2006. Act No 101 of 2006, s 3 and Sch 6 item 15, contained the following saving provision:
Extended operation of subsection 265-45(2) in Schedule 1 to the
Taxation Administration Act 1953
15
In addition to the operation that it has apart from this item, subsection 265-45(2) in Schedule 1 to the Taxation Administration Act 1953 also applies to an amount of a liability (within the meaning of that subsection) that a person pays after the repeal of section 259 of the Income Tax Assessment Act 1936 by item 166 of Schedule 1 to this Act, if the liability arose before 1 July 2000.
For further application and savings provisions see the CCH Australian Income Tax Legislation archive.
S 265-45 inserted by No 179 of 1999.
Subdivision 265-B - Application of laws
SECTION 265-65
265-65
NON-APPLICATION OF CERTAIN TAXATION LAWS
This Part does not apply in relation to a *taxation law, or a provision of a taxation law, that is prescribed by the regulations.
History
S 265-65 inserted by No 179 of 1999.
265-70
265-70
(Repealed) SECTION 265-70 APPLICATION OF THE
CRIMINAL CODE
(Repealed by No 146 of 2001)
History
S 265-70 inserted by No 179 of 1999.
Subdivision 265-C - Direction to pay superannuation guarantee charge
History
Subdiv 265-C inserted by No 8 of 2019, s 3 and Sch 1 item 1, effective 1 April 2019 and applicable in relation to an amount referred to in paragraph 265-90(1)(a) inthat Schedule, or an amount of an estimate referred to in paragraph 265-90(1)(b) in that Schedule, that first becomes payable on or after 1 July 2018.
Guide to Subdivision 265-C
SECTION 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.
History
S 265-85 inserted by No 8 of 2019, s 3 and Sch 1 item 1, effective 1 April 2019 and applicable in relation to an amount referred to in paragraph 265-90(1)(a) in that Schedule, or an amount of an estimate referred to in paragraph 265-90(1)(b) in that Schedule, that first becomes payable on or after 1 July 2018.
TABLE OF SECTIONS
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 |
SECTION 265-90
DIRECTION TO PAY SUPERANNUATION GUARANTEE CHARGE
265-90(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.
265-90(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)
whetherthe 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.
265-90(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.
265-90(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.
265-90(5)
A notice given under subsection (1) is not a legislative instrument.
History
S 265-90 inserted by No 8 of 2019, s 3 and Sch 1 item 1, effective 1 April 2019 and applicable in relation to an amount referred to in paragraph 265-90(1)(a) in that Schedule, or an amount of an estimate referred to in paragraph 265-90(1)(b) in that Schedule, that first becomes payable on or after 1 July 2018.
SECTION 265-95
OFFENCE
265-95(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.
265-95(2)
An offence against subsection (1) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
265-95(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.
History
S 265-95 inserted by No 8 of 2019, s 3 and Sch 1 item 1, effective 1 April 2019 and applicable in relation to an amount referred to in paragraph 265-90(1)(a) in that Schedule, or an amount of an estimate referred to in paragraph 265-90(1)(b) in that Schedule, that first becomes payable on or after 1 July 2018.
SECTION 265-100
VARIATION OR REVOCATION
265-100(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.
265-100(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.
History
S 265-100 inserted by No 8 of 2019, s 3 and Sch 1 item 1, effective 1 April 2019 and applicable in relation to an amount referred to in paragraph 265-90(1)(a) in that Schedule, or an amount of an estimate referred to in paragraph 265-90(1)(b) in that Schedule, that first becomes payable on or after 1 July 2018.
SECTION 265-105
EFFECT OF LIABILITY BEING REDUCED OR CEASING TO EXIST
265-105(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).
265-105(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.
265-105(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.
History
S 265-105 inserted by No 8 of 2019, s 3 and Sch 1 item 1, effective 1 April 2019 and applicable in relation to an amount referred to in paragraph 265-90(1)(a) in that Schedule, or an amount of an estimate referred to in paragraph 265-90(1)(b) in that Schedule, that first becomes payable on or after 1 July 2018.
SECTION 265-110
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.
History
S 265-110 inserted by No 8 of 2019, s 3 and Sch 1 item 1, effective 1 April 2019 and applicable in relation to an amount referred to in paragraph 265-90(1)(a) in that Schedule, or an amount of an estimate referred to in paragraph 265-90(1)(b) in that Schedule, that first becomes payable on or after 1 July 2018.
SECTION 265-115
EXTENSION OF PERIOD TO COMPLY IF TAXATION OBJECTION MADE
265-115(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.
265-115(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 *ART 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.
History
S 265-115(2) amended by No 38 of 2024, s 3 and Sch 1 item 74, by substituting "*ART" for "*AAT" in para (b)(i), effective 14 October 2024.
265-115(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.
History
S 265-115 inserted by No 8 of 2019, s 3 and Sch 1 item 1, effective 1 April 2019 and applicable in relation to an amount referred to in paragraph 265-90(1)(a) in that Schedule, or an amount of an estimate referred to in paragraph 265-90(1)(b) in that Schedule, that first becomes payable on or after 1 July 2018.
Division 268 - Estimates
History
Div 268 heading substituted by No 6 of 2020, s 3 and Sch 3 item 2, applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020. The heading formerly read:
Division 268 - Estimates and recovery of PAYG withholding liabilities and superannuation guarantee charge
Div 268 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
Guide to Division 268
SECTION 268-1
WHAT THIS DIVISION IS ABOUT
This Division enables the Commissioner to make an estimate of:
(a) amounts not paid as required by Part 2-5 of this Act (Pay as you go (PAYG) withholding); or
(b) unpaid superannuation guarantee charge; or
(c) net amounts in respect of GST, wine equalisation tax and luxury car tax;
and to recover the amount of the estimate.
If you are given an estimate, you are liable to pay the amount of the estimate. That liability is distinct from your liability to pay the amounts required by Part 2-5 or the Superannuation Guarantee (Administration) Act 1992. In the case of an estimate of a net amount that has been assessed by the Commissioner, that liability is distinct from your liability to pay the amount of the assessment. However, you can ensure that the Commissioner does not require you to pay more than the relevant unpaid amounts.
Other Divisions of this Part provide for the recovery of amounts payable under this Division.
History
S 268-1 amended by No 6 of 2020, s 3 and Sch 3 items 3 and 4, by substituting (b) for (b) and (c) in first para and substituting second para, applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020. Para (b) and second para formerly read:
(b) unpaid superannuation guarantee charge;
If you are given an estimate, you are liable to pay the amount of the estimate. That liability is distinct from your liability to pay the amounts required by Part 2-5 or the Superannuation Guarantee (Administration) Act 1992. However, you can ensure that the Commissioner does not require you to pay more than the amounts not paid under that Part or Act.
S 268-1 amended by No 99 of 2012, s 3 and Sch 1 items 37 to 39, by substituting the first para, and inserting "or the Superannuation Guarantee (Administration) Act 1992" and "or Act" in the second para, applicable to a company's liability to pay superannuation guarantee charge for a quarter if the day by which the company must lodge a superannuation guarantee statement for the quarter occurs on or after 30 June 2012. The first para formerly read:
This Division enables the Commissioner to make an estimate of amounts not paid as required by Part 2-5 (Pay as you go (PAYG) withholding), and to recover the amount of the estimate.
S 268-1 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
Subdivision 268-A - Object
History
Subdiv 268-A inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
The object of this Division is to enable the Commissioner to take prompt and effective action to recover:
(a)
amounts not paid as required by Part 2-5 (Pay as you go (PAYG) withholding); or
(b)
unpaid superannuation guarantee charge that has not been assessed; or
(c)
*net amounts under the *GST Act.
History
S 268-5 amended by No 6 of 2020, s 3 and Sch 3 item 5, by inserting para (c), applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020.
S 268-5 substituted by No 99 of 2012, s 3 and Sch 1 item 40, applicable to a company's liability to pay superannuation guarantee charge for a quarter if the day by which the company must lodge a superannuation guarantee statement for the quarter occurs on or after 30 June 2012. S 268-5 formerly read:
SECTION 268-5 OBJECT OF DIVISION
268-5
The object of this Division is to enable the Commissioner to take prompt and effective action to recover amounts not paid as required by Part 2-5 (Pay as you go (PAYG) withholding).
S 268-5 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
Subdivision 268-B - Making estimates
History
Subdiv 268-B inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
SECTION 268-10
COMMISSIONER MAY MAKE ESTIMATE
Estimate
268-10(1)
The Commissioner may estimate the unpaid and overdue amount of a liability (the
underlying liability
) of yours:
(a)
under section 16-70 in this Schedule (requirement to pay to the Commissioner amounts you have withheld under the Pay as you go withholding rules); or
(b)
to pay superannuation guarantee charge for a *quarter under section 16 of the Superannuation Guarantee (Administration) Act 1992, to the extent the superannuation guarantee charge has not been assessed before the Commissioner makes the estimate; or
(c)
to pay a *net amount for a *tax period, to the extent that the net amount has not been assessed before the Commissioner makes the estimate.
History
S 268-10(1) amended by No 6 of 2020, s 3 and Sch 3 item 6, by inserting para (c), applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020.
S 268-10(1) substituted by No 99 of 2012, s 3 and Sch 1 item 41, applicable to a company's liability to pay superannuation guarantee charge for a quarter if the day by which the company must lodge a superannuation guarantee statement for the quarter occurs on or after 30 June 2012. S 268-10(1) formerly read:
Estimate
268-10(1)
The Commissioner may estimate the unpaid and overdue amount of a liability (the
underlying liability
) of yours under section 16-70.
Note:
Section 16-70 requires you to pay to the Commissioner amounts you have withheld under the Pay as you go withholding rules.
268-10(1A)
For the purposes of this Division, your superannuation guarantee charge for a *quarter is treated as being payable on the day by which you must lodge a superannuation guarantee statement for the quarter under section 33 of the Superannuation Guarantee (Administration) Act 1992, even if, on that day, the charge has not been assessed under that Act.
History
S 268-10(1A) inserted by No 99 of 2012, s 3 and Sch 1 item 41, applicable to a company's liability to pay superannuation guarantee charge for a quarter if the day by which the company must lodge a superannuation guarantee statement for the quarter occurs on or after 30 June 2012.
268-10(1B)
For the purposes of this Division, if you have a *net amount for a *tax period:
(a)
you are treated as being liable to pay that net amount; and
(b)
that liability is treated as having arisen on the day by which you must give your *GST return for the tax period to the Commissioner in accordance with Division 31 of the *GST Act; and
(c)
that liability is treated as being payable on that day; and
(d)
the entire amount of that liability is treated as being unpaid.
History
S 268-10(1B) inserted by No 6 of 2020, s 3 and Sch 3 item 7, applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020.
Amount of estimate
268-10(2)
The amount of the estimate must be what the Commissioner thinks is reasonable.
268-10(3)
In making the estimate, the Commissioner may have regard to anything he or she thinks relevant.
Example 1:
In the case of an underlying liability under section 16-70 (requirement to pay to the Commissioner amounts you have withheld under the Pay as you go withholding rules), the Commissioner may have regard to information about amounts you withheld under the Pay as you go rules before the period in relation to which the underlying liability arose.
Example 2:
In the case of an underlying liability to pay superannuation guarantee charge for a quarter, the Commissioner may have regard to information about your contributions to RSAs and complying superannuation funds for earlier quarters.
History
S 268-10(3) amended by No 99 of 2012, s 3 and Sch 1 item 42, by substituting example 1 and 2 for the example at the end, applicable to a company's liability to pay superannuation guarantee charge for a quarter if the day by which the company must lodge a superannuation guarantee statement for the quarter occurs on or after 30 June 2012. The example formerly read:
Example:
The Commissioner may have regard to information about amounts you withheld under the Pay as you go rules before the period in relation to which the underlying liability arose.
Only one estimate for each liability
268-10(4)
While the estimate is in force, the Commissioner cannot make another estimate relating to the underlying liability.
268-10(5)
For the purposes of subsection (4), the estimate is in force if:
(a)
the Commissioner has given you notice of the estimate; and
(b)
the estimate has not been revoked; and
(c)
your liability to pay the estimate has not been discharged.
[
CCH Note:
No 99 of 2012, s 3 and Sch 1 item 46 contains the following saving provisions:
46 Saving provision - estimates
46
An estimate:
(a)
made under section 268-10 in Schedule 1 to the Taxation Administration Act 1953; and
(b)
in force just before the commencement of this item [ie 30 June 2012];
has effect, from that commencement, as if it had been made under that section as amended by this Schedule.
]
History
S 268-10 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010. Act No 79 of 2010, s 3 and Sch 1 item 58, contained the following provision:
58 Estimates
New estimate
(1)
Section 268-10 in Schedule 1 to the Taxation Administration Act 1953, as added, applies in relation to an amount you became liable to pay to the Commissioner under section 16-70 in Schedule 1 to that Act before, on or after 1 July 2010.
Existing estimate
(2)
Subitem (3) applies to an estimate that:
(a)
was made under section 222AGA of the Income Tax Assessment Act 1936 (whether or not notice of it has been sent to you or your trustee); and
(b)
was in force just before the commencement time.
(3)
The estimate remains in force, from the commencement time, as if it had been made under section 268-10 in Schedule 1 to the Taxation Administration Act 1953, as added by this Schedule.
SECTION 268-15
NOTICE OF ESTIMATE
Commissioner must give notice of estimate
268-15(1)
The Commissioner must give you written notice of the estimate.
Content of notice
268-15(2)
The notice must:
(a)
identify the underlying liability; and
(b)
specify the date of the estimate; and
(c)
set out the amount of the estimate; and
(d)
state that the amount of the estimate is due and payable; and
(e)
explain how you may have the amount of the estimate reduced or the estimate revoked.
268-15(3)
To avoid doubt, a single notice may relate to 2 or more estimates, but must comply with subsection (2) in relation to each of them.
When notice is given
268-15(4)
Despite section 29 of the Acts Interpretation Act 1901, a notice under subsection (1) is taken to be given at the time the Commissioner leaves or posts it.
Note:
Section 28A of the Acts Interpretation Act 1901 may be relevant to giving a notice under subsection (1).
History
S 268-15 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
Subdivision 268-C - Liability to pay estimates
History
Subdiv 268-C inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
SECTION 268-20
NATURE OF LIABILITY TO PAY ESTIMATE
Liability to pay amount of estimate
268-20(1)
You must pay to the Commissioner the amount of the estimate if the Commissioner gives you notice of the estimate in accordance with section 268-15. The amount is due and payable when the Commissioner gives you the notice.
Note:
The amount of the estimate may be reduced, or the estimate revoked, under Subdivision 268-D.
Liability to pay amount of estimate is distinct from underlying liability
268-20(2)
Your liability to pay the amount of the estimate is separate and distinct from the underlying liability. It is separate and distinct for all purposes.
Example:
In a case covered by paragraph 268-10(1)(a) or (b), the Commissioner may take:
(a) proceedings to recover the unpaid amount of the estimate; or
(b) proceedings to recover the unpaid amount of the underlying liability; or
(c) proceedings of both kinds.
History
S 268-20(2) amended by No 6 of 2020, s 3 and Sch 3 item 8, by substituting "In a case covered by paragraph 268-10(1)(a) or (b), the Commissioner" for "The Commissioner" in the example, applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020.
Discharging one liability discharges other liabilities
268-20(3)
Despite subsection (2), if, at a particular time, one of the liabilities to which this subsection applies is discharged, to the extent of an amount, for either of the following reasons, each of the other liabilities to which this subsection applies is discharged to the extent of the same amount:
(a)
an amount is paid or applied towards discharging the liability;
(b)
the liability is discharged because of section 269-40 (Effect of director paying penalty or company discharging liability).
268-20(4)
Subsection (3) applies to whichever of the following liabilities are in existence at the particular time:
(a)
your liability to pay the amount of the estimate;
(b)
the underlying liability;
(c)
a liability of yours under a judgment, to the extent that it is based on a liability referred to in paragraph (a) or (b).
268-20(4A)
In a case covered by paragraph 268-10(1)(c) (estimate of liability in relation to net amount under GST Act), treat thereference in paragraph (4)(b) to the underlying liability as being a reference to a liability under Division 33 or 35 of the *GST Act for an *assessed net amount in respect of the underlying liability.
History
S 268-20(4A) inserted by No 6 of 2020, s 3 and Sch 3 item 9, applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020.
268-20(5)
Subsection (3) does not discharge a liability to a greater extent than the amount of the liability.
History
S 268-20 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
SECTION 268-25
268-25
ACCURACY OF ESTIMATE IRRELEVANT TO LIABILITY TO PAY
You are liable to pay the unpaid amount of the estimate even if:
(a)
the underlying liability never existed or has been discharged in full; or
(b)
the unpaid amount of the underlying liability is less than the unpaid amount of the estimate.
Note 1:
Section 268-40 revokes the estimate if you give the Commissioner a statutory declaration, or file an affidavit, to the effect that the underlying liability never existed.
Note 2:
Subdivision 268-D provides ways in which you can challenge the estimate or its amount.
History
S 268-25 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
SECTION 268-30
ESTIMATE PROVABLE IN BANKRUPTCY OR WINDING UP
268-30(1)
Your liability (the
estimate liability
) to pay the unpaid amount of the estimate is provable in a bankruptcy or winding up, even if the estimate was made after:
(a)
the date of the bankruptcy; or
(b)
the relevant date (within the meaning of the Corporations Act 2001).
268-30(2)
However, the estimate liability is provable only to the extent that the underlying liability would be provable if the unpaid amount of the underlying liability were the same as the unpaid amount of the estimate.
Example:
Subsection (2) prevents proof of the estimate liability if the underlying liability could not be proved because, for example, of when it arose.
268-30(3)
Subsections (1) and (2) do not apply if:
(a)
the underlying liability has already been admitted to proof; and
(b)
the proof has not been set aside.
268-30(4)
If the estimate liability has been admitted to proof at a particular amount, the underlying liability is provable only to the extent the unpaid amount of the underlying liability exceeds that particular amount.
268-30(4A)
In a case covered by paragraph 268-10(1)(c) (estimate of liability in relation to net amount under GST Act), treat the references in paragraph (3)(a) and subsection (4) to the underlying liability as being references to a liability under Division 33 or 35 of the *GST Act for an *assessed net amount in respect of the underlying liability.
History
S 268-30(4A) inserted by No 6 of 2020, s 3 and Sch 3 item 10, applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020.
268-30(5)
To the extent that a liability is provable because of this section, it is taken, for the purposes of the Bankruptcy Act 1966, to be provable in bankruptcy under that Act.
History
S 268-30 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010. Act No 79 of 2010, s 3 and Sch 1 item 59, contained the following provision:
59 Bankruptcy or winding up
Section 268-30 in Schedule 1 to the Taxation Administration Act 1953, as added, applies whether the date of the bankruptcy, or the relevant date, referred to in that section occurred before, on or after 1 July 2010.
Subdivision 268-D - Reducing and revoking estimates
History
Subdiv 268-D inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
SECTION 268-35
HOW ESTIMATE MAY BE REDUCED OR REVOKED - COMMISSIONER'S POWERS
Reduction
268-35(1)
The Commissioner may at any time reduce the amount of the estimate, but is not obliged to consider whether or not to do so.
268-35(2)
If the Commissioner reduces the amount of the estimate under subsection (1), he or she must give you a written notice that:
(a)
identifies the underlying liability; and
(b)
sets out the reduced amount of the estimate.
Note:
The estimate is taken always to have had effect as reduced: see section 268-55.
Revocation
268-35(3)
The Commissioner may at any time revoke the estimate, but is not obliged to consider whether or not to do so.
268-35(4)
If the Commissioner revokes the estimate under subsection (3), he or she must give you a written notice that:
(a)
identifies the underlying liability; and
(b)
states that the estimate has been revoked.
Note:
The estimate is taken never to have been made: see section 268-55.
Matters for Commissioner to consider
268-35(5)
In exercising his or her power under this section to reduce the amount of the estimate, or to revoke the estimate, the Commissioner must have regard to:
(a)
the following principles:
(i)
the estimate is of the unpaid amount of the underlying liability as at a particular time;
(ii)
the purpose of reducing the amount of the estimate is to bring it closer to the unpaid amount of the underlying liability as at the time the estimate was made;
(iii)
reductions of the unpaid amount of the underlying liability that happen after the time the estimate was made are dealt with by section 268-20 (Nature of liability to pay estimate) and so should not be taken into account in exercising such a power; and
(b)
the effects of sections 268-55 and 268-70 (effect of reduction or revocation on liabilities).
History
S 268-35 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
SECTION 268-40
HOW ESTIMATE MAY BE REDUCED OR REVOKED - STATUTORY DECLARATION OR AFFIDAVIT
Scope
268-40(1)
This section applies as set out in the following table:
|
Statutory declaration or affidavit
|
|
Item
|
This section applies if …
|
and …
|
within …
|
| 1 |
the Commissioner gives you notice of the estimate |
you give the Commissioner a statutory declaration for the purposes of this section |
(a) 7 days after the Commissioner gives you the notice; or
(b) a longer period allowed by the Commissioner. |
| 2 |
you are a party to proceedings before a court that relate to the recovery of the unpaid amount of the estimate |
you:
(a) file an affidavit for the purposes of this section; and
(b) serve a copy on the Commissioner |
(a) 14 days after you first take a procedural step as a party to the proceedings; or
(b) a longer period allowed by the court. |
| 3 |
(a) the estimate is of the unpaid amount of a liability of a company; and
(b) the Commissioner serves on the company a *statutory demand relating to the company's liability to pay the unpaid amount of the estimate; and
(c) an application is made to a court under section 234, 459P, 462 or 464 of the Corporations Act 2001 for the company to be wound up |
the company:
(a) files an affidavit for the purposes of this section; and
(b) serves a copy on the applicant |
(a) 14 days after notice of the application was served on the company; or
(b) a longer period allowed by the court. |
Example:
For the purposes of item 2 of the table, taking a procedural step as a party to proceedings includes entering an appearance, filing a notice of intention to defend, or applying to set aside judgment entered in default of appearance.
Note 1:
Section 459C of the Corporations Act 2001 creates a presumption that a company is insolvent, and may be wound up, if the company fails to comply with a statutory demand.
Note 2:
See section 268-90 for what the statutory declaration or affidavit must contain and who must make, swear or affirm it.
Reduction
268-40(2)
The amount of the estimate is reduced if the statutory declaration is to the effect, or the affidavit verifies facts sufficient to prove, that a specified lesser amount is the unpaid amount of the underlying liability.
Example:
Subsection (2) will apply if the statutory declaration etc. is to the effect that the underlying liability has been discharged in full (and therefore the unpaid amount of the liability is nil).
268-40(3)
The amount of the reduction is the amount by which the unpaid amount of the estimate (just before the reduction) exceeds the amount specified.
Note:
The effect of subsection (3) is to reduce the unpaid amount of the estimate to the amount specified.
Revocation
268-40(4)
The estimate is revoked if the statutory declaration is to the effect, or the affidavit verifies facts sufficient to prove, that the underlying liability never existed.
History
S 268-40 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010. Act No 79 of 2010, s 3 and Sch 1 item 60, contained the following provision:
60 Reducing and revoking estimates
(1)
Section 268-40 in Schedule 1 to the Taxation Administration Act 1953, as added by this Schedule, applies in relation to:
(a)
a notice given by the Commissioner before, on or after 1 July 2010; or
(b)
proceedings that relate to the recovery of the unpaid amount of an estimate commenced before, on or after 1 July 2010; or
(c)
an application made under section 234, 459P, 462 or 464 of the Corporations Act 2001 before, on or after 1 July 2010.
(2)
Section 268-45 in Schedule 1 to the Taxation Administration Act 1953, as added by this Schedule, applies in relation to a proof of debt lodged before, on or after 1 July 2010.
SECTION 268-45
HOW ESTIMATE MAY BE REDUCED OR REVOKED - REJECTION OF PROOF OF DEBT
Scope
268-45(1)
This section applies if:
(a)
the Commissioner lodges a proof of debt relating to the unpaid amount of the estimate; and
(b)
section 268-95 applies to an entity (your
supervising entity
) in relation to you.
Rejection of proof of debt
268-45(2)
Your supervising entity may give the Commissioner a statutory declaration to the effect that:
(a)
the underlying liability has been discharged in full; or
(b)
the unpaid amount of the underlying liability is a specified, lesser amount; or
(c)
the underlying liability never existed.
Note:
See section 268-90 for what the statutory declaration must contain and who must make it.
268-45(3)
If your supervising entity does so, he or she may reject the proof of debt (in whole or in part) on the ground made out in the statutory declaration.
268-45(4)
If the Commissioner appeals, or applies for review of, your supervising entity's decision to reject the proof of debt, nothing in subsection (2) or (3) prevents evidence being adduced to contradict statements in the declaration.
Note:
Such evidence might also be relevant to a prosecution for an offence, such as an offence against section 11 of the Statutory Declarations Act 1959 (False declarations).
Revocation or reduction of estimate
268-45(5)
The following table applies in relation to the outcome following all (if any) appeals from, and applications for review of, your supervising entity's decision to reject the proof of debt. (If there are no appeals or applications for review, the outcome is your supervising entity's decision as originally made.)
|
Rejecting proof of debt
|
|
Item
|
If the outcome is that …
|
then …
|
| 1 |
the proof is rejected in whole on the ground that the estimate has been discharged in full |
the amount of the estimate is reduced by the unpaid amount of the estimate (just before the reduction). |
| 2 |
the proof is rejected in part |
the amount of the estimate is reduced by so much of the unpaid amount of the estimate (just before the reduction) as is rejected. |
| 3 |
the proof is rejected in whole on the ground that the underlying liability never existed |
the estimate is revoked. |
Note 1:
The effect of item 1 of the table is to reduce the unpaid amount of the estimate to nil.
Note 2:
The effect of item 2 of the table is to reduce the unpaid amount of the estimate to the amount admitted to proof.
History
S 268-45 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010. Act No 79 of 2010, s 3 and Sch 1 item 60, contained the following provision:
60 Reducing and revoking estimates
(1)
Section 268-40 in Schedule 1 to the Taxation Administration Act 1953, as added by this Schedule, applies in relation to:
(a)
a notice given by the Commissioner before, on or after 1 July 2010; or
(b)
proceedings that relate to the recovery of the unpaid amount of an estimate commenced before, on or after 1 July 2010; or
(c)
an application made under section 234, 459P, 462 or 464 of the Corporations Act 2001 before, on or after 1 July 2010.
(2)
Section 268-45 in Schedule 1 to the Taxation Administration Act 1953, as added by this Schedule, applies in relation to a proof of debt lodged before, on or after 1 July 2010.
SECTION 268-50
HOW ESTIMATE MAY BE REDUCED - AMOUNT PAID OR APPLIED
268-50(1)
This section applies if:
(a)
an amount is paid or applied towards discharging your liability to pay the amount of the estimate; and
(b)
the amount paid or applied exceeds the unpaid amount of the underlying liability as at the time just before the payment or application.
268-50(2)
The amount of the estimate is reduced so that it does not exceed the unpaid amount, at the time mentioned in paragraph (1)(b), of the underlying liability.
History
S 268-50 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
SECTION 268-55
WHEN REDUCTION OR REVOCATION TAKES EFFECT
Scope
268-55(1)
This section applies for the purposes of the following:
(a)
Subdivision 268-C (Liability to pay estimates);
(b)
section 268-60 (refund of overpayments);
(c)
Subdivision 268-E (Late payment of estimates);
(d)
Division 269 (Penalties for directors of non-complying companies).
When reduction or revocation takes effect
268-55(2)
If the amount of the estimate is reduced, the estimate has effect, and is taken always to have had effect, as if the original amount of the estimate had been the reduced amount.
268-55(3)
If the estimate is revoked, the estimate is taken never to have been made.
History
S 268-55 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
SECTION 268-60
CONSEQUENCES OF REDUCTION OR REVOCATION - REFUND
268-60(1)
This section applies if:
(a)
an amount is paid or applied towards discharging your liability to pay the amount of the estimate; and
(b)
the amount paid or applied exceeds the unpaid amount of the estimate as at the time just before the payment or application.
Example:
You pay an amount towards discharging the estimate and the estimate is later reduced to a lesser amount.
Note:
Section 268-50 provides for the reduction of the amount of the estimate in the case of overpayment.
268-60(2)
The Commissioner must pay you the excess.
Note:
See Division 3A of Part IIB of this Act for the rules about how the Commissioner must pay you. Division 3 of that Part allows the Commissioner to apply the amount owing as a credit against tax debts that you owe the Commonwealth.
History
S 268-60 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
SECTION 268-65
CONSEQUENCES OF REDUCTION OR REVOCATION - STATUTORY DEMAND CHANGED OR SET ASIDE
Scope
268-65(1)
This section applies if:
(a)
the estimate is of the unpaid amount of a liability of a company; and
(b)
the Commissioner has served a *statutory demand on the company relating to the company's liability to pay the unpaid amount of the estimate; and
(c)
the amount of the estimate is later reduced, or the estimate is revoked.
Statutory demand changed
268-65(2)
The *statutory demand is changed accordingly.
268-65(3)
The *statutory demand is taken to have had effect (as so changed) from the time the Commissioner served it on the company.
Statutory demand set aside
268-65(4)
The *statutory demand is set aside if subsection (2) reduces the amount of the debt (or the total of the amounts of the debts) below the statutory minimum (within the meaning of the Corporations Act 2001).
History
S 268-65 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
SECTION 268-70
268-70
CONSEQUENCES OF REDUCTION OR REVOCATION - UNDERLYING LIABILITY
Reduction of the amount of the estimate, or revocation of the estimate, does not affect the Commissioner's rights or remedies in relation to the underlying liability (except to the extent that this Division expressly provides otherwise).
History
S 268-70 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
Subdivision 268-E - Late payment of estimates
History
Subdiv 268-E inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
SECTION 268-75
LIABILITY TO PAY THE GENERAL INTEREST CHARGE
268-75(1)
This section applies if:
(a)
your liability to pay the amount of the estimate remains undischarged at the end of 7 days after the Commissioner gives you notice of the estimate; and
(b)
the underlying liability is not a liability to pay superannuation guarantee charge.
History
S 268-75(1) substituted by No 99 of 2012, s 3 and Sch 1 item 43, applicable to a company's liability to pay superannuation guarantee charge for a quarter if the day by which the company must lodge a superannuation guarantee statement for the quarter occurs on or after 30 June 2012. S 268-75(1) formerly read:
268-75(1)
This section applies if your liability to pay the amount of the estimate remains undischarged at the end of 7 days after the Commissioner gives you notice of the estimate.
268-75(2)
You are liable to pay the *general interest charge on the unpaid amount of the estimate for each day in the period that:
(a)
started at the beginning of the day by which the underlying liability was due to be paid; and
(b)
finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i)
the amount of the estimate;
(ii)
general interest charge on any of the amount of the estimate.
Note:
The general interest charge is worked out under Part IIA of this Act.
History
S 268-75 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010. Act No 79 of 2010, s 3 and Sch 1 item 61, contained the following provision, commencing 1 July 2010:
61 General interest charge
New charge
(1)
Section 268 75 in Schedule 1 to the Taxation Administration Act 1953, as added by this Schedule, applies in relation to an estimate of which the Commissioner sends notice:
(a)
on or after the commencement time; or
(b)
no more than 7 days before the commencement time.
Existing charge
(2)
Subitems (3) and (4) apply if, just before the commencement time, you were liable, under Subdivision E of Division 8 of Part VI of the Income Tax Assessment Act 1936 (the
old Subdivision
), to pay the general interest charge on an unpaid amount of an estimate.
(3)
At the commencement time, the old Subdivision stops applying to the liability.
(4)
From the commencement time, Subdivision 268-E in Schedule 1 to the Taxation Administration Act 1953 (the new Subdivision) applies to the liability as if:
(a)
the liability remained unpaid at the commencement time; and
(b)
the liability remained unpaid at the commencement time; and
(i)
had been imposed under the new Subdivision; and
(ii)
remained unpaid at that time.
SECTION 268-80
EFFECT OF PAYING THE GENERAL INTEREST CHARGE
Scope
268-80(1)
If you are liable to pay the *general interest charge under section 268-75 in relation to the estimate, this section applies to the following liabilities:
(a)
your liability to pay the general interest charge;
(b)
a liability of yours to pay a general interest charge, under a corresponding provision of Subdivision 16-B, because the underlying liability remains undischarged;
(c)
liability under a judgment, to the extent that it is based on a liability referred to in paragraph (a) or (b);
(d)
a liability of yours to pay interest carried by a judgment debt, to the extent that the judgment debt is based on:
(i)
the liability to pay the estimate; or
(ii)
the liability to pay the general interest charge under section 268-75 on an unpaid amount of the estimate.
268-80(1A)
In a case covered by paragraph 268-10(1)(c) (estimate of liability in relation to net amount under GST Act), treat the reference in paragraph (1)(b) to the underlying liability as being a reference to a liability under Division 33 or 35 of the *GST Act for an *assessed net amount in respect of the underlying liability.
History
S 268-80(1A) inserted by No 6 of 2020, s 3 and Sch 3 item 11, applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020.
Discharging one liability discharges other liabilities
268-80(2)
If, at a particular time, an amount is paid or applied towards discharging one of the liabilities, each of the other liabilities that is in existence at that time is discharged to the extent of the same amount.
268-80(3)
However, this section does not discharge a liability to a greater extent than the amount of the liability.
268-80(4)
If, because a judgment debt carries interest, section 8AAH of this Act reduces the amount of a *general interest charge payable as mentioned in paragraph (1)(b) of this section, the amount of the reduction is taken, for the purposes of subsection (2) of this section, to have been applied towards discharging your liability to the charge.
History
S 268-80 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
Subdivision 268-F - Miscellaneous
History
Subdiv 268-F inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
SECTION 268-85
EFFECT OF JUDGMENT ON LIABILITY ON WHICH IT IS BASED
Estimate payable despite judgment
268-85(1)
The unpaid amount of the estimate, or of the underlying liability, does not stop being payable merely because a judgment has been given by, or entered in, a court.
Division applies to liability under judgment
268-85(2)
This Division applies in relation to liability under a judgment, to the extent that it is based on your liability to pay the amount of the estimate, in the same way as this Division applies to that estimate liability.
268-85(3)
This Division applies in relation to liability under a judgment, to the extent that it is based on the underlying liability, in the same way as this Division applies to the underlying liability.
268-85(4)
Subsections (2) and (3) do not apply for the purposes of the following:
(a)
section 268-20 (Nature of liability to pay estimate);
(b)
section 268-30 (Estimate provable in bankruptcy or winding up);
(c)
section 268-45 (rejection of proof of debt).
Judgment conclusive as to amount of liability
268-85(5)
Nothing in this Division affects the conclusiveness of a judgment as to the amount of a liability on which it is based.
History
S 268-85 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
SECTION 268-90
REQUIREMENTS FOR STATUTORY DECLARATION OR AFFIDAVIT
Scope
268-90(1)
This section applies to a statutory declaration given, or an affidavit filed, for the purposes of section 268-40 or 268-45 in relation to the estimate.
Content
268-90(2)
In a case covered by paragraph 268-10(1)(a) (estimate of liability under requirement to pay to the Commissioner amounts you have withheld under the Pay as you go withholding rules), the statutory declaration or affidavit must verify the following facts:
(a)
whichever of the following are applicable:
(i)
the sum of all amounts you withheld under Division 12 during the relevant period, or the fact that you did not withhold any such amounts during the period;
(ii)
the sum of all amounts you were required to pay under Division 13 (Alienated personalservices payments) during the relevant period, or the fact that you were not required to pay any such amounts during the period;
(iii)
the sum of all amounts you were required to pay under Division 14 (non-cash benefits and accruing gains) during the relevant period, or the fact that you were not required to pay any such amounts during the period;
(b)
what has been done to comply with Division 16 (Payer's obligations and rights) in relation to the amounts referred to in paragraph (a).
History
S 268-90(2) amended by No 99 of 2012, s 3 and Sch 1 item 44, by substituting "In a case covered by paragraph 268-10(1)(a) (estimate of liability under requirement to pay to the Commissioner amounts you have withheld under the Pay as you go withholding rules), the statutory" for "The statutory", applicable to a company's liability to pay superannuation guarantee charge for a quarter if the day by which the company must lodge a superannuation guarantee statement for the quarter occurs on or after 30 June 2012.
268-90(2A)
In a case covered by paragraph 268-10(1)(b) (estimate of liability to pay superannuation guarantee charge), the statutory declaration or affidavit must verify the following facts:
(a)
your name and address;
(b)
for each employee for whom you have an *individual superannuation guarantee shortfall for the relevant *quarter:
(i)
the employee's name and postal address and, if the employee has *quoted the employee's *tax file number to you, the employee's tax file number; and
(ii)
the amount of the shortfall;
(c)
what has been done to comply with your obligation to pay the relevant superannuation guarantee charge to the Commissioner.
Note:
The amount of the individual superannuation guarantee shortfall mentioned in paragraph (b) is a factor in determining the amount of the superannuation guarantee charge mentioned in paragraph 268-10(1)(b). The lesser amount mentioned in subsection 268-40(2) may therefore differ from the amount of that shortfall.
History
S 268-90(2A) inserted by No 99 of 2012, s 3 and Sch 1 item 45, applicable to a company's liability to pay superannuation guarantee charge for a quarter if the day by which the company must lodge a superannuation guarantee statement for the quarter occurs on or after 30 June 2012.
268-90(2B)
In a case covered by paragraph 268-10(1)(c) (estimate of liability in relation to net amount under GST Act), the statutory declaration or affidavit must verify the following facts:
(a)
your *net amount for the *tax period;
(b)
what has been done to comply with Division 31 and 33 of the *GST Act (obligation to give GST return and liability in respect of assessed net amounts) in relation to that tax period;
(c)
your *taxable supplies and *creditable acquisitions that are attributable to that tax period;
(d)
your assessable dealings (within the meaning of the *Wine Tax Act) and *wine tax credits that are attributable to that tax period.
History
S 268-90(2B) inserted by No 6 of 2020, s 3 and Sch 3 item 12, applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020.
Maker or deponent
268-90(3)
The statutory declaration or affidavit must be made, sworn or affirmed by:
(a)
an individual specified in the following table; or
(b)
your liquidator, receiver or trustee in bankruptcy (if and as applicable).
|
Who must make the statutory declaration or swear or affirm the affidavit
|
|
Item
|
A statutory declaration or affidavit in relation to an estimate of a liability of …
|
must be made, sworn or affirmed by …
|
| 1 |
an individual |
that individual. |
| 2 |
a body corporate |
(a) in the case of a company that has a director or a company secretary (within the meaning of the Corporations Act 2001) - a director of the company or the company secretary; or
(b) in the case of an *Australian government agency - an individual prescribed by the regulations; or
(c) in any case - the public officer of the body corporate (for the purposes of the Income Tax Assessment Act 1936). |
| 3 |
a body politic |
an individual prescribed by the regulations. |
| 4 |
a partnership |
a partner of the partnership. |
| 5 |
any other unincorporated association or body of persons |
(a) a member of the association's or body's committee of management; or
(b) the public officer of the association or body (for the purposes of the Income Tax Assessment Act 1936). |
| 6 |
a trust |
(a) the trustee of the trust; or
(b) the public officer of the trust (for the purposes of the Income Tax Assessment Act 1936). |
| 7 |
a *superannuation fund or an *approved deposit fund |
(a) the trustee of the fund; or
(b) if the fund does not have a trustee - the entity managing the fund. |
268-90(4)
If the entity specified in the table in subsection (3) is not an individual, the table is taken to specify the individual who, under that subsection, would be eligible to make a statutory declaration in relation to an estimate of a liability of that entity.
History
S 268-90 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
SECTION 268-95
LIQUIDATORS, RECEIVERS AND TRUSTEES IN BANKRUPTCY
Scope
268-95(1)
This section applies to an entity (your
supervising entity
), in relation to you, if:
(a)
the entity is your liquidator, receiver, trustee in bankruptcy or administrator, or the administrator of a deed of company arrangement executed by you; or
(b)
your property is vested in the entity, or the entity has control of your property.
268-95(2)
For the purposes of this Division, this section applies to an entity in relation to a partnership if it applies to the entity in relation to a partner of the partnership.
Notices from the Commissioner
268-95(3)
For the purposes of this Division, a notice given by the Commissioner to your supervising entity is taken to have been given to you.
268-95(4)
You must give your supervising entity a copy of any notice given to you by the Commissioner under this Division. You must do so as soon as practicable, and in any event within 7 days, after:
(a)
if the Commissioner gave you the notice before the day when your property vested in, or control of your property passed to, the supervising entity - that day; or
(b)
if subsection (2) applies and the Commissioner gave you the notice before the day when the relevant partner's property vested in, or control of the relevant partner's property passed to, the supervising entity - that day; or
(c)
otherwise - the day when the Commissioner gave you the notice.
268-95(5)
If the Commissioner gives you and your supervising entity a notice at different times, each notice is taken to have been given at the later of those times.
Action taken by your supervising entity
268-95(6)
For the purposes of this Division, a statutory declaration given to the Commissioner by your supervising entity is taken to have been given by you.
268-95(7)
For the purposes of this Division, an affidavit filed by your supervising entity is taken to have been filed by you.
268-95(8)
For the purposes of item 2 in the table in subsection 268-40(1) (recovery proceedings), a procedural step taken by your supervising entity is taken to have been taken by you.
Multiple supervising entities
268-95(9)
If you have 2 or more supervising entities, anything this Division provides for to be done by or in relation to your supervising entity may be done by or in relation to any of them.
History
S 268-95 inserted by No 79 of 2010, s 3 and Sch 1 item 10, effective 1 July 2010.
SECTION 268-100
268-100
DIVISION NOT TO LIMIT OR EXCLUDE CORPORATIONS OR BANKRUPTCY ACT
This Division is not intended to limit or exclude the operation of Chapter 5 (External administration) or Schedule 2 to the Corporations Act 2001, or the Bankruptcy Act 1966, to the extent those provisions or that Act can operate concurrently with this Division.
Note:
Section 268-30 and Subdivision 268-D affect the operation of Chapter 5 of the Corporations Act 2001 and the Bankruptcy Act 1966.
History
S 268-100 amended by No 11 of 2016, s 3 and Sch 2 item 316, by substituting "(External administration) or Schedule 2 to the Corporations Act 2001, or the Bankruptcy Act 1966, to the extent those provisions or that" for "of the Corporations Act 2001 (External administration), or the Bankruptcy Act 1966, to the extent that Chapter or", effective 1 March 2017.
S 268-100 inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010.
Division 269 - Penalties for directors of non-complying companies
History
Div 269 inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010.
Act No 79 of 2010, s 3 and Sch 1 item 65, contained the following provision, commencing 1 July 2010:
65 Transitional - penalties
No doubling up of penalties
(1)
Subsection 269-20(1) in Schedule 1 to the Taxation Administration Act 1953, as added by this Schedule, does not apply if the due day referred to in that subsection occurs before the commencement time.
(2)
Subsection 269-20(3) in Schedule 1 to that Act, as added by this Schedule, does not apply if the 14th day referred to in that subsection occurs before the commencement time.
New provisions apply to existing penalties
(3)
Subitem (4) applies in relation to a penalty that, just before the commencement time, was payable under Division 9 of Part VI of the Income Tax Assessment Act 1936.
(4)
Division 269 in Schedule 1 to the Taxation Administration Act 1953 (other than section 269-20) has effect, from the commencement time, as if the penalty were payable under Subdivision 269-B in that Schedule.
Penalties remitted because of payment agreement
(5)
Subitem (6) applies if:
(a)
a penalty payable by a director of a company was remitted under section 222APF of the Income Tax Assessment Act 1936 because the company made an agreement with the Commissioner as mentioned in paragraph 222APB(1)(b); and
(b)
on or after the commencement time, the company contravenes the agreement such that the director would have been liable to pay a penalty under section 222AQA if that section had continued to apply.
(6)
Division 269 in Schedule 1 to the Taxation Administration Act 1953 (other than section 269-20) has effect, from the commencement time, as if the penalty:
(a)
had not been remitted; and
(b)
were payable under Subdivision 269-B in that Schedule.
Guide to Division 269
SECTION 269-1
WHAT THIS DIVISION IS ABOUT
This Division deals with obligations of a company:
(a) under Subdivision 16-B in this Schedule (obligation to pay withheld amounts to the Commissioner); and
(b) under Division 268 in this Schedule (obligation to pay estimates); and
(c) under Part 3 of the Superannuation Guarantee (Administration) Act 1992 (obligation to pay superannuation guarantee charge); and
(d) under Divisions 33 and 35 of the GST Act in respect of assessed net amounts; and
(e) under Division 162 of the GST Act in respect of GST instalments.
The directors of a company have a duty to ensure that the company either:
(a) meets those obligations; or
(b) goes promptly into voluntary administration or restructuring under the Corporations Act 2001 or into liquidation.
The directors' duties are enforced by penalties.
Note:
The duties this Division imposes on the directors of the company are in addition to the similar duties imposed on the public officer of the company. See subsection 252(1) of the Income Tax Assessment Act 1936.
History
S 269-1 amended by No 130 of 2020, s 3 and Sch 1 item 120, by inserting "or restructuring" in para beginning "The directors of a company", effective 1 January 2021.
S 269-1 amended by No 6 of 2020, s 3 and Sch 3 item 13, by substituting the first and second para for the first para, applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020. The first para formerly read:
The directors of a company have a duty to ensure that the company either:
(a) meets its obligations under Subdivision 16-B (obligation to pay withheld amounts to the Commissioner) and Division 268 in this Schedule and Part 3 of the Superannuation Guarantee (Administration) Act 1992 (obligation to pay superannuation guarantee charge); or
(b) goes promptly into voluntary administration under the Corporations Act 2001 or into liquidation.
S 269-1 amended by No 99 of 2012, s 3 and Sch 1 item 49, by inserting "in this Schedule and Part 3 of the Superannuation Guarantee (Administration) Act 1992 (obligation to pay superannuation guarantee charge)", applicable to a company's liability to pay superannuation guarantee charge for a quarter if the day by which the company must lodge a superannuation guarantee statement for the quarter occurs on or after 29 June 2012.
S 269-1 inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010. For transitional provisions see note under Div 269 heading.
Subdivision 269-A - Object and scope
History
Subdiv 269-A inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010. For transitional provisions see note under Div 269 heading.
SECTION 269-5
269-5
OBJECT OF DIVISION
The object of this Division is to ensure that a company either:
(a)
meets its obligations under:
(i)
Subdivision 16-B (obligation to pay withheld amounts to the Commissioner); and
(ii)
Division 268 (estimates of PAYG withholding liabilities and superannuation guarantee charge); and
(iii)
Part 3 of the Superannuation Guarantee (Administration) Act 1992 (obligation to pay superannuation guarantee charge); and
(iv)
Divisions 33 and 35 of the *GST Act in respect of *assessed net amounts; and
(v)
Division 162 of the GST Act in respect of GST instalments (within the meaning of the GST Act); or
(b)
goes promptly into voluntary administration or restructuring under the Corporations Act 2001 or into liquidation.
Note:
The directors' duties are enforced by penalties on the directors. A penalty recovered under this Division is applied towards meeting the company's obligation.
History
S 269-5 amended by No 130 of 2020, s 3 and Sch 1 item 121, by inserting "or restructuring" in para (b), effective 1 January 2021.
S 269-5 amended by No 6 of 2020, s 3 and Sch 3 item 14, by substituting para (a)(iii) to (v) for para (a)(iii), applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020. Para (a)(iii) formerly read:
(iii)
Part 3 of the Superannuation Guarantee (Administration) Act 1992 (obligation to pay superannuation guarantee charge); or
S 269-5 amended by No 99 of 2012, s 3 and Sch 1 item 50, by substituting para (a), applicable to a company's liability to pay superannuation guarantee charge for a quarter if the day by which the company must lodge a superannuation guarantee statement for the quarter occurs on or after 29 June 2012. Para (a) formerly read:
(a)
meets its obligations under Subdivision 16-B (obligation to pay withheld amounts to the Commissioner) and Division 268; or
S 269-5 inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010. For transitional provisions see note under Div 269 heading.
SECTION 269-10
SCOPE OF DIVISION
269-10(1)
This Division applies as set out in the following table:
|
Obligations that directors must cause company to comply with
|
|
Item
|
Column 1
|
Column 2
|
|
This Division applies if, on a particular day (the
initial day
)
,
a company is a company registered under the
Corporations Act 2001
,
and on the initial day…
|
and the company is obliged to pay to the Commissioner on or before a particular day (the
due day) …
|
| 1 |
the company withholds an amount under Division 12 |
that amount in accordance with Subdivision 16-B. |
| 2 |
the company receives an *alienated personal services payment |
an amount in respect of that alienated personal services payment in accordance with Division 13 and Subdivision 16-B. |
| 3 |
the company provides a *non-cash benefit |
an amount in respect of that benefit in accordance with Subdivision 16-B. |
| 4 |
(Repealed by No 8 of 2019) |
| 5 |
a *quarter ends |
superannuation guarantee charge for the quarter in accordance with the Superannuation Guarantee (Administration) Act 1992. |
| 6 |
a *tax period ends |
an *assessed net amount for the tax period in accordance with the *GST Act. |
| 7 |
a GST instalment quarter (within the meaning of the *GST Act) ends |
a GST instalment (within the meaning of the GST Act) for the quarter in accordance with the GST Act. |
History
S 269-10(1) amended by No 6 of 2020, s 3 and Sch 3 item 15, by inserting table items 6 and 7, applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020.
S 269-10(1) amended by No 8 of 2019, s 3 and Sch 5 items 1 and 2, by repealing table item 4 and the note, effective 1 April 2019 and applicable in relation to an estimate made under Division 268 in Schedule 1 to the Taxation Administration Act 1953 on or after 1 July 2018 (whether the underlying liability to which the estimate relates arose before, on or after that day). Table item 4 and the note formerly read:
| 4 |
the company is given notice of an estimate under Division 268 |
the amount of the estimate. |
Note:
In a case covered by item 2, 3 or 4 of the table, the due day is the same as the initial day.
S 269-10(1) amended by No 99 of 2012, s 3 and Sch 1 item 51, by substituting the table, applicable to a company's liability to pay superannuation guarantee charge for a quarter if the day by which the company must lodge a superannuation guarantee statement for the quarter occurs on or after 29 June 2012. The table formerly read:
|
Obligations that directors must cause company to comply with
|
|
Item
|
This Division applies if, on a particular day (the
initial day
), a company registered under the
Corporations Act 2001
…
|
and the company is obliged to pay to the Commissioner on or before a particular day (the
due day
) …
|
| 1 |
withholds an amount under Division 12 |
that amount in accordance with Subdivision 16-B. |
| 2 |
receives an *alienated personal services payment |
an amount in respect of that alienated personal services payment in accordance with Division 13 and Subdivision 16-B. |
| 3 |
provides a *non-cash benefit |
an amount in respect of that benefit in accordance with Subdivision 16-B. |
| 4 |
is given notice of an estimate under Division 268 |
the amount of the estimate. |
269-10(2)
This Division applies in relation to an amount that the company purports to withhold under Division 12, but is not required to withhold, as if the company were required to withhold the amount.
Superannuation guarantee charge
269-10(3)
For the purposes of this Division, the company's superannuation guarantee charge for a *quarter under the Superannuation Guarantee (Administration) Act 1992 is treated as being payable on the day by which the company must lodge a superannuation guarantee statement for the quarter under section 33 of that Act, even if the charge is not assessed under that Act on or before that day.
History
S 269-10(3) inserted by No 99 of 2012, s 3 and Sch 1 item 52, applicable to a company's liability to pay superannuation guarantee charge for a quarter if the day by which the company must lodge a superannuation guarantee statement for the quarter occurs on or after 29 June 2012.
Estimates
269-10(4)
This Division also applies if:
(a)
a company is a company registered under the Corporations Act 2001; and
(b)
the company is given notice of an estimate under Division 268; and
(c)
the company is obliged to pay the amount of the estimate to the Commissioner on or before a particular day (the
due day
).
History
S 269-10(4) inserted by No 8 of 2019, s 3 and Sch 5 item 3, effective 1 April 2019 and applicable in relation to an estimate made under Division 268 in Schedule 1 to the Taxation Administration Act 1953 on or after 1 July 2018 (whether the underlying liability to which the estimate relates arose before, on or after that day).
269-10(5)
If this Division applies because of subsection (4), then for the purposes of this Division:
(a)
in the case of an estimate of an underlying liability referred to in paragraph 268-10(1)(a) (PAYG withholding liabilities) - the
initial day
is:
(i)
for a company that is a *medium withholder or a *small withholder on the last day of the period identified in the notice of the estimate under section 268-15 as the period to which the underlying liability relates - the last day of that period; or
(ii)
for any other company - the day by which the company is obliged to pay the amount of the underlying liability to the Commissioner; and
(b)
in the case of an estimate of an underlying liability referred to in paragraph 268-10(1)(b) (superannuation guarantee charge) - the
initial day
is the last day of the *quarter to which the estimate relates; and
(ba)
in the case of an estimate of an underlying liability referred to in paragraph 268-10(1)(c) (net amount under GST Act) - the
initial day
is the last day of the *tax period to which the estimate relates; and
(c)
the company's obligation to pay the amount of the estimate is taken to have begun on the day after the initial day identified in paragraph (a) or (b) of this subsection.
History
S 269-10(5) amended by No 6 of 2020, s 3 and Sch 3 item 16, by inserting para (ba), applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020.
S 269-10(5) inserted by No 8 of 2019, s 3 and Sch 5 item 3, effective 1 April 2019 and applicable in relation to an estimate made under Division 268 in Schedule 1 to the Taxation Administration Act 1953 on or after 1 July 2018 (whether the underlying liability to which the estimate relates arose before, on or after that day).
269-10(6)
For the purposes of subsection (5), assume that the underlying liability exists as identified in the notice of the estimate under section 268-15.
History
S 269-10(6) inserted by No 8 of 2019, s 3 and Sch 5 item 3, effective 1 April 2019 and applicable in relation to an estimate made under Division 268 in Schedule 1 to the Taxation Administration Act 1953 on or after 1 July 2018 (whether the underlying liability to which the estimate relates arose before, on or after that day).
History
S 269-10 inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010. For transitional provisions see note under Div 269 heading.
Subdivision 269-B - Obligations and penalties
History
Subdiv 269-B inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010. For transitional provisions see note under Div 269 heading.
SECTION 269-15
DIRECTORS' OBLIGATIONS
Directors' obligations
269-15(1)
The directors (within the meaning of the Corporations Act 2001) of the company (from time to time) on or after the initial day must cause the company to comply with its obligation.
269-15(2)
The directors of the company (from time to time) continue to be under their obligation until:
(a)
the company complies with its obligation; or
(b)
an administrator of the company is appointed under section 436A, 436B or 436C of the Corporations Act 2001; or
(ba)
a small business restructuring practitioner for the company is appointed under section 453B of that Act; or
(c)
the company begins to be wound up (within the meaning of that Act).
History
S 269-15(2) amended by No 130 of 2020, s 3 and Sch 1 item 122, by inserting para (ba), effective 1 January 2021.
269-15(2A)
To avoid doubt, if the obligation of the company is an obligation to pay the amount of an estimate of an underlying liability under Division 268, a director is subject to his or her obligation under subsection (1):
(a)
even if the underlying liability never existed or has been discharged in full; and
(b)
even if the unpaid amount of the underlying liability is less than the unpaid amount of the estimate; and
(c)
at all times on and after the day referred to in paragraph 269-10(5)(b) until the director's obligation ceases under subsection (2) of this section, including at any such times before the Commissioner has made the estimate or given notice of the estimate.
History
S 269-15(2A) inserted by No 8 of 2019, s 3 and Sch 5 item 4, effective 1 April 2019 and applicable in relation to an estimate made under Division 268 in Schedule 1 to the Taxation Administration Act 1953 on or after 1 July 2018 (whether the underlying liability to which the estimate relates arose before, on or after that day).
Instalment arrangements
269-15(3)
The Commissioner must not commence, or take a procedural step as a party to, proceedings to enforce an obligation, or to recover a penalty, of a director under this Division if an *arrangement that covers the company's obligation is in force under section 255-15 (Commissioner's power to permit payments by instalments).
Note 1:
The arrangement may also cover other obligations of the company.
Note 2:
Subsection (3) does not prevent the Commissioner from giving a director a notice about a penalty under section 269-25.
History
S 269-15 inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010. For transitional provisions see note under Div 269 heading.
SECTION 269-20
PENALTY
Penalty for director on or before due day
269-20(1)
You are liable to pay to the Commissioner a penalty if:
(a)
at the end of the due day, the directors of the company are still under an obligation under section 269-15; and
(b)
you were under that obligation at or before that time (because you were a director).
Note:
Paragraph (1)(b) applies even if you stopped being a director before the end of the due day: see subsection 269-15(2).
269-20(2)
The penalty is due and payable at the end of the due day.
Note:
The Commissioner must not commence proceedings to recover the penalty until the end of 21 days after the Commissioner gives you notice of the penalty under section 269-25.
Penalty for new director
269-20(3)
You are also liable to pay to the Commissioner a penalty if:
(a)
after the due day, you became a director of the company and began to be under an obligation under section 269-15; and
(b)
30 days later, you are still under that obligation.
History
S 269-20(3) amended by No 99 of 2012, s 3 and Sch 1 item 5, by substituting "30 days" for "14 days", applicable to you, in relation to an obligation under section 269-15 in Schedule 1 to the Taxation Administration Act 1953, if you: (a) become a director of the relevant company; and (b) begin to be under the obligation; on or after 30 June 2012.
269-20(4)
The penalty is due and payable at the end of that 30th day.
Note:
The Commissioner must not commence proceedings to recover the penalty until the end of 21 days after the Commissioner gives you notice of the penalty under section 269-25.
History
S 269-20(4) amended by No 99 of 2012, s 3 and Sch 1 item 6, by substituting "30th day" for "14th day", applicable to you, in relation to an obligation under section 269-15 in Schedule 1 to the Taxation Administration Act 1953, if you: (a) become a director of the relevant company; and (b) begin to be under the obligation; on or after 30 June 2012.
Amount of penalty
269-20(5)
The amount of a penalty under this section is equal to the unpaid amount of the company's liability under its obligation.
Note 1:
See section 269-40 for the effect on your penalty of the company discharging its obligation, or of another director paying his or her penalty.
Note 2:
See section 269-45 for your rights of indemnity and contribution.
History
S 269-20 inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010. For transitional provisions see note under Div 269 heading.
SECTION 269-25
NOTICE
Commissioner must give notice of penalty
269-25(1)
The Commissioner must not commence proceedings to recover from you a penalty payable under this Subdivision until the end of 21 days after the Commissioner gives you a written notice under this section.
Content of notice
269-25(2)
The notice must:
(a)
set out what the Commissioner thinks is the unpaid amount of the company's liability under its obligation; and
(b)
state that you are liable to pay to the Commissioner, by way of penalty, an amount equal to that unpaid amount because of an obligation you have or had under this Division; and
(c)
explain the main circumstances in which the penalty will be remitted.
269-25(3)
To avoid doubt, a single notice may relate to 2 or more penalties, but must comply with subsection (2) in relation to each of them.
When notice is given
269-25(4)
Despite section 29 of the Acts Interpretation Act 1901, a notice under subsection (1) is taken to be given at the time the Commissioner leaves or posts it.
Note 1:
Section 28A of the Acts Interpretation Act 1901 may be relevant to giving a notice under subsection (1).
Note 2:
Section 269-50 of this Act is also relevant to giving a notice under subsection (1).
History
S 269-25 inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010. For transitional provisions see note under Div 269 heading.
SECTION 269-30
EFFECT ON PENALTY OF DIRECTORS' OBLIGATION ENDING BEFORE END OF NOTICE PERIOD
269-30(1)
Subject to subsection (2), a penalty of yours under this Division is remitted if the directors of the company stop being under the relevant obligation under section 269-15:
(a)
before the Commissioner gives you notice of the penalty under section 269-25; or
(b)
within 21 days after the Commissioner gives you notice of the penalty under that section.
269-30(2)
The following table has effect:
|
When appointing administrator or restructuring practitioner or winding up company does not affect penalty
|
|
Item
|
Column 1
|
Column 2
|
Column 3
|
|
If the company's obligation is to pay to the Commissioner, on or before the due day…
|
and, because of paragraph 269-15(2)(b), (ba) or (c) (an administrator or a restructuring practitioner is appointed, or the company begins to be wound up), the directors stop being under the relevant obligation after …
|
subsection (1) does not apply…
|
| 1 |
an amount in accordance with Subdivision 16-B (obligation to pay withheld amounts to the Commissioner), |
the last day of the 3 months after the due day, |
to the extent the company does not, on or before the last day mentioned in column 2, notify the Commissioner:
(a) under section 16-150 of the amount the company is obliged to pay; or
(b) under section 389-5 of the amount the company is obliged to withhold. |
| 2 |
the amount of an estimate under Division 268 of a liability referred to in paragraph 268-10(1)(a) (PAYG withholding liabilities), |
the last day of the 3 months after the day by which the company was obliged to pay the underlying liability to which the estimate relates, |
to any extent. |
| 3 |
superannuation guarantee charge for a *quarter, |
the due day, |
(a) if the company, on or before the last day mentioned in column 2, lodges under section 33 of the Superannuation Guarantee (Administration) Act 1992 a superannuation guarantee statement for the quarter - the extent (if any) to which the sum mentioned in paragraph 35(1)(e) of that Act is less than the amount of the superannuation guarantee charge the company is obliged to pay for the quarter; or
(b) otherwise - to any extent. |
| 4 |
the amount of an estimate under Division 268 of a liability referred to in paragraph 268-10(1)(b) (superannuation guarantee charge), |
the day by which the company was obliged to pay the underlying liability to which the estimate relates, |
to any extent. |
| 5 |
an *assessed net amount for a *tax period |
the last day of the 3 months after the due day, |
(a) if the company, on or before the last day mentioned in column 2, lodges its *GST return, for the tax period for the relevant *net amount - the extent (if any) to which the net amount (worked out from the information in the GST return and any other information that the company gives the Commissioner on or before that last day) is less than the company's assessed net amount for the tax period; or
(b) otherwise - to any extent. |
| 6 |
the amount of an estimate under Division 268 of a liability referred to in paragraph 268-10(1)(c) (net amount under GST Act), |
the last day of the 3 months after the day by which the company was obliged to give its *GST return, for the tax period for the relevant *net amount, to the Commissioner in accordance with Division 31 of the *GST Act, |
to any extent. |
Note 1:
An administrator or a small business restructuring practitioner of the company being appointed, or the company beginning to be wound up, after the last day mentioned in column 2 will, to the extent mentioned in column 3, have no effect on the penalty.
Note 2:
The sum mentioned in paragraph 35(1)(e) of the Superannuation Guarantee (Administration) Act 1992 is the sum of:
(a) the total of the company's individual superannuation guarantee shortfalls; and
(b) the company's nominal interest component; and
(c) the company's administration component;
specified in the superannuation guarantee statement.
Note 3:
This subsection will not affect the operation of subsection (1) in respect of penalties that relate to GST instalments.
History
S 269-30(2) amended by No 130 of 2020, s 3 and Sch 1 items 123-125, by inserting "
or restructuring practitioner
" in table heading, substituting "
and, because of paragraph 269-15(2)(b), (ba) or (c) (an administrator or a restructuring practitioner is appointed, or the company begins to be wound up), the directors stop being under the relevant obligation after …
" for "
and, because of paragraph 269-15(2)(b) or (c) (an administrator is appointed or the company begins to be wound up), the directors stop being under the relevant obligation after…
" in table heading to column 2 and inserting "or a small business restructuring practitioner" in note 1, effective 1 January 2021.
S 269-30(2) amended by No 6 of 2020, s 3 and Sch 3 items 17 and 18, by inserting table items 5 and 6 and inserting note 3, applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020.
S 269-30(2) amended by No 8 of 2019, s 3 and Sch 5 items 7-11, by omitting "
the last day of the3 months after
" after "relevant obligation after" from table heading to column 2, inserting "the last day of the 3 months after" in table item 1, column 2, substituting "of a liability referred to in paragraph 268-10(1)(a) (PAYG withholding liabilities)" for "(estimates of PAYG withholding liabilities and superannuation guarantee charge)" in table item 2, column 1, inserting "the last day of the 3 months after" in table item 2, column 2 and inserting table item 4, effective 1 April 2019 and applicable in relation to: (a) an amount referred to in item 1 or 3 of the table in subsection 269-30(2) in Schedule 1 to the Taxation Administration Act 1953 (as amended by this Part) that first becomes payable on or after 1 July 2018; and (b) an estimate referred to in item 2 or 4 of the table in that subsection (as amended by this Part) that is made on or after 1 July 2018 (whether the underlying liability to which the estimate relates arose before, on or after that day).
S 269-30(2) amended by No 55 of 2016, s 3 and Sch 23 item 18, by substituting cell at table item 1, column 3, effective 1 October 2016. For application provisions, see note under Div 389 heading. Cell at table item 1, column 3 formerly read:
to the extent the company does not, on or before the last day mentioned in column 2, notify the Commissioner under section 16-150 of the amount the company is obliged to pay.
S 269-30(2) amended by No 99 of 2012, s 3 and Sch 1 items 53 to 55, by inserting table item 3, substituting "Note 1" for "Note" in the note at the end, and inserting note 2, applicable to a company's liability to pay superannuation guarantee charge for a quarter if the day by which the company must lodge a superannuation guarantee statement for the quarter occurs on or after 29 June 2012.
269-30(3)
If you become a director of the company during or after the 3 months mentioned in item 1, 2, 5 or 6, treat the reference in the item to the 3 months as being a reference to the 3 months after the day you become a director of the company.
History
S 269-30(3) amended by No 6 of 2020, s 3 and Sch 3 item 19, by substituting "item 1, 2, 5 or 6" for "item 1 or 2", applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020.
S 269-30(3) amended by No 8 of 2019, s 3 and Sch 5 item 12, by substituting "item 1 or 2, treat the reference in the item" for "column 2, treat the reference in the column", effective 1 April 2019 and applicable in relation to: (a) an amount referred to in item 1 or 3 of the table in subsection 269-30(2) in Schedule 1 to the Taxation Administration Act 1953 (as amended by this Part) that first becomes payable on or after 1 July 2018; and (b) an estimate referred to in item 2 or 4 of the table in that subsection (as amended by this Part) that is made on or after 1 July 2018 (whether the underlying liability to which the estimate relates arose before, on or after that day).
History
S 269-30 substituted by No 99 of 2012, s 3 and Sch 1 item 8, applicable, in relation to a penalty under Division 269 in Schedule 1 to the Taxation Administration Act 1953, if the directors of the relevant company stop being under the relevant obligation under section 269-15 in that Schedule on or after 30 June 2012.
SECTION 269-30 REMISSION OF PENALTY BEFORE END OF NOTICE PERIOD
269-30
A penalty of yours under this Division is remitted if the directors of the company stop being under the relevant obligation under section 269-15:
(a)
before the Commissioner gives you notice of the penalty under section 269-25; or
(b)
within 21 days after the Commissioner gives you notice of the penalty under that section.
S 269-30 inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010. For transitional provisions see note under Div 269 heading.
SECTION 269-35
DEFENCES
Illness
269-35(1)
You are not liable to a penalty under this Division if, because of illness or for some other good reason, it would have been unreasonable to expect you to take part, and you did not take part, in the management of the company at any time when:
(a)
you were a director of the company; and
(b)
the directors were under the relevant obligations under subsection 269-15(1).
History
S 269-35(1) substituted by No 99 of 2012, s 3 and Sch 1 item 2, effective 30 June 2012. For application provisions see note under s 269-52. S 269-35(1) formerly read:
Scope
269-35(1)
This section applies in relation to:
(a)
proceedings to recover from you a penalty payable under this Division; or
(b)
proceedings against you in relation to a right referred to in paragraph 269-45(2)(b) (directors jointly and severally liable as guarantors).
All reasonable steps
269-35(2)
You are not liable to a penalty under this Division if:
(a)
you took all reasonable steps to ensure that one of the following happened:
(i)
the directors caused the company to comply with its obligation;
(ii)
the directors caused an administrator of the company to be appointed under section 436A, 436B or 436C of the Corporations Act 2001;
(iia)
the directors caused a small business restructuring practitioner for the company to be appointed under section 453B of that Act;
(iii)
the directors caused the company to begin to be wound up (within the meaning of that Act); or
(b)
there were no reasonable steps you could have taken to ensure that any of those things happened.
History
S 269-35(2) amended by No 130 of 2020, s 3 and Sch 1 item 126, by inserting para (a)(iia), effective 1 January 2021.
S 269-35(2) substituted by No 99 of 2012, s 3 and Sch 1 item 2, effective 30 June 2012. For application provisions see note under s 269-52. S 269-35(2) formerly read:
Illness
269-35(2)
It is a defence inthe proceedings if it is proved that, because of illness or for some other good reason, it would have been unreasonable to expect you to take part, and you did not take part, in the management of the company at any time when:
(a)
you were a director of the company; and
(b)
the directors were under the relevant obligations under section 269-15.
269-35(3)
In determining what are reasonable steps for the purposes of subsection (2), have regard to:
(a)
when, and for how long, you were a director and took part in the management of the company; and
(b)
all other relevant circumstances.
History
S 269-35(3) substituted by No 99 of 2012, s 3 and Sch 1 item 2, effective 30 June 2012. For application provisions see note under s 269-52. S 269-35(3) formerly read:
All reasonable steps
269-35(3)
It is a defence in the proceedings if it is proved that:
(a)
you took all reasonable steps to ensure that the directors complied with their relevant obligations under section 269-15; or
(b)
there were no such steps that you could have taken.
269-35(3AA)
If the obligation referred to in subparagraph (2)(a)(i) is an obligation to pay an amount of an estimate of an underlying liability under Division 268, that reference to an obligation includes a reference to the obligation to pay the underlying liability.
History
S 269-35(3AA) inserted by No 8 of 2019, s 3 and Sch 5 item 5, effective 1 April 2019 and applicable in relation to an estimate made under Division 268 in Schedule 1 to the Taxation Administration Act 1953 on or after 1 July 2018 (whether the underlying liability to which the estimate relates arose before, on or after that day).
269-35(3AB)
For the purposes of subsection (3AA), assume that the underlying liability exists as identified in the notice of the estimate under section 268-15.
History
S 269-35(3AB) inserted by No 8 of 2019, s 3 and Sch 5 item 5, effective 1 April 2019 and applicable in relation to an estimate made under Division 268 in Schedule 1 to the Taxation Administration Act 1953 on or after 1 July 2018 (whether the underlying liability to which the estimate relates arose before, on or after that day).
Superannuation guarantee charge and assessed net amounts - reasonably arguable position
269-35(3A)
You are not liable to a penalty under this Division to the extent that the penalty resulted from the company treating the Superannuation Guarantee (Administration) Act 1992 or the *GST Act as applying to a matter or identical matters in a particular way that was *reasonably arguable, if the company took reasonable care in connection with applying that Act to the matter or matters.
History
S 269-35(3A) amended by No 6 of 2020, s 3 and Sch 3 item 21, by inserting "or the *GST Act", applicable in relation to: (a) net amounts and assessed net amounts for tax periods that start on or after 1 April 2020; and (b) GST instalments for GST instalment quarters that start on or after 1 April 2020.
S 269-35(3A) inserted by No 99 of 2012, s 3 and Sch 1 item 56, applicable to a company's liability to pay superannuation guarantee charge for a quarter if the day by which the company must lodge a superannuation guarantee statement for the quarter occurs on or after 29 June 2012.
When you can rely on this section
269-35(4)
For the purposes of:
(a)
proceedings in a court to recover from you a penalty payable under this Division; or
(b)
proceedings in a court against you in relation to a right referred to in paragraph 269-45(2)(b) (directors jointly and severally liable as guarantors);
subsection (1) or (2) of this section does not apply unless you prove the matters mentioned in that subsection.
History
S 269-35(4) substituted by No 99 of 2012, s 3 and Sch 1 item 2, effective 30 June 2012. For application provisions see note under s 269-52. S 269-35(4) formerly read:
269-35(4)
In determining what are reasonable steps for the purposes of subsection (3), have regard to:
(a)
when, and for how long, you were a director and took part in the management of the company; and
(b)
all other relevant circumstances.
269-35(4A)
For the purpose of the Commissioner recovering from you a penalty payable under this Division (other than as mentioned in subsection (4)), subsection (1) or (2) does not apply unless:
(a)
you provide information to the Commissioner during the period of 60 days starting on the day the Commissioner:
(i)
in the case of the Commissioner recovering the penalty under section 260-5 (Commissioner may collect amounts from third party) - gives you a notice under subsection 260-5(6) in relation to the penalty; or
(ii)
otherwise - notifies you in writing that he or she has recovered any of the penalty; and
(b)
the Commissioner is satisfied of the matters mentioned in subsection (1) or (2) of this section on the basis of that information.
History
S 269-35(4A) inserted by No 99 of 2012, s 3 and Sch 1 item 2, effective 30 June 2012. For application provisions see note under s 269-52.
Power of courts to grant relief
269-35(5)
Section 1318 of the Corporations Act 2001 does not apply to an obligation or liability of a director under this Division.
History
S 269-35 inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010. For transitional provisions see note under Div 269 heading.
Subdivision 269-C - Discharging liabilities
History
Subdiv 269-C inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010. For transitional provisions see note under Div 269 heading.
SECTION 269-40
EFFECT OF DIRECTOR PAYING PENALTY OR COMPANY DISCHARGING LIABILITY
Liabilities
269-40(1)
This section applies to the following liabilities:
(a)
the liability of the company under its obligation referred to in section 269-10;
(b)
the liability of each director (or former director) to pay a penalty under this Division in relation to the liability of the company referred to in paragraph (a);
(c)
a liability under a judgment, to the extent that it is based on a liability referred to in paragraph (a) or (b).
Discharging one liability discharges other liabilities
269-40(2)
If an amount is paid or applied at a particular time towards discharging one of the liabilities, each of the other liabilities in existence at that time is discharged to the extent of the same amount.
269-40(3)
If, because of section 268-20 (Nature of liability to pay estimate), one of the liabilities is discharged at a particular time to the extent of a particular amount, each of the other liabilities in existence at that time is discharged to the extent of the same amount.
269-40(4)
This section does not discharge a liability to a greater extent than the amount of the liability.
History
S 269-40 inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010. For transitional provisions see note under Div 269 heading.
SECTION 269-45
DIRECTORS' RIGHTS OF INDEMNITY AND CONTRIBUTION
269-45(1)
This section applies if you pay a penalty under this Division in relation to a liability of the company under an obligation referred to in section 269-10.
269-45(2)
You have the same rights (whether by way of indemnity, subrogation, contribution or otherwise) against the company or anyone else as if:
(a)
you made the payment under a guarantee of the liability of the company; and
(b)
under the guarantee you and every other person who has paid, or from whom the Commissioner is entitled to recover, a penalty under this Division in relation to the company's obligation were jointly and severally liable as guarantors.
History
S 269-45 inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010. For transitional provisions see note under Div 269 heading.
Subdivision 269-D - Miscellaneous
History
Subdiv 269-D inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010. For transitional provisions see note under Div 269 heading.
SECTION 269-50
269-50
HOW NOTICE MAY BE GIVEN
The Commissioner may give you a notice under section 269-25 by leaving it at, or posting it to, an address that appears, from information held by the *Registrar, to be, or to have been within the last 7 days, your place of residence or *business.
History
S 269-50 amended by No 141 of 2020 (as amended by No 127 of 2021), s 3 and Sch 4 item 142, by substituting "the *Registrar" for "*ASIC", effective 1 July 2024.
S 269-50 amended by No 162 of 2015, s 3 and Sch 4 item 12, by substituting "*ASIC" for "the Australian Securities and Investments Commission", effective 30 November 2015.
S 269-50 inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010. For transitional provisions see note under Div 269 heading.
SECTION 269-52
COPIES OF NOTICES
269-52(1)
If:
(a)
the Commissioner gives you a notice under section 269-25 in accordance with section 269-50; and
(b)
you have given the address of a *registered tax agent to the Commissioner as your address for service for the purposes of any *taxation law;
the Commissioner may also give you a copy of the notice.
269-52(2)
The Commissioner may do so by leaving the copy at, or posting the copy to, the address of the *registered tax agent.
269-52(3)
To avoid doubt, this section does not affect:
(a)
whether the Commissioner has given you the actual notice; or
(b)
how the Commissioner may give you the actual notice.
History
S 269-52 inserted by No 99 of 2012, s 3 and Sch 1 item 3, effective 30 June 2012. No 99 of 2012, s 3 and Sch 1 item 4 contains the following application provisions:
4 Application of amendments
4
The amendments made by this Division apply to penalties that are:
(a)
payable under Subdivision 269-B in Schedule 1 to the Taxation Administration Act 1953 (including penalties in relation to which subitem 65(4) of Schedule 1 to the Tax Laws Amendment (Transfer of Provisions) Act 2010 applies); and
(b)
due:
(i)
at or after the commencement of this item; or
(ii)
before the commencement of this item, to the extent the penalties are not paid, remitted or discharged before the commencement of this item.
Note:
Subitem 65(4) of Schedule 1 to the Tax Laws Amendment (Transfer of Provisions) Act 2010 applies in relation to penalties that were payable under Division 9 of former Part VI of the Income Tax Assessment Act 1936.
SECTION 269-55
269-55
DIVISION NOT TO LIMIT OR EXCLUDE CORPORATIONS ACT
To avoid doubt, this Division is not intended to limit or exclude the operation of Chapter 5 (External administration) or Schedule 2 to the Corporations Act 2001, to the extent those provisions can operate concurrently with this Division.
History
S 269-55 amended by No 11 of 2016, s 3 and Sch 2 item 317, by substituting "(External administration) or Schedule 2 to the Corporations Act 2001, to the extent those provisions" for "of the Corporations Act 2001 (External administration), to the extent that Chapter", effective 1 March 2017.
S 269-55 inserted by No 79 of 2010, s 3 and Sch 1 item 10, applicable in relation to an amount payable by a company to the Commissioner before, on or after 1 July 2010. For transitional provisions see note under Div 269 heading.
PART 4-25 - CHARGES AND PENALTIES
History
Pt 4-25 heading substituted by No 32 of 2006, s 3 and Sch 3 item 11, applicable in relation to conduct engaged in on or after 6 April 2006. The heading formerly read:
PART 4-25 - CHARGES AND ADMINISTRATIVE PENALTIES FOR FAILING TO MEET OBLIGATIONS
Pt 4-25 (heading) substituted by No 101 of 2004.
Pt 4-25 inserted by No 179 of 1999.
Division 280 - Shortfall interest charge
History
Div 280 inserted by No 75 of 2005.
Guide to Division 280
SECTION 280-1
GUIDE TO DIVISION 280
The shortfall interest charge applies to shortfalls of income tax, petroleum resource rent tax, excess non-concessional contributions tax, Division 293 tax, diverted profits tax or Laminaria and Corallina decommissioning levy that are revealed when the Commissioner amends your assessment.
The charge is applied at a uniform rate that is lower than the general interest charge rate.
The Commissioner has a discretion to remit shortfall interest charge.
History
S 280-1 amended by No 24 of 2022, s 3 and Sch 1 item 15, by substituting ", diverted profits tax or Laminaria and Corallina decommissioning levy" for "or diverted profits tax" in para beginning "The shortfall interest charge", effective 2 April 2022 and applicable in relation to financial years starting on or after 1 July 2021.
S 280-1 amended by No 27 of 2017, s 3 and Sch 1 item 47, by substituting ", Division 293 tax or diverted profits tax" for "or Division 293 tax", applicable in relation to DPT tax benefits for a year of income that starts on or after 1 July 2017 (whether or not the DPT tax benefit arises in connection with a scheme that was entered into, or was commenced to be carried out, before 1 July 2017).
S 280-1 amended by No 96 of 2014, s 3 and Sch 1 item 77, by omitting "minerals resource rent tax," after "shortfalls of income tax,", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 280-1 amended by No 118 of 2013, s 3 and Sch 1 item 106, by inserting "non-concessional" after "excess", effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
S 280-1 amended by No 82 of 2013, s 3 and Sch 3 item 22, by substituting ", excess contributions tax or Division 293 tax" for "or excess contributions tax", effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
S 280-1 amended by No 14 of 2012, s 3 and Sch 1 item 11, by inserting "minerals resource rent tax,", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
S 280-1 amended by No 15 of 2007, s 3 and Sch 1 item 386, by substituting ", petroleum resource rent tax or excess contributions tax" for "or petroleum resource rent tax", applicable to the 2007-2008 income year and later years.
S 280-1 amended by No 78 of 2006, s 3 and Sch 4 item 28, by inserting "or petroleum resource rent tax", applicable only in relation to returns and assessments of tax, and instalments of tax, under the Petroleum Resource Rent Tax Assessment Act 1987 for financial years that start on or after 1 July 2006.
S 280-1 inserted by No 75 of 2005.
Subdivision 280-A - Object of Division
SECTION 280-50
280-50
OBJECT OF DIVISION
The object of this Division is to neutralise benefits that taxpayers could otherwise receive from shortfalls of income tax, *petroleum resource rent tax, *excess non-concessional contributions tax, *Division 293 tax, *diverted profits tax or *Laminaria and Corallina decommissioning levy, so that they do not receive an advantage in the form of a free loan over those who assess correctly.
History
S 280-50 amended by No 24 of 2022, s 3 and Sch 1 item 16, by substituting ", *diverted profits tax or *Laminaria and Corallina decommissioning levy" for "or *diverted profits tax", effective 2 April 2022 and applicable in relation to financial years starting on or after 1 July 2021.
S 280-50 amended by No 27 of 2017, s 3 and Sch 1 item 48, by substituting ", *Division 293 tax or *diverted profits tax" for "or *Division 293 tax", applicable in relation to DPT tax benefits for a year of income that starts on or after 1 July 2017 (whether or not the DPT tax benefit arises in connection with a scheme that was entered into, or was commenced to be carried out, before 1 July 2017).
S 280-50 amended by No 96 of 2014, s 3 and Sch 1 item 78, by omitting "*MRRT," after "shortfalls of income tax,", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 280-50 amended by No 118 of 2013, s 3 and Sch 1 item 107, by inserting "non-concessional" after "*excess", effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
S 280-50 amended by No 82 of 2013, s 3 and Sch 3 item 23, by substituting ", *excess contributions tax or *Division 293 tax" for "or *excess contributions tax", effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
S 280-50 amended by No 14 of 2012, s 3 and Sch 1 item 12, by inserting "*MRRT,", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
S 280-50 amended by No 15 of 2007, s 3 and Sch 1 item 387, by substituting ", *petroleum resource rent tax or *excess contributions tax" for "or *petroleum resource rent tax", applicable to the 2007-2008 income year and later years.
S 280-50 amended by No 78 of 2006, s 3 and Sch 4 item 29, by inserting "or *petroleum resource rent tax", applicable only in relation to returns and assessments of tax, and instalments of tax, under the Petroleum Resource Rent Tax Assessment Act 1987 for financial years that start on or after 1 July 2006.
S 280-50 inserted by No 75 of 2005.
Subdivision 280-B - Shortfall interest charge
History
Subdiv 280-B inserted by No 75 of 2005.
SECTION 280-100
LIABILITY TO SHORTFALL INTEREST CHARGE - INCOME TAX
280-100(1)
You are liable to pay *shortfall interest charge on an additional amount of income tax that you are liable to pay because the Commissioner amends your assessment for an income year.
280-100(2)
The liability is for each day in the period:
(a)
beginning at the start of the day on which income tax under your first assessment for that income year was due to be paid, or would have been due to be paid if there had been any; and
(b)
ending at the end of the day before the day on which the Commissioner gave you notice of the amended assessment.
280-100(3)
However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which income tax under the earlier amended assessment was due to be paid, or would have been due to be paid if there had been any.
Note:
See Division 5 of the Income Tax Assessment Act 1997 for when the amount of income tax and shortfall interest charge becomes due and payable. That Division also provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.
History
S 280-100(3) amended by No 79 of 2010, s 3 and Sch 1 items 49 and 50, by substituting "Division 5 of the Income Tax Assessment Act 1997" for "section 204 of the Income Tax Assessment Act 1936" and "That Division" for "That section" in the note, effective 1 July 2010.
280-100(4)
(Repealed by No 45 of 2021)
History
S 280-100(4) repealed by No 45 of 2021, s 3 and Sch 2 item 12, applicable in relation to excess concessional contributions for a financial year starting on or after 1 July 2021. S 280-100(4) formerly read:
Liability to shortfall interest charge - excess concessional contributions charge
280-100(4)
Despite subsection (1), if:
(a)
you are liable under that subsection to pay *shortfall interest charge on an additional amount of income tax; and
(b)
that additional amount includes an amount of income tax on which you are liable to pay an amount of *excess concessional contributions charge;
the additional amount of income tax on which you are liable to pay shortfall interest charge is taken to be increased by the amount of excess concessional contributions charge mentioned in paragraph (b).
S 280-100(4) substituted by No 118 of 2013, s 3 and Sch 1 item 34, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading. S 280-100(4) formerly read:
280-100(4)
Despite subsection (1), you are not liable to pay *shortfall interest charge to the extent that the additional amount relates to assessable income mentioned in paragraph 292-467(2)(a) of the Income Tax Assessment Act 1997 (refunded excess concessional contributions).
S 280-100(4) inserted by No 75 of 2012, s 3 and Sch 4 item 15, applicable in relation to excess concessional contributions for the financial year beginning on 1 July 2011 and later financial years.
Former s 280-100(4) repealed by No 78 of 2006, s 3 and Sch 4 item 31, applicable only in relation to returns and assessments of tax, and instalments of tax, under the Petroleum Resource Rent Tax Assessment Act 1987 for financial years that start on or after 1 July 2006. S 280-100(4) formerly read:
280-100(4)
Your liability to pay *shortfall interest charge exists whether or not you are liable to any penalty under this Act.
Liability arising because of a financial benefit under a look-through earnout right
280-100(5)
Subsection (1) does not apply if:
(a)
you provide or receive a *financial benefit under a *look-through earnout right; and
(b)
you request the Commissioner to amend your assessment for an income year (the
taxing year
) to take account of the financial benefit; and
(c)
you make that request at or before the time:
(i)
you are required to lodge your *income tax return for the income year in which the financial benefit is provided or received; or
(ii)
you would be so required if you were required to lodge an income tax return for that income year; and
(d)
as a result of paragraph (a), you are liable to pay an additional amount of income tax for the taxing year.
History
S 280-100(5) inserted by No 10 of 2016, s 3 and Sch 1 item 34, applicable in relation to look-through earnout rights created on or after 24 April 2015. No 10 of 2016, s 3 and Sch 1 item 39 contains the following transitional provision:
39 Transitional - protection for anticipating announcement
39(1)
Section 170B of the Income Tax Assessment Act 1936 also applies as if the following additional announcement were listed in the table in subsection (8) of that section:
| 14 |
Budget Paper No. 2, Budget Measures 2010-11, Part 1, topic headed "Capital gains tax - look-through treatment for earnout arrangements". |
11 May 2010 |
39(2)
Subsection
170B(3) and paragraph
170B(8)(b) of that Act also apply in relation to that announcement as if references in those provisions to 14 December 2013 were references to 23 April 2015.
Former s 280-100(5) repealed by No 78 of 2006, s 3 and Sch 4 item 31, applicable only in relation to returns and assessments of tax, and instalments of tax, under the Petroleum Resource Rent Tax Assessment Act 1987 for financial years that start on or after 1 July 2006. S 280-100(5) formerly read:
280-100(5)
Neither the Commonwealth nor an authority of the Commonwealth is liable to pay *shortfall interest charge.
History
S 280-100 inserted by No 75 of 2005.
SECTION 280-101
LIABILITY TO SHORTFALL INTEREST CHARGE - EXCESS EXPLORATION CREDIT TAX
280-101(1)
You are liable to pay *shortfall interest charge on an additional amount of *excess exploration credit tax that you are liable to pay because the Commissioner amends your assessment for an income year.
280-101(2)
The liability is for each day in the period:
(a)
beginning at the start of the day on which *excess exploration credit tax under your first assessment for that income year was due to be paid, or would have been due to be paid if there had been any; and
(b)
ending at the end of the day before the day on which the Commissioner gave you notice of the amended assessment.
280-101(3)
However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which *excess exploration credit tax under the earlier amended assessment was due to be paid, or would have been due to be paid if there had been any.
Note:
See Subdivision 418-F of the Income Tax Assessment Act 1997 for when the amount of excess exploration credit tax and shortfall interest charge becomes due and payable. That Subdivision also provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.
History
S 280-101 inserted by No 21 of 2015, s 3 and Sch 6 item 34, applicable in relation to the 2015-16, 2016-17 and 2017-18 income years, but not in relation to any later income years.
Former s 280-101 repealed by No 96 of 2014, s 3 and Sch 1 item 79, effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. S 280-101 formerly read:
SECTION 280-101 LIABILITY TO SHORTFALL INTEREST CHARGE - MINERALS RESOURCE RENT TAX
280-101(1)
You are liable to pay *shortfall interest charge on an additional amount of *MRRT that you are liable to pay because the Commissioner amends your assessment for an *MRRT year.
280-101(2)
The liability is for each day in the period:
(a)
beginning at the start of the day on which *MRRT under your first assessment for that *MRRT year was due to be paid, or would have been due to be paid if there had been any; and
(b)
ending at the end of the day before the day on which the Commissioner gave you notice of the amended assessment.
280-101(3)
However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which *MRRT under the earlier amended assessment was due to be paid, or would have been due to be paid if there had been any.
Note:
See Division 50 of the Minerals Resource Rent Tax Act 2012 for when the amount of assessed MRRT and shortfall interest charge becomes due and payable. That Division also provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.
Former s 280-101 inserted by No 14 of 2012, s 3 and Sch 1 item 13, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 280-102
LIABILITY TO SHORTFALL INTEREST CHARGE - PETROLEUM RESOURCE RENT TAX
280-102(1)
You are liable to pay *shortfall interest charge on an additional amount of *petroleum resource rent tax that you are liable to pay because the Commissioner amends your assessment under the Petroleum Resource Rent Tax Assessment Act 1987 for a year of tax (within the meaning of that Act).
280-102(2)
The liability is for each day in the period:
(a)
beginning at the start of the day on which *petroleum resource rent tax under your first assessment for that year of tax was due to be paid, or would have been due to be paid if there had been any; and
(b)
ending at the end of the day before the day on which the Commissioner gave you notice of the amended assessment.
280-102(3)
However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which *petroleum resource rent tax under the earlier amended assessment was due to be paid, or would have been due to be paid if there had been any.
Note:
See section 82 of the Petroleum Resource Rent Tax Assessment Act 1987 for when the amount of petroleum resource rent tax and shortfall interest charge becomes due and payable. Section 85 of that Act provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.
History
S 280-102 inserted by No 78 of 2006, s 3 and Sch 4 item 32, applicable only in relation to returns and assessments of tax, and instalments of tax, under the Petroleum Resource Rent Tax Assessment Act 1987 for financial years that start on or after 1 July 2006.
SECTION 280-102A
LIABILITY TO SHORTFALL INTEREST CHARGE - EXCESS NON-CONCESSIONAL CONTRIBUTIONS TAX
280-102A(1)
You are liable to pay *shortfall interest charge on an additional amount of *excess non-concessional contributions tax that you are liable to pay because the Commissioner amends your *excess non-concessional contributions tax assessment for a financial year.
280-102A(2)
The liability is for each day in the period:
(a)
beginning at the start of the day on which *excess non-concessional contributions tax under your first *excess non-concessional contributions tax assessment for that year was due to be paid; and
(b)
ending at the end of the day before the day on which the Commissioner gave you notice of the amended assessment.
280-102A(3)
However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which *excess non-concessional contributions tax under the earlier amended assessment was due to be paid.
Note:
See section 292-385 of the Income Tax Assessment Act 1997 for when the amount of excess non-concessional contributions tax becomes due and payable. See section 5-10 of that Act for when the amount of shortfall interest charge becomes due and payable. Section 292-390 of that Act provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.
Liability arising because of a financial benefit under a look-through earnout right
280-102A(4)
Subsection (1) does not apply if:
(a)
you provide or receive a *financial benefit under a *look-through earnout right; and
(b)
you request the Commissioner to amend your *excess non-concessional contributions tax assessment for a *financial year to take account of the financial benefit; and
(c)
you make that request at or before the time:
(i)
you are required to lodge your *income tax return for the income year in which the financial benefit is provided or received; or
(ii)
you would be so required if you were required to lodge an income tax return for that income year; and
(d)
as a result of paragraph (a), you are liable to pay an additional amount of *excess non-concessional contributions tax for the financial year.
History
S 280-102A(4) inserted by No 10 of 2016, s 3 and Sch 1 item 35, applicable in relation to look-through earnout rights created on or after 24 April 2015. For transitional provision, see note under s 280-100(5).
History
S 280-102A amended by No 118 of 2013, s 3 and Sch 1 item 84, by inserting "non-concessional" before "contributions" (wherever occurring), effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
S 280-102A amended by No 117 of 2010, s 3 and Sch 4 item 25, by substituting "becomes due and payable. See section 5-10 of that Act for when the amount of" for "and" (first occuring) in the note at the end, effective 16 November 2010.
S 280-102A inserted by No 15 of 2007, s 3 and Sch 1 item 388, applicable to the 2007-2008 income year and later years.
SECTION 280-102B
LIABILITY TO SHORTFALL INTEREST CHARGE - DIVISION 293 TAX
280-102B(1)
You are liable to pay *shortfall interest charge on an additional amount of *Division 293 tax that you are liable to pay because the Commissioner amends your assessment of an amount of Division 293 tax payable in relation to an income year.
280-102B(2)
However, subsection (1) does not apply to the extent the additional amount of *Division 293 tax is *deferred to a debt account for a *superannuation interest.
280-102B(3)
The liability is for each day in the period:
(a)
beginning on the day on which *Division 293 tax under your first assessment of Division 293 tax for that income year was due to be paid; and
(b)
ending on the day before the day on which the Commissioner gave you notice of the amended assessment.
280-102B(4)
However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which *Division 293 tax under the earlier amended assessment was due to be paid.
Note 1:
See section 5-10 of the Income Tax Assessment Act 1997 for when the amount of shortfall interest charge becomes due and payable.
Note 2:
See Subdivision 293-C of that Act for when the amount of assessed Division 293 tax becomes due and payable. That Subdivision also provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.
Liability arising because of a financial benefit under a look-through earnout right
280-102B(5)
Subsection (1) does not apply if:
(a)
you provide or receive a *financial benefit under a *look-through earnout right; and
(b)
you request the Commissioner to amend your assessment of *Division 293 tax payable in relation to an income year (the
taxing year
) to take account of the financial benefit; and
(c)
you make that request at or before the time:
(i)
you are required to lodge your *income tax return for the income year in which the financial benefit is provided or received; or
(ii)
you would be so required if you were required to lodge an income tax return for that income year; and
(d)
as a result of paragraph (a), you are liable to pay an additional amount of Division 293 tax for the taxing year.
History
S 280-102B(5) inserted by No 10 of 2016, s 3 and Sch 1 item 36, applicable in relation to look-through earnout rights created on or after 24 April 2015. For transitional provision, see note under s 280-100(5).
History
S 280-102B inserted by No 82 of 2013, s 3 and Sch 3 item 24, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 280-102C
LIABILITY TO SHORTFALL INTEREST CHARGE - DIVERTED PROFITS TAX
280-102C(1)
Subsection (2) applies if:
(a)
the Commissioner has given an entity an assessment of income tax for an income year; and
(b)
the Commissioner subsequently gives the entity a *DPT assessment for that income year.
280-102C(2)
The entity is liable to pay *shortfall interest charge equal to the amount of shortfall interest charge that the entity would be liable to pay under section 280-100 if:
(a)
the Commissioner amended the assessment of income tax mentioned in paragraph (1)(a) on the day that the Commissioner gave the entity the *DPT assessment mentioned in paragraph (1)(b); and
(b)
the entity were liable to pay an additional amount of income tax because of that amendment; and
(c)
the Commissioner made that amendment on the basis that the *tax benefit or tax benefits to which the DPT assessment related were cancelled.
280-102C(3)
An entity is also liable to pay *shortfall interest charge on an additional amount of *diverted profits tax that the entity is liable to pay because the Commissioner amends the entity's *DPT assessment in respect of an income year.
280-102C(4)
The liability is for each day in the period:
(a)
beginning at the start of the day on which *diverted profits tax under the entity's first *DPT assessment for that income year was due to be paid, or would have been due to be paid if there had been any; and
(b)
ending at the end of the day before the day on which the Commissioner gave the entity notice of the amended *DPT assessment.
280-102C(5)
However, if an amended *DPT assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended DPT assessment, the period for the reinstated liability begins at the start of the day on which *diverted profits tax under the earlier amended DPT assessment was due to be paid.
Note 1:
See subsection 177P(3) of the Income Tax Assessment Act 1936 for when the amount of diverted profits tax becomes due and payable.
Note 2:
Section 177Q of the Income Tax Assessment Act 1936 provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.
Note 3:
See section 177R of the Income Tax Assessment Act 1936 for when the amount of shortfall interest charge becomes due and payable.
History
S 280-102C inserted by No 27 of 2017, s 3 and Sch 1 item 49, applicable in relation to DPT tax benefits for a year of income that starts on or after 1 July 2017 (whether or not the DPT tax benefit arises in connection with a scheme thatwas entered into, or was commenced to be carried out, before 1 July 2017).
SECTION 280-102D
LIABILITY TO SHORTFALL INTEREST CHARGE - LAMINARIA AND CORALLINA DECOMMISSIONING LEVY
280-102D(1)
You are liable to pay *shortfall interest charge on an additional amount of *Laminaria and Corallina decommissioning levy that you are liable to pay because the Commissioner amends your assessment of an amount of levy payable for a financial year.
280-102D(2)
The liability is for each day in the period:
(a)
beginning at the start of the day on which levy under your first assessment for that financial year was due to be paid, or would have been due to be paid if there had been any; and
(b)
ending at the end of the day before the day on which the Commissioner gave you the notice of the amended assessment.
280-102D(3)
However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which levy under the earlier amended assessment was due to be paid, or would have been due to be paid if there had been any.
Note:
See section 125-10 for when the amount of levy and shortfall interest charge becomes due and payable. That section also provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.
History
S 280-102D inserted by No 24 of 2022, s 3 and Sch 1 item 17, effective 2 April 2022 and applicable in relation to financial years starting on or after 1 July 2021.
SECTION 280-103
LIABILITY TO SHORTFALL INTEREST CHARGE - GENERAL
280-103(1)
Your liability to pay *shortfall interest charge exists whether or not you are liable to any penalty under this Act.
280-103(2)
Neither the Commonwealth nor an authority of the Commonwealth is liable to pay *shortfall interest charge.
History
S 280-103 inserted by No 78 of 2006, s 3 and Sch 4 item 32, applicable only in relation to returns and assessments of tax, and instalments of tax, under the Petroleum Resource Rent Tax Assessment Act 1987 for financial years that start on or after 1 July 2006.
SECTION 280-105
AMOUNT OF SHORTFALL INTEREST CHARGE
280-105(1)
The *shortfall interest charge for a day is worked out by multiplying the rate worked out under subsection (2) for that day by the sum of these amounts:
(a)
the additional amount of income tax, *excess exploration credit tax, *petroleum resource rent tax, *excess non-concessional contributions tax or *Division 293 tax; and
(b)
the shortfall interest charge on that amount from previous days.
History
S 280-105(1) amended by No 21 of 2015, s 3 and Sch 6 item 35, by inserting "*excess exploration credit tax," in para (a), applicable in relation to the 2015-16, 2016-17 and 2017-18 income years, but not in relation to any later income years.
S 280-105(1) amended by No 96 of 2014, s 3 and Sch 1 item 80, by omitting "*MRRT," after "amount of income tax," from para (a), effective 30 September 2014. For transitional provisions, see note under Pt 3-15 heading.
S 280-105(1) amended by No 118 of 2013, s 3 and Sch 1 item 108, by inserting "non-concessional" after "*excess" in para (a), effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
S 280-105(1) amended by No 82 of 2013, s 3 and Sch 3 item 25, by substituting ", *excess contributions tax or *Division 293 tax" for "or *excess contributions tax" in para (a), effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
S 280-105(1) amended by No 14 of 2012, s 3 and Sch 1 item 14, by inserting "*MRRT," in para (a), effective 1 July 2012. For application and transitional provisions, see note under Part 3-15 heading.
S 280-105(1)(a) amended by No 15 of 2007, s 3 and Sch 1 item 389, by substituting ", *petroleum resource rent tax or *excess contributions tax" for "or *petroleum resource rent tax", applicable to the 2007-2008 income year and later years.
S 280-105(1)(a) amended by No 78 of 2006, s 3 and Sch 4 item 33, by inserting "or *petroleum resource rent tax", applicable only in relation to returns and assessments of tax, and instalments of tax, under the Petroleum Resource Rent Tax Assessment Act 1987 for financial years that start on or after 1 July 2006.
280-105(2)
The rate is:
| |
*Base interest rate 3 percentage
for the day + points
Number of days in the
calendar year |
History
S 280-105 inserted by No 75 of 2005.
SECTION 280-110
NOTIFICATION BY COMMISSIONER
280-110(1)
The Commissioner must give you a notice stating the amount of the *shortfall interest charge you are liable to pay for the period applicable under section 280-100, 280-101, 280-102, 280-102A, 280-102B or 280-102D.
History
S 280-110(1) amended by No 24 of 2022, s 3 and Sch 1 item 18, by substituting ", 280-102B or 280-102D" for "or 280-102B", effective 2 April 2022 and applicable in relation to financial years starting on or after 1 July 2021.
S 280-110(1) amended by No 21 of 2015, s 3 and Sch 6 item 36, by inserting "280-101,", applicable in relation to the 2015-16, 2016-17 and 2017-18 income years, but not in relation to any later income years.
S 280-110(1) amended by No 96 of 2014, s 3 and Sch 1 item 81, by omitting "280-101," after "280-100,", effective 30 September 2014. For transitional provisions, see note under Pt 3-15 heading.
S 280-110(1) amended by No 82 of 2013, s 3 and Sch 3 item 26, by substituting ", 280-102A or 280-102B" for "or 280-102A", effective 28 June 2013. For application provision, see note under Sch 1 Pt 3-20 heading.
S 280-110(1) amended by No 14 of 2012, s 3 and Sch 1 item 15, by inserting "280-101," effective 1 July 2012. For application and transitional provisions, see note under Part 3-15 heading.
S 280-110(1) amended by No 15 of 2007, s 3 and Sch 1 item 390, by substituting ", 280-102 or 280-102A" for "or 280-102", applicable to the 2007-2008 income year and later years.
S 280-110(1) amended by No 78 of 2006, s 3 and Sch 4 item 34, by inserting "or 280-102", applicable only in relation to returns and assessments of tax, and instalments of tax, under the Petroleum Resource Rent Tax Assessment Act 1987 for financial years that start on or after 1 July 2006.
280-110(2)
(Repealed by No 81 of 2016)
History
S 280-110(2) repealed by No 81 of 2016, s 3 and Sch 10 item 92, effective 1 January 2017 and applicable to documents (however described) that the Commissioner gives on or after 1 July 2017 under taxation laws. S 280-110(2) formerly read:
280-110(2)
The notice may be included in any other notice given to you by the Commissioner.
280-110(3)
A notice given by the Commissioner under this section is prima facie evidence of the matters stated in the notice.
History
S 280-110 inserted by No 75 of 2005.
Subdivision 280-C - Remitting shortfall interest charge
History
Subdiv 280-C inserted by No 75 of 2005.
SECTION 280-160
REMITTING SHORTFALL INTEREST CHARGE
280-160(1)
The Commissioner may remit all or a part of an amount of *shortfall interest charge you are liable to pay if the Commissioner considers it fair and reasonable to do so.
Commissioner's Remedial Power
Note:
A Commissioner's Remedial Power modification is relevant to this part of the tax law. Taxation Administration (Remedial Power - Remission of Charges and Penalties) Determination 2023 (F2023L00956) modifies the operation of s 280-160(1) in Sch 1 to the Taxation Administration Act 1953 and any other provisions of a taxation law whose operation is affected by the modified operation of s 280-160(1) in Sch 1.
The operation of the relevant provision is modified as follows:
For the purposes of s 370-5 in Sch 1 to the Taxation Administration Act 1953, s 280-160(1) in Sch 1 to the Taxation Administration Act 1953 is modified to permit the Commissioner to remit the general interest charge, shortfall interest charge or an administrative penalty, as applicable:
(a) in relation to:
(i) an entity; or
(ii) one or more entities in a relevant class; and
(b) whether or not the charge or penalty:
(i) has become due and payable; or
(ii) may become due and payable in the future.
An entity must treat a modification as not applying to it or any other entity if the modification would produce a less favourable result for it. The Commissioner is empowered by s 370-5 in Sch 1 to the Taxation Administration Act 1953 to make modifications, by legislative instrument, to ensure the law is administered to achieve its intended purpose or object.
280-160(2)
Without limiting subsection (1), in deciding whether to remit, the Commissioner must have regard to:
(a)
the principle that remission should not occur just because the benefit you received from the temporary use of the shortfall amount is less than the *shortfall interest charge; and
(b)
the principle that remission should occur where the circumstances justify the Commonwealth bearing part or all of the cost of delayed payments.
History
S 280-160 inserted by No 75 of 2005.
SECTION 280-165
280-165
COMMISSIONER MUST GIVE REASONS FOR NOT REMITTING IN CERTAIN CASES
The Commissioner must give you a written statement of the reasons for a decision not to remit an amount of *shortfall interest charge you are liable to pay if you requested the Commissioner, in the *approved form, to remit the amount.
Note:
Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons.
History
S 280-165 inserted by No 75 of 2005.
SECTION 280-170
280-170
OBJECTING AGAINST REMISSION DECISION
You may object, in the manner set out in Part IVC, against a decision of the Commissioner not to remit an amount of *shortfall interest charge you are liable to pay on an additional amount of income tax, *petroleum resource rent tax, *excess non-concessional contributions tax or *Division 293 tax, if the amount of the charge that was not remitted is more than 20% of the additional amount.
History
S 280-170 amended by No 110 of 2014, s 3 and Sch 5 item 136, by substituting "*Division 293 tax," for "*Division 293 tax,,", effective 16 October 2014.
S 280-170 amended by No 96 of 2014, s 3 and Sch 1 item 82, by omitting "*MRRT," after "amount of income tax,", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 280-170 amended by No 118 of 2013, s 3 and Sch 1 item 109, by inserting "non-concessional" after "*excess", effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
S 280-170 amended by No 82 of 2013, s 3 and Sch 3 item 27, by substituting ", *excess contributions tax or *Division 293 tax" for "or *excess contributions tax", effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
S 280-170 amended by No 14 of 2012, s 3 and Sch 1 item 16, by inserting "*MRRT,", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
S 280-170 amended by No 15 of 2007, s 3 and Sch 1 item 391, by substituting "*petroleum resource rent tax or *excess contributions tax" for "or *petroleum resource rent tax", applicable to the 2007-2008 income year and later years.
S 280-170 amended by No 78 of 2006, s 3 and Sch 4 items 35 and 36, by inserting ", or *petroleum resource rent tax," and omitting "of income tax" from the end, applicable only in relation to returns and assessments of tax, and instalments of tax, under the Petroleum Resource Rent Tax Assessment Act 1987 for financial years that start on or after 1 July 2006.
S 280-170 inserted by No 75 of 2005.
Division 284 - Administrative penalties for statements, unarguable positions and schemes
History
Div 284 inserted by No 91 of 2000.
Guide to Division 284
SECTION 284-5
WHAT THIS DIVISION IS ABOUT
This Division sets out the circumstances in which administrative penalties apply for:
(a) making false or misleading statements; and
(b) taking a position that is not reasonably arguable; and
(c) entering into schemes.
It also sets out the amounts of those penalties.
History
S 284-5 inserted by No 91 of 2000.
Subdivision 284-A - General provisions
SECTION 284-10
284-10
OBJECT OF DIVISION
The object of this Division is to provide a uniform administrative penalty regime for all *taxation laws to enable administrative penalties to apply to entities that fail to meet their obligations under those laws in relation to:
(a)
making false or misleading statements; and
(b)
taking a position that is not reasonably arguable; and
(c)
entering into *schemes; and
(d)
refusing to provide documents to the Commissioner.
(e)
(Repealed by No 75 of 2005)
History
S 284-10 inserted by No 91 of 2000.
SECTION 284-15
WHEN A MATTER IS REASONABLY ARGUABLE
284-15(1)
A matter is
reasonably arguable
if it would be concluded in the circumstances, having regard to relevant authorities, that what is argued for is about as likely to be correct as incorrect, or is more likely to be correct than incorrect.
Note:
For the effect of transfer pricing documentation on when a matter is reasonably arguable, see Subdivision 284-E.
History
S 284-15(1) amended by No 101 of 2013, s 3 and Sch 2 item 44, by inserting the note at the end, applicable: (a) in respect of tax other than withholding tax - in relation to income years starting on or after the date mentioned in subsection 815-15(2) of the Income Tax (Transitional Provisions) Act 1997, as inserted; and (b) in respect of withholding tax - in relation to income derived, or taken to be derived, in income years starting on or after that date.
S 284-15(1) amended by No 75 of 2005.
284-15(2)
To the extent that a matter involves an assumption about the way in which the Commissioner will exercise a discretion, the matter is only
reasonably arguable
if, had the Commissioner exercised the discretion in the way assumed, a court would be about as likely as not to decide that the exercise of the discretion was in accordance with law.
History
S 284-15(2) amended by No 75 of 2005.
284-15(3)
Without limiting subsection (1), these authorities are relevant:
(a)
a *taxation law;
(b)
material for the purposes of subsection 15AB(1) of the Acts Interpretation Act 1901;
(c)
a decision of a court (whether or not an Australian court), the Administrative Appeals Tribunal, the *ART or a Board of Review;
(d)
a *public ruling.
History
S 284-15(3) amended by No 38 of 2024, s 3 and Sch 1 item 74, by substituting "Administrative Appeals Tribunal, the *ART" for "*AAT" in para (c), effective 14 October 2024.
S 284-15(3) amended by No 161 of 2005, s 3 and Sch 2 item 27, by substituting para (d), applicable to things done on or after 1 January 2006. Para (d) formerly read:
(d)
a public ruling within the meaning of Part IVAAA
History
S 284-15 inserted by No 91 of 2000.
SECTION 284-20
284-20
WHICH STATEMENTS THIS DIVISION APPLIES TO
This Division applies to a statement made orally, in a document or in any other way (including electronically) for a purpose connected with a *taxation law.
History
S 284-20 inserted by No 91 of 2000.
SECTION 284-25
284-25
STATEMENTS BY AGENTS
This Division applies to a statement made by your agent as if it had been made by you.
History
S 284-25 amended by No 56 of 2010, s 3 and Sch 6 item 58, by omitting "in an *approved form" after "to a statement made", applicable in relation to things done on or after 4 June 2010.
S 284-25 inserted by No 91 of 2000.
SECTION 284-30
284-30
APPLICATION OF DIVISION TO TRUSTS
If you are a trustee of a trust and:
(a)
you make a statement to the Commissioner or to an officer who is exercising powers or performing functions under a *taxation law about the trust; and
(b)
the statement:
(i)
is false or misleading in a material particular, whether because of things in it or omitted from it; or
(ii)
treated an *income tax law as applying to a matter or identical matters in a particular way that was not *reasonably arguable; or
(iii)
treated a taxation law as applying in a particular way to a *scheme;
this Division applies to you as if any *shortfall amount or *scheme shortfall amount of a beneficiary of the trust as a result of the statement were your shortfall amount or scheme shortfall amount.
History
S 284-30 amended by No 96 of 2014, s 3 and Sch 1 item 83, by repealing the note, effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. The note formerly read:
Note:
A beneficiary of a trust cannot have a *shortfall amount or *scheme shortfall amount in relation to the MRRT law.
S 284-30 amended by No 14 of 2012, s 3 and Sch 1 item 17, by inserting the note at the end, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
S 284-30 inserted by No 91 of 2000.
SECTION 284-35
APPLICATION OF DIVISION TO PARTNERSHIPS
284-35(1)
If you are a partner in a partnership and:
(a)
a statement about the partnership net income or partnership loss is made by a partner or the partnership's agent to the Commissioner or to an entity who is exercising powers or performing functions under a *taxation law about the partnership; and
(b)
the statement:
(i)
is false or misleading in a material particular, whether because of things in it or omitted from it; or
(ii)
treated an *income tax law as applying to a matter or identical matters in a particular way that was not *reasonably arguable;
this Division applies to you as if you had made the statement.
284-35(2)
If you are a partner in a partnership and:
(a)
the partnership participated in a *scheme; and
(b)
the partnership net income would have been greater, or the partnership loss would have been smaller, apart from the scheme;
this Division applies to you as if the proportion of the *scheme benefit that is the same as your share of the partnership net income or partnership loss were your scheme benefit.
History
S 284-35(2) amended by No 14 of 2012, s 3 and Sch 1 item 18, by inserting the note at the end, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
History
S 284-35 amended by No 96 of 2014. For transitional provisions see note under Pt 3-15 heading.
S 284-35 inserted by No 91 of 2000.
Subdivision 284-B - Penalties relating to statements
Guide to Subdivision 284-B
SECTION 284-70
WHAT THIS SUBDIVISION IS ABOUT
You are liable to an administrative penalty if:
(a) you make a false or misleading statement about a tax-related matter; or
(b) you take a position that is not reasonably arguable about a tax-related matter; or
(c) the Commissioner determines a tax-related liability of yours without documents you were required to provide.
(d) (Repealed by No 75 of 2005)
This Subdivision sets out when the penalties apply and how the amounts of the penalties are calculated.
History
S 284-70 inserted by No 91 of 2000 and amended by No 75 of 2005.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 284-75 |
Liability to penalty |
| 284-80 |
Shortfall amounts |
| 284-85 |
Amount of penalty |
| 284-90 |
Base penalty amount |
| 284-95 |
Joint and several liability of directors of corporate trustee that makes a false or misleading statement |
Operative provisions
SECTION 284-75
LIABILITY TO PENALTY
284-75(1)
You are liable to an administrative penalty if:
(a)
you make a statement to the Commissioner or to an entity that is exercising powers or performing functions under a *taxation law (other than the *Excise Acts); and
(b)
the statement is false or misleading in a material particular, whether because of things in it or omitted from it.
(c)
(Repealed by No 56 of 2010)
Note:
This section applies to a statement made by your agent as if it had been made by you: see section 284-25.
History
S 284-75(1) amended by No 41 of 2011, s 3 and Sch 5 items 403 to 405, by inserting "(other than the *Excise Acts)" in para (a), repealing note 1 and substituting "Note" for "Note 2", effective 27 June 2011. Note 1 formerly read:
Note 1:
Subsection 2(2) specifies laws that are not taxation laws for the purposes of this Subdivision.
S 284-75(1) amended by No 56 of 2010, s 3 and Sch 6 items 59 to 63, by substituting "make" for "or your agent makes" in para (a), substituting "it." for "it; and" in para (b), repealing para (c), substituting "Note 1:" for "Note:" in the note and inserting note 2, applicable in relation to things done on or after 4 June 2010. Para (c) formerly read:
(c)
you have a *shortfall amount as a result of the statement.
S 284-75(1) note inserted by No 25 of 2001.
284-75(1A)
(Repealed by No 56 of 2010)
History
S 284-75(1A) repealed by No 56 of 2010, s 3 and Sch 6 item 102, applicable in relation to statements made on or after 4 June 2010. S 284-75(1A) formerly read:
284-75(1A)
However, you are not liable to an administrative penalty under subsection (1) if:
(a)
you engage a *registered tax agent or BAS agent; and
(b)
you give the registered tax agent or BAS agent all relevant taxation information; and
(c)
the registered tax agent or BAS agent makes the statement; and
(d)
the statement results in a *shortfall amount; and
(e)
the shortfall amount did not result from:
(i)
intentional disregard by the registered tax agent or BAS agent of a *taxation law; or
(ii)
recklessness by the agent as to the operation of a taxation law.
S 284-75(1A) inserted by No 114 of 2009, s 3 and Sch 1 item 23, applicable in relation to statements given on or after 1 March 2010.
284-75(1B)
(Repealed by No 56 of 2010)
History
S 284-75(1B) repealed by No 56 of 2010, s 3 and Sch 6 item 102, applicable in relation to statements made on or after 4 June 2010. S 284-75(1B) formerly read:
284-75(1B)
If you wish to rely on subsection (1A), you bear an evidential burden in relation to paragraph (1A)(b).
S 284-75(1B) inserted by No 114 of 2009, s 3 and Sch 1 item 23, applicable in relation to statements given on or after 1 March 2010.
284-75(2)
You are liable to an administrative penalty if:
(a)
you make a statement to the Commissioner or to an entity that is exercising powers or performing functions under an *income tax law or the *petroleum resource rent tax law; and
(b)
in the statement, you treated an income tax law, or the petroleum resource rent tax law, as applying to a matter or identical matters in a particular way that was not *reasonably arguable; and
(c)
(Repealed by No 56 of 2010)
(d)
item 4, 5 or 6 of the table in subsection 284-90(1) applies to you.
History
S 284-75(2) amended by No 96 of 2014, s 3 and Sch 1 items 85-86, by omitting "*MRRT law or" after "*income tax law or the" from para (a) and "MRRT law or" after "income tax law, or the" from para (b), effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 284-75(2) amended by No 88 of 2013, s 3 and Sch 7 items 178 and 179, by inserting "or *petroleum resource rent tax law" after "the *MRRT law" in para (a) and "or petroleum resource rent tax law" after "the MRRT law" in para (b), effective 1 July 2012.
S 284-75(2) amended by No 14 of 2012, s 3 and Sch 1 items 19 and 20, by inserting "or the *MRRT law" in para (a) and substituting "income tax law, or the MRRT law," for "*income tax law" in para (b), effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
S 284-75(2) amended by No 56 of 2010, s 3 and Sch 6 items 64 to 66, by substituting "make" for "or your agent makes" in para (a), omitting "or your agent" after "statement, you" in para (b) and repealing para (c), applicable in relation to things done on or after 4 June 2010. Para (c) formerly read:
(c)
you have a *shortfall amount as a result of the statement; and
284-75(3)
You are liable to an administrative penalty if:
(a)
you fail to give a return, notice or other document to the Commissioner by the day it is required to be given; and
(b)
that document is necessary for the Commissioner to determine a *tax-related liability (other than one arising under the *Excise Acts) of yours accurately; and
(c)
the Commissioner determines the tax-related liability without the assistance of that document.
Note:
You are also liable to an administrative penalty for failing to give the document on time: see Subdivision 286-C.
History
S 284-75(3) amended by No 21 of 2015, s 3 and Sch 7 item 38, by inserting "(other than one arising under the *Excise Acts)" in para (b), applicable in relation to returns, notices or documents required to be given to the Commissioner on or after 20 March 2015.
284-75(4)
You are liable to an administrative penalty if:
(a)
you make a statement to an entity other than:
(i)
the Commissioner; and
(ii)
an entity exercising powers or performing functions under a *taxation law (other than the *Excise Acts); and
(b)
the statement is, or purports to be one that:
(i)
is required or permitted by a taxation law (other than the Excise Acts); or
(ii)
might reasonably be expected to be used, by an entity in determining, for the purposes of the *GST law, whether you are an Australian consumer (within the meaning of the *GST Act); or
(iii)
might reasonably be expected to be used, by an entity in determining, for the purposes of the GST law, whether a supply made to you is connected with the indirect tax zone (within the meaning of that Act) because of Subdivision 84-C of that Act; and
(c)
the statement is false or misleading in a material particular, whether because of things in it or omitted from it.
History
S 284-75(4) amended by No 141 of 2020, s 3 and Sch 4 item 77, by substituting "to you" for "by you" in para (b)(iii), effective 18 December 2020.
S 284-75(4) amended by No 77 of 2017, s 3 and Sch 1 items 61 and 62, by substituting "or" for "and" in para (b)(ii) and inserting para (b)(iii), effective 1 July 2017.
S 284-75(4) amended by No 52 of 2016, s 3 and Sch 1 item 37, by substituting para (b), applicable in relation to working out net amounts for tax periods starting on or after 1 July 2017. Para (b) formerly read:
(b)
the statement is, or purports to be, one required or permitted by a taxation law (other than the Excise Acts); and
S 284-75(4) amended by No 41 of 2011, s 3 and Sch 5 items 406 and 407, by inserting "(other than the *Excise Acts)" in para (a)(ii) and "(other than the Excise Acts)" in para (b), effective 27 June 2011.
S 284-75(4) inserted by No 56 of 2010, s 3 and Sch 6 item 67, applicable in relation to things done on or after 4 June 2010.
Former s 284-75(4) repealed by No 75 of 2005.
Exceptions to subsections (1) and (4)
284-75(5)
You are not liable to an administrative penalty under subsection (1) or (4) for a statement that is false or misleading in a material particular if you, and your *agent (if relevant), took reasonable care in connection with the making of the statement.
History
S 284-75(5) inserted by No 56 of 2010, s 3 and Sch 6 item 67, applicable in relation to things done on or after 4 June 2010.
284-75(6)
You are not liable to an administrative penalty under subsection (1) or (4) if:
(a)
you engage a *registered tax agent or BAS agent; and
(b)
you give the registered tax agent or BAS agent all relevant taxation information; and
(c)
the registered tax agent or BAS agent makes the statement; and
(d)
the false or misleading nature of the statement did not result from:
(i)
intentional disregard by the registered tax agent or BAS agent of a *taxation law (other than the *Excise Acts); or
(ii)
recklessness by the agent as to the operation of a taxation law (other than the Excise Acts).
History
S 284-75(6) amended by No 41 of 2011, s 3 and Sch 5 items 408 and 409, by inserting "(other than the *Excise Acts)" in para (d)(i) and "(other than the Excise Acts)" in para (d)(ii), effective 27 June 2011.
S 284-75(6) inserted by No 56 of 2010, s 3 and Sch 6 item 104, applicable in relation to statements made on or after 4 June 2010.
284-75(7)
If you wish to rely on subsection (6), you bear an evidential burden in relation to paragraph (6)(b).
History
S 284-75(7) inserted by No 56 of 2010, s 3 and Sch 6 item 104, applicable in relation to statements made on or after 4 June 2010.
Further exceptions to subsection (1)
284-75(8)
You are not liable to an administrative penalty under subsection (1) if:
(a)
you made the statement (the
original statement
) under section 389-5 notifying an amount under item 1, 2 or 2A of the table in subsection 389-5(1) (and no other item in that table); and
(b)
the original statement related to the *financial year in which you made it; and
(c)
you make a further statement to a taxation officer that corrects the original statement in each of the respects in which it is false or misleading in a material particular; and
(d)
the further statement:
(i)
is in the *approved form; and
(ii)
if subsection 389-25(1) in that Schedule provides for a period for correcting the original statement - is made within that period; and
(iii)
without limiting subparagraph (ii), is made within 14 days after the end of the financial year in which the original statement was made.
History
S 284-75(8) amended by No 8 of 2019, s 3 and Sch 3 item 12, by substituting "item 1, 2 or 2A" for "item 1 or 2" in para (a), effective 23 June 2020. For application provision, see note under s 389-5(1).
S 284-75(8) inserted by No 55 of 2016, s 3 and Sch 23 item 19, effective 1 October 2016. For application provisions, see note under Div 389 heading.
284-75(9)
You are not liable to an administrative penalty under subsection (1) if:
(a)
you made the statement (the
original statement
) under section 390-5; and
(b)
you make a further statement to a taxation officer that corrects the original statement in each of the respects in which it is false or misleading in a material particular; and
(c)
subsection 390-7(1) provides for a period for correcting the original statement; and
(d)
the further statement:
(i)
is in the *approved form; and
(ii)
is made within the period referred to in paragraph (c) of this subsection.
History
S 284-75(9) inserted by No 8 of 2019, s 3 and Sch 4 item 4, effective 1 April 2019.
SECTION 284-80
SHORTFALL AMOUNTS
284-80(1)
You have a
shortfall amount
if an item in this table applies to you. That amount is the amount by which the relevant liability, or the payment or credit, is less than or more than it would otherwise have been.
|
Shortfall amounts
|
|
Item
|
You have a
shortfall amount
in this situation:
|
| 1 |
A *tax-related liability of yours for an accounting period, or for a *taxable importation, or under the Superannuation (Unclaimed Money and Lost Members) Act 1999, worked out on the basis of the statement is less than it would be if the statement were not false or misleading |
| 2 |
An amount that the Commissioner must pay or credit to you under a *taxation law (other than the *Excise Acts) for an accounting period, or under a tourist refund scheme under Division 168 of the *GST Act or Division 25 of the A New Tax System (Wine Equalisation Tax) Act 1999, worked out on the basis of the statement is more than it would be if the statement were not false or misleading |
| 3 |
A *tax-related liability of yours for an accounting period worked out on the basis of the statement is less than it would be if the statement did not treat an *income tax law or the *petroleum resource rent tax law as applying in a way that was not *reasonably arguable |
| 4 |
An amount that the Commissioner must pay or credit to you under an *income tax law or the *petroleum resource rent tax law for an accounting period worked out on the basis of the statement is more than it would be if the statement did not treat an income tax law or the petroleum resource rent tax law as applying in a way that was not *reasonably arguable |
| 5 |
You are liable to pay to the Commissioner an amount of *excess exploration credit tax |
| 6 |
(Repealed by No 75 of 2005) |
History
S 284-80(1) amended by No 21 of 2015, s 3 and Sch 6 item 37, by inserting table item 5, applicable in relation to the 2015-16, 2016-17 and 2017-18 income years, but not in relation to any later income years.
S 284-80(1) amended by No 96 of 2014, s 3 and Sch 1 items 87 and 88, by omitting ", the *MRRT law" from table items 3 and 4 and ", the MRRT law" from table item 4, effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 284-80(1) amended by No 88 of 2013, s 3 and Sch 7 items 180 to 182, by substituting ", the *MRRT law or the *petroleum resource rent tax law" for ", or the *MRRT law," in table item 3, and substituting ", the *MRRT law or the *petroleum resource rent tax law" for ", or the *MRRT law," (first occurring) and "income tax law, the MRRT law or the petroleum resource rent tax law" for "*income tax law, or the *MRRT law," (last occurring) in table item 4, effective 1 July 2012.
S 284-80(1) amended by No 14 of 2012, s 3 and Sch 1 item 21, by inserting ", or the *MRRT law," in table items 3 and 4, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
S 284-80(1) amended by No 41 of 2011, s 3 and Sch 5 item 410, by inserting "(other than the *Excise Acts)" in table item 2, effective 27 June 2011.
S 284-80(1) amended by No 56 of 2010, s 3 and Sch 6 item 68, by repealing the note, applicable in relation to things done on or after 4 June 2010. The note formerly read:
Note:
Section 284-215 may reduce or eliminate your shortfall amount.
S 284-80(1) amended by No 151 of 2008, s 3 and Sch 1 item 26, by inserting "or under the Superannuation (Unclaimed Money and Lost Members) Act 1999" in table item 1, effective 18 December 2008.
S 284-80(1) amended by No 75 of 2005.
284-80(2)
However, if:
(a)
your shortfall amount arises in the situation covered by both item 1 in the table and item 1, 2 or 3 in the table in subsection 284-90(1); and
(b)
the statement is false or misleading because of errors mentioned in section 705-315 of the Income Tax Assessment Act 1997 that were made in it and it was made before the Commissioner became aware of the errors, your
shortfall amount
is instead the amount worked out using the formula:
where:
adjusted reset cost base asset setting amount
means:
(a)
the *tax cost setting amount, worked out under Division 705 of the Income Tax Assessment Act 1997, for all assets of a kind referred to in section 705-35 of that Act as reset cost base assets that the *head company of the relevant group held continuously from the time when the *subsidiary member referred to in subsection 705-315(2) of that Act joined the group until the start of the head company's income year in which the Commissioner became aware of the errors mentioned in section 705-315 of that Act;
less:
(b)
the head company's deductions under Division 40 (except under Subdivision 40-F, 40-G, 40-H or 40-I) or Subdivision 328-D of the Income Tax Assessment Act 1997 for those assets for all income years before the income year in which the Commissioner became aware of the errors.
capital gain
(Repealed by No 107 of 2003)
original reset cost base asset setting amount
means the *tax cost setting amount, worked out under Division 705 of the Income Tax Assessment Act 1997, for all reset cost base assets that the *subsidiary member held at the time it joined the group, other than assets that the *head company no longer held at the start of the earliest income year for which the Commissioner could amend the head company's assessment to correct any of the errors.
tax on capital gain
means the product of:
(a)
the *capital gain that the *head company makes as a result of *CGT event L6 happening as mentioned in section 104-525 of the Income Tax Assessment Act 1997; and
(b)the *corporate tax rate in respect of taxable income for the income year in which that CGT event happens.
History
S 284-80(2) amended by No 107 of 2003, inserted by No 16 of 2003.
History
S 284-80 inserted by No 91 of 2000.
SECTION 284-85
AMOUNT OF PENALTY
284-85(1)
Work out the *base penalty amount under section 284-90. If the base penalty amount is not increased under section 284-220 or reduced under section 284-225, this is the amount of the penalty.
284-85(2)
Otherwise, use this formula:
| BPA + [BPA × (Increase % − Reduction %)] |
where:
BPA
is the *base penalty amount.
increase %
is the percentage increase (if any) under section 284-220.
reduction %
is the percentage reduction (if any) under section 284-225.
History
S 284-85 inserted by No 91 of 2000.
SECTION 284-90
BASE PENALTY AMOUNT
284-90(1)
The
base penalty amount
under this Subdivision is worked out using this table and subsections (1A) to (2), and section 284-224 if relevant:
|
Base penalty amount
|
|
Item
|
In this situation:
|
The
base penalty amount
is:
|
| 1 |
You have a *shortfall amount as a result of a statement described in subsection 284-75(1) or (4) and the amount, or part of the amount, resulted from intentional disregard of a *taxation law (other than the *Excise Acts) by you or your agent |
75% of your *shortfall amount or part |
| 2 |
You have a *shortfall amount as a result of a statement described in subsection 284-75(1) or (4) and the amount, or part of the amount, resulted from recklessness by you or your agent as to the operation of a *taxation law (other than the *Excise Acts) |
50% of your *shortfall amount or part |
| 3 |
You have a *shortfall amount as a result of a statement described in subsection 284-75(1) or (4) and the amount, or part of the amount, resulted from a failure by you or your agent to take reasonable care to comply with a *taxation law (other than the *Excise Acts) |
25% of your *shortfall amount or part |
| 3A |
A statement described in subsection 284-75(1) or (4) was false or misleading because of intentional disregard of a *taxation law (other than the *Excise Acts) by you or your *agent but did not result in you having a *shortfall amount |
60 penalty units |
| 3B |
A statement described in subsection 284-75(1) or (4) was false or misleading because of recklessness by you or your *agent as to the operation of a *taxation law (other than the *Excise Acts) but did not result in you having a *shortfall amount |
40 penalty units |
| 3C |
A statement described in subsection 284-75(1) or (4) was false or misleading because of a failure by you or your *agent to take reasonable care to comply with a *taxation law (other than the *Excise Acts) but did not result in you having a *shortfall amount |
20 penalty units |
| 4 |
You have a *shortfall amount, all or part of which resulted from you or your agent treating an *income tax law or the *petroleum resource rent tax law as applying to a matter or identical matters in a particular way that was not *reasonably arguable, and that amount is more than your *reasonably arguable threshold. |
25% of your *shortfall amount or part |
| 5 |
You have a *shortfall amount because of section 284-30 (about trusts) and: |
25% of your *shortfall amount or part |
| |
(a) |
your shortfall amount or part of it resulted from you or your agent treating an *income tax law as applying to a matter or identical matters in a particular way that was not *reasonably arguable; and |
|
| |
(b) |
because of that treatment, the trust's net income would have been reduced, or the trust's *tax loss would have been increased, for the income year by more than the trust's *reasonably arguable threshold |
|
| 6 |
You have a *shortfall amount because of section 284-35 (about partnerships) and: |
25% of your *shortfall amount or part |
| |
(a) |
your shortfall amount or part of it resulted from you or your agent treating an *income tax law as applying to a matter or identical matters in a particular way that was not *reasonably arguable; and |
|
| |
(b) |
because of that treatment, the partnership net income would have been reduced, or the partnership loss would have been increased, for the income year by more than the partnership's *reasonably arguable threshold |
|
| 7 |
You are liable to an administrative penalty under subsection 284-75(3) |
75% of the tax-related liability concerned |
| 8 |
(Repealed by No 75 of 2005) |
|
History
S 284-90(1) amended by No 27 of 2017, s 3 and Sch 2 item 2, by inserting "and subsections (1A) to (2),", applicable in relation to any of the following:
(a) statements referred to in section 284-75 in Schedule 1 to the Taxation Administration Act 1953 that are made at or after 1 July 2017;
(b) returns, notices or other documents referred to in that section that are required to be given at or after 1 July 2017.
S 284-90(1) amended by No 96 of 2014, s 3 and Sch 1 item 89, by substituting the cell at table item 4, column headed "In this situation:", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. The cell formerly read:
You have a *shortfall amount, all or part of which resulted from you or your agent treating an *income tax law, the *MRRT law or the *petroleum resource rent tax law as applying to a matter or identical matters in a particular way that was not *reasonably arguable, and that amount is more than the greater of $10,000 or 1% of whichever of the following applies:
(a) the income tax payable by you for the income year, worked out on the basis of your *income tax return;
(b) the *MRRT payable by you for the *MRRT year, worked out on the basis of your *MRRT return;
(c) the *petroleum resource rent tax payable by you for the year of tax (within the meaning of the Petroleum Resource Rent Tax Assessment Act 1987), worked out on the basis of your return under Division 1 of Part VI of that Act.
S 284-90(1) amended by No 101 of 2013, s 3 and Sch 2 items 46-47, by substituting "the trust's *reasonably arguable threshold" for "the greater of $20,000 or 2% of the trust's net income (if any) for that year worked out on the basis of the trust's *income tax return" in table item 5 and "the partnership's *reasonably arguable threshold" for "the greater of $20,000 or 2% of the partnership net income (if any) for that year, worked out on the basis of the partnership's *income tax return" in table item 6, column headed "In this situation:", applicable: (a) in respect of tax other than withholding tax - in relation to income years starting on or after the date mentioned in subsection 815-15(2) of the Income Tax (Transitional Provisions) Act 1997, as inserted; and (b) in respect of withholding tax - in relation to income derived, or taken to be derived, in income years starting on or after that date.
S 284-90(1) amended by No 88 of 2013, s 3 and Sch 7 item 183, by substituting the cell at table item 4, column headed "In this situation:", effective 1 July 2012. The cell formerly read:
You have a *shortfall amount, all or part of which resulted from you or your agent treating an *income tax law, or the *MRRT law, as applying to a matter or identical matters in a particular way that was not *reasonably arguable, and that amount is more than the greater of $10,000 or 1% of the income tax payable, or *MRRT payable, by you for the income year, worked out on the basis of your *income tax return or *MRRT return
S 284-90(1) amended by No 14 of 2012, s 3 and Sch 1 items 21-23, by inserting ", or the *MRRT law,", ", or *MRRT payable," and "or *MRRT return" in table item 4, effective 1 July 2012. For application and transitional provisions see note under heading.
S 284-90(1) amended by No 41 of 2011, s 3 and Sch 5 item 411, by substituting "*taxation law (other than the *Excise Acts)" for "*taxation law" in table items 1 to 3C, column headed "In this situation:", effective 27 June 2011.
S 284-90(1) amended by No 56 of 2010, s 3 and Sch 6 items 69 to 73, by inserting "and section 284-224 if relevant" after "this table", substituting "You have a *shortfall amount as a result of a statement described in subsection 284-75(1) or (4) and the amount, or part of the amount," for "Your *shortfall amount or part of it" in table items 1, 2 and 3, inserting table items 3A, 3B and 3C, substituting "You have a *shortfall amount, all or part of which" for "Your *shortfall amount or part of it" in table item 4 and repealing the note, applicable in relation to things done on or after 4 June 2010. The note formerly read:
Note:
Section 284-215 may reduce or eliminate your shortfall amount.
S 284-90(1) amended by No 75 of 2005.
284-90(1A)
The *base penalty amount in an item of the table in subsection (1) that applies to you is taken to be doubled if:
(a)
on or before the day (your
trigger day
) applying to you under subsection (4) for that table item:
(i)
the Commissioner has made an assessment of your income tax for one or more income years; or
(ii)
the Commissioner has made a determination under subsection 960-555(3) of the Income Tax Assessment Act 1997 in relation to you, or in relation to the *global parent entity for the group of which you are a member, for a period; or
(iii)
you have given the Commissioner statements in accordance with Subdivision 815-E of that Act for an income year or another 12 month period; or
(iv)
you were a *subsidiary member of a *consolidated group or a *MEC group for one or more income years, and the Commissioner has made an assessment of the income tax of another entity that was a *member of the group for one or more of those income years; and
(b)
you were a *significant global entity for:
(i)
whichever of those income years or periods that ends on the most recent day; or
(ii)
if more than one of them ends on that most recent day - any of those income years or periods that ends on that most recent day.
Note:
For subparagraph (a)(iii), you may be allowed to give statements for a 12 month period other than an income year (see section 815-360 of the Income Tax Assessment Act 1997).
History
S 284-90(1A) amended by No 64 of 2020, s 3 and Sch 3 items 135 and 136, by substituting "period; or" for "period; and" in para (a)(iii) and inserting para (a)(iv), effective 1 July 2020 and applicable in relation to trigger days (within the meaning of paragraph 284-90(1A)(a) in Schedule 1 to the Taxation Administration Act 1953) that occur on or after the start of the day on which the Bill that became this Act was introduced into the House of Representatives.
S 284-90(1A) inserted by No 27 of 2017, s 3 and Sch 2 item 3, applicable in relation to any of the following:
(a) statements referred to in section 284-75 in Schedule 1 to the Taxation Administration Act 1953 that are made at or after 1 July 2017;
(b) returns, notices or other documents referred to in that section that are required to be given at or after 1 July 2017.
284-90(1B)
However, subsection (1A) is taken never to have applied to you in relation to your trigger day if:
(a)
the Commissioner makes an assessment of:
(i)
your income tax for the income year that includes your trigger day; or
(ii)
if you were a *subsidiary member of a *consolidated group or a *MEC group for the income year that includes your trigger day - the income tax, for that income year, of another *member of that group; and
(b)
you are not a *significant global entity for that income year.
History
S 284-90(1B) amended by No 64 of 2020, s 3 and Sch 3 item 137, by substituting para (a), effective 1 July 2020 and applicable in relation to trigger days (within the meaning of paragraph 284-90(1A)(a) in Schedule 1 to the Taxation Administration Act 1953) that occur on or after the start of the day on which the Bill that became this Act was introduced into the House of Representatives. Para (a) formerly read:
(a)
the Commissioner makes an assessment of your income tax for the income year that includes your trigger day; and
S 284-90(1B) inserted by No 27 of 2017, s 3 and Sch 2 item 3, applicable in relation to any of the following:
(a) statements referred to in section 284-75 in Schedule 1 to the Taxation Administration Act 1953 that are made at or after 1 July 2017;
(b) returns, notices or other documents referred to in that section that are required to be given at or after 1 July 2017.
284-90(2)
If 2 or more items in that table apply and one of them produces a greater *base penalty amount than any of the others, use that item.
History
S 284-90(2) amended by No 56 of 2010, s 3 and Sch 6 item 74, by omitting "to you for your *shortfall amount or a part of it" after "in that table apply", applicable in relation to things done on or after 4 June 2010.
284-90(3)
An entity's
reasonably arguable threshold
for an income year is:
(a)
unless paragraph (b) applies - the greater of $10,000 or 1% of whichever of the following applies:
(i)
the income tax payable by the entity for the income year, worked out on the basis of the entity's *income tax return;
(ii)
the *petroleum resource rent tax payable by the entity for the year of tax (within the meaning of the Petroleum Resource Rent Tax Assessment Act 1987) most closely corresponding to the income year, worked out on the basis of the entity's return under Division 1 of Part VI of that Act; or
(b)
if the entity is a trust or partnership - the greater of the following amounts:
(i)
$20,000;
(ii)
2% of the entity's *net income (if any) for the income year worked out on the basis of the entity's *income tax return.
History
S 284-90(3) amended by No 96 of 2014, s 3 and Sch 1 item 90, by substituting para (a), effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. Para (a) formerly read:
(a)
unless paragraph (b) applies - the greater of the following amounts:
(i)
$10,000;
(ii)
1% of the income tax payable, or *MRRT payable (as the case requires), by the entity for the income year, worked out on the basis of the entity's *income tax return or *MRRT return (as the case requires); or
284-90(3) inserted by No 101 of 2013, s 3 and Sch 2 item 48, applicable: (a) in respect of tax other than withholding tax - in relation to income years starting on or after the date mentioned in subsection 815-15(2) of the Income Tax (Transitional Provisions) Act 1997, as inserted; and (b) in respect of withholding tax - in relation to income derived, or taken to be derived, in income years starting on or after that date.
284-90(4)
For the purposes of paragraph (1A)(a), the following day applies to you for the relevant item of the table in subsection (1):
(a)
for any of table items 1 to 3C - the day you made the statement referred to in that item;
(b)
for any of table items 4 to 6 - the day you made the statement to which that item relates and that is referred to in subsection 284-75(2);
(c)
for table item 7 - the day the return, notice or other document to which that item relates, and that is referred to in subsection 284-75(3), was required to be given.
History
S 284-90(4) inserted by No 27 of 2017, s 3 and Sch 2 item 4, applicable in relation to any of the following:
(a) statements referred to in section 284-75 in Schedule 1 to the Taxation Administration Act 1953 that are made at or after 1 July 2017;
(b) returns, notices or other documents referred to in that section that are required to be given at or after 1 July 2017.
History
S 284-90 inserted by No 91 of 2000.
SECTION 284-95
JOINT AND SEVERAL LIABILITY OF DIRECTORS OF CORPORATE TRUSTEE THAT MAKES A FALSE OR MISLEADING STATEMENT
284-95(1)
This section applies if a trustee of a *self managed superannuation fund, or of a fund that is treated as a self managed superannuation fund under subsection 10(4) of the Superannuation Industry (Supervision) Act 1993:
(a)
is liable to an administrative penalty under subsection 284-75(1) or (4); and
(b)
is a body corporate.
284-95(2)
The directors of the body corporate at the time it becomes liable to the penalty are jointly and severally liable to pay the amount of the *tax-related liability in respect of the penalty.
Note:
See section 265-45 for rules on joint liability.
History
S 284-95 inserted by No 56 of 2010, s 3 and Sch 6 item 75, applicable in relation to things done on or after 4 June 2010.
Subdivision 284-C - Penalties relating to schemes
Guide to Subdivision 284-C
SECTION 284-140
WHAT THIS SUBDIVISION IS ABOUT
You are liable to an administrative penalty if you attempt to reduce your tax-related liabilities or increase your credits through a scheme.
This Subdivision sets out when the penalties apply and how the amounts of the penalties are calculated.
History
S 284-140 inserted by No 91 of 2000.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 284-145 |
Liability to penalty |
| 284-150 |
Scheme benefits and scheme shortfall amounts |
| 284-155 |
Amount of penalty |
| 284-160 |
Base penalty amount: schemes |
| 284-165 |
Exception - threshold for penalty arising from cross-border transfer pricing |
Operative provisions
SECTION 284-145
LIABILITY TO PENALTY
284-145(1)
You are liable to an administrative penalty if:
(a)
you would, apart from a provision of a *taxation law or action taken under such a provision (the
adjustment provision
), get a *scheme benefit from a *scheme; and
(b)
having regard to any relevant matters, it is reasonable to conclude that:
(i)
an entity that (alone or with others) entered into or carried out the scheme, or part of it, did so with the sole or dominant purpose of that entity or another entity getting a scheme benefit from the scheme; or
(ia)
for a scheme to which Part IVA of the Income Tax Assessment Act 1936 applies because of section 177DA of that Act - an entity that (alone or with others) entered into or carried out the scheme, or part of it, did so for a principal purpose of, or for more than one principal purpose that includes a purpose of, that entity or another entity getting a scheme benefit from the scheme; or
(ii)
for a scheme referred to in Division 165 of the *GST Act or Division 75 of the Fuel Tax Act 2006 - the principal effect of the scheme, or of part of the scheme, is that you would, apart from the adjustment provision, get the scheme benefit from the scheme directly or indirectly.
History
S 284-145(1) amended by No 170 of 2015, s 3 and Sch 2 item 5, by inserting para (b)(ia), effective 11 December 2015. No 170 of 2015, s 3 and Sch 2 item 7 contains the following application provision:
7 Application
(1)
The amendments made by this Schedule apply on or after 1 January 2016 in connection with a scheme, whether or not the scheme was entered into, or was commenced to be carried out, before that day.
(2)
Despite subitem (1), the amendments made by this Schedule do not apply in relation to tax benefits that a taxpayer derives before that day.
S 284-145(1) amended by No 73 of 2006, s 3 and Sch 5 item 165, by substituting "*GST Act or Division 75 of the Fuel Tax Act 2006" for "A New Tax System (Goods and Services Tax) Act 1999", effective 1 July 2006.
284-145(2)
(Repealed by No 101 of 2013)
History
S 284-145(2) substituted by No 101 of 2013, s 3 and Sch 2 item 49, applicable: (a) in respect of tax other than withholding tax - in relation to income years starting on or after the date mentioned in subsection 815-15(2) of the Income Tax (Transitional Provisions) Act 1997, as inserted; and (b) in respect of withholding tax - in relation to income derived, or taken to be derived, in income years starting on or after that date. S 284-145(2) formerly read:
284-145(2)
You are also liable to an administrative penalty if:
(a)
you would, apart from section 136AD or 136AE of the Income Tax Assessment Act 1936, or the application of the International Tax Agreements Act 1953 to those sections, (also the
adjustment provision
) get a *scheme benefit from a *scheme; and
(b)
subparagraph (1)(b)(i) is not satisfied for the scheme.
284-145(2A)
You are also liable to an administrative penalty if:
(a)
you would, apart from a determination under section 815-30 of the Income Tax Assessment Act 1997 (also the
adjustment provision
), get a *scheme benefit from a *scheme; and
(b)
neither subparagraph (1)(b)(i) nor subparagraph (1)(b)(ia) is satisfied for the scheme.
History
S 284-145(2A) amended by No 170 of 2015, s 3 and Sch 2 item 6, by substituting "neither subparagraph (1)(b)(i) nor subparagraph (1)(b)(ia) is" for "subparagraph (1)(b)(i) is not" in para (b), effective 11 December 2015. For application provision, see note under s 284-145(1).
S 284-145(2A) inserted by No 115 of 2012, s 3 and Sch 1 item 13, applicable to income years starting on or after 1 July 2012.
284-145(2B)
You are also liable to an administrative penalty if:
(a)
to give effect to Subdivision 815-B or 815-C of the Income Tax Assessment Act 1997 (also the
adjustment provision
) in relation to a *scheme, the Commissioner:
(i)
amends your assessment for an income year; or
(ii)
serves you with one or more notices under subsection 128C(7) of the Income Tax Assessment Act 1936 in respect of income that is taken because of the application of the adjustment provision to have been derived in the income year; and
(b)
as a result, you are liable to pay an additional amount of income tax or *withholding tax (as the case requires).
Note:
Subdivisions 815-B and 815-C of the Income Tax Assessment Act 1997 apply the arm's length principle (about transfer pricing) to entities and permanent establishments respectively.
History
S 284-145(2B) inserted by No 101 of 2013, s 3 and Sch 2 item 3, applicable: (a) in respect of tax other than withholding tax - in relation to income years starting on or after the date mentioned in subsection 815-15(2) of the Income Tax (Transitional Provisions) Act 1997, as inserted; and (b) in respect of withholding tax - in relation to income derived, or taken to be derived, in income years starting on or after that date.
284-145(2C)
You are also liable to an administrative penalty if:
(a)
you are the trustee of a *managed investment trust in relation to an income year; and
(b)
to give effect to Subdivision 275-L of the Income Tax Assessment Act 1997 (also the
adjustment provision
) in relation to a *scheme, the Commissioner amends your assessment for the income year; and
(c)
as a result, you are liable to pay an additional amount of income tax (as the case requires).
Note:
Subdivision 275-L of the Income Tax Assessment Act 1997 applies to non-arm's length income of managed investment trusts.
History
S 284-145(2C) inserted by No 53 of 2016, s 3 and Sch 4 item 7, effective 5 May 2016. For application provision, see note under Division 12A heading.
284-145(3)
It does not matter whether the *scheme, or any part of the scheme, was entered into or carried out inside or outside Australia.
History
S 284-145 inserted by No 91 of 2000.
SECTION 284-150
SCHEME BENEFITS
AND
SCHEME SHORTFALL AMOUNTS
284-150(1)
An entity gets a
scheme benefit
from a *scheme if:
(a)
a *tax-related liability of the entity for an accounting period is, or could reasonably be expected to be, less than it would be apart from the scheme or a part of the scheme; or
(b)
an amount that the Commissioner must pay or credit to the entity under a *taxation law for an accounting period is, or could reasonably be expected to be, more than it would be apart from the scheme or a part of the scheme.
284-150(2)
The amount of the *scheme benefit that you would, apart from the adjustment provision, have got from the *scheme is called your
scheme shortfall amount
.
History
S 284-150(2) amended by No 56 of 2010, s 3 and Sch 6 item 76, by repealing the note, applicable in relation to things done on or after 4 June 2010. The note formerly read:
Note:
Section 284-215 may reduce or eliminate your scheme shortfall amount.
284-150(3)
However, to the extent that your scheme shortfall amount is due to errors mentioned in section 705-315 of the Income Tax Assessment Act 1997 that were made in a statement that was made before the Commissioner became aware of the errors, your
scheme shortfall amount
is instead the amount worked out using the formula:
where:
adjusted reset cost base asset setting amount
means:
(a)
the *tax cost setting amount, worked out under Division 705 of the Income Tax Assessment Act 1997, for all assets of a kind referred to in section 705-35 of that Act as reset cost base assets that the *head company of the relevant group held continuously from the time when the *subsidiary member referred to in subsection 705-315(2) of that Act joined the group until the start of the head company's income year in which the Commissioner became aware of the errors mentioned in section 705-315 of that Act;
less:
(b)
the head company's deductions under Division 40 (except under Subdivision 40-F, 40-G, 40-H or 40-I) or Subdivision 328-D of the Income Tax Assessment Act 1997 for those assets for all income years before the income year in which the Commissioner became aware of the errors.
capital gain
(Repealed by No 107 of 2003)
original reset cost base asset setting amount
means the *tax cost setting amount, worked out under Division 705 of the Income Tax Assessment Act 1997, for all reset cost base assets that the *subsidiary member held at the joining time, other than assets that the *head company no longer held at the start of the earliest income year for which the Commissioner could amend the head company's assessment to correct any of the errors.
tax on capital gain
means the product of:
(a)
the *capital gain that the *head company makes as a result of *CGT event L6 happening as mentioned in section 104-525 of the Income Tax Assessment Act 1997; and
(b)
the *corporate tax rate in respect of taxable income for the income year in which that CGT event happens.
History
S 284-150(3) amended by No 107 of 2003, inserted by No 16 of 2003.
Scheme shortfall amount for cross-border transfer pricing
284-150(4)
Despite subsection (2), your
scheme shortfall amount
for a *scheme to which subsection 284-145(2B) applies is the total amount of additional income tax and *withholding tax you are liable to pay as mentioned in that subsection.
History
S 284-150(4) inserted by No 101 of 2013, s 3 and Sch 2 item 4, applicable: (a) in respect of tax other than withholding tax - in relation to income years starting on or after the date mentioned in subsection 815-15(2) of the Income Tax (Transitional Provisions) Act 1997, as inserted; and (b) in respect of withholding tax - in relation to income derived, or taken to be derived, in income years starting on or after that date.
284-150(5)
Disregard your *scheme shortfall amount for a *scheme to which subsection 284-145(1) applies to the extent that scheme shortfall amount is attributable to additional tax that is, or is part of, your scheme shortfall amount for a scheme to which subsection 284-145(2B) applies.
History
S 284-150(5) inserted by No 101 of 2013, s 3 and Sch 2 item 4, applicable: (a) in respect of tax other than withholding tax - in relation to income years starting on or after the date mentioned in subsection 815-15(2) of the Income Tax (Transitional Provisions) Act 1997, as inserted; and (b) in respect of withholding tax - in relation to income derived, or taken to be derived, in income years starting on or after that date.
Scheme shortfall amount for managed investment trust non-arm's length income
284-150(6)
Despite subsection (2), your scheme shortfall amount for a *scheme to which subsection 284-145(2C) applies is the total amount of additional income tax you are liable to pay as mentioned in that subsection.
History
S 284-150(6) inserted by No 53 of 2016, s 3 and Sch 4 item 8, effective 5 May 2016. For application provision, see note under Division 12A heading.
284-150(7)
Disregard your *scheme shortfall amount for a *scheme to which subsection 284-145(1) applies to the extent that scheme shortfall amount is attributable to additional tax that is, or is part of, your scheme shortfall amount for a scheme to which subsection 284-145(2C) applies.
History
S 284-150(7) inserted by No 53 of 2016, s 3 and Sch 4 item 8, effective 5 May 2016. For application provision, see note under Division 12A heading.
History
S 284-150 inserted by No 91 of 2000.
SECTION 284-155
AMOUNT OF PENALTY
284-155(1)
Work out the *base penalty amount under section 284-160. If the base penalty amount is not increased under section 284-220 or reduced under section 284-225, this is the amount of the penalty.
284-155(2)
Otherwise, use this formula:
| BPA + [BPA × (Increase % − Reduction %)] |
where:
BPA
is the *base penalty amount.
increase %
is the percentage increase (if any) under section 284-220.
reduction %
is the percentage reduction (if any) under section 284-225.
284-155(3)
However, the amount of the penalty is twice the amount worked out under subsection (1) or (2) of this section if:
(a)
you are a *significant global entity during an income year that consists of, or includes all or part of, the accounting period to which your *scheme shortfall amount relates; and
(b)
it is not *reasonably arguable that the adjustment provision does not apply.
History
S 284-155(3) inserted by No 170 of 2015, s 3 and Sch 3 item 1, applicable in relation to any scheme benefit that an entity gets in relation to an income year commencing on or after 1 July 2015, whether the scheme to which the scheme benefit relates was entered into, or commenced to be carried out, before, on or after 1 July 2015.
History
S 284-155 inserted by No 91 of 2000.
SECTION 284-160
BASE PENALTY AMOUNT
: SCHEMES
284-160(1)
The
base penalty amount
for a *scheme to which subsection 284-145(1) or (2C) applies is, subject to section 284-224:
(a)
50% of your *scheme shortfall amount; or
(b)
25% of your scheme shortfall amount if it is *reasonably arguable that the adjustment provision does not apply.
History
S 284-160(1) amended by No 53 of 2016, s 3 and Sch 4 item 9, by inserting "or (2C)", effective 5 May 2016. For application provision, see note under Division 12A heading.
284-160(2)
The
base penalty amount
for a *scheme to which subsection 284-145(2A) applies is, subject to section 284-224:
(a)
25% of your *scheme shortfall amount; or
(b)
10% of your scheme shortfall amount if it is *reasonably arguable that the adjustment provision does not apply.
284-160(3)
The
base penalty amount
for a *scheme to which subsection 284-145(2B) applies is worked out using this table and section 284-224 if relevant:
|
Base penalty amount
|
|
Item
|
Column 1
|
Column 2
|
| |
In this situation:
|
The
base penalty amount
is:
|
| 1 |
having regard to any relevant matters, it is reasonable to conclude that an entity that (alone or with others) entered into or carried out the *scheme, or part of it, did so with the sole or dominant purpose of that entity or another entity getting a *transfer pricing benefit from the scheme |
the sum of: |
| (a) |
50% of your *scheme shortfall amount, to the extent that it is not attributable as mentioned in paragraph (b); and |
| (b) |
25% of your scheme shortfall amount, to the extent (if any) that it is attributable to the entity, or the entity's agent, treating the adjustment provision as applying (including not applying) to a matter (or identical matters) in a particular way that is *reasonably arguable |
| 2 |
item 1 does not apply |
the sum of: |
| (a) |
25% of your *scheme shortfall amount, to the extent that it is not attributable as mentioned in paragraph (b); and |
| (b) |
10% of your scheme shortfall amount, to the extent (if any) that it is attributable to the entity, or the entity's agent, treating the adjustment provision as applying (including not applying) to a matter (or identical matters) in a particular way that is *reasonably arguable |
Note:
For special rules about when transfer pricing treatment is not reasonably arguable, see Subdivision 284-E.
History
S 284-160 substituted by No 101 of 2013, s 3 and Sch 2 item 5, applicable: (a) in respect of tax other than withholding tax - in relation to income years starting on or after the date mentioned in subsection 815-15(2) of the Income Tax (Transitional Provisions) Act 1997, as inserted; and (b) in respect of withholding tax - in relation to income derived, or taken to be derived, in income years starting on or after that date. S 284-160 formerly read:
SECTION 284-160
BASE PENALTY AMOUNT
: SCHEMES
284-160
The
base penalty amount
for a *scheme is, subject to section 284-224:
(a)
for a scheme to which subsection 284-145(1) applies:
(i)
50% of your *scheme shortfall amount; or
(ii)
25% of your scheme shortfall amount if it is *reasonably arguable that the adjustment provision does not apply; or
(b)
for a scheme to which subsection 284-145(2) or (2A) applies:
(i)
25% of your *scheme shortfall amount; or
(ii)
10% of your scheme shortfall amount if it is *reasonably arguable that the adjustment provision does not apply.
S 284-160 amended by No 101 of 2013, s 3 and Sch 2 item 58, by inserting "or (2A)" in para (b), applicable to income years starting on or after 1 July 2012.
S 284-160 amended by No 56 of 2010, s 3 and Sch 6 items 77 and 78, by inserting ", subject to section 284-224" after "*scheme is" and repealing the note, applicable in relation to things done on or after 4 June 2010. The note formerly read:
Note:
Section 284-215 may reduce or eliminate your scheme shortfall amount.
S 284-160 inserted by No 91 of 2000.
SECTION 284-165
EXCEPTION - THRESHOLD FOR PENALTY ARISING FROM CROSS-BORDER TRANSFER PRICING
284-165(1)
You are not liable to an administrative penalty under subsection 284-145(2B) if your *scheme shortfall amount is equal to or less than your *reasonably arguable threshold.
284-165(2)
You are also not liable to an administrative penalty under that subsection if:
(a)
you have the *scheme shortfall amount because of section 284-30 (about trusts); and
(b)
the amount by which the trust would, apart from the application of Subdivision 815-B or 815-C of the Income Tax Assessment Act 1997, have had a greater *net income, or a lesser *tax loss, is equal to or less than the trust's *reasonably arguable threshold.
284-165(3)
You are also not liable to an administrative penalty under that subsection if:
(a)
you have the *scheme shortfall amount because you are a partner in a partnership that participated in the *scheme; and
(b)
the amount by which the partnership would, apart from the application of Subdivision 815-B or 815-C of that Act, have had a greater *net income, or a lesser *partnership loss, is equal to or less than the partnership's *reasonably arguable threshold.
Nil amounts
284-165(4)
For the purposes of this section:
(a)
treat a trust or a partnership that has no *net income for an income year as having a net income for the year of a nil amount; and
(b)
treat a trust that has no *tax loss for an income year as having a tax loss for the year of a nil amount; and
(c)
treat a partnership that has no *partnership loss for an income year as having a partnership loss for the year of a nil amount.
History
S 284-165 inserted by No 101 of 2013, s 3 and Sch 2 item 6, applicable: (a) in respect of tax other than withholding tax - in relation to income years starting on or after the date mentioned in subsection 815-15(2) of the Income Tax (Transitional Provisions) Act 1997, as inserted; and (b) in respect of withholding tax - in relation to income derived, or taken to be derived, in income years starting on or after that date.
Subdivision 284-D - Provisions common to Subdivisions 284-Band 284-C
284-215
284-215
(Repealed) SECTION 284-215 EXCEPTIONS
(Repealed by No 56 of 2010)
History
S 284-215 repealed by No 56 of 2010, s 3 and Sch 6 item 79, applicable in relation to things done on or after 4 June 2010. S 284-215 formerly read:
SECTION 284-215 EXCEPTIONS
284-215(1)
If, apart from this section, you would have a *shortfall amount or a *scheme shortfall amount for an accounting period and:
(a)
your shortfall amount or scheme shortfall amount, or part of it, was caused by you or your agent treating a *taxation law as applying in a particular way; and
(b)
that way agrees with:
(i)
advice given to you or your agent by or on behalf of the Commissioner; or
(ii)
general administrative practice under that law; or
(iii)
a statement in a publication approved in writing by the Commissioner;
your shortfall amount or scheme shortfall amount is reduced to the extent that it was caused by that treatment.
284-215(2)
For the purposes of determining whether you are liable to an administrative penalty, you do not have a *shortfall amount as a result of a statement that is false or misleading in a material particular to the extent that you and your agent (if any) took reasonable care in making the statement.
284-215(3)
(Repealed by No 75 of 2005)
S 284-215 inserted by No 91 of 2000.
SECTION 284-220
INCREASE IN BASE PENALTY AMOUNT
284-220(1)
The *base penalty amount is increased by 20% if:
(a)
you took steps to prevent or obstruct the Commissioner from finding out about a *shortfall amount, or the false or misleading nature of a statement, in relation to which the base penalty amount was calculated; or
(b)
you:
(i)
became aware of such a shortfall amount after a statement had been made to the Commissioner about the relevant *tax-related liability; or
(ii)
became aware of the false or misleading nature of a statement made to the Commissioner or another entity after the statement had been made;
and you did not tell the Commissioner or other entity about it within a reasonable time; or
(c)
the base penalty amount was worked out using item 1, 2 or 3 of the table in subsection 284-90(1) and a base penalty amount for you was worked out under one of those items previously; or
(ca)
the base penalty amount was worked out using item 3A, 3B or 3C of the table in subsection 284-90(1) and a base penalty amount for you was worked out under one of those items previously; or
(d)
the base penalty amount was worked out using item 4, 5 or 6 of that table and a base penalty amount for you was worked out under that item previously; or
(e)
your liability to a penalty arises under subsection 284-75(3) and you were previously liable to a penalty under that subsection.
History
S 284-220(1) amended by No 56 of 2010, s 3 and Sch 6 items 80 to 87, by omitting "for an accounting period" after "The *base penalty amount", inserting ", or the false or misleading nature of a statement," after "*shortfall amount" in para (a), substituting para (b), substituting "previously" for "for a previous accounting period" in para (c), inserting para (ca), substituting "previously" for "for a previous accounting period" in para (d), inserting "previously" after "you were" in para (e) and omitting "for a previous accounting period" after "penalty under that subsection" in para (e), applicable in relation to things done on or after 4 June 2010. Para (b) formerly read:
(b)
you became aware of such a shortfall amount after a statement had been made to the Commissioner about the relevant *tax-related liability and you did not tell the Commissioner about it within a reasonable time; or
S 284-220(1) amended by No 97 of 2008, s 3 and Sch 3 items 183 to 185, by substituting "The *base penalty amount for an accounting period is increased by 20% if" for "The *base penalty amount for your *shortfall amount, or for part of it, for an accounting period is increased by 20% if", substituting "a *shortfall amount in relation to which the base penalty amount was calculated" for "the shortfall amount" in para (a), and substituting "such a shortfall amount" for "the shortfall amount or part" in para (b), effective 3 October 2008.
S 284-220(1) amended by No 75 of 2005.
284-220(2)
The *base penalty amount for your *scheme shortfall amount, or for part of it, for an accounting period is increased by 20% if:
(a)
you took steps to prevent or obstruct the Commissioner from finding out about the scheme shortfall amount or the part; or
(b)
a base penalty amount for you was worked out under section 284-160 for a previous accounting period.
History
S 284-220 inserted by No 91 of 2000.
SECTION 284-224
REDUCTION OF BASE PENALTY AMOUNT IF LAW WAS APPLIED IN AN ACCEPTED WAY
284-224(1)
If, apart from this section, you would have a *base penalty amount because you or your *agent treated a *taxation law as applying in a particular way, and that way agreed with:
(a)
advice given to you or your agent by or on behalf of the Commissioner; or
(b)
general administrative practice under that law; or
(c)
a statement in a publication approved in writing by the Commissioner;
your base penalty amount is reduced to the extent that it was caused by that treatment.
284-224(2)
For the purposes of subsection (1) it does not matter whether the *base penalty amount also relates to:
(a)
a statement; or
(b)
a failure to give the Commissioner a return, notice or other document when required; or
(c)
a *scheme.
History
S 284-224 inserted by No 56 of 2010, s 3 and Sch 6 item 88, applicable in relation to things done on or after 4 June 2010.
SECTION 284-225
REDUCTION OF BASE PENALTY AMOUNT IF YOU VOLUNTARILY TELL THE COMMISSIONER
284-225(1)
The *base penalty amount for your *shortfall amount or *scheme shortfall amount, for part of it or for your false or misleading statement is reduced by 20% if:
(a)
the Commissioner tells you that an examination is to be made of your affairs relating to a *taxation law for a relevant period; and
(b)
after that time, you voluntarily tell the Commissioner, in the *approved form, about the shortfall, the part of it or the false or misleading nature of the statement; and
(c)
telling the Commissioner can reasonably be estimated to have saved the Commissioner a significant amount of time or significant resources in the examination.
History
S 284-225(1) substituted by No 56 of 2010, s 3 and Sch 6 item 90, applicable in relation to things done on or after 4 June 2010. S 284-225(1) formerly read:
284-225(1)
The *base penalty amount for your *shortfall amount or *scheme shortfall amount, or for part of it, for an accounting period is reduced by 20% if:
(a)
the Commissioner tells you that a *tax audit is to be conducted of your financial affairs for that period or a period that includes that period; and
(b)
after that time, you voluntarily tell the Commissioner, in the *approved form, about the shortfall or the part of it; and
(c)
telling the Commissioner can reasonably be estimated to have saved the Commissioner a significant amount of time or significant resources in the audit.
284-225(2)
The *base penalty amount for your *shortfall amount or *scheme shortfall amount, for part of it or for your false or misleading statement is reduced under subsection (3), (4) or (4A) if you voluntarily tell the Commissioner, in the *approved form,about the shortfall amount, the part of it or the false or misleading nature of the statement before:
(a)
the day the Commissioner tells you that an examination is to be made of your affairs relating to a *taxation law for a relevant period; or
(b)
if the Commissioner makes a public statement requesting entities to make a voluntary disclosure by a particular earlier day about a *scheme or transaction that applies to your affairs - that earlier day.
History
S 284-225(2) substituted by No 56 of 2010, s 3 and Sch 6 item 90, applicable in relation to things done on or after 4 June 2010. S 284-225(2) formerly read:
284-225(2)
The *base penalty amount for your *shortfall amount or *scheme shortfall amount, or for part of it, for an accounting period is reduced under subsection (3) or (4) if you voluntarily tell the Commissioner, in the *approved form, about the shortfall amount or the part of it before the earlier of:
(a)
the day the Commissioner tells you that a *tax audit is to be conducted of your financial affairs for that period or a period that includes that period; or
(b)
if the Commissioner makes a public statement requesting entities to make a voluntary disclosure by a particular day about a *scheme or transaction that applies to your financial affairs - that day.
284-225(3)
The *base penalty amount for your *shortfall amount, or for part of it, is:
(a)
reduced by 80% if the shortfall amount, or the part of it, is $1,000 or more; or
(b)
reduced to nil if the shortfall amount, or the part of it, is less than $1,000.
History
S 284-225(3) amended by No 58 of 2006, s 3 and Sch 7 item 167, by substituting "or the part of it," for "or the part of, it", effective 22 June 2006.
284-225(4)
The *base penalty amount for your *scheme shortfall amount, or for part of it, is reduced by 80%.
284-225(4A)
The *base penalty amount for your false or misleading statement that does not result in you having a *shortfall amount is reduced to nil.
History
S 284-225(4A) inserted by No 56 of 2010, s 3 and Sch 6 item 91, applicable in relation to things done on or after 4 June 2010.
284-225(5)
If you voluntarily tell the Commissioner, in the *approved form, about your *shortfall amount or *scheme shortfall amount, part of it or the false or misleading nature of the statement after the Commissioner tells you that an examination is to be conducted of your affairs relating to a *taxation law for a relevant period, the Commissioner may treat you as having done so before being told about the examination if the Commissioner considers it appropriate to do so in the circumstances.
History
S 284-225(5) amended by No 56 of 2010, s 3 and Sch 6 items 92 and 93, by substituting "part of it or the false or misleading nature of the statement after the Commissioner tells you that an examination is to be conducted of your affairs relating to a *taxation law for a relevant period" for "or part of it, after the Commissioner tells you that a *tax audit is to be conducted of your financial affairs" and substituting "the examination" for "the audit", applicable in relation to things done on or after 4 June 2010.
S 284-225 inserted by No 91 of 2000.
Subdivision 284-E - Special rules about unarguable positions for cross-border transfer pricing
History
Subdiv 284-E inserted by No 101 of 2013, s 3 and Sch 2 item 7, applicable: (a) in respect of tax other than withholding tax - in relation to income years starting on or after the date mentioned in subsection 815-15(2) of the Income Tax (Transitional Provisions) Act 1997, as inserted; and (b) in respect of withholding tax - in relation to income derived, or taken to be derived, in income years starting on or after that date.
SECTION 284-250
284-250
UNDOCUMENTED TRANSFER PRICING TREATMENT NOT REASONABLY ARGUABLE
This Division has effect in relation to an entity as if a matter was not *reasonably arguable if:
(a)
the matter is a particular way of applying (including not applying) Subdivision 815-B or 815-C of the Income Tax Assessment Act 1997 to a matter (or identical matters); and
(b)
the entity does not have records that meet the requirements in this Subdivision for the application of the Subdivision mentioned in paragraph (a) to that matter (or those matters) in that way.
Note:
For the Commissioner's power to remit an administrative penalty imposed by this Part, see section 298-20.
History
S 284-250 inserted by No 101 of 2013, s 3 and Sch 2 item 7, applicable: (a) in respect of tax other than withholding tax - in relation to income years starting on or after the date mentioned in subsection 815-15(2) of the Income Tax (Transitional Provisions) Act 1997, as inserted; and (b) in respect of withholding tax - in relation to income derived, or taken to be derived, in income years starting on or after that date.
SECTION 284-255
DOCUMENTATION REQUIREMENTS
284-255(1)
Records kept by an entity meet the requirements in this Subdivision for the application (or non-application) of Subdivision 815-B or 815-C of the Income Tax Assessment Act 1997 to a matter (or identical matters) in a particular way if the records:
(a)
are prepared before the time by which the entity lodges its *income tax return for the income year relevant to the matter (or matters); and
(b)
are in English, or readily accessible and convertible into English; and
(c)
explain the particular way in which the Subdivision applies (or does not apply) to the matter (or matters); and
(d)
explain why the application of the Subdivision to the matter (or matters) in that way best achieves the consistency mentioned in section 815-135 or 815-235 of that Act (as the case requires) (about guidance material).
284-255(2)
Without limiting subsection (1), the records must allow each of the following to be readily ascertained:
(a)
the *arm's length conditions relevant to the matter (or matters);
(b)
the particulars of the method used and comparable circumstances relevant to identifying those arm's length conditions;
(c)
unless the records are for the non-application of the Subdivision to a matter (or matters) - the result that the application of the Subdivision in that particular way, as compared to the non-application of the Subdivision, has for the operation of this Act in relation to the entity;
(d)
for Subdivision 815-B - the actual conditions relevant to the matter (or matters);
(e)
for Subdivision 815-C:
(i)
the actual profits mentioned in paragraph 815-220(1)(a) of that Act and the *arm's length profits, to the extent that they are relevant to the matter (or matters); and
(ii)
the particulars of the activities and circumstances mentioned in subsection 815-225(1) of that Act, to the extent they are relevant to the matter (or matters).
History
S 284-255 inserted by No 101 of 2013, s 3 and Sch 2 item 7, applicable: (a) in respect of tax other than withholding tax - in relation to income years starting on or after the date mentioned in subsection 815-15(2) of the Income Tax (Transitional Provisions) Act 1997, as inserted; and (b) in respect of withholding tax - in relation to income derived, or taken to be derived, in income years starting on or after that date.
Division 286 - Penalties for failing to lodge documents on time
History
Div 286 inserted by No 91 of 2000.
Subdivision 286-A - Guide to Division 286
SECTION 286-1
WHAT THIS DIVISION IS ABOUT
You are liable to an administrative penalty if you are required to give a return, statement, notice or other document by a particular time and you do not do so.
This Division sets out when the penalty applies and how the amounts of the penalty are calculated.
History
S 286-1 amended by No 117 of 2002 and inserted by No 91 of 2000.
Subdivision 286-B - Object of Division
SECTION 286-25
286-25
OBJECT OF DIVISION
The object of this Division is to provide a uniform administrative penalty regime for all *taxation laws to enable administrative penalties to apply for failure to give returns, notices, statements or other documents on time.
History
S 286-25 amended by No 117 of 2002 and inserted by No 91 of 2000.
Subdivision 286-C - Penalties for failing to lodge documents on time
SECTION 286-75
LIABILITY TO PENALTY
286-75(1)
You are liable to an administrative penalty if:
(a)
you are required under a *taxation law to give a return, notice, statement or other document to the Commissioner in the *approved form by a particular day; and
(b)
you do not give the return, notice, statement or document to the Commissioner in the approved form by that day.
Note:
You may not be liable to a penalty in relation to a failure to notify an amount referred to in item 1, 2 or 2A of the table in subsection 389-5(1) during the period provided for by subitem 22(2) of Schedule 23 to the Budget Savings (Omnibus) Act 2016 (see also item 16 of Schedule 3 to the Treasury Laws Amendment (2018 Measures No. 4) Act 2019).
History
S 286-75(1) amended by No 8 of 2019, s 3 and Sch 3 item 13, by substituting the note, effective 23 June 2020. For application provision, see note under s 389-5(1). The note formerly read:
Note:
You may not be liable to a penalty in relation to a failure to notify an amount referred to in item 1 or 2 of the table in section 389-5 during the period provided for by subitem 22(2) of Schedule 23 to the Budget Savings (Omnibus) Act 2016.
S 286-75(1) amended by No 55 of 2016, s 3 and Sch 23 item 20, by inserting the note, effective 1 October 2016. For application provisions, see note under Div 389 heading.
286-75(1A)
However, you are not liable to an administrative penalty under subsection (1) if:
(a)
you engage a *registered tax agent or BAS agent; and
(b)
you give the registered tax agent or BAS agent all relevant taxation information to enable the agent to give a return, notice, statement or other document to the Commissioner in the *approved form by a particular day; and
(c)
the registered tax agent or BAS agent does not give the return, notice, statement or other document to the Commissioner in the approved form by that day; and
(d)
the failure to give the return, notice, statement or other document to the Commissioner did not result from:
(i)
intentional disregard by the registered tax agent or BAS agent of a *taxation law; or
(ii)
recklessness by the agent as to the operation of a taxation law.
History
S 286-75(1A) inserted by No 114 of 2009, s 3 and Sch 1 item 24, applicable in relation to a return, notice, statement or other document required to be given on or after 1 March 2010.
286-75(1B)
If you wish to rely on subsection (1A), you bear an evidential burden in relation to paragraph (1A)(b).
History
S 286-75(1B) inserted by No 114 of 2009, s 3 and Sch 1 item 24, applicable in relation to a return, notice, statement or other document required to be given on or after 1 March 2010.
286-75(2)
Subsection (1) does not apply to a return, notice, statement or other document under any of these Acts:
(a)
the Superannuation Contributions Tax (Assessment and Collection) Act 1997;
(b)
the Superannuation Guarantee (Administration) Act 1992; or
(c)
the Superannuation (Self Managed Superannuation Funds) Supervisory Levy Imposition Act 1991.
286-75(2AA)
You are also liable to an administrative penalty if:
(a)
you are required under section 136-90 (about commutation authorities) to give a notice to an entity (other than the Commissioner) in the *approved form by a particular day; and
(b)
you do not give the notice in the approved form to the entity by that day.
History
S 286-75(2AA) amended by No 81 of 2016, s 3 and Sch 10 item 41, by substituting para (a), effective 1 July 2018. For application provisions, see note under Div 131 heading. Para (a) formerly read:
(a)
you are required to give a notice to an entity (other than the Commissioner) in the *approved form by a particular day under any of the following provisions:
(i)
section 96-42 (about releasing superannuation);
(ii)
section 136-90 (about commutation authorities); and
S 286-75(2AA) amended by No 81 of 2016, s 3 and Sch 1 item 20, by substituting para (a), effective 1 January 2017 and applicable on and after 1 July 2017. Para (a) formerly read:
(a)
you are required under section 96-42 (releasing superannuation) to give a notice to an entity (other than the Commissioner) in the *approved form by a particular day; and
S 286-75(2AA) inserted by No 21 of 2015, s 3 and Sch 1 item 46, applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
Former s 286-75(2AA) repealed by No 96 of 2014, s 3 and Sch 1 item 91, effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. S 286-75(2AA) formerly read:
286-75(2AA)
You are also liable to an administrative penalty if:
(a)
you are required under Division 121 (MRRT reporting) to give information to an entity (other than the Commissioner) in a particular form by a particular day; and
(b)
you do not give the information to the entity in that form by that day.
Former s 286-75(2AA) inserted by No 14 of 2012, s 3 and Sch 1 item 24, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
286-75(2AB)
You are also liable to an administrative penalty if:
(a)
you are required under section 276-455 of the Income Tax Assessment Act 1997 (AMMA statements) to give information to an entity (other than the Commissioner) by a particular day; and
(b)
you do not give the information to the entity by that day.
History
S 286-75(2AB) inserted by No 53 of 2016, s 3 and Sch 1 item 2, effective 5 May 2016. For application provision, see note under Division 12A heading.
286-75(2A)
You are also liable to an administrative penalty if:
(a)
you are required under Division 390 to give a statement to an entity (other than the Commissioner) in the *approved form by a particular day; and
(b)
you do not give the statement in the approved form to the other entity by that day.
History
S 286-75(2A) inserted by No 9 of 2007, s 3 and Sch 4 item 11, applicable in relation to things that are done and events that occur on or after 1 July 2007.
286-75(2B)
(Repealed by No 70 of 2015)
History
S 286-75(2B) repealed by No 70 of 2015, s 3 and Sch 1 item 167, effective 1 July 2015. S 286-75(2B) formerly read:
286-75(2B)
You are also liable to an administrative penalty if:
(a)
you are required under Division 391 to give a statement to an entity (other than the Commissioner) in the *approved form by a particular day; and
(b)
you do not give the statement in the approved form to the entity by that day.
S 286-75(2B) inserted by No 45 of 2008, s 3 and Sch 1 item 64, effective 26 June 2008.
286-75(2BA)
You are also liable to an administrative penalty if:
(a)
you are required under Division 392 (Employee share scheme reporting) to give a statement to an entity (other than the Commissioner) in the *approved form by a particular day; and
(b)
you do not give the statement in the approved form to the entity by that day.
History
S 286-75(2BA) inserted by No 133 of 2009, s 3 and Sch 1 item 80, applicable in relation to the ESS interests mentioned in subsections 83A-5(1) and (2) of the Income Tax (Transitional Provisions) Act 1997.
286-75(2C)
(Repealed by No 70 of 2015)
History
S 286-75(2C) repealed by No 70 of 2015, s 3 and Sch 1 item 167, effective 1 July 2015. S 286-75(2C) formerly read:
286-75(2C)
You are also liable to an administrative penalty if:
(a)
you are required under section 20 of the First Home Saver Accounts Act 2008 to give a notice to an entity in the *approved form by a particular day; and
(b)
you do not give the notice in the approved form to the entity by that day.
S 286-75(2C) inserted by No 45 of 2008, s 3 and Sch 1 item 64, effective 26 June 2008.
286-75(3)
(Repealed by No 93 of 2011)
History
S 286-75(3) repealed by No 93 of 2011, s 3 and Sch 3 item 110, effective 8 September 2011. For application, savings and transitional provisions see note under s 14ZW(1). S 286-75(3) formerly read:
286-75(3)
You are also liable to an administrative penalty if:
(a)
you are required under subsection 73BAE(2) of the Income Tax Assessment Act 1936 to give written details of an initial clawback amount (see section 73C of that Act) to another company by a particular day; and
(b)
you do not give the details to the other company by that day.
S 286-75(3) inserted by No 117 of 2002.
286-75(4)
You are also liable to an administrative penalty if:
(a)
you are required under section 713-540 of the Income Tax (Transitional Provisions) Act 1997 to notify another entity of the happening of an event by a particular day; and
(b)
you do not notify the other entity of the happening of that event by that day.
History
S 286-75(4) inserted by No 16 of 2003.
286-75(5)
Subsection (6) applies if:
(a)
an entity is liable to an administrative penalty under subsection (1) or (2A) as the *superannuation provider in relation to a *self managed superannuation fund; and
(b)
the entity is a body corporate.
History
S 286-75(5) inserted by No 9 of 2007, s 3 and Sch 5 item 34, applicable on and after 1 July 2007.
286-75(6)
The directors of the body corporate at the time it becomes liable to the penalty are jointly and severally liable to pay the amount of the *tax-related liability in respect of the penalty.
Note:
See section 265-45 for rules on joint liability.
History
S 286-75(6) inserted by No 9 of 2007, s 3 and Sch 5 item 34, applicable on and after 1 July 2007.
286-75(7)
You are also liable to an administrative penalty if:
(a)
you are required under subsections 57-7(2) and (3) of the A New Tax System (Goods and Services Tax) Act 1999 to notify another entity by a particular day; and
(b)
you do not give the notice in the *approved form to the entity by that day.
History
S 286-75(7) inserted by No 52 of 2016, s 3 and Sch 2 item 17A, applicable in relation to working out net amounts for tax periods starting on or after 1 October 2016.
History
S 286-75 inserted by No 91 of 2000.
SECTION 286-80
AMOUNT OF PENALTY
286-80(1)
The amount of the penalty is worked out in this way:
(a)
work out the *base penalty amount under subsection (2); and
(b)
work out whether the base penalty amount is increased under subsection (3), (4) or (4A).
History
S 286-80(1) amended by No 27 of 2017, s 3 and Sch 2 item 5, by substituting "subsection (3), (4) or (4A)" for "subsection (3) or (4)" in para (b), applicable in relation to any returns, notices or other documents referred to in subsection 286-75(1) in Schedule 1 to the Taxation Administration Act 1953 that are required to be given at or after 1 July 2017.
286-80(2)
The
base penalty amount
is:
(a)
for failing to give a return, notice or other document on time or in the *approved form, as mentioned in subsection 286-75(1), (2AA), (2AB), (2A), (2B), (2BA) or (2C) - 1 penalty unit for each period of 28 days or part of a period of 28 days starting on the day when the document is due and ending when you give it (up to a maximum of 5 penalty units); or
(b)
(Repealed by No 93 of 2011)
(c)
for failing to notify the happening of an event as mentioned in subsection 286-75(4) - 1 penalty unit for each period of 28 days or part of a period of 28 days starting on the day when the notification is due and ending when you notify the happening of the event (up to a maximum of 5 penalty units).
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Example:
An entity lodges a return 31 days late. The base penalty amount under subsection (2) is 2 penalty units.
History
S 286-80(2) amended by No 55 of 2017, s 3 and Sch 1 item 23, by inserting "(2AA)," in para (a), applicable in relation to a notice mentioned in subsection 286-75(2AA) in Schedule 1 to the Taxation Administration Act 1953 that is required to be given on or after 22 June 2017.
S 286-80(2) amended by No 53 of 2016, s 3 and Sch 1 item 3, by inserting "(2AB)," in para (a), effective 5 May 2016. For application provision, see note under Division 12A heading.
S 286-80(2) amended by No 96 of 2014, s 3 and Sch 1 item 92, by omitting "(2AA)," after "286-75(1)," from para (a), effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 286-80(2) amended by No 14 of 2012, s 3 and Sch 1 item 25, byinserting "(2AA)," in para (a), effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
S 286-80(2) amended by No 93 of 2011, s 3 and Sch 3 item 111, by repealing para (b), effective 8 September 2011. For application, savings and transitional provisions see note under s 14ZW(1). Para (b) formerly read:
(b)
for failing to give written details as mentioned in subsection 286-75(3) - 1 penalty unit for each period of 28 days or part of a period of 28 days starting on the day when the details are due and ending when you give the details (up to a maximum of 5 penalty units); or
S 286-80(2) amended by No 133 of 2009, s 3 and Sch 1 item 81, by inserting ", (2BA)" after "(2B)" in para (a), applicable in relation to the ESS interests mentioned in subsections 83A-5(1) and (2) of the Income Tax (Transitional Provisions) Act 1997.
S 286-80(2)(a) amended by No 45 of 2008, s 3 and Sch 1 item 65, by substituting ", (2A), (2B) or (2C)" for "or (2A)", effective 26 June 2008.
S 286-80(2)(a) substituted by No 9 of 2007, s 3 and Sch 4 item 12, applicable in relation to things that are done and events that occur on or after 1 July 2007. Para (a) formerly read:
(a)
for failing to lodge a return, notice or other document on time or in the *approved form - 1 penalty unit for each period of 28 days or part of a period of 28 days starting on the day when the document is due and ending when you give it to the Commissioner (up to a maximum of 5 penalty units); or
S 286-80(2) amended by No 16 of 2003 and substituted by No 117 of 2002.
286-80(3)
The *base penalty amount is multiplied by 2 if:
(a)
the entity concerned is a *medium withholder for the month in which the return, notice or other document was required to be given; or
(b)
the entity's assessable income for the income year in which the return, notice or other document is required to be given is more than $1 million but less than $20 million; or
(c)
the entity's *current GST turnover worked out at a time in the month in which the return, notice or other document was required to be given is more than $1 million but less than $20 million.
History
S 286-80(3) amended by No 80 of 2007, s 3 and Sch 2 item 66, by substituting "GST turnover" for "annual turnover" in para (c), applicable in relation to the year starting on 1 July 2007 and later years.
286-80(4)
The *base penalty amount is multiplied by 5 if:
(a)
the entity concerned is a *large withholder for the month when the return, notice or other document was required to be given; or
(b)
the entity's assessable income for the income year in which the return, notice or other document is required to be given is $20 million or more; or
(c)
the entity's *current GST turnover worked out at a time in the month in which the return, notice or other document was required to be given is $20 million or more.
History
S 286-80(4) amended by No 80 of 2007, s 3 and Sch 2 item 66, by substituting "GST turnover" for "annual turnover" in para (c), applicable in relation to the year starting on 1 July 2007 and later years.
286-80(4A)
Neither subsection (3) nor (4) applies to the entity, and the *base penalty amount is multiplied by 500, if:
(a)
the failure referred to in subsection (2) is a failure to give a return, notice or other document on time or in the *approved form, as mentioned in subsection 286-75(1); and
(b)
on or before the day the return, notice or other document is required to be given:
(i)
the Commissioner has made an assessment of the entity's income tax for one or more income years; or
(ii)
the Commissioner has made a determination under subsection 960-555(3) of the Income Tax Assessment Act 1997 in relation to the entity, or in relation to the *global parent entity for the group of which the entity is a member, for a period; or
(iii)
the entity has given the Commissioner statements in accordance with Subdivision 815-E of that Act for an income year or another 12 month period; or
(iv)
the entity was a *subsidiary member of a *consolidated group or a *MEC group for one or more income years, and the Commissioner has made an assessment of the income tax of another entity that was a *member of the group for one or more of those income years; and
(c)
the entity was a *significant global entity for:
(i)
whichever of those income years or periods that ends on the most recent day; or
(ii)
if more than one of them ends on that most recent day - any of those income years or periods that ends on that most recent day.
Note:
For subparagraph (b)(iii), an entity may be allowed to give statements for a 12 month period other than an income year (see section 815-360 of the Income Tax Assessment Act 1997).
History
S 286-80(4A) amended by No 64 of 2020, s 3 and Sch 3 items 138 and 139, by substituting "period; or" for "period; and" in para (b)(iii) and inserting para (b)(iv), effective 1 July 2020 and applicable in relation to a failure to give a return, notice or other document as mentioned in paragraph 286-80(4A)(a) in Schedule 1 to the Taxation Administration Act 1953 if the return, notice or document was due on or after the start of the day on which the Bill that became this Act was introduced into the House of Representatives.
S 286-80(4A) inserted by No 27 of 2017, s 3 and Sch 2 item 6, applicable in relation to any returns, notices or other documents referred to in subsection 286-75(1) in Schedule 1 to the Taxation Administration Act 1953 that are required to be given at or after 1 July 2017.
286-80(4B)
However, subsection (4A) is taken never to have applied to the entity in relation to the day the return, notice or other document is required to be given if:
(a)
the Commissioner makes an assessment of:
(i)
the entity's income tax for the income year that includes that day; or
(ii)
if the entity was a *subsidiary member of a *consolidated group or a *MEC group for the income year that includes that day - the income tax, for that income year, of another *member of that group; and
(b)
the entity is not a *significant global entity for that income year.
History
S 286-80(4B) amended by No 64 of 2020, s 3 and Sch 3 item 140, by substituting para (a), effective 1 July 2020 and applicable in relation to a failure to give a return, notice or other document as mentioned in paragraph 286-80(4A)(a) in Schedule 1 to the Taxation Administration Act 1953 if the return, notice or document was due on or after the start of the day on which the Bill that became this Act was introduced into the House of Representatives. Para (a) formerly read:
(a)
the Commissioner makes an assessment of the entity's income tax for the income year that includes that day; and
S 286-80(4B) inserted by No 27 of 2017, s 3 and Sch 2 item 6, applicable in relation to any returns, notices or other documents referred to in subsection 286-75(1) in Schedule 1 to the Taxation Administration Act 1953 that are required to be given at or after 1 July 2017.
286-80(5)
In working out the *base penalty amount, the amount of a penalty unit is the amount applying at the start of the relevant 28 day period.
286-80(6)
The fact that you have not yet given the relevant return, notice or other document does not prevent the Commissioner notifying you that you are liable to an administrative penalty under this Subdivision. That penalty may be later increased under this section.
Note:
The Commissioner is required to notify you of an administrative penalty: see section 298-10.
History
S 286-80(6) amended by No 9 of 2007, s 3 and Sch 4 item 13, by substituting "given" for "lodged", applicable in relation to things that are done and events that occur on or after 1 July 2007.
History
S 286-80 inserted by No 91 of 2000.
Division 288 - Miscellaneous administrative penalties
History
Div 288 heading substituted by No 91 of 2000.
Div 288 inserted by No 179 of 1999.
288-5
288-5
(Repealed) SECTION 288-5 ELECTRONIC NOTIFICATION OF BAS AMOUNTS
(Repealed by No 91 of 2000)
View history note
History
S 288-5 inserted by No 179 of 1999.
SECTION 288-10
288-10
PENALTY FOR NON-ELECTRONIC NOTIFICATION
An entity that:
(a)
under subsection 31-25(2) of the *GST Act, is required to *lodge a *GST return electronically; or
(aa)
under subsection 45-20(2A) in this Schedule, is required to give a notification electronically; or
(b)
under section 388-80 in this Schedule, is required to notify another *BAS amount electronically;
but lodges, gives or notifies it in another way, is liable to an administrative penalty of 5 penalty units.
Note 1:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Note 2:
Division 298 contains machinery provisions for administrative and civil penalties.
History
S 288-10 amended by No 124 of 2013, s 3 and Sch 1 items 34 and 35, by inserting para (aa) and substituting "lodges, gives or notifies" for "lodges or notifies", applicable to starting instalment months that start on or after 1 January 2014. For application and transitional provisions, see note under s 45-138.
S 288-10 amended by No 32 of 2006, s 3 and Sch 3 item 12, by inserting "and civil" in note 2, applicable in relation to conduct engaged in on or after 6 April 2006.
S 288-10 amended by No 32 of 2006, No 101 of 2004, No 91 of 2000 and inserted by No 179 of 1999.
288-15
288-15
(Repealed) SECTION 288-15 ELECTRONIC PAYMENT OF TAX DEBTS
(Repealed by No 91 of 2000)
History
S 288-15 inserted by No 179 of 1999.
SECTION 288-20
288-20
PENALTY FOR NON-ELECTRONIC PAYMENT
An entity that:
(a)
under subsection 33-10(2) of the *GST Act, is required to pay an *assessed net amount for a tax period electronically; or
(b)
under section 8AAZMA, or subsection 16-85(1) or section 45-72 in this Schedule, is required to pay an amount electronically;
but pays it another way, is liable to an administrative penalty of 5 penalty units for each payment of one or more such amounts.
Note 1:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Note 2:
Division 298 contains machinery provisions for administrative and civil penalties.
History
S 288-20 amended by No 124 of 2013, s 3 and Sch 1 item 36, by inserting "or section 45-72" in para (b), applicable to starting instalment months that start on or after 1 January 2014. For application and transitional provisions, see note under s 45-138.
S 288-20 amended by No 39 of 2012, s 3 and Sch 1 item 221, by substituting "an *assessed net amount" for "a *net amount" in para (a), effective 1 July 2012. For application provisions see note under s 8AAZLG(2).
S 288-20 amended by No 32 of 2006, s 3 and Sch 3 item 13, by inserting "and civil" in note 2, applicable in relation to conduct engaged in on or after 6 April 2006.
S 288-20 amended by No 101 of 2004, No 91 of 2000 and inserted by No 179 of 1999.
SECTION 288-25
PENALTY FOR FAILURE TO KEEP OR RETAIN RECORDS
288-25(1)
You are liable to an administrative penalty of 20 penalty units if:
(a)
a provision of a *taxation law requires you to keep or retain a record; and
(b)
you do not keep or retain that record in the manner required by that law.
288-25(2)
Subsection (1) does not apply to:
(a)
documents required to be retained under Part X of the Fringe Benefits Tax Assessment Act 1986 (about statutory evidentiary documents); or
(b)
documents required to be kept or retained under Division 900 of the Income Tax Assessment Act 1997 (about substantiation of expenses); or
(c)
if you are given a *tax-records education direction - documents to which a record-keeping failure specified in the direction relates, unless you have not complied with the direction.
Note 1:
For paragraph (c):
(a) for tax-records education directions, see section 384-12; and
(b) for whether you have complied with the direction, see subsection 384-15(3).
Note 2:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
History
S 288-25(2) amended by No 84 of 2022, s 3 and Sch 1 items 1-3, by substituting "expenses); or" for "expenses)." in para (b), inserting para (c) and substituting "Note 2" for "Note" in the note, effective 1 January 2023.
History
S 288-25 inserted by No 91 of 2000.
SECTION 288-30
288-30
PENALTY FOR FAILURE TO RETAIN OR PRODUCE DECLARATIONS
You are liable to an administrative penalty of 20 penalty units if:
(a)
a provision of a *taxation law requires you to retain or produce a declaration you made about an agent giving an *approved form to the Commissioner on your behalf; and
(b)
you do not retain or produce that declaration in the manner required by that law.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
History
S 288-30 inserted by No 91 of 2000.
SECTION 288-35
288-35
PENALTY FOR PREVENTING ACCESS ETC.
You are liable to an administrative penalty of 20 penalty units if:
(a)
a provision of a *taxation law confers a power on an officer authorised under that law:
(i)
to enter or remain on land, premises or a place that you occupy; or
(ii)
to have access to documents, goods or other property in your possession; or
(iii)
to inspect, copy or take extracts from documents in your possession; or
(iv)
to inspect, examine, count, measure, weigh, gauge, test or analyse any goods or other property in your possession and, to that end, take samples; and
(b)
you refuse to provide the officer with all reasonable facilities for the officer effectively to exercise that power in accordance with that law.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
History
S 288-35 inserted by No 91 of 2000.
SECTION 288-40
288-40
PENALTY FOR FAILING TO REGISTER OR CANCEL REGISTRATION
You are liable to an administrative penalty of 20 penalty units if you fail to apply for registration, or to apply for cancellation of registration, as required by the *GST Act.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
History
S 288-40 inserted by No 92 of 2000.
SECTION 288-45
PENALTY FOR FAILING TO ISSUE TAX INVOICE ETC.
288-45(1)
You are liable to an administrative penalty of 20 penalty units if you fail to issue a tax invoice as required by section 29-70 of the *GST Act.
288-45(2)
You are liable to an administrative penalty of 20 penalty units if you fail to issue an adjustment note as required by section 29-75 of the *GST Act.
288-45(2A)
You are liable to an administrative penalty of 20 penalty units if you fail to give a notice as required by subsection 84-89(3) of the *GST Act.
History
S 288-45(2A) inserted by No 77 of 2017, s 3 and Sch 1 item 63, effective 1 July 2017.
288-45(3)
You are liable to an administrative penalty of 20 penalty units if you fail to issue a third party adjustment note as required by section 134-20 of the *GST Act.
History
S 288-45(3) inserted by No 21 of 2010, s 3 and Sch 1 item 27, applicable in relation to payments made on or after 1 July 2010.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
History
S 288-45 inserted by No 92 of 2000.
SECTION 288-46
288-46
PENALTY FOR FAILING TO ENSURE TAX INFORMATION ABOUT SUPPLIES OF LOW VALUE GOODS IS INCLUDED IN CUSTOMS DOCUMENTS
You are liable to an administrative penalty of 20 penalty units if:
(a)
you are required by section 84-93 of the *GST Act to ensure that the information set out in subsection 84-93(2) of that Act is included in one or more of the documents referred to in subsection 84-93(3) of that Act; but
(b)
you fail to take reasonable steps to do so.
History
S 288-46 inserted by No 77 of 2017, s 3 and Sch 1 item 64, effective 1 July 2017.
SECTION 288-50
288-50
PENALTY FOR BOTH PRINCIPAL AND AGENT ISSUING CERTAIN DOCUMENTS
An entity is liable to an administrative penalty of 20 penalty units if both the entity and its agent issue:
(a)
separate tax invoices relating to the same taxable supply, contrary to subsection 153-15(2) of the *GST Act; or
(b)
separate adjustment notes, or third party adjustment notes, for the same decreasing adjustment, contrary to subsection 153-20(2) of that Act.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
History
S 288-50 amended by No 21 of 2010, s 3 and Sch 1 item 28, by inserting ", or third party adjustment notes," in para (b), applicable in relation to payments made on or after 1 July 2010.
S 288-50 inserted by No 92 of 2000.
SECTION 288-70
ADMINISTRATIVE PENALTIES FOR LIFE INSURANCE COMPANIES
Complying superannuation asset pool - calculation of an amount
288-70(1)
A *life insurance company is liable to an administrative penalty if the company:
(a)
is required to calculate a particular amount under section 320-175 of the Income Tax Assessment Act 1997; but
(b)
fails to do so within the period of 60 days that is required by that section.
Complying superannuation asset pool - transfer following valuation
288-70(2)
A *life insurance company is liable to an administrative penalty if the company:
(a)
is required to transfer assets having a particular *transfer value from its *complying superannuation assets under subsection 320-180(1) of the Income Tax Assessment Act 1997; but
(b)
fails to do so within the period of 30 days that is required by subsection 320-180(2) of that Act.
History
S 288-70(2) amended by No 70 of 2015, s 3 and Sch 1 item 170, by substituting "superannuation" for "superannuation/FHSA" in para (a), effective 1 July 2015.
S 288-70(2) amended by No 45 of 2008, s 3 and Sch 4 item 64, by substituting "complying superannuation/FHSA" for "virtual PST" in para (a), effective 26 June 2008.
Segregated exempt assets - calculation of an amount
288-70(3)
A *life insurance company is liable to an administrative penalty if the company:
(a)
is required to calculate a particular amount under section 320-230 of the Income Tax Assessment Act 1997; but
(b)
fails to do so within the period of 60 days that is required by that section.
Segregated exempt assets - transfer following valuation
288-70(4)
A *life insurance company is liable to an administrative penalty if the company:
(a)
is required to transfer assets having a particular *transfer value from its *segregated exempt assets under subsection 320-235(1) of the Income Tax Assessment Act 1997; but
(b)
fails to do so within the period of 30 days that is required by subsection 320-235(2) of that Act.
How to work out the administrative penalty
288-70(5)
The administrative penalty under subsection (1), (2), (3) or (4) for a failure to make a calculation or transfer is equal to 5 penalty units for each period of 28 days or part of a period of 28 days:
(a)
starting immediately after the end of the period mentioned in paragraph (b) of that subsection; and
(b)
ending at the end of the day on which the calculation or transfer is made.
However, the maximum penalty for that failure must not exceed 25 penalty units.
Note 1:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Note 2:
Division 298 contains machinery provisions for the penalties provided by this section.
History
S 288-70 inserted by No 83 of 2004.
SECTION 288-75
ADMINISTRATIVE PENALTY FOR A COPYRIGHT OR RESALE ROYALTY COLLECTING SOCIETY
288-75(1)
A *copyright collecting society is liable to an administrative penalty of 20 penalty units if the society fails to give a notice as required by section 410-5 of the Income Tax Assessment Act 1997.
288-75(2)
The *resale royalty collecting society is liable to an administrative penalty of 20 penalty units if the society fails to give a notice as required by section 410-50 of the Income Tax Assessment Act 1997.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
History
S 288-75 substituted by No 126 of 2009, s 3 and Sch 1 item 19, effective 9 June 2010, and applicable to the 2009/10 income year and later income years. S 288-75 formerly read:
SECTION 288-75 ADMINISTRATIVE PENALTY FOR A COPYRIGHT COLLECTING SOCIETY
288-75
A *copyright collecting society is liable to an administrative penalty of 20 penalty units if the society fails to give a notice to a *member as required by section 410-5 of the Income Tax Assessment Act 1997.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
S 288-75 inserted by No 23 of 2005.
SECTION 288-80
ADMINISTRATIVE PENALTY FOR OVER DECLARING CONDUIT FOREIGN INCOME
288-80(1)
An *Australian corporate tax entity is liable to an administrative penalty if:
(a)
the entity makes a *frankable distribution that has an *unfranked part; and
(b)
the entity declares an amount of the unfranked part to be *conduit foreign income; and
(c)
the sum of the amounts declared exceeds the amount of the entity's conduit foreign income at:
(i)
if the entitydeclares the distribution before making the distribution - the time of the declaration; or
(ii)
otherwise - the time the distribution is made.
288-80(2)
The amount of the penalty is the sum of the amounts worked out under subsections (3) and (4).
288-80(3)
The amount is:
*Corporate
tax rate |
× |
Excess mentioned
in paragraph (1)(c) |
× |
Australian membership
interests
Total membership
interests |
where:
Australian membership interests
means the number of *membership interests or *non-share equity interests in the entity that are not covered by the definition of
foreign membership interests
in subsection (4).
total membership interests
means the number of *membership interests or *non-share equity interests in the entity held by entities that are entitled to receive the *distribution.
History
S 288-80(3) amended by No 12 of 2012, s 3 and Sch 6 item 182, by substituting the formula, effective 3 October 2008. The formula formerly read:
| "*General company tax rate |
× |
Excess referred to in paragraph (1)(c) |
× |
Australian membership interests |
| Total membership interests" |
288-80(4)
The amount is:
Applicable
withholding
tax rate |
× |
Excess referred to
in paragraph (1)(c) |
× |
Foreign membership
interests
Total membership
interests |
where:
applicable withholding tax rate
means 50% of the rate of tax set out in paragraph 7(a) of the Income Tax (Dividends, Interest and Royalties Withholding Tax) Act 1974.
History
Definition of "applicable withholding tax rate" amended by No 143 of 2007, s 3 and Sch 7 item 102, by substituting "paragraph 7(a)" for "subparagraph 7(a)(ii)", effective 24 September 2007.
foreign membership interests
means the number of *membership interests or *non-share equity interests in the entity held by entities that are entitled to receive the *distribution and in relation to whom the entity is required to withhold amounts under section 12-210 disregarding the operation of section 12-300 (about limits on the amount withheld).
total membership interests
means the number of *membership interests or *non-share equity interests in the entity held by entities that are entitled to receive the *distribution.
History
S 288-80 inserted by No 147 of 2005.
SECTION 288-85
288-85
FAILURE BY REPORTING FINANCIAL INSTITUTION TO OBTAIN SELF-CERTIFICATION
An entity that:
(a)
is:
(i)
a Reporting Financial Institution (within the meaning of the *CRS); or
(ii)
an institution that a notice under subsection 396-130(5) requires to act as a Reporting Financial Institution; and
(b)
is required to obtain a self-certification, in relation to an account maintained by the institution, when applying the due diligence procedures described in the CRS; and
(c)
fails to obtain the self-certification:
(i)
if the account is a Reportable Account (within the meaning of the CRS) or an account that a notice under subsection 396-130(2) requires the entity to treat as a Reportable Account - by the time by which a statement under subsection 396-105(2) relating to the account must be given to the Commissioner; or
(ii)
otherwise - by the time by which such a statement would be required to be given to the Commissioner if the account were such a Reportable Account;
is liable to an administrative penalty of 1 penalty unit.
History
S 288-85 inserted by No 23 of 2016, s 3 and Sch 1 item 2, effective 19 March 2016. For application and transitional provision, see note under Subdiv 396-C heading.
Former s 288-85 repealed by No 56 of 2010, s 3 and Sch 6 item 94, applicable in relation to things done on or after 4 June 2010. S 288-85 formerly read:
SECTION 288-85 FALSE OR MISLEADING STATEMENTS IN APPROVED FORMS GIVEN BY TRUSTEE OF SELF MANAGED SUPERANNUATION FUND, ETC.
288-85(1)
This section applies to the trustee of:
(a)
a *self managed superannuation fund; or
(b)
a fund that is treated as a self managed superannuation fund under subsection 10(4) of the Superannuation Industry (Supervision) Act 1993).
288-85(2)
The trustee is liable to an administrative penalty of 20 penalty units if:
(a)
the trustee gives the Commissioner or another entity a statement in an *approved form in relation to the fund; and
(b)
the statement is false or misleading in a material particular, whether because of things in it or omitted from it.
288-85(3)
Subsection (4) applies if:
(a)
a trustee is liable to an administrative penalty under subsection (2); and
(b)
the trustee is a body corporate.
288-85(4)
The directors of the body corporate at the time it becomes liable to the penalty are jointly and severally liable to pay the amount of the *tax-related liability in respect of the penalty.
Note:
See section 265-45 for rules on joint liability.
Former s 288-85 inserted by No 9 of 2007, s 3 and Sch 5 item 35, applicable on and after 1 July 2007.
288-90
288-90
(Repealed) SECTION 288-90 FAILING TO GIVE RELEASE AUTHORITY FOR EXCESS NON-CONCESSIONAL CONTRIBUTIONS TAX
(Repealed by No 81 of 2016)
History
History
S 288-90 repealed by No 81 of 2016, s 3 and Sch 10 item 42, effective 1 July 2018. For application provisions, see note under Div 131 heading. S 288-90 formerly read:
SECTION 288-90 FAILING TO GIVE RELEASE AUTHORITY FOR EXCESS NON-CONCESSIONAL CONTRIBUTIONS TAX
288-90
A person to whom the Commissioner has given a release authority in accordance with subsection 292-405(1) of the Income Tax Assessment Act 1997 and who fails to comply with subsection 292-410(2) of that Act in relation to the release authority is liable to an administrative penalty of 20 penalty units.
S 288-90 amended by No 21 of 2015, s 3 and Sch 1 item 47, by substituting "subsection 292-405(1)" for "paragraph 292-405(1)(b)", applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
S 288-90 inserted by No 9 of 2007, s 3 and Sch 1 item 23, applicable to the 2007-2008 financial year and later years.
SECTION 288-95
FAILING TO COMPLY ETC. WITH RELEASE AUTHORITY
288-95(1)
(Repealed by No 81 of 2016)
History
S 288-95(1) repealed by No 81 of 2016, s 3 and Sch 10 item 43, effective 1 July 2018. For application provisions, see note under Div 131 heading. S 288-95(1) formerly read:
288-95(1)
A *superannuation provider that has been given a release authority in accordance with section 292-410 of the Income Tax Assessment Act 1997 and that fails to comply with subsection 292-415(1) of that Act is liable to an administrative penalty of 20 penalty units.
288-95(2)
A *superannuation provider that has been given a transitional release authority in accordance with section 292-80B of the Income Tax (Transitional Provisions) Act 1997 and that fails to comply with subsection 292-80C(1) of that Act is liable to an administrative penalty of 20 penalty units.
288-95(3)
A *superannuation provider that fails to comply with section 131-35 (about release authorities for superannuation) is liable to an administrative penalty of 20 penalty units.
History
S 288-95(3) amended by No 81 of 2016, s 3 and Sch 10 item 44, by substituting "131-35 (about release authorities for superannuation)" for "96-20 (about release authority for excess superannuation contributions)", effective 1 July 2018. For application provisions, see note under Div 131 heading.
S 288-95(3) amended by No 21 of 2015, s 3 and Sch 1 item 48, by substituting "superannuation" for "concessional", applicable in relation to non-concessional contributions for the 2013-14 financial year and later financial years.
S 288-95(3) substituted by No 118 of 2013, s 3 and Sch 1 item 35, effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading. S 288-95(3) formerly read:
288-95(3)
A *superannuation provider that has been issued with a release authority in accordance with section 292-420 of the Income Tax Assessment Act 1997 and that fails to comply with paragraph 292-420(4)(a) of that Act is liable to an administrative penalty of 20 penalty units.
S 288-95(3) inserted by No 75 of 2012, s 3 and Sch 4 item 16, applicable in relation to excess concessional contributions for the financial year beginning on 1 July 2011 and later financial years.
288-95(4)
A *superannuation provider that fails to comply with section 135-75 (about release authorities for debt account discharge liabilities) is liable to an administrative penalty of 20 penalty units.
History
S 288-95(4) amended by No 81 of 2016, s 3 and Sch 10 item 45, by substituting "debt account discharge liabilities" for "Division 293 tax", effective 1 July 2018. For application provisions, see note under Div 131 heading.
S 288-95(4) inserted by No 82 of 2013, s 3 and Sch 3 item 28, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
History
S 288-95 inserted by No 9 of 2007, s 3 and Sch 1 item 23, applicable to the 2007-2008 financial year and later years.
SECTION 288-100
EXCESS MONEY PAID UNDER RELEASE AUTHORITY
288-100(1)
A person is liable for an administrative penalty of 20 penalty units if:
(a)
the person gives one or more *superannuation providers a release authority in accordance with section 292-80B of the Income Tax (Transitional Provisions) Act 1997; and
(b)
the total of the amounts paid by the superannuation provider or providers to the person and the Commissioner as a result of being given the release authority exceeds the amount required to be paid in respect of the release authority under section 292-80C of that Act.
History
History
S 288-100(1) substituted by No 81 of 2016, s 3 and Sch 10 item 46, effective 1 July 2018. For application provisions, see note under Div 131 heading. S 288-100(1) formerly read:
288-100(1)
A person is liable for an administrative penalty of 20 penalty units if:
(a)
the person gives one or more *superannuation providers a release authority in accordance with:
(i)
section 292-410 of the Income Tax Assessment Act 1997; or
(ii)
section 292-80B of the Income Tax (Transitional Provisions) Act 1997; and
(b)
the total of the amounts paid by the superannuation provider or providers to the person and the Commissioner as a result of being given the release authority exceeds the amount required to be paid in respect of the release authority under:
(i)
if subparagraph (a)(i) applies - subsection 292-415(1) of the Income Tax Assessment Act 1997; or
(ii)
if subparagraph (a)(ii) applies - section 292-80C of the Income Tax (Transitional Provisions) Act 1997.
S 288-100(1) renumbered from s 288-100 by No 82 of 2013, s 3 and Sch 3 item 29, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
S 288-100 inserted by No 9 of 2007, s 3 and Sch 1 item 23, applicable to the 2007-2008 financial year and later years.
288-100(2)
An individual is liable to an administrative penalty of 20 penalty units if one or more *superannuation benefits that the individual receives (or is taken to receive), paid in relation to a release authority issued in accordance with Subdivision 135-A in this Schedule, is assessable income to any extent.
History
S 288-100(2) inserted by No 82 of 2013, s 3 and Sch 3 item 30, effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
SECTION 288-105
SUPERANNUATION PROVIDER TO CALCULATE CRYSTALLISED PRE-JULY 83 AMOUNT OF SUPERANNUATION INTEREST BY 30 JUNE 2008
288-105(1)
An entity is liable to an administrative penalty of 5 penalty units if:
(a)
the entity is the *superannuation provider in relation to a *superannuation plan (other than a *constitutionally protected fund) on 30 June 2008; and
(b)
the entity has not ensured that the crystallised pre-July 83 amount in relation to each superannuation interest in the plan has been calculated on or before that day.
288-105(2)
For the purpose of paragraph (1)(b), disregard a *superannuation interest unless the *element taxed in the fund of the *taxable component of the interest exceeds nil just before 1 July 2007.
288-105(3)
For the purpose of paragraph (1)(b), disregard a *superannuation interest that supported a *superannuation income stream just before 1 July 2007.
History
S 288-105 inserted by No 9 of 2007, s 3 and Sch 1 item 23, applicable on and after 1 July 2007.
SECTION 288-110
CONTRAVENTION OF SUPERANNUATION DATA AND PAYMENT REGULATION OR STANDARD
Liability to penalty - RSA providers and trustees of eligible superannuation entities
288-110(1)
An entity is liable to an administrative penalty if the entity contravenes:
(a)
subsection 34M(1) of the Superannuation Industry (Supervision) Act 1993; or
(b)
subsection 45D(1) of the Retirement Savings Accounts Act 1997.
288-110(2)
An entity is liable to an administrative penalty if the entity contravenes:
(a)
subsection 34P(6) of the Superannuation Industry (Supervision) Act 1993; or
(b)
subsection 45F(6) of the Retirement Savings Accounts Act 1997.
Liability to penalty - employers
288-110(3)
An entity is liable to an administrative penalty if the entity contravenes:
(a)
subsection 34N(1) of the Superannuation Industry (Supervision) Act 1993; or
(b)
subsection 45E(1) of the Retirement Savings Accounts Act 1997.
288-110(4)
An entity is liable to an administrative penalty if the entity contravenes:
(a)
subsection 34Q(6) of the Superannuation Industry (Supervision) Act 1993; or
(b)
subsection 45G(6) of the Retirement Savings Accounts Act 1997.
Amount of the penalty
288-110(5)
The amount of the penalty is:
(a)
for an administrative penalty under subsection (1) or (3) - 4 penalty units; or
(b)
for an administrative penalty under subsection (2) or (4) - 10 penalty units.
Note:
The Commissioner is required to notify you of an administrative penalty: see section 298-10.
History
S 288-110 inserted by No 91 of 2012, s 3 and Sch 1 item 3, effective 29 June 2012. No 91 of 2012 (as amended by No 158 of 2012 and No 110 of 2014), s 3 and Sch 1 Pt 4 contains the following application provision:
Part 4 - Application provision
20 Application of amendments
(1)
The amendments made apply in relation to:
(a)
a trustee of an eligible superannuation entity; or
(b)
an RSA provider;
in relation to conduct that occurs on or after 1 July 2013.
(1A)
Subject to subitems (2), (3) and (3A), the amendments made by this Schedule apply in relation to an entity that is an employer in relation to conduct that occurs on or after 1 July 2015.
History
S 20(1A) inserted by No 110 of 2014, s 3 and Sch 5 item 144, effective 1 July 2014.
(2)
The amendments made apply in relation to an entity that is a medium to large employer on 1 July 2014 in relation to conduct that occurs on or after 1 July 2014.
(3)
The amendments made apply in relation to an entity that is a small employer on 1 July 2014 in relation to conduct that occurs on or after:
(a)
if paragraph (b) does not apply - 1 July 2015; or
(b)
if the regulations prescribe a day after 1 July 2015 for the purposes of this paragraph - that day.
(3A)
The amendments made by this Schedule apply in relation to an entity in relation to conduct that occurs on or after a day (the
test day
) in the period beginning on 2 July 2014 and ending on 30 June 2015 if:
(a)
neither subitem (2) nor (3) applies to the entity; and
(b)
the entity starts to be an employer on the test day; and
(c)
at a time on the test day, the entity is a medium to large employer.
History
S 20(3A) inserted by No 110 of 2014, s 3 and Sch 5 item 145, effective 1 July 2014.
(4)
In this item:
medium to large employer
, at a particular time, means an employer that employs 20 or more employees at that time.
small employer
, at a particular time, means an employer that employs fewer than 20 employees at that time.
(5)
For the purpose of calculating the number of employees employed by an employer at a particular time, count all employees employed by the employer at that time.
(6)
The Governor-General may make regulations prescribing matters:
(a)
required or permitted to be prescribed; or
(b)
necessary or convenient to be prescribed for carrying out or giving effect.
SECTION 288-115
AMIT UNDER OR OVER RESULTING FROM INTENTIONAL DISREGARD OF OR RECKLESSNESS AS TO TAXATION LAW
288-115(1)
An entity is liable to an administrative penalty if:
(a)
the entity is a trustee of an *AMIT for an income year (the
base year
); and
(b)
the AMIT has an *under or *over for the base year; and
(c)
at least one of the items in the table in subsection (3) applies in respect of the under or over.
288-115(2)
To avoid doubt, subsection (1) has a separate operation in respect of each *under or *over mentioned in paragraph (1)(b).
288-115(3)
The amount of the penalty is 47% of the amount worked out using this table:
|
Amount of penalty
|
|
Item
|
Column 1
|
Column 2
|
Column 3
|
|
In this situation…
|
in the case of an *under or *over covered by subsection (5), the amount is:
|
in the case of an *under or *over covered by subsection (6), the amount is:
|
| 1 |
if the *under or *over resulted from intentional disregard of a *taxation law (other than the *Excise Acts) by the trustee of the *AMIT or the trustee's agent |
75% of the under or over |
30% of the under or over |
| 2 |
if the *under or *over resulted from recklessness by the trustee of the *AMIT or the trustee's agent as to the operation of a *taxation law (other than the *Excise Acts) |
50% of the under or over |
20% of the under or over |
288-115(4)
Despite subsection (3):
(a)
if the penalty specified under column 3 of item 1 of the table in that subsection is less than 60 penalty units - the amount of the penalty is 60 penalty units; and
(b)
if the penalty specified under column 3 of item 2 of the table in that subsection is less than 40 penalty units - the amount of the penalty is 40 penalty units.
288-115(5)
This subsection covers the following:
(a)
an *under of:
(i)
a character relating to assessable income; or
(ii)
a character relating to *exempt income; or
(iii)
a character relating to *non-assessable non-exempt income;
(b)
an *over of a character relating to a *tax offset.
288-115(6)
This subsection covers the following:
(a)
an *over of:
(i)
a character relating to assessable income; or
(ii)
a character relating to *exempt income; or
(iii)
a character relating to *non-assessable non-exempt income;
(b)
an *under of a character relating to a *tax offset.
288-115(7)
If both items in the table in subsection (3) apply, use item 1 and not item 2.
288-115(8)
If the income year corresponds to a financial year that is a temporary budget repair levy year (within the meaning of section 4-11 of the Income Tax (Transitional Provisions) Act 1997), treat the reference in subsection (3) to 47% as instead being a reference to 49%.
History
S 288-115 inserted by No 53 of 2016, s 3 and Sch 1 item 4, effective 5 May 2016. For application provision, see note under Division 12A heading.
SECTION 288-120
PROHIBITED OFFSETS OF LIABILITIES USING INTEREST ETC. ACCRUED ON FARM MANAGEMENT DEPOSITS
288-120(1)
The person who made or is making a *farm management deposit is liable to an administrative penalty if:
(a)
the fact that the person made or is making the deposit is the reason why, or one of the reasons why, an amount of interest payable to the *FMD provider in respect of loans or other debts falls short of what it would otherwise be; and
(b)
the shortfall:
(i)
contravenes a requirement, contained in the agreement mentioned in paragraph 393-20(1)(b) of the Income Tax Assessment Act 1997 in relation to the deposit, as set out in item 8 of the table in section 393-35 of that Act; or
(ii)
would contravene such a requirement if it were contained in that agreement.
288-120(2)
The amount of the penalty is 200% of so much of the shortfall as contravenes that requirement, or would contravene such a requirement.
[
CCH Note:
S 288-115 (second occurring) was inserted by No 52 of 2016, s 3 and Sch 3 item 14, at the end of Division 288. Since s 288-115 already exists in Division 288, the second occurring s 288-115 has been renumbered as s 288-120, in line with an editorial change made by the Federal Register of Legislation under the Legislation Act 2003.]
History
S 288-120 inserted by No 52 of 2016, s 3 and Sch 3 item 14, applicable to assessments for the 2016-17 income year and later income years.
SECTION 288-125
PRODUCING OR SUPPLYING ELECTRONIC SALES SUPPRESSION TOOLS
288-125(1)
You are liable to an administrative penalty of 60 penalty units if you:
(a)
manufacture, develop or publish an *electronic sales suppression tool; or
(b)
*supply or make available for use:
(i)
an electronic sales suppression tool; or
(ii)
a *right to use an electronic sales suppression tool; or
(c)
provide a service to an entity that involves the use of an electronic sales suppression tool.
288-125(2)
You are liable to an administrative penalty of 60 penalty units if you aid, abet, counsel or procure conduct for which subsection (1) makes an entity liable to an administrative penalty.
Note:
Division 298 contains machinery provisions for administrative penalties.
288-125(3)
You are not liable to an administrative penalty under this section for conduct undertaken for the purpose of preventing or deterring tax evasion or enforcing a *taxation law.
History
S 288-125 inserted by No 121 of 2018, s 3 and Sch 1 item 3, effective 4 October 2018. For application and transitional provisions, see note under s 8WAA.
SECTION 288-130
POSSESSING ELECTRONIC SALES SUPPRESSION TOOLS
288-130(1)
You are liable to an administrative penalty of 30 penalty units if:
(a)
you are required under, or pursuant to, a *taxation law (other than an *Excise Act) to keep or make a record; and
(b)
you acquire, or have possession or control of:
(i)
an *electronic sales suppression tool; or
(ii)
a *right to use an electronic sales suppression tool.
288-130(2)
You are liable to an administrative penalty of 30 penalty units if you aid, abet, counsel or procure conduct for which subsection (1) makes an entity liable to an administrative penalty.
Note:
Division 298 contains machinery provisions for administrative penalties.
288-130(3)
You are not liable to an administrative penalty under this section for conduct undertaken for the purpose of preventing or deterring tax evasion or enforcing a *taxation law.
History
S 288-130 inserted by No 121 of 2018, s 3 and Sch 1 item 3, effective 4 October 2018. For application and transitional provisions, see note under s 8WAA.
SECTION 288-135
INCORRECTLY KEEPING RECORDS USING ELECTRONIC SALES SUPPRESSION TOOLS
288-135(1)
You are liable to an administrative penalty of 60 units if:
(a)
you are required under, or pursuant to, a *taxation law (other than an *Excise Act) to keep or make a record; and
(b)
the record is kept, made or altered with the use of an *electronic sales suppression tool, or is prevented by the use of an electronic sales suppression tool from being kept, made or altered; and
(c)
as a result of the use:
(i)
the record does not correctly record and explain the matter, transaction, act or operation to which it relates; or
(ii)
you do not keep or make the record in accordance with the taxation law.
288-135(2)
You are liable to an administrative penalty of 60 penalty units if you aid, abet, counsel or procure conduct for which subsection (1) makes an entity liable to an administrative penalty.
Note:
Division 298 contains machinery provisions for administrative penalties.
History
S 288-135 inserted by No 121 of 2018, s 3 and Sch 1 item 3, effective 4 October 2018. For application and transitional provisions, see note under s 8WAA.
Division 290 - Promotion and implementation of schemes
History
Div 290 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
Subdivision 290-A - Preliminary
History
Subdiv 290-A heading substituted by No 84 of 2013, s 3 and Sch 8 item 34, effective 28 June 2013. The heading formerly read:
Subdivision 290-A - Objects of this Division
Subdiv 290-A inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 290-5
290-5
OBJECTS OF THIS DIVISION
The objects of this Division are:
(a)
to deter the promotion of tax avoidance *schemes and tax evasion schemes; and
(aa)
to deter the promotion of schemes on the basis of conformity with a *public ruling, *private ruling or *oral ruling if the scheme is materially different from that described in the ruling; and
(b)
to deter the implementation of schemes that have been promoted on the basis of conformity with a public ruling, private ruling or oral ruling in a way that is materially different from that described in the ruling.
History
S 290-5 amended by No 37 of 2024, s 3 and Sch 1 items 5-7, by inserting para (aa) and substituting "public ruling, private ruling or oral ruling" for "*product ruling" and "the ruling" for "the product ruling" in para (b), applicable in relation to conduct engaged in on or after 1 July 2024.
S 290-5 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 290-10
290-10
EXTRA-TERRITORIAL APPLICATION
This Division extends to acts, omissions, matters and things outside Australia.
History
S 290-10 inserted by No 84 of 2013, s 3 and Sch 8 item 35, applicable in relation to acts, omissions, matters and things happening on or after 28 June 2013.
Subdivision 290-B - Civil penalties
History
Subdiv 290-B inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 290-50
CIVIL PENALTIES
Promoter of tax exploitation scheme
290-50(1)
An entity must not engage in conduct that results in that or another entity being a *promoter of a *tax exploitation scheme.
Promoting scheme otherwise than in accordance with ruling
290-50(1A)
An entity must not engage in conduct that results in a *scheme that is materially different from that described in a *public ruling, *private ruling or *oral ruling being promoted on the basis of conformity with that ruling.
History
S 290-50(1A) inserted by No 37 of 2024, s 3 and Sch 1 item 8, applicable in relation to conduct engaged in on or after 1 July 2024.
Implementing scheme otherwise than in accordance with ruling
290-50(2)
An entity must not engage in conduct that results in a *scheme that has been promoted on the basis of conformity with a *public ruling, *private ruling or *oral ruling (whether or not the ruling actually relates to the scheme) being implemented in a way that is materially different from that described in the ruling.
Note:
A scheme will not have been implemented in a way that is materially different from that described in a ruling if the tax outcome for participants in the scheme is the same as that described in the ruling.
History
S 290-50(2) amended by No 37 of 2024, s 3 and Sch 1 items 9-11, by substituting "*public ruling, *private ruling or *oral ruling (whether or not the ruling actually relates to the scheme)" for "*product ruling", "the ruling" for "the product ruling" and omitting "product" before "ruling" from the note, applicable in relation to conduct engaged in on or after 1 July 2024.
290-50(2A)
For the purposes of subsections (1A) and (2), disregard:
(a)
subsection 82KZMGA(1A) of the Income Tax Assessment Act 1936; and
(b)
subsection 394-10(5A) of the Income Tax Assessment Act 1997.
Note 1:
Those 2 subsections relate to forestry managed investment schemes.
Note 2:
The effect of this subsection is that a scheme will have been implemented in a way that is materially different from that described in a ruling if the tax outcome for participants in the scheme is the same as that described in the ruling only because of the operation of the subsections mentioned in paragraphs (a) and (b).
History
S 290-50(2A) amended by No 37 of 2024, s 3 and Sch 1 items 12 and 13, by substituting "subsections (1A) and (2)" for "subsection (2)" and omitting "product" before "ruling" from note 2, applicable in relation to conduct engaged in on or after 1 July 2024.
S 290-50(2A) inserted by No 56 of 2010, s 3 and Sch 2 item 3, applicable to CGT events that happen on or after 1 July 2007.
Civil penalty
290-50(3)
If the Federal Court of Australia is satisfied, on application by the Commissioner, that an entity has contravened subsection (1), (1A) or (2), the Court may order the entity to pay a civil penalty to the Commonwealth.
Note:
If the entity is a registered tax agent or BAS agent, being penalised under this subsection may affect the continued registration of the entity: see section 20-45 and Subdivision 40-A of the Tax Agent Services Act 2009.
History
S 290-50(3) be amended by No 37 of 2024, s 3 and Sch 1 items 14 and 15, by inserting ", (1A)" and the note, applicable in relation to conduct engaged in on or after 1 July 2024.
Amount of penalty
290-50(4)
The maximum amount of the penalty for a contravention by an entity is the greater of:
(a)
5,000 penalty units; and
(b)
3 times the total value of all benefits received or receivable (directly or indirectly) by the entity and *associates of the entity in respect of the *scheme.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
History
S 290-50(4) substituted by No 37 of 2024, s 3 and Sch 1 item 16, applicable in relation to conduct engaged in on or after 1 July 2024. S 290-50(4) formerly read:
Amount of penalty
290-50(4)
The maximum amount of the penalty is the greater of:
(a)
5,000 penalty units (for an individual) or 25,000 penalty units (for a body corporate); and
(b)
twice the consideration received or receivable (directly or indirectly) by the entity and *associates of the entity in respect of the *scheme.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
290-50(4A)
Despite subsection (4), the maximum amount of the penalty for a contravention by an entity that is a body corporate is the greatest of the following:
(a)
50,000 penalty units;
(b)
3 times the total value of all benefits received or receivable (directly or indirectly) by the entity and *associates of the entity in respect of the *scheme;
(c)
either:
(i)
10% of the *aggregated turnover of the entity for the most recent income year to end before the entity contravened, or began to contravene, the provision; or
(ii)
if the amount worked out under subparagraph (i) is greater than an amount equal to 2.5 million penalty units - 2.5 million penalty units.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
History
S 290-50(4A) inserted by No 37 of 2024, s 3 and Sch 1 item 16, applicable in relation to conduct engaged in on or after 1 July 2024.
290-50(4B)
Despite subsections (4) and (4A), the maximum amount of the penalty for a contravention by an entity that is:
(a)
a partner in a partnership that is a *significant global entity; or
(b)
a trustee of a trust that is a significant global entity;
is the greatest of the following:
(c)
50,000 penalty units;
(d)
3 times the total value of all benefits received or receivable (directly or indirectly) by the significant global entity and *associates of the significant global entity in respect of the *scheme;
(e)
either:
(i)
10% of the *aggregated turnover of the significant global entity for the most recent income year to end before the entity contravened, or began to contravene, the provision; or
(ii)
if the amount worked out under subparagraph (i) is greater than an amount equal to 2.5 million penalty units - 2.5 million penalty units.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
History
S 290-50(4B) inserted by No 37 of 2024, s 3 and Sch 1 item 16, applicable in relation to conduct engaged in on or after 1 July 2024.
Principles relating to penalties
290-50(5)
In deciding what penalty is appropriate for a contravention of subsection (1), (1A) or (2) by an entity, the Federal Court of Australia may have regard to all matters it considers relevant, including:
(a)
the amount of the benefit received or receivable (directly or indirectly) by the entity and *associates of the entity in respect of the *scheme; and
(b)
the deterrent effect that any penalty may have; and
(c)
the amount of loss or damage incurred by scheme participants; and
(d)
the nature and extent of the contravention; and
(e)
the circumstances in which the contravention took place, including the deliberateness of the entity's conduct and whether there was an honest and reasonable mistake of law; and
(f)
the period over which the conduct extended; and
(g)
whether the entity took any steps to avoid the contravention; and
(h)
whether the entity has previously been found by the Court to have engaged in the same or similar conduct; and
(i)
the degree of the entity's cooperation with the Commissioner.
History
S 290-50(5) amended by No 37 of 2024, s 3 and Sch 1 items 17 and 18, by inserting ", (1A)" and substituting "benefit" for "consideration" in para (a), applicable in relation to conduct engaged in on or after 1 July 2024.
Recovery of penalty
290-50(6)
The penalty is a civil debt payable to the Commonwealth, and the Commissioner may, on behalf of the Commonwealth, enforce an order for an entity to pay the penalty as if it were an order made in civil proceedings against the entity to recover a debt due by the entity. The debt arising from the order is taken to be a judgment debt.
History
S 290-50 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 290-55
EXCEPTIONS
Reasonable mistake or reasonable precautions
290-55(1)
The Federal Court of Australia must not order the entity to pay a civil penalty if the entity satisfies the Court:
(a)
that the conduct in respect of which the proceedings were instituted was due to a reasonable mistake of fact; or
(b)
that:
(i)
the conduct in respect of which the proceedings were instituted was due to the act or default of another entity, to an accident or to some other cause beyond the entity's control; and
(ii)
the entity took reasonable precautions and exercised due diligence to avoid the conduct.
290-55(2)
The other entity referred to in paragraph (1)(b) does not include:
(a)
someone who was an employee or agent of the entity when the alleged conduct occurred; or
(b)
if the entity is a body corporate - someone who was a director of the entity when the alleged conduct occurred; or
(c)
if the entity is a partner in a partnership - someone who was also a partner in the partnership when the alleged conduct occurred; or
(d)
if the entity is a trustee of a trust that has more than one trustee - someone who was also a trustee of the trust when the alleged conduct occurred.
History
S 290-55(2) substituted by No 37 of 2024, s 3 and Sch 1 item 19, applicable in relation to conduct engaged in on or after 1 July 2024. S 290-55(2) formerly read:
290-55(2)
The other entity referred to in paragraph (1)(b) does not include someone who was an employee or agent of the entity when the alleged conduct occurred.
Reliance on advice from the Commissioner
290-55(3)
The Commissioner must not make an application under section 290-50 for conduct referred to in subsection 290-50(1) in relation to an entity's involvement in a *scheme if:
(a)
the scheme is based on treating a *taxation law as applying in a particular way; and
(b)
that way agrees with:
(i)
advice given to the entity or the entity's agent by or on behalf of the Commissioner; or
(ii)
a statement in a publication approved in writing by the Commissioner.
Time limitation
290-55(4)
The Commissioner must not make an application under section 290-50 in relation to an entity's involvement in a *tax exploitation scheme more than 6 years after the entity last engaged in conduct that resulted in the entity or another entity being a *promoter of the tax exploitation scheme.
History
S 290-55(4) amended by No 37 of 2024, s 3 and Sch 1 item 20, by substituting "6 years" for "4 years", applicable in relation to conduct engaged in before, on or after 1 July 2024.
290-55(5)
The Commissioner must not make an application under section 290-50 in relation to an entity's involvement in a *scheme that has been promoted on the basis of conformity with a *public ruling, *private ruling or *oral ruling more than 6 years after the entity last engaged in conduct in relation to:
(a)
if the scheme has been implemented - the implementation of the scheme; or
(b)
if the scheme has not been implemented - the promotion of the scheme.
History
S 290-55(5) amended by No 37 of 2024, s 3 and Sch 1 items 21 and 23, by substituting "*public ruling, *private ruling or *oral ruling" for "*product ruling" and all the words after "last engaged", applicable in relation to conduct engaged in on or after 1 July 2024. All the words after "last engaged" formerly read:
in conduct in relation to implementation of the scheme.
S 290-55(5) amended by No 37 of 2024, s 3 and Sch 1 item 22, by substituting "6 years" for "4 years", applicable in relation to conduct engaged in before, on or after 1 July 2024.
290-55(6)
However, the limitation in subsection (4) or (5) does not apply to *schemes that involve, or if implemented would involve, tax evasion.
History
S 290-55(6) amended by No 37 of 2024, s 3 and Sch 1 item 24, by substituting "*schemes that involve, or if implemented would involve," for "a *scheme involving", applicable in relation to conduct engaged in on or after 1 July 2024.
Exception where entity does not know result of conduct
290-55(7)
The Federal Court of Australia must not order an entity to pay a civil penalty in relation to the entity's engaging in conduct:
(a)
that results in another entity being a *promoter of a *tax exploitation scheme; or
(aa)
that results in a *scheme that is materially different from that described in a *public ruling, *private ruling or *oral ruling being promoted on the basis of conformity with that ruling; or
(b)
that results in a scheme that has been promoted on the basis of conformity with a public ruling, private ruling or oral ruling being implemented in a way that is materially different from that described in the ruling;
if the entity satisfies the Court that the entity did not know, and could not reasonably be expected to have known, that the entity's conduct would produce that result.
History
S 290-55(7) amended by No 37 of 2024, s 3 and Sch 1 items 25-28, by inserting para (aa) and substituting "scheme" for "*scheme", "public ruling, private ruling or oral ruling" for "*product ruling" and "the ruling" for "the product ruling" in para (b), applicable in relation to conduct engaged in on or after 1 July 2024.
290-55(7A)
The other entity referred to in paragraph (7)(a) does not include:
(a)
if the entity mentioned first in subsection (7) is a partner in a partnership:
(i)
the partnership; or
(ii)
someone who was a partner in the partnership when the alleged conduct occurred; or
(b)
if the entity mentioned first in subsection (7) is a trustee of a trust:
(i)
the trust; or
(ii)
if the trust has more than one trustee - someone who was also a trustee of the trust when the alleged conduct occurred.
History
S 290-55(7A) inserted by No 37 of 2024, s 3 and Sch 1 item 29, applicable in relation to conduct engaged in on or after 1 July 2024.
Employees
290-55(8)
The Commissioner must not make an application under section 290-50 in relation to an individual's involvement in a *scheme as an employee if the Federal Court of Australia has ordered the individual's employer to pay a civil penalty under this Division in relation to the same scheme.
History
S 290-55 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 290-60
MEANING OF PROMOTER
290-60(1)
An entity is a
promoter
of a *tax exploitation scheme if:
(a)
the entity:
(i)
markets the scheme; or
(ii)
otherwise encourages the growth of the scheme or interest in it; and
(b)
the entity or an *associate of the entity receives (directly or indirectly) a benefit in respect of that marketing or encouragement; and
(c)
having regard to all relevant matters, it is reasonable to conclude that the entity has had a substantial role in respect of that marketing or encouragement.
History
S 290-60(1) amended by No 37 of 2024, s 3 and Sch 1 items 30 and 31, by substituting para (a) and "a benefit" for "consideration" in para (b), applicable in relation to conduct engaged in on or after 1 July 2024. Para (a) formerly read:
(a)
the entity markets the scheme or otherwise encourages the growth of the scheme or interest in it; and
290-60(2)
However, an entity is not a
promoter
of a *tax exploitation scheme merely because the entity provides advice about the *scheme.
290-60(3)
An employee is not to be taken to have had a substantial role in respect of that marketing or encouragement merely because the employee distributes information or material prepared by another entity.
History
S 290-60 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 290-65
MEANING OF TAX EXPLOITATION SCHEME
290-65(1)
A *scheme is a
tax exploitation scheme
if, at the time of the conduct mentioned in subsection 290-50(1):
(a)
one of these conditions is satisfied:
(i)
if the scheme has been implemented - it is reasonable to conclude that an entity that (alone or with others) entered into or carried out the scheme did so with the sole or dominant purpose of that entity or another entity getting a *scheme benefit from the scheme;
(ii)
if the scheme has not been implemented - it is reasonable to conclude that, if an entity (alone or with others) had entered into or carried out the scheme, it would have done so with the sole or dominant purpose of that entity or another entity getting a scheme benefit from the scheme; and
(b)
one of these conditions is satisfied:
(i)
if the scheme has been implemented - it is not *reasonably arguable that the scheme benefit is available at law;
(ii)
if the scheme has not been implemented - it is not reasonably arguable that the scheme benefit would be available at law if the scheme were implemented.
Note:
The condition in paragraph (b) would not be satisfied if the implementation of the scheme for all participants were in accordance with binding advice given by or on behalf of the Commissioner of Taxation (for example, if that implementation were in accordance with a public ruling under this Act, or all participants had private rulings under this Act and that implementation were in accordance with those rulings).
290-65(1A)
A *scheme is also a
tax exploitation scheme
if, at the time of the conduct mentioned in subsection 290-50(1):
(a)
one of these conditions is satisfied:
(i)
if the scheme has been implemented - Part IVA of the Income Tax Assessment Act 1936 applies to the scheme because of section 177DA or 177J of that Act;
(ii)
if the scheme has not been implemented - it is reasonable to conclude that, had the scheme been entered into or carried out, Part IVA of that Act would apply to the scheme because of section 177DA or 177J of that Act; and
(b)
one of these conditions is satisfied:
(i)
if the scheme has been implemented - it is reasonable to conclude that an entity that (alone or with others) entered into or carried out the scheme, or part of it, did so for a principal purpose of, or for more than one principal purpose that includes a purpose of, that entity or another entity getting a *scheme benefit from the scheme;
(ii)
if the scheme has not been implemented - it is reasonable to conclude that if an entity (alone or with others) had entered into or carried out the scheme, it would have done so for a principal purpose of, or for more than one principal purpose that includes a purpose of, that entity or another entity getting a scheme benefit from the scheme; and
(c)
one of these conditions is satisfied:
(i)
if the scheme has been implemented - it is not *reasonably arguable that the scheme benefit is available at law;
(ii)
if the scheme has not been implemented - it is not reasonably arguable thatthe scheme benefit would be available at law if the scheme were implemented.
History
S 290-65(1A) inserted by No 37 of 2024, s 3 and Sch 1 item 32, applicable in relation to conduct engaged in on or after 1 July 2024.
290-65(2)
In deciding whether it is *reasonably arguable that a *scheme benefit would be available at law, take into account any thing that the Commissioner can do under a *taxation law.
Example:
The Commissioner may cancel a tax benefit obtained by a taxpayer in connection with a scheme under section 177F of the Income Tax Assessment Act 1936.
History
S 290-65 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
Subdivision 290-C - Injunctions
History
Subdiv 290-C inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 290-120
290-120
CONDUCT TO WHICH THIS SUBDIVISION APPLIES
This Subdivision applies to conduct of the kind referred to in subsection 290-50(1), (1A) or (2).
History
S 290-120 amended by No 37 of 2024, s 3 and Sch 1 item 33, by inserting ", (1A)", applicable in relation to conduct engaged in on or after 1 July 2024.
S 290-120 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 290-125
290-125
INJUNCTIONS
If an entity has engaged, is engaging or is proposing to engage in conduct to which this Subdivision applies or would apply, the Federal Court of Australia may, on the application of the Commissioner, grant an injunction:
(a)
restraining the entity from engaging in the conduct; and
(b)
if, in the Court's opinion, it is desirable to do so - requiring the entity to do something.
History
S 290-125 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
History
S 290-125 inserted by No 32 of 2006.
SECTION 290-130
290-130
INTERIM INJUNCTIONS
The Federal Court of Australia may, before considering an application for an injunction under section 290-125, grant an interim injunction restraining an entity from engaging in conduct to which this Subdivision applies.
History
S 290-130 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 290-135
290-135
DELAY IN MAKING RULING
If:
(a)
an entity applied in writing to the Commissioner for a *public ruling, *private ruling or *oral ruling in relation to a *scheme; and
(b)
the Commissioner has neither made the ruling nor told the entity in writing that the Commissioner has declined to make the ruling;
the Commissioner must not make an application under section 290-125 in relation to conduct or proposed conduct by an entity in relation to the scheme until the Commissioner makes the ruling or tells the entity in writing that the Commissioner has declined to make the ruling.
History
S 290-135 amended by No 37 of 2024, s 3 and Sch 1 item 34, by substituting "*public ruling, *private ruling or *oral ruling" for "*product ruling" in para (a), applicable in relation to conduct engaged in on or after 1 July 2024.
S 290-135 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 290-140
290-140
DISCHARGE ETC. OF INJUNCTIONS
The Federal Court of Australia may discharge or vary an injunction granted under this Subdivision.
History
S 290-140 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 290-145
CERTAIN LIMITS ON GRANTING INJUNCTIONS NOT TO APPLY
Restraining injunctions
290-145(1)
The power of the Federal Court of Australia under this Subdivision to grant an injunction restraining an entity from engaging in conduct of a particular kind may be exercised:
(a)
if the Court is satisfied that the entity has engaged in conduct of that kind - whether or not it appears to the Court that the entity intends to engage again, or to continue to engage, in conduct of that kind; or
(b)
if it appears to the Court that, if an injunction is not granted, it is likely that the entity will engage in conduct of that kind - whether or not the entity has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to anyone if the entity engages in conduct of that kind.
Performance injunctions
290-145(2)
The power of the Federal Court of Australia under this Subdivision to grant an injunction requiring an entity to do something may be exercised:
(a)
if the Court is satisfied that the entity has refused or failed to do that thing - whether or not it appears to the Court that the entity intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or
(b)
if it appears to the Court that, if an injunction is not granted, it is likely that the entity will refuse or fail to do that thing - whether or not the entity has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to anyone if the entity refuses or fails to do that act or thing.
History
S 290-145 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 290-150
290-150
OTHER POWERS OF THE FEDERAL COURT UNAFFECTED
The powers conferred on the Federal Court of Australia under this Subdivision are in addition to, and not instead of, any other powers of the Court, however conferred.
History
S 290-150 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
Subdivision 290-D - Voluntary undertakings
History
Subdiv 290-D inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 290-200
VOLUNTARY UNDERTAKINGS
290-200(1)
The Commissioner may accept a written undertaking given by an entity for the purposes of this section in connection with furthering the objects of this Division.
290-200(2)
The entity may withdraw or vary the undertaking at any time, but only with the consent of the Commissioner.
290-200(3)
If the Commissioner considers that the entity that gave the undertaking has breached any of its terms, the Commissioner may apply to the Federal Court of Australia for an order under subsection (4).
290-200(4)
If the Court is satisfied that the entity has breached a term of the undertaking, the Court may make one or both of the following orders:
(a)
an order directing the entity to comply with that term of the undertaking;
(b)
any other order that the Court considers appropriate.
History
S 290-200 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
Division 295 - Miscellaneous civil penalties
History
Div 295 inserted by No 82 of 2018, s 3 and Sch 1 item 4, effective 25 August 2018.
Subdivision 295-B - Civil penalty for possession of tobacco without relevant documentation
History
Subdiv 295-B inserted by No 82 of 2018, s 3 and Sch 1 item 4, effective 25 August 2018.
Guide to Subdivision 295-B
SECTION 295-70
WHAT THIS SUBDIVISION IS ABOUT
A person is liable to a civil penalty if the person possesses 2 kilograms or more of tobacco and the person:
(a) does not provide certain documents (such as a tax invoice) indicating how the person obtained the tobacco; or
(b) has stated that the possession was engaged in on behalf of or at the request of another person, but does not provide information enabling the other person to be identified and located.
However, the person will not be liable to the civil penalty in certain circumstances, such as where:
(a) the person is an individual, and possesses the tobacco for his or her personal use; or
(b) the person has reasonable grounds to suspect that excise duty or customs duty has been paid on the tobacco, or excise duty and customs duty is not payable on the tobacco.
History
S 295-70 inserted by No 82 of 2018, s 3 and Sch 1 item 4, effective 25 August 2018.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 295-75 |
Possession of tobacco without relevant documentation etc. |
| 295-80 |
Things treated as tobacco |
SECTION 295-75
POSSESSION OF TOBACCO WITHOUT RELEVANT DOCUMENTATION ETC.
295-75(1)
A person contravenes this subsection if:
(a)
the person possesses a thing; and
(b)
the thing is tobacco; and
(c)
the place in which the person possesses the tobacco is in Australia but not in an external Territory; and
(d)
the condition in subsection (2) is satisfied; and
(e)
the weight of the tobacco equals or exceeds 2 kilograms.
295-75(2)
For the purposes of paragraph (1)(d), the condition in this subsection is satisfied if:
(a)
the person has not provided any of the following:
(i)
a *tax invoice indicating how the person obtained the tobacco;
(ii)
a bill of lading indicating how the person obtained the tobacco;
(iii)
a customs declaration indicating how the person obtained the tobacco; or
(b)
the person:
(i)
has stated that the possession was engaged in on behalf of or at the request of another person; and
(ii)
has not provided information enabling the other person to be identified and located.
295-75(3)
A person is liable to a civil penalty if the person contravenes subsection (1).
Penalty: 100 penalty units.
295-75(4)
Section 308-510 applies to this section in the same way that it applies to Division 308.
295-75(5)
Subsection (1) does not apply if:
(a)
the person is an individual; and
(b)
the person possesses the tobacco for his or her personal use.
295-75(6)
Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force:
(a)
a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or
(b)
a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.
History
S 295-75(6) amended by No 51 of 2024, s 3 and Sch 1 item 169(a), by substituting "for which there is in force" for "specified in", effective 1 July 2024.
295-75(7)
Subsection (1) does not apply if:
(a)
the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or
(b)
the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or
(c)
the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.
295-75(8)
Subsection (1) does not apply if:
(a)
the person has permission (within the meaning of the Excise Act 1901):
(i)
to possess the tobacco; or
(ii)
to move the tobacco; or
(b)
the tobacco is covered by an authority under section 55 of that Act; or
(c)
the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.
295-75(9)
Subsection (1) does not apply if:
(a)
any of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or
(b)
the person has reasonable grounds to suspect that any of those circumstances exist.
295-75(10)
If person wishes to rely on subsection (5), (6), (7), (8) or (9) in civil penalty proceedings, the person bears an *evidential burden in relation to that matter.
History
S 295-75 inserted by No 82 of 2018, s 3 and Sch 1 item 4, applicable to possession of a thing on or after 25 August 2018.
SECTION 295-80
THINGS TREATED AS TOBACCO
295-80(1)
For the purposes of this Division, treat as tobacco any thing (including moisture) added to the tobacco leaf during manufacturing or processing.
295-80(2)
To avoid doubt, for the purposes of this Division:
(a)
treat tobacco seed, tobacco plant (whether or not in the ground) and tobacco leaf as tobacco; and
(b)
treat cigars, cigarettes and snuff as tobacco.
History
S 295-80 inserted by No 82 of 2018, s 3 and Sch 1 item 4, applicable to possession of a thing on or after 25 August 2018.
Division 298 - Machinery provisions for penalties
History
Div 298 heading substituted by No 32 of 2006, s 3 and Sch 3 item 14, applicable in relation to conduct engaged in on or after 6 April 2006. The heading formerly read:
Machinery provisions for administrative penalties
Div 298 (heading) substituted by No 101 of 2004.
Div 298 inserted by No 179 of 1999.
Subdivision 298-A - Administrative penalties
History
Subdiv 298-A heading inserted by No 32 of 2006, s 3 and Sch 3 item 14, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 298-5
298-5
SCOPE OF SUBDIVISION
This Subdivision applies if:
(a)
an administrative penalty is imposed on an entity by another Division in this Part; or
(b)
a penalty is imposed on an entity by Subdivision 162-D of the *GST Act; or
(c)
an administrative penalty is imposed on an entity by a provision of Subdivision 12-H, 14-D or 14-E, Division 16 or section 384-17, 420-5, 426-120 or 426-195 in this Schedule; or
(d)
an administrative penalty is imposed on an entity by section 166 of the Superannuation Industry (Supervision) Act 1993.
History
S 298-5 amended by No 52 of 2024, s 3 and Sch 3 item 6, by substituting ", 426-120 or 426-195" for "or 426-120" in para (c), effective 29 June 2024.
S 298-5 amended by No 84 of 2022, s 3 and Sch 1 item 18, by substituting "384-17" for "384-15" in para (c), effective 1 January 2023.
S 298-5 amended by No 49 of 2019, s 3 and Sch 4 item 110, by substituting ", 14-D or 14-E" for "or 14-D" in para (c), effective 1 July 2019.
S 298-5 amended by No 8 of 2019, s 3 and Sch 1 item 8, by inserting "384-15," in para (c), effective 1 April 2019.
S 298-5 amended by No 10 of 2016, s 3 and Sch 2 item 29, by inserting "or 14-D" in para (c), effective 26 February 2016. For application provision, see note under Subdiv 14-D heading.
S 298-5 amended by No 110 of 2014, s 3 and Sch 5 item 137, by substituting "section 420-5 or 426-120" for "section 426-120" in para (c), effective 16 October 2014.
S 298-5 amended by No 11 of 2014, s 3 and Sch 2 item 26, by inserting para (d), applicable to contraventions that occur on or after 1 July 2014.
S 298-5 amended by No 88 of 2009, s 3 and Sch 2 item 19, by substituting ", Division 16 or section 426-120" for "or Division 16" in para (c), effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
S 298-5 amended by No 32 of 2008, s 3 and Sch 1 item 56, by inserting "Subdivision 12-H or" in para (c), applicable to fund payments made in relation to the first income year starting on or after the first 1 July after 23 June 2008 and later income years.
S 298-5 amended by No 15 of 2007, s 3 and Sch 4 item 13, by substituting "this Schedule." for "this Schedule; or" in para (c), effective 15 March 2007.
S 298-5(d) repealed by No 9 of 2007, s 3 and Sch 4 item 12, applicable in relation to things that are done and events that occur on or after 1 July 2007. Para (d) formerly read:
(d)
a penalty is imposed on an entity by subsection 78(1) or 78A(1) of the Superannuation Guarantee (Administration) Act 1992.
S 298-5 amended by No 4 of 2007, s 3 and Sch 2 items 20 and 21, by inserting "; or" at the end of para (c) and relettering para (d) from para (c) (second occurring), effective 19 February 2007.
S 298-5 amended by No 80 of 2006, s 3 and Sch 7 items 4 and 5 (as amended by No 4 of 2007, s 3 and Sch 2 item 23), by inserting para (c) (second occurring), applicable in relation to financial years starting on or after 1 July 2005. Act No 80 of 2006, s 3 and Sch 7 item 6 contained the following application provision:
(2)
Despite subsection 12(2) of the Legislative Instruments Act 2003, the first regulations made for the purposes of sections 78 and 78A of the Superannuation Guarantee (Administration) Act 1992 may be expressed to take effect from 1 July 2005.
S 298-5 amended by No 58 of 2006, s 3 and Sch 7 item 168, by inserting para (c), effective 22 June 2006.
S 298-5 substituted by No 32 of 2006, s 3 and Sch 3 item 15, applicable in relation to conduct engaged in on or after 6 April 2006. S 298-5 formerly read:
SECTION 298-5 SCOPE OF DIVISION
298-5
This Division applies if:
(a)
an administrative penalty is imposed on an entity by another Division in this Part; or
(b)
a penalty is imposed on an entity by Subdivision 162-D of the *GST Act.
S 298-5 inserted by No 179 of 1999, substituted by No 73 of 2001, No 91 of 2000 and amended by No 101 of 2004.
SECTION 298-10
298-10
NOTIFICATION OF LIABILITY
The Commissioner must give written notice to the entity of the entity's liability to pay the penalty and of the reasons why the entity is liable to pay the penalty. The Commissioner is not required to give reasons if he or she decides to remit all of the penalty.
Note:
Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons.
History
S 298-10 amended by No 55 of 2017, s 3 and Sch 1 item 24, by omitting "The Commissioner may do so in any other notice he or she gives to the entity." after "liable to pay the penalty.", effective 1 July 2017.
S 298-10 inserted by No 179 of 1999 and amended by No 75 of 2005.
SECTION 298-15
298-15
DUE DATE FOR PENALTY
The penalty becomes due for payment on the day specified in the notice, which must be at least 14 days after the notice is given to the entity.
Note:
For provisions about collection and recovery of the penalty, see Part 4-15.
History
S 298-15 amended by No 44 of 2000 and inserted by No 179 of 1999.
SECTION 298-20
REMISSION OF PENALTY
298-20(1)
The Commissioner may remit all or a part of the penalty.
Commissioner's Remedial Power
Note:
A Commissioner's Remedial Power modification is relevant to this part of the tax law. Taxation Administration (Remedial Power - Remission of Charges and Penalties) Determination 2023 (F2023L00956) modifies the operation of s 298-20(1) in Sch 1 to the Taxation Administration Act 1953, to the extent it applies to penalties arising under s 286-75 in Sch 1 to the Taxation Administration Act 1953, and any other provisions of a taxation law whose operation is affected by the modified operation of s 298-20(1) in Sch 1.
The operation of the relevant provision is modified as follows:
For the purposes of s 370-5 in Sch 1 to the Taxation Administration Act 1953, s 298-20(1) of Sch 1 to the Taxation Administration Act 1953 is modified to permit the Commissioner to remit the general interest charge, shortfall interest charge or an administrative penalty, as applicable:
(a) in relation to:
(i) an entity; or
(ii) one or more entities in a relevant class; and
(b) whether or not the charge or penalty:
(i) has become due and payable; or
(ii) may become due and payable in the future.
An entity must treat a modification as not applying to it or any other entity if the modification would produce a less favourable result for it. The Commissioner is empowered by s 370-5 in Sch 1 to the Taxation Administration Act 1953 to make modifications, by legislative instrument, to ensure the law is administered to achieve its intended purpose or object.
298-20(2)
If the Commissioner decides:
(a)
not to remit the penalty; or
(b)
to remit only part of the penalty;
the Commissioner must give written notice of the decision and the reasons for the decision to the entity.
Note:
Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons.
History
S 298-20(2) amended by No 75 of 2005.
298-20(3)
If:
(a)
the Commissioner refuses to any extent to remit an amount of penalty; and
(b)
the amount of penalty payable after the refusal is more than 2 penalty units; and
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
(c)
the entity is dissatisfied with the decision;
the entity may object against the decision in the manner set out in Part IVC.
History
S 298-20 inserted by No 179 of 1999.
SECTION 298-25
298-25
GENERAL INTEREST CHARGE ON UNPAID PENALTY
If any of the penalty remains unpaid after it is due, the entity is liable to pay the *general interest charge on the unpaid amount of the penalty for each day in the period that:
(a)
started at the beginning of the day by which the amount was due to be paid; and
(b)
finishes at the end of the last day, at the end of which, any of the following remains unpaid:
(i)
the amount;
(ii)
general interest charge on any of the amount.
Note:
The general interest charge is worked out under Part IIA.
History
S 298-25 note amended by No 101 of 2006, s 3 and Sch 2 item 1059, by amending references to repealed inoperative provisions, effective 14 September 2006. For application and savings provisions see the CCH Australian Income Tax Legislation archive.
S 298-25 inserted by No 179 of 1999.
SECTION 298-30
ASSESSMENT OF PENALTIES UNDER DIVISION 284 OR SECTION 288-115
298-30(1)
The Commissioner must make an assessment of the amount of an administrative penalty under Division 284 or section 288-115.
History
S 298-30(1) amended by No 53 of 2016, s 3 and Sch 6 item 67, by substituting "Division 284 or section 288-115" for "Division 284", effective 5 May 2016. For application provision, see note under Division 12A heading.
298-30(2)
An entity that is dissatisfied with such an assessment made about the entity may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953.
298-30(3)
(Repealed by No 2 of 2015)
History
S 298-30(3) repealed by No 2 of 2015, s 3 and Sch 2 item 71, effective 1 July 2015. S 298-30(3) formerly read:
298-30(3)
The production of a notice of such an assessment, or of a copy of it certified by or on behalf of the Commissioner, is conclusive evidence of the making of the assessment and of the particulars in it.
298-30(4)
(Repealed by No 2 of 2015)
History
S 298-30(4) repealed by No 2 of 2015, s 3 and Sch 2 item 71, effective 1 July 2015. S 298-30(4) formerly read:
298-30(4)
Subsection (3) does not apply to proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment.
History
S 298-30 inserted by No 91 of 2000.
Subdivision 298-B - Civil penalties
History
Subdiv 298-B inserted by No 32 of 2006, s 3 and Sch 3 item 2, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 298-80
298-80
APPLICATION OF SUBDIVISION
This Subdivision applies for the purposes of the following provisions (the
civil penalty provisions
):
(a)
Division 290 of this Schedule (civil penalties for the promotion and implementation of schemes);
(aa)
subsection 295-75(1) in this Schedule (possession of tobacco without relevant documentation);
(b)
Part 5 of the Tax Agent Services Act 2009 (civil penalties for providing tax agent services while unregistered and for certain conduct when providing tax agent services).
History
S 298-80 amended by No 82 of 2018, s 3 and Sch 1 item 5, by inserting para (aa), effective 25 August 2018.
S 298-80 substituted by No 114 of 2009, s 3 and Sch 1 item 25, effective 1 March 2010. S 298-80 formerly read:
SECTION 298-80 APPLICATION OF SUBDIVISION
298-80
This Subdivision applies for the purposes of the provisions (the
civil penalty provisions
) set out in this table.
|
Application of Subdivision
|
|
Item
|
Provision
|
Brief description
|
| 1 |
Division 290 |
Civil penalties for the promotion and implementation of schemes |
S 298-80 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 298-85
298-85
CIVIL EVIDENCE AND PROCEDURE RULES FOR CIVIL PENALTY ORDERS
The Federal Court of Australia must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order under the civil penalty provisions.
History
S 298-85 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 298-90
298-90
CIVIL PROCEEDINGS AFTER CRIMINAL PROCEEDINGS
The Court must not make a civil penalty order under the civil penalty provisions against an entity if the entity has been convicted of an offence constituted by conduct that is substantially the same as the conduct in relation to which the civil penalty order would be made.
History
S 298-90 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 298-95
CRIMINAL PROCEEDINGS DURING CIVIL PROCEEDINGS
298-95(1)
Proceedings for a civil penalty order under the civil penalty provisions against an entity are stayed if:
(a)
criminal proceedings are started or have already been started against the entity for an offence; and
(b)
the offence is constituted by conduct that is substantially the same as the conduct in relation to which the civil penalty order would be made.
298-95(2)
The proceedings for the order may be resumed if the entity is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.
History
S 298-95 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 298-100
298-100
CRIMINAL PROCEEDINGS AFTER CIVIL PROCEEDINGS
Criminal proceedings may be started against an entity for conduct that is substantially the same as conduct in relation to which a civil penalty order under the civil penalty provisions could be made regardless of whether a civil penalty order has been made against the entity.
History
S 298-100 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 298-105
298-105
EVIDENCE GIVEN IN PROCEEDINGS FOR PENALTY NOT ADMISSIBLE IN CRIMINAL PROCEEDINGS
Evidence of information given or evidence of production of documents by an entity is not admissible in criminal proceedings against the entity if:
(a)
the entity previously gave the evidence or produced the documents in proceedings for a civil penalty order under the civil penalty provisions against the entity (whether or not the order was made); and
(b)
the conduct alleged to constitute the offence is substantially the same as the conduct in relation to which the civil penalty order was sought.
However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the entity in the proceedings for the civil penalty order.
History
S 298-105 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
SECTION 298-110
298-110
CIVIL DOUBLE JEOPARDY
If an entity is ordered to pay a civil penalty under the civil penalty provisions in respect of particular conduct, the entity is not liable to a civil penalty under some other provision of a *Commonwealth law in respect of that conduct.
History
S 298-110 inserted by No 32 of 2006, s 3 and Sch 3 item 1, applicable in relation to conduct engaged in on or after 6 April 2006.
PART 4-30 - OFFENCES AND PROSECUTIONS
History
Pt 4-30 inserted by No 82 of 2018, s 3 and Sch 1 item 6, effective 25 August 2018.
Division 308 - Offences relating to tobacco
History
Div 308 inserted by No 82 of 2018, s 3 and Sch 1 item 6, effective 25 August 2018.
Guide to Division 308
SECTION 308-1
WHAT THIS DIVISION IS ABOUT
This Division sets out offences and related provisions relating to tobacco.
History
S 308-1 inserted by No 82 of 2018, s 3 and Sch 1 item 6, effective 25 August 2018.
Subdivision 308-A - Reasonable suspicion offences relating to tobacco
History
Subdiv 308-A inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, sale or purchase of a thing on or after 25 August 2018.
Guide to Subdivision 308-A
SECTION 308-5
WHAT THIS SUBDIVISION IS ABOUT
This Subdivision sets out offences for the possession, sale or buying of tobacco of various quantities where it is reasonable to suspect that none of the following circumstances exist:
(a) excise duty has been paid on the tobacco;
(b) customs duty has been paid on the tobacco;
(c) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(d) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth.
This Subdivision sets out defences to those offences, such as where an accused person has a relevant permission or licence under excise or customs legislation.
History
S 308-5 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, sale or purchase of a thing on or after 25 August 2018.
TABLE OF SECTIONS
TABLE OF SECTIONS
| 308-10 |
Possession of tobacco (500 kilograms or above) - reasonable suspicion offence |
| 308-15 |
Possession of tobacco (100 kilograms or above) - reasonable suspicion offence |
| 308-20 |
Possession of tobacco (5 kg or above) - reasonable suspicion offence |
| 308-25 |
Sale of tobacco (500 kilograms or above) - reasonable suspicion offence |
| 308-30 |
Sale of tobacco (100 kilograms or above) - reasonable suspicion offence |
| 308-35 |
Sale of tobacco (5 kg or above) - reasonable suspicion offence |
| 308-40 |
Buying of tobacco (500 kilograms or above) - reasonable suspicion offence |
| 308-45 |
Buying of tobacco (100 kilograms or above) - reasonable suspicion offence |
| 308-50 |
Buying of tobacco (5 kg or above) - reasonable suspicion offence |
| 308-55 |
Matters taken to satisfy "reasonable to suspect" requirement |
SECTION 308-10
POSSESSION OF TOBACCO (500 KILOGRAMS OR ABOVE) - REASONABLE SUSPICION OFFENCE
308-10(1)
A person commits an offence if:
(a)
the person possesses a thing; and
(b)
the thing is tobacco (other than tobacco seed or tobacco plant); and
(c)
the place in which the person possesses the tobacco is in Australia but not in an external Territory; and
(d)
it is reasonable to suspect that none of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and
(e)
the weight of the tobacco is 500 kilograms or above.
Penalty: 5 years imprisonment or the greater of the following, or both 5 years imprisonment and the greater of the following:
(a)
1,000 penalty units;
(b)
the amount mentioned in subsection (2) multiplied by 5.
308-10(2)
For the purposes of the penalty in subsection (1), the amount is:
(a)
for tobacco (other than tobacco leaf) - the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(b)
for tobacco leaf, if regulations have been made for the purposes of this paragraph - the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(c)
for tobacco leaf, if regulations have not been made for the purposes of paragraph (b) - nil.
308-10(3)
For the purposes of subsection (2), the day is:
(a)
if the Court knows the day, or days, on which the offence was committed - that day, or the earliest of those days; or
(b)
otherwise - the day on which the prosecution for the offence is instituted.
308-10(4)
Absolute liability applies to paragraph (1)(c).
308-10(5)
Absolute liability applies to paragraph (1)(d).
308-10(6)
Absolute liability applies to paragraph (1)(e).
308-10(7)
Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force:
(a)
a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or
(b)
a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
History
S 308-10(7) amended by No 51 of 2024, s 3 and Sch 1 item 169(b), by substituting "for which there is in force" for "specified in", effective 1 July 2024.
308-10(8)
Subsection (1) does not apply if:
(a)
the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or
(b)
the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or
(c)
the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).
308-10(9)
Subsection (1) does not apply if:
(a)
the person has permission (within the meaning of the Excise Act 1901):
(i)
to possess the tobacco; or
(ii)
to move the tobacco; or
(b)
the tobacco is covered by an authority under section 55 of that Act; or
(c)
the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).
308-10(10)
Subsection (1) does not apply if:
(a)
any of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or
(b)
the person has reasonable grounds to suspect that any of those circumstances exist.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).
History
S 308-10 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, sale or purchase of a thing on or after 25 August 2018.
SECTION 308-15
POSSESSION OF TOBACCO (100 KILOGRAMS OR ABOVE) - REASONABLE SUSPICION OFFENCE
308-15(1)
A person commits an offence if:
(a)
the person possesses a thing; and
(b)
the thing is tobacco (other than tobacco seed or tobacco plant); and
(c)
the place in which the person possesses the tobacco is in Australia but not in an external Territory; and
(d)
it is reasonable to suspect that none of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and
(e)
the weight of the tobacco is 100 kilograms or above.
Penalty: 2 years imprisonment or the greater of the following, or both 2 years imprisonment and the greater of the following:
(a)
500 penalty units;
(b)
the amount mentioned in subsection (2) multiplied by 5.
308-15(2)
For the purposes of the penalty in subsection (1), the amount is:
(a)
for tobacco (other than tobacco leaf) - the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(b)
for tobacco leaf, if regulations have been made for the purposes of this paragraph-the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(c)
for tobacco leaf, if regulations have not been made for the purposes of paragraph (b) - nil.
308-15(3)
For the purposes of subsection (2), the day is:
(a)
if the Court knows the day, or days, on which the offence was committed - that day, or the earliest of those days; or
(b)
otherwise - the day on which the prosecution for the offence is instituted.
308-15(4)
Absolute liability applies to paragraph (1)(c).
308-15(5)
Absolute liability applies to paragraph (1)(d).
308-15(6)
Absolute liability applies to paragraph (1)(e).
308-15(7)
Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force:
(a)
a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or
(b)
a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
History
S 308-15(7) amended by No 51 of 2024, s 3 and Sch 1 item 169(c), by substituting "for which there is in force" for "specified in", effective 1 July 2024.
308-15(8)
Subsection (1) does not apply if:
(a)
the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or
(b)
the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or
(c)
the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).
308-15(9)
Subsection (1) does not apply if:
(a)
the person has permission (within the meaning of the Excise Act 1901):
(i)
to possess the tobacco; or
(ii)
to move the tobacco; or
(b)
the tobacco is covered by an authority under section 55 of that Act; or
(c)
the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).
308-15(10)
Subsection (1) does not apply if:
(a)
any of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or
(b)
the person has reasonable grounds to suspect that any of those circumstances exist.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).
History
S 308-15 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, sale or purchase of a thing on or after 25 August 2018.
SECTION 308-20
POSSESSION OF TOBACCO (5 KG OR ABOVE) - REASONABLE SUSPICION OFFENCE
308-20(1)
A person commits an offence if:
(a)
the person possesses a thing; and
(b)
the thing is tobacco (other than tobacco seed or tobacco plant); and
(c)
the place in which the person possesses the tobacco is in Australia but not in an external Territory; and
(d)
it is reasonable to suspect that none of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and
(e)
the weight of the tobacco is 5 kilograms or above.
Penalty: The greater of the following:
(a)
200 penalty units;
(b)
the amount mentioned in subsection (2) multiplied by 5.
308-20(2)
For the purposes of the penalty in subsection (1), the amount is:
(a)
for tobacco (other than tobacco leaf) - the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(b)
for tobacco leaf, if regulations have been made for the purposes of this paragraph - the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(c)
for tobacco leaf, if regulations have not been made for the purposes of paragraph (b) - nil.
308-20(3)
For the purposes of subsection (2), the day is:
(a)
if the Court knows the day, or days, on which the offence was committed - that day, or the earliest of those days; or
(b)
otherwise - the day on which the prosecution for the offence is instituted.
308-20(4)
Absolute liability applies to paragraph (1)(c).
308-20(5)
Absolute liability applies to paragraph (1)(d).
308-20(6)
Absolute liability applies to paragraph (1)(e).
308-20(7)
Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force:
(a)
a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or
(b)
a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
History
S 308-20(7) amended by No 51 of 2024, s 3 and Sch 1 item 169(d), by substituting "for which there is in force" for "specified in", effective 1 July 2024.
308-20(8)
Subsection (1) does not apply if:
(a)
the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or
(b)
the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or
(c)
the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).
308-20(9)
Subsection (1) does not apply if:
(a)
the person has permission (within the meaning of the Excise Act 1901):
(i)
to possess the tobacco; or
(ii)
to move the tobacco; or
(b)
the tobacco is covered by an authority under section 55 of that Act; or
(c)
the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).
308-20(10)
Subsection (1) does not apply if:
(a)
any of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or
(b)
the person has reasonable grounds to suspect that any of those circumstances exist.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).
History
S 308-20 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, sale or purchase of a thing on or after 25 August 2018.
SECTION 308-25
SALE OF TOBACCO (500 KILOGRAMS OR ABOVE) - REASONABLE SUSPICION OFFENCE
308-25(1)
A person commits an offence if:
(a)
the person sells a thing; and
(b)
the thing is tobacco (other than tobacco seed or tobacco plant); and
(c)
the tobacco is in Australia but not in an external Territory; and
(d)
it is reasonable to suspect that none of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and
(e)
the weight of the tobacco is 500 kilograms or above.
Penalty: 5 years imprisonment or the greater of the following, or both 5 years imprisonment and the greater of the following:
(a)
1,000 penalty units;
(b)
the amount mentioned in subsection (2) multiplied by 5.
308-25(2)
For the purposes of the penalty in subsection (1), the amount is:
(a)
for tobacco (other than tobacco leaf) - the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(b)
for tobacco leaf, if regulations have been made for the purposes of this paragraph - the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(c)
for tobacco leaf, if regulations have not been made for the purposes of paragraph (b) - nil.
308-25(3)
For the purposes of subsection (2), the day is:
(a)
if the Courtknows the day, or days, on which the offence was committed - that day, or the earliest of those days; or
(b)
otherwise - the day on which the prosecution for the offence is instituted.
308-25(4)
Absolute liability applies to paragraph (1)(c).
308-25(5)
Absolute liability applies to paragraph (1)(d).
308-25(6)
Absolute liability applies to paragraph (1)(e).
308-25(7)
Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force:
(a)
a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or
(b)
a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
History
S 308-25(7) amended by No 51 of 2024, s 3 and Sch 1 item 169(e), by substituting "for which there is in force" for "specified in", effective 1 July 2024.
308-25(8)
Subsection (1) does not apply if:
(a)
the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or
(b)
the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or
(c)
the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).
308-25(9)
Subsection (1) does not apply if:
(a)
the person has permission (within the meaning of the Excise Act 1901):
(i)
to possess the tobacco; or
(ii)
to move the tobacco; or
(b)
the tobacco is covered by an authority under section 55 of that Act; or
(c)
the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).
308-25(10)
Subsection (1) does not apply if:
(a)
any of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or
(b)
the person has reasonable grounds to suspect that any of those circumstances exist.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).
History
S 308-25 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, sale or purchase of a thing on or after 25 August 2018.
SECTION 308-30
SALE OF TOBACCO (100 KILOGRAMS OR ABOVE) - REASONABLE SUSPICION OFFENCE
308-30(1)
A person commits an offence if:
(a)
the person sells a thing; and
(b)
the thing is tobacco (other than tobacco seed or tobacco plant); and
(c)
the tobacco is in Australia but not in an external Territory; and
(d)
it is reasonable to suspect that none of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and
(e)
the weight of the tobacco is 100 kilograms or above.
Penalty: 2 years imprisonment or the greater of the following, or both 2 years imprisonment and the greater of the following:
(a)
500 penalty units;
(b)
the amount mentioned in subsection (2) multiplied by 5.
308-30(2)
For the purposes of the penalty in subsection (1), the amount is:
(a)
for tobacco (other than tobacco leaf) - the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(b)
for tobacco leaf, if regulations have been made for the purposes of this paragraph - the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(c)
for tobacco leaf, if regulations have not been made for the purposes of paragraph (b) - nil.
308-30(3)
For the purposes of subsection (2), the day is:
(a)
if the Court knows the day, or days, on which the offence was committed - that day, or the earliest of those days; or
(b)
otherwise - the day on which the prosecution for the offence is instituted.
308-30(4)
Absolute liability applies to paragraph (1)(c).
308-30(5)
Absolute liability applies to paragraph (1)(d).
308-30(6)
Absolute liability applies to paragraph (1)(e).
308-30(7)
Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force:
(a)
a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or
(b)
a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
History
S 308-30(7) amended by No 51 of 2024, s 3 and Sch 1 item 169(f), by substituting "for which there is in force" for "specified in", effective 1 July 2024.
308-30(8)
Subsection (1) does not apply if:
(a)
the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or
(b)
the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or
(c)
the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).
308-30(9)
Subsection (1) does not apply if:
(a)
the person has permission (within the meaning of the Excise Act 1901):
(i)
to possess the tobacco; or
(ii)
to move the tobacco; or
(b)
the tobacco is covered by an authority under section 55 of that Act; or
(c)
the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).
308-30(10)
Subsection (1) does not apply if:
(a)
any of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or
(b)
the person has reasonable grounds to suspect that any of those circumstances exist.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).
History
S 308-30 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, sale or purchase of a thing on or after 25 August 2018.
SECTION 308-35
SALE OF TOBACCO (5 KG OR ABOVE) - REASONABLE SUSPICION OFFENCE
308-35(1)
A person commits an offence if:
(a)
the person sells a thing; and
(b)
the thing is tobacco (other than tobacco seed or tobacco plant); and
(c)
the tobacco is in Australia but not in an external Territory; and
(d)
it is reasonable to suspect that none of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and
(e)
the weight of the tobacco is 5 kilograms or above.
Penalty: The greater of the following:
(a)
200 penalty units;
(b)
the amount mentioned in subsection (2) multiplied by 5.
308-35(2)
For the purposes of the penalty in subsection (1), the amount is:
(a)
for tobacco (other than tobacco leaf) - the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(b)
for tobacco leaf, if regulations have been made for the purposes of this paragraph - the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(c)
for tobacco leaf, if regulations have not been made for the purposes of paragraph (b) - nil.
308-35(3)
For the purposes of subsection (2), the day is:
(a)
if the Court knows the day, or days, on which the offence was committed - that day, or the earliest of those days; or
(b)
otherwise - the day on which the prosecution for the offence is instituted.
308-35(4)
Absolute liability applies to paragraph (1)(c).
308-35(5)
Absolute liability applies to paragraph (1)(d).
308-35(6)
Absolute liability applies to paragraph (1)(e).
308-35(7)
Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force:
(a)
a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or
(b)
a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
History
S 308-35(7) amended by No 51 of 2024, s 3 and Sch 1 item 169(g), by substituting "for which there is in force" for "specified in", effective 1 July 2024.
308-35(8)
Subsection (1) does not apply if:
(a)
the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or
(b)
the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or
(c)
the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).
308-35(9)
Subsection (1) does not apply if:
(a)
the person has permission (within the meaning of the Excise Act 1901):
(i)
to possess the tobacco; or
(ii)
to move the tobacco; or
(b)
the tobacco is covered by an authority under section 55 of that Act; or
(c)
the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).
308-35(10)
Subsection (1) does not apply if:
(a)
any of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or
(b)
the person has reasonable grounds to suspect that any of those circumstances exist.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).
History
S 308-35 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, sale or purchase of a thing on or after25 August 2018.
SECTION 308-40
BUYING OF TOBACCO (500 KILOGRAMS OR ABOVE) - REASONABLE SUSPICION OFFENCE
308-40(1)
A person commits an offence if:
(a)
the person buys a thing; and
(b)
the thing is tobacco (other than tobacco seed or tobacco plant); and
(c)
the tobacco is in Australia but not in an external Territory; and
(d)
it is reasonable to suspect that none of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and
(e)
the weight of the tobacco is 500 kilograms or above.
Penalty: 5 years imprisonment or the greater of the following, or both 5 years imprisonment and the greater of the following:
(a)
1,000 penalty units;
(b)
the amount mentioned in subsection (2) multiplied by 5.
308-40(2)
For the purposes of the penalty in subsection (1), the amount is:
(a)
for tobacco (other than tobacco leaf) - the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(b)
for tobacco leaf, if regulations have been made for the purposes of this paragraph - the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(c)
for tobacco leaf, if regulations have not been made for the purposes of paragraph (b) - nil.
308-40(3)
For the purposes of subsection (2), the day is:
(a)
if the Court knows the day, or days, on which the offence was committed - that day, or the earliest of those days; or
(b)
otherwise - the day on which the prosecution for the offence is instituted.
308-40(4)
Absolute liability applies to paragraph (1)(c).
308-40(5)
Absolute liability applies to paragraph (1)(d).
308-40(6)
Absolute liability applies to paragraph (1)(e).
308-40(7)
Subsection (1)does not apply if the tobacco is kept or stored at premises for which there is in force:
(a)
a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or
(b)
a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
History
S 308-40(7) amended by No 51 of 2024, s 3 and Sch 1 item 169(h), by substituting "for which there is in force" for "specified in", effective 1 July 2024.
308-40(8)
Subsection (1) does not apply if:
(a)
the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or
(b)
the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or
(c)
the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).
308-40(9)
Subsection (1) does not apply if:
(a)
the person has permission (within the meaning of the Excise Act 1901):
(i)
to possess the tobacco; or
(ii)
to move the tobacco; or
(b)
the tobacco is covered by an authority under section 55 of that Act; or
(c)
the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).
308-40(10)
Subsection (1) does not apply if:
(a)
any of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or
(b)
the person has reasonable grounds to suspect that any of those circumstances exist.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).
History
S 308-40 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, sale or purchase of a thing on or after 25 August 2018.
SECTION 308-45
BUYING OF TOBACCO (100 KILOGRAMS OR ABOVE) - REASONABLE SUSPICION OFFENCE
308-45(1)
A person commits an offence if:
(a)
the person buys a thing; and
(b)
the thing is tobacco (other than tobacco seed or tobacco plant); and
(c)
the tobacco is in Australia but not in an external Territory; and
(d)
it is reasonable to suspect that none of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and
(e)
the weight of the tobacco is 100 kilograms or above.
Penalty: 2 years imprisonment or the greater of the following, or both 2 years imprisonment and the greater of the following:
(a)
500 penalty units;
(b)
the amount mentioned in subsection (2) multiplied by 5.
308-45(2)
For the purposes of the penalty in subsection (1), the amount is:
(a)
for tobacco (other than tobacco leaf) - the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(b)
for tobacco leaf, if regulations have been made for the purposes of this paragraph-the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(c)
for tobacco leaf, if regulations have not been made for the purposes of paragraph (b) - nil.
308-45(3)
For the purposes of subsection (2), the day is:
(a)
if the Court knows the day, or days, on which the offence was committed - that day, or the earliest of those days; or
(b)
otherwise - the day on which the prosecution for the offence is instituted.
308-45(4)
Absolute liability applies to paragraph (1)(c).
308-45(5)
Absolute liability applies to paragraph (1)(d).
308-45(6)
Absolute liability applies to paragraph (1)(e).
308-45(7)
Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force:
(a)
a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or
(b)
a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
History
S 308-45(7) amended by No 51 of 2024, s 3 and Sch 1 item 169(i), by substituting "for which there is in force" for "specified in", effective 1 July 2024.
308-45(8)
Subsection (1) does not apply if:
(a)
the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or
(b)
the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or
(c)
the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).
308-45(9)
Subsection (1) does not apply if:
(a)
the person has permission (within the meaning of the Excise Act 1901):
(i)
to possess the tobacco; or
(ii)
to move the tobacco; or
(b)
the tobacco is covered by an authority under section 55 of that Act; or
(c)
the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).
308-45(10)
Subsection (1) does not apply if:
(a)
any of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or
(b)
the person has reasonable grounds to suspect that any of those circumstances exist.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).
History
S 308-45 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, sale or purchase of a thing on or after 25 August 2018.
SECTION 308-50
BUYING OF TOBACCO (5 KG OR ABOVE) - REASONABLE SUSPICION OFFENCE
308-50(1)
A person commits an offence if:
(a)
the person buys a thing; and
(b)
the thing is tobacco (other than tobacco seed or tobacco plant); and
(c)
the tobacco is in Australia but not in an external Territory; and
(d)
it is reasonable to suspect that none of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and
(e)
the weight of the tobacco is 5 kilograms or above.
Penalty: The greater of the following:
(a)
200 penalty units;
(b)
the amount mentioned in subsection (2) multiplied by 5.
308-50(2)
For the purposes of the penalty in subsection (1), the amount is:
(a)
for tobacco (other than tobacco leaf) - the amount of excise duty that would be payable assuming that thetobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(b)
for tobacco leaf, if regulations have been made for the purposes of this paragraph - the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(c)
for tobacco leaf, if regulations have not been made for the purposes of paragraph (b) - nil.
308-50(3)
For the purposes of subsection (2), the day is:
(a)
if the Court knows the day, or days, on which the offence was committed - that day, or the earliest of those days; or
(b)
otherwise - the day on which the prosecution for the offence is instituted.
308-50(4)
Absolute liability applies to paragraph (1)(c).
308-50(5)
Absolute liability applies to paragraph (1)(d).
308-50(6)
Absolute liability applies to paragraph (1)(e).
308-50(7)
Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force:
(a)
a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or
(b)
a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
History
S 308-50(7) amended by No 51 of 2024, s 3 and Sch 1 item 169(j), by substituting "for which there is in force" for "specified in", effective 1 July 2024.
308-50(8)
Subsection (1) does not apply if:
(a)
the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or
(b)
the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or
(c)
the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).
308-50(9)
Subsection (1) does not apply if:
(a)
the person has permission (within the meaning of the Excise Act 1901):
(i)
to possess the tobacco; or
(ii)
to move the tobacco; or
(b)
the tobacco is covered by an authority under section 55 of that Act; or
(c)
the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).
308-50(10)
Subsection (1) does not apply if:
(a)
any of the following circumstances exist:
(i)
*excise duty has been paid on the tobacco;
(ii)
*customs duty has been paid on the tobacco;
(iii)
excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;
(iv)
customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or
(b)
the person has reasonable grounds to suspect that any of those circumstances exist.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).
History
S 308-50 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, sale or purchase of a thing on or after 25 August 2018.
SECTION 308-55
MATTERS TAKEN TO SATISFY "REASONABLE TO SUSPECT" REQUIREMENT
308-55(1)
Without limiting paragraphs 308-10(1)(d), 308-15(1)(d), 308-20(1)(d), 308-25(1)(d), 308-30(1)(d), 308-35(1)(d), 308-40(1)(d), 308-45(1)(d) and 308-50(1)(d), those paragraphs are taken to be satisfied if any of the following circumstances exist:
(a)
the tobacco is not in retail packaging that complies with the requirements in Chapter 3 of the Public Health (Tobacco and Other Products) Act 2023;
(b)
the tobacco does not comply with the requirements for a tobacco product in Chapter 3 of the Public Health (Tobacco and Other Products) Act 2023;
(c)
in the case of buying or selling:
(i)
an information standard has been made under subsection 134(1) or 135(1) of Schedule 2 to the Competition and Consumer Act 2010 for tobacco (or for a particular kind of tobacco); and
(ii)
the supplier does not comply with the standard in supplying the tobacco;
(d)
if a safety standard has been made or declared under subsection 104(1) or 105(1) of Schedule 2 to the Competition and Consumer Act 2010 for tobacco (or for a particular kind of tobacco) - the tobacco does not comply with the standard;
(e)
a permanent ban or an interim ban on consumer goods in force under Part 3-3 of Schedule 2 to the Competition and Consumer Act 2010 applies to the tobacco;
(ea)
a permanent ban under Chapter 4 of the Public Health (Tobacco and Other Products) Act 2023 applies to the tobacco;
(f)
in the case of buying or selling - the price of the tobacco, or the advertised or offered price for the tobacco, is less than the sum of the following amounts:
(i)
the lower of the amount of *excise duty or *customs duty that would apply to the tobacco, assuming that such duty were applicable to the tobacco and that no exemption or reduction of such duty were applicable;
(ii)
the amount of *GST that would apply to the sale of the tobacco, assuming that GST were applicable to the sale;
(g)
in the case of buying or selling:
(i)
a law of a State or Territory that applies to the buying or selling of the tobacco makes it unlawful to buy or sell tobacco in certain circumstances; and
(ii)
the buying or selling happens in such circumstances;
(h)
the person has not provided any of the following:
(i)
a *tax invoice indicating how the person obtained the tobacco;
(ii)
a bill of lading indicating how the person obtained the tobacco;
(iii)
a customs declaration indicating how the person obtained the tobacco;
(i)
the person:
(i)
has stated that the possession, selling or buying was engaged in on behalf of or at the request of another person; and
(ii)
has not provided information enabling the other person to be identified and located;
(j)
in the case of selling:
(i)
the *GST law requires the person to give the buyer of the tobacco a tax invoice in respect of the sale; and
(ii)
the person fails to meet that requirement;
(k)
the tobacco is tobacco leaf that:
(i)
has not been subjected to any process; or
(ii)
has been subjected only to the process of curing the leaf as stripped from the plant.
History
S 308-55(1) amended by No 119 of 2023, s 3 and Sch 1 items 18-20, by substituting "Chapter 3 of the Public Health (Tobacco and Other Products) Act 2023" for "Chapter 2 of the Tobacco Plain Packaging Act 2011" in para (a), "for a tobacco product in Chapter 3 of the Public Health (Tobacco and Other Products) Act 2023" for "mentioned in sections 26 and 27 of the Tobacco Plain Packaging Act 2011" in para (b) and inserting para (ea), effective 1 April 2024.
308-55(2)
To avoid doubt, subsection (1) does not apply for the purposes of subsections 308-10(10), 308-15(10), 308-20(10), 308-25(10), 308-30(10), 308-35(10), 308-40(10), 308-45(10) and 308-50(10).
History
S 308-55 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, sale or purchase of a thing on or after 25 August 2018.
Subdivision 308-B - Fault-based offences of possession, production and manufacture
History
Subdiv 308-B inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, manufacture or production of a thing on or after 25 August 2018.
Guide to Subdivision 308-B
SECTION 308-105
WHAT THIS SUBDIVISION IS ABOUT
This Subdivision sets out offences for the possession, manufacturing or production of tobacco of various quantities where:
(a) the tobacco is excisable goods, tobacco seed or tobacco plant, or tobacco leaf that has not been subjected to any relevant process; and
(b) if excise duty is payable on the tobacco, the full amount of that excise duty has not been paid.
This Subdivision sets out defences to those offences, such as where an accused person has a relevant permission or licence under excise or customs legislation.
History
S 308-105 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, manufacture or production of a thing on or after 25 August 2018.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 308-110 |
Possession of tobacco (500 kg or above) - fault-based offence |
| 308-115 |
Possession of tobacco (100 kg or above) - fault-based offence |
| 308-120 |
Possession of tobacco (5 kg or above) - fault-based offence |
| 308-125 |
Manufacture or production of tobacco (500 kg or above) - fault-based offence |
| 308-130 |
Manufacture or production of tobacco (100 kg or above) - fault-based offence |
| 308-135 |
Manufacture or production of tobacco (5 kg or above) - fault-based offence |
SECTION 308-110
POSSESSION OF TOBACCO (500 KG OR ABOVE) - FAULT-BASED OFFENCE
308-110(1)
A person commits an offence if:
(a)
the person possesses a thing; and
(b)
the thing is tobacco; and
(c)
the place in which the person possesses the tobacco is in Australia but not in an external Territory; and
(d)
the tobacco is:
(i)
*excisable goods; or
(ii)
tobacco seed or tobacco plant; or
(iii)
tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and
(e)
in a case where the tobacco is excisable goods:
(i)
*excise duty is payable on the tobacco; and
(ii)
the full amount of excise duty has not been paid on the tobacco; and
(f)
the weight of the tobacco is 500 kilograms or above.
Penalty: 10 years imprisonment or the greater of the following, or both 10 years imprisonment and the greater of the following:
(a)
1,500 penalty units;
(b)
the amount mentioned in subsection (2) multiplied by 5.
308-110(2)
For the purposes of the penalty in subsection (1), the amount is:
(a)
for tobacco (other than tobacco plant or tobacco leaf) - the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(b)
for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph - the amount of excise duty that would be payable, as worked out under the regulations, assuming that:
(i)
for tobacco plant - the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(ii)
for tobacco leaf - the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(c)
for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b) - nil.
308-110(3)
For the purposes of subsection (2), the day is:
(a)
if the Court knows the day, or days, on which the offence was committed - that day, or the earliest of those days; or
(b)
otherwise - the day on which the prosecution for the offence is instituted.
308-110(4)
Absolute liability applies to paragraph (1)(c).
308-110(5)
Absolute liability applies to paragraph (1)(f).
308-110(6)
Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force:
(a)
a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or
(b)
a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
History
S 308-110(6) amended by No 51 of 2024, s 3 and Sch 1 item 169(k), by substituting "for which there is in force" for "specified in", effective 1 July 2024.
308-110(7)
Subsection (1) does not apply if:
(a)
the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or
(b)
the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or
(c)
the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
308-110(8)
Subsection (1) does not apply if:
(a)
the person has permission (within the meaning of the Excise Act 1901):
(i)
to possess the tobacco; or
(ii)
to move the tobacco; or
(b)
the tobacco is covered by an authority under section 55 of that Act; or
(c)
the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).
History
S 308-110 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, manufacture or production of a thing on or after 25 August 2018.
SECTION 308-115
POSSESSION OF TOBACCO (100 KG OR ABOVE) - FAULT-BASED OFFENCE
308-115(1)
A person commits an offence if:
(a)
the person possesses a thing; and
(b)
the thing is tobacco; and
(c)
the place in which the person possesses the tobacco is in Australia but not in an external Territory; and
(d)
the tobacco is:
(i)
*excisable goods; or
(ii)
tobacco seed or tobacco plant; or
(iii)
tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and
(e)
in a case where the tobacco is excisable goods:
(i)
*excise duty is payable on the tobacco; and
(ii)
the full amount of excise duty has not been paid on the tobacco; and
(f)
the weight of the tobacco is 100 kilograms or above.
Penalty: 5 years imprisonment or the greater of the following, or both 5 years imprisonment and the greater of the following:
(a)
1,000 penalty units;
(b)
the amount mentioned in subsection (2) multiplied by 5.
308-115(2)
For the purposes of the penalty in subsection (1), the amount is:
(a)
for tobacco (other than tobacco plant or tobacco leaf) - the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(b)
for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph - the amount of excise duty that would be payable, as worked out under the regulations, assuming that:
(i)
for tobacco plant - the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(ii)
for tobacco leaf - the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(c)
for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b) - nil.
308-115(3)
For the purposes of subsection (2), the day is:
(a)
if the Court knows the day, or days, on which the offence was committed - that day, or the earliest of those days; or
(b)
otherwise - the day on which the prosecution for the offence is instituted.
308-115(4)
Absolute liability applies to paragraph (1)(c).
308-115(5)
Absolute liability applies to paragraph (1)(f).
308-115(6)
Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force:
(a)
a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or
(b)
a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
History
S 308-115(6) amended by No 51 of 2024, s 3 and Sch 1 item 169(l), by substituting "for which there is in force" for "specified in", effective 1 July 2024.
308-115(7)
Subsection (1) does not apply if:
(a)
the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or
(b)
the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or
(c)
the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
308-115(8)
Subsection (1) does not apply if the person has permission (within the meaning of the Excise Act 1901):
(a)
to possess the tobacco; or
(b)
to move the tobacco; or
(c)
to deliver the tobacco for home consumption without entering it for that purpose.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).
History
S 308-115 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, manufacture or production of a thing on or after 25 August 2018.
SECTION 308-120
POSSESSION OF TOBACCO (5 KG OR ABOVE) - FAULT-BASED OFFENCE
308-120(1)
A person commits an offence if:
(a)
the person possesses a thing; and
(b)
the thing is tobacco; and
(c)
the place in which the person possesses the tobacco is in Australia but not in an external Territory; and
(d)
the tobacco is:
(i)
*excisable goods; or
(ii)
tobacco seed or tobacco plant; or
(iii)
tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and
(e)
in a case where the tobacco is excisable goods:
(i)
*excise duty is payable on the tobacco; and
(ii)
the full amount of excise duty has not been paid on the tobacco; and
(f)
the weight of the tobacco is 5 kilograms or above.
Penalty: The greater of the following:
(a)
500 penalty units;
(b)
the amount mentioned in subsection (2) multiplied by 5.
308-120(2)
For the purposes of the penalty in subsection (1), the amount is:
(a)
for tobacco (other than tobacco plant or tobacco leaf) - the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(b)
for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph - the amount of excise duty that would be payable, as worked out under the regulations, assuming that:
(i)
for tobacco plant - the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(ii)
for tobacco leaf - the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(c)
for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b) - nil.
308-120(3)
For the purposes of subsection (2), the day is:
(a)
if the Court knows the day, or days, on which the offence was committed - that day, or the earliest of those days; or
(b)
otherwise - the day on which the prosecution for the offence is instituted.
308-120(4)
Absolute liability applies to paragraph (1)(c).
308-120(5)
Absolute liability applies to paragraph (1)(f).
308-120(6)
Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force:
(a)
a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or
(b)
a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
History
S 308-120(6) amended by No 51 of 2024, s 3 and Sch 1 item 169(m), by substituting "for which there is in force" for "specified in", effective 1 July 2024.
308-120(7)
Subsection (1) does not apply if:
(a)
the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or
(b)
the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or
(c)
the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
308-120(8)
Subsection (1) does not apply if the person has permission (within the meaning of the Excise Act 1901):
(a)
to possess the tobacco; or
(b)
to move the tobacco; or
(c)
to deliver the tobacco for home consumption without entering it for that purpose.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).
History
S 308-120 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, manufacture or production of a thing on or after 25 August 2018.
SECTION 308-125
MANUFACTURE OR PRODUCTION OF TOBACCO (500 KG OR ABOVE) - FAULT-BASED OFFENCE
308-125(1)
A person commits an offence if:
(a)
the person manufactures or produces a thing; and
(b)
the thing is tobacco; and
(c)
the place in which the person manufactures or produces the tobacco is in Australia but not in an external Territory; and
(d)
the tobacco is:
(i)
*excisable goods; or
(ii)
tobacco seed or tobacco plant; or
(iii)
tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and
(e)
in a case where the tobacco is excisable goods:
(i)
*excise duty is payable on the tobacco; and
(ii)
the full amount of excise duty has not been paid on the tobacco; and
(f)
the weight of the tobacco is 500 kilograms or above.
Penalty: 10 years imprisonment or the greater of the following, or both 10 years imprisonment and the greater of the following:
(a)
1,500 penalty units;
(b)
the amount mentioned in subsection (2) multiplied by 5.
308-125(2)
For the purposes of the penalty in subsection (1), the amount is:
(a)
for tobacco (other than tobacco plant or tobacco leaf) - the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(b)
for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph - the amount of excise duty that would be payable, as worked out under the regulations, assuming that:
(i)
for tobacco plant - the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(ii)
for tobacco leaf - the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(c)
for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b) - nil.
308-125(3)
For the purposes of subsection (2), the day is:
(a)
if the Court knows the day, or days, on which the offence was committed - that day, or the earliest of those days; or
(b)
otherwise - the day on which the prosecution for the offence is instituted.
308-125(4)
Absolute liability applies to paragraph (1)(c).
308-125(5)
Absolute liability applies to paragraph (1)(f).
308-125(6)
Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force:
(a)
a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or
(b)
a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
History
S 308-125(6) amended by No 51 of 2024, s 3 and Sch 1 item 169(n), by substituting "for which there is in force" for "specified in", effective 1 July 2024.
308-125(7)
Subsection (1) does not apply if:
(a)
the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or
(b)
the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or
(c)
the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
History
S 308-125 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, manufacture or production of a thing on or after 25 August 2018.
SECTION 308-130
MANUFACTURE OR PRODUCTION OF TOBACCO (100 KG OR ABOVE) - FAULT-BASED OFFENCE
308-130(1)
A person commits an offence if:
(a)
the person manufactures or produces a thing; and
(b)
the thing is tobacco; and
(c)
the place in which the person manufactures or produces the tobacco is in Australia but not in an external Territory; and
(d)
the tobacco is:
(i)
*excisable goods; or
(ii)
tobacco seed or tobacco plant; or
(iii)
tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and
(e)
in a case where the tobacco is excisable goods:
(i)
*excise duty is payable on the tobacco; and
(ii)
the full amount of excise duty has not been paid on the tobacco; and
(f)
the weight of the tobacco is 100 kilograms or above.
Penalty: 5 years imprisonment or the greater of the following, or both 5 years imprisonment and the greater of the following:
(a)
1,000 penalty units;
(b)
the amount mentioned in subsection (2) multiplied by 5.
308-130(2)
For the purposes of the penalty in subsection (1), the amount is:
(a)
for tobacco (other than tobacco plant or tobacco leaf) - the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(b)
for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph - the amount of excise duty that would be payable, as worked out under the regulations, assuming that:
(i)
for tobacco plant - the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(ii)
for tobacco leaf - the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(c)
for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b) - nil.
308-130(3)
For the purposes of subsection (2), the day is:
(a)
if the Court knows the day, or days, on which the offence was committed - that day, or the earliest of those days; or
(b)
otherwise - the day on which the prosecution for the offence is instituted.
308-130(4)
Absolute liability applies to paragraph (1)(c).
308-130(5)
Absolute liability applies to paragraph (1)(f).
308-130(6)
Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force:
(a)
a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or
(b)
a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
History
S 308-130(6) amended by No 51 of 2024, s 3 and Sch 1 item 169(o), by substituting "for which there is in force" for "specified in", effective 1 July 2024.
308-130(7)
Subsection (1) does not apply if:
(a)
the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or
(b)
the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or
(c)
the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
History
S 308-130 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, manufacture or production of a thing on or after 25 August 2018.
SECTION 308-135
MANUFACTURE OR PRODUCTION OF TOBACCO (5 KG OR ABOVE) - FAULT-BASED OFFENCE
308-135(1)
A person commits an offence if:
(a)
the person manufactures or produces a thing; and
(b)
the thing is tobacco; and
(c)
the place in which the person manufactures or produces the tobacco is in Australia but not in an external Territory; and
(d)
the tobacco is:
(i)
*excisable goods; or
(ii)
tobacco seed or tobacco plant; or
(iii)
tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and
(e)
in a case where the tobacco is excisable goods:
(i)
*excise duty is payable on the tobacco; and
(ii)
the full amount of excise duty has not been paid on the tobacco; and
(f)
the weight of the tobacco is 5 kilograms or above.
Penalty: The greater of the following:
(a)
500 penalty units;
(b)
the amount mentioned in subsection (2) multiplied by 5.
308-135(2)
For the purposes of the penalty in subsection (1), the amount is:
(a)
for tobacco (other than tobacco plant or tobacco leaf) - the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(b)
for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph - the amount of excise duty that would be payable, as worked out under the regulations, assuming that:
(i)
for tobacco plant - the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(ii)
for tobacco leaf - the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or
(c)
for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b) - nil.
308-135(3)
For the purposes of subsection (2), the day is:
(a)
if the Court knows the day, or days, on which the offence was committed - that day, or the earliest of those days; or
(b)
otherwise - the day on which the prosecution for the offence is instituted.
308-135(4)
Absolute liability applies to paragraph (1)(c).
308-135(5)
Absolute liability applies to paragraph (1)(f)).
308-135(6)
Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force:
(a)
a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or
(b)
a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
History
S 308-135(6) amended by No 51 of 2024, s 3 and Sch 1 item 169(p), by substituting "for which there is in force" for "specified in", effective 1 July 2024.
308-135(7)
Subsection (1) does not apply if:
(a)
the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or
(b)
the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or
(c)
the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
History
S 308-135 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession, manufacture or production of a thing on or after 25 August 2018.
Subdivision 308-C - Offences relating to equipment relating to the manufacture or production of tobacco
History
Subdiv 308-C inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession of equipment on or after 25 August 2018.
Guide to Subdivision 308-C
SECTION 308-200
WHAT THIS SUBDIVISION IS ABOUT
This Subdivision sets out offences for the possession of equipment for use in illegal manufacture or production of tobacco, or of equipment designed or adapted to manufacture or produce tobacco.
History
S 308-200 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession of equipment on or after 25 August 2018.
TABLE OF SECTIONS
TABLE OF SECTIONS
| 308-205 |
Possession of equipment for use in illegal manufacture or production of tobacco |
| 308-210 |
Possession of equipment designed or adapted to manufacture or produce tobacco |
SECTION 308-205
POSSESSION OF EQUIPMENT FOR USE IN ILLEGAL MANUFACTURE OR PRODUCTION OF TOBACCO
308-205(1)
A person (the
first person
) commits an offence if:
(a)
the first person possesses equipment at a time; and
(b)
the place in which the first person possesses the equipment is in Australia but not in an external Territory; and
(c)
the first person is reckless as to whether a particular person (whether or not the first person) will, at a later time, use the equipment to manufacture or produce tobacco; and
(d)
the first person intends to possess the equipment at that later time; and
(e)
that manufacture or production by that particular person at that later time would constitute an offence against any of the following provisions:
(i)
section 308-125, 308-130 or 308-135;
(ii)
section 25 or 28 of the Excise Act 1901.
Penalty: Imprisonment for 12 months or 120 penalty units, or both.
308-205(2)
Absolute liability applies to paragraph (1)(b).
308-205(3)
Absolute liability applies to paragraph (1)(e).
308-205(4)
Subsection (1) does not apply if the first person has no reasonable ground to consider that the manufacture or production by the particular person at the later time would constitute an offence against any of the provisions mentioned in paragraph (1)(e).
Note:
A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
History
S 308-205 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession of equipment on or after 25 August 2018.
SECTION 308-210
POSSESSION OF EQUIPMENT DESIGNED OR ADAPTED TO MANUFACTURE OR PRODUCE TOBACCO
308-210(1)
A person commits an offence if:
(a)
the person possesses equipment at a time; and
(b)
the place in which the person possesses the equipment is in Australia but not in an external Territory; and
(c)
a reasonable person, with a full knowledge and understanding of the functioning of the equipment, would conclude that the equipment is designed or adapted specifically to manufacture or produce tobacco; and
(d)
on the assumption that, at the time mentioned in paragraph (a), the person used the equipment to manufacture or produce tobacco, the person would commit an offence against any of the following provisions:
(i)
section 308-125, 308-130 or 308-135;
(ii)
section 25 or 28 of the Excise Act 1901.
Penalty: Imprisonment for 12 months or 120 penalty units, or both.
308-210(2)
Absolute liability applies to paragraph (1)(b).
308-210(3)
Absolute liability applies to paragraph (1)(d).
308-210(4)
Subsection (1) does not apply if the person possesses the equipment:
(a)
for the sole purpose of the disposal or destruction of the equipment; or
(b)
for the sole purpose of the export of the equipment.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
308-210(5)
Subsection (1) does not apply if:
(a)
the person possesses the equipment on behalf of another person; and
(b)
assuming that, at the time mentioned in paragraph (a), the other person used the equipment in Australia (but not in an external Territory) to manufacture or produce tobacco, the other person would not commit an offence under any of the following provisions:
(i)
section 308-125, 308-130 or 308-135;
(ii)
section 25 or 28 of the Excise Act 1901.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).
History
S 308-210 inserted by No 82 of 2018, s 3 and Sch 1 item 6, applicable to possession of equipment on or after 25 August 2018.
Subdivision 308-E - Other provisions
History
Subdiv 308-E inserted by No 82 of 2018, s 3 and Sch 1 item 6, effective 25 August 2018.
Guide to Subdivision 308-E
SECTION 308-500
WHAT THIS SUBDIVISION IS ABOUT
This Subdivision sets out various miscellaneous rules that relate to the offences in other provisions of this Division, including rules that treat certain things as tobacco and certain matters as possession.
History
S 308-500 inserted by No 82 of 2018, s 3 and Sch 1 item 6, effective 25 August 2018.
TABLE OF SECTIONS
TABLE OF SECTIONS
| 308-505 |
Things treated as tobacco |
| 308-510 |
Matters treated as possession |
| 308-515 |
Where excise duty or customs duty is treated as not payable for the purpose of the reasonable suspicion offences |
| 308-520 |
Section 8ZD does not apply to this Division |
SECTION 308-505
THINGS TREATED AS TOBACCO
308-505(1)
For the purposes of this Division, treat as tobacco any thing (including moisture) added to the tobacco leaf during manufacturing or processing.
308-505(2)
To avoid doubt, for the purposes of this Division:
(a)
treat tobacco seed, tobacco plant (whether or not in the ground) and tobacco leaf as tobacco; and
(b)
treat cigars, cigarettes and snuff as tobacco.
History
S 308-505 inserted by No 82 of 2018, s 3 and Sch 1 item 6, effective 25 August 2018.
SECTION 308-510
MATTERS TREATED AS POSSESSION
308-510(1)
For the purposes of this Division, treat a person as possessing a thing if the person:
(a)
receives or obtains possession of the thing; or
(b)
has control over the disposition of the thing (whether or not the thing is in the custody of the person); or
(c)
has joint possession of the thing with one or more other persons.
308-510(2)
To avoid doubt, subsection (1) does not limit, for the purposes of this Division, when a person possesses a thing.
308-510(3)
For the purposes of this Division, a person may possess tobacco plant even if the plant is in the ground.
History
S 308-510 inserted by No 82 of 2018, s 3 and Sch 1 item 6, effective 25 August 2018.
SECTION 308-515
WHERE EXCISE DUTY OR CUSTOMS DUTY IS TREATED AS NOT PAYABLE FOR THE PURPOSE OF THE REASONABLE SUSPICION OFFENCES
308-515(1)
For the purposes of Subdivision 308-A, treat *excise duty as not payable on tobacco because of an exemption under a law of the Commonwealth if:
(a)
a "free" rate of *excise duty applies on the tobacco; or
(b)
there is a remission of all of the excise duty payable on the tobacco.
308-515(2)
For the purposes of Subdivision 308-A, treat *customs duty as not payable on tobacco because of an exemption under a law of the Commonwealth if:
(a)
a "free" rate of *customs duty applies on the tobacco; or
(b)
there is a remission of all of the customs duty payable on the tobacco.
308-515(3)
To avoid doubt, subsections (1) and (2) do not limit, for the purposes of Subdivision 308-A, when *excise duty or *customs duty is not payable on tobacco because of an exemption under a law of the Commonwealth.
History
S 308-515 inserted by No 82 of 2018, s 3 and Sch 1 item 6, effective 25 August 2018.
SECTION 308-520
308-520
SECTION 8ZD DOES NOT APPLY TO THIS DIVISION
Section 8ZD does not apply for the purposes of this Division.
History
S 308-520 inserted by No 82 of 2018, s 3 and Sch 1 item 6, effective 25 August 2018.
PART 4-50 - RELEASE FROM PARTICULAR LIABILITIES
History
Part 4-50 inserted by No 67 of 2003.
Division 340 - Commissioner's power in cases of hardship
History
Div 340 heading substituted by No 56 of 2010, s 3 and Sch 6 item 12, effective 3 June 2010. The heading formerly read:
Commissioner's power to provide release from particular liabilities
Div 340 inserted by No 67 of 2003. Act No 67 of 2003, s 3 and Sch 9 item 19, contained the following application provision:
Application provision
19
A person may be released, under Division 340 in Schedule 1 to the Taxation Administration Act 1953, from a liability that the person has incurred even if the liability was incurred before 1 September 2003.
Guide to Division 340
SECTION 340-1
WHAT THIS DIVISION IS ABOUT
The Commissioner may release you froma particular liability that you have incurred if you are an individual, or a trustee of the estate of a deceased person, and satisfying the liability would cause serious hardship.
History
S 340-1 inserted by No 67 of 2003. For application provision see note under Div 340 heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 340-5 |
Release from particular liabilities in cases of serious hardship |
| 340-10 |
Liabilities to which this section applies |
| 340-15 |
Commissioner may take action to give effect to a release decision |
| 340-20 |
Extinguishing your liability to pay a fringe benefits tax instalment if you are released |
| 340-25 |
Extinguishing your liability to pay a PAYG instalment if you are released |
Operative provisions
SECTION 340-5
RELEASE FROM PARTICULAR LIABILITIES IN CASES OF SERIOUS HARDSHIP
Applying for release
340-5(1)
You may apply to the Commissioner to release you, in whole or in part, from a liability of yours if section 340-10 applies to the liability.
340-5(2)
The application must be in the *approved form.
340-5(3)
The Commissioner may release you, in whole or in part, from the liability if you are an entity specified in the column headed "Entity" of the following table and the condition specified in the column headed "Condition" of the table is satisfied.
|
Entity and condition
|
|
Item
|
Entity
|
Condition
|
| 1 |
an individual |
you would suffer serious hardship if you were required to satisfy the liability |
| 2 |
a trustee of the estate of a deceased individual |
the dependants of the deceased individual would suffer serious hardship if you were required to satisfy the liability |
History
S 340-5(3) substituted by No 58 of 2006, s 3 and Sch 7 item 166, effective 22 June 2006. S 340-5(3) formerly read:
Release by the Commissioner
340-5(3)
The Commissioner may release you, in whole or in part, from the liability if you are a person specified in the column headed "Person" of the following table and the condition specified in the column headed "Conditions" of the table is satisfied:
|
Person and condition
|
|
Item
|
Person
|
Condition
|
| 1 |
an *individual |
you would suffer serious hardship if you were required to satisfy the liability |
| 2 |
a *trustee of the estate of a deceased person |
the dependants of the deceased person would suffer serious hardship if you were required to satisfy the liability |
Effect of the Commissioner's decision
340-5(4)
If the Commissioner:
(a)
refuses to release you in whole from the liability; or
(b)
releases you in part from the liability;
nothing in this section prevents you from making a further application or applications under subsection (1) in relation to the liability.
Notification of the Commissioner's decision
340-5(5)
The Commissioner must notify you in writing of the Commissioner's decision within 28 days after making the decision.
340-5(6)
A failure to comply with subsection (5) does not affect the validity of the Commissioner's decision.
Objections against the Commissioner's decision
340-5(7)
If you are dissatisfied with the Commissioner's decision, you may object against the decision in the manner set out in Part IVC.
History
S 340-5 inserted by No 67 of 2003. For application provision see note under Div 340 heading.
SECTION 340-10
LIABILITIES TO WHICH THIS SECTION APPLIES
340-10(1)
This section applies to a liability if it is a liability of the following kind:
(a)
fringe benefits tax;
(b)
an instalment of fringe benefits tax;
(c)
*Medicare levy;
(d)
*Medicare levy (fringe benefits) surcharge;
(e)
a *PAYG instalment.
History
S 340-10(1) amended by No 12 of 2012, s 3 and Sch 6 item 245, by substituting para (c) and (d), applicable income years starting on or after 1 July 2008. Para (c) and (d) formerly read:
(c)
Medicare levy;
(d)
Medicare levy surcharge;
340-10(2)
This section also applies to a liability if it is a liability that is specified in the column headed "Liabilities" of the following table and the liability is a liability under a provision or provisions of an Act specified in the column headed "Provision(s)" of the table:
|
Liabilities and provision(s)
|
|
Item
|
Liabilities
|
Provision(s)
|
| 1 |
additional tax |
(a) section 93 or 112B of the Fringe Benefits Tax Assessment Act 1986; or
(b) former section 163B or subsection 221YDB(1), (1AAA), (1AA) or (1ABA) or Part VII of the Income Tax Assessment Act 1936 |
| 2 |
administrative penalty in relation to fringe benefits tax or *tax |
Part 4-25 in this Schedule |
| 3 |
general interest charge |
(a) former section 163AA, former section 170AA, former subsection 204(3) or former subsection 221AZMAA(1), 221AZP(1), 221YD(3) or 221YDB(3) of the Income Tax Assessment Act 1936; or
(aa) section 5-15 in the Income Tax Assessment Act 1997; or
(b) section 45-80 or 45-620 or subsection 45-230(2), 45-232(2), 45-235(2) or 45-235(3) in this Schedule |
| 3A |
shortfall interest charge |
Division 280 in this Schedule |
| 4 |
interest |
section 102AAM of the Income Tax Assessment Act 1936 |
| 5 |
penalty |
former section 163A of the Income Tax Assessment Act 1936 |
| 6 |
*tax |
(a) section 128B of the Income Tax Assessment Act 1936; or
(b) section 128V of the Income Tax Assessment Act 1936; or
(c) section 4-1 of the Income Tax Assessment Act 1997; or
(d) section 840-805 of the Income Tax Assessment Act 1997; or
(da) section 840-905 of the Income Tax Assessment Act 1997; or
(e) section 840-805 of the Income Tax (Transitional Provisions) Act 1997 |
History
S 340-10(2) amended by No 8 of 2019, s 3 and Sch 8 items 58-60, by substituting "former section 163B" for "section 163B" in table item 1, "former section 163AA" for "section 163AA" in table item 3 and "former section 163A" for "section 163A" in table item 5, effective 1 April 2019.
S 340-10(2) amended by No 2 of 2015, s 3 and Sch 2 item 94, by omitting "or Part VIII" after "section 93 or 112B" in table item 1, column headed "Provision(s)", effective 25 February 2015. For saving provisions, see note under s 250-10(2).
S 340-10(2) amended by No 110 of 2014, s 3 and Sch 5 item 138, by substituting ", former section 170AA" for "or 170AA" in table item 3, column headed "Provision(s)", effective 16 October 2014.
S 340-10(2) amended by No 58 of 2012, s 3 and Sch 1 item 28, by inserting para (da) in table item 6, column headed "Provision(s)", effective 21 June 2012.
S 340-10(2) amended by No 79 of 2010, s 3 and Sch 1 items 51 and 52, by inserting "former" before "subsection 204(3)" in table item 3 and inserting para (aa) after para (a) in the cell at table item 3, column headed "Provision(s)", effective 1 July 2010.
S 340-10(2) amended by No 32 of 2008, s 3 and Sch 1 item 57, by substituting table item 6, applicable to fund payments made in relation to the first income year starting on or after the first 1 July after 23 June 2008 and later income years. Table item 6 formerly read:
6 ... *tax. ...
(a) section 128B of the Income Tax Assessment Act 1936
(b) section 128V of the Income Tax Assessment Act 1936; or
(c) section 4-1 of the Income Tax Assessment Act 1997
S 340-10(2) table amended by No 101 of 2006, s 3 and Sch 2 item 969, by amending references to repealed inoperative provisions, effective 14 September 2006. For application and savings provisions see the CCH Australian Income Tax Legislation archive.
S 340-10(2) (table) amended by No 75 of 2005.
S 340-10 inserted by No 67 of 2003. For application provision see note under Div 340 heading.
SECTION 340-15
COMMISSIONER MAY TAKE ACTION TO GIVE EFFECT TO A RELEASE DECISION
340-15(1)
If the Commissioner decides to release you from a liability to which section 340-10 applies, the Commissioner may take such action as is necessary to give effect to the decision.
340-15(2)
Without limiting subsection (1), the Commissioner may amend an assessment within the meaning of the following provisions:
(a)
subsection 6(1) of the Income Tax Assessment Act 1936;
(b)
subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986;
by making such alterations or additions to the assessment as the Commissioner thinks necessary.
340-15(3)
Subsection (2) does not limit the power of the Commissioner to amend the assessment in accordance with any other provision of the Income Tax Assessment Act 1936 or the Fringe Benefits Tax Assessment Act 1986.
History
S 340-15 inserted by No 67 of 2003. For application provision see note under Div 340 heading.
SECTION 340-20
EXTINGUISHING YOUR LIABILITY TO PAY A FRINGE BENEFITS TAX INSTALMENT IF YOU ARE RELEASED
340-20(1)
This section applies if the Commissioner releases you from a liability to pay an instalment of fringe benefits tax.
340-20(2)
If your liability to pay the instalment is released in whole, you are taken, for the purposes of Division 2 of Part VII of the Fringe Benefits Tax Assessment Act 1986, not to be liable to pay the instalment.
Note:
This means that for the purposes of section 105 of that Act you are not entitled to a credit for the instalment.
340-20(3)
If your liability to pay the instalment is released in part, you are taken, for the purposes of Division 2 of Part VII of the Fringe Benefits Tax Assessment Act 1986, to be liable to pay the instalment to the extent to which your liability has not been released.
Note:
This means that for the purposes of section 105 of that Act you are entitled to a credit for the instalment to the extent to which your liability to pay the instalment has not been released.
History
S 340-20 inserted by No 67 of 2003. For application provision see note under Div 340 heading.
SECTION 340-25
EXTINGUISHING YOUR LIABILITY TO PAY A PAYG INSTALMENT IF YOU ARE RELEASED
340-25(1)
This section applies if the Commissioner releases you from a liability to pay a *PAYG instalment.
340-25(2)
If your liability to pay the instalment is released in whole, you are taken, for the purposes of Division 45 of Part 2-10, not to be liable to pay the instalment.
Note:
This means that for the purposes of section 45-30 you are not entitled to a credit for the instalment.
340-25(3)
If your liability to pay the instalment is released in part, you are taken, for the purposes of Division 45 of Part 2-10, to be liable to pay the instalment to the extent to which your liability has not been released.
Note:
This means that for the purposes of section 45-30 you are entitled to a credit for the instalment to the extent to which your liability to pay the instalment has not been released.
History
S 340-25 inserted by No 67 of 2003. For application provision see note under Div 340 heading.
Division 342 - Commissioner's power relating to proceeds of crime proceedings
History
Div 342 inserted by No 56 of 2010, s 3 and Sch 6 item 13. No 56 of 2010, s 3 and Sch 6 item 14 contains the following application provision:
14 Application provision
(1)
Division 342 in Schedule 1 applies in relation to:
(a)
proceedings started, or proposed to be started, on or after 3 June 2010; and
(b)
proceedings started, and not ended, before 3 June 2010.
That Division applies whether the liability was incurred before, on or after 3 June 2010.
(2)
For the purposes of paragraph (1)(b), proceedings are taken not to have ended before that commencement if any appeal relating to the proceedings has not ended, or a period for lodging an appeal relating to the proceedings has not ended, before 3 June 2010.
Guide to Division 342
SECTION 342-1
WHAT THIS DIVISION IS ABOUT
To facilitate the starting, conduct and ending of proceedings under the Proceeds of Crime Act 2002, the Commissioner may waive the right to payment of certain tax-related liabilities.
History
S 342-1 inserted by No 56 of 2010, s 3 and Sch 6 item 13, effective 3 June 2010. For application provision, see note under Div 342 heading.
Subdivision 342-A - Power to waive right to payment of tax-related liabilities
History
Subdiv 342-A inserted by No 56 of 2010, s 3 and Sch 6 item 13, effective 3 June 2010. For application provision, see note under Div 342 heading.
SECTION 342-5
342-5
OBJECT OF THIS SUBDIVISION
The object of this Subdivision is to facilitate the starting, conduct and ending of proceedings under the Proceeds of Crime Act 2002 by allowing the Commissioner to waive the right to payment of certain liabilities to the Commonwealth arising under *taxation laws.
Note:
The Commissioner may also exercise other powers so as to facilitate the starting, conduct and ending of proceedings under the Proceeds of Crime Act 2002. Examples of those other powers include:
(a) the power under section 255-10 to defer the time a tax-related liability is due and payable; and
(b) the power under section 8AAG to remit general interest charge.
History
S 342-5 inserted by No 56 of 2010, s 3 and Sch 6 item 13, effective 3 June 2010. For application provision, see note under Div 342 heading.
SECTION 342-10
POWER TO WAIVE RIGHT TO PAYMENT OF TAX-RELATED LIABILITY
342-10(1)
The Commissioner may waive the Commonwealth's right to payment of all or part of a *tax-related liability if the Commissioner is satisfied that:
(a)
the waiver will facilitate the starting, conduct or ending (by settlement or otherwise) of proceedings under the Proceeds of Crime Act 2002; and
(b)
the liability is connected with circumstances associated with the proceedings.
Note:
The Commissioner may waive the right to payment only after the liability has arisen, but may do so whether or not the liability is due and payable.
Example:
A liability is connected with circumstances associated with the proceedings if the liability arose because of activities constituting an offence to which the proceedings relate.
342-10(2)
In deciding whether to waive the right, the Commissioner must consider:
(a)
the amount the Commonwealth will forgo as a result of the waiver and the time the Commonwealth could reasonably be expected to receive that amount apart from the waiver; and
(b)
the amount the Commonwealth could reasonably be expected to receive as a result of the proceedings and the time the Commonwealth could reasonably be expected to receive that amount.
342-10(3)
Subsection (2) does not limit the matters that the Commissioner may consider in making the decision.
Extended operation of this section
342-10(4)
This section (except this subsection) applies in relation to a pecuniary liability to the Commonwealth that arises directly under a *taxation law, but is not a *tax-related liability, in the same way as this section applies in relation to a tax-related liability.
Example:
This section applies to a civil penalty under Division 290 (which penalises certain conduct involving promotion of schemes) in the same way as this section applies to a tax-related liability.
History
S 342-10 inserted by No 56 of 2010, s 3 and Sch 6 item 13, effective 3 June 2010. For application provision, see note under Div 342 heading.
PART 4-90 - EVIDENCE
History
Pt 4-90 inserted by No 39 of 2012, s 3 and Sch 1 item 2, effective 1 July 2012. For application provision see note under Part 4-1 heading.
Division 350 - Evidence
History
Div 350 inserted by No 39 of 2012, s 3 and Sch 1 item 2, effective 1 July 2012. For application provision see note under Part 4-1 heading.
Guide to Division 350
SECTION 350-1
WHAT THIS DIVISION IS ABOUT
The rules in this Division deal with the evidentiary effect of official tax documents for the purposes of taxation laws.
This Division also deals with procedural and evidentiary matters relating to proceedings to recover an amount of a tax-related liability.
History
S 350-1 amended by No 64 of 2020, s 3 and Sch 3 item 142, by inserting "This Division also deals with procedural and evidentiary matters relating to proceedings to recover an amount of a tax-related liability.", effective 1 July 2020.
S 350-1 amended by No 2 of 2015, s 3 and Sch 2 item 9, by omitting "certain" before "taxation laws", effective 25 February 2015.
S 350-1 inserted by No 39 of 2012, s 3 and Sch 1 item 2, effective 1 July 2012. For application provision see note under Part 4-1 heading.
Subdivision 350-A - Evidence
History
Subdiv 350-A inserted by No 39 of 2012, s 3 and Sch 1 item 2, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 350-5
350-5
APPLICATION OF SUBDIVISION
This Subdivision applies in relation to all *taxation laws.
History
S 350-5 substituted by No 2 of 2015, s 3 and Sch 2 item 10, effective 25 February 2015. S 350-5 formerly read:
SECTION 350-5 APPLICATION OF SUBDIVISION
350-5
This Subdivision applies in relationto the following *taxation laws:
(a)
*indirect tax laws;
(b)
the *MRRT law;
(c)
the *Division 293 tax law.
S 350-5 amended by No 82 of 2013, s 3 and Sch 3 item 31, by inserting para (c), effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
S 350-5 substituted by No 14 of 2012, s 3 and Sch 2 item 8, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading. S 350-5 formerly read:
SECTION 350-5 APPLICATION OF SUBDIVISION
350-5
This Subdivision applies in relation to *taxation laws that are *indirect tax laws.
S 350-5 inserted by No 39 of 2012, s 3 and Sch 1 item 2, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 350-10
EVIDENCE
Conclusive evidence
350-10(1)
The following table has effect:
|
Conclusive evidence
|
|
Item
|
Column 1
The production of
…
|
Column 2
is conclusive evidence that
…
|
| 1 |
(a) a Gazette containing a notice purporting to be issued by the Commissioner for the purposes of a *taxation law; or
(b) a document that:
(i) is under the hand of the Commissioner, a *Second Commissioner, a *Deputy Commissioner or a delegate of the Commissioner; and
(ii) purports to be a copy of, or extract from, a document issued by the Commissioner, a Second Commissioner, a Deputy Commissioner or a delegate of the Commissioner for the purposes of a taxation law; |
the notice or document was so issued. |
| 2 |
a notice of *assessment under a *taxation law; |
(a) the assessment was properly made; and |
| |
|
(b) except in proceedings under Part IVC of this Act on a review or appeal relating to the assessment - the amounts and particulars of the assessment are correct. |
| 3 |
a notice under any of the following: |
(a) the notice was properly given; and |
| |
(a) section 18-140 in this Schedule;
(b) section 102UR, 177EA or 177EB of the Income Tax Assessment Act 1936;
(c) section 271-90 in Schedule 2F to that Act; |
(b) except in proceedings under Part IVC of this Act on a review or appeal relating to the notice - the amounts and particulars of the notice are correct. |
| 4 |
a declaration under: |
(a) the declaration was properly made; and |
| |
(a) subsection 165-40(1) or 165-40(3) of the *GST Act; or
(b) subsection 75-40(1) or 75-45(3) of the Fuel Tax Act 2006; |
(b) except in proceedings under Part IVC of this Act on a review or appeal relating to the declaration - the amounts and particulars of the declaration are correct. |
| 5 |
a *public ruling or *private ruling; |
the ruling was properly made. |
History
S 350-10(1) amended by No 64 of 2020, s 3 and Sch 3 item 308, by inserting table item 5, effective 1 October 2020. For transitional provisions, see note under s 16-153(7).
S 350-10(1) amended by No 15 of 2017, s 3 and Sch 4 item 88, by substituting table items 2, 3 and 4 for table item 2, effective 1 April 2017. Table item 2 formerly read:
| "2 |
a notice of assessment of an *assessable amount |
(a) the assessment was properly made; and |
| |
|
(b) except in proceedings under Part IVC of this Act on a review or appeal relating to the assessment - the amounts and particulars of the assessment are correct." |
S 350-10(1) amended by No 39 of 2012, s 3 and Sch 1 item 262, by substituting table item 2, effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012. Table item 2 formerly read:
| "2 |
(a) a notice of *assessment under a *taxation law; or |
(a) the assessment or declaration was properly made, or the notice was properly given; and |
| |
(b) a declaration under:
(i) subsection 165-40(1) or 165-45(3) of the *GST Act; or
(ii) subsection 75-40(1) or 75-45(3) of the Fuel Tax Act 2006; or |
(b) except in proceedings under Part IVC of this Act on a review or appeal relating to the assessment, declaration or notice - the amounts and particulars of the assessment, declaration or notice are correct." |
| |
(c) a notice under section 18-140 in this Schedule, or under section 102UR, 177EA or 177EB of the Income Tax Assessment Act 1936; |
|
S 350-10(1) amended by No 2 of 2015, s 3 and Sch 2 item 11, by substituting table item 2, effective 25 February 2015. Table item 2 formerly read:
| "2 |
(a) a notice of assessment of an *assessable amount; or
(b) a declaration under:
(i) subsection 165-40(1) or 165-45(3) of the *GST Act; or
(ii) subsection 75-40(1) or 75-45(3) of the Fuel Tax Act 2006; |
(a) the assessment or declaration was properly made; and
(b) except in proceedings under Part IVC of this Act on a review or appeal relating to the assessment or declaration - the amounts and particulars of the assessment or declaration are correct." |
S 350-10(1) amended by No 71 of 2012, s 3 and Sch 5 item 17, by substituting table item 2, effective 1 July 2012. Table item 2 formerly read:
| "2 |
(a) a notice of assessment of an *assessable amount; or
(b) a declaration under:
(i) subsection 165-40(1) or 165-45(3) of the *GST Act; or
(ii) subsection 75-40(1) or 75-45(3) of the Fuel Tax Act 2006; or
(c) a determination under:
(i) section 205-25 of the Minerals Resource Rent Tax Act 2012; or
(ii) section 210-30 of the Minerals Resource Rent Tax Act 2012; |
(a) the assessment, declaration or determination was properly made; and
(b) except in proceedings under Part IVC of this Act on a review or appeal relating to the assessment, declaration or determination - the amounts and particulars of the assessment, declaration or determination are correct." |
S 350-10(1) amended by No 14 of 2012, s 3 and Sch 2 item 9, by substituting table item 2, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Table item 2 formerly read:
| "2 |
(a) a notice of assessment of an *assessable amount; or
(b) a declaration under:
(i) subsection 165-40(1) or 165-45(3) of the *GST Act; or
(ii) subsection 75-40(1) or 75-45(3) of the Fuel Tax Act 2006; |
(a) the assessment or declaration was properly made; and
(b) except in proceedings under Part IVC of this Act on a review or appeal relating to the assessment or declaration - the amounts and particulars of the assessment or declaration are correct." |
350-10(2)
(Repealed by No 39 of 2012)
History
S 350-10(2) repealed by No 39 of 2012, s 3 and Sch 1 item 263, effective 1 January 2017 and applicable in relation to payments and refunds that relate to tax periods, and fuel tax return periods, starting on or after 1 July 2012; and also in relation to payments and refunds that: (a) do not relate to any tax periods or fuel tax return periods; and (b) relate to liabilities or entitlements that arose on or after 1 July 2012. S 350-10(2) formerly read:
350-10(2)
Paragraph (b) of column 1 of item 2 of the table in subsection (1) applies to:
(a)
a declaration under subsection 165-40(1) or 165-45(3) of the *GST Act that states:
(i)
the amount that is (and has been at all times) a *net amount for a *tax period that started before 1 July 2012; or
(ii)
the amount that is (and has been at all times) the amount of *GST on a *taxable importation, if the GST was payable before 1 July 2012; or
(b)
a declaration under subsection 75-40(1) or 75-45(3) of the Fuel Tax Act 2006 that states the amount that is (and has been at all times) a *net fuel amount for a tax period, or *fuel tax return period, that started before 1 July 2012.
Note:
Division 165 of the GST Act and Division 75 of the Fuel Tax Act 2006 are anti-avoidance provisions.
Prima facie evidence
350-10(3)
The production of a certificate that:
(a)
is signed by the Commissioner, a *Second Commissioner, a *Deputy Commissioner or a delegate of the Commissioner; and
(b)
states that, from the time specified in the certificate, an amount was payable under a *taxation law (whether to or by the Commissioner);
is prima facie evidence that:
(c)
the amount is payable from that time; and
(d)
the particulars stated in the certificate are correct.
350-10(3A)
A document that is provided to the Commissioner under a *taxation law, and that purports to be made or signed by or on behalf of an entity, is prima facie evidence that the document was made by the entity or with the authority of the entity.
History
S 350-10(3A) inserted by No 2 of 2015, s 3 and Sch 2 item 12, effective 25 February 2015.
Signed copies are evidence
350-10(4)
The production of a document that:
(a)
appears to be a copy of, or extract from,any document (the
original document
) made or given by or to an entity for the purposes of a *taxation law; and
(b)
is signed by the Commissioner, a *Second Commissioner, a *Deputy Commissioner or a delegate of the Commissioner;
is evidence of a matter to the same extent as the original document would have been evidence of the matter.
History
S 350-10(4) amended by No 8 of 2022, s 3 and Sch 8 item 32, by substituting "a matter to the same extent as the original document would have been evidence of the matter" for "the matters set out in the document to the same extent as the original document would have been evidence of those matters", effective 23 February 2022.
History
S 350-10 inserted by No 39 of 2012, s 3 and Sch 1 item 2, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 350-12
PRIMA FACIE EVIDENCE - PARTICULARS STATED IN EVIDENTIARY CERTIFICATE
350-12(1)
Without limiting subsection 350-10(3), the particulars that may be stated in a certificate under that subsection include the matters in subsections (2) and (3) of this section.
350-12(2)
The certificate may state:
(a)
that a person named in the certificate has a *tax-related liability; or
(b)
that an *assessment relating to a tax-related liability has been made, or is taken to have been made, under a *taxation law; or
(c)
that notice of an assessment, or any other notice required to be served on a person in respect of an amount of a tax-related liability, was, or is taken to have been, served on the person under a *taxation law; or
(d)
that the particulars of a notice covered by paragraph (c) are as stated in the certificate; or
(e)
that a sum specified in the certificate is, as at the date specified in the certificate, a debt due and payable by a person to the Commonwealth.
350-12(3)
The certificate may state:
(a)
that a *foreign revenue claim for an amount specified in the certificate has been made by the competent authority under the relevant international agreement; or
(b)
that the relevant requirements of the relevant international agreement have been complied with in relation to the foreign revenue claim; or
(c)
that the claim was registered under Division 263 on the date specified in the certificate; or
(d)
that, as at the date of the certificate, the Commissioner has or has not received advice from the competent authority under the relevant international agreement about the reduction or discharge of an amount to be recovered under the claim; or
(e)
that the particulars of any reduction or discharge of an amount to be recovered under the claim are as specified in the certificate.
History
S 350-12 inserted by No 64 of 2020, s 3 and Sch 3 item 143, effective 1 July 2020.
SECTION 350-15
350-15
JUDICIAL NOTICE OF SIGNATURE
All courts, and all persons having by law or consent of parties authority to hear, receive and examine evidence, must take judicial notice of the signature of every person who is or has been:
(a)
the Commissioner; or
(b)
a *Second Commissioner; or
(c)
a *Deputy Commissioner; or
(d)
a delegate of the Commissioner;
if the signature is attached or appended to an official document for the purposes of a *taxation law.
History
S 350-15 inserted by No 39 of 2012, s 3 and Sch 1 item 2, effective 1 July 2012. For application provision see note under Part 4-1 heading.
SECTION 350-20
CERTAIN STATEMENTS OR AVERMENTS IN PROCEEDINGS TO RECOVER TAX-RELATED LIABILITIES
350-20(1)
In a proceeding to recover an amount of a *tax-related liability, a statement or averment about a matter in the plaintiff's complaint, claim or declaration is prima facie evidence of the matter.
350-20(2)
This section applies even if the matter is a mixed question of law and fact. However, the statement or averment is prima facie evidence of the fact only.
350-20(3)
This section applies even if evidence is given in support or rebuttal of the matter or of any other matter.
350-20(4)
Any evidence given in support or rebuttal of the matter stated or averred must be considered on its merits. This section does not increase or diminish the credibility or probative value of the evidence.
350-20(5)
This section does not lessen or affect any onus of proof otherwise falling on a defendant.
History
S 350-20 inserted by No 64 of 2020, s 3 and Sch 3 item 144, effective 1 July 2020.
SECTION 350-25
350-25
EVIDENCE BY AFFIDAVIT IN PROCEEDINGS TO RECOVER TAX-RELATED LIABILITIES
In a proceeding to recover an amount of a *tax-related liability:
(a)
a person may give evidence by affidavit; and
(b)
the court may require the person to attend before it:
(i)
to be cross-examined on that evidence; or
(ii)
to give other evidence relating to the proceedings.
History
S 350-25 inserted by No 64 of 2020, s 3 and Sch 3 item 144, effective 1 July 2020.
Chapter 5 - Administration
History
Ch 5 title inserted by No 73 of 2006, s 3 and Sch 5 item 44, effective 1 July 2006.
PART 5-1 - THE AUSTRALIAN TAXATION OFFICE
Division 352 - Commissioner's reporting obligations
History
Div 352 heading substituted by No 89 of 2016, s 3 and Sch 3 item 1, effective 2 December 2016. The heading formerly read:
Division 352 - Accountability of the Commissioner
Div 352 inserted by No 73 of 2006, s 3 and Sch 5 item 45, effective 1 July 2006.
Guide to Division 352
SECTION 352-1
WHAT THIS DIVISION IS ABOUT
This Division requires the Commissioner to prepare annual reports on the working of the indirect tax laws and on working holiday makers.
History
S 352-1 amended by No 89 of 2016, s 3 and Sch 3 item 2, by substituting "annual reports on the working of the indirect tax laws and on working holiday makers" for "an annual report on the working of the indirect tax laws", effective 2 December 2016.
S 352-1 amended by No 96 of 2014, s 3 and Sch 1 item 93, by omitting "and the MRRT law" after "indirect tax laws", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 352-1 amended by No 14 of 2012, s 3 and Sch 1 item 26, by inserting "and the MRRT law", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
S 352-1 inserted by No 73 of 2006, s 3 and Sch 5 item 45, effective 1 July 2006.
Subdivision 352-A - Accountability of the Commissioner in respect of indirect tax laws
History
Subdiv 352-A inserted by No 73 of 2006, s 3 and Sch 5 item 45, effective 1 July 2006.
SECTION 352-5
COMMISSIONER MUST PREPARE ANNUAL REPORT ON INDIRECT TAX LAWS
352-5(1)
As soon as practicable after 30 June in each year, the Commissioner must prepare and give to the Minister a report on the working of the *indirect tax laws during the year ending on that 30 June.
352-5(2)
The report must include a report on any breaches or evasions of the *indirect tax laws that the Commissioner knows about.
352-5(3)
The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
History
S 352-5 inserted by No 73 of 2006, s 3 and Sch 5 item 45, effective 1 July 2006.
(Repealed) Subdivision 352-B - Accountability of the Commissioner in respect of MRRT law
History
Subdiv 352-B repealed by No 96 of 2014, s 3 and Sch 1 item 94, effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. Subdiv 352-B formerly read:
Subdivision 352-B - Accountability of the Commissioner in respect of MRRT law
SECTION 352-10 COMMISSIONER MUST PREPARE ANNUAL REPORT ON MRRT LAW
352-10(1)
As soon as practicable after 30 June in each year, the Commissioner must prepare and give to the Minister a report on the working of the *MRRT law during the year ending on that 30 June.
352-10(2)
The report must include a report on any breaches or evasions of the *MRRT law that the Commissioner knows about.
352-10(3)
The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
History
S 352-10 inserted by No 14 of 2012, s 3 and Sch 1 item 27, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Subdiv 352-B inserted by No 14 of 2012, s 3 and Sch 1 item 27, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Subdivision 352-C - Reporting on working holiday makers
History
Subdiv 352-C inserted by No 89 of 2016, s 3 and Sch 3 item 3, effective 2 December 2016.
SECTION 352-25
COMMISSIONER MUST PREPARE ANNUAL REPORT ON WORKING HOLIDAY MAKERS
352-25(1)
As soon as practicable after 30 June in each year, the Commissioner must prepare and give to the Minister a report relating to:
(a)
the taxation of *working holiday makers; and
(b)
the registration process referred to in sections 16-146 to 16-148.
352-25(2)
Without limiting subsection (1), the report must include statistics and information derived by the Commissioner from that registration process.
352-25(3)
The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
History
S 352-25 inserted by No 89 of 2016, s 3 and Sch 3 item 3, effective 2 December 2016.
Division 353 - Powers to obtain information and evidence
Guide to Division 353
SECTION 353-1
WHAT THIS DIVISION IS ABOUT
This Division gives the Commissioner powers to obtain information and evidence.
History
S 353-1 inserted by No 8 of 2019, s 3 and Sch 8 item 18, effective 1 April 2019.
Subdivision 353-A - Powers to obtain information and evidence
History
Subdiv 353-A heading inserted by No 8 of 2019, s 3 and Sch 8 item 18, effective 1 April 2019.
SECTION 353-10
COMMISSIONER'S POWER
353-10(1)
The Commissioner may by notice in writing require you to do all or any of the following:
(a)
to give the Commissioner any information that the Commissioner requires for the purpose of the administration or operation of a *taxation law;
(b)
to attend and give evidence before the Commissioner, or an individual authorised by the Commissioner, for the purpose of the administration or operation of a taxation law;
(c)
to produce to the Commissioner any documents in your custody or under your control for the purpose of the administration or operation of a taxation law.
Note:
Failing to comply with a requirement can be an offence under section 8C or 8D.
History
S 353-10(1) substituted by No 2 of 2015, s 3 and Sch 2 item 13, effective 25 February 2015. S 353-10(1) formerly read:
353-10(1)
The Commissioner may by notice in writing require you to do all or any of the following:
(a)
to give the Commissioner any information that the Commissioner requires for the purpose of the administration or operation of:
(i)
an *indirect tax law; or
(ii)
the *MRRT law; or
(iia)
the *Division 293 tax law; or
(iii)
this Schedule (other than Division 340);
(b)
to attend and give evidence before the Commissioner, or an individual authorised by the Commissioner, for the purpose of the administration or operation of:
(i)
an indirect tax law; or
(ii)
the MRRT law; or
(iia)
the Division 293 tax law; or
(iii)
this Schedule (other than Division 340);
(c)
to produce to the Commissioner any documents in your custody or under your control for the purpose of the administration or operation of:
(i)
an indirect tax law; or
(ii)
the MRRT law; or
(iia)
the Division 293 tax law; or
(iii)
this Schedule.
Note:
Failing to comply with a requirement can be an offence under section 8C or 8D.
S 353-10(1) amended by No 82 of 2013, s 3 and Sch 3 items 32 and 33, by inserting paras (a)(iia), (b)(iia) and (c)(iia), effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
S 353-10(1) substituted by No 14 of 2012, s 3 and Sch 1 item 28, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading. S 353-10(1) formerly read:
353-10(1)
The Commissioner may by notice in writing require you to do all or any of the following:
(a)
to give the Commissioner any information that the Commissioner requires for the purpose of:
(i)
the application of an *indirect tax law in relation to you or any other entity; or
(ii)
the administration or operation of this Schedule (other than Division 340);
(b)
to attend and give evidence before the Commissioner, or an individual authorised by the Commissioner, for the purpose of:
(i)
the application of an indirect tax law in relation to you or any other entity; or
(ii)
the administration or operation of this Schedule (other than Division 340);
(c)
to produce to the Commissioner any documents in your custody or under your control for the purpose of:
(i)
the application of an indirect tax law in relation to you or any other entity; or
(ii)
the administration or operation of this Schedule.
Note:
Failing to comply with a direction can be an offence against section 8C.
S 353-10(1) substituted by No 73 of 2006, s 3 and Sch 5 item 46, effective 1 July 2006. S 353-10 formerly read:
353-10(1)
The Commissioner may by notice in writing require any person:
(a)
to give information to the Commissioner covering any matters relevant to the administration or operation of this Schedule (other than Division 340); and
(b)
to attend and to give evidence before the Commissioner or an officer authorised by the Commissioner covering any matters relevant to the administration or operation of this Schedule (other than Division 340); and
(c)
to produce any documents in the person's custody or under the person's control that relate to these matters.
S 353-10(1) amended by No 67 of 2003.
353-10(2)
The Commissioner may require the information or evidence:
(a)
to be given on oath or affirmation; and
(b)
to be given orally or in writing.
For that purpose, the Commissioner or the officer may administer an oath or affirmation.
History
S 353-10(2) amended by No 91 of 2000.
353-10(3)
The regulations may prescribe scales of expenses to be allowed to entities required to attend before the Commissioner or the officer.
History
S 353-10(3) amended by No 73 of 2006, s 3 and Sch 5 item 47, by substituting "entities" for "persons", effective 1 July 2006.
S 353-10 inserted by No 179 of 1999.
SECTION 353-15
ACCESS TO PREMISES, DOCUMENTS ETC.
353-15(1)
For the purposes of a *taxation law, the Commissioner, or an individual authorised by the Commissioner for the purposes of this section:
(a)
may at all reasonable times enter and remain on any land, premises or place; and
(b)
is entitled to full and free access at all reasonable times to any documents, goods or other property; and
(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 or other property and, to that end, take samples.
History
S 353-15(1) amended by No 2 of 2015, s 3 and Sch 2 items 15 and 16, by substituting "a *taxation law" for "an *indirect tax law, the *MRRT law or the *Division 293 tax law" and ", premises or place" for "or premises" in para (a), effective 25 February 2015.
S 353-15(1) amended by No 82 of 2013, s 3 and Sch 3 item 35, by substituting ", the *MRRT law or the *Division 293 tax law" for "or the *MRRT law", effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
S 353-15(1) amended by No 14 of 2012, s 3 and Sch 1 item 30, by inserting "or the *MRRT law", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
353-15(2)
An individual authorised by the Commissioner for the purposes of this section is not entitled to enter or remain on any land, premises or place if, after having been requested by the occupier to produce proof of his or her authority, the individual does not produce an authority signed by the Commissioner stating that the individual is authorised to exercise powers under this section.
History
S 353-15(2) amended by No 2 of 2015, s 3 and Sch 2 item 17, by substituting ", premises or place" for "or premises", effective 25 February 2015.
353-15(3)
You commit an offence if:
(a)
you are the occupier of land, premises or a place; and
(b)
an individual enters, or proposes to enter, the land, premises or place under this section; and
(c)
the individual is the Commissioner or authorised by the Commissioner for the purposes of this section; and
(d)
you do not provide the individual with all reasonable facilities and assistance for the effective exercise of powers under this section.
Penalty: 30 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
History
S 353-15(3) amended by No 2 of 2015, s 3 and Sch 2 items 18 and 19, by substituting ", premises or a place" for "or premises" para (a) and ", premises or place" for "or premises" in para (b), effective 25 February 2015.
353-15(4)
Strict liability applies to paragraphs (3)(a) and (c).
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 353-15 inserted by No 73 of 2006, s 3 and Sch 5 item 48, effective 1 July2006.
353-17
353-17
(Repealed) SECTION 353-17 OFFSHORE INFORMATION NOTICES
(Repealed by No 96 of 2014)
History
S 353-17 repealed by No 96 of 2014, s 3 and Sch 1 item 95, effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. S 353-17 formerly read:
SECTION 353-17 OFFSHORE INFORMATION NOTICES
353-17
For the purposes of the *MRRT law, section 264A (about offshore information notices) of the Income Tax Assessment Act 1936 applies as if:
(a)
a reference to a taxpayer in that section were a reference to an entity; and
(b)
a reference to an assessment in that section were a reference to an assessment under Division 155 of this Schedule relating to *MRRT; and
(c)
a reference to the Income Tax Assessment Act 1936 in that section were a reference to the MRRT law.
S 353-17 inserted by No 14 of 2012, s 3 and Sch 1 item 31, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 353-20
CHECKING STATUS OF SPECIFICALLY LISTED DEDUCTIBLE GIFT RECIPIENTS
353-20(1)
The Commissioner may require a *deductible gift recipient covered by this section to give the Commissioner information or a document that is relevant to the deductible gift recipient's status as a deductible gift recipient. The deductible gift recipient must comply with the requirement.
Note:
Failure to comply with this subsection is an offence against section 8C.
353-20(2)
If the Commissioner is satisfied of any of the matters set out in subsection (4) in relation to a *deductible gift recipient covered by this section, the Commissioner must, within 28 days, give written notice to the Minister about that fact.
353-20(3)
The Minister may only disclose information provided under subsection (2) for a purpose relating to the removal of the name of the *deductible gift recipient from Division 30 of the Income Tax Assessment Act 1997.
History
S 353-20(3) substituted by No 88 of 2009, s 3 and Sch 2 item 20, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading. S 353-20(3) formerly read:
353-20(3)
The Minister may only disclose information provided under subsection (2) for a purpose relating to the removal of the name of the *deductible gift recipient from:
(a)
Division 30 of the Income Tax Assessment Act 1997; or
(b)
regulations made for the purposes of the definition of *prescribed private fund.
353-20(4)
The matters are as follows:
(a)
the *deductible gift recipient fails or ceases to use gifts, contributions or money received solely for the principal purpose of the relevant fund, authority or institution;
(b)
there is a change in the principal purpose of the relevant fund, authority or institution;
(c)
the deductible gift recipient fails or ceases to comply with any rules or conditions made by the Prime Minister or any other Minister relating to the recipient being or becoming a deductible gift recipient.
353-20(5)
The requirement in subsection (1):
(a)
is to be made by notice in writing to the *deductible gift recipient; and
(b)
may ask the deductible gift recipient to give the information in writing; and
(c)
must specify:
(i)
the information or document the deductible gift recipient is to give; and
(ii)
the period within which the deductible gift recipient is to give the information or document.
The period specified under subparagraph (c)(ii) must end at least 28 days after the notice is given.
353-20(6)
This section covers *deductible gift recipients, other than:
(a)
an entity or *government entity that is endorsed under Subdivision 30-BA of the Income Tax Assessment Act 1997 as a deductible gift recipient; and
(b)
an entity or government entity that is endorsed under that Subdivision as a deductible gift recipient for the operation of a fund, authority or institution.
353-20(7)
In a prosecution of a person for an offence against section 8C of this Act because of this section as it applies because of Division 444, it is a defence if the person proves that the person:
(a)
did not aid, abet, counsel or procure the act or omission because of which the offence is taken to have been committed; and
(b)
was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission because of which the offence is taken to have been committed.
History
S 353-20 inserted by No 55 of 2007, s 3 and Sch 3 item 8, effective 12 April 2007.
Subdivision 353-B - Powers to obtain information and evidence from overseas
History
Subdiv 353-B inserted by No 8 of 2019, s 3 and Sch 8 item 19, effective 1 April 2019.
SECTION 353-25
OFFSHORE INFORMATION NOTICES
353-25(1)
The Commissioner may, by notice in writing (an
offshore information notice
) given to you, request you to do all or any of the following:
(a)
to give the Commissioner any information that the Commissioner reasonably believes is:
(i)
relevant to the *assessment of a *tax-related liability of yours; and
(ii)
*offshore information;
(b)
to produce to the Commissioner any documents that the Commissioner reasonably believes are:
(i)
relevant to the assessment of a tax-related liability of yours; and
(ii)
*offshore documents;
(c)
to make copies of any documents the Commissioner could request you to produce under paragraph (b), and to produce those copies to the Commissioner.
353-25(2)
An offshore information notice:
(a)
must specify a period, of at least 90 days after it is given to you, within which you are to give the information or produce the documents or copies; and
(b)
must set out the effect of section 353-30; and
(c)
may set out how the request is to be complied with; and
(d)
may be included in the same document as a notice under section 353-10.
A notice is not invalid merely because it does not comply with paragraph (b).
353-25(3)
The Commissioner may, by notice in writing, extend the period within which you are to give the information or produce the documents or copies, if, before the end of that period, you apply for the extension in the *approved form.
353-25(4)
If the Commissioner does not notify you, in writing, before the end of the period of the Commissioner's decision on an application you make under subsection (3), then the period is extended until the day on which the Commissioner so notifies you.
353-25(5)
An offshore information notice may be varied or revoked in accordance with subsection 33(3) of the Acts Interpretation Act 1901, however a variation:
(a)
must not have the effect of shortening the period within which you must give particular *offshore information or produce particular *offshore documents or copies; and
(b)
must not have the effect that the period within which you must give particular offshore information, or produce particular offshore documents or copies, is less than 90 days.
353-25(6)
Nothing in this section affects the operation of section 353-10 and nothing in that section affects the operation of this section.
353-25(7)
Offshore information
is any information that is one or more of the following:
(a)
within the knowledge (whether exclusive or otherwise) of an entity outside Australia;
(b)
recorded (whether exclusively or otherwise) in a document outside Australia;
(c)
stored (whether exclusively or otherwise) by any means whatsoever outside Australia.
353-25(8)
An
offshore document
is any document that is outside Australia (whether or not copies are in Australia or, if the documents are copies of other documents, whether or not those other documents are in Australia).
History
S 353-25 inserted by No 8 of 2019, s 3 and Sch 8 item 19, effective 1 April 2019.
SECTION 353-30
OFFSHORE INFORMATION NOTICES - CONSEQUENCE OF NOT COMPLYING
353-30(1)
Section 8C does not apply to a request set out in an offshore information notice under section 353-25.
353-30(2)
If you refuse or fail to comply with a request set out in an offshore information notice (including a request you are not able to comply with), the following are not admissible in evidence in proceedings under Part IVC on a review or appeal relating to a *tax-related liability of yours, except with the consent of the Commissioner:
(a)
the *offshore information;
(b)
the contents of the *offshore documents or copies.
353-30(3)
In deciding whether to consent, the Commissioner must:
(a)
have regard to whether, because of the absence of that information or those documents or copies, the remaining information or documents that are relevant to the proceedings are, or are likely to be, misleading; and
(b)
not have regard to the consequences (whether direct or indirect) of an obligation arising under a *foreign law relating to the secrecy of the information, documents or copies; and
(c)
consent if refusal would have the effect, for the purposes of the Constitution, of making any tax or penalty incontestable.
353-30(4)
If, before the hearing of a proceeding under Part IVC on a review or appeal relating to a *tax-related liability of yours, the Commissioner forms the views that:
(a)
you have refused or failed to comply with a request under section 353-25; and
(b)
the Commissioner is unlikely to give the consent mentioned in subsection (3);
the Commissioner must, by notice in writing, inform you that the Commissioner has formed those views. However, a failure to do so does not affect the validity of the Commissioner's decision under subsection (3).
History
S 353-30 inserted by No 8 of 2019, s 3 and Sch 8 item 19, effective 1 April 2019.
Division 354 - Power to obtain information about rights or interests in property
History
Div 354 inserted by No 150 of 2015, s 3 and Sch 4 item 3, effective 1 December 2015.
SECTION 354-5
POWER TO OBTAIN INFORMATION ABOUT RIGHTS OR INTERESTS IN PROPERTY
354-5(1)
The Commissioner may by notice in writing require you to give the Commissioner information required for the purpose of the administration or operation of a *taxation law if:
(a)
both of the following apply:
(i)
you have a legal or equitable interest in real or personal property;
(ii)
the information is about any other *property right or interest in the property; or
(b)
both of the following apply:
(i)
the Commissioner is satisfied that you may have information about a property right or interest in property;
(ii)
the information is about the property right or interest.
Note:
Failing to comply with a requirement may be an offence under section 8C.
354-5(2)
A
property right or interest
is:
(a)
a legal or equitable interest in the property; or
(b)
a right, power or privilege in connection with the property;
whether present or future and whether vested or contingent.
Content of notice
354-5(3)
The notice must specify the following:
(a)
the property to which the notice applies;
(b)
the information required;
(c)
the period within which the information must be given;
(d)
the manner of giving the information.
354-5(4)
The information required may include the following:
(a)
details of your interest in the property;
(b)
details (including name and address) of any person who has a *property right or interest in the property;
(c)
details of any class of person who has a property right or interest in the property;
(d)
details of each property right or interest in the property, including:
(i)
the nature and extent of the right or interest; and
(ii)
the circumstances giving rise to the right or interest.
354-5(5)
If:
(a)
you are given a notice under paragraph (1)(a); and
(b)
you do not have the information required but another person has the information;
you must make all reasonableefforts to obtain the information.
354-5(6)
To avoid doubt, you may be required as a result of a notice under this section to create a document giving the information required.
354-5(7)
The period specified in the notice must be:
(a)
at least 14 days after the notice is given (except if paragraph (b) applies); or
(b)
if the Commissioner is satisfied that a shorter period is necessary - the shorter period.
Relationship with section 353-10
354-5(8)
Nothing in this section affects the operation of section 353-10 and nothing in that section affects the operation of this section.
History
S 354-5 inserted by No 150 of 2015, s 3 and Sch 4 item 3, effective 1 December 2015.
Division 355 - Confidentiality of taxpayer information
History
Div 355 substituted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
No 145 of 2010, s 3 and Sch 2 items 124 and 125 contain the following transitional provisions, effective 17 December 2010:
124 Transitional - information obtained under amended or repealed provisions before commencement
If:
(a)
before the commencement of this item, information was acquired by an entity under, or for the purposes of, a taxation law (within the meaning of the Income Tax Assessment Act 1997), other than as a taxation officer; and
(b)
the information is protected information within the meaning of section 355-30 of Schedule 1 to the Taxation Administration Act 1953 (as inserted by item 1 of Schedule 1 to this Act);
then, after that commencement, the information is taken to be information acquired by the entity under an exception in Subdivision 355-B or 355-C in Schedule 1 to the Taxation Administration Act 1953 (as inserted by item 1 of Schedule 1 to this Act).
125 Transitional provision - authorisations
(1)
If, immediately before the commencement of this item, an officer of a law enforcement agency was an authorised law enforcement agency officer within the meaning of the Taxation Administration Act 1953 (as in force at that time), the officer is taken, on and after that commencement, to be an authorised law enforcement agency officer within the meaning of the Income Tax Assessment Act 1997.
(2)
If, immediately before the commencement of this item, a person employed under paragraph 84(1)(a) or (b) of the Australian Security Intelligence Organisation Act 1979 was an authorised ASIO officer within the meaning of the Taxation Administration Act 1953 (as in force at that time), the person is taken, on and after that commencement, to be an authorised ASIO officer within the meaning of the Income Tax Assessment Act 1997.
History
S 355-5 inserted by No 73 of 2006.
Div 355 formerly read:
Division 355 - Confidentiality
History
Div 355 inserted by No 73 of 2006, s 3 and Sch 5 item 49, effective 1 July 2006.
Guide to Division 355
SECTION 355-1 WHAT THIS DIVISION IS ABOUT
This Division prohibits the disclosure of indirect tax information by officials except in certain circumstances.
History
S 355-1 inserted by No 73 of 2006, s 3 and Sch 5 item 49, effective 1 July 2006.
Subdivision 355-A - Protection of confidentiality of indirect tax information
History
Subdiv 355-A inserted by No 73 of 2006, s 3 and Sch 5 item 49, effective 1 July 2006.
SECTION 355-5 PROTECTION OF CONFIDENTIALITY OF INDIRECT TAX INFORMATION
Object
355-5(1)
The object of this section is to protect the confidentiality of taxpayers' personal tax affairs by restricting what you may do with *indirect tax information and *indirect tax documents.
Offence
355-5(2)
You commit an offence if:
(a)
you:
(i)
make a record of information; or
(ii)
disclose information to anyone else; and
(b)
the information was disclosed to you, or obtained by you, in the course of:
(i)
your appointment or employment by the Commonwealth; or
(ii)
the performance of services by you for the Commonwealth; or
(iii)
the exercise of powers, or the performance of functions, by you under a delegation by the Commissioner; and
(c)
the information was disclosed to you, or obtained by you, under an *indirect tax law; and
(d)
the information relates to the affairs of an entity other than you.
Penalty: Imprisonment for 2 years.
Note:
Chapter 2 of the CriminalCode sets out the general principles of criminal responsibility.
355-5(3)
Strict liability applies to paragraph (2)(c).
Note:
For strict liability, see section 6.1 of the Criminal Code.
355-5(4)
Subsection (2) does not apply if you make the record for, or you disclose the information to, an entity who is not a Minister and:
(a)
the making of the record or the disclosure is for the purposes of an *indirect tax law; or
(b)
the making of the record or the disclosure is in the course of:
(i)
the performance of the duties of your appointment or employment by the Commonwealth; or
(ii)
the performance of services by you for the Commonwealth; or
(iii)
the exercise of powers, or performance of functions, by you under a delegation by the Commissioner.
Note 1:
A defendant bears an evidential burden in relation to the matters in subsection (4): see subsection 13.3(3) of the Criminal Code.
Note 2:
It is not a breach of subsection (2) to record or disclose information in accordance with an obligation Australia has under an agreement with another country. See section 23 of the International Tax Agreements Act 1953.
History
S 355-5(4) amended by No 100 of 2006, s 3 and Sch 2 items 4 to 6, by substituting para (a) and inserting Note 2, applicable to requests for the exchange of information made after 14 September 2006. Para (a) formerly read:
(a)
the making of the record or the disclosure is for the purposes of:
(i)
an *indirect tax law; or
(ii)
complying with an obligation Australia has under an agreement with another country; or
355-5(5)
Subsection (2) does not apply if:
(a)
you are:
(i)
the Commissioner; or
(ii)
a Deputy Commissioner; or
(iii)
an individual authorised by the Commissioner or a Deputy Commissioner to disclose the information; and
(b)
an item in the following table covers your disclosure:
|
Disclosures
|
|
Item
|
The disclosure is to...
|
and the disclosure...
|
| 1 |
any entity (other than a Minister) |
is for the purpose of the entity carrying out functions under a *taxation law. |
| 2 |
the Administrative Appeals Tribunal |
is in connection with proceedings under a *taxation law. |
| 3 |
the Australian Statistician |
is of information to be used for the purposes of the Census and Statistics Act 1905. |
| 4 |
the Chief Executive Officer of the Commonwealth Services Delivery Agency |
is of information to be used for the purpose of the administration of the social security law (within the meaning of the Social Security Act 1991). |
| 5 |
the Chief Executive Officer of Customs |
is for any purpose. |
| 6 |
the Secretary of the Department dealing with matters relating to the social security law (within the meaning of the Social Security Act 1991) |
is of information to be used for the purpose of the administration of that law. |
| 7 |
an individual who holds an office of a State or Territory, being an office prescribed for the purposes of this table item |
both:
(a) relates to alcoholic beverages; and
(b) is for the purpose of the individual administering an *arrangement for the rebate, refund or other payment or credit by a State or Territory in respect of alcoholic beverages. |
Note:
A defendant bears an evidential burden in relation to the matters in subsection (5): see subsection 13.3(3) of the Criminal Code.
Protection of confidentiality of indirect tax information and documents from courts
355-5(6)
You are not to be required:
(a)
to disclose *indirect tax information to a court; or
(b)
to produce an *indirect tax document to a court;
unless it is necessary for the purposes of an *indirect tax law.
History
S 355-5 inserted by No 73 of 2006, s 3 and Sch 5 item 49, effective 1 July 2006.
Act No 145 of 2010, s 3 and Sch 1 item 3 contains the following transitional provisions, effective 17 December 2010:
3 Transitional - authorised representatives
(1)
If:
(a)
at any time before the commencement of this item, an entity (the
covered entity
) had been nominated by another entity (the
primary entity
) to act on the primary entity's behalf with respect to protected information that relates to the primary entity; and
(b)
immediately before the commencement of this item, the nomination was in force;
the covered entity is taken, on and after that commencement, to be an entity covered by subsection 355-25(2) in Schedule 1 to the Taxation Administration Act 1953.
(2)
To avoid doubt, subitem (1) does not prevent the primary entity from revoking the nomination.
Guide to Division 355
SECTION 355-1
WHAT THIS DIVISION IS ABOUT
The disclosure of information about the tax affairs of a particular entity is prohibited, except in certain specified circumstances.
Those exceptions are designed having regard to the principle that disclosure of information should be permitted only if the public benefit derived from the disclosure outweighs the entity's privacy.
Note:
This Division contains the main circumstances in which protected tax information can be disclosed. A number of other Commonwealth laws also allow for the disclosure of, or access to, such information in limited circumstances. Some of these other laws are as follows:
• sections 32 and 33 of the Auditor-General Act 1997;
• section 9 of the Ombudsman Act 1976;
• section 44 of the Privacy Act 1988.
History
S 355-1 amended by No 21 of 2015, s 3 and Sch 2 item 42, by omitting "• section 15 of the Inspector-General of Taxation Act 2003;" after "• sections 32 and 33 of the Auditor-General Act 1997;" from the note, applicable in relation to: (a) complaints made; or (b) investigations or reviews conducted on an entity's own initiative that start; at or after 1 May 2015.
S 355-1 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
Subdivision 355-A - Objects and application of Division
SECTION 355-10
355-10
OBJECTS OF DIVISION
The objects of this Division are:
(a)
to protect the confidentiality of taxpayers' affairs by imposing strict obligations on *taxation officers (and others who acquire protected tax information), and so encourage taxpayers to provide correct information to the Commissioner; and
(b)
to facilitate efficient and effective government administration and law enforcement by allowing disclosures of protected tax information for specific, appropriate purposes.
History
S 355-10 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-15
355-15
APPLICATION OF DIVISION
This Division applies in relation to the following entities in the same way as it applies in relation to *taxation officers:
(a)
an entity engaged to provide services relating to the Australian Taxation Office;
(b)
an individual employed by, or otherwise performing services for, an entity referred to in paragraph (a);
(c)
an individual:
(i)
appointed or employed by, or performing services for, the Commonwealth or an authority of the Commonwealth; and
(ii)
performing functions or exercising powers under or for the purposes of a *taxation law.
History
S 355-15 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
Subdivision 355-B - Disclosure of protected information by taxation officers
Guide to Subdivision 355-B
SECTION 355-20
WHAT THIS SUBDIVISION IS ABOUT
The main protection for taxpayer confidentiality is in this Subdivision. It is an offence for taxation officers to disclose tax information that identifies an entity, or is reasonably capable of being used to identify an entity, except in certain specified circumstances.
History
S 355-20 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 355-25 |
Offence - disclosure of protected information by taxation officers |
| 355-30 |
Meaning of
protected information
and
taxation officer
|
| 355-35 |
Consent is not a defence |
| 355-40 |
Generality of Subdivision not limited |
| 355-45 |
Exception - disclosure of publicly available information |
| 355-47 |
Exception - disclosure of periodic aggregate tax information |
| 355-50 |
Exception - disclosure in performing duties |
| 355-55 |
Exception - disclosure to Ministers |
| 355-60 |
Limits on disclosure to Ministers |
| 355-65 |
Exception - disclosure for other government purposes |
| 355-66 |
Major disaster support programs |
| 355-67 |
Exception - disclosure to registrars |
| 355-70 |
Exception - disclosure for law enforcement and related purposes |
| 355-72 |
Exception - disclosure to credit reporting bureaus |
| 355-75 |
Limits on disclosure to courts and tribunals |
Operative provisions
SECTION 355-25
OFFENCE - DISCLOSURE OF PROTECTED INFORMATION BY TAXATION OFFICERS
355-25(1)
An entity commits an offence if:
(a)
the entity is or was a *taxation officer; and
(b)
the entity:
(i)
makes a record of information; or
(ii)
discloses information to anotherentity (other than the entity to whom the information relates or an entity covered by subsection (2)) or to a court or tribunal; and
(c)
the information is *protected information; and
(d)
the information was acquired by the first-mentioned entity as a taxation officer.
Penalty: Imprisonment for 2 years.
355-25(2)
An entity (the
covered entity
) is covered by this subsection in relation to *protected information that relates to another entity (the
primary entity
) if:
(a)
the covered entity is the primary entity's *registered tax agent or BAS agent; or
(b)
the covered entity is a *legal practitioner representing the primary entity in relation to the primary entity's affairs relating to one or more *taxation laws; or
(ba)
the covered entity is a public officer (within the meaning of section 252 or 252A of the Income Tax Assessment Act 1936) of the primary entity; or
(c)
the primary entity is an *incapacitated entity and the covered entity is a *representative of the incapacitated entity; or
(d)
the covered entity is the primary entity's *legal personal representative; or
(e)
the covered entity is the primary entity's guardian where the primary entity is a minor or suffers from mental incapacity; or
(f)
the covered entity and the primary entity are members of the same *consolidated group or *MEC group; or
(g)
the covered entity is a representative of the primary entity who has been nominated by the primary entity in the *approved form to act on that entity's behalf with respect to protected information; or
(h)
the covered entity is the registered tax agent or BAS agent of another covered entity mentioned in paragraph (c), (d) or (e) in relation to the relevant primary entity mentioned in those paragraphs; or
(i)
the covered entity is a legal practitioner representing another covered entity mentioned in paragraph (c), (d) or (e) in relation to the affairs of the relevant primary entity mentioned in those paragraphs relating to one or more taxation laws.
History
S 355-25(2) amended by No 127 of 2021, s 3 and Sch 3 item 47, by inserting para (h) and (i), applicable in relation to the making of a record or the disclosure ofinformation occurring on or after 1 January 2022, whether the information was acquired before, on or after 1 January 2022.
S 355-25(2) amended by No 21 of 2015, s 3 and Sch 7 item 40, by substituting para (b) and inserting para (ba), applicable in relation to records and disclosures of information made on or after 20 March 2015 (regardless of when the information was acquired). Para (b) formerly read:
(b)
the covered entity is a *legal practitioner representing the primary entity in relation to the primary entity's *tax affairs; or
History
S 355-25 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-30
MEANING OF
PROTECTED INFORMATION
AND
TAXATION OFFICER
355-30(1)
Protected information
means information that:
(a)
was disclosed or obtained under or for the purposes of a law that was a *taxation law (other than the Tax Agent Services Act 2009) when the information was disclosed or obtained; and
(b)
relates to the affairs of an entity; and
(c)
identifies, or is reasonably capable of being used to identify, the entity.
Note:
Tax file numbers do not constitute protected information because they are not, by themselves, reasonably capable of being used to identify an entity. For offences relating to tax file numbers, see Subdivision BA of Division 2 of Part III.
355-30(2)
Taxation officer
means:
(a)
the Commissioner or a *Second Commissioner; or
(b)
an individual appointed or engaged under the Public Service Act 1999 and performing duties in the Australian Taxation Office.
Note:
This Division applies to certain other entities as if they were taxation officers: see section 355-15.
History
S 355-30(2) amended by No 39 of 2012, s 3 and Sch 4 item 22, by substituting "*Second Commissioner" for "Second Commissioner of Taxation" in para (a), effective 15 April 2012.
History
S 355-30 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-35
355-35
CONSENT IS NOT A DEFENCE
It is not a defence to a prosecution for an offence against section 355-25 that the entity to whom the information relates has consented to:
(a)
the making of the record; or
(b)
the disclosure of the information.
History
S 355-35 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-40
355-40
GENERALITY OF SUBDIVISION NOT LIMITED
Except as provided by section 355-60, nothing in this Subdivision limits the generality of anything else in it.
Note:
This means that each provision in this Subdivision (other than section 355-60) has an independent operation and is not to be interpreted by reference to any other provision within the Subdivision.
History
S 355-40 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-45
355-45
EXCEPTION - DISCLOSURE OF PUBLICLY AVAILABLE INFORMATION
Section 355-25 does not apply if the information was already available to the public (otherwise than as a result of a contravention of section 355-25, 355-155 or 355-265).
Note:
A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.
History
S 355-45 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-47
EXCEPTION - DISCLOSURE OF PERIODIC AGGREGATE TAX INFORMATION
355-47(1)
Section 355-25 does not apply if the information is *periodic aggregate tax information.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
355-47(2)
Periodic aggregate tax information
is information that:
(a)
specifies the total amount collected or assessed by the Commissioner during a period, or predicted by the Commissioner to be collected or assessed by the Commissioner during a period, in respect of:
(i)
tax imposed under a particular Act or particular Acts; or
(ii)
if an Act imposes duties of excise - a type of duty of excise imposed under that Act; or
(iii)
if an Act imposes duties of customs - a type of duty of customs imposed under that Act; and
(b)
does not identify, nor is reasonably capable of being used to identify, an individual.
History
S 355-47 inserted by No 124 of 2013, s 3 and Sch 5 item 2, applicable to: (a) the 2013-14 income year and later income years; and (b) the 2013-2014 MRRT year and later MRRT years; and (c) the year of tax (within the meaning of the Petroleum Resource Rent Tax Assessment Act 1987) starting on 1 July 2013 and later years of tax.
SECTION 355-50
EXCEPTION - DISCLOSURE IN PERFORMING DUTIES
355-50(1)
Section 355-25 does not apply if:
(a)
the entity is a *taxation officer; and
(b)
the record or disclosure is made in performing the entity's duties as a taxation officer.
Note 1:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
Note 2:
Examples of duties mentioned in paragraph (b) include:
(a) the duty to make available information under sections 3C, 3E and 3H of this Act; and
(b) the duty to establish and maintain the Excise and Excise-Equivalent Warehouse Licences Register under subsection 40(1) of the Excise Act 1901.
History
S 355-50(1) amended by No 51 of 2024, s 3 and Sch 1 item 189, by substituting note 2, effective 1 July 2024. Note 2 formerly read:
Note 2:
An example of a duty mentioned in paragraph (b) is the duty to make available information under sections 3C, 3E and 3H.
S 355-50(1) amended by No 92 of 2020, s 3 and Sch 6 item 2, by substituting ", 3E and 3H" for "and 3E" in note 2, effective 1 January 2021.
S 355-50(1) amended by No 96 of 2014, s 3 and Sch 1 item 96, by omitting ", 3D" after "sections 3C" from note 2, effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 355-50(1) amended by No 124 of 2013, s 3 and Sch 5 items 3 and 4, by substituting "Note 1:" for "Note:" and inserting note 2, applicable to: (a) the 2013-14 income year and later income years; and (b) the 2013-2014 MRRT year and later MRRT years; and (c) the year of tax (within the meaning of the Petroleum Resource Rent Tax Assessment Act 1987) starting on 1 July 2013 and later years of tax.
355-50(2)
Without limiting subsection (1), records or disclosures made in performing duties as a *taxation officer include those mentioned in the following table:
|
Records or disclosures in performing duties
|
|
Item
|
The record is made for or the disclosure is to …
|
and the record or disclosure …
|
| 1 |
any entity, court or tribunal |
is for the purpose of administering any *taxation law. |
| 2 |
any entity, court or tribunal |
is for the purpose of the making, or proposed or possible making, of an order under the Proceeds of Crime Act 2002 that is related to a *taxation law. |
| 3 |
any entity, court or tribunal |
is for the purpose of criminal, civil or administrative proceedings (including merits review or judicial review) that are related to a *taxation law. |
| 4 |
any entity |
is for the purpose of responding to a request for a statement of reasons under the Administrative Decisions (Judicial Review) Act 1977 in relation to a decision made under a *taxation law. |
| 5 |
any entity |
is for the purpose of: |
| |
|
(a) |
determining whether to make an ex gratia payment; or |
| |
|
(b) |
administering such a payment; |
| |
|
in connection with administering a *taxation law. |
| 6 |
any entity |
is for the purpose of enabling the entity to understand or comply with its obligations under a *taxation law. |
| 7 |
the Secretary of the Department |
(a) |
is of information that does not include the name, contact details or *ABN of any entity; and |
| |
|
(b) |
is for the purpose of: |
| |
|
|
(i) |
the design of a *taxation law; or |
| |
|
|
(ii) |
the amendment of a taxation law. |
| 8 |
any board or member of a board performing a function or exercising a power under a *taxation law |
is for the purpose of performing that function or exercising that power. |
| 9 |
a competent authority referred to in an international agreement (within the meaning of section 23 of the International Tax Agreements Act 1953) |
is for the purpose of exchanging information under such an international agreement. |
| 10 |
any employer (within the meaning of the Superannuation Guarantee (Administration) Act 1992) | is for the purpose of disclosing to that employer information included in a notice given to the Commissioner under subsection 32F(1) or 32H(1A) of that Act by an employee (within the meaning of that Act) of that employer. |
| 11 |
a payer (within the meaning of Part VA of the Income Tax Assessment Act 1936) in relation to whom an individual has made a *TFN declaration that is in effect |
(a) is of a matter that relates to the individual's income tax or other liability referred to in paragraph 11-1(b), (ca), (cb), (cc), (cd), (da) or (db); and
(b) is for the purpose of assisting the individual to give a declaration under section 15-50 to the payer; and
(c) is made as the result of a request made by the individual to the Commissioner |
History
S 355-50(2) amended by No 8 of 2019, s 3 and Sch 6 item 3, by inserting table item 11, effective 1 July 2018.
S 355-50(2) amended by No 55 of 2016, s 3 and Sch 23 item 35, by inserting table item 10, applicable in relation to disclosures of information on or after 1 January 2017 (whether the information was acquired before, on or after that day).
S 355-50(2) amended by No 110 of 2014, s 3 and Sch 5 item 69, by omitting "of the Treasury" after "of the Department" from table item 7 column headed "The record is made for or the disclosure is to...", effective 16 October 2014. For transitional provisions see note under s 355-65(4).
History
S 355-50 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-55
EXCEPTION - DISCLOSURE TO MINISTERS
355-55(1)
Section 355-25 does not apply if:
(a)
the entity is a *taxation officer; and
(b)
an item in the table in this subsection covers the making of the record or the disclosure; and
(c)
if the entity is not the Commissioner, a *Second Commissioner or an SES employee or acting SES employee of the Australian Taxation Office - one of the following has agreed that the record or disclosure is covered by the item:
(i)
the Commissioner;
(ii)
a Second Commissioner;
(iii)
an SES employee or acting SES employee of the Australian Taxation Office who is not a direct supervisor of the taxation officer.
|
Records or disclosures to Ministers
|
|
Item
|
The record is made for or the disclosure is to …
|
and the record or disclosure …
|
| 1 |
any Minister |
is for the purpose of enabling the Minister to exercise a power or perform a function under a *taxation law. |
| 2 |
the Minister |
(a) |
is about an entity; and |
| |
|
(b) |
is for the purpose of enabling the Minister to respond directly to the entity in relation to a representation made by the entity to: |
| |
|
|
(i) |
the Minister; or |
| |
|
|
(ii) |
another member of a House of the Parliament. |
| 3 |
the Minister |
is for the purpose of informing decisions made under the scheme known as the Compensation for Detriment Caused by Defective Administration Scheme. |
| 4 |
the *Finance Minister |
is for the purpose of: |
| |
|
(a) |
the waiver, or possible waiver, of a *tax debt under section 63 of the Public Governance, Performance and Accountability Act 2013; or |
| |
|
(b) |
the making, or possible making, of a payment referred to in section 65 of that Act (about act of grace payments) in connection with administering a *taxation law. |
| 5 |
any Minister |
is for the purpose of: |
| |
|
(a) |
determining whether to make an ex gratia payment; or |
| |
|
(b) |
administering such a payment. |
| 6 |
a Minister responsible for:
(a) agriculture; or
(aa) water; or
(b) industry policy; or
(c) investment promotion; or
(d) taxation policy; or
(e) foreign investment in Australia |
(a) |
is of information contained in the Register of Foreign Ownership of Agricultural Land or Register of Foreign Ownership of Water Entitlements; and |
| |
(b) |
is for the purpose of enabling that Minister to discharge that responsibility. |
Note 1:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
Note 2:
Section 19 of the Acts Interpretation Act 1901 provides that the expression "the Minister", as used in table items 2 and 3, refers to the Minister or Ministers administering the relevant provision.
History
S 355-55(1) amended by No 96 of 2016, s 3 and Sch 1 items 39 and 40, by inserting para (aa) in table item 6, column headed "The record is made for or the disclosure is to ..." and inserting "or Register of Foreign Ownership of Water Entitlements" in table item 6, applicable in relation to records and disclosures of information made on or after 7 December 2016, whether the information was obtained before, on or after 7 December 2016.
S 355-55(1) amended by No 126 of 2015, s 3 and Sch 1 item 603, by substituting "Section 19" for "Section 19A" in note 2, effective 5 March 2016.
S 355-55(1) amended by No 150 of 2015, s 3 and Sch 4 item 4, by inserting table item 6, applicable in relation to records and disclosures of information made on or after 1 December 2015, whether the information was obtained before, on or after 1 December 2015.
S 355-55(1) amended by No 62 of 2014, s 3 and Sch 12 item 188, by substituting table item 4, effective 1 July 2014. Table item 4 formerly read:
| "4 |
the *Finance Minister |
is for the purpose of: |
| |
|
(a) |
the making, or possible making, of a payment referred to in section 33 of the Financial Management and Accountability Act 1997 (about act of grace payments) in connection with administering a *taxation law; or |
| |
|
(b) |
the waiver, or possible waiver, of a *tax debt under section 34 of that Act." |
S 355-55(1) amended by No 39 of 2012, s 3 and Sch 4 item 23, by substituting "*Second Commissioner" for "Second Commissioner" (first occurring) in para (c), effective 15 April 2012.
355-55(2)
The *taxation officer is entitled to rely on the exception in subsection (1) even if the agreement referred to in paragraph (1)(c) has not been obtained in relation to the record or disclosure.
History
S 355-55 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-60
LIMITS ON DISCLOSURE TO MINISTERS
355-60(1)
Sections 355-45 and 355-55 are the only exceptions to the prohibition in section 355-25 on which an entity who has acquired *protected information as a *taxation officer can rely in making a record of the information for, or disclosing the information to, a Minister, whether or not provided to a Minister in the course of, or for the purposes of or incidental to, the transacting of the business of a House of the Parliament or of a committee of one or both Houses of the Parliament.
Note:
Disclosures that are not prohibited by section 355-25 are not affected by this subsection. For example, a taxation officer may disclose information to a Minister if the Minister is the entity to whom the information relates, or is an entity covered by subsection 355-25(2) in relation to the information.
355-60(2)
Subsection (1) has effect despite section 16 of the Parliamentary Privileges Act 1987, and that section does not operate to the extent that it would otherwise apply to a disclosure of *protected information by a *taxation officer to a Minister.
Note:
This subsection does not limit the operation of section 16 of the Parliamentary Privileges Act 1987 in any other respect. That section continues to operate, for example, to enable taxation officers to disclose protected information to a committee of one or both Houses of the Parliament.
History
S 355-60 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-65
EXCEPTION - DISCLOSURE FOR OTHER GOVERNMENT PURPOSES
355-65(1)
Section 355-25 does not apply if:
(a)
the entity is a *taxation officer; and
(b)
an item in a table in this section covers the making of the record or the disclosure.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
Table 1 - Records or disclosures relating to social welfare, health or safety
355-65(2)
Table 1 is as follows:
|
Table 1: Records or disclosures relating to social welfare, health or safety
|
|
Item
|
The record is made for or the disclosure is to …
|
and the record or disclosure …
|
| 1 |
an Agency Head (within the meaning of the Public Service Act 1999) of an agency (within the meaning of that Act) dealing with matters relating to the social security law (within the meaning of subsection 23(17) of the Social Security Act 1991) |
is for the purpose of administering that law. |
| 2 |
the *Health Secretary |
is for the purpose of administering any law of the Australian Capital Territory or of the Northern Territory which is administered by the *Health Minister. |
| 3 |
the Repatriation Commission |
is for the purpose of administering any *Commonwealth law relating to pensions, allowances or benefits. |
| 4 |
the *Student Assistance Secretary |
is for the purpose of administering any *Commonwealth law relating to pensions, allowances or benefits. |
| 4A |
the Secretary of the Department administered by the Minister administering the Fair Entitlements Guarantee Act 2012 |
is for the purpose of administering the Fair Entitlements Guarantee Act 2012. |
| 4B |
the *Employment Secretary |
is for the purpose of administering any *Commonwealth law relating to pensions, allowances or benefits, other than the Fair Entitlements Guarantee Act 2012. |
| 5 |
(a) the *Student Assistance Secretary; or
(b) the Secretary of the Department administered by the Minister administering the Higher Education Support Act 2003; or
(c) the Secretary of the Department administered by the Minister administering the VET Student Loans Act 2016 |
is for the purpose of administering any *Commonwealth law relating to financial assistance to students. |
| 5AA |
the Secretary of the Department administered by the Minister administering the Australian Apprenticeship Support Loans Act 2014 |
is for the purpose of administering that Act. |
| 5A |
the *Families Secretary or the Chief Executive Centrelink (within the meaning of the Human Services (Centrelink) Act 1997) |
is for the purpose of administering the Paid Parental Leave Act 2010. |
| 6 |
the *Families Secretary or the Chief Executive Centrelink (within the meaning of the Human Services (Centrelink) Act 1997) |
is for the purpose of administering the A New Tax System (Family Assistance) (Administration) Act 1999. |
| 7 |
the Child Support Registrar |
is for the purpose of administering the Child Support (Registration and Collection) Act 1988 or the Child Support (Assessment) Act 1989. |
| 8 |
the Chief Executive Medicare (within the meaning of the Human Services (Medicare) Act 1973) |
is for the purpose of administering Part 2-2 (about premiums reduction scheme) or 6-4 (about administration of that scheme) of the Private Health Insurance Act 2007. |
| 9 |
an *Australian government agency |
is necessary for the purpose of preventing or lessening: |
| |
|
(a) |
a serious threat to an individual's life, health or safety; or |
| |
|
(b) |
a serious threat to public health or public safety. |
| 10 |
an *Australian government agency |
is for the purpose of preventing, detecting, disrupting or investigating conduct that relates to a matter of security as defined by section 4 of the Australian Security Intelligence Organisation Act 1979 |
| 11 |
the Chief Executive Officer of Services Australia |
is for the purpose of administering the program known as the COVID-19 Disaster Payment. |
History
S 355-65(2) amended by No 61 of 2023, s 3 and Sch 1 item 148, by substituting "Australian Apprenticeship Support Loans Act 2014" for "Trade Support Loans Act 2014" in table item 5AA, effective 1 January 2024. For transitional provisions, see note under s 11-1.
S 355-65(2) amended by No 71 of 2021, s 3 and Sch 2 item 1, by inserting table item 11, applicable in relation to records and disclosures of information made on or after 1 July 2021, whether the information was obtained before, on or after 1 July 2021.
S 355-65(2) amended by No 64 of 2020, s 3 and Sch 3 item 145, by substituting table item 4 and inserting table items 4A and 4B, effective 1 July 2020. Table item 4 formerly read:
| 4 |
the *Student Assistance Secretary or the *Employment Secretary |
is for the purpose of administering any *Commonwealth law relating to pensions, allowances or benefits. |
S 355-65(2) amended by No 116 of 2018, s 3 and Sch 1 item 60, by inserting "; or (c) the Secretary of the Department administered by the Minister administering the VET Student Loans Act 2016" in table item 5, column headed "The record is made for or the disclosure is to ...", effective 1 July 2019.
S 355-65(2) amended by No 8 of 2019, s 3 and Sch 7 item 2, by inserting ", allowances or benefits" in table item 3, column headed "and the record or disclosure ...", effective 1 April 2019.
S 355-65(2) amended by No 15 of 2017, s 3 and Sch 4 items 90 and 91, by substituting "*Student Assistance Secretary" for "*Education Secretary" in table item 4, column headed "The record is made for or the disclosure is to ..." and substituting table items 5 and 5AA, effective 1 April 2017. No 15 of 2017, s 3 and Sch 4 item 92 contains the following application provision:
92 Application of amendments
(1)
Item 5 of the table in subsection 355-65(2) in Schedule 1 to the Taxation Administration Act 1953 applies in relation to records and disclosures of information on or after 18 September 2013 (regardless of when the information was acquired).
(2)
Item 5AA of the table in subsection 355-65(2) in Schedule 1 to the Taxation Administration Act 1953 applies in relation to records and disclosures of information on or after 23 December 2014 (regardless of when the information was acquired).
Table items 5 and 5AA formerly read:
| "5 |
the *Education Secretary |
is for the purpose of administering any *Commonwealth law relating to financial assistance to students. |
| 5AA |
the *Industry Secretary |
is for the purpose of administering the Trade Support Loans Act 2014." |
S 355-65(2) amended by No 82 of 2016, s 3 and Sch 17 item 1, by inserting table item 10, applicable in relation to records and disclosures of information made on or after 30 November 2016, whether the information was obtained before, on or after 30 November 2016.
S 355-65(2) amended by No 110 of 2014, s 3 and Sch 5 item 139, by substituting table item 5A, applicable to records and disclosures of information made on or after 1 July 2011 (whenever the information was acquired). Table item 5A formerly read:
| "5A |
(a) the *Families Secretary; or
(b) the Chief Executive Officer of Centrelink |
is for the purpose of administering the Paid Parental Leave Act 2010." |
S 355-65(2) amended by No 82 of 2014, s 3 and Sch 1 item 24, by inserting table item 5AA, effective 18 July 2014.
S 355-65(2) amended by No 105 of2013, s 3 and Sch 2 item 27, by substituting "premiums reduction scheme) or 6-4 (about administration of that scheme)" for "premiums reduction and incentive payment schemes) or 6-4 (about administration of those schemes)" in table item 8, effective 1 July 2013. Despite the amendment, table item 8 in subsection 35565(2) in Schedule 1 to the Taxation Administration Act 1953 (as in force immediately before 1 July 2013) continues to apply on and after 1 July 2013 in relation to the making of records or disclosures on or after 1 July 2013.
S 355-65(2) amended by No 41 of 2011, s 3 and Sch 5 item 24, by substituting "Chief Executive Centrelink (within the meaning of the Human Services (Centrelink) Act 1997)" for "Chief Executive Officer of Centrelink" in table item 6, column headed "The record is made for or the disclosure is to …", effective 1 July 2011.
S 355-65(2) amended by No 41 of 2011, s 3 and Sch 5 items 21 and 22, by inserting "or the *Employment Secretary" at the end of the cell at table item 4, column headed "The record is made for or the disclosure is to …" and inserting "or the Chief Executive Officer of Centrelink" at the end of the cell at table item 6, column headed "The record is made for or the disclosure is to …", effective 27 June 2011.
S 355-65(2) amended by No 32 of 2011, s 3 and Sch 1 item 629, by substituting "the Chief Executive Medicare (within the meaning of the Human Services (Medicare) Act 1973)" for "the Chief Executive Officer of Medicare Australia" in table item 8, effective 1 July 2011.
S 355-65(2) amended by No 105 of 2010, s 3 and Sch 1 item 83, by inserting table item 5A, effective 17 December 2010.
Table 2 - Records or disclosures relating to superannuation or finance
355-65(3)
Table 2 is as follows:
|
Table 2: Records or disclosures relating to superannuation or finance
|
|
Item
|
The record is made for or the disclosure is to …
|
and the record or disclosure …
|
| 1 |
a financial sector supervisory agency (within the meaning of section 3 of the Australian Prudential Regulation Authority Act 1998) |
(a) |
is of information that was obtained under or in relation to the Superannuation (Unclaimed Money and Lost Members) Act 1999; and |
| |
|
|
(b) |
is for the purpose of the agency performing any of its functions or exercising any of its powers. |
| 2 |
(a) |
an agency having the function, in Australia or in a foreign country, of supervising or regulating *financial institutions; or |
(a) |
is of information that was obtained under or in relation to the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 or the Superannuation Industry (Supervision) Act 1993; and |
| |
(b) |
any other agency (including a foreign agency) specified in the regulations |
(b) |
is for the purpose of performing any of its functions or exercising any of its powers; and |
| |
|
|
(c) |
is made in accordance with the conditions (if any) imposed by the regulations in relation to the disclosure of information under this item. |
| 3 |
the operator of the AFCA scheme (within the meaning of the Corporations Act 2001) |
(a) |
is of information that was obtained under or in relation to the Superannuation (Unclaimed Money and Lost Members) Act 1999; and |
| |
|
|
(b) |
is for the purpose of the operator performing any of its functions or exercising any of its powers. |
| 4 |
the Australian Prudential Regulation Authority (
APRA
) |
is for the purpose of administering: |
| |
|
|
(a) |
the Financial Institutions Supervisory Levies Collection Act 1998; or |
| |
|
|
(b) |
the Superannuation Industry (Supervision) Act 1993. |
| 5 |
APRA |
(a) |
is of information that was obtained under or in relation to the Superannuation (Unclaimed Money and Lost Members) Act 1999; and |
| |
|
|
(b) |
is for the purpose of APRA performing any of its functions or exercising any of its powers. |
| 6 |
APRA |
is for the purpose of administering a reporting standard made under section 13 of the Financial Sector (Collection of Data) Act 2001, to the extent that the standard relates to amounts reported to *APRA for the purposes of the Major Bank Levy Act 2017. |
| 6A |
*ASIC |
is for the purpose of administering Part 16 of the Superannuation Industry (Supervision) Act 1993. |
| 7 |
an individual who is or was an employee (within the meaning of the Superannuation Guarantee (Administration) Act 1992) |
(a) |
is of information that relates to the Commissioner's response to a complaint by the individual about a failure by the individual's employer or former employer to comply with the employer's obligations under the Superannuation Guarantee (Administration) Act 1992, or under a provision of this Act as it relates to that Act, in relation to the employee; and |
| |
|
|
(b) |
does not relate to the general financial affairs of the employer. |
| 7A |
an individual who is or was an employee (within the meaning of the Superannuation Guarantee (Administration) Act 1992) |
(a) |
is of information that relates to:
(i) a failure by the individual's employer or former employer to comply with the employer's obligations under the Superannuation Guarantee (Administration) Act 1992, or under a provision of this Act as it relates to that Act, in relation to the employee; or
(ii) if the Commissioner reasonably suspects that such a failure has occurred - the suspected failure; or
(iii) any actions taken by the Commissioner in relation to such a failure or suspected failure; and |
| |
|
|
(b) |
does not relate to the general financial affairs of the employer. |
| 8 |
any entity, court or tribunal |
is of information that was obtained under, or for the purposes of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 or the Superannuation Industry (Supervision) Act 1993 and is for the purpose of all or any of the following: |
| |
|
|
(a) |
identifying a particular *self managed superannuation fund; |
| |
|
|
(b) |
enabling members of the public to contact persons who perform functions in relation to a particular self managed superannuation fund; |
| |
|
|
(c) |
enabling the Commissioner to provide an opinion to members of the public as to whether or not a particular self managed superannuation fund is a complying superannuation fund in relation to a particular income year for the purposes of Division 2 of Part 5 of the Superannuation Industry (Supervision) Act 1993; |
| |
|
|
(d) |
describing activity engaged in, or proposed to be engaged in, by the Commissioner in relation to a breach or suspected breach by a person of a provision of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 or the Superannuation Industry (Supervision) Act 1993. |
| 8A |
a Senior Registry official (within the meaning of section 90XZJ of the Family Law Act 1975) of a court in response to that official's request under that section |
(a) |
is of superannuation information (within the meaning of that section); and |
| |
|
|
(b) |
is for the purpose of property settlement proceedings (within the meaning of that Act). |
| 8B |
the Principal Registrar of the Family Court of Western Australia in response to the Principal Registrar's request under section 90YZY of the Family Law Act 1975 |
(a) |
is of superannuation information (within the meaning of that section); and |
| |
|
|
(b) |
is for the purpose of all of the relevant proceedings (within the meaning of that section). |
| 9 |
an approved clearing house (within the meaning of the Superannuation Guarantee (Administration) Act 1992) |
is for the purposes of that body performing its functions in relation to superannuation contributions. |
| 10 |
(a) a *regulated superannuation fund; or
(b) a public sector superannuation scheme (within the meaning of the Superannuation Industry (Supervision) Act 1993); or
(c) an *approved deposit fund; or
(d) an *RSA provider; or
(e) an entity that, as an agent of such a fund, scheme or RSA provider, provides administration services for:
(i) beneficiaries (within the meaning of that Act) of the fund or scheme; or
(ii) holders (within the meaning of the Retirement Savings Accounts Act 1997) of *RSAs provided by the RSA provider |
is for the purpose of:
(a) informing:
(i) a beneficiary (within the meaning of the Superannuation Industry (Supervision) Act 1993) of such a fund or scheme; or
(ii) a holder (within the meaning of the Retirement Savings Accounts Act 1997) of an *RSA provided by the *RSA provider; or
(iii) an applicant to become such a beneficiary or holder;
of one or more of his or her *superannuation interests (whether with that fund, scheme or RSA provider or another fund, scheme or RSA provider); or
(b) assisting such a beneficiary, holder or applicant to choose whether to maintain or create such a superannuation interest; or
(c) assisting such a beneficiary, holder or applicant to give effect to such a choice; or
(d) informing such a beneficiary, holder or applicant of an amount that is or may become payable, or that may be paid, credited or otherwise dealt with, in relation to the beneficiary, holder or applicant under:
(i) the Small Superannuation Accounts Act 1995; or
(ii) the Superannuation (Government Co-contribution for Low Income Earners) Act 2003; or
(iii) the Superannuation Guarantee (Administration) Act 1992; or
(iv) the Superannuation (Unclaimed Money and Lost Members) Act 1999; or
(e) assisting such a beneficiary, holder or applicant to give effect to a choice that he or she may make, or undertake an action that he or she may undertake, in relation to an amount mentioned in paragraph (d). |
| 10A |
a *superannuation provider |
is for the purpose of complying with section 131-80 in this Schedule. |
| 11 |
a *superannuation provider or APRA |
is for the purpose of complying with subsection 292-102(9) of the Income Tax Assessment Act 1997. |
| 12 |
An employer (within the meaning of the Superannuation Guarantee (Administration) Act 1992) of an individual |
is for the purpose of:
(a) informing the individual of one or more of his or her *superannuation interests; or
(b) assisting the individual to choose whether to maintain or create a superannuation interest; or
(c) assisting the individual to give effect to such a choice |
[
CCH Note:
S 355-65(3) was amended by No 8 of 2019, s 3 and Sch 6 item 4, by inserting table item 11 (second occurring), effective 1 July 2018. The second occurring table item 11 has been renumbered to table item 12, in line with an editorial change made by the Federal Register of Legislation under the Legislation Act 2003.]
History
S 355-65(3) amended by No 75 of 2023, s 3 and Sch 4 item 27, by inserting table item 10A, effective 15 September 2024. For application and transitional provisions, see note under s 131-30.
S 355-65(3) amended by No 76 of 2023, s 3 and Sch 2 item 731, by omitting "Chapter 7 of" before "the Corporations Act 2001" from table item 3, effective 20 October 2023.
S 355-65(3) amended by No 111 of 2021, s 3 and Sch 5 item 5, by inserting table item 8B, applicable in relation to records or disclosures of information made at or after 28 September 2022, whether the information was obtained before, at or after 28 September 2022.
S 355-65(3) amended by No 111 of 2021, s 3 and Sch 5 item 2, by inserting table item 8A, applicable in relation to records or disclosures of information made at or after 1 April 2022, whether the information was obtained before, at or after 1 April 2022.
S 355-65(3) amended by No 13 of 2018 (as amended by No 35 of 2022), s 3 and Sch 3 item 31, by substituting table item 3, effective 5 March 2022. No 13 of 2018 (as amended by No 35 of 2022), s 3 and Sch 3 items 32-35 contain the following application, saving and transitional provisions:
Part 3 - Application, saving and transitional provisions
32 Existing determinations unaffected
…
(2)
The amendments of Acts made by Part 2 of this Schedule do not apply in relation to such a determination, and those Acts continue to apply after the commencement of that Part in relation to such a determination as if those amendments had not been made.
33 Transfer of records
(1)
This item applies to any records or documents that were in the possession of the following immediately before the commencement of Part 1 of this Schedule:
(a)
a member of the Superannuation Complaints Tribunal;
(b)
a member of the staff of the Australian Securities and Investments Commission who had been made available to the Superannuation Complaints Tribunal under section 62 of the Superannuation (Resolution of Complaints) Act 1993.
(2)
The records and documents are to be transferred to the Australian Securities and Investments Commission after that commencement.
Note:
The records and documents are Commonwealth records for the purposes of the Archives Act 1983.
Records and documents taken to be protected information
(3)
For the purposes of section 127 of the Australian Securities and Investments Commission Act 2001, a record or document transferred to the Australian Securities and Investments Commission under subitem (2) of this item is taken to be protected information, unless the document or record has already been lawfully made available to the public.
34 Remittal of matters by the Federal Court
(1)
This item applies in relation to an appeal to the Federal Court under section 46 of the Superannuation (Resolution of Complaints) Act 1993, as in force immediately before the commencement of Part 1 of this Schedule, from a determination of the Superannuation Complaints Tribunal, if the appeal was not finally determined before that commencement.
(2)
Without limiting the powers of the Federal Court, the Federal Court may make an order remitting the matter to be determined by the Australian Financial Complaints Authority in accordance with the directions of the Court.
35 Transitional rules
(1)
The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Schedule.
(2)
To avoid doubt, the rules may not do the following:
(a)
create an offence or civil penalty;
(b)
provide powers of:
(i)
arrest or detention; or
(ii)
entry, search or seizure;
(c)
impose a tax;
(d)
set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e)
directly amend the text of this Act.
Table item 3 formerly read:
S 355-65(3) amended by No 8 of 2019, s 3 and Sch 2 items 1 and 2, by inserting ", or under a provision of this Act as it relates to that Act," in para (a) in table item 7, column headed "and the record or disclosure ..." and inserting table item 7A, effective 1 April 2019 and applicable in relation to records or disclosures made on or after 1 July 2018 in relation to matters that arose before, on or after that day.
S 355-65(3) amended by No 8 of 2019, s 3 and Sch 6 item 4, by inserting table item 11 (second occurring), renumbered to table item 12 in line with an editorial change made by the Federal Register of Legislationunder the Legislation Act 2003, effective 1 July 2018.
S 355-65(3) amended by No 13 of 2018, s 3 and Sch 1 item 29, by substituting table item 3, effective 6 March 2018 and applicable in relation to disclosures of information made on and after the day on which that authorisation comes into force, whether the information was acquired before, on or after that day. Table item 3 formerly read:
| 3 |
the Superannuation Complaints Tribunal established by section 6 of the Superannuation (Resolution of Complaints) Act 1993 |
(a) |
is of information that was obtained under or in relation to the Superannuation (Unclaimed Money and Lost Members) Act 1999; and |
| |
|
|
(b) |
is for the purpose of the Tribunal performing any of its functions or exercising any of its powers. |
S 355-65(3) amended by No 132 of 2017, s 3 and Sch 2 item 6, by inserting table item 11, effective 1 January 2018 and applicable in relation to a disposal of an ownership interest in a dwelling if the contract for the disposal is entered into on or after 1 July 2018.
S 355-65(3) amended by No 64 of 2017, s 3 and Sch 1 item 19, by inserting table item 6, applicable in relation to quarters starting on or after 1 July 2017.
S 355-65(3) amended by No 162 of 2015, s 3 and Sch 4 item 13, by substituting "*ASIC" for "the Australian Securities and Investments Commission" in table item 6A, effective 30 November 2015.
S 355-65(3) amended by No 130 of 2015, s 3 and Sch 3 item 7, by substituting para (a) and (b) in table item 10, column headed "The record is made for or the disclosure is to …", effective 17 September 2015. Para (a) and (b) formerly read:
(a)
a regulated superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993); or
(b)
a public sector superannuation scheme (within the meaning of that Act); or
S 355-65(3) amended by No 70 of 2015, s 3 and Sch 1 item 171, by repealing table item 6, effective 1 July 2015. Table item 6 formerly read:
| 6 |
APRA |
is for the purpose of APRA performing any of its functions or exercising any of its powers in relation to *FHSAs. |
S 355-65(3) amended by No 158 of 2012, s 3 and Sch 2 item 69, by inserting table item 6A, effective 31 January 2013.
S 355-65(3) amended by No 75 of 2012, s 3 and Sch 5 item 1, by inserting table item 10, effective 27 June 2012.
S 355-65(3) amended by No 12 of 2012, s 3 and Sch 6 items 212-213, by substituting "*self managed superannuation fund".for "self-managed superannuation fund" in para (a) of the cell at table item 8, column headed "and the record or disclosure …" and "self managed superannuation fund" for "self-managed superannuation fund" in para (b) of the same table item, effective 21 March 2012.
S 355-65(3) amended by No 56 of 2010, s 3 and Sch 1 item 8, by inserting table item 9, effective 17 December 2010.
Table 3 - Records or disclosures relating to corporate regulation, business, research or policy
355-65(4)
Table 3 is as follows:
|
Table 3: Records or disclosures relating to corporate regulation, business, research or policy
|
|
Item
|
The record is made for or the disclosure is to …
|
and the record or disclosure …
|
| 1 |
*ASIC |
is for the purpose of performing any functions or exercising any powers under any Act or instrument, or part of any Act or instrument, of which the Commission has the general administration. |
| 2-4 |
(Repealed by No 150 of 2015) |
|
|
| 5 |
(Repealed by No 70 of 2015) |
|
| 6 |
Industry Innovation and Science Australia established under section 6 of the Industry Research and Development Act 1986 |
is for the purpose of administering any *Commonwealth law relating to venture capital. |
| 6A |
the Secretary of the Department administered by the Minister administering the Shipping Reform (Tax Incentives) Act 2012 |
is for the purpose of administering that Act. |
| 7 | the Secretary of the Department |
is for the purpose of administering the Foreign Acquisitions and Takeovers Act 1975. |
| 7A |
a person appointed by the Commonwealth for the purposes of the Foreign Acquisitions and Takeovers Act 1975 |
is for the purpose of advising the Treasurer in relation to the administration of that Act. |
| 8 |
the Secretary of the Department |
(a) |
is of information that does not include the name, contact details or *ABN of any entity; and |
| |
|
|
(b) |
is for the purpose of the Department estimating or analysing taxation revenue or estimating the cost of policy proposals. |
| 9 |
the Parliamentary Budget Officer (within the meaning of the Parliamentary Service Act 1999) |
(a) |
is of information that does not include the name, contact details or *ABN of any entity; and |
| |
|
|
(b) |
is for the purpose of the Parliamentary Budget Officer performing any of his or her functions, or exercising any of his or her powers, under Part 7 of the Parliamentary Service Act 1999. |
History
S 355-65(4) amended by No 101 of 2021, s 3 and Sch 1 item 5(c), by substituting "Industry Innovation and Science Australia" for "Innovation and Science Australia" in table item 6, column headed "The record is made for or the disclosure is to ...", effective 11 September 2021.
S 355-65(4) amended by No 114 of 2020, s 3 and Sch 1 item 226, by inserting table item 7A, effective 1 January 2021.
S 355-65(4) amended by No 8 of 2019, s 3 and Sch 8 item 61, by substituting "*ASIC" for "the Australian Securities and Investments Commission" in table item 1, column headed "The record is made for or the disclosure is to ...", effective 1 April 2019.
S 355-65(4) amended by No 63 of 2016, s 3 and Sch 1 item 48(c), by substituting "Innovation and Science Australia" for "Innovation Australia", effective 20 October 2016.
S 355-65(4) amended by No 150 of 2015, s 3 and Sch 4 items 5 and 6, by substituting table item 1, repealing table items 2 to 4 and substituting table item 7, applicable in relation to records and disclosures of information made on or after 1 December 2015, whether the information was obtained before, on or after 1 December 2015. Table items 1 to 4 and 7 formerly read:
| 1 |
the Australian Securities and Investments Commission (
ASIC
) |
is for the purpose of investigation or enforcement activities relating to a provision of a law that: |
| |
|
|
(a) |
is administered by ASIC; and |
| |
|
|
(b) |
imposes a pecuniary penalty or creates an offence. |
| 2 |
ASIC |
(a) |
is of information that was obtained under or in relation to the Superannuation (Unclaimed Money and Lost Members) Act 1999; and |
| |
|
|
(b) |
is for the purpose of ASIC performing any of its functions or exercising any of its powers. |
| 3 |
ASIC |
is of information relating to superannuation and is for the purpose of administering: |
| |
|
|
(a) |
the Superannuation Industry (Supervision) Act 1993; or |
| |
|
|
(b) |
Chapter 7 of the Corporations Act 2001 (about financial services and markets); or |
| |
|
|
(c) |
Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001 (about unconscionable conduct and consumer protection in relation to financial services). |
| 4 |
ASIC |
is for the purpose of administering Chapter 5A of the Corporations Act 2001 (relating to deregistration, and transfer of registration, of companies). |
| 7 |
the Secretary of the Department |
is for the purpose of:
(a) briefing the Minister in relation to a decision that the Minister may make under the Foreign Acquisitions and Takeovers Act 1975; or
(b) briefing the Minister in relation to a decision that the Minister may make in accordance with the document issued by the Minister known as Australia's Foreign Investment Policy; or
(c) briefing an officer of the Department who is authorised by the Minister to make a decision mentioned in paragraph (a) or (b) in relation to the decision. |
S 355-65(4) amended by No 70 of 2015, s 3 and Sch 1 item 172, by repealing table item 5, effective 1 July 2015. Table item 5 formerly read:
| 5 |
ASIC |
is for the purpose of ASIC performing any of its functions or exercising any of its powers in relation to *FHSAs. |
S 355-65(4) amended by No 110 of 2014, s 3 and Sch 5 items 70-72, by substituting table item 7, omitting "of the Treasury" after "of the Department" from table item 8, column headed "The record is made for or the disclosure is to..." and substituting "the Department" for "that Department" in para (b) of table item 8, column headed "and the record or disclosure...", effective 16 October 2014. No 110 of 2014, s 3 and Sch 5 item 74, contains the following transitional provision:
74 Transitional - amendments do not affect things done
Things done under amended provisions
74(1)
Subitem (2) applies to a thing done under a provision of an Act if:
(a)
the provision is amended by an item of this Part; and
(b)
the thing was in force immediately before the commencement of that item.
74(2)
The thing has effect, after the commencement of that item, as if it had been done under that provision as amended by that item. However, this is not taken to change the time at which the thing was actually done.
Amendments do not affect requirements for things done
74(3)
Subitem (4) applies to a thing done under an Act if:
(a)
the thing was in force, and complied with a requirement of that Act, immediately before the commencement of an item of this Part; and
(b)
immediately after the commencement of that item, the thing fails to comply with that requirement solely because of the amendments of that Act made by that item.
74(4)
Disregard those amendments when considering, on and after the commencement of that item, whether the thing complies with that requirement.
Meaning of
thing done
74(5)
In this item, doing a thing includes:
(a)
making an instrument; and
(b)
making a decision.
75 Rules may deal with transitional etc. matters
75(1)
The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Part.
75(2)
This Part does not limit the rules that may be made for the purposes of subitem (1).
Table item 7 formerly read:
| "7 |
the Secretary of the Department of the Treasury |
is for the purpose of:
(a) briefing the Treasurer in relation to a decision that the Treasurer may make under the Foreign Acquisitions and Takeovers Act 1975; or
(b) briefing the Treasurer in relation to a decision that the Treasurer may make in accordance with the document issued by the Treasurer known as Australia's Foreign Investment Policy; or
(c) briefing an officer of the Department of the Treasury who is authorised by the Treasurer to make a decision mentioned in paragraph (a) or (b) in relation to the decision." |
S 355-65(4) amended by No 124 of 2013, s 3 and Sch 5 item 5, by substituting table item 7, applicable to records and disclosures made on or after 29 June 2013 (whenever the information was obtained). Table item 7 formerly read:
| "7 |
the Secretary of the Department of the Treasury |
is for the purpose of briefing the Treasurer in relation to a decision that the Treasurer may make under the Foreign Acquisitions and Takeovers Act 1975." |
S 355-65(4) amended by No 102 of 2013, s 3 and Sch 2 item 1, by inserting table item 9, effective 30 June 2013.
S 355-65(4) amended by No 57 of 2012, s 3 and Sch 5 item 1, by inserting table item 6A, effective 21 June 2012.
Table 4 - Records or disclosures relating to other taxation matters
355-65(5)
Table 4 is as follows:
|
Table 4: Records or disclosures relating to other taxation matters
|
|
Item
|
The record is made for or the disclosure is to …
|
and the record or disclosure …
|
| 1 |
a State taxation officer, or a Territory taxation officer, within the meaning of subsection 13D(1) of this Act |
is for the purpose of administering a *State law or *Territory law relating to taxation, if a State taxation officer or a Territory taxation officer is authorised by law to communicate information obtained under the State law or Territory law to the Commissioner. |
| 2 |
a State taxation officer, or a Territory taxation officer, within the meaning of subsection 13D(1) of this Act |
(a) |
is of rental information, residential address information or spousal information; and |
| |
(b) |
is for the purpose of administering the First Home Owner Grant (New Homes) Act 2000 (NSW), or a similar *State law or *Territory law. |
| 3 |
(Repealed by No 4 of 2018) |
|
| 4 |
an individual who holds an office of a State or Territory, being an office prescribed for the purpose of this table item |
(a) |
is of information that relates to alcoholic beverages; and |
| |
(b) |
is for the purpose of the individual administering an *arrangement for the rebate, refund or other payment or credit by a State or Territory in respect of alcoholic beverages. |
| 5 |
the Inspector-General of Taxation |
is for the purpose of investigating or reporting under, or otherwise administering: |
| |
|
(a) |
the Inspector-General of Taxation Act 2003; or |
| |
|
(b) |
provisions of the Ombudsman Act 1976, to the extent that they are applied by the Inspector-General of Taxation Act 2003. |
| 6 |
the National Anti-Corruption Commissioner (within the meaning of the National Anti-Corruption Commission Act 2022) |
(a) |
is for the purposes of the National Anti-Corruption Commission Act 2022; and |
| |
(b) |
is in relation to a corruption issue that relates to the Australian Taxation Office or the Inspector-General of Taxation. |
History
S 355-65(5) amended by No 89 of 2022, s 3 and Sch 1 item 201, by inserting table item 6, applicable in relation to records and disclosures of information made on or after 1 July 2023 (whether the information was obtained before, on or after 1 July 2023).
S 355-65(5) amended by No 4 of 2018, s 3 and Sch 6 item 26, by repealing table item 3, effective 21 February 2018. For application provisions, see note under s 8AB. Table item 3 formerly read:
| 3 |
the Development Allowance Authority established by section 94 of the Development Allowance Authority Act 1992 |
is for the purpose of: |
| |
(a) |
administering that Act; or |
| |
(b) |
Part III of this Act (prosecutions and offences), in so far as that Part applies in relation to the Development Allowance Authority Act 1992. |
S 355-65(5) amended by No 70 of 2015, s 3 and Sch 1 item 173, by substituting cell at table item 2, column headed "and the record or disclosure …", effective 1 July 2015. Cell at table item 2, column headed "and the record or disclosure …" formerly read:
is of:
(a)
information obtained under or in relation to the First Home Saver Accounts Act 2008; or
(b)
rental information, residential address information or spousal information;
and is for the purpose of administering the First Home Owner Grant Act 2000 of New South Wales, or a similar *State law or *Territory law.
S 355-65(5) amended by No 21 of 2015, s 3 and Sch 2 item 43, by inserting table item 5, applicable in relation to records and disclosures of information made on or after 1 May 2015 (regardless of when the information was acquired).
S 355-65(5) amended by No 41 of 2011, s 3 and Sch 5 item 23, by substituting ", residential address information or spousal information" for "or residential address information" in para (b) of the cell at table item 2, column headed "and the record or disclosure …", effective 27 June 2011.
Table 5 - Records or disclosures relating to rehabilitation or compensation
355-65(6)
Table 5 is as follows:
|
Table 5: Records or disclosures relating to rehabilitation or compensation
|
|
Item
|
The record is made for or the disclosure is to …
|
and the record or disclosure …
|
| 1 |
an authority of the Commonwealth established under a *Commonwealth law relating to rehabilitation or compensation |
is for the purpose of performing any of its functions or exercising any of its powers under that law. |
| 2 |
the *Defence Secretary |
is for the purpose of administering any *Commonwealth law relating to payments in respect of dependants of members of the Defence Force. |
| 3 |
an authority of a State or Territory that administers a *workers' compensation law |
(a) |
is of information that relates to amounts withheld under Part 2-5 in Schedule 1 to this Act (about PAYG withholding); and |
| |
|
(b) |
is for the purpose of ensuring that employers comply with their obligations relating to insurance or the imposition of a levy under that law. |
Table 6 - Records or disclosures relating to the environment
355-65(7)
Table 6 is as follows:
|
Table 6: Records or disclosures relating to the environment
|
|
Item
|
The record is made for or the disclosure is to …
|
and the record or disclosure …
|
| 1 |
(Repealed by No 81 of 2015) |
|
| 2 |
the *Environment Secretary |
is for the purpose of administering product stewardship (oil) benefits. |
| 3 |
(Repealed by No 83 of 2014) |
|
History
S 355-65(7) amended by No 81 of 2015, s 3 and Sch 1 item 24, by repealing table item 1, effective 1 July 2015. Table item 1 formerly read:
| 1 |
the *Environment Secretary |
is for the purpose of administering cleaner fuel grants. |
S 355-65(7) amended by No 83 of 2014, s 3 and Sch 1 item 319, by repealing table item 3, effective 1 July 2014. No 83 of 2014, s 3 and Sch 1 item 340 contains the following transitional provision:
340 Transitional -
Taxation Administration Act 1953
340
Despite the amendment of the Taxation Administration Act 1953 made by this Schedule, that Act continues to apply, in relation to records or disclosures made for the purpose of:
(a)
the verification from the Regulator of information provided to the Commissioner under or for the purposes of the Fuel Tax Act 2006 so far as that Act applies to taxable fuel acquired, manufactured or imported before 1 July 2014; or
(b)
administering the Clean Energy Act 2011 or the associated provisions (within the meaning of that Act);
as if that amendment had not been made.
Table item 3 formerly read:
| "3 |
the Clean Energy Regulator |
is for the purpose of:
(a) a *taxation officer seeking verification from the Regulator of information provided to the Commissioner under or for the purposes of the Fuel Tax Act 2006; or
(b) administering the Clean Energy Act 2011 or the associated provisions (within the meaning of that Act)." |
S 355-65(7) amended by No 132 of 2011, s 3 and Sch 1 item 212A, by inserting table item 3, effective 2 April 2012.
Table 7 - Records or disclosures relating to miscellaneous matters
355-65(8)
Table 7 is as follows:
|
Table 7: Records or disclosures relating to miscellaneous matters
|
|
Item
|
The record is made for or the disclosure is to …
|
and the record or disclosure …
|
| 1 |
the Australian Statistician |
is for the purpose of administering the Census and Statistics Act 1905. |
| 2 |
the Comptroller-General of Customs (within the meaning of the Customs Act 1901) |
is for the purpose of administering any Act to the extent to which the Comptroller-General of Customs has the general administration of the Act or any instrument under such an Act. |
| 2A |
the Electoral Commissioner (within the meaning of the Commonwealth Electoral Act 1918) |
(a) |
is of information disclosed to, or obtained by, the Commissioner of Taxation on or after the commencement of this table item; and |
| |
|
(b) |
is for the purpose of administering the Commonwealth Electoral Act 1918 or the Referendum (Machinery Provisions) Act 1984. |
| 3 |
the *Immigration Secretary or the Australian Border Force Commissioner (within the meaning of the Australian Border Force Act 2015) |
is for the purpose of performing any functions or exercising any powers under any Act or instrument,or part of any Act or instrument, administered by the Minister administering the *Immigration Department. |
| 4 |
the Regulator (within the meaning of the Payment Times Reporting Act 2020) |
(a) |
is of information relating to whether an entity is a reporting entity (within the meaning of the Payment Times Reporting Act 2020); and |
| |
|
(b) |
is for the purpose of enabling the Regulator to administer that Act. |
| 5 |
the Fair Work Ombudsman (within the meaning of the Fair Work Act 2009) |
(a) |
is of the fact of an entity's actual or reasonably suspected non-compliance with a *taxation law; and |
| |
|
(b) |
is for the purpose of ensuring the entity's compliance with the Fair Work Act 2009. |
| 5AB |
(a) the Fair Work Commission (within the meaning of the Fair Work Act 2009); or |
(a) |
is of information that relates to the jobkeeper scheme (within the meaning of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020); and |
| |
(b) the Fair Work Ombudsman (within the meaning of that Act) |
(b) |
is for the purpose of administering the Fair Work Act 2009. |
| 5A |
the Commissioner of the Australian Charities and Not-for-profits Commission |
is for the purpose of administering the Australian Charities and Not-for-profits Commission Act 2012. |
| 6 |
(a) the Commissioner of the Australian Charities and Not-for-profits Commission; or
(b) the Attorney-General of a State or Territory |
(a) |
is of information that relates to non-compliance of: |
| |
|
(i) |
an *ancillary or community charity trust fund; or |
| |
|
(ii) |
a *community charity corporation; or |
| |
|
(iii) |
a charity (other than a charity already covered by subparagraph (i) or (ii)); |
| |
|
|
with an *Australian law; and |
| |
(b) |
is for the purpose of the administration of an Australian law governing trusts and charities. |
| 6A |
the Secretary of the Department administered by the Minister administering the Petroleum and Other Fuels Reporting Act 2017 |
is for the purpose of administering the Petroleum and Other Fuels Reporting Act 2017 or the Fuel Security Act 2021. |
| 7 |
the Secretary of a Department administered by a Minister responsible for:
(a) agriculture; or
(aa) water; or
(b) industry policy; or
(c) investment promotion; or
(d) taxation policy; or
(e) foreign investment in Australia |
(a) |
is of information contained in the Register of Foreign Ownership of Agricultural Land or Register of Foreign Ownership of Water Entitlements; and |
| |
(b) |
is for the purpose of enabling that Department to assist that Minister to discharge that responsibility. |
| 8 |
a *foreign government agency of a foreign country or part of a foreign country, or an entity acting on behalf of such an agency |
(a) |
is of information relating to the address, contact information or income of a person who has an obligation to repay a student loan issued by or on behalf of: |
| |
|
(i) |
that agency; or |
| |
|
(ii) |
another *foreign government agency of that country, or that part of that country; and |
| |
(b) |
is for the purposes of contacting the person, and recovering from the person outstanding amounts relating to the loan. |
| 9 |
an *Australian government agency that administers an *Australian law referred to in paragraph 980-10(1)(a) of the Income Tax Assessment Act 1997 |
is for the purpose of administering that *Australian law in relation to whether an entity should be, or should continue to be, covered by that Australian law in the way described in that paragraph. |
| 10 |
an *Australian government agency that registers entities as described in paragraph 980-10(1)(b) of the Income Tax Assessment Act 1997 |
is for the purpose of determining whether an entity should be, or should continue to be, registered as described in that paragraph. |
| 10A |
an *Australian government agency |
(a) |
is of information that relates to the jobkeeper scheme (within the meaning of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020); and |
| |
|
(b) |
is for the purpose of administering an *Australian law; and |
| |
|
(c) |
is for a purpose relating to the coronavirus known as COVID-19. |
| 11 |
(Repealed by No 38 of 2020) |
|
| 12 |
an *Australian government agency |
is for the purpose of administering a program declared under subsection (10) to be a relevant COVID-19 business support program. |
| 13 |
an *Australian government agency |
is for the purpose of administering a program declared under section 355-66 to be a major disaster support program. |
| 14 |
the Secretary of the Department |
(a) |
is of information that concerns: |
| |
|
(i) |
a breach of an obligation of confidence by an entity (the
first entity
) against the Commonwealth or a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); or |
| |
|
(ii) |
if the taxation officer reasonably suspects that such a breach has occurred - the suspected breach; |
| |
|
where the obligation arose in connection with the first entity providing advice, or otherwise providing services, to a Commonwealth entity either: |
| |
|
(iii) |
as an entity engaged by the Commonwealth entity for that purpose; or |
| |
|
(iv) |
as an entity representing a taxpayer; and |
| |
|
(b) |
is for the purpose of enabling or assisting in the consideration, development or implementation of any measure, or the taking of any action, directed at dealing with the breach or suspected breach; and |
| |
|
(c) |
does not include: |
| |
|
|
(i) |
the *ABN; or |
| |
|
|
(ii) |
the name; or |
| |
|
|
(iii) |
contact details; or |
| |
|
|
(iv) |
personal information (within the meaning of the Privacy Act 1988); |
| |
|
|
of any entity other than the first entity, unless the Commissioner is satisfied that the inclusion of the information is necessary for the purpose mentioned in paragraph (b); and |
| |
|
(d) |
if the taxation officer is not the Commissioner, a *Second Commissioner or an SES employee or acting SES employee of the Australian Taxation Office - is authorised by: |
| |
|
|
(i) |
the Commissioner; or |
| |
|
|
(ii) |
a Second Commissioner; or |
| |
|
|
(iii) |
an SES employee or acting SES employee of the Australian Taxation Office who is not a direct supervisor of the taxation officer. |
| 15 |
a professional disciplinary body that is prescribed for the purposes of this table item (a
prescribed disciplinary body
) |
(a) |
is of information that concerns an entity (the
first entity
) and an act or omission (or a suspected act or omission) of the first entity that the taxation officer reasonably suspects may constitute a breach by the first entity of the prescribed disciplinary body's code of conduct or professional standards, however described; and |
| |
|
(b) |
is for the purpose of enabling or assisting the prescribed disciplinary body to perform one or more of its functions in respect of the first entity; and |
| |
|
(c) |
does not include: |
| |
|
|
(i) |
the *ABN; or |
| |
|
|
(ii) |
the name; or |
| |
|
|
(iii) |
contact details; or |
| |
|
|
(iv) |
personal information (within the meaning of the Privacy Act 1988); |
| |
|
|
of any entity other than the first entity, unless the Commissioner is satisfied that the inclusion of the information is necessary for the purpose mentioned in paragraph (b); and |
| |
|
(d) |
if the taxation officer is not the Commissioner, a *Second Commissioner or an SES employee or acting SES employee of the Australian Taxation Office - is authorised by: |
| |
|
|
(i) |
the Commissioner; or |
| |
|
|
(ii) |
a Second Commissioner; or |
| |
|
|
(iii) |
an SES employee or acting SES employee of the Australian Taxation Office who is not a direct supervisor of the taxation officer. |
History
S 355-65(8) amended by No 52 of 2024, s 3 and Sch 3 item 7, by substituting the cell at table item 6, column headed "and the record or disclosure …", effective 29 June 2024. The cell at table item 6, column headed "and the record or disclosure …" formerly read:
(a) is of information that relates to non-compliance of a *ancillary fund or charity with an *Australian law; and
(b) is for the purpose of the administration of an Australian law governing trusts and charities.
S 355-65(8) amended by No 37 of 2024, s 3 and Sch 4 item 1, by inserting table items 14 and 15, applicable in relation to records and disclosures of information made on or after 1 June 2024, whether the information was obtained before, on or after 1 June 2024.
S 355-65(8) amended by No 38 of 2020, s 3 and Sch 7 item 3, by repealing table item 11, effective 1 July 2023. Table item 11 formerly read:
| 11 | the Secretary of the Department |
(a) |
is of information that does not include the name, contact details or *ABN of any entity; and |
S 355-65(8) amended by No 75 of 2022, s 3 and Sch 2 item 2, by inserting table item 13, applicable in relation to records and disclosures of information made on or after 6 December 2022, whether the information was obtained before, on or after 6 December 2022.
S 355-65(8) amended by No 79 of 2021, s 3 and Sch 2 item 1, by inserting table item 12, applicable in relation to records and disclosures of information made after 11 August 2021, whether the information was obtained before, on or after 11 August 2021.
S 355-65(8) amended by No 66 of 2021, s 3 and Sch 1 item 18, by inserting "or the Fuel Security Act 2021" in table item 6A, column headed "and the record or disclosure ...", applicable in relation to records and disclosures of information made after 30 June 2021, whether the information was obtained before or after 30 June 2021.
S 355-65(8) amended by No 89 of 2020, s 3 and Sch 1 item 1, by inserting table item 4, applicable in relation to records and disclosures of information made at or after 1 January 2021, whether the information was obtained before, at or after 1 January 2021.
S 355-65(8) amended by No 79 of 2020, s 3 and Sch 6 item 1, by inserting table item 5AB, applicable in relation to records and disclosures of information made at or after 4 September 2020, whether the information was obtained before, at or after 4 September 2020.
S 355-65(8) amended by No 81 of 2020, s 3 and Sch 1 item 4, by inserting table item 10A, applicable in relation to records and disclosures of information made on or after 3 September 2020, whether the information was obtained before, on or after 3 September 2020.
S 355-65(8) amended by No 38 of 2020, s 3 and Sch 7 item 1, by inserting table item 11, applicable in relation to records and disclosures of information made at or after 9 April 2020, whether the information was obtained before, at or after 9 April 2020.
S 355-65(8) amended by No 34 of 2019, s 3 and Sch 5 item 3, by inserting table items 9 and 10, applicable in relation to records and disclosures of information made at or after 1 July 2019, whether the information was obtained before, at or after 1 July 2019.
S 355-65(8) amended by No 125 of 2018, s 3 and Sch 1 item 3, by substituting the cell at table item 5, column headed "and the record or disclosure ...", effective 1 January 2019 and applicable in relation to disclosures of information on or after 2 December 2016 (whether the information was acquired before, on or after that day). Despite subitem (3), a person does not commit an offence against section 355-25 in Schedule 1 to the Taxation Administration Act 1953 in respect of conduct engaged in before the commencement of this Schedule, if the conduct would not have constituted an offence if the amendment made by item 3 of this Schedule did not apply. The cell at table item 5, column headed "and the record or disclosure …" formerly read:
is for the purpose of ensuring an entity's compliance with the Fair Work Act 2009.
S 355-65(8) amended by No 91 of 2017, s 3 and Sch 1 item 2, by inserting table item 6A, applicable in relation to records and disclosures of information made on or after 24 August 2017 (whether the information was obtained before, on or after 24 August 2017).
S 355-65(8) amended by No 96 of 2016, s 3 and Sch 1 items 41 and 42, by inserting para (aa) in table item 7, column headed "The record is made for or the disclosure is to ..." and inserting "or Register of Foreign Ownership of Water Entitlements" in table item 7, applicable in relation to records and disclosures of information made on or after 7 December 2016, whether the information was obtained before, on or after 7 December 2016.
S 355-65(8) amended by No 89 of 2016, s 3 and Sch 4 item 1, by substituting the cell at table item 5, column headed "and the record or disclosure …", applicable in relation to disclosures of information on or after 1 January 2017 (whether the information was acquired before, on or after that day). The cell at table item 5, column headed "and the record or disclosure …" formerly read:
(a)
is of the fact of an entity's actual or reasonably suspected non-compliance with a *taxation law; and
(b)
is for the purpose of ensuring an entity's compliance with the Fair Work Act 2009.
S 355-65(8) amended by No 150 of 2015, s 3 and Sch 4 items 7 and 8, by substituting table item 3, repealing table item 4 and inserting table item 7, applicable in relation to records and disclosures of information made on or after 1 December 2015, whether the information was obtained before, on or after 1 December 2015. Table items 3 and 4 formerly read:
| 3 |
the *Immigration Secretary |
is for the purpose of assisting in locating persons who are unlawfully in Australia. |
| 4 |
the *Immigration Secretary |
(a) |
is of information that relates to a holder or former holder of a visa, or an approved sponsor (within the meaning of the Migration Act 1958) or former approved sponsor of a person for a visa, whose identity is disclosed to a *taxation officer under section 140ZH of that Act; and |
| |
|
(b) |
is for a purpose that is relevant to: |
| |
|
|
(i) |
the exercise of the Minister's powers under Division 3A of Part 2 of that Act or regulations made under that Division; or |
| |
|
|
(ii) |
the exercise of the Minister's powers under Part 8D of that Act, to the extent that it relates to a contravention of a civil penalty provision in Division 3A of Part 2 of that Act; or |
| |
|
|
(iii) |
the administration of Division 3A of Part 2 of that Act or regulations made under that Division. |
S 355-65(8) amended by No 154 of 2015, s 3 and Sch 4 item 1, by inserting table item 8, applicable, on and after 26 November 2015, in relation to protected information whether it became protected information before or after 26 November 2015.
S 355-65(8) amended by No 41 of 2015, s 3 and Sch 6 item 186, by substituting table item 2, effective 1 July 2015. No 41 of 2015, s 3 and Sch 6 item 187 contains the following application and transitional provisions:
187 Application and transitional provisions
(1)
The amendment of subsection 355-65(8) in Schedule 1 to the Taxation Administration Act 1953 made by this Schedule applies in relation to records and disclosures of information made on or after the commencement of this item (whether the information was acquired before, on or after that commencement).
(2)
A record or disclosure made before the commencement of this item that was covered by item 2 of the table in subsection 355-65(8) in Schedule 1 to the Taxation Administration Act 1953 is taken on and after that commencement to have been a record or disclosure covered by that item as repealed and substituted by this Schedule.
Table item 2 formerly read:
| 2 |
the Chief Executive Officer of Customs |
is for the purpose of administering a law of customs (within the meaning of the Customs Administration Act 1985). |
S 355-65(8) amended by No 26 of 2013, s 3 and Sch 1 item 53, by inserting table item 2A, effective 29 March 2013.
S 355-65(8) amended by No 169 of 2012, s 3 and Sch 3 items 15 and 16, by inserting table item 5A and substituting the cell at table item 6, column headed "The record is made for or the disclosure is to …", effective 3 December 2012. The cell at table item 6 formerly read:
the Attorney-General of a State or Territory
S 355-65(8) amended by No 71 of 2012, s 3 and Sch 5 item 19, by substituting "section 140ZH" for "section 140V" in para (a) of table item 4, column headed "and the record or disclosure ...", effective 27 June 2012.
S 355-65(8) amended by No 147 of 2011, s 3 and Sch 8 item 10, by substituting "*ancillary fund" for "private ancillary fund" in table item 6, column headed "and the record or disclosure …", effective 1 January 2012.
355-65(9)
To avoid doubt, the exceptions in table items 7 and 7A in table 2 in subsection (3) have effect even if it is, or has been, in dispute or uncertain whether the individual is an employee or former employee of the employer.
355-65(10)
For the purposes of item 12 of Table 7 in subsection (8), the Minister may, by legislative instrument, declare a program administered by an *Australian government agency to be a relevant COVID-19 business support program if the Minister is satisfied that the program is, in effect:
(a)
responding to economic impacts of the coronavirus known as COVID-19; and
(b)
directed at supporting *businesses the operations of which have been significantly disrupted as a result of a public health directive.
History
S 355-65(10) inserted by No 79 of 2021, s 3 and Sch 2 item 2, applicable in relation to records and disclosures of information made after 11 August 2021, whether the information was obtained before, on or after 11 August 2021.
SECTION 355-66
MAJOR DISASTER SUPPORT PROGRAMS
355-66(1)
For the purposes of item 13 of Table 7 in subsection 355-65(8), the Minister may, by legislative instrument, declare a program administered by an *Australian government agency to be a major disaster support program if the Minister is satisfied that the program is, in effect:
(a)
responding to the impacts of an event to which subsection (2) of this section applies; and
(b)
directed at supporting:
(i)
individuals whom the event has significantly impacted; or
(ii)
*businesses the operations of which the event has significantly disrupted.
355-66(2)
This subsection applies to an event if:
(a)
the event developed rapidly and resulted in:
(i)
the death, serious injury or other physical suffering of a large number of individuals; or
(ii)
widespread damage to property or the natural environment; or
(b)
the event is an emergency to which a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) relates (including a national emergency declaration that is no longer in force).
Period of effect
355-66(3)
A declaration made under subsection (1) must specify the period for which the declaration is in force. The period must end no later than 2 years after the day the declaration is registered on the Federal Register of Legislation.
History
S 355-66 inserted by No 75 of 2022, s 3 and Sch 2 item 3, effective 6 December 2022.
SECTION 355-67
EXCEPTION - DISCLOSURE TO REGISTRARS
355-67(1)
Section 355-25 does not apply if:
(a)
the entity is a *taxation officer; and
(b)
the Commissioner is appointed as a registrar specified in subsection (2); and
(c)
no other person or body is appointed as that registrar; and
(d)
the record or the disclosure is made for the purposes of the performance of that registrar's functions, or the exercise of that registrar's powers.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
355-67(2)
The following registrars are specified:
(a)
the *Registrar;
(b)
the Registrar (within the meaning of the Business Names Registration Act 2011);
(c)
the Registrar (within the meaning of the Corporations Act 2001);
(d)
the Registrar (within the meaning of the Foreign Acquisitions and Takeovers Act 1975);
(e)
the Registrar (within the meaning of the National Consumer Credit Protection Act 2009).
History
S 355-67(2) amended by No 141 of 2020 (as amended by No 127 of 2021), s 3 and Sch 4 item 144, by inserting para (d), effective 4 April 2021.
History
S 355-67 inserted by No 141 of 2020 (as amended by No 127 of 2021), s 3 and Sch 4 item 143, effective 4 April 2021.
SECTION 355-70
EXCEPTION - DISCLOSURE FOR LAW ENFORCEMENT AND RELATED PURPOSES
355-70(1)
Section 355-25 does not apply if:
(a)
the entity is the Commissioner or a *taxation officer authorised by the Commissioner to make the record or disclosure; and
(b)
an item in the table in this subsection covers the making of the record or the disclosure; and
(c)
if the entity is not the Commissioner, a *Second Commissioner or an SES employee or acting SES employee of the Australian Taxation Office - one of the following has agreed that the record or disclosure is covered by the item:
(i)
the Commissioner;
(ii)
a Second Commissioner;
(iii)
an SES employee or acting SES employee of the Australian Taxation Office who is not a direct supervisor of the taxation officer.
Note 1:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
Note 2:
The Commissioner is required to include in an annual report information about disclosures made under this subsection: see section 3B.
|
Records or disclosures for law enforcement and related purposes
|
|
Item
|
The record is made for or the disclosure is to …
|
and the record or disclosure …
|
| 1 |
an *authorised law enforcement agency officer, or a court or tribunal |
is for the purpose of: |
| |
|
(a) |
investigating a *serious offence; or |
| |
|
(b) |
enforcing a law, the contravention of which is a serious offence; or |
| |
|
(c) |
the making, or proposed or possible making, of a *proceeds of crime order; or |
| |
|
(d) |
supporting or enforcing a proceeds of crime order. |
| 2 |
an *authorised ASIO officer |
is for the purpose of performing ASIO's functions under subsection 17(1) of the Australian Security Intelligence Organisation Act 1979. |
| 3 |
a *Project Wickenby officer, or a court or tribunal |
(a) |
is for or in connection with a *purpose of the Project Wickenby taskforce; and |
| |
|
(b) |
is made before 1 July 2015, or a later prescribed day. |
| 4 |
a *taskforce officer of a prescribed taskforce, or a court or tribunal |
(a) |
is for or in connection with a purpose of the prescribed taskforce; and |
| |
|
(b) |
is made within the time limit, if any, prescribed by the regulations. |
| 5 |
a Royal Commission in respect of which Letters Patent issued by the Governor-General declare that the Royal Commission is a Royal Commission to which this table item applies, or a member of such a Royal Commission |
is for the purpose of the Royal Commission conducting its inquiry. |
| 6 |
one or more of the following bodies: |
is for the purpose of: |
| |
(a) |
a Royal Commission of a State or a Territory prescribed by the regulations for the purposes of this table item; |
(a) |
investigating a *serious offence; or |
| |
(b) |
a commission of inquiry of a State or a Territory prescribed by the regulations for the purposes of this table item; |
(b) |
enforcing a law, the contravention of which is a serious offence; or |
| |
(c) |
a board of inquiry of a State or a Territory prescribed by the regulations for the purposes of this table item |
(c) |
the making, or proposed or possible making, of a *proceeds of crime order; or |
| |
|
|
(d) |
supporting or enforcing a proceeds of crime order. |
History
S 355-70(1) amended by No 21 of 2015, s 3 and Sch 5 items 1 and 2, by inserting "; or (d) supporting or enforcing a proceeds of crime order." in table items 1 and 6, column headed "and the record or disclosure …", applicable in relation to records and disclosures of information made on or after 20 March 2015 (regardless of when the information was acquired).
S 355-70(1) amended by No 84 of 2013, s 3 and Sch 8 item 37, by substituting "1 July 2015" for "1 July 2013" in table item 3, effective 28 June 2013.
S 355-70(1) amended by No 39 of 2012, s 3 and Sch 4 item 23, by substituting "*Second Commissioner" for "Second Commissioner" (first occurring) in para (c), effective 15 April 2012.
355-70(2A)
The *taxation officer is entitled to rely on the exception in subsection (1) even if the agreement referred to in paragraph (1)(c) has not been obtained in relation to the record or disclosure.
Meaning of various terms
355-70(2)
Authorised ASIO officer
means:
(a)
the Director-General of Security holding office under the Australian Security Intelligence Organisation Act 1979; or
(b)
an ASIO employee (within the meaning of that Act) or an ASIO affiliate (within the meaning of that Act) who has been authorised in writing by the Director-General of Security to perform the functions of an authorised ASIO officer under this Act.
History
S 355-70(2) amended by No 108 of 2014, s 3 and Sch 1 item 55, by substituting "an ASIO employee (within the meaning of that Act) or an ASIO affiliate (within the meaning of that Act)" for "any other individual employed under paragraph 84(1)(a) or (b) of that Act" in para (b), effective 30 October 2014. No 108 of 2014, s 3 and Sch 1 item 86 contains the following transitional provision:
86 Transitional - authorisations under the
Taxation Administration Act 1953
86
If, immediately before the commencement of this Schedule, a person was an authorised ASIO officer within the meaning of paragraph 355-70(2)(b) of the Taxation Administration Act 1953, the person is taken, after that commencement, to be an authorised ASIO officer within the meaning of that paragraph as amended by this Schedule.
355-70(3)
Authorised law enforcement agency officer
means:
(a)
the head of a *law enforcement agency; or
(b)
an officer of a law enforcement agency, or a person engaged by, or otherwise performing services for, a law enforcement agency, authorised in writing by the head of the agency to perform the functions of an authorised law enforcement agency officer under this Act.
355-70(4)
Law enforcement agency
means:
(a)
the Australian Federal Police; or
(b)
the police force of a State or Territory; or
(c)
the Office of the Director of Public Prosecutions established by section 5 of the Director of Public Prosecutions Act 1983; or
(d)
the National Anti-Corruption Commission; or
(e)
the Australian Crime Commission; or
(f)
the Independent Commission Against Corruption established by the Independent Commission Against Corruption Act 1988 of New South Wales; or
(g)
the New South Wales Crime Commission; or
(h)
the Law Enforcement Conduct Commission of New South Wales; or
(i)
the Independent Broad-based Anti-corruption Commission of Victoria; or
(j)
the Crime and Corruption Commission of Queensland; or
(k)
the Corruption and Crime Commission of Western Australia; or
(ka)
the Independent Commissioner Against Corruption of South Australia; or
(l)
*ASIC.
History
S 355-70(4) amended by No 89 of 2022, s 3 and Sch 1 item 202, by substituting para (d), applicable in relation to records and disclosures of information made on or after 1 July 2023 (whether the information was obtained before, on or after 1 July 2023). Para (d) formerly read:
(d)
the Australian Commission for Law Enforcement Integrity; or
S 355-70(4) amended by No 86 of 2016, s 3 and Sch 1 item 52, by substituting "Law Enforcement Conduct Commission" for "Police Integrity Commission" in para (h), applicable in relation to making a record of, or disclosing, information on or after 1 July 2017, whether the information was acquired before, on or after 1 July 2017.
S 355-70(4) amended by No 162 of 2015, s 3 and Sch 4 item 14, by substituting para (l), effective 30 November 2015. Para (l) formerly read:
(l)
the Australian Securities and Investments Commission.
S 355-70(4) amended by No 153 of 2015, s 3 and Sch 15 item 32, by inserting para (ka), applicable in relation to records and disclosures of information made on or after 27 November 2015 (regardless of when the information was acquired).
S 355-70(4) amended by No 21 of 2015, s 3 and Sch 7 item 42, by substituting para (j), applicable in relation to records and disclosures of information made on or after 1 July 2014 (regardless of when the information was acquired). Para (j) formerly read:
(j)
the Crime and Misconduct Commission of Queensland; or
S 355-70(4) amended by No 74 of 2012, s 3 and Sch 1 item 3, by substituting "Independent Broad-based Anti-corruption Commission" for "Office of Police Integrity" in para (i), applicable in relation to disclosures, made on or after 10 February 2013, of information acquired before, on or after 10 February 2013.
355-70(5)
Proceeds of crime order
means:
(a)
an order, relating to an entity's commission of a *serious offence, under:
(i)
Chapter 2 (about confiscation of property in relation to certain offences) or Division 1 of Part 3-1 (about examination orders) of the Proceeds of Crime Act 2002; or
(ii)
Part II (about confiscation) or III (about control of property liable to confiscation) of the Proceeds of Crime Act 1987; or
(iii)
a *State law or *Territory law corresponding to a law referred to in subparagraph (i) or (ii); or
(iv)
Division 3 of Part XIII (about recovery of pecuniary penalties for dealings in narcotic goods) of the Customs Act 1901; or
(b)
an unexplained wealth order (within the meaning of the Proceeds of Crime Act 2002); or
(c)
a court order (including a declaration or direction):
(i)
under a State law or Territory law; and
(ii)
relating to unexplained wealth.
History
S 355-70(5) amended by No 21 of 2015, s 3 and Sch 5 item 3, by substituting para (c), applicable in relation to records and disclosures of information made on or after 20 March 2015 (regardless of when the information was acquired). Para (c) formerly read:
(c)
an order under a State law or Territory law corresponding to an order referred to in paragraph (b).
S 355-70(5) substituted by No 145 of 2010, s 3 Sch 3 item 19, effective 17 December 2010. S 355-70(5) formerly read:
355-70(5)
Proceeds of crime order
means an order, relating to an entity's commission of a *serious offence, under:
(a)
Chapter 2 (about confiscation of property in relation to certain offences) or Division 1 of Part 3-1 (about examination orders) of the Proceeds of Crime Act 2002; or
(b)
Part II (about confiscation) or III (about control of property liable to confiscation) of the Proceeds of Crime Act 1987; or
(c)
a *State law or *Territory law corresponding to a law referred to in paragraph (a) or (b); or
(d)
Division 3 of Part XIII (about recovery of pecuniary penalties for dealings in narcotic goods) of the Customs Act 1901.
355-70(6)
An entity is a
Project Wickenby officer
if the entity:
(a)
holds an office in, is employed in, or is performing services for:
(i)
a *Project Wickenby taskforce agency; or
(ii)
a *Project Wickenby taskforce supporting agency; and
(b)
performs duties that relate to a *purpose of the Project Wickenby taskforce.
355-70(7)
The following agencies are
Project Wickenby taskforce agencies
:
(a)
the Australian Taxation Office;
(b)
the Australian Crime Commission;
(c)
the Australian Federal Police;
(d)
*ASIC;
(e)
the Office of the Director of Public Prosecutions;
(f)
a prescribed agency.
History
S 355-70(7) amended by No 162 of 2015, s 3 and Sch 4 item 15, by substituting para (d), effective 30 November 2015. Para (d) formerly read:
(d)
the Australian Securities and Investments Commission;
355-70(8)
The following agencies are
Project Wickenby taskforce supporting agencies
:
(a)
the Department administered by the Minister administering the Crimes Act 1914;
(b)
the Australian Transaction Reports and Analysis Centre;
(c)
the Australian Government Solicitor;
(d)
a prescribed agency.
History
S 355-70(8) amended by No 110 of 2014, s 3 and Sch 5 item 73, by substituting "Department administered by the Minister administering the Crimes Act 1914" for "Attorney-General's Department" in para (a), effective 16 October 2014. For transitional provisions see note under s 355-65(4).
355-70(9)
The
purposes of the Project Wickenby taskforce
are to:
(a)
detect; and
(b)
deter; and
(c)
investigate; and
(d)
enforce the law relating to;
the promotion of or participation in *arrangements of an international character, or purported international character, that relate to one or more of the following:
(e)
tax avoidance or evasion;
(f)
breaches of laws regulating financial markets and corporations;
(g)
criminal activity in the nature of fraud or obtaining benefits by deception (including deceiving investors or creditors);
(h)
money laundering;
(i)
concealing income or assets.
355-70(10)
Serious offence
means an offence against an *Australian law that is punishable by imprisonment for a period exceeding 12 months.
355-70(11)
An entity is a
taskforce officer
of a prescribed taskforce if:
(a)
the entity holds an office in, is employed in, or is performing services for, an agency in the prescribed taskforce; and
(b)
the entity's duties relate to a purpose of the prescribed taskforce.
355-70(12)
The regulations may prescribe a taskforce for the purposes of item 4 of the table in subsection (1). A major purpose of the taskforce must be protecting the public finances of Australia.
355-70(13)
Without limiting subsection (12), regulations made for the purposes of item 4 of the table in subsection (1) may deal with the following matters:
(a)
the purposes of the taskforce;
(b)
the agencies in the taskforce.
History
S 355-70 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-72
EXCEPTION - DISCLOSURE TO CREDIT REPORTING BUREAUS
Exception - entities in declared class of entities
355-72(1)
Section 355-25 does not apply if:
(a)
the entity is a *taxation officer; and
(b)
the record is made for, or the disclosure is to, a *credit reporting bureau; and
(c)
the record or disclosure is of information that relates to the *tax debts of an entity (the
primary entity
) that is included in a class of entities declared under subsection (5) of this section; and
(d)
the record or disclosure is for the purpose of enabling the credit reporting bureau to prepare, issue, update, correct or confirm credit worthiness reports in relation to the primary entity; and
(e)
in the case of a disclosure of information other than for the purposes of updating, correcting or confirming information previously disclosed under this exception - both:
(i)
the Inspector-General of Taxation has been consulted on the disclosure; and
(ii)
28 days have passed after a notice under subsection (2) of this section was given to the primary entity for the disclosure.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
Notice of disclosure
355-72(2)
The Commissioner must notify a primary entity if:
(a)
information that relates to the primary entity is to be disclosed to a *credit reporting bureau under this section; and
(b)
the information is not information that updates, corrects or confirms the information previously disclosed under the exception in subsection (1).
355-72(3)
The notice must:
(a)
be in writing; and
(b)
explain the type of information that is to be disclosed to the *credit reporting bureau; and
(ba)
explain:
(i)
why the primary entity is included in a class of entities declared under subsection (5); and
(ii)
the steps (if any) the primary entity may take to no longer be included in that class before the disclosure occurs; and
(c)
set out the amount of any *tax debts payable by the primary entity at the time the notice is given by the Commissioner; and
(d)
explain how the primary entity may make a complaint in relation to the proposed disclosure of the entity's information; and
(e)
be served on the primary entity.
Exception - entities no longer in declared class of entities
355-72(4)
Section 355-25 does not apply if:
(a)
the entity is a *taxation officer; and
(b)
the record is made for, or the disclosure is to, a *credit reporting bureau; and
(c)
the record or disclosure is of information that relates to the *tax debts of an entity that:
(i)
has had information previously disclosed under the exception in subsection (1) of this section; and
(ii)
is no longer an entity that is included in a class of entities declared under subsection (5) of this section; and
(d)
the record or disclosure is of information that relates to why the entity to which the information relates is no longer included in a class of entities declared under subsection (5) of this section; and
(e)
the record or disclosure is for the purpose of enabling the credit reporting bureau to update or correct credit worthiness reports in relation to the entity to which the information relates.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
Class of entities
355-72(5)
The Minister may, by legislative instrument, declare one or more classes of entities for the purposes of this section.
355-72(5A)
Before making an instrument under subsection (5), the Minister must:
(a)
consult the Inspector-General of Taxation; and
(b)
consider any submissions made by the Inspector-General of Taxation because of that consultation.
355-72(6)
Before making an instrument under subsection (5), the Minister must:
(a)
consult the Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010) and would be affected by the proposed instrument; and
(b)
consider any submissions made by the Information Commissioner because of that consultation.
Credit reporting bureau
355-72(7)
An entity is a
credit reporting bureau
if the entity is recognised by the Commissioner as an entity that prepares and issues credit worthiness reports in relation to other entities.
355-72(8)
The Commissioner must keep and publish a list of credit reporting bureaus on the Australian Taxation Office website.
355-72(9)
The list of credit reporting bureaus is not a legislative instrument.
History
S 355-72 inserted by No 95 of 2019, s 3 and Sch 5 item 2, applicable in relation to records and disclosures of information made on or after 29 October 2019, regardless of when the information was acquired.
SECTION 355-75
355-75
LIMITS ON DISCLOSURE TO COURTS AND TRIBUNALS
An entity who is or was a *taxation officer is not to be required to disclose to a court or tribunal *protected information that was acquired by the entity as a taxation officer except where it is necessary to do so for the purpose of carrying into effect the provisions of:
(a)
a *taxation law; or
(b)
the Foreign Acquisitions and Takeovers Act 1975, if the entity acquired the information because of a request under subsection 138(4) of that Act.
Note:
See also section 8ZK of this Act (about protection of witnesses).
History
S 355-75 substituted by No 150 of 2015, s 3 and Sch 4 item 9, applicable in relation to records and disclosures of information made on or after 1 December 2015, whether the information was obtained before, on or after 1 December 2015. S 355-75 formerly read:
SECTION 355-75 LIMITS ON DISCLOSURE TO COURTS AND TRIBUNALS
355-75
An entity who is or was a *taxation officer is not to be required to disclose to a court or tribunal *protected information that was acquired by the entity as a taxation officer except where it is necessary to do so for the purpose of carrying into effect the provisions of a *taxation law.
Note:
See also section 8ZK of this Act (about protection of witnesses).
S 355-75 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
Subdivision 355-C - On-disclosure of protected information by other people
Guide to Subdivision 355-C
SECTION 355-150
WHAT THIS SUBDIVISION IS ABOUT
Someone who is not a taxation officer is prohibited from disclosing protected information, except in certain specified circumstances.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 355-155 |
Offence - on-disclosure of protected information by other people |
| 355-160 |
Consent is not a defence |
| 355-165 |
Generality of Subdivision not limited |
| 355-170 |
Exception - on-disclosure of publicly available information |
| 355-172 |
Exception - disclosure of periodic aggregate tax information |
| 355-175 |
Exception - on-disclosure for original purpose |
| 355-180 |
Exception - on-disclosure to Ministers in relation to statutory powers or functions |
| 355-181 |
Exception - on-disclosure to Ministers in relation to breach of confidence and related matters |
| 355-182 |
Exception - on-disclosure of certain information to Commonwealth Ombudsman |
| 355-185 |
Exception - on-disclosure to IGIS officials |
| 355-190 |
Exception - on-disclosure in relation to ASIO |
| 355-192 |
Exception - on-disclosure in relation to National Anti-Corruption Commission Act 2022 |
| 355-195 |
Exception - on-disclosure by Royal Commissions |
| 355-200 |
Exception - records made in compliance with Australian laws |
| 355-205 |
Limits on on-disclosure to courts or tribunals |
| 355-210 |
Limits on on-disclosure to Ministers |
| 355-215 |
Exception - on-disclosure of information disclosed to credit reporting bureaus |
Operative provisions
SECTION 355-155
355-155
OFFENCE - ON-DISCLOSURE OF PROTECTED INFORMATION BY OTHER PEOPLE
An entity commits an offence if:
(a)
the entity:
(i)
makes a record of information; or
(ii)
discloses information to another entity (other than the entity to whom the information relates or that entity's agent in relation to the information) or to a court or tribunal; and
(b)
the information was acquired by the first-mentioned entity under an exception in this Subdivision or in Subdivision 355-B (except subsection 355-65(1) operating in relation to item 7 in the table in subsection 355-65(4)); and
(c)
the first-mentioned entity did not acquire the information as a *taxation officer.
Penalty: Imprisonment for 2 years.
Note:
This section also covers information acquired by an entity (other than as a taxation officer) before the commencement of this section under certain repealed or amended provisions: see item 124 of Schedule 2 to the Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010.
History
S 355-155 amended by No 150 of 2015, s 3 and Sch 4 item 10, by inserting "(except subsection 355-65(1) operating in relation to item 7 in the table in subsection 355-65(4))" in para (b), applicable in relation to records and disclosures of information made on or after 1 December 2015, whether the information was obtained before, on or after 1 December 2015.
S 355-155 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-160
355-160
CONSENT IS NOT A DEFENCE
It is not a defence to a prosecution for an offence against section 355-155 that the entity to whom the information relates has consented to:
(a)
the making of the record; or
(b)
the disclosure of the information.
History
S 355-160 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-165
355-165
GENERALITY OF SUBDIVISION NOT LIMITED
Except as provided in section 355-210 (about limits on disclosure to Ministers), nothing in this Subdivision limits the generality of anything else in it.
Note:
This means that each provision in this Subdivision (other than section 355-210) has an independent operation and is not to be interpreted by reference to any other provision within the Subdivision.
History
S 355-165 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-170
355-170
EXCEPTION - ON-DISCLOSURE OF PUBLICLY AVAILABLE INFORMATION
Section 355-155 does not apply if the information was already available to the public (otherwise than as a result of a contravention of section 355-25, 355-155 or 355-265).
Note:
A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.
History
S 355-170 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-172
355-172
EXCEPTION - DISCLOSURE OF PERIODIC AGGREGATE TAX INFORMATION
Section 355-155 does not apply if the information is *periodic aggregate tax information.
Note:
A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.
History
S 355-172 inserted by No 124 of 2013, s 3 and Sch 5 item 6, applicable to: (a) the 2013-14 income year and later income years; and (b) the 2013-2014 MRRT year and later MRRT years; and (c) the year of tax (within the meaning of the Petroleum Resource Rent Tax Assessment Act 1987) starting on 1 July 2013 and later years of tax.
SECTION 355-175
EXCEPTION - ON-DISCLOSURE FOR ORIGINAL PURPOSE
355-175(1)
Section 355-155 does not apply if:
(a)
the information was originally disclosed under an exception in Subdivision 355-B for a purpose specified in that exception (the
original purpose
); and
(b)
the information was acquired by the entity under this section or an exception in Subdivision 355-B; and
(c)
the record or disclosure is made by the entity for the original purpose, or in connection with the original purpose.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
Instances of disclosures in connection with the original purpose
355-175(2)
Without limiting subsection (1), a record or disclosure is made by the entity in connection with the original purpose if:
(a)
the record is made for, or the disclosure is to, any entity, court or tribunal; and
(b)
the record or disclosure is for the purpose of criminal, civil or administrative proceedings (including merits review or judicial review) that are related to the original purpose.
Multiple purposes
355-175(3)
Subsection (1) has effect as if a record or disclosure made by the entity for a purpose specified in column 3 of the following table were made in connection with the original purpose:
|
Records or disclosures for purpose connected with the original purpose
|
|
Item
|
Original purpose
|
Purpose connected with the original purpose
|
| 1 |
a *purpose of the Project Wickenby taskforce |
another purpose of that taskforce. |
| 2 |
a purpose of a prescribed taskforce |
another purpose of that taskforce. |
| 3 |
one of the purposes specified in column 3 of item 1 of the table in subsection 355-70(1) |
the other of those purposes. |
| 4 |
one of the purposes specified in column 3 of item 6 of the table in subsection 355-70(1) |
one of the other purposes specified in column 3 of item 6 of that table. |
History
S 355-175 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-180
355-180
EXCEPTION - ON-DISCLOSURE TO MINISTERS IN RELATION TO STATUTORY POWERS OR FUNCTIONS
Section 355-155 does not apply if:
(a)
the information was originally disclosed under an exception in Subdivision 355-B for a purpose specified in that exception (the
original purpose
); and
(b)
the record is made for, or the disclosure is to, a Minister who has a statutory power or function in relation to the original purpose; and
(c)
the record or disclosure is for the purpose of enabling the Minister to:
(i)
decide whether to exercise the power or perform the function; or
(ii)
exercise the power or perform the function.
Note:
A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.
History
S 355-180 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-181
355-181
EXCEPTION - ON-DISCLOSURE TO MINISTERS IN RELATION TO BREACH OF CONFIDENCE AND RELATED MATTERS
Section 355-155 does not apply if:
(a)
the entity is the Secretary of the Department or an SES employee of the Department authorised by the Secretary for the purposes of this section (the
first entity
); and
(b)
the information was obtained by the first entity under the exception in subsection 355-65(1) operating in relation to item 14 in the table in subsection 355-65(8); and
(c)
the record is made for, or the disclosure is to, the Minister or the *Finance Minister; and
(d)
the record or disclosure is for the purpose of providing advice to the Minister or the Finance Minister in relation to:
(i)
a breach, or a suspected breach, of an obligation of confidence by another entity (the
second entity
) against the Commonwealth or a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); or
(ii)
any proposed measure or action directed at dealing with such a breach or suspected breach.
Note:
A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.
History
S 355-181 inserted by No 37 of 2024, s 3 and Sch 4 item 2, applicable in relation to records and disclosures of information made on or after 1 June 2024, whether the information was obtained before, on or after 1 June 2024.
SECTION 355-182
EXCEPTION - ON-DISCLOSURE OF CERTAIN INFORMATION TO COMMONWEALTH OMBUDSMAN
355-182(1)
Section 355-155 does not apply if:
(a)
the entity is an officer of an *Australian government agency; and
(b)
the information was acquired by the entity under the exception in subsection 355-65(1) operating in relation to item 10 in the table in subsection 355-65(2); and
(c)
the record is made for, or the disclosure is to:
(i)
the Commonwealth Ombudsman or a Deputy Commonwealth Ombudsman; or
(ii)
a member of staff referred to in subsection 31(1) of the Ombudsman Act 1976; and
(d)
the record or disclosure is for the purpose of the performance of a function or duty of the Commonwealth Ombudsman, the Deputy Commonwealth Ombudsman or the member of staff, under the Ombudsman Act 1976.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
355-182(2)
Section 355-155 does not apply if:
(a)
the entity is:
(i)
the Commonwealth Ombudsman or a Deputy Commonwealth Ombudsman; or
(ii)
a member of staff referred to in subsection 31(1) of the Ombudsman Act 1976; and
(b)
the information was acquired by the entity under subsection (1) or this subsection; and
(c)
the record or disclosure is for the purpose of the performance of a function or duty of the Commonwealth Ombudsman, the Deputy Commonwealth Ombudsman or the member of staff, under the Ombudsman Act 1976.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
History
S 355-182 inserted by No 82 of 2016, s 3 and Sch 17 item 2, applicable in relation to records and disclosures of information made on or after 30 November 2016, whether the information was obtained before, on or after 30 November 2016.
SECTION 355-185
EXCEPTION - ON-DISCLOSURE TO IGIS OFFICIALS
355-185(1)
Section 355-155 does not apply if:
(a)
the entity is an officer of an *Australian government agency; and
(b)
the record is made for, or the disclosure is to, an *IGIS official; and
(c)
the record or disclosure is for the purposes of the IGIS official performing functions or duties, or exercising powers, as an IGIS official.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
355-185(2)
Section 355-155 does not apply if:
(a)
the entity is an *IGIS official; and
(b)
the information was acquired by the entity under subsection (1) or this subsection; and
(c)
the record or disclosure is for the purposes of the IGIS official performing functions or duties, or exercising powers, as an IGIS official.
History
S 355-185 substituted by No 73 of 2023, s 3 and Sch 1 item 200, applicable (subject to this item) in relation to the making, disclosing or using (however described) of information, documents or records (however described) after 21 September 2023 (whether the information, documents or records were obtained before or after 21 September 2023). S 355-185 formerly read:
SECTION 355-185 EXCEPTION - ON-DISCLOSURE IN RELATION TO IGIS
355-185(1)
Section 355-155 does not apply if:
(a)
the entity is an *authorised ASIO officer; and
(b)
the record is made for, or the disclosure is to, the Inspector-General of Intelligence and Security holding office under the Inspector-General of Intelligence and Security Act 1986 or a member of staff appointed to assist the Inspector-General under that Act; and
(c)
the record or disclosure is for the purpose of performing the Inspector-General's, or the member of staff's, duties in relation to ASIO or ASIO employees (within the meaning of the Australian Security Intelligence Organisation Act 1979) or ASIO affiliates (within the meaning of that Act).
Note:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
History
S 355-185(1) amended by No 108 of 2014, s 3 and Sch 1 item 56, by substituting "ASIO employees (within the meaning of the Australian Security Intelligence Organisation Act 1979) or ASIO affiliates (within the meaning of that Act)" for "officers or employees of ASIO" in para (c), effective 30 October 2014. For transitional provision see note under s 355-70(2).
355-185(2)
Section 355-155 does not apply if:
(a)
the entity is the Inspector-General of Intelligence and Security holding office under the
Inspector-General of Intelligence and Security Act 1986 or a member of staff appointed to assist the Inspector-General under that Act; and
(b)
the information was acquired by the entity under subsection (1) or this paragraph; and
(c)
the record or disclosure is for the purpose of performing the Inspector-General's, or the officer's, duties in relation to ASIO or ASIO employees (within the meaning of the
Australian Security Intelligence Organisation Act 1979) or ASIO affiliates (within the meaning of that Act).
Note:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
History
S 355-185(2) amended by No 108 of 2014, s 3 and Sch 1 item 56, by substituting "ASIO employees (within the meaning of the Australian Security Intelligence Organisation Act 1979) or ASIO affiliates (within the meaning of that Act)" for "officers or employees of ASIO" in para (c), effective 30 October 2014. For transitional provision see note under s 355-70(2).
S 355-185 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-190
EXCEPTION - ON-DISCLOSURE IN RELATION TO ASIO
355-190(1)
Section 355-155 does not apply if:
(a)
the entity is an *authorised ASIO officer; and
(b)
the record is made for, or the disclosure is to, an officer of a *law enforcement agency; and
(c)
the record or disclosure is for the purpose of, or in connection with:
(i)
investigating a *serious offence; or
(ii)
enforcing a law, the contravention of which is a serious offence; or
(iii)
the making, or proposed or possible making, of a *proceeds of crime order.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
355-190(2)
Section 355-155 does not apply if:
(a)
the entity is an officer of a *law enforcement agency; and
(b)
the information was acquired by the entity under subsection (1) or this paragraph; and
(c)
the record or disclosure is for the purpose of, or in connection with:
(i)
investigating a *serious offence; or
(ii)
enforcing a law, the contravention of which is a serious offence; or
(iii)
the making, or proposed or possible making, of a *proceeds of crime order.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
History
S 355-190 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-192
EXCEPTION - ON-DISCLOSURE IN RELATION TO NATIONAL ANTI-CORRUPTION COMMISSION ACT 2022
355-192(1)
Section 355-155 does not apply if:
(a)
the entity is the Inspector-General of Taxation; and
(b)
the information was acquired by the Inspector-General of Taxation under the exception in subsection 355-65(1) operating in relation to item 5 in the table in subsection 355-65(5); and
(c)
the record is made for, or the disclosure is to:
(i)
the National Anti-Corruption Commissioner (within the meaning of the National Anti-Corruption Commission Act 2022); or
(ii)
another staff member of the NACC (within the meaning of that Act); and
(d)
the record or disclosure is:
(i)
for the purposes of the National Anti-Corruption Commission Act 2022; and
(ii)
in relation to a corruption issue (within the meaning of that Act) that relates to the Australian Taxation Office or the Inspector-General of Taxation.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
355-192(2)
Section 355-155 does not apply if:
(a)
the entity is:
(i)
the National Anti-Corruption Commissioner (within the meaning of the National Anti-Corruption Commission Act 2022); or
(ii)
another staff member of the NACC (within the meaning of that Act); and
(b)
the information was acquired by the entity under subsection (1) or this subsection;and
(c)
the record or disclosure is for the purpose of performing a function or duty of the National Anti-Corruption Commissioner or another staff member of the NACC under the National Anti-Corruption Commission Act 2022.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
History
S 355-192 inserted by No 89 of 2022, s 3 and Sch 1 item 203, applicable in relation to records and disclosures of information made on or after 1 July 2023 (whether the information was obtained before, on or after 1 July 2023).
SECTION 355-195
EXCEPTION - ON-DISCLOSURE BY ROYAL COMMISSIONS
355-195(1)
Section 355-155 does not apply if:
(a)
the entity is a member of a Royal Commission to which column 2 of item 5 of the table in subsection 355-70(1) relates; and
(b)
the information was acquired by the entity under item 5 of the table in subsection 355-70(1); and
(c)
the record or disclosure is in accordance with section 6P of the Royal Commissions Act 1902.
Note 1:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
Note 2:
Section 6P of the Royal Commissions Act 1902 sets out the circumstances in which a Royal Commission covered by that Act may disclose information it acquires in the course of its inquiry.
355-195(2)
Section 355-155 does not apply to particular information if the information was disclosed under subsection (1).
Note:
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.
History
S 355-195 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-200
355-200
EXCEPTION - RECORDS MADE IN COMPLIANCE WITH AUSTRALIAN LAWS
Section 355-155 does not apply if the record is made in compliance with a requirement of an *Australian law.
Example:
The Australian Taxation Office obtains information about an entity from a credit reporting body by giving a notice under paragraph 353-10(1)(c). The body is not committing an offence under section 355-155 by making a written note of the disclosure as required by subsection 20E(5) of the Privacy Act 1988.
Note:
A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.
History
S 355-200 amended by No 2 of 2015, s 3 and Sch 2 item 20, by substituting "paragraph 353-10(1)(c)" for "section 264 of the Income Tax Assessment Act 1936" in the example, effective 25 February 2015.
S 355-200 amended by No 197 of 2012, s 3 and Sch 5 items 133 and 134, by substituting "body" for "agency" wherever occurring and "written note of the disclosure as required by subsection 20E(5)" for "record of the disclosure in the entity's credit information file, as required by subsection 18K(5)" in the example, effective 12 March 2014.
S 355-200 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-205
355-205
LIMITS ON ON-DISCLOSURE TO COURTS OR TRIBUNALS
An entity is not to be required to disclose to a court or tribunal *protected information that was acquired by the entity under Subdivision 355-B or this Subdivision, except where it is necessary to do so for the purpose of carrying into effect the provisions of:
(a)
a *taxation law; or
(b)
if the entity has or had duties, functions or powers under the Foreign Acquisitions and Takeovers Act 1975 - that Act.
Note:
See also section 8ZK of this Act (about protection of witnesses).
History
S 355-205 substituted by No 150 of 2015, s 3 and Sch 4 item 11, applicable in relation to records and disclosures of information made on or after 1 December 2015, whether the information was obtained before, on or after 1 December 2015. S 355-205 formerly read:
SECTION 355-205 LIMITS ON ON-DISCLOSURE TO COURTS OR TRIBUNALS
355-205
An entity is not to be required to disclose to a court or tribunal *protected information that was acquired by the entity under Subdivision 355-B or this Subdivision, except where it is necessary to do so for the purpose of carrying into effect the provisions of a *taxation law.
Note:
See also section 8ZK of this Act (about protection of witnesses).
S 355-205 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-210
LIMITS ON ON-DISCLOSURE TO MINISTERS
355-210(1)
Sections 355-170, 355-180, 355-181 and 355-195 are the only exceptions to the prohibition in section 355-155 on which an entity who has acquired *protected information (otherwise than as a *taxation officer) can rely in making a record of the information for, or disclosing the information to, a Minister, whether or not provided to a Minister in the course of, or for the purposes of or incidental to, the transacting of the business of a House of the Parliament or of a committee of one or both Houses of the Parliament.
Note:
Disclosures that are not prohibited by section 355-155 are not affected by this subsection. For example, an entity may disclose information to a Minister if the Minister is the entity to whom the information relates, or is another entity's agent in relation to the information.
History
S 355-210(1) amended by No 37 of 2024, s 3 and Sch 4 item 3, by inserting ", 355-181", applicable in relation to records and disclosures of information made on or after 1 June 2024, whether the information was obtained before, on or after 1 June 2024.
355-210(2)
Subsection (1) has effect despite section 16 of the Parliamentary Privileges Act 1987, and that section does not operate to the extent that it would otherwise apply to a disclosure of *protected information by the entity to a Minister.
Note:
This subsection does not limit the operation of section 16 of the Parliamentary Privileges Act 1987 in any other respect. That section continues to operate, for example, to enable an entity to disclose protected information to a committee of one or both Houses of the Parliament.
History
S 355-210 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-215
355-215
EXCEPTION - ON-DISCLOSURE OF INFORMATION DISCLOSED TO CREDIT REPORTING BUREAUS
Section 355-155 does not apply if:
(a)
the information was originally disclosed under the exception in subsection 355-72(1) or (4); and
(b)
the information was acquired by the entity under that exception or the exception in section 355-175; and
(c)
when making the record, or disclosing the information, the entity is not:
(i)
a *credit reporting bureau; or
(ii)
an entity appointed or employed by, or otherwise performing services for, a credit reporting bureau.
Note:
A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.
History
S 355-215 inserted by No 95 of 2019, s 3 and Sch 5 item 3, applicable in relation to records and disclosures of information made on or after 29 October 2019, regardless of when the information was acquired.
Subdivision 355-D - Disclosure of protected information that has been unlawfully acquired
Guide to Subdivision 355-D
SECTION 355-260
WHAT THIS SUBDIVISION IS ABOUT
The disclosure of protected tax information that has been unlawfully acquired is prohibited.
History
S 355-260 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 355-265 |
Offence - disclosure of protected information acquired in breach of a taxation law |
| 355-270 |
Exception - disclosure of publicly available information |
| 355-275 |
Exception - disclosure in relation to a taxation law |
| 355-280 |
Limits on disclosure to courts and tribunals |
Operative provisions
SECTION 355-265
355-265
OFFENCE - DISCLOSURE OF PROTECTED INFORMATION ACQUIRED IN BREACH OF A TAXATION LAW
An entity commits an offence if:
(a)
the entity:
(i)
makes a record of information; or
(ii)
discloses information to another entity (other than the entity to whom the information relates or that entity's agent in relation to the information) or to a court or tribunal; and
(b)
the information is *protected information; and
(c)
the information was acquired by the entity in breach of a provision of a *taxation law (including this provision); and
(d)
the information was not acquired by the entity as a *taxation officer.
Penalty: Imprisonment for 2 years.
History
S 355-265 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-270
355-270
EXCEPTION - DISCLOSURE OF PUBLICLY AVAILABLE INFORMATION
Section 355-265 does not apply if the information was already available to the public (otherwise than as a result of a contravention of that section, or section 355-25 or 355-155).
Note:
A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.
History
S 355-270 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-275
355-275
EXCEPTION - DISCLOSURE IN RELATION TO A TAXATION LAW
Section 355-265 does not apply:
(a)
to the extent that the entity's actions are required or permitted by a *taxation law or reasonably necessary in order to comply with an obligation imposed by a taxation law; or
(b)
if the record was made for or the information was disclosed:
(i)
to a *taxation officer; and
(ii)
for a purpose connected with administering a *taxation law.
Note:
A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.
History
S 355-275 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-280
355-280
LIMITS ON DISCLOSURE TO COURTS AND TRIBUNALS
An entity is not to be required to disclose to a court or tribunal *protected information that was acquired by the entity under this Subdivision, except where it is necessary to do so for the purpose of carrying into effect the provisions of a *taxation law.
Note:
See also section 8ZK of this Act (about protection of witnesses).
History
S 355-280 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
Subdivision 355-E - Other matters
Guide to Subdivision 355-E
SECTION 355-320
WHAT THIS SUBDIVISION IS ABOUT
The Commissioner may require a taxation officer to make an oath of affirmation to protect information.
The Federal Court has power to grant an injunction restraining an entity from engaging in conduct that would constitute an offence against this Division.
The Commissioner must issue instructions relating to the disclosure of protected tax information.
History
S 355-320 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 355-325 |
Oath or affirmation to protect information |
| 355-330 |
Injunctions to prevent contravention of non-disclosure provisions |
| 355-335 |
Procedures for disclosing protected information |
Operative provisions
SECTION 355-325
OATH OR AFFIRMATION TO PROTECT INFORMATION
355-325(1)
A *taxation officer must, if and when required by the Commissioner to do so, make an oath or affirmation to protect information in accordance with this Division.
355-325(2)
The Commissioner may determine, in writing:
(a)
the form of the oath or affirmation; and
(b)
the manner in which the oath or affirmation must be made.
History
S 355-325 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-330
INJUNCTIONS TO PREVENT CONTRAVENTION OF NON-DISCLOSURE PROVISIONS
Injunctions
355-330(1)
If an entity has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute an offence against this Division, the Federal Court of Australia may, on the application of the Commissioner, grant an injunction:
(a)
restraining the entity from engaging in the conduct; and
(b)
if in the court's opinion it is desirable to do so - requiring the entity to do any act or thing.
Interim injunctions
355-330(2)
If an application is made to the court for an injunction under subsection (1), the court may, before considering the application, grant an interim injunction restraining an entity from engaging in conduct of the kind referred to in that subsection pending the determination of the application.
Discharge or variation of injunctions
355-330(3)
The court may discharge or vary an injunction granted under this section.
Exercise of power to grant injunctions
355-330(4)
If an application is made to the court for the grant of an injunction restraining an entity from engaging in conduct of a particular kind, the power of the court to grant the injunction may be exercised:
(a)
if the court is satisfied that the entity has engaged in conduct of that kind - whether or not it appears to the court that the entity intends to engage again, or to continue to engage, in conduct of that kind; or
(b)
if it appears to the court that, in the event that an injunction is not granted, it is likely that the entity will engage in conduct of that kind - whether or not the entity has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any other entity if the entity engages in conduct of that kind.
355-330(5)
The power of the court to grant an injunction requiring an entity to do a particular act or thing may be exercised:
(a)
if the court is satisfied that the entity has refused or failed to do that act or thing - whether or not it appears to the court that the entity intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or
(b)
if it appears to the court that, in the event that an injunction is not granted, it is likely that the entity will refuse or fail to do that act or thing - whether or not the entity has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any other entity if the entity refuses or fails to do that act or thing.
No undertakings as to damages
355-330(6)
If the Commissioner makes an application to the court for the grant of an injunction under this section, the court must not require the Commissioner or any other entity, as a condition of the granting of an interim injunction, to give any undertakings as to damages.
Other powers of the court unaffected
355-330(7)
The powers conferred on the court under this section are in addition to, and not in derogation of, any other powers of the court, whether conferred by this Act or otherwise.
History
S 355-330 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
SECTION 355-335
PROCEDURES FOR DISCLOSING PROTECTED INFORMATION
355-335(1)
The Commissioner must issue instructions in relation to the procedures to be followed by *taxation officers in disclosing *protected information under the exceptions in sections 355-55 (about disclosures to Ministers), 355-65 (about disclosures for other government purposes) and 355-70 (about disclosures for law enforcement and related purposes).
355-335(2)
The instructions must:
(a)
be issued within 6 months after the commencement of this section; and
(b)
be in writing; and
(c)
provide for the matters mentioned in subsection (3); and
(d)
be published on the Australian Taxation Office website.
355-335(3)
The matters are:
(a)
the processes to be followed before *protected information can be disclosed by a *taxation officer under the exceptions in sections 355-55, 355-65 and 355-70; and
(b)
the processes involved in obtaining and giving the agreement mentioned in paragraphs 355-55(1)(c) and 355-70(1)(c); and
(c)
other matters the Commissioner considers appropriate.
355-335(4)
Without limiting subsection 33(3) of the Acts Interpretation Act 1901, the Commissioner may vary or revoke the instructions.
355-335(5)
A failure to comply with the time limit in paragraph (2)(a) does not:
(a)
prevent the Commissioner from issuing the instructions after this time; or
(b)
affect the validity of the instructions when issued.
355-335(6)
A failure to comply with the instructions does not, of itself, mean that a *taxation officer is not entitled to rely on the exceptions in sections 355-55, 355-65 and 355-70.
355-335(7)
The instructions are not a legislative instrument.
History
S 355-335 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).
Division 356 - General administration of tax laws
History
Div 356 inserted by No 73 of 2006, s 3 and Sch 5 item 49, effective 1 July 2006.
Guide to Division 356
SECTION 356-1
WHAT THIS DIVISION IS ABOUT
This Division gives the Commissioner the general administration of the indirect tax laws and the Major Bank Levy Act 2017.
History
S 356-1 amended by No 64 of 2017, s 3 and Sch 1 item 20, by inserting "and the Major Bank Levy Act 2017", applicable in relation to quarters starting on or after 1 July 2017.
S 356-1 inserted by No 73 of 2006, s 3 and Sch 5 item 49, effective 1 July 2006.
Subdivision 356-A - Indirect tax laws
History
Subdiv 356-A inserted by No 73 of 2006, s 3 and Sch 5 item 49, effective 1 July 2006.
SECTION 356-5
356-5
COMMISSIONER HAS GENERAL ADMINISTRATION OF INDIRECT TAX LAWS
The Commissioner has the general administration of each *indirect tax law.
History
S 356-5 inserted by No 73 of 2006, s 3 and Sch 5 item 49, effective 1 July 2006.
Subdivision 356-B - Major bank levy
History
Subdiv 356-B inserted by No 64 of 2017, s 3 and Sch 1 item 21, applicable in relation to quarters starting on or after 1 July 2017.
SECTION 356-10
356-10
COMMISSIONER HAS GENERAL ADMINISTRATION OF MAJOR BANK LEVY
The Commissioner has the general administration of the Major Bank Levy Act 2017.
History
S 356-10 inserted by No 64 of 2017, s 3 and Sch 1 item 21, applicable in relation to quarters starting on or after 1 July 2017.
Subdivision 356-C - Laminaria and Corallina decommissioning levy
History
Subdiv 356-C inserted by No 24 of 2022, s 3 and Sch 1 item 19, effective 2 April 2022 and applicable in relation to financial years starting on or after 1 July 2021.
SECTION 356-15
356-15
COMMISSIONER HAS GENERAL ADMINISTRATION OF LAMINARIA AND CORALLINA DECOMMISSIONING LEVY
The Commissioner has the general administration of the Offshore Petroleum (Laminaria and Corallina Decommissioning Cost Recovery Levy) Act 2022.
History
S 356-15 inserted by No 24 of 2022, s 3 and Sch 1 item 19, effective 2 April 2022 and applicable in relation to financial years starting on or after 1 July 2021.
PART 5-5 - RULINGS
History
Pt 5-5 inserted by No 179 of 1999.
Division 357 - Object and common rules
History
Div 357 to Div 361 substituted for Div 360 by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006.
No 161 of 2005, s 3 and Sch 2 items 28 to 31, contains the following transitional provisions:
DEFINITION OF
COMMENCEMENT DAY
28
In this Part:
commencement day
means the later of:
(a)
the day on which this Act receives the Royal Assent; and
(b)
1 January 2006.
[
CCH Note:
The Act received assent on 19 December 2005.]
29 STATUS OF EXISTING RULINGS
(1)
A public ruling in force immediately before the commencement day under Part IVAAA of the Taxation Administration Act 1953 has effect, on and after that day, as if it were a public ruling made under Division 358 in Schedule 1 to that Act as amended by this Act.
(2)
A private ruling in force immediately before the commencement day under Part IVAA of the Taxation Administration Act 1953 has effect, on and after that day, as if it were a private ruling made under Division 359 in Schedule 1 to that Act as amended by this Act.
(3)
An oral ruling in force immediately before the commencement day under Division 360 in Schedule 1 to the Taxation Administration Act 1953 has effect, on and after that day, as if it were an oral ruling made under Division 360 in Schedule 1 to that Act as amended by this Act.
(4)
A ruling to which this item applies is taken to have been made on the day on which it was originally made.
30 INCONSISTENT RULINGS
(1)
The rules in the table in subsection 357-75(1) in Schedule 1 to the Taxation Administration Act 1953 do not apply to work out the effect of 2 inconsistent rulings if both of them were originally made before the commencement day.
(2)
Instead, the inconsistency rules that existed immediately before the commencement day are to be applied.
Note:
See former sections 170BC to 170BDC of the Income Tax Assessment Act 1936 for the old inconsistency rules.
31 PENDING APPLICATIONS
(1)
An application for a private ruling or an oral ruling under the
Taxation Administration Act 1953 made before the commencement day and not decided before that day has effect on and after that day as if it were an application for a private ruling under Division
359, or for an oral ruling under Division
360, in Schedule
1 to that Act as amended by this Act.
(2)
The application is taken to have been made on the day on which it was originally made.
Div 360 formerly read:
Division 360 - Oral rulings for individuals
History
Div 360 inserted by No 179 of 1999.
SECTION 360-1
WHAT THIS DIVISION IS ABOUT
360-1
An individual can apply to the Commissioner for an oral ruling about a limited range of matters under an income tax law.
History
S 360-1 inserted by No 179 of 1999.
OUTLINE OF THIS DIVISION
360-5(1)
The procedure you need to follow in applying for an oral ruling is set out in Subdivision 360-A.
360-5(2)
Before making the ruling, the Commissioner must be satisfied that your tax affairs, and your inquiry, meet certain tests.
See sections 360-65 and 360-100.
360-5(3)
There are further matters that may prevent the Commissioner from making the ruling. Important examples are:
(a)
during the relevant period you were carrying on a business;
(b)
during the relevant period you made payments from which you had to withhold amounts under Part 2-5 (PAYG withholding).
See Subdivision 360-C.
360-5(4)
An oral ruling is binding on the Commissioner, but only you can rely on it.
See sections 170BCA, 170BDA, 170BDB and 170BDC of the Income Tax Assessment Act 1936.
360-5(5)
You are not bound by an oral ruling.
History
S 360-5 inserted by No 179 of 1999.
Subdivision 360-A - Applying for an oral ruling
SECTION 360-20
APPLICATION FOR ORAL RULING ABOUT YOUR OWN TAX
360-20
If you are an individual, you may apply to the Commissioner for a ruling on the way in which, in the Commissioner's opinion, an *income tax law would apply to you in respect of an income year in relation to an *oral ruling arrangement.
History
S 360-20 inserted by No 179 of 1999.
APPLICATION FOR ORAL RULING ABOUT SOMEONE ELSE'S TAX
360-25(1)
You may apply to the Commissioner, on another person's behalf, for a ruling on the way in which, in the Commissioner's opinion, an *income tax law would apply to the other person in respect of an income year in relation to an *oral ruling arrangement.
360-25(2)
However, you may do so only if the other person is an individual, and:
(a)
the other person is under 18 and is your *child; or
(b)
the other person is under 18 and you have in relation to him or her all the duties, powers, responsibilities and authority which, by law, a parent has in relation to his or her child; or
(c)
the other person is under a legal disability because of a mental impairment, and you hold an enduring power of attorney in relation to him or her; or
(d)
the other person:
(i)
is under 18; or
(ii)
has a physical or mental impairment;
and an *Australian law authorises you to act on his or her behalf in matters including his or her *tax affairs.
360-25(3)
If you apply on another person's behalf, the rest of this Division has effect as if the other person had made the application himself or herself, but:
(a)
you may communicate with the Commissioner, and otherwisedeal with him or her, as if you were the other person; and
(b)
the Commissioner may communicate with you, and otherwise deal with you, as if you were the other person.
History
S 360-25 inserted by No 179 of 1999.
WHAT THE APPLICATION CAN COVER
360-30(1)
The application may relate to:
(a)
a past income year; or
(b)
the income year in which the application is made.
It cannot relate to a future income year, or to more than one income year.
360-30(2)
An
oral ruling arrangement
is:
(a)
an action; or
(b)
a course of action; or
(c)
a course of conduct; or
(d)
a transaction;
that has been, is being, or is proposed to be, engaged in, entered into or carried out, but only if none of the parties to it is an *associate of any of the others.
360-30(3)
The application may be for a ruling on the way in which the Commissioner would act under the *income tax law to which the application relates.
360-30(4)
Subsection (3) covers the following kinds of acts:
(a)
forming an opinion; or
(b)
refusing or failing to form an opinion; or
(c)
attaining a state of mind; or
(d)
refusing or failing to attain a state of mind; or
(e)
making a determination; or
(f)
refusing or failing to make a determination; or
(g)
exercising a power; or
(h)
refusing or failing to exercise a power.
History
S 360-30 inserted by No 179 of 1999.
HOW THE APPLICATION IS TO BE MADE
360-35(1)
You must make the application orally, either in person or by live 2-way conversation using a method of communication approved by the Commissioner.
360-35(2)
When making the application, you must:
(a)
identify yourself to the Commissioner's satisfaction; and
(b)
if you make the application on behalf of another person, identify the other person to the Commissioner's satisfaction; and
(c)
give whatever information, in whatever form, the Commissioner requires in order to make the ruling.
360-35(3)
You may withdraw the application before the ruling is made. You must do so orally, either in person or by live 2-way conversation using a method of communication approved by the Commissioner.
History
S 360-35 inserted by No 179 of 1999.
SECTION 360-40
FURTHER INFORMATION MAY BE SOUGHT
360-40
If the Commissioner considers that:
(a)
the ruling cannot be made without further information; and
(b)
if that information were given, there would be no reason for the Commissioner not to comply with your application;
the Commissioner must request you to give that information to him or her.
History
S 360-40 inserted by No 179 of 1999.
Subdivision 360-B - How the Commissioner is to deal with the application
Exercise of powers by authorised person
WHERE POWERS TO BE EXERCISED
360-60(1)
A person who is authorised to perform a function, or exercise a power, of the Commissioner under this Division must do so only at places approved by the Commissioner.
History
S 360-60(1) substituted by No 44 of 2000.
360-60(2)
If the person is at such a place, he or she may, in order to perform the function or exercise the power, communicate with a person who is not at such a place by live 2-way conversation using a method approved by the Commissioner.
History
S 360-60 amended by No 44 of 2000 and inserted by No 179 of 1999.
If the application relates only to basic categories
WHEN COMMISSIONER MUST MAKE ORAL RULING
360-65(1)
The Commissioner must comply with your application if he or she is satisfied that:
(a)
your application complies with Subdivision 360-A; and
(b)
your assessable income for the inquiry period consisted only of one or more items covered by section 360-70; and
(c)
during the inquiry period no *CGT event happened from which you could have made a *capital gain or *capital loss (even if you did not make one from the event); and
Note:
You are not disqualified by having an unapplied net capital loss for a previous income year.
(d)
your *exempt income (if any) for the inquiry period consisted only of one or more items covered by section 360-75; and
(da)
your *non-assessable non-exempt income (if any) for the inquiry period consisted only of one or more items covered by section 365-77; and
(e)
your deductions for the inquiry period consisted only of one or more items covered by section 360-80; and
(f)
your *tax offsets for the inquiry period consisted only of one or more items covered by section 360-85; and
(g)
your application relates only to an item covered by section 360-70, 360-75, 360-80 or 360-85;
unless Subdivision 360-C prevents the Commissioner from complying with the application.
Note:
For an alternative basis on which the Commissioner must comply with your application, see section 360-100.
History
S 360-65(1) amended by No 66 of 2003, s 3 and Sch 3 item 134, by inserting para (da), applicable to assessments for the 2003-04 income year and later income years.
360-65(2)
The
inquiry period
is:
(a)
if your application relates to an earlier income year - that income year; or
(b)
if your application relates to the income year during which the application is made - so much of the income year as elapses up to and including the day on which you make the application.
History
S 360-65 inserted by No 179 of 1999.
BASIC CATEGORIES OF ASSESSABLE INCOME
360-70(1)
This section covers a payment from which an amount must be withheld (even if the amount is not withheld) under a provision listed in the table, to the extent that the payment is assessable income.
|
Payments covered
|
|
Item
|
Provision
|
Subject matter
|
| 1 |
Section 12-35 |
Payment to employee |
| 2 |
Section 12-40 |
Payment to company director |
| 3 |
Section 12-45 |
Payment to office holder |
| 4 |
Section 12-115 |
Commonwealth education or training payment |
360-70(2)
This section also covers a payment specified in a provision of the Income Tax Assessment Act 1997 listed in the table, to the extent that the payment is assessable income.
|
Social security or other benefit payment
|
|
Item
|
Provision
|
Subject matter
|
| 1 |
Section 52-10 |
Social security payments |
| 2 |
Section 52-65 |
Veterans' affairs payments |
| 3 |
Section 52-105 |
Payments under the Repatriation Act 1920 |
| 4 |
Section 55-10 |
Education entry payments |
360-70(3)
This section also covers interest payable by a *financial institution or a government body (as defined by section 202A of the Income Tax Assessment Act 1936), to the extent that the interest is assessable income.
360-70(4)
This section also covers a *dividend (to the extent that it is assessable income), if the company that pays it is an Australian resident, and a *listed public company whose shares are listed for quotation in the official list of the Australian Stock Exchange Limited, at the earliest of the following times:
(a)
if the liability to pay the dividend arises when the dividend is declared - that time;
(b)
when the dividend becomes due and payable;
(c)
when the dividend is paid.
History
S 360-70 inserted by No 179 of 1999.
SECTION 360-75
BASIC CATEGORIES OF EXEMPT INCOME
360-75
This section covers *ordinary income, or *statutory income, to the extent that it is *exempt income because of:
(a)
subsection 23L(1A) of the Income Tax Assessment Act 1936 (about exempt fringe benefits); or
(b)
a provision of the Income Tax Assessment Act 1997 listed in the table.
|
Exempt income
|
|
Item
|
Provision
|
Subject matter
|
| 1 |
section 51-5 |
Payments to defence personnel |
| 5 |
item 2.1, 2.1A or 2.1B of the table in section 51-10 |
Educational grants and payments |
| 10 |
section 51-30 |
Welfare payments |
| 15 |
section 52-10 |
Social security payments |
| 20 |
section 52-65 |
Veterans' affairs payments |
| 25 |
section 52-105 |
Payments under the Repatriation Act 1920 |
| 30 |
section 52-110 |
Payments made because of subsection 4(6) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 |
| 35 |
(Repealed by No 44 of 2000) |
| 40 |
section 52-125 |
Private health insurance incentive payments |
| 45 |
(Repealed by No 66 of 2003) |
| 50 |
section 52-140 |
Commonwealth education and training payment |
| 53 |
section 52-150 |
Family assistance payments |
| 55 |
item 1 of the table in section 53-10 |
Disability services payment |
| 60 |
item 2 of the table in section 53-10 |
Domiciliary nursing care benefit |
| 65 |
item 5 of the table in section 53-10 |
Wounds and disability pension |
| 70 |
section 53-20 |
Payments similar to certain veterans' payments |
History
S 360-75 amended by No 66 of 2003, s 3 and Sch 3 items 135 and 136, by substituting para (a) and repealing table item 45, applicable to assessments for the 2003-04 income year and later income years. Para (a) formerly read:
(a) subsection 23L(1) of the Income Tax Assessment Act 1936 (about fringe benefits); or
Table item 45 formerly read:
"45 section 52-130 Bonuses for older Australians"
S 360-75 amended by No 44 of 2000 and inserted by No 179 of 1999.
BASIC CATEGORIES OF NON-ASSESSABLE NON-EXEMPT INCOME
360-77
This section covers *ordinary income, or *statutory income, to the extent that it is *non-assessable non-exempt income because of:
(a)
subsection 23L(1) of the Income Tax Assessment Act 1936 (about fringe benefits); or
(b)
section 59-5 of the Income Tax Assessment Act 1997 (about bonus payments made to certain older Australians).
History
S 360-77 inserted by No 66 of 2003, s 3 and Sch 3 item 137, applicable to assessments for the 2003-04 income year and later income years.
BASIC CATEGORIES OF DEDUCTIONS
360-80
This section covers a deduction for:
(a)
an amount of expenditure you incur for managing your *tax affairs as mentioned in paragraph 25-5(1)(a) of the Income Tax Assessment Act 1997; or
(ba)
a fee or commission you incur as mentioned in section 25-7 (for advice about family tax benefit) of the Income Tax Assessment Act 1997; or
(b)
an amount of an account-keeping fee charged by a *financial institution; or
(c)
an amount of a tax imposed under an *Australian law on an account kept with a financial institution (for example, financial institutions duty, debits tax or a similar tax); or
(d)
an amount of money that is a gift or contribution to which item 1, 2 or 3 of the table in section 30-15 of the Income Tax Assessment Act 1997 applies.
History
S 360-80 amended by No 44 of 2000 and inserted by No 179 of 1999.
BASIC CATEGORIES OF TAX OFFSETS
360-85
This section covers a *tax offset to which you are entitled because of:
(a)
Subdivision 61-H of the Income Tax Assessment Act 1997 (about premiums under a private health insurance policy); or
(aa)
subsection 207-20(2) of the Income Tax Assessment Act 1997; or
(b)
a provision of the Income Tax Assessment Act 1936 listed in the table.
|
Tax offsets
|
|
Item
|
Provision
|
Subject matter
|
| 1 |
Section 159J |
Child of taxpayer who is wholly engaged in keeping house for the taxpayer
Invalid relative
Parents/parents in law
Spouse |
| 5 |
Section 159L |
Housekeeper, caring for child, invalid relative or disabled spouse |
| 10 |
(Repealed by No 44 of 2000) |
| 15 |
(Repealed by No 23 of 2005) |
| 20 |
Section 159SZ |
Personal superannuation contributions |
| 25 |
Section 159T |
Superannuation contributions for a spouse |
| 30 |
Section 159P |
Medical expenses |
| 35 |
Section 160AAAA |
Low income aged person |
| 40 |
Section 159N |
Low income individuals |
| 45 |
Subsection 160AAA(2) |
Rebate for certain social security pensions, allowances or benefits, veterans' pensions, allowances or benefits |
| 50 |
Subsection 160AAA(3) |
Rebate for certain social security benefits or payments |
| 55 |
Section 79A |
Residents of isolated area |
History
S 360-85 amended by No 23 of 2005, No 44 of 2000 and inserted by No 179 of 1999.
If the application involves additional categories
WHEN COMMISSIONER MUST MAKE ORAL RULING IF SATISFIED THAT YOUR TAX AFFAIRS AND INQUIRY ARE SIMPLE
360-100(1)
The Commissioner must also comply with your application if:
(a)
he or she is satisfied that your application complies with Subdivision 360-A; and
(b)
in his or her opinion, your *tax affairs were simple throughout the inquiry period; and
(c)
in his or her opinion, your inquiry is simple; and
(d)
he or she is satisfied that your assessable income for the inquiry period consisted only of one or more items, each of which is covered by section 360-70 or 360-105; and
(e)
he or she is satisfied that your *exempt income (if any) for the inquiry period consisted only of one or more items covered by section 360-75; and
(ea)
he or she is satisfied that your *non-assessable non-exempt income (if any) for the inquiry period consisted only of one or more items covered by section 365-77; and
(f)
he or she is satisfied that your deductions for the inquiry period consisted only of one or more items, each of which is covered by section 360-80 or 360-110; and
(g)
he or she is satisfied that your *tax offsets for the inquiry period consisted only of one or more items, each of which is covered by section 360-85 or 360-115; and
(h)
he or she is satisfied of the matters in subsections (2), (3) and (4) (about your capital gains tax situation);
unless Subdivision 360-C prevents the Commissioner from complying with the application.
History
S 360-100(1) amended by No 66 of 2003, s 3 and Sch 3 item 138, by inserting para (ea), applicable to assessments for the 2003-04 income year and later income years.
CGT events
360-100(2)
The Commissioner must be satisfied that during the inquiry period no *CGT event happened from which you could have made a *capital gain or *capital loss (even if you did not make one from the event), except a CGT event from which you could have made a capital gain or capital loss covered by subsection (3).
Capital gains and losses
360-100(3)
The Commissioner must be satisfied that each *capital gain (if any), and each *capital loss (if any), that you made during the inquiry period:
(a)
is to be disregarded because of section 118-5 of the Income Tax Assessment Act 1997 (about *cars, motor cycles and valour decorations); or
(b)
resulted from *CGT event A1 happening in relation to shares in a company that was an Australian resident and a *listed public company, and whose shares were listed for quotation in the official list of the Australian Stock Exchange Limited, throughout the period when you owned the first-mentioned shares; or
(c)
resulted from *CGT event A1 or E4 happening in relation to units in a unit trust that was a *resident trust for CGT purposes and a *listed widely held trust, and whose units were listed for quotation in the official list of the Australian Stock Exchange Limited, throughout the period when you owned the first-mentioned units.
Note:
Similarly, you are not disqualified if CGT event E4 results in a reduction in the cost base of your units, rather than in a capital gain.
Net capital loss for an earlier income year
360-100(4)
If during the inquiry period you made one or more *capital gains each of which is covered by paragraph 360-100(3)(b) or (c), the Commissioner must be satisfied that you have no unapplied *net capital loss for an earlier income year.
Note:
You are not otherwise disqualified by having an unapplied net capital loss for a previous income year.
History
S 360-100 inserted by No 179 of 1999.
ADDITIONAL CATEGORIES OF ASSESSABLE INCOME
360-105
This section covers the following, to the extent that they are assessable income:
(a)
a payment from which an amount must be withheld (even if the amount is not withheld) under a provision listed in the table;
|
Payments covered
|
|
Item
|
Provision
|
Subject matter
|
| 1 |
Section 12-80 |
Payment of pension or annuity |
| 2 |
Section 12-120 |
Compensation, sickness or accident payment |
(b)
a payment of a pension specified in subsection 55-5(1) (about occupational superannuation schemes) of the Income Tax Assessment Act 1997;
(c)
an amount in respect of a distribution made by a unit trust that is a *resident trust for CGT purposes and a *listed widely held trust, and whose units are listed for quotation in the official list of the Australian Stock Exchange Limited, at the earliest of the following times:
(ii)
when the distribution becomes due and payable;
(iii)
when the distribution is made;
(d)
a *net capital gain resulting solely from one or more *capital gains covered by subsection 360-100(3).
[
CCH Note:
Act No 179 of 1999 did not insert a para (i) in 360-105(c).]
History
S 360-105 inserted by No 179 of 1999.
ADDITIONAL CATEGORIES OF DEDUCTIONS
360-110
This section covers a deduction that you have and that relates to a payment to you from which an amount must be withheld (even if the amount is not withheld) under a provision listed in the table.
|
Payments covered
|
|
Item
|
Provision
|
Subject matter
|
| 1 |
Section 12-35 |
Payment to employee |
| 2 |
Section 12-40 |
Payment to company director |
| 3 |
Section 12-45 |
Payment to office holder |
History
S 360-110 inserted by No 179 of 1999.
ADDITIONAL CATEGORIES OF TAX OFFSETS
360-115
This section covers a *tax offset to which you are entitled because of:
(a)
section 207-45 of the Income Tax Assessment Act 1997, but only so far as it applies in relation to a person as a beneficiary of a trust; or
(b)
a provision of the Income Tax Assessment Act 1936 listed in the table.
|
Tax offsets
|
|
Item
|
Provision
|
Subject matter
|
| 1 |
Section 79B |
Member of the Defence Force serving overseas |
| 5 |
(Repealed by No 23 of 2005) |
|
| 10 |
Section 159SU |
Rebateable ETP annuity |
| 15 |
Section 159SM |
Rebateable superannuation pension |
| 20 |
Section 160AF |
Credit for foreign tax paid on foreign income |
| 25 |
Section 159UQ |
Heritage conservation rebate |
| 35 |
Section 160AB |
Loan interest received on securities issued before 1 November 1968 |
| 40 |
Sections 159ZRA and 159ZRB |
Lump sum payment in arrears |
| 45 |
Subsection 23AB(7) |
Salary, wages and allowances for service as a member of United Nations forces |
History
S 360-115 inserted by No 179 of 1999 and amended by No 23 of 2005.
If the application is successful
MAKING THE ORAL RULING
360-120(1)
The Commissioner makes the ruling by communicating its contents to you orally, either in person or by live 2-way conversation using a method approved by the Commissioner. The ruling is made at the time of the communication.
360-120(2)
The communication must:
(a)
set out the matter ruled on; and
(b)
identify the person to whom, and the *income tax law, the income year and the *oral ruling arrangement to which, the ruling relates; and
(c)
indicate that the ruling is an *oral ruling; and
(d)
if the correctness of the ruling depends on an assumption - set out details of the assumption; and
(e)
include a registration identifier for the ruling.
360-120(3)
You are not entitled to receive a written record of the communication.
Note:
However, you may be able to apply for a private ruling on the matter under Part IVAA.
360-120(4)
Neither you nor anyone else is entitled to object against the ruling under Part IVC. The ruling is not a taxation decision for the purposes of that Part.
Note:
However, you may be able to apply for a private ruling on the matter under Part IVAA. A rulee who is dissatisfied with a private ruling may object against it under Part IVC.
History
S 360-120 inserted by No 179 of 1999.
Subdivision 360-C - When Commissioner must or can refuse the application
ASPECTS OF YOUR TAX AFFAIRS THAT DISQUALIFY YOU
360-140(1)
The Commissioner must not comply with your application unless he or she is satisfied that:
(a)
throughout the inquiry period you were an Australian resident; and
(b)
at no time during the inquiry period did you carry on a *business; and
(c)
at no time during the inquiry period were you a *withholder; and
(d)
your assessable income for the inquiry period did not include an amount in respect of a *non-cash benefit.
360-140(2)
The Commissioner must not comply with your application if:
(a)
your assessable income, *exempt income or *non-assessable non-exempt income for the inquiry period included an amount arising from a transaction with your *associate; or
(b)
your deductions for the inquiry period included an amount you paid to your *associate; or
(c)
an anti-avoidance provision applies to you in relation to the income year to which your application relates.
History
S 360-140(2) amended by No 66 of 2003, s 3 and Sch 3 item 139, by substituting ', *exempt income or *non-assessable non-exempt income' for 'or *exempt income' in para (a), applicable to assessments for the 2003-04 income year and later income years.
S 360-140 inserted by No 179 of 1999.
OTHER GROUNDS ON WHICH APPLICATION MUST OR CAN BE REFUSED
360-145(1)
The Commissioner must not comply with your application if:
(a)
there is already an *oral ruling, in respect of the same income year, on the matter sought to be ruled on; or
(b)
there is already a *private ruling on the matter sought to be ruled on; or
(c)
the matter sought to be ruled on has been decided for the purposes of a *Commissioner assessment; or
(d)
there is being carried out a *tax audit:
(i)
of which you have been informed; and
(ii)
that, in the opinion of the Commissioner, will require the Commissioner to decide the matter sought to be ruled on; or
(e)
the matter sought to be ruled on is the subject of an objection against a *self assessment; or
(f)
you are not a *SPOR taxpayer for the income year to which the application relates, and the application is made later than 4 years after the last day allowed to you for lodging an *income tax return for that income year; or
(g)
you are a SPOR taxpayer for the income year to which the application relates, and the application is made later than 2 years after the last day allowed to you for lodging an income tax return for that income year.
360-145(2)
The Commissioner must not comply with your application if, in his or her opinion:
(a)
the application is frivolous or vexatious; or
(b)
the *oral ruling arrangement to which the application relates has not been, and is not being, carried out and is not seriously contemplated by you; or
(c)
you have not given sufficient information, despite a request under section 360-40, to enable the ruling to be made; or
(d)
it would be unreasonable to comply, or continue to attempt to comply, having regard to the extent of the Commissioner's resources that would be required to comply.
360-145(3)
The Commissioner must not comply with your application in so far as it involves calculating an amount.
360-145(4)
The Commissioner need not comply with your application if he or she is satisfied that, had your application been for a *private ruling, he or she would not have been required to comply with it.
History
S 360-145 inserted by No 179 of 1999.
ASSUMPTIONS IN MAKING ORAL RULING
360-150
If the Commissioner considers that the correctness of an *oral ruling would depend on which assumptions were made about a future event or other matter, the Commissioner may:
(a)
decline to make the ruling; or
(b)
make such of the assumptions as the Commissioner considers to be most appropriate.
Hide history note
History
S 360-150 inserted by No 179 of 1999.
EFFECT ON ORAL RULING IF PROVISIONS NOT COMPLIED WITH
360-155(1)
An *oral ruling is taken never to have been made, and never to have been communicated, if any of these provisions applied to the application for the ruling:
(a)
subsection 360-140(2); or
(b)
subsection 360-145(1).
360-155(2)
The validity of an *oral ruling is not affected because any other provision of this Act has not been complied with.
History
S 360-155 inserted by No 179 of 1999.
Subdivision 360-D - Miscellaneous
APPLICATION FOR ORAL RULING DOES NOT AFFECT OBLIGATIONS AND POWERS
360-175
The fact that there has been an application for an *oral ruling does not in the meantime affect:
(a)
your obligation to lodge a return or do any other act; or
(b)
the Commissioner's power to make or amend an assessment.
History
S 360-175 inserted by No 179 of 1999.
EFFECT ON ORAL RULING IF TAX LAW RE-ENACTED
360-180
If:
(a)
the Commissioner makes an *oral ruling about an *income tax law (the
old law
); and
(b)
that law is re-enacted or remade (with or without modifications, and whether or not the old law is repealed);
the ruling is taken also to be an oral ruling about that law as re-enacted or remade (the
new law
), but only so far as the new law expresses the same ideas as the old law.
Note:
Ideas in tax laws are not necessarily different just because different forms of words are used. See:
• section 15AC of the Acts Interpretation Act 1901; and
• section 1-3 of the Income Tax Assessment Act 1997.
History
S 360-180 inserted by No 179 of 1999.
Guide to Division 357
SECTION 357-1
WHAT THIS DIVISION IS ABOUT
This Division sets out the object of this Part, and common rules that apply to public, private and oral rulings. (For the rules specific to each of those kinds of ruling, see Divisions 358, 359, 360 and 362.)
A ruling is an expression of the Commissioner's opinion of the way in which a relevant provision applies, or would apply, to you.
A ruling binds the Commissioner if it applies to you and you act in accordance with it. If you do act in accordance with it and the law turns out to be less favourable to you than the ruling provides, you are protected by the ruling from any adverse consequences.
The Division also sets out some other general rules for rulings.
Note:
In limited circumstances, Industry Innovation and Science Australia can make rulings.
History
S 357-1 amended by No 101 of 2021, s 3 and Sch 1 item 5(c), by substituting "Industry Innovation and Science Australia" for "Innovation and Science Australia" in the note, effective 11 September 2021.
S 357-1 amended by No 63 of 2016, s 3 and Sch 1 item 48(c), by substituting "Innovation and Science Australia" for "Innovation Australia" in the note, effective 20 October 2016.
S 357-1 amended by No 54 of 2016, s 3 and Sch 2 items 57 and 58, by substituting ", 360 and 362" for "and 360" and inserting the note, applicable in relation to the 2016-17 income year and later income years.
S 357-1 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
Subdivision 357-A - Object of this Part
History
Subdiv 357-A inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 357-5
OBJECT OF THIS PART
357-5(1)
The object of this Part is to provide a way for you to find out the Commissioner's view about how certain laws administered by the Commissioner apply to you so that the risks to you of uncertainty when you are self assessing or working out your tax obligations or entitlements are reduced.
357-5(2)
This object is achieved by:
(a)
making advice in the form of rulings by the Commissioner available on a wide range of matters and to many taxpayers; and
(b)
ensuring that the Commissioner provides rulings in a timely manner; and
(c)
enabling the Commissioner to obtain, and make rulings based on, relevant information; and
(d)
protecting you from increases in tax and from penalties and interest where you rely on rulings; and
(e)
protecting you from decreases in entitlements where you rely on rulings; and
(f)
limiting the ways the Commissioner can alter rulings to your detriment; and
(g)
giving you protection from interest charges where you rely on other advice from the Commissioner, or on the Commissioner's general administrative practice.
357-5(3)
A further object of this Part is to provide a way for you to find out *Industry Innovation and Science Australia's view about whether activities are not ineligible activities for the purposes of applying capital gains tax provisions to venture capital investments.
Note:
For rulings by Industry Innovation and Science Australia: see Division 362.
History
S 357-5(3) amended by No 101 of 2021, s 3 and Sch 1 items 5(b) and (c), by substituting "*Industry Innovation and Science Australia's" for "*Innovation and Science Australia's" and "Industry Innovation and Science Australia" for "Innovation and Science Australia" in the note, effective 11 September 2021.
S 357-5(3) amended by No 63 of 2016, s 3 and Sch 1 items 48(b) and (c), by substituting "*Innovation and Science Australia's" for "*Innovation Australia's" and "Innovation and Science Australia" for "Innovation Australia" in the note, effective 20 October 2016.
S 357-5(3) inserted by No 54 of 2016, s 3 and Sch 2 item 59, applicable in relation to the 2016-17 income year and later income years.
History
S 357-5 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
Subdivision 357-B - Common rules for rulings
History
Subdiv 357-B inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
Rules for all rulings
SECTION 357-50
357-50
SCOPE OF DIVISION
This Division applies to *public rulings, *private rulings and *oral rulings.
Note:
Section 362-70 modifies how this Subdivision applies to rulings by Industry Innovation and Science Australia.
History
S 357-50 amended by No 101 of 2021, s 3 and Sch 1 item 5(c), by substituting "Industry Innovation and Science Australia" for "Innovation and Science Australia" in the note, effective 11 September 2021.
S 357-50 amended by No 63 of 2016, s 3 and Sch 1 item 48(c), by substituting "Innovation and Science Australia" for "Innovation Australia" in the note, effective 20 October 2016.
S 357-50 amended by No 54 of 2016, s 3 and Sch 2 item 60, by inserting the note, applicable in relation to the 2016-17 income year and later income years.
S 357-50 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 357-55
357-55
THE PROVISIONS THAT ARE RELEVANT FOR RULINGS
Provisions of Acts and regulations of which the Commissioner has the general administration are relevant for rulings if the provisions are about any of the following:
(a)
*tax;
(b)
*Medicare levy;
(c)
fringe benefits tax;
(d)
*franking tax;
(e)
*withholding tax;
(f)
*mining withholding tax;
(faa)
(Repealed by No 96 of 2014)
(fa)
*petroleum resource rent tax;
(fb)
*indirect tax;
(fc)
*excise duty;
(fd)
levy under the Major Bank Levy Act 2017;
(fe)
*Laminaria and Corallina decommissioning levy;
(g)
the administration or collection of those taxes, levies and duties;
(h)
a grant or benefit mentioned in section 8 of the Product Grants and Benefits Administration Act 2000, or the administration or payment of such a grantor benefit;
(i)
a *net fuel amount, or the administration of a net fuel amount;
(ia)
an *assessed net fuel amount, or the collection or payment of an assessed net fuel amount;
(j)
a *net amount, or the administration of a net amount;
(ja)
an *assessed net amount, or the collection or payment of an assessed net amount;
(k)
a *wine tax credit, or the administration or payment of a wine tax credit.
History
S 357-55 amended by No 24 of 2022, s 3 and Sch 1 item 20, by inserting para (fe), effective 2 April 2022 and applicable in relation to financial years starting on or after 1 July 2021.
S 357-55 amended by No 64 of 2017, s 3 and Sch 1 item 22, by inserting para (fd), applicable in relation to quarters starting on or after 1 July 2017.
S 357-55 amended by No 96 of 2014, s 3 and Sch 1 item 97, by repealing para (faa), effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. Para (faa) formerly read:
(faa)
*MRRT;
S 357-55 amended by No 39 of 2012, s 3 and Sch 1 item 222, by substituting para (i), (ia), (j) and (ja) for para (i) and (j), effective 1 July 2012. For application provisions see note under s 8AAZLG(2).
Para (i) and (j) formerly read:
(i)
a *net fuel amount, or the administration, collection or payment of a net fuel amount;
(j)
a *net amount, or the administration, collection or payment of a net amount;
S 357-55 amended by No 14 of 2012, s 3 and Sch 1 item 32, by inserting para (faa), effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
S 357-55 amended by No 12 of 2012, s 3 and Sch 6 item 246, by substituting "*Medicare levy" for "Medicare levy" in para (b), applicable income years starting on or after 1 July 2008.
S 357-55 amended by No 74 of 2010, s 3 and Sch 2 items 24 to 26, by inserting paras (fb) and (fc), inserting ", levies and duties" after "taxes" in para (g) and inserting paras (j) and (k) at the end, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
S 357-55 amended by No 78 of 2006, s 3 and Sch 4 item 37, by inserting para (fa), applicable only in relation to returns and assessments of tax, and instalments of tax, under the Petroleum Resource Rent Tax Assessment Act 1987 for financial years that start on or after 1 July 2006.
S 357-55 amended by No 73 of 2006, s 3 and Sch 5 item 50, by inserting para (i), effective 1 July 2006.
S 357-55 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 357-60
WHEN RULINGS ARE BINDING ON THE COMMISSIONER
357-60(1)
Subject to subsection (5), a ruling binds the Commissioner in relation to you (whether or not you are aware of the ruling) if:
(a)
the ruling applies to you; and
(b)
you rely on the ruling by acting (or omitting to act) in accordance with the ruling.
EXAMPLES
Example 1:
A public ruling is expressed to apply to a class of entities in relation to a particular scheme. Tim is a member of that class of entities and he is one of a number of taxpayers who enter into that scheme. The ruling applies to Tim.
Tim relies on the ruling by lodging an income tax return that is in accordance with the ruling.
Under the ruling, Tim's deductions in relation to the scheme are worked out to be a particular amount. Because Tim has relied on the ruling, the Commissioner must use that amount in making Tim's assessment (unless Tim stops relying on the ruling or the law is more favourable to him: see sections 357-65 and 357-70).
Example 2:
Cecelia applies for, and obtains, a private ruling that, when she makes a payment in specified circumstances, she would not have to withhold an amount under a relevant provision. Cecelia makes the payment in the circumstances specified in the ruling, so the ruling applies to her.
Cecelia relies on the ruling by not withholding an amount from the payment. The Commissioner must not apply the provision in relation to Cecelia in a way that is inconsistent with the ruling (unless Cecelia stops relying on the ruling or the law is more favourable to her: see sections 357-65 and 357-70).
Example 3:
Cathie obtains a private ruling that a type of supply she makes is GST-free. She relies on the ruling by:
(a) giving her customers invoices that show no GST payable on the supplies; and
(b) lodging her GST return on the basis that the supplies are GST-free.
The Commissioner must administer the GST law in relation to Cathie on the basis that the supplies to which the ruling relates are GST-free. This does not apply if Cathie stops relying on the ruling, such as by issuing tax invoices that show GST payable on the supplies: see paragraph (1)(b).
Note 1:
A ruling about the amount of tax payable that binds the Commissioner provides protection in relation to that amount. There is no shortfall interest charge or tax shortfall penalty payable in respect of that amount as there can be no shortfall in tax payable.
Note 2:
A ruling about the operation of a provision would stop applying to you if the provision is repealed, or is amended to have a different effect. However, if the provision is re-enacted and expresses the same ideas as the old provision, the ruling would still apply: see section 357-85.
History
S 357-60(1) amended by No 74 of 2010, s 3 and Sch 2 items 27 and 28, by substituting "Subject to subsection (5), a ruling binds" for "A ruling binds" and inserting example 3, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
357-60(2)
You may rely on the ruling at any time unless prevented from doing so by a time limit imposed by a *taxation law. It is not necessary to do so at the first opportunity.
GST rulings
357-60(3)
The *GST payable on a *supply or importation is the amount worked out in accordance with a ruling (if any) that:
(a)
relates to the GST payable on the supply or importation; and
(b)
binds the Commissioner in relation to the supplier or importer.
Note:
The ruling will stop affecting the GST payable if the supplier or importer stops relying on the ruling: see paragraph (1)(b).
History
S 357-60(3) inserted by No 74 of 2010, s 3 and Sch 2 item 29, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
357-60(4)
Subsection (3) does not apply for the purposes of an objection to the ruling under section 359-60.
History
S 357-60(4) inserted by No 74 of 2010, s 3 and Sch 2 item 29, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
Indirect tax rulings
357-60(5)
An *indirect tax or excise ruling (except to the extent that the ruling relates to an *excise law) binds the Commissioner in relation to:
(a)
an entity (the
representative entity
) that is:
(i)
the *representative member of a *GST group; or
(ii)
the *joint venture operator of a *GST joint venture; or
(iii)
the *representative of an *incapacitated entity; and
(b)
an entity (the
member entity
) that is:
(i)
a *member of the GST group; or
(ii)
a *participant in the GST joint venture; or
(iii)
the incapacitated entity;
if, and only if, both the representative entity and the member entity rely on the ruling by acting (or omitting to act) in accordance with the ruling.
History
S 357-60(5) inserted by No 74 of 2010, s 3 and Sch 2 item 29, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
357-60(6)
Subsection (5) applies if:
(a)
the ruling applies to the member entity; and
(b)
the ruling relates to what would be:
(i)
a liability of the member entity to *indirect tax; or
(ii)
an entitlement of the member entity to a credit (other than a *fuel tax credit) under an *indirect tax law; or
(iii)
an *increasing adjustment, a *decreasing adjustment, or a luxury car tax adjustment (within the meaning of the *Luxury Car Tax Act), that the member entity has;
if the rules in the indirect tax law relating to *GST groups, *GST joint ventures or *incapacitated entities did not apply; and
(c)because of those rules:
(i)
if that indirect tax were payable, it would be payable by the representative entity; or
(ii)
if there was an entitlement to that credit, it would be an entitlement of the representative entity; or
(iii)
if any entity had that adjustment, it would be an adjustment that the representative entity had.
History
S 357-60(6) inserted by No 74 of 2010, s 3 and Sch 2 item 29, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
History
S 357-60 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 357-65
STOPPING RELYING ON A RULING
357-65(1)
You can stop relying on a ruling. You do this by acting (or omitting to act) in a way that is not in accordance with the ruling.
Note:
There is no penalty for a shortfall resulting from failing to follow a ruling. However, there are penalties for shortfalls resulting from failing to take reasonable care, and from taking a position about a large income tax item that is not reasonably arguable: see Division 284.
357-65(2)
You may stop relying on a ruling at any time unless prevented from doing so by a time limit imposed by a *taxation law.
357-65(3)
Having stopped relying on a ruling, you may rely on the ruling again unless prevented from doing so by a time limit imposed by a *taxation law.
History
S 357-65 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 357-70
COMMISSIONER MAY APPLY THE LAW IF MORE FAVOURABLE THAN THE RULING
357-70(1)
The Commissioner may apply a relevant provision to you in the way it would apply if you had not relied on a ruling if:
(a)
doing so would produce a more favourable result for you; and
(b)
the Commissioner is not prevented from doing so by a time limit imposed by a *taxation law.
357-70(2)
The Commissioner does not have a duty to consider whether to apply subsection (1) to you, whether he or she is requested to do so by you or by any other entity.
History
S 357-70 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 357-75
INCONSISTENT RULINGS
357-75(1)
The rules in this table have effect if:
(a)
a ruling and a later ruling both apply to you; and
(b)
the 2 rulings are inconsistent.
However, the rules in the table only apply to the extent of the inconsistency, and do not apply to *indirect tax or excise rulings.
|
Inconsistent rulings (other than indirect tax or excise rulings)
|
|
Item
|
If the earlier ruling is:
|
And the later inconsistent ruling is:
|
The result is:
|
| 1 |
A *public ruling |
Any ruling |
You may rely on either ruling. |
| 2 |
A *private ruling or an *oral ruling |
A private ruling or an oral ruling |
If you informed the Commissioner about the existence of the earlier ruling when you applied for the later ruling, the earlier ruling is taken not to have been made. |
| |
|
|
Otherwise, the later ruling is taken not to have been made. |
| 3 |
A *private ruling or an *oral ruling |
A *public ruling |
The earlier ruling is taken not to have been made if, when the later ruling is made: |
| |
|
|
(a) |
the income year or other period to which the rulings relate has not begun; and |
| |
|
|
(b) |
the *scheme to which the rulings relate has not begun to be carried out. |
| |
|
|
Otherwise, you may rely on either ruling. |
History
S 357-75(1) amended by No 74 of 2010, s 3 and Sch 2 items 30 and 31, by inserting ", and do not apply to *indirect tax or excise rulings" after "inconsistency" and inserting "(other than indirect tax or excise rulings)" at the end of the table heading, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
357-75(1A)
If:
(a)
2 inconsistent *indirect tax or excise rulings apply to you; and
(b)
the rulings are both *public rulings;
then, to the extent of the inconsistency, you may rely on either of the rulings.
History
S 357-75(1A) inserted by No 74 of 2010, s 3 and Sch 2 item 32, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
357-75(1B)
If:
(a)
2 inconsistent *indirect tax or excise rulings apply to you; and
(b)
at least one of the rulings is not a *public ruling;
then, to the extent of the inconsistency:
(c)
the later ruling is taken to apply from the later of:
(i)
the time it is made; and
(ii)
the time (if any) specified in the ruling as being the time from which it begins to apply; and
(d)
the earlier ruling is taken to cease to apply at that later time.
History
S 357-75(1B) inserted by No 74 of 2010, s 3 and Sch 2 item 32, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
357-75(2)
If 3 or more rulings apply to you and the rulings are inconsistent, apply the rules in this section to each combination of 2 rulings in the order in which they were made.
History
S 357-75(2) amended by No 74 of 2010, s 3 and Sch 2 item 33, by substituting "this section" for "the table", effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
History
S 357-75 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 357-80
357-80
CONTRACTS FOR SCHEMES
For the purposes of this Part, if a contract requiring a *scheme has been entered into, the scheme is taken to have begun to be carried out.
History
S 357-80 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 357-85
357-85
EFFECT ON RULING IF RELEVANT PROVISION RE-ENACTED
If:
(a)
the Commissioner makes a ruling about a relevant provision (the
old provision
); and
(b)
that provision is re-enacted or remade (with or without modifications, and whether or not the old provision is repealed);
the ruling is taken also to be a ruling about that provision as re-enacted or remade (the
new provision
), but only so far as the new provision expresses the same ideas as the old provision.
Note 1:
Section 357-55 specifies the relevant provisions.
Note 2:
Ideas in taxation provisions are not necessarily different just because different forms of words are used: see section 15AC of the Acts Interpretation Act 1901 and section 1-3 of the Income Tax Assessment Act 1997.
History
S 357-85 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 357-90
357-90
VALIDITY OF RULING NOT AFFECTED BY FORMAL DEFECT
The validity of a ruling is not affected merely because a provision of this Part relating to the form of the ruling or the procedure for making it has not been complied with.
History
S 357-90 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
Common rules for public and private rulings
SECTION 357-95
357-95
ELECTRONIC COMMUNICATIONS
A communication between the Commissioner and another entity made for the purposes of a *public ruling or *private ruling may be made electronically.
History
S 357-95 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
357-100
357-100
(Repealed) SECTION 357-100 EVIDENCE
(Repealed by No 64 of 2020)
History
S 357-100 repealed by No 64 of 2020, s 3 and Sch 3 item 309, effective 1 October 2020. For transitional provisions, see note under s 16-153(7). S 357-100 formerly read:
SECTION 357-100 EVIDENCE
357-100
The production of:
(a)
a *public ruling or *private ruling; or
(b)
a document signed by the Commissioner, a *Second Commissioner or a *Deputy Commissioner, purporting to be a copy of the ruling or of a notice of withdrawal of a public ruling;
is conclusive evidence of the proper making of the ruling, or of the withdrawal of the public ruling.
S 357-100 amended by No 39 of 2012, s 3 and Sch 4 item 24, by substituting "*Second Commissioner or a *Deputy Commissioner" for "Second Commissioner or a Deputy Commissioner" in para (b), effective 15 April 2012.
S 357-100 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
Common rules for private and oral rulings
SECTION 357-105
FURTHER INFORMATION MUST BE SOUGHT
357-105(1)
If the Commissioner considers that further information is required to make a *private ruling or an *oral ruling, the Commissioner must request the applicant to give that information to him or her.
Note:
The Commissioner should make a private ruling within 60 days. However, if the Commissioner requests further information under this section, that period is extended: see subsection 359-50(2).
357-105(2)
The Commissioner may decline to make the ruling if the applicant does not give the information to the Commissioner within a reasonable time.
Note:
The Commissioner must give the applicant written reasons for declining to make a private ruling: see section 359-35.
History
S 357-105 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 357-110
ASSUMPTIONS IN MAKING PRIVATE OR ORAL RULING
357-110(1)
If the Commissioner considers that the correctness of a *private ruling or an *oral ruling would depend on which assumptions were made about a future event or other matter, the Commissioner may:
(a)
decline to make the ruling; or
(b)
make such of the assumptions as the Commissioner considers to be most appropriate.
357-110(2)
Before making the ruling, the Commissioner must:
(a)
tell the applicant which assumptions (if any) the Commissioner proposes to make; and
(b)
give the applicant a reasonable opportunity to respond.
Note:
The Commissioner should make a private ruling within 60 days. However, if the Commissioner tells the applicant about assumptions the Commissioner proposes to make under this section, that period is extended: see subsection 359-50(2).
History
S 357-110 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 357-115
357-115
ADDITIONAL INFORMATION PROVIDED BY APPLICANT
In considering an application for a *private ruling or an *oral ruling, the Commissioner may take into account additional information provided by the applicant after the application was made (whether in response to a request under section 357-105 or otherwise).
History
S 357-115 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 357-120
357-120
COMMISSIONER MAY TAKE INTO ACCOUNT INFORMATION FROM THIRD PARTIES
In making a *private ruling or an *oral ruling, the Commissioner may take into account any relevant information provided by an entity other than the applicant (whenever it was provided) if the Commissioner:
(a)
tells the applicant what that information is and that the Commissioner intends to take the information into account; and
(b)
gives the applicant a reasonable opportunity to respond before making the ruling.
Note:
The Commissioner should make a private ruling within 60 days. However, if the Commissioner tells the applicant about third party information under this section, that period is extended: see subsection 359-50(2).
History
S 357-120 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 357-125
357-125
APPLICATIONS AND OBJECTIONS NOT TO AFFECT OBLIGATIONS AND POWERS
The fact that you have applied for a *private ruling or an *oral ruling, or have made an objection against a private ruling, does not affect:
(a)
your obligation to lodge a return or do anything else; or
(b)
the Commissioner's power to make or amend an assessment or do anything else.
History
S 357-125 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
Division 358 - Public rulings
History
Div 357 to Div 361 substituted for Div 360 by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions and former wording of Div 360, see note under Div 357 heading.
Guide to Division 358
SECTION 358-1
WHAT THIS DIVISION IS ABOUT
A public ruling is an expression of the Commissioner's opinion of the way in which a relevant provision applies, or would apply, to entities generally or a class of entities.
The Commissioner must publish the ruling.
A public ruling may be withdrawn.
Note:
Division 357 has some rules that relate to rulings generally.
History
S 358-1 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Making public rulings
|
| 358-5 |
What is a public ruling? |
| 358-10 |
Application of public rulings |
| 358-15 |
When a public ruling ceases to apply |
|
Withdrawing public rulings
|
| 358-20 |
Withdrawing public rulings |
Making public rulings
SECTION 358-5
WHAT IS A PUBLIC RULING?
358-5(1)
The Commissioner may make a written ruling on the way in which the Commissioner considers a relevant provision applies or would apply to:
(a)
entities generally or a class of entities; or
(b)
entities generally, or a class of entities, in relation to a class of *schemes; or
(c)
entities generally, or a class of entities, in relation to a particular scheme.
Note:
Section 357-55 specifies the relevant provisions.
358-5(2)
Such a ruling may cover any matter involved in the application of the provision.
358-5(3)
Such a ruling is a
public ruling
if it:
(a)
is published; and
(b)
states that it is a public ruling.
358-5(4)
The Commissioner must, by notifiable instrument, publish notice of the making of a *public ruling.
Note:
The validity of a ruling is not affected merely because a provision of this Part relating to the form of the ruling or the procedure for making it has not been complied with: see section 357-90.
History
S 358-5(4) amended by No 64 of 2020, s 3 and Sch 3 item 310, by substituting "must, by notifiable instrument, publish notice of the making of a *public ruling" for "must publish notice of the making of a *public ruling in the Gazette", effective 1 October 2020. For transitional provisions, see note under s 16-153(7).
History
S 358-5 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 358-10
APPLICATION OF PUBLIC RULINGS
358-10(1)
A *public ruling applies from the time it is published or from such earlier or later time as is specified in the ruling.
358-10(2)
A *public ruling, other than an *indirect tax or excise ruling, that relates to a *scheme does not apply to you if the scheme has begun to be carried out when the ruling is published and:
(a)
the ruling changes the Commissioner's general administrative practice; and
(b)
the ruling is less favourable to you than the practice.
History
S 358-10(2) amended by No 74 of 2010, s 3 and Sch 2 item 34, by inserting ", other than an *indirect tax or excise ruling," after "*public ruling", effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
History
S 358-10 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 358-15
WHEN A PUBLIC RULING CEASES TO APPLY
358-15(1)
A *public ruling may specify the time at which it ceases to apply.
358-15(2)
If a *public ruling does not do this, it applies until it is withdrawn.
History
S 358-15 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
Withdrawing public rulings
SECTION 358-20
WITHDRAWING PUBLIC RULINGS
358-20(1)
The Commissioner may, by notifiable instrument, withdraw a *public ruling, either wholly or to an extent.
History
S 358-20(1) amended by No 64 of 2020, s 3 and Sch 3 items 311 and 312, by inserting ", by notifiable instrument," and omitting ", by publishing notice of the withdrawal" after "to an extent", effective 1 October 2020. For transitional provisions, see note under s 16-153(7).
358-20(2)
The withdrawal takes effect from the time specified in the instrument. That time must not be before the day after the instrument is registered on the Federal Register of Legislation under the Legislation Act 2003.
History
S 358-20(2) amended by No 64 of 2020, s 3 and Sch 3 item 313, by substituting "the instrument. That time must not be before the day after the instrument is registered on the Federal Register of Legislation under the Legislation Act 2003" for "the notice. That time must not be before the time the notice is published", effective 1 October 2020. For transitional provisions, see note under s 16-153(7).
358-20(3)
To the extent that a *public ruling, other than an *indirect tax or excise ruling, is withdrawn, it continues to apply to *schemes to which it applied that had begun to be carried out before the withdrawal but does not apply to schemes that begin to be carried out after the withdrawal.
Note:
A scheme is taken to have begun to be carried out if a contract requiring the scheme has been entered into: see section 357-80.
History
S 358-20(3) amended by No 74 of 2010, s 3 and Sch 2 item 34, by inserting ", other than an *indirect tax or excise ruling," after "*public ruling", effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
358-20(4)
(Repealed by No 64 of 2020)
History
S 358-20(4) repealed by No 64 of 2020, s 3 and Sch 3 item 314, effective 1 October 2020. For transitional provisions, see note under s 16-153(7). S 358-20(4) formerly read:
358-20(4)
The Commissioner must publish notice of the withdrawal of a *public ruling in the Gazette.
History
S 358-20 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
Division 359 - Private rulings
History
Div 357 to 361 substituted for Div 360 by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions and former wording of Div 360, see note under Div 357 heading.
Guide to Division 359
SECTION 359-1
WHAT THIS DIVISION IS ABOUT
A private ruling is an expression of the Commissioner's opinion of the way in which a relevant provision applies, or would apply, to you in relation to a specified scheme. Private rulings are usually made on application by you, your agent or your legal personal representative.
The Commissioner must make the ruling applied for, except in certain cases. If you are entitled to receive a ruling, you can object if the Commissioner takes too long to make it.
The Commissioner must record the ruling in writing and give a copy of it to you. The ruling must include certain details.
If you are dissatisfied with the ruling, you may object to it.
Note:
Division 357 has some common rules that affect private rulings.
History
S 359-1 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Private rulings
|
| 359-5 |
Private rulings |
| 359-10 |
Applying for a private ruling |
| 359-15 |
Private rulings to be given to applicants |
| 359-20 |
Private rulings must contain certain details |
| 359-25 |
Time of application of private rulings |
| 359-30 |
Ruling for trustee of a trust |
| 359-35 |
Dealing with applications |
| 359-40 |
Valuations |
| 359-45 |
Related rulings |
| 359-50 |
Delays in making private rulings |
| 359-55 |
Revised private rulings |
| 359-60 |
Objections, reviews and appeals relating to private rulings |
| 359-65 |
Commissioner may consider new information on objection |
| 359-70 |
Successful objection decision alters ruling |
Private rulings
SECTION 359-5
PRIVATE RULINGS
359-5(1)
The Commissioner may, on application, make a written ruling on the way in which the Commissioner considers a relevant provision applies or would apply to you in relation to a specified *scheme. Such a ruling is called a
private ruling
.
Note:
Section 357-55 specifies the relevant provisions.
359-5(2)
A *private ruling may cover any matter involved in the application of the provision.
History
S 359-5 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 359-10
APPLYING FOR A PRIVATE RULING
359-10(1)
You, your *agent or your *legal personal representative may apply to the Commissioner for a *private ruling.
359-10(2)
An application for a *private ruling must be made in the *approved form.
359-10(3)
You, your *agent or your *legal personal representative may withdraw the application at any time before the ruling is made. The Commissioner must confirm the withdrawal in writing.
History
S 359-10 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 359-15
359-15
PRIVATE RULINGS TO BE GIVEN TO APPLICANTS
The Commissioner makes a *private ruling by recording the ruling in writing and giving a copy of it to the applicant. The copy may be given electronically.
History
S 359-15 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 359-20
PRIVATE RULINGS MUST CONTAIN CERTAIN DETAILS
359-20(1)
A *private ruling must state that it is a private ruling.
359-20(2)
A *private ruling must identify the entity to whom it applies and specify the relevant *scheme and the relevant provision to which it relates.
Note 1:
The Commissioner must tell the applicant which assumptions the Commissioner made in making the ruling: see section 357-110.
Note 2:
Section 357-55 specifies the relevant provisions.
History
S 359-20 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 359-25
TIME OF APPLICATION OF PRIVATE RULINGS
359-25(1)
A *private ruling may specify the time from which it begins to apply and the time at which it ceases to apply.
359-25(2)
The specified start time, or end time, may be before, when, or after the *private ruling is made and may be determined by reference to a specified event.
359-25(3)
A *private ruling that does not specify a start time applies from the time when it is made.
359-25(4)
A *private ruling, other than an *indirect tax or excise ruling, that does not specify an end time ceases to apply at the end of the income year or other accounting period in which it started to apply.
Note:
A private ruling that:
(a) is an indirect tax or excise ruling; and
(b) does not specify an end time;
continues to apply until it is overridden by a later indirect tax or excise ruling: see subsection 357-75(1B).
History
S 359-25(4) amended by No 74 of 2010, s 3 and Sch 2 items 35 and 36, by inserting ", other than an *indirect tax or excise ruling," after "*private ruling" and inserting the note at the end, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
History
S 359-25 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 359-30
359-30
RULING FOR TRUSTEE OF A TRUST
A *private ruling given to or for the trustee of a trust and relating to the affairs of the trust also applies to:
(a)
if the ruling is not an *indirect tax or excise ruling - the beneficiaries of the trust; and
(b)
in any case - another trustee who is appointed to replace a trustee.
History
S 359-30 amended by No 74 of 2010, s 3 and Sch 2 items 37 and 38, by inserting "if the ruling is not an *indirect tax or excise ruling - " before "the beneficiaries" in para (a) and inserting "in any case - " before "another trustee" in para (b), effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
S 359-30 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 359-35
DEALING WITH APPLICATIONS
359-35(1)
The Commissioner must comply with an application for a *private ruling and make the ruling. However, this obligation is subject to subsections (2) and (3).
359-35(2)
The Commissioner may decline to make a *private ruling if:
(a)
the Commissioner considers that making the ruling would prejudice or unduly restrict the administration of a *taxation law; or
(b)
the matter sought to be ruled on is already being, or has been, considered by the Commissioner for you.
359-35(3)
The Commissioner may also decline to make a *private ruling if the matter sought to be ruled on is how the Commissioner would exercise a power under a relevant provision and the Commissioner has decided or decides whether or not to exercise the power.
Example:
Michael applies for a private ruling on the way in which the Commissioner might exercise the Commissioner's discretion under section 255-10 (deferring the payment time). Rather than make the ruling, the Commissioner decides to defer the time at which an amount would otherwise be payable by Michael.
Note:
The Commissioner may also decline to make a private ruling if:
(a) the Commissioner has requested the applicant to give further information under section 357-105 and the applicant has not given it to the Commissioner within a reasonable time; or
(b) the Commissioner considers that the correctness of a private ruling would depend on which assumptions were made about a future event or other matter (see section 357-110).
359-35(4)
The Commissioner must give the applicant written reasons for declining to make a *private ruling.
History
S 359-35 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 359-40
VALUATIONS
359-40(1)
If making a *private ruling would require determining the value of any thing, the Commissioner may:
(a)
refer the valuation to a valuer; or
(b)
refer a valuation provided by the applicant to a valuer for review.
Note:
The Commissioner may request further information: see section 357-105.
359-40(2)
If the Commissioner refers the valuation to a valuer, the Commissioner must tell the applicant that he or she has done so.
359-40(3)
When the valuer has completed its work in relation to the valuation, the Commissioner must tell the applicant that it has done so.
Note:
The Commissioner should make a private ruling within 60 days. However, if the Commissioner refers a valuation to a valuer under this section, that period is extended: see subsection 359-50(2).
359-40(4)
The Commissioner may charge the applicant an amount in accordance with the regulations for the valuer making or reviewing the valuation.
359-40(5)
This section does not apply to a valuation of a gift or contribution for the purposes of Division 30 of the Income Tax Assessment Act 1997.
History
S 359-40 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 359-45
359-45
RELATED RULINGS
If the Commissioner is making a *private ruling (the
first ruling
) you sought on the way in which, in the Commissioner's opinion, a relevant provision applies or would apply to you, the Commissioner may:
(a)
make the first ruling a ruling on the way in which another relevant provision applies or would apply to you; or
(b)
make an additional private ruling on the way in which:
(i)
another relevant provision applies or would apply; or
(ii)
a relevant provision applies or would apply to you in relation to a *scheme related to the scheme to which the first ruling applies.
Note:
Section 357-55 specifies the relevant provisions.
History
S 359-45 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 359-50
DELAYS IN MAKING PRIVATE RULINGS
359-50(1)
The applicant for a *private ruling may give the Commissioner a written notice requiring him or her to make the ruling if, at the end of 60 days after the application was made, the Commissioner has neither:
(a)
made the ruling; nor
(b)
told the applicant that the Commissioner has declined to make the ruling.
359-50(2)
The 60 day period mentioned in subsection (1) is extended in a circumstance applicable under the table by the extension period applicable to that circumstance. If 2 or more circumstances are applicable, ignore any overlap between the periods of extension.
|
Extending the 60 day period
|
|
Item
|
If the Commissioner, during the 60 day period:
|
The 60 day period is extended by the number of days in this period:
|
| 1 |
requests further information under section 357-105 |
the period starting on the day the information was requested and ending on the day it is received by the Commissioner |
| 2 |
tells the applicant about assumptions the Commissioner proposes to make under section 357-110 |
the period starting on the day the Commissioner tells the applicant and ending on the day on which the Commissioner receives the applicant's response about the assumptions |
| 3 |
tells the applicant about information provided by a third party that the Commissioner proposes to take into account under section 357-120 |
the period starting on the day the Commissioner tells the applicant and ending on the day on which the Commissioner receives the applicant's response about the information |
| 4 |
refers a valuation to a valuer under section 359-40 |
the period starting on the day the Commissioner tells the applicant about the referral and ending on the day on which the Commissioner tells the applicant that the valuer has completed its work in relation to the valuation |
359-50(3)
The applicant may object, in the manner set out in Part IVC, against the Commissioner's failure to make the ruling if the Commissioner:
(a)
does not make the ruling within 30 days of the notice under subsection (1) being given; and
(b)
has not otherwise declined to make the ruling by the end of that period.
359-50(4)
The applicant must lodge with the objection a draft *private ruling.
History
S 359-50 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 359-55
REVISED PRIVATE RULINGS
359-55(1)
The Commissioner may make a revised *private ruling that applies to you if:
(a)
the Commissioner had previously made a private ruling that applies to you; and
(b)
if the ruling is not an *indirect tax or excise ruling - when the Commissioner makes the revised private ruling:
(i)
the *scheme to which the earlier ruling relates has not begun to be carried out; and
(ii)
if the earlier ruling relates to an income year or other accounting period - that year or period has not begun.
Note:
Your private ruling may be affected by a later inconsistent ruling: see section 357-75.
History
S 359-55(1) amended by No 74 of 2010, s 3 and Sch 2 items 39 and 40, by inserting "if the ruling is not an *indirect tax or excise ruling - " before "when" in para (b) and omitting "public" after "later inconsistent" in the note, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
359-55(2)
The Commissioner must give you a copy of the revised *private ruling. The copy may be given electronically.
359-55(3)
The Commissioner may make the revised *private ruling whether or not there is an application for the revised ruling.
History
S 359-55(3) amended by No 74 of 2010, s 3 and Sch 2 item 41, by omitting "in the circumstances mentioned in paragraph (1)(b)" after "revised *private ruling", effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
359-55(4)
When the revised *private ruling is made, the ruling in its initial form stops applying to you.
359-55(5)
However, if:
(a)
the *private ruling is an *indirect tax or excise ruling; and
(b)
the revised private ruling specifies the time from which the revision begins to apply (being a time afterthe time the revision is made);
the ruling in its initial form stops applying to you at the time so specified.
History
S 359-55(5) inserted by No 74 of 2010, s 3 and Sch 2 item 42, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
History
S 359-55 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 359-60
OBJECTIONS, REVIEWS AND APPEALS RELATING TO PRIVATE RULINGS
359-60(1)
You may object against a *private ruling that applies to you in the manner set out in Part IVC if you are dissatisfied with it.
359-60(2)
The ruling is taken to be a taxation decision (within the meaning of that Part).
359-60(3)
However, you cannot object against a *private ruling if:
(a)
there is an assessment for you for the income year or other accounting period to which the ruling relates; or
(b)
the ruling relates to *withholding tax or *mining withholding tax that has become due and payable; or
(c)
all of the following subparagraphs apply:
(i)
the ruling relates to *excise duty, or another amount, payable in relation to the goods under an *excise law;
(ii)
the Commissioner has made a decision about the excise duty, or other amount, payable in relation to those goods;
(iii)
the decision is reviewable under an excise law.
History
S 359-60(3) amended by No 74 of 2010, s 3 and Sch 2 item 43, by inserting para (c) at the end, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
History
S 359-60 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 359-65
COMMISSIONER MAY CONSIDER NEW INFORMATION ON OBJECTION
359-65(1)
In deciding whether to allow (wholly or in part), or to disallow, an objection under Part IVC against a *private ruling, the Commissioner may consider any additional information that the Commissioner did not consider when making the ruling.
359-65(2)
For information you do not have, the Commissioner must tell you what the information is and give you a reasonable opportunity to respond before allowing or disallowing the objection.
359-65(3)
However, if the Commissioner considers that the additional information is such that the *scheme to which the application related is materially different from the scheme to which the ruling relates:
(a)
the Commissioner must request the applicant to make an application for another *private ruling; and
(b)
the objection is taken not to have been made.
History
S 359-65 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 359-70
359-70
SUCCESSFUL OBJECTION DECISION ALTERS RULING
A *private ruling has effect as altered by an objection decision (within the meaning of Part IVC) made by the Commissioner if:
(a)
the Commissioner made the decision allowing, wholly or in part, a taxation objection (within the meaning of that Part) against the ruling; and
(b)
the period in which an appeal against, or an application for the review of, the decision may be made has ended without such an appeal or application being made.
Note:
See sections 14ZZC and 14ZZN for the time limits.
History
S 359-70 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
Division 360 - Oral rulings
History
Div 357 to 361 substituted for Div 360 by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions and former wording of Div 360, see note under Div 357 heading.
Guide to Division 360
SECTION 360-1
WHAT THIS DIVISION IS ABOUT
An oral ruling is an expression of the Commissioner's opinion of the way in which a relevant provision applies, or would apply, to you. Oral rulings are given on oral application by you or your legal personal representative.
Oral rulings can only be given for individuals.
The Commissioner must give the ruling unless he or she considers that the advice you are seeking relates to a business matter or a complex matter.
The Commissioner must give the ruling orally and must give you a registration identifier for the ruling.
Note:
Division 357 has some common rules that affect oral rulings.
History
S 360-1 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Oral rulings
|
| 360-5 |
Applying for and making of oral rulings |
| 360-10 |
Withdrawing an application for an oral ruling |
| 360-15 |
Commissioner determinations |
Oral rulings
SECTION 360-5
APPLYING FOR AND MAKING OF ORAL RULINGS
Applying for oral rulings
360-5(1)
If you are an individual, you or your *legal personal representative may apply to the Commissioner for advice on the way in which the Commissioner considers a relevant provision applies or would apply to you in relation to a specified *scheme.
Note:
Section 357-55 specifies the relevant provisions.
History
S 360-5(1) amended by No 96 of 2014, s 3 and Sch 1 item 98, by omitting "(other than a provision about *MRRT)" after "a relevant provision", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 360-5(1) amended by No 14 of 2012, s 3 and Sch 1 item 33, by inserting "(other than a provision about *MRRT)", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
360-5(2)
An application under this section must be made orally and in the manner determined under section 360-15.
360-5(2A)
You or your *legal personal representative must not apply for advice under this section in relation to:
(a)
an *indirect tax law (other than the *fuel tax law); or
(b)
an *excise law.
History
S 360-5(2A) inserted by No 74 of 2010, s 3 and Sch 2 item 45, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling" in s 2(1).
Making of oral rulings
360-5(3)
The Commissioner must give you or your *legal personal representative that advice unless:
(a)
the Commissioner considers that the advice sought relates to a *business matter or a complex matter; or
(b)
the matter sought to be ruled on is already being, or has been, considered by the Commissioner for you.
That advice is an
oral ruling
.
Note:
The Commissioner may also decline to make an oral ruling if:
(a) the Commissioner has requested you to give further information under section 357-105 and you have not given it to the Commissioner; or
(b) the Commissioner considers that the correctness of an oral ruling would depend on which assumptions were made about a future event or other matter (see section 357-110).
360-5(4)
The Commissioner must give that advice orally and in the manner determined under section 360-15. That advice must include a registration identifier for the ruling.
Note:
The Commissioner must tell you which assumptions the Commissioner made in making the ruling: see section 357-110.
360-5(5)
You are not entitled to receive a written record of that advice.
Note:
However, you may be able to apply for a private ruling on the matter under Division 359.
History
S 360-5 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 360-10
WITHDRAWING AN APPLICATION FOR AN ORAL RULING
360-10(1)
You or your *legal personal representative may withdraw an application under section 360-5 before the Commissioner makes the *oral ruling.
360-10(2)
The withdrawal must be done orally and in the manner determined under section 360-15.
History
S 360-10 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 360-15
360-15
COMMISSIONER DETERMINATIONS
The Commissioner must, by writing, determine:
(a)
the manner in which oral applications are to be made under section 360-5 or are to be withdrawn; and
(b)
the manner in which the Commissioner is to give oral advice under that section.
History
S 360-15 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
Division 361 - Non-ruling advice and general administrative practice
History
Div 357 to 361 substituted for Div 360 by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions and former wording of Div 360, see note under Div 357 heading.
SECTION 361-5
NON-RULING ADVICE AND GENERAL ADMINISTRATIVE PRACTICE
361-5(1)
You are not liable to pay the *general interest charge or the *shortfall interest charge under a relevant provision to the extent that the charge would relate to a *shortfall amount or a *scheme shortfall amount that was caused by:
(a)
you reasonably relying in good faith on:
(i)
advice (other than a ruling) given to you or your *agent by the Commissioner; or
(ii)
a statement in a publication approved in writing by the Commissioner;
unless the advice, or the statement or publication, is labelled as non-binding; or
(b)
you reasonably relying in good faith on the Commissioner's general administrative practice.
Note:
Section 357-55 specifies the relevant provisions.
History
S 361-5(1) amended by No 56 of 2010, s 3 and Sch 6 items 95 and 96, by omitting "1" in note 1 and repealing note 2, applicable in relation to things done on or after 4 June 2010. Note 2 formerly read:
Note 2:
Section 284-215 also provides protection from administrative penalties for similar reliance on advice, statements or general administrative practice.
361-5(2)
However, subsection (1) does not apply to any *general interest charge accruing more than 21 days after the Commissioner notifies you of the correct position.
361-5(3)
(Repealed by No 56 of 2010)
History
S 361-5(3) repealed by No 56 of 2010, s 3 and Sch 6 item 97, applicable in relation to things done on or after 4 June 2010. S 361-5(3) formerly read:
361-5(3)
Ignore the operation of section 284-215 in applying subsection (1).
S 361-5 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
Division 362 - Rulings by Industry Innovation and Science Australia that activities are not ineligible activities
History
Div 362 heading amended by No 101 of 2021, s 3 and Sch 1 item 5(e), by substituting "
Industry Innovation and Science Australia
" for "
Innovation and Science Australia
", effective 11 September 2021.
Div 362 heading amended by No 63 of 2016, s 3 and Sch 1 item 48(d), by substituting "
Innovation and Science Australia
" for "
Innovation Australia
", effective 20 October 2016.
Div 362 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
Guide to Division 362
SECTION 362-1
WHAT THIS DIVISION IS ABOUT
Industry Innovation and Science Australia may make public rulings and private rulings expressing its view on whether activities are not ineligible activities for the purposes of applying capital gains tax provisions to venture capital investments.
Note:
An entity's involvement in ineligible activities can affect whether an investment is an eligible venture capital investment for the purpose of accessing a capital gains tax exemption under Subdivision 118-F of the Income Tax Assessment Act 1997.
History
S 362-1 amended by No 101 of 2021, s 3 and Sch 1 item 5(c), by substituting "Industry Innovation and Science Australia" for "Innovation and Science Australia", effective 11 September 2021.
S 362-1 amended by No 63 of 2016, s 3 and Sch 1 item 48(c), by substituting "Innovation and Science Australia" for "Innovation Australia", effective 20 October 2016.
S 362-1 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Public rulings by Industry Innovation and Science Australia
|
| 362-5 |
Industry Innovation and Science Australia may make public rulings on a specified class of activities |
| 362-10 |
Application of public rulings |
| 362-15 |
When a public ruling ceases to apply |
| 362-20 |
Withdrawing public rulings |
|
Private rulings by Industry Innovation and Science Australia
|
| 362-25 |
Industry Innovation and Science Australia may make private rulings on a specified activity |
| 362-30 |
Applying for a private ruling |
| 362-35 |
Industry Innovation and Science Australia must give notice of its decision |
| 362-40 |
Private rulings must contain certain details |
| 362-45 |
Application of private rulings |
| 362-50 |
Delays in making private rulings |
| 362-55 |
When a private ruling ceases to apply |
| 362-60 |
Withdrawing private rulings |
|
General provisions
|
| 362-65 |
When rulings are binding on the Commissioner and Industry Innovation and Science Australia |
| 362-70 |
Application of common rules under Subdivision 357-B |
| 362-75 |
Application of Divisions 358 and 359 |
Public rulings by Industry Innovation and Science Australia
History
Subdiv 362-5 heading amended by No 101 of 2021, s 3 and Sch 1 item 5(e), by substituting "
Industry Innovation and Science Australia
" for "
Innovation and Science Australia
", effective 11 September 2021.
SECTION 362-5
INDUSTRY INNOVATION AND SCIENCE AUSTRALIA MAY MAKE PUBLIC RULINGS ON A SPECIFIED CLASS OF ACTIVITIES
362-5(1)
*Industry Innovation and Science Australia may make a ruling that Industry Innovation and Science Australia considers that activities included in a specified class of activities:
(a)
are not ineligible activities for the purposes of subsections 118-425(13) and 118-427(14) of the Income Tax Assessment Act 1997; or
(b)
in specified circumstances, are not such ineligible activities;
if Industry Innovation and Science Australia is satisfied that the activities included in that class are not such ineligible activities, or are not in those circumstances such ineligible activities, as the case requires.
Note:
An activity will not be an ineligible activity for the purposes of subsections 118-425(13) and 118-427(14) of the Income Tax Assessment Act 1997 if, for example, it is covered by subsections 118-425(13A) and 118-427(14A) of that Act.
History
S 362-5(1) amended by No 101 of 2021, s 3 and Sch 1 items 5(a) and (c), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia" and "Industry Innovation and Science Australia" for "Innovation and Science Australia" (wherever occurring), effective 11 September 2021.
S 362-5(1) amended by No 124 of 2018, s 3 and Sch 3 item 4, by inserting the note at the end of the subsection, effective 1 January 2019 and applicable in relation to investments made on or after 1 July 2018.
S 362-5(1) amended by No 63 of 2016, s 3 and Sch 1 items 48(a) and (c), by substituting "*Innovation and Science Australia" for "*Innovation Australia" and "Innovation and Science Australia" for "Innovation Australia" (wherever occurring), effective 20 October 2016.
362-5(2)
Such a ruling is a
public ruling
if it:
(a)
is published; and
(b)
states that it is a public ruling.
362-5(3)
*Industry Innovation and Science Australia must, by notifiable instrument, publish notice of the making of a *public ruling.
Note:
The validity of a ruling is not affected merely because a provision of this Part relating to the form of the ruling or the procedure for making it has not been complied with: see section 357-90.
History
S 362-5(3) amended by No 101 of 2021, s 3 and Sch 1 item 5(a), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia", effective 11 September 2021.
S 362-5(3) amended by No 64 of 2020, s 3 and Sch 3 item 315, by substituting "must, by notifiable instrument, publish notice of the making of a *public ruling" for "must publish notice of the making of a *public ruling in the Gazette", effective 1 October 2020. For transitional provisions, see note under s 16-153(7).
S 362-5(3) amended by No 63 of 2016, s 3 and Sch 1 item 48(a), by substituting "*Innovation and Science Australia" for "*Innovation Australia", effective 20 October 2016.
History
S 362-5 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
SECTION 362-10
362-10
APPLICATION OF PUBLIC RULINGS
A *public ruling under this Division applies from the time it is published or from such earlier or later time as is specified in the ruling.
History
S 362-10 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
SECTION 362-15
WHEN A PUBLIC RULING CEASES TO APPLY
362-15(1)
A *public ruling under this Division may specify the time at which it ceases to apply.
362-15(2)
If a *public ruling under this Division does not do this, it applies until it is withdrawn.
History
S 362-15 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
SECTION 362-20
WITHDRAWING PUBLIC RULINGS
362-20(1)
*Industry Innovation and Science Australia must, by notifiable instrument, withdraw a *public ruling made under this Division if:
(a)
it is no longer satisfied of the matter about which it was required to be satisfied under subsection 362-5(1); or
(b)
the ruling is inconsistent with a decision of a court.
History
S 362-20(1) amended by No 101 of 2021, s 3 and Sch 1 item 5(a), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia", effective 11 September 2021.
S 362-20(1) amended by No 64 of 2020, s 3 and Sch 3 items 316 and 317, by inserting ", by notifiable instrument," and omitting ", by publishing notice of the withdrawal," after "under this Division", effective 1 October 2020. For transitional provisions, see note under s 16-153(7).
S 362-20(1) amended by No 63 of 2016, s 3 and Sch 1 item 48(a), by substituting "*Innovation and Science Australia" for "*Innovation Australia", effective 20 October 2016.
362-20(2)
The withdrawal takes effect from the time specified in the instrument. That time must not be before the day after the instrument is registered on the Federal Register of Legislation under the Legislation Act 2003.
History
362-20(2) amended by No 64 of 2020, s 3 and Sch 3 item 318, by substituting "the instrument. That time must not be before the day after the instrument is registered on the Federal Register of Legislation under the Legislation Act 2003" for "the notice. That time must not be before the time the notice is published", effective 1 October 2020. For transitional provisions, see note under s 16-153(7).
362-20(3)
(Repealed by No 64 of 2020)
History
S 362-20(3) repealed by No 64 of 2020, s 3 and Sch 3 item 319, effective 1 October 2020. For transitional provisions, see note under s 16-153(7). S 362-20(3) formerly read:
362-20(3)
*Innovation and Science Australia must publish notice of the withdrawal of the ruling in the Gazette.
S 362-20(3) amended by No 63 of 2016, s 3 and Sch 1 item 48(a), by substituting "*Innovation and Science Australia" for "*Innovation Australia", effective 20 October 2016.
History
S 362-20 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
Private rulings by Industry Innovation and Science Australia
History
Subdiv 362-25 heading amended by No 101 of 2021, s 3 and Sch 1 item 5(e), by substituting "
Industry Innovation and Science Australia
" for "
Innovation and Science Australia
", effective 11 September 2021.
SECTION 362-25
INDUSTRY INNOVATION AND SCIENCE AUSTRALIA MAY MAKE PRIVATE RULINGS ON A SPECIFIED ACTIVITY
362-25(1)
*Industry Innovation and Science Australia may, on application, make a ruling that Industry Innovation and Science Australia considers that a specified activity:
(a)
is not an ineligible activity for the purposes of subsections 118-425(13) and 118-427(14) of the Income Tax Assessment Act 1997; or
(b)
in specified circumstances, is not such an ineligible activity;
if Industry Innovation and Science Australia is satisfied that the activity is not such an ineligible activity, or is not in those circumstances such an ineligible activity, as the case requires.
Note:
An activity will not be an ineligible activity for the purposes of subsections 118-425(13) and 118-427(14) of the Income Tax Assessment Act 1997 if, for example, it is covered by subsections 118-425(13A) and 118-427(14A) of that Act.
History
S 362-25(1) amended by No 101 of 2021, s 3 and Sch 1 items 5(a) and (c), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia" and "Industry Innovation and Science Australia" for "Innovation and Science Australia" (wherever occurring), effective 11 September 2021.
S 362-25(1) amended by No 124 of 2018, s 3 and Sch 3 item 4, by inserting the note at the end of the subsection, effective 1 January 2019 and applicable in relation to investments made on or after 1 July 2018.
S 362-25(1) amended by No 63 of 2016, s 3 and Sch 1 items 48(a) and (c), by substituting "*Innovation and Science Australia" for "*Innovation Australia" and "Innovation and Science Australia" for "Innovation Australia" (wherever occurring), effective 20 October 2016.
362-25(2)
Such a ruling is a
private ruling
.
Note:
Decisions making such a ruling, and decisions refusing to make such a ruling, are reviewable under Part 5 of the Venture Capital Act 2002.
362-25(3)
In considering whether to make a *private ruling under this Division, *Industry Innovation and Science Australia must apply any principles made under subsection (4).
History
S 362-25(3) amended by No 101 of 2021, s 3 and Sch 1 item 5(a), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia", effective 11 September 2021.
S 362-25(3) amended by No 63 of 2016, s 3 and Sch 1 item 48(a), by substituting "*Innovation and Science Australia" for "*Innovation Australia", effective 20 October 2016.
362-25(4)
*Industry Innovation and Science Australia may, by legislative instrument, make principles about making *private rulings under this Division.
History
S 362-25(4) amended by No 101 of 2021, s 3 and Sch 1 item 5(a), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia", effective 11 September 2021.
S 362-25(4) amended by No 63 of 2016, s 3 and Sch 1 item 48(a), by substituting "*Innovation and Science Australia" for "*Innovation Australia", effective 20 October 2016.
362-25(5)
A failure to comply with subsection (3) does not affect the validity of the ruling.
History
S 362-25 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
SECTION 362-30
362-30
APPLYING FOR A PRIVATE RULING
A *general partner of a *limited partnership registered as a *VCLP, an *ESVCLP or an *AFOF may, in the *form approved by *Industry Innovation and Science Australia, apply to Industry Innovation and Science Australia for a *private ruling under this Division.
History
S 362-30 amended by No 101 of 2021, s 3 and Sch 1 items 5(a) and (c), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia" and "Industry Innovation and Science Australia" for "Innovation and Science Australia", effective 11 September 2021.
S 362-30 amended by No 63 of 2016, s 3 and Sch 1 items 48(a) and (c), by substituting "*Innovation and Science Australia" for "*Innovation Australia" and "Innovation and Science Australia" for "Innovation Australia", effective 20 October 2016.
S 362-30 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
SECTION 362-35
INDUSTRY INNOVATION AND SCIENCE AUSTRALIA MUST GIVE NOTICE OF ITS DECISION
362-35(1)
If *Industry Innovation and Science Australia makes a *private ruling under this Division, Industry Innovation and Science Australia must notify the *general partner, and the Commissioner, as soon as practicable after the ruling is made.
History
S 362-35(1) amended by No 101 of 2021, s 3 and Sch 1 items 5(a) and (c), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia" and "Industry Innovation and Science Australia" for "Innovation and Science Australia", effective 11 September 2021.
S 362-35(1) amended by No 63 of 2016, s 3 and Sch 1 items 48(a) and (c), by substituting "*Innovation and Science Australia" for "*Innovation Australia" and "Innovation and Science Australia" for "Innovation Australia", effective 20 October 2016.
362-35(2)
If *Industry Innovation and Science Australia refuses to make a *private ruling under this Division, Industry Innovation and Science Australia must:
(a)
notify the *general partner as soon as practicable after the refusal; and
(b)
provide reasons for the refusal.
History
S 362-35(2) amended by No 101 of 2021, s 3 and Sch 1 items 5(a) and (c), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia" and "Industry Innovation and Science Australia" for "Innovation and Science Australia", effective 11 September 2021.
S 362-35(2) amended by No 63 of 2016, s 3 and Sch 1 items 48(a) and (c), by substituting "*Innovation and Science Australia" for "*Innovation Australia" and "Innovation and Science Australia" for "Innovation Australia", effective 20 October 2016.
History
S 362-35 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
SECTION 362-40
PRIVATE RULINGS MUST CONTAIN CERTAIN DETAILS
362-40(1)
A *private ruling under this Division must state that it is a private ruling.
362-40(2)
A *private ruling under this Division must identify the entity to whom it applies and specify the activity to which it relates.
Note:
Industry Innovation and Science Australia must tell the applicant which assumptions Industry Innovation and Science Australia made in making the ruling: see section 357-110.
History
S 362-40(2) amended by No 101 of 2021, s 3 and Sch 1 item 5(c), by substituting "Industry Innovation and Science Australia for "Innovation and Science Australia" (wherever occurring) in the note, effective 11 September 2021.
S 362-40(2) amended by No 63 of 2016, s 3 and Sch 1 item 48(c), by substituting "Innovation and Science Australia" for "Innovation Australia" (wherever occurring) in the note, effective 20 October 2016.
History
S 362-40 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
SECTION 362-45
362-45
APPLICATION OF PRIVATE RULINGS
A *private ruling under this Division applies from the time it is published or from such earlier or later time as is specified in the ruling.
History
S 362-45 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
SECTION 362-50
DELAYS IN MAKING PRIVATE RULINGS
362-50(1)
The applicant for a *private ruling under this Division may give *Industry Innovation and Science Australia a written notice requiring Industry Innovation and Science Australia to make the ruling if, at the end of 60 days after the application was made, Industry Innovation and Science Australia has neither:
(a)
made the ruling; nor
(b)
told the applicant that Industry Innovation and Science Australia has refused to make the ruling.
History
S 362-50(1) amended by No 101 of 2021, s 3 and Sch 1 items 5(a) and (c), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia" and "Industry Innovation and Science Australia" for "Innovation and Science Australia" (wherever occurring), effective 11 September 2021.
S 362-50(1) amended by No 63 of 2016, s 3 and Sch 1 items 48(a) and (c), by substituting "*Innovation and Science Australia" for "*Innovation Australia" and "Innovation and Science Australia" for "Innovation Australia" (wherever occurring), effective 20 October 2016.
362-50(2)
The 60 day period mentioned in subsection (1) is extended in a circumstance applicable under the table by the extension period applicable to that circumstance. If 2 or more circumstances are applicable, ignore any overlap between the periods of extension.
|
Extending the 60 day period
|
|
Item
|
If *Industry Innovation and Science Australia, during the 60 day period:
|
The 60 day period is extended by the number of days in this period:
|
| 1 |
requests further information under section 357-105 (as that section applies because of section 362-70) |
the period starting on the day the information was requested and ending on the day it is received by *Industry Innovation and Science Australia |
| 2 |
tells the applicant about assumptions *Industry Innovation and Science Australia proposes to make under section 357-110 (as that section applies because of section 362-70) |
the period starting on the day *Industry Innovation and Science Australia tells the applicant and ending on the day on which Industry Innovation and Science Australia receives the applicant's response about the assumptions |
| 3 |
tells the applicant about information provided by a third party that *Industry Innovation and Science Australia proposes to take into account under section 357-120 (as that section applies because of section 362-70) |
the period starting on the day *Industry Innovation and Science Australia tells the applicant and ending on the day on which Industry Innovation and Science Australia receives the applicant's response about the information |
History
S 362-50(2) amended by No 101 of 2021, s 3 and Sch 1 items 5(a), (c) and (d), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia" (wherever occurring), "Industry Innovation and Science Australia" for "Innovation and Science Australia" (wherever occurring) and "
*Industry Innovation and Science Australia
" for "
*Innovation and Science Australia
" in the table, effective 11 September 2021.
S 362-50(2) amended by No 63 of 2016, s 3 and Sch 1 items 48(a) and (c), by substituting "*Innovation and Science Australia" for "*Innovation Australia" and "Innovation and Science Australia" for "Innovation Australia" (wherever occurring) in the table, effective 20 October 2016.
362-50(3)
If *Industry Innovation and Science Australia:
(a)
does not make the ruling within 30 days of the notice under subsection (1) being given; and
(b)
has not otherwise declined to make the ruling by the end of that period;
Industry Innovation and Science Australia is taken to have refused to make the ruling at the end of that period.
Note:
Decisions refusing to make such a ruling are reviewable under Part 5 of the Venture Capital Act 2002.
History
S 362-50(3) amended by No 101 of 2021, s 3 and Sch 1 items 5(a) and (c), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia" and "Industry Innovation and Science Australia" for "Innovation and Science Australia", effective 11 September 2021.
S 362-50(3) amended by No 63 of 2016, s 3 and Sch 1 items 48(a) and (c), by substituting "*Innovation and Science Australia" for "*Innovation Australia" and "Innovation and Science Australia" for "Innovation Australia", effective 20 October 2016.
History
S 362-50 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
SECTION 362-55
WHEN A PRIVATE RULING CEASES TO APPLY
362-55(1)
A *private ruling under this Division may specify the time at which it ceases to apply.
362-55(2)
If a *private ruling under this Division does not do this, it applies until it is withdrawn.
History
S 362-55 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
SECTION 362-60
WITHDRAWING PRIVATE RULINGS
362-60(1)
*Industry Innovation and Science Australia must withdraw a *private ruling made under this Division if:
(a)
it is no longer satisfied of the matter about which it was required to be satisfied under subsection 362-25(1); or
(b)
the ruling is inconsistent with a decision of a court.
History
S 362-60(1) amended by No 101 of 2021, s 3 and Sch 1 item 5(a), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia", effective 11 September 2021.
S 362-60(1) amended by No 63 of 2016, s 3 and Sch 1 item 48(a), by substituting "*Innovation and Science Australia" for "*Innovation Australia", effective 20 October 2016.
362-60(2)
*Industry Innovation and Science Australia must give notice of the withdrawal to a *general partner of the *limited partnership to which the ruling related.
History
S 362-60(2) amended by No 101 of 2021, s 3 and Sch 1 item 5(a), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia", effective 11 September 2021.
S 362-60(2) amended by No 63 of 2016, s 3 and Sch 1 item 48(a), by substituting "*Innovation and Science Australia" for "*Innovation Australia", effective 20 October 2016.
History
S 362-60 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
General provisions
SECTION 362-65
WHEN RULINGS ARE BINDING ON THE COMMISSIONER AND INDUSTRY INNOVATION AND SCIENCE AUSTRALIA
362-65(1)
A ruling under this Division binds the Commissioner and *Industry Innovation and Science Australia in relation to an entity (whether or not the entity is aware of the ruling) if:
(a)
the ruling applies to the entity; and
(b)
the entity relies on the ruling by acting (or omitting to act) in accordance with the ruling.
History
S 362-65(1) amended by No 101 of 2021, s 3 and Sch 1 item 5(a), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia", effective 11 September 2021.
S 362-65(1) amended by No 63 of 2016, s 3 and Sch 1 item 48(a), by substituting "*Innovation and Science Australia" for "*Innovation Australia", effective 20 October 2016.
362-65(2)
If the ruling is withdrawn under this Division, it continues to bind the Commissioner and *Industry Innovation and Science Australia in relation to the entity until the end of the income year following the income year in which it is withdrawn, but only to the extent that the ruling affected investments made before the withdrawal took effect.
History
S 362-65(2) amended by No 101 of 2021, s 3 and Sch 1 item 5(a), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia", effective 11 September 2021.
S 362-65(2) amended by No 63 of 2016, s 3 and Sch 1 item 48(a), by substituting "*Innovation and Science Australia" for "*Innovation Australia", effective 20 October 2016.
History
S 362-65 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
SECTION 362-70
362-70
APPLICATION OF COMMON RULES UNDER SUBDIVISION 357-B
Despite section 357-50:
(a)
section 357-60 does not apply in relation to a ruling under this Division; and
(b)
sections 357-70, 357-85 and 357-95 apply, in relation to a ruling under this Division, to *Industry Innovation and Science Australia in the same way they apply to the Commissioner; and
(c)
section 357-100 applies:
(i)
in relation to a ruling under this Division as if a document referred to in paragraph 357-100(b) were required to be signed by a member of Industry Innovation and Science Australia, and not by a person referred to in that paragraph; and
(ii)
in relation to a *private ruling under this Division in the same way it applies to a *public ruling; and
(d)
sections 357-105 to 357-125 apply in relation to a ruling under this Division as if references in those sections to the Commissioner were references to Industry Innovation and Science Australia.
History
S 362-70 amended by No 101 of 2021, s 3 and Sch 1 items 5(a) and (c), by substituting "*Industry Innovation and Science Australia" for "*Innovation and Science Australia" in para (b) and "Industry Innovation and Science Australia" for "Innovation and Science Australia" in para (c)(i) and (d), effective 11 September 2021.
S 362-70 amended by No 63 of 2016, s 3 and Sch 1 items 48(a) and (c), by substituting "*Innovation and Science Australia" for "*Innovation Australia" in para (b) and "Innovation and Science Australia" for "Innovation Australia" in para (c)(i) and (d), effective 20 October 2016.
S 362-70 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
SECTION 362-75
APPLICATION OF DIVISIONS 358 AND 359
362-75(1)
Division 358 does not apply in relation to a *public ruling under this Division, or in relation to the making of such a ruling.
362-75(2)
Division 359 does not apply in relation to a *private ruling under this Division, or in relation to the making of such a ruling.
History
S 362-75 inserted by No 54 of 2016, s 3 and Sch 2 item 61, applicable in relation to the 2016-17 income year and later income years.
PART 5-10 - COMMISSIONER'S REMEDIAL POWER
History
Pt 5-10 inserted by No 15 of 2017, s 3 and Sch 1 item 3, effective 1 March 2017.
Division 370 - Commissioner's remedial power
History
Div 370 inserted by No 15 of 2017, s 3 and Sch 1 item 3, effective 1 March 2017.
Guide to Division 370
SECTION 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.
History
S 370-1 inserted by No 15 of 2017, s 3 and Sch 1 item 3, effective 1 March 2017.
Subdivision 370-A - Commissioner's remedial power
History
Subdiv 370-A inserted by No 15 of 2017, s 3 and Sch 1 item 3, effective 1 March 2017. No 15 of 2017, s 3 and Sch 1 item 4 contains the following provision:
4 Review of Subdivision 370-A in Schedule 1 to the
Taxation Administration Act 1953
(1)
During the 2 years starting on the third anniversary of the commencement of this item, the Minister may cause to be undertaken a review of the operation of Subdivision 370-A in Schedule 1 to the Taxation Administration Act 1953.
(2)
The persons undertaking the review must give to the Minister a written report of the review.
(3)
The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.
SECTION 370-5
COMMISSIONER'S REMEDIAL POWER
370-5(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.
370-5(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
370-5(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.
370-5(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.
370-5(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.
History
S 370-5 inserted by No 15 of 2017, s 3 and Sch 1 item 3, effective 1 March 2017.
SECTION 370-10
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.
History
S 370-10 inserted by No 15 of 2017, s 3 and Sch 1 item 3, effective 1 March 2017.
SECTION 370-15
REPEAL OF DETERMINATIONS
370-15(1)
The Commissioner may, by legislative instrument, repeal a determination made under section 370-5.
370-15(2)
A legislative instrument made under subsection (1) of this section may make an application, saving or transitional provision relating to the repeal.
370-15(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).
History
S 370-15 inserted by No 15 of 2017, s 3 and Sch 1 item 3, effective 1 March 2017.
SECTION 370-20
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.
History
S 370-20 inserted by No 15 of 2017, s 3 and Sch 1 item 3, effective 1 March 2017.
PART 5-25 - RECORD-KEEPING AND OTHER OBLIGATIONS RELATING TO TAXPAYERS
History
Pt 5-25 heading substituted by No 162 of 2015, s 3 and Sch 4 item 16, effective 30 November 2015. The heading formerly read:
PART 5-25 - RECORD-KEEPING AND OTHER OBLIGATIONS OF TAXPAYERS
Pt 5-25 inserted by No 91 of 2000.
Division 382 - Record-keeping
History
Div 382 inserted by No 73 of 2006, s 3 and Sch 5 item 51, effective 1 July 2006.
Guide to Division 382
SECTION 382-1
WHAT THIS DIVISION IS ABOUT
You are required to keep records of indirect tax transactions in accordance with this Division.
Deductible gift recipients are required to keep records in accordance with this Division.
History
S 382-1 amended by No 55 of 2007, s 3 and Sch 3 item 9, effective 12 April 2007.
S 382-1 inserted by No 73 of 2006, s 3 and Sch 5 item 51, effective 1 July 2006.
Subdivision 382-A - Keeping records of indirect tax transactions
History
Subdiv 382-A inserted by No 73 of 2006, s 3 and Sch 5 item 51, effective 1 July 2006.
SECTION 382-5
KEEPING RECORDS OF INDIRECT TAX TRANSACTIONS
Records of transactions
382-5(1)
You must:
(a)
keep records that record and explain all transactions and other acts you engage in that are relevant to a *supply, importation, acquisition, dealing, manufacture or entitlement to which this subsection applies; and
(b)
retain those records for the longest of:
(i)
5 years after the completion of the transactions or acts to which they relate; and
(ii)
the *period of review for any assessment of an *assessable amount to which those records, transactions or acts relate; and
(iii)
if such an assessment has been amended under Subdivision 155-B - the period of 4 years mentioned in paragraph 155-70(2)(a) (which provides for a refreshed period of review) that applies to the latest such amendment.
History
S 382-5(1) amended by No 39 of 2012, s 3 and Sch 1 item 223, by substituting para (b), effective 1 July 2012. For application provisions see note under s 8AAZLG(2).
Para (b) formerly read:
(b)
retain those records for at least 5 years after the completion of the transactions or acts to which they relate.
382-5(2)
Subsection (1) applies to:
(a)
a *taxable supply, *taxable importation, *creditable acquisition or *creditable importation made by you; or
(b)
a *supply made by you that is *GST-free or *input taxed; or
(c)
a *taxable dealing, in relation to *wine, on which you are liable for *wine tax; or
(d)
any other assessable dealing within the meaning of the *Wine Tax Act made by you; or
(e)
your entitlement to a *wine tax credit; or
(f)
a *taxable supply of a luxury car, or a *taxable importation of a luxury car, made by you; or
(g)
your entitlement to a special credit under the A New Tax System (Goods and Services Tax Transition) Act 1999 or the A New Tax System (Wine Equalisation Tax and Luxury Car Tax Transition) Act 1999; or
(h)
if you are entitled to a *fuel tax credit for fuel that you acquire, manufacture or import - the acquisition, manufacture or importation; or
(i)
if you are liable, as a recipient of a taxable supply, to pay the *GST on a taxable supply because of section 15C of the A New Tax System (Goods and Services Tax Transition) Act 1999 - the taxable supply.
History
S 382-5(2) amended by No 70 of 2015, s 3 and Sch 6 item 56, by substituting "*taxable dealing, in relation to *wine," for "*wine taxable dealing" in para (c), effective 25 June 2015.
382-5(3)
If you give the Commissioner a return that takes into account:
(a)
an *input tax credit that is attributable to a *tax period under subsection 29-10(4) of the *GST Act; or
(b)
a *fuel tax credit that is attributable to a tax period or *fuel tax return period under subsection 65-5(4) of the Fuel Tax Act 2006;
you must:
(c)
keep records that record and explain all transactions and other acts you engage in that are relevant to the acquisition or importation in question; and
(d)
retain those records for at least 5 years after the return was given to the Commissioner.
Records of elections, choices, estimates, determinations and calculations
382-5(4)
If you make any election, choice, estimate, determination or calculation under an *indirect tax law, you must:
(a)
keep records containing particulars of:
(i)
the election, choice, estimate, determination or calculation; and
(ii)
in the case of an estimate, determination or calculation - the basis on which, and the method by which, the estimate, determination or calculation was made; and
(b)
retain those records:
(i)
if the indirect tax law specifies circumstances in which the election, choice, estimate, determination or calculation ceases to have effect - for at least 5 years after the election, choice, estimate, determination or calculation ceased to have effect; or
(ii)
in any other case - for at least 5 years after the election, choice, estimate, determination or calculation was made.
382-5(5)
This section requires a record of an *arrangement entered into under section 153-50 of the *GST Act to be kept and retained by the party entering into the arrangement as principal. It does not require such a record to be kept or retained by the party entering into the arrangement as intermediary (within the meaning of that section).
History
S 382-5(5) amended by No 20 of 2010, s 3 and Sch 3 item 30, by substituting "intermediary (within the meaning of that section)" for "agent", applicable in relation to supplies and acquisitions made on or after 1 July 2010.
382-5(6)
This section requires records of a notice given under subsection 153-65(2) of the *GST Act to be kept and retained by both the entity giving the notice and the entity receiving it.
382-5(7)
Without limiting subsection (4), if you choose to apply Division 63 (non-profit sub-entities) of the *GST Act, you must:
(a)
keep records that record:
(i)
your choice to apply that Division; and
(ii)
each branch that is treated as a separate entity for the purposes of the *GST law; and
(iii)
each branch that has ceased to be treated as a separate entity for the purposes of the GST law; and
(b)
retain those records for at least 5 years after you revoke the choice.
Requirements of records
382-5(8)
The records must be:
(a)
in English, or readily accessible and easily convertible into English; and
(b)
such as to enable your liabilities and entitlements under an *indirect tax law to be readily ascertained.
Offence
382-5(9)
An entity commits an offence if:
(a)
the entity is required to keep or retain a record under this section; and
(b)
the entity does not keep or retain the record in accordance with this section.
Penalty: 30 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Note 3:
Section 288-25 imposes an administrative penalty if an entity does not keep or retain records as required by this section.
382-5(10)
Subsection (9) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
Defence
382-5(11)
Subsection (9) does not apply if:
(a)
the Commissioner notifies the entity that the entity does not need to retain the record; or
(b)
the entity is a company that has been finally dissolved.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (10): see subsection 13.3(3) of the Criminal Code.
382-5(12)
For the purposes of section 288-25, this section does not require an entity to retain a record if:
(a)
the Commissioner notifies the entity that the entity does not need to retain the record; or
(b)
the entity is a company that has been finally dissolved.
Note:
Section 288-25 imposes an administrative penalty if an entity does not keep or retain records as required by this section.
History
S 382-5 inserted by No 73 of 2006, s 3 and Sch 5 item 51, effective 1 July 2006.
Subdivision 382-B - Record keeping obligations of deductible gift recipients
History
Subdiv 382-B inserted by No 55 of 2007, s 3 and Sch 3 item 10, effective 12 April 2007.
SECTION 382-15
DEDUCTIBLE GIFT RECIPIENTS TO KEEP RECORDS
382-15(1)
A *deductible gift recipient must:
(a)
keep records that record and explain all transactions and other acts the deductible gift recipient engages in that are relevant to the deductible gift recipient's status as a deductible gift recipient; and
(b)
retain those records for at least 5 years after the completion of the transactions or acts to which they relate.
Note 1:
Section 288-25 imposes an administrative penalty if an entity does not keep or retain records as required by this section.
Note 2:
The Commissioner may request information from certain deductible gift recipients: see sections 353-20 and 426-40.
Requirements of records
382-15(2)
The records must be:
(a)
in English, or readily accessible and easily convertible into English; and
(b)
such as to show that the *deductible gift recipient uses each of the following only for the principal purpose of the fund, authority or institution:
(i)
gifts of money or property for that purpose;
(ii)
contributions described in item 7 or 8 of the table in section 30-15 of the Income Tax Assessment Act 1997 in relation to a *fund-raising event held for that purpose;
(iii)
money received by the deductible gift recipient because of such gifts or contributions.
Exception
382-15(3)
For the purposes of section 288-25, this section does not require a *deductible gift recipient to retain a record if:
(a)
the Commissioner notifies the deductible gift recipient that the deductible gift recipient does not need to retain the record; or
(b)
the deductible gift recipient is a company that has been finally dissolved.
History
S 382-15 inserted by No 55 of 2007, s 3 and Sch 3 item 10, effective 12 April 2007.
Division 384 - Education directions
History
Div 384 inserted by No 8 of 2019, s 3 and Sch 1 item 4, effective 1 April 2019 and applicable in relation to a failure referred to in subsection 384-10(1) in that Schedule that occurs on or after 1 July 2018 (including a failure to pay an amount that became payable before that day, and remains payable on or after that day).
SECTION 384-5
WHAT THIS DIVISION IS ABOUT
If the Commissioner reasonably believes that you have failed to comply with certain obligations arising under taxation laws, the Commissioner may give you a direction requiring a specified course of education to be undertaken.
History
S 384-5 inserted by No 8 of 2019, s 3 and Sch 1 item 4, effective 1 April 2019 and applicable in relation to a failure referred to in subsection 384-10(1) in that Schedule that occurs on or after 1 July 2018 (including a failure to pay an amount that became payable before that day, and remains payable on or after that day).
SECTION 384-10
WHEN A SUPERANNUATION GUARANTEE EDUCATION DIRECTION MAY BE GIVEN
384-10(1)
The Commissioner may give you a written direction (a
superannuation guarantee education direction
), if the Commissioner reasonably believes that an item of the following table applies to you.
Note:
For the requirements in the direction, see subsection 384-15(1).
History
S 384-10(1) amended by No 84 of 2022, s 3 and Sch 1 items 5-7, by substituting "The Commissioner may give you a written direction (a
superannuation guarantee education direction
)" for "This section applies to you, and the Commissioner may give you an education direction under section 384-15,", table items 2, 3 and 4 and inserting the note, effective 1 January 2023. Table items 2, 3 and 4 formerly read:
| 2 |
You fail to comply with an obligation to give a statement or information to the Commissioner under a taxation law set out in subsection (3). |
| 3 |
You fail to comply with an obligation to keep records under a taxation law set out in subsection (3). |
| 4 |
You fail to comply with an obligation under this Act that relates to a taxation law set out in subsection (3). |
384-10(2)
The following table sets out tax-related liabilities for the purposes of subsection (1).
|
Item
|
Tax-related liability
|
| 1 |
Superannuation guarantee charge payable by you under the Superannuation Guarantee (Administration) Act 1992 |
| 2 |
An amount that is due and payable by you of an estimate under Division 268 of an amount of a liability referred to in paragraph 268-10(1)(b) (superannuation guarantee charge) |
384-10(3)
(Repealed by No 84 of 2022)
History
S 384-10(3) repealed by No 84 of 2022, s 3 and Sch 1 item 8, effective 1 January 2023. S 384-10(3) formerly read:
384-10(3)
The following table sets out taxation laws for the purposes of subsection (1).
|
Item
|
Taxation law
|
| 1 |
Superannuation Guarantee (Administration) Act 1992 |
History
S 384-10 inserted by No 8 of 2019, s 3 and Sch 1 item 4, effective 1 April 2019 and applicable in relation to a failure referred to in subsection 384-10(1) in that Schedule that occurs on or after 1 July 2018 (including a failure to pay an amount that became payable before that day, and remains payable on or after that day).
SECTION 384-12
WHEN A TAX-RECORDS EDUCATION DIRECTION MAY BE GIVEN
384-12(1)
The Commissioner may give you a written direction (a
tax-records education direction
) if the Commissioner reasonably believes you have failed, at a specified time or for a specified period, to comply with one or more specified record-keeping obligations under a taxation law that:
(a)
is not set out in paragraph 288-25(2)(a) or (b); and
(b)
is not the Superannuation Guarantee (Administration) Act 1992.
Note:
For the requirements in the direction, see subsection 384-15(2).
384-12(2)
However, the Commissioner must not give you a *tax-records education direction if the Commissioner reasonably believes:
(a)
you are disengaged from the tax system; or
(b)
you are deliberately avoiding any of those obligations to keep records.
History
S 384-12 inserted by No 84 of 2022, s 3 and Sch 1 item 9, effective 1 January 2023. No 84 of 2022, s 3 and Sch 1 items 19 and 20 contain the following application and transitional provisions:
19 Application of amendments
(1)
The Commissioner may only give a direction under subsection 384-12(1) in Schedule 1 to the Taxation Administration Act 1953 (as inserted by this Schedule) on or after the day (the start day) after the end of the period of 3 months beginning on the day this Act receives the Royal Assent.
(2)
Such a direction may relate to a failure to comply with a record-keeping obligation arising before the start day (including a record-keeping obligation arising before the day this Act receives the Royal Assent).
20 Transitional - existing education directions
20
An education direction that:
(a)
is given under subsection 384-15(1) in Schedule 1 to the Taxation Administration Act 1953; and
(b)
is in force immediately before the commencement of this Schedule;
continues in force (and may be dealt with) as if it had been given under subsection 384-10(1) in Schedule 1 to that Act as amended by this Schedule.
SECTION 384-15
CONTENT OF, AND MATTERS RELATING TO COMPLIANCE WITH, EDUCATION DIRECTIONS
384-15(1)
A *superannuation guarantee education direction, or a *tax-records education direction, given to you requires you to:
(a)
ensure that any of the following individuals undertakes a specified approved course of education (see section 384-20):
(i)
if you are an individual - you;
(ii)
an individual who makes, or participates in making, decisions that affect the whole, or a substantial part, of your business; and
(b)
provide the Commissioner with evidence that the individual has completed the course.
384-15(2)
The direction must specify the period within which you must comply with the direction (which must be a period that is reasonable in the circumstances).
Note:
The period may be affected by the operation of subsection 384-35(7).
384-15(3)
You are taken to comply with the direction if, and only if:
(a)
an individual referred to in paragraph (1)(a) undertakes the specified approved course of education during the specified period; and
(b)
before the end of the specified period, you provide the Commissioner with evidence that the individual has completed the course.
Note 1:
For a failure to comply with a superannuation guarantee education direction, see section 384-17.
Note 2:
A failure to comply with a tax-records education direction will give rise to the administrative penalty set out in subsection 288-25(1).
History
S 384-15 substituted by No 84 of 2022, s 3 and Sch 1 item 10, effective 1 January 2023. For application and transitional provisions, see note under s 384-12. S 384-15 formerly read:
SECTION 384-15 EDUCATION DIRECTION
384-15(1)
If section 384-10 applies to you, the Commissioner may give you a written direction (an
education direction
) requiring you to:
(a)
ensure that any of the following individuals undertakes a specified approved course of education (see section 384-20):
(i)
if you are an individual - you;
(ii)
an individual who makes, or participates in making, decisions that affect the whole, or a substantial part, of your business; and
(b)
provide the Commissioner with evidence that the individual has completed the course.
384-15(2)
The education direction must specify the period within which you must comply with the direction (which must be a period that is reasonable in the circumstances).
Note:
The period may be affected by the operation of subsection 384-35(7).
384-15(3)
You must comply with the direction within the specified period.
Note:
Failure to comply with this subsection is an offence against section 8C.
384-15(4)
You are taken to comply with the direction if, and only if:
(a)
an individual referred to in paragraph (1)(a) undertakes the specified approved course of education during the specified period; and
(b)
before the end of the specified period, you provide the Commissioner with evidence that the individual has completed the course.
384-15(5)
You are liable to an administrative penalty of 5 penalty units if you contravene subsection (3).
Note:
Division 298 contains machinery provisions for administrative penalties.
384-15(6)
An education direction is not a legislative instrument.
S 384-15 inserted by No 8 of 2019, s 3 and Sch 1 item 4, effective 1 April 2019 and applicable in relation to a failure referred to in subsection 384-10(1) in that Schedule that occurs on or after 1 July 2018 (including a failure to pay an amount that became payable before that day, and remains payable on or after that day).
SECTION 384-17
COMPLIANCE WITH SUPERANNUATION GUARANTEE EDUCATION DIRECTIONS
384-17(1)
If you are given a *superannuation guarantee education direction, you must comply with it within the period specified in the direction.
Note:
Failure to comply with this subsection is an offence against section 8C.
384-17(2)
You are liable to an administrative penalty of 5 penalty units if you contravene subsection (1).
Note:
Division 298 contains machinery provisions for administrative penalties.
History
S 384-17 inserted by No 84 of 2022, s 3 and Sch 1 item 10, effective 1 January 2023.
SECTION 384-20
APPROVAL OF COURSES OF EDUCATION
384-20(1)
The Commissioner may, in writing, approve one or more courses of education for the purposes of giving *education directions.
History
S 384-20(1) amended by No 84 of 2022, s 3 and Sch 1 item 11, by substituting "*education directions" for "education directions", effective 1 January 2023.
384-20(2)
A course approved under subsection (1) may be provided by the Commissioner or by another entity.
384-20(3)
An approval under subsection (1) is not a legislative instrument.
History
S 384-20 inserted by No 8 of 2019, s 3 and Sch 1 item 4, effective 1 April 2019 and applicable in relation to a failure referred to in subsection 384-10(1) in that Schedule that occurs on or after 1 July 2018 (including a failure to pay an amount that became payable before that day, and remains payable on or after that day).
SECTION 384-25
COSTS OF COURSE OF EDUCATION
384-25(1)
The Commissioner or other entity providing an approved course of education may charge fees for the course.
384-25(2)
Any fees charged must not be such as to amount to taxation.
History
S 384-25 inserted by No 8 of 2019, s 3 and Sch 1 item 4, effective 1 April 2019 and applicable in relation to a failure referred to in subsection 384-10(1) in that Schedule that occurs on or after 1 July 2018 (including a failure to pay an amount that became payable before that day, and remains payable on or after that day).
SECTION 384-30
384-30
VARIATION OR REVOCATION ON COMMISSIONER'S OWN INITIATIVE
If the Commissioner has given you an *education direction, the Commissioner may, at any time, vary or revoke the education direction by written notice given to you.
History
S 384-30 amended by No 84 of 2022, s 3 and Sch 1 item 12, by substituting "*education direction" for "education direction" (first occurring), effective 1 January 2023.
S 384-30 inserted by No 8 of 2019, s 3 and Sch 1 item 4, effective 1 April 2019 and applicable in relation to a failure referred to in subsection 384-10(1) in that Schedule that occurs on or after 1 July 2018 (including a failure to pay an amount that became payable before that day, and remains payable on or after that day).
SECTION 384-35
VARIATION ON REQUEST
384-35(1)
If the Commissioner has given you an *education direction, you may ask the Commissioner to vary the direction.
History
S 384-35(1) amended by No 84 of 2022, s 3 and Sch 1 item 13, by substituting "*education direction" for "education direction", effective 1 January 2023.
384-35(2)
The request must be made by written notice given to the Commissioner before the end of the period specified in the direction for the purposes of subsection 384-15(2).
384-35(3)
The request must set out the reasons for making the request.
384-35(4)
The Commissioner must decide:
(a)
to vary the direction in accordance with the request; or
(b)
to vary the direction otherwise than in accordance with the request; or
(c)
to refuse to vary the direction.
384-35(5)
If the Commissioner does not make a decision on the request before the end of 28 days after the day the Commissioner received the request, the Commissioner is taken, at the end of that period, to have decided to refuse the request.
384-35(6)
If the Commissioner makes a decision on the request before the end of the period referred to in subsection (5), the Commissioner must:
(a)
notify you of the Commissioner's decision; and
(b)
if the decision is to vary the direction (whether or not in accordance with the request) - give you a copy of the varied direction; and
(c)
if the decision is to refuse to vary the direction, or to vary the direction otherwise than in accordance with the request - give you written reasons for the decision.
384-35(7)
If you make a request under this section, then, for the purposes of when you must comply with the direction, the period specified in the direction for the purposes of subsection 384-15(2) is taken to be extended by 1 day for each day in the period:
(a)
beginning at the start of the day the Commissioner receives the request; and
(b)
ending at the end of the day that the Commissioner notifies you that a decision has been made on the request.
History
S 384-35(7) amended by No 84 of 2022, s 3 and Sch 1 item 14, by substituting "when you must comply with the direction" for "subsection 384-15(3)", effective 1 January 2023.
History
S 384-35 inserted by No 8 of 2019, s 3 and Sch 1 item 4, effective 1 April 2019 and applicable in relation to a failure referred to in subsection 384-10(1) in that Schedule that occurs on or after 1 July 2018 (including a failure to pay an amount that became payable before that day, and remains payable on or after that day).
SECTION 384-40
384-40
TAXATION OBJECTION
If you are dissatisfied with:
(a)
a decision of the Commissioner to give an *education direction, or to vary one otherwise than in accordance with a request under section 384-35; or
(b)
a decision of the Commissioner under section 384-35 to refuse to vary an education direction;
you may object against the decision in the manner set out in Part IVC.
History
S 384-40 amended by No 84 of 2022, s 3 and Sch 1 item 15, by substituting "*education direction" for "education direction" in para (a), effective 1 January 2023.
S 384-40 inserted by No 8 of 2019, s 3 and Sch 1 item 4, effective 1 April 2019 and applicable in relation to a failure referred to in subsection 384-10(1) in that Schedule that occurs on or after 1 July 2018 (including a failure to pay an amount that became payable before that day, and remains payable on or after that day).
Division 388 - Requirements about giving material to the Commissioner
History
Div 388 inserted by No 91 of 2000.
Subdivision 388-A - Object of Division
SECTION 388-5
388-5
OBJECT OF DIVISION
The object of this Division is to set out requirements to ensure the integrity and efficiency of giving material to the Commissioner.
History
S 388-5 inserted by No 91 of 2000.
Subdivision 388-B - General provisions
SECTION 388-50
APPROVED FORMS
388-50(1)
A return, notice, statement, application or other document under a *taxation law is in the
approved form
if, and only if:
(a)
it is in the form approved in writing by the Commissioner for that kind of return, notice, statement, application or other document; and
(b)
it contains a declaration signed by a person or persons as the form requires (see section 388-75); and
(c)
it contains the information that the form requires, and any further information, statement or document as the Commissioner requires, whether in the form or otherwise; and
(d)
for a return, notice, statement, application or document that is required to be given to the Commissioner - it is given in the manner that the Commissioner requires (which may include electronically).
388-50(1A)
Despite subsection (1), a document that satisfies paragraphs (1)(a), (b) and (d) but not paragraph (1)(c) is also in the
approved form
if it contains the information required by the Commissioner. The Commissioner must specify the requirement in writing.
History
S 388-50(1A) inserted by No 73 of 2001.
388-50(2)
The Commissioner may combine in the same *approved form more than one return, notice, statement, application or other document.
388-50(3)
The Commissioner may approve a different *approved form for different entities.
Example:
The Commissioner may require high wealth individuals to lodge a different income tax return to that required to be lodged by an individual whose only income is a salary.
History
S 388-50 inserted by No 91 of 2000.
SECTION 388-52
388-52
SATURDAYS, SUNDAYS AND PUBLIC HOLIDAYS
Where an *approved form is required to be given to the Commissioner or to another entity by, or on, a day (the
lodgment day
) that is not a *business day, the approved form may be given on the first business day after the lodgment day.
History
S 388-52 inserted by No 73 of 2001.
SECTION 388-55
COMMISSIONER MAY DEFER TIME FOR LODGMENT
388-55(1)
The Commissioner may defer the time within which an *approved form is required to be given to the Commissioner or to another entity.
388-55(2)
A deferral under subsection (1) does not defer the time for payment of any amount to the Commissioner.
Note:
Section 255-10 allows the Commissioner to defer the time for payment of an amount of a tax-related liability.
History
S 388-55 inserted by No 91 of 2000.
SECTION 388-60
388-60
DECLARATION BY ENTITY
If you give a return, notice, statement, application or other document to the Commissioner in the *approved form, you must make a declaration in the approved form that any information in the document is true and correct.
History
S 388-60 inserted by No 91 of 2000.
SECTION 388-65
DECLARATION BY ENTITY WHERE AGENT GIVES DOCUMENT
388-65(1)
If a return, notice, statement, application or other document of yours is to be given to the Commissioner in the *approved form by an agent on your behalf, you must make a declaration in writing:
(a)
stating that you have authorised the agent to give the document to the Commissioner; and
(b)
declaring that any information you provided to the agent for the preparation of the document is true and correct.
388-65(2)
You must give the declaration to the agent.
388-65(3)
You must retain the declaration or a copy of it for:
(a)
5 years after it is made; or
(b)
a shorter period determined by the Commissioner in writing for you; or
(c)
a shorter period determined by the Commissioner by legislative instrument for a class of entities that includes you.
History
S 388-65(3) and (3A) substituted for s 388-65(3) by No 161 of 2005.
388-65(3A)
A determination under paragraph (3)(c) may specify different periods for different classes of entities.
History
S 388-65(3A) amended by No 41 of 2011, s 3 and Sch 5 item 421, by substituting "paragraph (3)(c)" for "paragraph (1)(c)", applicable to determinations made under paragraph 388-65(3)(c) in Schedule 1 to the Taxation Administration Act 1953 on or after 1 April 2004.
S 388-65(3) and (3A) substituted for s 388-65(3) by No 161 of 2005.
388-65(4)
You must produce the declaration or copy if requested to do so within that period by the Commissioner.
388-65(5)
The agent must not give the document to the Commissioner before you make the declaration.
388-65(6)
You must sign the declaration.
History
S 388-65 inserted by No 91 of 2000.
SECTION 388-70
388-70
DECLARATION BY AGENT
If an agent gives a return, notice, statement, application or other document to the Commissioner in the *approved form on behalf of another entity, the agent must, if the document so requires, make a declaration in the approved form stating that:
(a)
the document has been prepared in accordance with the information supplied by the other entity; and
(b)
the agent has received a declaration from the other entity stating that the information provided to the agent is true and correct; and
(c)
the agent is authorised by the other entity to give the document to the Commissioner.
History
S 388-70 inserted by No 91 of 2000.
SECTION 388-75
SIGNING DECLARATIONS
388-75(1)
You must sign a declaration in a return, notice, statement, application or other document you give to the Commissioner in paper form.
388-75(2)
If your agent gives a return, notice, statement, application or other document to the Commissioner on your behalf in paper form, the document must contain:
(a)
if the document so requires - a declaration made by you with your signature; and
(b)
if the document so requires - a declaration made by your agent with the agent's signature.
History
S 388-75(2)(a) and (b) substituted by No 73 of 2001.
388-75(3)
Any return, notice, statement, application or other document of yours that is *lodged electronically:
(a)
if you give it to the Commissioner - must contain your declaration (see section 388-60) with your *electronic signature; or
(b)
if your agent gives it to the Commissioner - must contain the agent's declaration (see section 388-70) with the agent's electronic signature.
388-75(4)
Any return, notice, statement, application or other document of yours that is given by telephone:
(a)
if you give it - must contain your *telephone signature; or
(b)
if your agent gives it - must contain your agent's telephone signature.
History
S 388-75 inserted by No 91 of 2000.
SECTION 388-80
388-80
ELECTRONIC NOTIFICATION OF BAS AMOUNTS
An entity that, under section 31-25 of the *GST Act, chooses or is required to *lodge a *GST return electronically must also electronically notify the Commissioner of all other *BAS amounts whose notification is required on the same day as the GST return (ignoring any extension allowed by the Commissioner under section 31-10 of that Act or a deferral under section 388-55).
History
S 388-80 inserted by No 91 of 2000.
SECTION 388-85
388-85
TRUNCATING AMOUNTS
If an *approved form that you are required to give the Commissioner specifies that amounts set out in the form are to be expressed in whole dollars, you truncate the amounts to the nearest whole dollar.
Example:
Stefan Pty Ltd calculates that its PAYG instalment for a quarter is $8,496.73. Because the approved form requires amounts to be truncated, the amount would be reported in its BAS as $8,496.
History
S 388-85 inserted by No 91 of 2000.
Division 389 - Reporting by employers
History
Div 389 inserted by No 55 of 2016, s 3 and Sch 23 item 1, effective 1 October 2016. No 55 of 2016, s 3 and Sch 23 items 22 to 24 contain the following application provisions:
Division 3 - Application
22 Application - required reporting
(1)
The amendments apply in relation to an amount that an entity is required to notify to the Commissioner if the requirement to notify arises on or after the following day (the
application day
):
(a)
the day determined under item 24;
(b)
if no such day is determined:
(i)
if the entity was a substantial employer immediately before 1 July 2018 - 1 July 2018; or
(ii)
otherwise - the first 1 July after which the entity first becomes a substantial employer after 1 July 2018.
(2)
Despite subitem (1), the entity is not liable to a penalty under subsection 286-75(1) in Schedule 1 to the Taxation Administration Act 1953 in relation to a failure to notify the Commissioner under section 389-5 in that Schedule if:
(a)
the failure relates to an amount referred to in item 1 or 2 of the table in section 389-5 in that Schedule; and
(b)
the failure occurs during the 12 month period following the entity's application day; and
(c)
the Commissioner has not, during that period but before that failure, given to the entity a written notice that:
(i)
related to an earlier failure by the entity to notify the Commissioner under section 389-5 in that Schedule; and
(ii)
advised the entity that a further failure to comply with that section may result in the entity being liable to an administrative penalty.
23 Application - voluntary reporting
23
The amendments apply in relation to an amount that an entity may notify to the Commissioner if the entitlement to notify arises on or after the following day (the application day):
(a)
the day determined under item 24;
(b)
if no such day is determined - 1 July 2018.
24 Determining the application day
24
The Commissioner may, by legislative instrument, determine a day that is later than 1 July 2018 to be the application day.
Guide to Division 389
SECTION 389-1
WHAT THIS DIVISION IS ABOUT
This Division establishes the "Single Touch Payroll" reporting framework.
Employers must (unless they are exempt) notify the Commissioner of certain amounts that relate to payments in respect of their employees.
Employers may notify the Commissioner of certain other amounts on a voluntary basis.
In many cases, this Division has the effect of bringing forward the due date for notification or reporting under other provisions. Notifying under this Division may satisfy an employer's obligations to notify or report under the other provisions.
History
S 389-1 substituted by No 79 of 2020, s 3 and Sch 2 item 6, effective 1 October 2020 and applicable in relation to an amount that an entity may notify to the Commissioner if the entitlement to notify arises on or after 1 July 2020. S 389-1 formerly read:
SECTION 389-1 WHAT THIS DIVISION IS ABOUT
Employers must (unless they are exempt) notify the Commissioner of certain amounts that relate to payments in respect of their employees.
In many cases this Division has the effect of bringing forward the due dates for notification or reporting under other provisions. Notifying under this Division may satisfy an employer's obligations to notify or report under the other provisions.
S 389-1 substituted by No 8 of 2019, s 3 and Sch 3 item 4, effective 1 April 2019. No 8 of 2019, s 3 and Sch 3 item 10 contains the following application provision:
10 Application - required reporting
(1)
The amendments made by this Part apply in relation to an amount that an entity is required to notify to the Commissioner if the requirement to notify arises on or after 1 July 2019.
(2)
For the purposes of Division 3 of Part 1 of Schedule 23 to the Budget Savings (Omnibus) Act 2016, and despite item 24 of that Schedule, the
application day
for an entity is taken to be the earlier of the following:
(a)
the application day for the entity under that Division, disregarding the effect of this item;
(b)
1 July 2019.
S 389-1 formerly read:
SECTION 389-1 WHAT THIS DIVISION IS ABOUT
Employers may notify to the Commissioner certain amounts that are the subject of notification or reporting obligations under other provisions of the taxation law. Substantial employers must (unless they are exempted) notify most of those amounts to the Commissioner under this Division.
In many cases this Division has the effect of bringing forward the due dates for notification or reporting under the other provisions, but notifying under this Division may reduce an employer's obligations to notify or report under the other provisions.
S 389-1 inserted by No 55 of 2016, s 3 and Sch 23 item 1, effective 1 October 2016. For application provisions, see note under Div 389 heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
| 389-5 |
Required reporting by employers |
| 389-10 |
Exemptions |
| 389-15 |
Voluntary reporting by employers in relation to taxation laws |
| 389-20 |
Effect on reporting requirements under Subdivision 16-C |
| 389-25 |
Grace periods for correcting false or misleading notifications |
| 389-30 |
Voluntary reporting by employers in relation to child support laws |
SECTION 389-5
REQUIRED REPORTING BY EMPLOYERS
389-5(1)
An entity must notify the Commissioner of an amount of a kind referred to in column 1 of an item in the following table on or before the day referred to in column 2 of that item, if the amount arises as a result of conduct of the entity (such as payment of an amount or provision of a benefit).
|
Amounts to be notified to the Commissioner
|
|
Item
|
Column 1
The following must be notified …
|
Column 2
… on or before this day
|
| 1 |
The following amounts: |
the day by which the amount is required to be withheld (regardless of whether it is withheld) (see section 16-5). |
| |
(a) |
an amount the entity must withhold under Subdivision 12-B (other than section 12-55 or 12-60), paragraph 12-85(b), section 12-90, paragraph 12-110(1)(ca) or section 12-319A; |
| |
(b) |
the *withholding payment from which the amount referred to in paragraph (a) is required to be withheld |
| 2 |
An amount that consists of either or both of the following: |
the day on which the amount is paid, or would be paid, as mentioned in column 1. |
| |
(a) |
an amount (other than an amount covered by item 1) paid, on a particular day, by the entity that constitutes the ordinary time earnings (within the meaning of the Superannuation Guarantee (Administration) Act 1992) of an individual who is the entity's employee (within the meaning of that Act but disregarding subsection 12(3) of that Act); |
| |
(b) |
a sacrificed ordinary time earnings amount (within the meaning of that Act) of such an employee of the entity, in respect of the entity, that would be paid as ordinary time earnings on a particular day if it was not sacrificed |
| 2A |
An amount that consists of either or both of the following: |
the day on which the amount is paid, or would be paid, as mentioned in column 1. |
| |
(a) |
an amount (other than an amount covered by item 1) paid, on a particular day, by the entity that constitutes the salary or wages (within the meaning of the Superannuation Guarantee (Administration) Act 1992) of an individual who is the entity's employee (within the meaning of that Act but disregarding subsection 12(3) of that Act); |
| |
(b) |
a sacrificed salary or wages amount (within the meaning of that Act) of such an employee of the entity, in respect of the entity, that would be paid as salary or wages on a particular day if it was not sacrificed |
| 3 |
(Repealed by No 8 of 2019) |
Note:
Section 286-75 provides an administrative penalty for breach of this section.
History
S 389-5(1) amended by No 4 of 2023, s 3 and Sch 2 item 31, by omitting "or (cb)" after "paragraph 12-110(1)(ca)" from para (a) of table item 1, column 1, effective 26 March 2023. For application provision, see note under s 16-155(3).
S 389-5(1) amended by No 8 of 2019, s 3 and Sch 3 item 14, by substituting table item 2 and inserting table item 2A, effective 23 June 2020. No 8 of 2019, s 3 and Sch 3 item 16 contains the following application provision:
16 Application
(1)
The amendments made by this Part apply in relation to quarters beginning on or after the day this Part commences.
(2)
The reference in paragraph 22(2)(a) of Schedule 23 to the Budget Savings (Omnibus) Act 2016 to item 1 or 2 of the table in subsection 389-5(1) in Schedule 1 to the Taxation Administration Act 1953 is taken to include a reference to item 2A of that table, as inserted by this Part.
Table item 2 formerly read:
| 2 |
An amount (other than an amount covered by item 1) paid by the entity that constitutes: |
the day on which the amount is paid. |
| |
(a) |
the salary or wages (within the meaning of the Superannuation Guarantee (Administration) Act 1992) of a person who is the entity's employee (within the meaning of that Act but disregarding subsection 12(3) of that Act); or |
| |
(b) |
the ordinary time earnings (within the meaning of that Act) of such an employee |
S 389-5(1) amended by No 8 of 2019, s 3 and Sch 4 item 6, by repealing table item 3, effective 1 April 2019 and applicable in relation to a contribution that is paid on or after 1 July 2018. Table item 3 formerly read:
| 3 |
An amount paid by the entity that: |
the day on which the contribution is paid. |
| |
(a) |
is a contribution to a *complying superannuation fund or an *RSA, in respect of an individual's employment (within the meaning of the Superannuation Guarantee (Administration) Act 1992) by the entity, that: |
| |
|
(i) |
is made by the entity; or |
| |
|
(ii) |
is taken, under section 79A of that Act to have been made on behalf of the entity; and |
| |
(b) |
has the effect of reducing the charge percentage for the entity (as specified in subsection 19(2) of that Act) for a *quarter |
S 389-5(1) amended by No 8 of 2019, s 3 and Sch 3 item 6, by substituting "An entity must notify the Commissioner of an amount of a kind referred to in column 1 of an item in the following table on or before the day referred to in column 2 of that item, if the amount arises as a result of conduct of the entity (such as payment of an amount or provision of a benefit)" for all the words from and including "If:" to and including "column 2 of that item", effective 1 April 2019. For application provision, see note under s 389-1. S 389-5(1) formerly read:
389-5(1)
If:
(a)
there is an amount of a kind referred to in column 1 of an item in the following table that arises as a result of conduct of an entity (such as payment of an amount or provision of a benefit); and
(b)
the entity has been a *substantial employer at any time on or after 1 April 2018 (whether or not the entity is currently a substantial employer);the entity must notify the Commissioner of the amount on or before the day referred to in column 2 of that item.
389-5(2)
The notification must be in the *approved form. However, the approved form must not require information about an amount unless it is:
(a)
the amount to be notified under subsection (1); or
(b)
an amount of a kind determined by the Commissioner under subsection (3).
389-5(3)
The Commissioner may, by legislative instrument, determine kinds of amounts for the purposes of paragraph (2)(b).
389-5(4)
In applying item 1 of the table in subsection (1), a requirement to withhold a nil amount is to be treated as a requirement to withhold an amount.
389-5(5)
This section does not apply to an entity to the extent (if any) that the entity is covered by an exemption under section 389-10 for the income year in which the entity's conduct occurs.
389-5(6)
(Repealed by No 8 of 2019)
History
S 389-5(6) repealed by No 8 of 2019, s 3 and Sch 3 item 7, effective 1 April 2019. For application provision, see note under s 389-1. S 389-5(6) formerly read:
389-5(6)
An entity is a
substantial employer
at a particular time if, on the most recent 1 April occurring before that time:
(a)
20 or more individuals were employees of the entity; or
(b)
if the entity was a member of a *wholly-owned group on that 1 April - the total number of employees of all of the members of the group was 20 or more.
History
S 389-5 inserted by No 55 of 2016, s 3 and Sch 23 item 1, effective 1 October 2016. For application provisions, see note under Div 389 heading.
SECTION 389-10
EXEMPTIONS
Exempting classes of entities
389-10(1)
The Commissioner may, by legislative instrument, exempt a class of entities from section 389-5 for one or more income years.
389-10(2)
The exemption may be limited to the extent specified in the instrument.
Exempting particular entities
389-10(3)
The Commissioner may, on application by an entity (an
exemption application
) or on the Commissioner's own initiative, exempt the entity from section 389-5 for one or more income years.
389-10(4)
The exemption may be limited to the extent specified in the notice under paragraph (5)(a).
389-10(5)
The Commissioner must notify the entity in writing if:
(a)
the Commissioner exempts the entity under subsection (3); or
(b)
refuses an exemption application by the entity.
389-10(6)
The Commissioner is taken to have refused an exemption application if the Commissioner fails to notify the entity in writing of the Commissioner's decision on the application within 60 days after the application is made.
389-10(7)
The entity may object, in the manner set out in Part IVC, against:
(a)
a decision of the Commissioner to refuse an exemption application; or
(b)
a decision of the Commissioner to limit the extent of an exemption under subsection (4).
History
S 389-10 inserted by No 55 of 2016, s 3 and Sch 23 item 1, effective 1 October 2016. For application provisions, see note under Div 389 heading.
SECTION 389-15
VOLUNTARY REPORTING BY EMPLOYERS IN RELATION TO TAXATION LAWS
389-15(1)
(Repealed by No 8 of 2019)
History
S 389-15(1) repealed by No 8 of 2019, s 3 and Sch 3 item 8, effective 1 April 2019. For application provision, see note under s 389-1. S 389-15(1) formerly read:
389-15(1)
An entity that is not, and has not at any time on or after 1 April 2018 been, a *substantial employer may notify the Commissioner of an amount that it would be required to notify under section 389-5 if it were a substantial employer.
389-15(2)
(Repealed by No 8 of 2019)
History
S 389-15(2) repealed by No 8 of 2019, s 3 and Sch 3 item 8, effective 1 April 2019. For application provision, see note under s 389-1. S 389-15(2) formerly read:
389-15(2)
The notification:
(a)
must be given on or before the day on or before which the entity would be required to notify under section 389-5 if it were a *substantial employer; and
(b)
must be in the form approved for the purposes of subsection (2) of that section.
389-15(3)
If:
(a)
an amount arises as a result of conduct of an entity (such as payment of an amount or provision of a benefit); and
(b)
the amount is an amount of a kind referred to in column 1 of an item in the following table;
the entity may notify the Commissioner of the amount on or before the day referred to in column 2 of that item.
|
Amounts to be notified to the Commissioner
|
|
Item
|
Column 1
This amount may be notified …
|
Column 2
… on or before this day
|
| 1 |
A *reportable employer superannuation contribution made by the entity in respect of a *financial year for the benefit of an employee of the entity |
14 July in the next *financial year. |
| 2 |
A *reportable fringe benefits amount that an employee of the entity has for an income year in respect of the employee's employment with the entity |
14 July in the *financial year most closely corresponding to the next income year. |
389-15(4)
The notification must be in the *approved form.
Note:
The approved form may require information about other amounts, in addition to the amount to be notified: see paragraph 388-50(1)(c).
History
S 389-15 inserted by No 55 of 2016, s 3 and Sch 23 item 1, effective 1 October 2016. For application provisions, see note under Div 389 heading.
SECTION 389-20
EFFECT ON REPORTING REQUIREMENTS UNDER SUBDIVISION 16-C
389-20(1)
An entity is not required to comply with a requirement of:
(a)
subsection 16-150(1) (Commissioner must be notified of amounts); or
(b)
section 16-153 (annual reports - other payments); or
(c)
section 16-155 (annual payment summary); or
(d)
section 16-160 (part-year payment summary); or
(e)
section 16-165 (payment summaries for superannuation lump sums and payments for termination of employment); or
(f)
section 16-175 in relation to compliance with any requirements under section 16-155, 16-160 or 16-165;
to give a notice, report or statement to the extent that it would relate to an amount that the entity has notified under section 389-5 or 389-15.
History
S 389-20(1) amended by No 23 of 2018, s 3 and Sch 5 item 25, by substituting "subsection 16-150(1)" for "section 16-150" in para (a), effective 1 April 2018.
389-20(2)
However, paragraphs (1)(b), (c) and (e) do not apply, in relation to requirement to give a notice, report or statement relating to payments made in a *financial year, unless, within 14 days after the end of the financial year, the entity makes a declaration to the Commissioner that:
(a)
states that the entity has notified under section 389-5 or 389-15 all the information that the entity would otherwise be required to give under sections 16-153, 16-155 and 16-165 relating to payments made in the financial year; and
(b)
is in the *approved form.
History
S 389-20 inserted by No 55 of 2016, s 3 and Sch 23 item 1, effective 1 October 2016. For application provisions, see note under Div 389 heading.
SECTION 389-25
GRACE PERIODS FOR CORRECTING FALSE OR MISLEADING NOTIFICATIONS
When notifications can be corrected
389-25(1)
An entity that has made a statement (a
withholding statement
) under section 389-5 notifying an amount under item 1, 2 or 2A of the table in subsection 389-5(1) (and no other item in that table) may correct the statement:
(a)
within the period determined by the Commissioner under subsection (2); or
(b)
if paragraph (a) does not apply but the entity is covered by a determination under subsection (5) - within the period specified in that determination.
Note:
Correcting the statement can protect the person from liability for a false or misleading withholding statement: see subsections 8K(2A), 8N(2) and 284-75(8).
History
S 389-25(1) amended by No 8 of 2019, s 3 and Sch 3 item 15, by substituting "item 1, 2 or 2A" for "item 1 or 2", effective 23 June 2020. For application provision, see note under s 389-5(1).
Determinations for particular entities
389-25(2)
The Commissioner may determine the period within which the entity may correct a withholding statement.
389-25(3)
The Commissioner must give the entity written notice of the determination.
389-25(4)
The entity may object, in the manner set out in Part IVC, against a decision of the Commissioner determining a period under subsection (2) relating to the entity.
Determinations for classes of entities
389-25(5)
The Commissioner may, by legislative instrument, determine the period within which entities included in a class of entities specified in the determination may correct a withholding statement.
History
S 389-25 inserted by No 55 of 2016, s 3 and Sch 23 item 1, effective 1 October 2016. For application provisions, see note under Div 389 heading.
SECTION 389-30
VOLUNTARY REPORTING BY EMPLOYERS IN RELATION TO CHILD SUPPORT LAWS
389-30(1)
If there is an amount of a kind referred to in column 1 of an item of the following table, the entity referred to in that item may notify the Commissioner of the amount on or before the day referred to in column 2 of that item.
|
Amounts that may be notified to the Commissioner
|
|
Item
|
Column 1
This amount may be notified …
|
Column 2
… on or before this day
|
| 1 |
An amount the entity deducted under Part IV of the Child Support (Registration and Collection) Act 1988 from salary or wages paid to an employee of the entity |
the day on which the deduction is made. |
| 2 |
A nil amount, if: |
the reporting day. |
| |
(a) |
a notice given to the entity under subsection 45(1) of the Child Support (Registration and Collection) Act 1988 is in force on a day (the
reporting day
) in relation to a payer who is an employee of the entity; and |
|
|
| |
(b) |
either: |
|
|
| |
|
(i) |
the entity pays salary or wages to the employee on the reporting day but does not make a deduction under Part IV of that Act in relation to the employee and the payment; or |
|
|
| |
|
(ii) |
the reporting day is a day on which the entity would ordinarily pay salary or wages to the employee, but the entity does not do so because no salary or wages are payable |
|
|
| 3 |
An amount the entity paid to the Child Support Registrar if: |
the day on which the amount is paid. |
| |
(a) |
the entity paid the amount in accordance with a notice given to the entity under section 72A of the Child Support (Registration and Collection) Act 1988; and |
|
|
| |
(b) |
the entity is the employer of the relevant debtor referred to in that section |
|
|
Note:
Voluntary reporting of an amount referred to in item 1 or 2 of the table may affect the entity's reporting requirements under the Child Support (Registration and Collection) Act 1988: see subsection 47(1B) of that Act.
389-30(2)
The notification must be in the *approved form.
Note:
The approved form may require information about other amounts, in addition to the amount to be notified: see paragraph 388-50(1)(c).
389-30(3)
A disclosure of personal information (within the meaning of the Privacy Act 1988) under subsection (1) is taken for the purposes of that Act to be authorised by this section.
389-30(4)
The following terms used in the table in subsection (1) have the same meaning as in the Child Support (Registration and Collection) Act 1988:
(a)
employee
(for this purpose, the term has the same meaning as it has when used in Part IV of that Act);
(b)
employer
;
(c)
payer
;
(d)
salary or wages
.
History
S 389-30 inserted by No 79 of 2020, s 3 and Sch 2 item 8, effective 1 October 2020 and applicable in relation to an amount that an entity may notify to the Commissioner if the entitlement to notify arises on or after 1 July 2020.
Division 390 - Superannuation reporting
History
Div 390 inserted by No 9 of 2007, s 3 and Sch 4 item 15, applicable in relation to things that are done and events that occur on or after 1 July 2007.
Guide to Division 390
SECTION 390-1
WHAT THIS DIVISION IS ABOUT
Superannuation providers must give the Commissioner information about superannuation plans (such as contributions to superannuation plans) periodically.
Superannuation providers are also required to give information about roll-over superannuation benefits paid from superannuation plans.
Life insurance companies must give the Commissioner information about holders of certain life insurance policies.
Note:
For requirements for payment summaries in relation to superannuation lump sums, see section 16-165.
History
S 390-1 amended by No 81 of 2016, s 3 and Sch 1 item 21, by inserting "Life insurance companies must give the Commissioner information about holders of certain life insurance policies.", effective 1 January 2017 and applicable in relation to exempt life insurance policies, and life insurance policies, held on and after 30 June 2017.
S 390-1 amended by No 56 of 2010, s 3 and Sch 6 item 52, by omitting "and employment termination payments" after "superannuation lump sums" in the note, applicable in relation to payments made on or after 1 July 2010.
S 390-1 amended by No 15 of 2007, s 3 and Sch 1 item 392, by inserting the note, applicable to the 2007-2008 income year and later years.
S 390-1 inserted by No 9 of 2007, s 3 and Sch 4 item 15, applicable in relation to things that are done and events that occur on or after 1 July 2007.
Subdivision 390-A - Member information statements and roll-over superannuation benefit statements
History
Subdiv 390-A heading substituted by No 158 of 2012, s 3 and Sch 3 item 1, applicable in relation to periods starting on and after 1 July 2012. The heading formerly read:
Subdivision 390-A - Contributions statements and roll-over superannuation benefit statements, etc.
Subdiv 390-A inserted by No 9 of 2007, s 3 and Sch 4 item 15, applicable in relation to things that are done and events that occur on or after 1 July 2007.
SECTION 390-5
MEMBER INFORMATION STATEMENTS
390-5(1)
A *superannuation provider in relation to a *superannuation plan must give the Commissioner a statement in relation to an individual if the individual held a *superannuation interest in the plan at any time during the period specified in a determination under subsection (6).
Note 1:
Section 286-75 provides an administrative penalty for breach of this subsection.
Note 2:
If a person is dissatisfied with a statement given to the Commissioner by a superannuation provider under this section, the person may make a complaint under the AFCA scheme (within the meaning of the Corporations Act 2001).
History
S 390-5(1) amended by No 76 of 2023, s 3 and Sch 2 item 732, by omitting "Chapter 7 of" before "the Corporations Act 2001" from note 2, effective 20 October 2023.
S 390-5(1) amended by No 13 of 2018, s 3 and Sch 1 item 57, by substituting note 2, effective 6 March 2018. For application provision, see note under s 133-120(2). Note 2 formerly read:
Note 2:
If a person is dissatisfied with a statement given to the Commissioner by a superannuation provider under this section, the person may make a complaint:
(a) under the AFCA scheme (within the meaning of Chapter 7 of the Corporations Act 2001), but not before the authorisation of the scheme comes into force; or
(b) under section 15CA of the Superannuation (Resolution of Complaints) Act 1993, but not on or after the day on or after which complaints cannot be made because of section 14AB of that Act.
S 390-5(1) amended by No 13 of 2018, s 3 and Sch 1 item 30, by substituting note 2, effective 6 March 2018 and applicable on and after the day on which the first authorisation of an external dispute resolution scheme, under Part 7.10A of the Corporations Act 2001, comes into force. Note 2 formerly read:
Note 2:
A person may make a complaint to the Superannuation Complaints Tribunal under section 15CA of the Superannuation (Resolution of Complaints) Act 1993 if the person is dissatisfied with a statement given to the Commissioner by a superannuation provider under this section.
S 390-5(1) substituted by No 158 of 2012, s 3 and Sch 3 item 3, applicable in relation to periods starting on and after 1 July 2012. S 390-5(1) formerly read:
390-5(1)
A *superannuation provider in relation to a *superannuation plan must give the Commissioner a statement in relation to contributions (if any) made to the plan in respect of an individual during a period specified in a determination under subsection (6) if:
(a)
for a superannuation plan that is a *self managed superannuation fund - either or both of these conditions are satisfied:
(i)
the individual held a *superannuation interest in the plan at the end of the period;
(ii)
the individual held a superannuation interest in the plan at any time during the period and received one or more *superannuation benefits from the plan during the period; or
(b)
for a superannuation plan that is not a self managed superannuation fund:
(i)
contributions were made to the plan in respect of the individual during the period; and
(ii)
either or both of the conditions in subparagraphs (a)(i) and (ii) are satisfied.
Note 1:
Section 286-75 provides an administrative penalty for breach of this subsection.
Note 2:
A person may make a complaint to the Superannuation Complaints Tribunal under section 15CA of the Superannuation (Resolution of Complaints) Act 1993 if the person is dissatisfied with a statement given to the Commissioner by a superannuation provider under this section.
390-5(2)
(Repealed by No 158 of 2012)
History
S 390-5(2) repealed by No 158 of 2012, s 3 and Sch 3 item 3, applicable in relation to periods starting on and after 1 July 2012. S 390-5(2) formerly read:
390-5(2)
Treat the following as contributions for the purposes of this section:
(a)
*notional taxed contributions in relation to a *defined benefit interest in the *superannuation plan;
(b)
amounts mentioned in subsection 292-25(3) of the Income Tax Assessment Act 1997 allocated by the *superannuation provider in relation to the superannuation plan.
390-5(3)
(Repealed by No 158 of 2012)
History
S 390-5(3) repealed by No 158 of 2012, s 3 and Sch 3 item 3, applicable in relation to periods starting on and after 1 July 2012. S 390-5(3) formerly read:
390-5(3)
For the purposes of subparagraph (1)(a)(ii), disregard *roll-over superannuation benefits that the individual is taken to receive under section 307-15 of the Income Tax Assessment Act 1997.
390-5(4)
A statement under subsection (1) must be in the *approved form.
390-5(5)
The statement must be given to the Commissioner on a day specified in the determination under subsection (6).
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
390-5(6)
The Commissioner may determine, by legislative instrument:
(a)
the period mentioned in subsection (1); and
(b)
the day on which a statement must be given to the Commissioner.
390-5(7)
The period specified in the determination:
(a)
may be:
(i)
all or part of an income year; or
(ii)
all or part of a financial year; or
(iii)
any other period; and
(b)
may be different:
(i)
for different kinds of *superannuation provider; and
(ii)
in relation to any other matter.
390-5(8)
Subsection (7) does not limit the way in which the determination may specify the period.
390-5(9)
The *approved form may require the statement to contain the following information:
(a)
information relating to the contributions made to the *superannuation plan, including the amount and type of the contributions;
(b)
the *value of any *superannuation interest, or superannuation account, the individual held in the superannuation plan at a particular time;
(c)
if no contributions were made to the superannuation plan in respect of the individual during the period - a statement to that effect;
(d)
information relating to the Superannuation (Unclaimed Money and Lost Members) Act 1999;
(e)
if the superannuation plan is a *regulated superannuation fund in relation to which the individual has an LRBA amount under section 307-231 of the Income Tax Assessment Act 1997 (about limited recourse borrowing arrangements) - the amount of the LRBA amount.
History
S 390-5(9) amended by No 78 of 2019, s 3 and Sch 3 item 3, by inserting para (e), effective 1 January 2020.
S 390-5(9) amended by No 8 of 2019, s 3 and Sch 4 item 18, by inserting para (d), effective 1 April 2019.
S 390-5(9) amended by No 158 of 2012, s 3 and Sch 3 items 4-5, by inserting "made to the *superannuation plan" in para (a) and substituting para (b) and (c) for para (b), applicable in relation to periods starting on and after 1 July 2012. Para (b) formerly read:
(b)
if the plan is a *self managed superannuation fund and no contributions were made to the plan in respect of the individual during the period - a statement to that effect.
390-5(9A)
Treat the following as contributions for the purposes of this section:
(a)
*notional taxed contributions in relation to a *defined benefit interest in the *superannuation plan;
(b)
amounts, mentioned in subsection 291-25(3) or paragraph 292-90(4)(a) of the Income Tax Assessment Act 1997, allocated by the *superannuation provider in relation to the superannuation plan;
(c)
amounts mentioned in paragraph 292-90(4)(c) of that Act;
(d)
*defined benefit contributions in relation to a *defined benefit interest in the superannuation plan.
History
S 390-5(9A) amended by No 118 of 2013, s 3 and Sch 1 item 36, by substituting "subsection 291-25(3)" for "subsection 292-25(3)" in para (b), effective 29 June 2013. For application, transitional and saving provisions, see note under Pt 2-35 heading.
S 390-5(9A) amended by No 82 of 2013, s 3 and Sch 3 item 36, by inserting para (d), effective 28 June 2013. For application provision, see note under Pt 3-20 heading.
S 390-5(9A) inserted by No 158 of 2012, s 3 and Sch 3 item 6, applicable in relation to periods starting on and after 1 July 2012.
390-5(10)
Subsection (9) does not limit the information that the *approved form may require the statement to contain.
390-5(11)
The *approved form may require the statement to contain the *tax file number of:
(a)
the *superannuation provider; and
(b)
the *superannuation plan; and
(c)
the individual who holds the *superannuation interest in the plan if:
(i)
the individual has quoted the individual's tax file number to the superannuation provider; or
(ii)
a person has quoted the individual's tax file number to the superannuation provider (and had authority to do so).
History
S 390-5(11) amended by No 158 of 2012, s 3 and Sch 3 items 7-8, by substituting "who holds the *superannuation interest in the plan" for "in respect of whom the contributions are made" in para (c) and omitting "who made at least some of the contributions" after "a person" in para (c)(ii), applicable in relation to periods starting on and after 1 July 2012.
S 390-5 inserted by No 9 of 2007, s 3 and Sch 4 item 15, applicable in relation to things that are done and events that occur on or after 1 July 2007.
Note: For transitional rules about provisions related to the application of Division 292 of the Income Tax Assessment Act 1997 in the period from 10 May 2006 to 30 June 2007, see section 292-80 of the Income Tax (Transitional Provisions) Act 1997.)
SECTION 390-7
GRACE PERIODS FOR CORRECTING FALSE OR MISLEADING MEMBER INFORMATION STATEMENTS
When statements can be corrected
390-7(1)
A *superannuation provider in relation to a *superannuation plan that has given a statement to the Commissioner under section 390-5 may correct the statement:
(a)
within the period determined by the Commissioner under subsection (2) of this section; or
(b)
if paragraph (a) does not apply but the superannuation provider is covered by a determination under subsection (5) - within the period specified in that determination.
Note 1:
Correcting the statement can protect the superannuation provider from liability for a false or misleading statement: see subsections 8K(2B), 8N(3) and 284-75(9).
Note 2:
If no period has been determined under subsection (2) or (5) in relation to a superannuation provider, the superannuation provider will not be able to take advantage of the grace period provided for by this section.
Determinations for particular superannuation providers
390-7(2)
The Commissioner may determine the period within which the *superannuation provider may correct a statement.
390-7(3)
The Commissioner must give the *superannuation provider written notice of the determination.
390-7(4)
The *superannuation provider may object, in the manner set out in Part IVC, against a decision of the Commissioner determining a period under subsection (2) relating to the superannuation provider.
Determinations for classes of superannuation providers
390-7(5)
The Commissioner may, by legislative instrument, determine the period within which *superannuation providers included in a class of superannuation providers specified in the determination may correct a statement.
History
S 390-7 inserted by No 8 of 2019, s 3 and Sch 4 item 5, effective 1 April 2019.
SECTION 390-10
STATEMENTS ABOUT ROLL-OVER SUPERANNUATION BENEFITS ETC.
390-10(1)
This section applies if:
(a)
a *superannuation provider (the
first provider
) in relation to a *superannuation plan (the
first plan
) pays a *roll-over superannuation benefit to another superannuation provider in relation to another superannuation plan; or
(b)
a superannuation provider (also the
first provider
) in relation to a superannuation plan (also the
first plan
) pays to another superannuation provider in relation to another superannuation plan a *superannuation benefit (other than a roll-over superannuation benefit) in these circumstances:
(i)
the first plan or the other superannuation plan is, or both are, a *non-complying superannuation plan for the income year in which the benefit is paid; or
(ii)
the first plan or the other superannuation plan was, or both were, a non-complying superannuation plan for the previous income year.
390-10(2)
The first provider in relation to the first plan must:
(a)
give the other superannuation provider a statement in relation to the benefit within 7 days after the day on which the benefit is paid; and
(b)
unless the benefit is an *involuntary roll-over superannuation benefit, give the individual in respect of whom the benefit is paid a statement in relation to the benefit within 30 days after the day on which the benefit is paid.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
History
S 390-10(2) amended by No 21 of 2015, s 3 and Sch 4 item 8, by substituting para (b), applicable in relation to involuntary roll-over superannuation benefits paid on or after 1 July 2015. Para (b) formerly read:
(b)
give the individual in respect of whom the benefit is paid a statement in relation to the benefit within 30 days after the day on which the benefit is paid.
390-10(3)
A statement under subsection (2) must be in the *approved form.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
390-10(4)
The *approved form may require the statement to contain the following information:
(a)
information relating to contributions made to the first plan in respect of the individual during the period specified in a determination under subsection (5) in which the benefit is paid, to the extent those contributions are reflected in that benefit;
(b)
other information relating to the benefit, including the *tax free component, *taxable component, *element taxed in the fund and *element untaxed in the fund (as applicable) of the benefit.
390-10(5)
The Commissioner may determine, by legislative instrument, the period mentioned in paragraph (4)(a).
390-10(6)
The period specified in the determination:
(a)
may be:
(i)
all or part of an income year; or
(ii)
all or part of a financial year; or
(iii)
any other period; and
(b)
may be different:
(i)
for different kinds of *superannuation provider; and
(ii)
in relation to any other matter.
390-10(7)
Subsection (6) does not limit the way in which the determination may specify the period.
390-10(8)
The *approved form may require the statement to contain different information depending on whether paragraph (1)(a) or (b) applies.
390-10(9)
Subsections (4) and (8) do not limit the information that the *approved form may require the statement to contain.
390-10(10)
The *approved form may require the statement to contain the *tax file number of:
(a)
the first provider; and
(b)
the first plan; and
(c)
the individual in respect of whom the benefit is paid if:
(i)
the individual has quoted the individual's tax file number to the first provider; or
(ii)
a person who made at least some of the contributions mentioned in paragraph (4)(a) has quoted the individual's tax file number to the first provider (and had authority to do so).
History
S 390-10(10) inserted by No 15 of 2007, s 3 and Sch 1 item 393, applicable to the 2007-2008 income year and later years.
S 390-10 inserted by No 9 of 2007, s 3 and Sch 4 item 15, applicable in relation to things that are done and events that occur on or after 1 July 2007.
SECTION 390-12
STATEMENTS ABOUT BENEFITS PAID TO KIWISAVER SCHEMES
390-12(1)
This section applies if the trustee of a *complying superannuation fund pays a *superannuation benefit to a *KiwiSaver scheme provider.
390-12(2)
The trustee must:
(a)
give to the *KiwiSaver scheme provider a statement under this section within 7 days after the day on which the benefit is paid; and
(b)
give to the individual in respect of whom the benefit is paid a statement in relation to the benefit within 30 days after the day on which the benefit is paid.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
390-12(3)
A statement under subsection (2) must be in the *approved form.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
390-12(4)
The *approved form may require the statement to contain the following information:
(a)
information relating to contributions made to the *complying superannuation fund in respect of the individual during the period specified in a determination under subsection (5) in which the benefit is paid, to the extent those contributions are reflected in that benefit;
(b)
other information relating to the benefit, including the *tax free component and *taxable component (as applicable) of the benefit.
390-12(5)
The Commissioner may determine, by legislative instrument, the period mentioned in paragraph (4)(a).
390-12(6)
The period specified in the determination:
(a)
may be:
(i)
all or part of an income year; or
(ii)
all or part of a *financial year; or
(iii)
any other period; and
(b)
may be different:
(i)
for different kinds of trustee; and
(ii)
in relation to any other matter.
390-12(7)
Subsection (6) does not limit the way in which the determination may specify the period.
390-12(8)
Subsection (4) does not limit the information that the *approved form may require the statement to contain.
History
S 390-12 inserted by No 181 of 2012, s 3 and Sch 1 item 10, applicable to: (a) amounts transferred from KiwiSaver schemes to complying superannuation funds; or (b) superannuation benefits paid to KiwiSaver scheme providers by trustees of complying superannuation funds; on or after 1 July 2013.
SECTION 390-15
SUPERANNUATION STATEMENTS TO MEMBERS
390-15(1)
An individual, or the trustee of an individual's estate:
(a)
may ask a *superannuation provider who has given information in a statement under section 390-5, 390-10 or 390-12 in relation to the individual to give the individual or the trustee the same information; and
(b)
may ask a *life insurance company that has given information in a statement under section 390-20 in relation to the individual to give the individual or the trustee the same information; and
(c)
may ask the superannuation provider or life insurance company to give the information in writing.
History
S 390-15(1) amended by No 81 of 2016, s 3 and Sch 1 item 22, by substituting para (b) and (c) for para (b), effective 1 January 2017 and applicable in relation to exempt life insurance policies, and life insurance policies, held on and after 30 June 2017. Para (b) formerly read:
(b)
may ask the superannuation provider to give the information in writing.
S 390-15(1) amended by No 181 of 2012, s 3 and Sch 1 item 11, by substituting ", 390-10 or 390-12" for "or 390-10" in para (a), applicable to: (a) amounts transferred from KiwiSaver schemes to complying superannuation funds; or (b) superannuation benefits paid to KiwiSaver scheme providers by trustees of complying superannuation funds; on or after 1 July 2013.
390-15(2)
The *superannuation provider or *life insurance company must:
(a)
comply with the request within 30 days after receiving the request; and
(b)
if the individual or the trustee asked for the information to be given in writing - give the information in the *approved form.
Note 1:
Section 286-75 provides an administrative penalty for breach of this subsection.
Note 2:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
History
S 390-15(2) amended by No 81 of 2016, s 3 and Sch 1 item 23, by inserting "or *life insurance company", effective 1 January 2017 and applicable in relation to exempt life insurance policies, and life insurance policies, held on and after 30 June 2017.
390-15(3)
Subsection (2) does not apply if the *superannuation provider or *life insurance company has given the same information to the individual or the trustee previously (whether or not on request by the individual or trustee).
History
S 390-15(3) amended by No 81 of 2016, s 3 and Sch 1 item 23, by inserting "or *life insurance company", effective 1 January 2017 and applicable in relation to exempt life insurance policies, and life insurance policies, held on and after 30 June 2017.
390-15(4)
If the individual or the trustee does not ask for the information to be given in writing, the *superannuation provider or *life insurance company may give the information to the individual or trustee in a way that the provider or company considers appropriate.
History
S 390-15(4) amended by No 81 of 2016, s 3 and Sch 1 items 23 and 24, by inserting "or *life insurance company" and substituting "provider or company considers" for "provider considers", effective 1 January 2017 and applicable in relation to exempt life insurance policies, and life insurance policies, held on and after 30 June 2017.
S 390-15 inserted by No 9 of 2007, s 3 and Sch 4 item 15, applicable in relation to things that are done and events that occur on or after 1 July 2007.
SECTION 390-20
STATEMENTS RELATING TO HOLDERS OF CERTAIN LIFE INSURANCE POLICIES
390-20(1)
A *life insurance company must give the Commissioner a statement in relation to an individual if:
(a)
the individual held:
(i)
an *exempt life insurance policy that provides for an *annuity that is a *superannuation income stream that is in the *retirement phase; or
(ii)
a *life insurance policy covered by paragraph (b) of the definition of
complying superannuation life insurance policy
; and
(b)
the individual held the policy at any time during the period specified in the determination under subsection (3).
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
390-20(2)
The statement must:
(a)
be in the *approved form; and
(b)
be given to the Commissioner on a day specified in the determination under subsection (3).
390-20(3)
The Commissioner may determine, by legislative instrument:
(a)
the period mentioned in subsection (1); and
(b)
the day on which a statement must be given to the Commissioner.
390-20(4)
The determination may specify a period beginning before, or a day before, the commencement of either or both of the following:
(a)
this section;
(b)
the determination.
390-20(5)
The *approved form may require the statement to contain information about the policy held by the individual.
390-20(6)
The *approved form may require the statement to contain the *tax file number of:
(a)
the *life insurance company; and
(b)
the individual who holds the policy if:
(i)
the individual has quoted the individual's tax file number to the life insurance company; or
(ii)
a person has quoted the individual's tax file number to the life insurance company (and had authority to do so).
History
S 390-20 inserted by No 81 of 2016, s 3 and Sch 1 item 25, effective 1 January 2017 and applicable in relation to exempt life insurance policies, and life insurance policies, held on and after 30 June 2017.
Subdivision 390-B - Statements relating to release authorities
History
Subdiv 390-B inserted by No 9 of 2007, s 3 and Sch 4 item 15, applicable in relation to things that are done and events that occur on or after 1 July 2007.
SECTION 390-65
STATEMENTS RELATING TO RELEASE AUTHORITIES
390-65(1)
A *superannuation provider in relation to a *superannuation plan must give the Commissioner a statement under this section if the superannuation provider has:
(a)
been given a release authority in accordance with:
(i)
(Repealed by No 81 of 2016)
(ii)
section 292-80B of the Income Tax (Transitional Provisions) Act 1997; or
(iii)
Subdivision 135-B in this Schedule; and
(b)
paid an amount out of the plan in accordance with the release authority.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
History
S 390-65(1) amended by No 81 of 2016, s 3 and Sch 10 item 47, by repealing para (a)(i), effective 1 July 2018. For application provisions, see note under Div 131 heading. Para (a)(i) formerly read:
(i)
section 292-410 of the Income Tax Assessment Act 1997; or
S 390-65(1) amended by No 82 of 2013, s 3 and Sch 3 item 37, by substituting para (a), effective 28 June 2013. For application provision, see note under Pt 3-20 heading. Para (a) formerly read:
(a)
been given a release authority in accordance with section 292-410 of the Income Tax Assessment Act 1997 or section 292-80B of the Income Tax (Transitional Provisions) Act 1997; and
390-65(2)
The statement must be given within 30 days after the amount is paid out of the plan.
390-65(3)
A statement under subsection (1) must be in the *approved form.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
390-65(4)
The *approved form must require the statement to contain information relating to the release authority.
390-65(5)
The *approved form may require the statement to contain the following information:
(a)
the amount paid;
(b)
details relating to the *superannuation provider in relation to the *superannuation plan;
(c)
the individual in respect of whom the release authority was given to the superannuation provider.
390-65(6)
Subsection (5) does not limit the information that the *approved form may require the statement to contain.
390-65(7)
The *superannuation provider must also give the individual to whom the release authority relates a copy of the statement within 30 days after the amount is paid out of the plan.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
History
S 390-65 inserted by No 9 of 2007, s 3 and Sch 4 item 15, applicable in relation to things that are done and events that occur on or after 1 July 2007.
Note: For transitional rules about provisions related to the application of Division 292 of the Income Tax Assessment Act 1997 in the period from 10 May 2006 to 30 June 2007, see section 292-80 of the Income Tax (Transitional Provisions) Act 1997.)
Subdivision 390-C - Other statements
History
Subdiv 390-C inserted by No 9 of 2007, s 3 and Sch 4 item 15, applicable in relation to things that are done and events that occur on or after 1 July 2007.
SECTION 390-115
CHANGE OR OMISSION IN INFORMATION GIVEN TO THE COMMISSIONER
390-115(1)
If a *superannuation provider in relation to a *superannuation plan becomes aware of a material change or material omission in any information given to the Commissioner in relation to the plan under this Division, the provider must:
(a)
tell the Commissioner of the change in the *approved form; or
(b)
give the omitted information to the Commissioner in the approved form.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
390-115(2)
Information required by subsection (1) must be given no later than 30 days after the *superannuation provider becomes aware of the change or omission.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
History
S 390-115 inserted by No 9 of 2007, s 3 and Sch 4 item 15, applicable in relation to things that are done and events that occur on or after 1 July 2007.
(Repealed) Division 391 - First home saver account reporting
History
Div 391 repealed by No 70 of 2015, s 3 and Sch 1 item 174, effective 1 July 2015.
Div 391 inserted by No 45 of 2008, s 3 and Sch 1 item 66, effective 26 June 2008.
(Repealed) Guide to Division 391
391-1
391-1
(Repealed) SECTION 391-1 WHAT THIS DIVISION IS ABOUT
(Repealed by No 70 of 2015)
History
S 391-1 repealed by No 70 of 2015, s 3 and Sch 1 item 174, effective 1 July 2015. S 391-1 formerly read:
SECTION 391-1 WHAT THIS DIVISION IS ABOUT
FHSA providers must give the Commissioner information periodically about FHSAs (such as information about contributions made to FHSAs).
FHSA providers are also required to give information to other FHSA providers when making transfer payments from FHSAs to other FHSAs or to superannuation interests.
S 391-1 inserted by No 45 of 2008, s 3 and Sch 1 item 66, effective 26 June 2008.
(Repealed) Subdivision 391-A - Account activity statements
History
Subdiv 391-A repealed by No 70 of 2015, s 3 and Sch 1 item 174, effective 1 July 2015.
Subdiv 391-A inserted by No 45 of 2008, s 3 and Sch 1 item 66, effective 26 June 2008.
391-5
391-5
(Repealed) SECTION 391-5 FHSA ACCOUNT ACTIVITY STATEMENTS
(Repealed by No 70 of 2015)
History
History
S 391-5(1) amended by No 92 of 2008.
S 391-5 repealed by No 70 of 2015, s 3 and Sch 1 item 174, effective 1 July 2015. S 391-5 formerly read:
SECTION 391-5 FHSA ACCOUNT ACTIVITY STATEMENTS
391-5(1)
An *FHSA provider must give the Commissioner the following statements under this section:
(a)
a statement in relation to the amount of *personal FHSA contributions (if any) made to each *FHSA provided by the provider during the period mentioned in subsection (3) for that kind of statement;
(b)
a statement in relation to the balance of an FHSA provided by the provider during the period mentioned in subsection (3) for that kind of statement;
(c)
a statement in relation to each FHSA opened or issued (if any) by the provider during the period specified in subsection (3) for that kind of statement;
(d)
a statement in relation to each FHSA closed (if any) by the provider during the period specified in subsection (3) for that kind of statement;
(e)
a statement in relation to payments (other than a payment of a kind mentioned in subparagraph 31(1)(b)(iii) or paragraph (1)(f), (g) or (h) of the First Home Saver Accounts Act 2008) (if any) made from each FHSA provided by the provider during the period specified in subsection (3) for that kind of statement.
Note:
Section 286-75 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for breach of any of these paragraphs. A breach of any of these paragraphs may also be an offence under section 8C of that Act.
History
S 391-5(1) amended by No 92 of 2008, s 3 and Sch 1 item 25, by substituting ", (g) or (h)" for "or (g)", applicable from 1 October 2008.
391-5(2)
However, the provider is not required to give a statement mentioned in paragraph (1)(a) if, during the period, the provider transferred the balance of the *FHSA to another FHSA.
391-5(3)
The period for a particular kind of statement under subsection (1) is:
(a)
a financial year; or
(b)
if the Commissioner determines another period under subsection (4) for the kind of statement - that period.
391-5(4)
The Commissioner may determine, by legislative instrument, a period mentioned in subsection (1) for a kind of statement.
391-5(5)
A statement under subsection (1) must be in the *approved form.
391-5(6)
A statement must be given to the Commissioner on or before a day specified in the determination under subsection (7) for the statement.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
391-5(7)
The Commissioner may determine, by legislative instrument, the day, on or before which, a statement under subsection (1) must be given to the Commissioner.
391-5(8)
The day specified in the determination may be different:
(a)
for different kinds of *FHSA provider; and
(b)
in relation to any other matter.
391-5(9)
Subsection (8) does not limit the way in which the determination may specify the day.
391-5(10)
The *approved form may require a statement to contain the following:
(a)
the *tax file number of the *FHSA holder;
(b)
the tax file number of the *FHSA provider.
391-5(11)
Subsection (10) does not limit the information that the *approved form may require a statement to contain.
S 391-5 inserted by No 45 of 2008, s 3 and Sch 1 item 66, effective 26 June 2008.
(Repealed) Subdivision 391-B - Transfer statements
History
Subdiv 391-B repealed by No 70 of 2015, s 3 and Sch 1 item 174, effective 1 July 2015.
Subdiv 391-B inserted by No 45 of 2008, s 3 and Sch 1 item 66, effective 26 June 2008.
391-10
391-10
(Repealed) SECTION 391-10 STATEMENTS ABOUT TRANSFER PAYMENTS BETWEEN FHSAs ETC.
(Repealed by No 70 of 2015)
History
S 391-10 repealed by No 70 of 2015, s 3 and Sch 1 item 174, effective 1 July 2015. S 391-10 formerly read:
SECTION 391-10 STATEMENTS ABOUT TRANSFER PAYMENTS BETWEEN FHSAs ETC.
391-10(1)
This section applies if an *FHSA provider (the
first provider
) in relation to an *FHSA (the
first FHSA
) makes a payment from the FHSA:
(a)
to an FHSA provided by another FHSA provider, in accordance with section 35 of the First Home Saver Accounts Act 2008; or
(b)
to a *superannuation provider in relation to a *complying superannuation plan, in accordance with section 22 or 34 of that Act.
391-10(2)
The first provider must:
(a)
give the other *FHSA provider or *superannuation provider a statement in relation to the payment within 7 days after the day on which the payment is made; and
(b)
give the individual for whose benefit the payment is made a statement in relation to the payment within 30 days after the day on which the payment is made.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
391-10(3)
A statement under subsection (2) must be in the *approved form.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
391-10(4)
The *approved form may require the statement to contain the following information:
(a)
information relating to *personal FHSA contributions made to the first FHSA;
(b)
information relating to the FHSA holder, including whether the individual is in breach of the account balance cap and whether the condition in subparagraph 32(1)(c)(i) of the
First Home Saver Accounts Act 2008 has been met in relation to the individual.
391-10(5)
Subsection (4) does not limit the information that the *approved form may require the statement to contain.
391-10(6)
The *approved form may require the statement to contain the *tax file number of:
(a)
the first provider; and
(b)
the *FHSA holder.
S 391-10 inserted by No 45 of 2008, s 3 and Sch 1 item 66, effective 26 June 2008.
Division 392 - Employee share scheme reporting
History
Div 392 inserted by No 133 of 2009, s 3 and Sch 1 item 5, applicable in relation to the ESS interests mentioned in subsections 83A-5(1) and 83A-5(2) of the Income Tax (Transitional Provisions) Act 1997.
Guide to Division 392
SECTION 392-1
WHAT THIS DIVISION IS ABOUT
A company that provides ESS interests to an individual under an employee share scheme during a year must, at the end of the year (and, in certain cases, at the end of a later year), give certain information to the Commissioner and to the individual.
Note:
For the tax treatment of employee share schemes, see Division 83A of the Income Tax Assessment Act 1997.
History
S 392-1 inserted by No 133 of 2009, s 3 and Sch 1 item 5, applicable in relation to the ESS interests mentioned in subsections 83A-5(1) and 83A-5(2) of the Income Tax (Transitional Provisions) Act 1997.
Subdivision 392-A - Statements
History
Subdiv 392-A inserted by No 133 of 2009, s 3 and Sch 1 item 5, applicable in relation to the ESS interests mentioned in subsections 83A-5(1) and 83A-5(2) of the Income Tax (Transitional Provisions) Act 1997.
SECTION 392-5
STATEMENTS BY PROVIDERS
Statements
392-5(1)
An entity (the
provider
) must give a statement to the Commissioner and to an individual for a *financial year if:
(a)
both of the following subparagraphs apply:
(i)
the provider provides *ESS interests to the individual during the year;
(ii)
Subdivision 83A-B or 83A-C of the Income Tax Assessment Act 1997 (about employee share schemes) applies to the interests; or
(b)
all of the following subparagraphs apply:
(i)
the provider has provided ESS interests to the individual (whether during the year or during an earlier year);
(ii)
Subdivision 83A-C of the Income Tax Assessment Act 1997 (about employee share schemes) applies to the interests;
(iii)
the *ESS deferred taxing point for the interests occurs during the year.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
Form of statements
392-5(2)
The statement must be in the *approved form.
392-5(3)
The *approved form may require the statement to contain the following information:
(a)
the provider's *ABN;
(b)
the following information about the individual:
(i)
the individual's name and address;
(ii)
if the individual has quoted his or her *tax file number to the provider - that tax file number;
(iii)
if the individual acquired the interests in relation to any services provided to the provider, or to a *subsidiary of the provider, in the course or furtherance of an *enterprise *carried on by the individual, and the individual has *quoted his or her ABN to the provider - that ABN;
(c)
the following information about any interests to which both paragraph (1)(a) of this section and Subdivision 83A-B of the Income Tax Assessment Act 1997 apply:
(i)
the number of the interests;
(ii)
the amount paid, at or before the time of acquisition, towards acquiring the interests;
(iii)
the provider's estimate of the *market value of the interests at the time of acquisition;
(iv)
the amount of *TFN withholding tax (ESS) paid or payable by the provider in respect of the interests during the year;
(d)
the following information about any interests to which both paragraph (1)(a) of this section and Subdivision 83A-C of the Income Tax Assessment Act 1997 apply:
(i)
the number of the interests;
(ii)
the amount paid, at or before the time of acquisition, towards acquiring the interests;
(e)
the following information about any interests to which paragraph (1)(b) applies:
(i)
the number of the interests;
(ii)
the amount paid, after the time of acquisition but not after the *ESS deferred taxing point, towards acquiring the interests;
(iii)
the provider's estimate of the market value of the interests at the ESS deferred taxing point;
(iv)
the amount of TFN withholding tax (ESS) paid or payable by the provider in respect of the interests during the year.
Note:
Regulations made for the purposes of section 83A-315 of the Income Tax Assessment Act 1997 may substitute different amounts for the market values of the ESS interests: see section 392-15 in this Schedule.
392-5(4)
Subsection (3) does not limit the information that the *approved form may require the statement to contain.
When statements must be given
392-5(5)
The statement must be given:
(a)
to the individual no later than 14 July after the end of the year; and
(b)
to the Commissioner no later than 14 August after the end of the year.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
Disregard 30 day rule for ESS deferred taxing point if provider does not know when shares are disposed of etc.
392-5(6)
For the purposes of Subdivision 14-C (about TFN withholding tax (ESS)) and this Division, in working out the *ESS deferred taxing point for an *ESS interest, disregard subsection 83A-115(3) or 83A-120(3) (whichever is applicable) of the Income Tax Assessment Act 1997 (about the 30 day rule) if the provider does not know the time worked out under that subsection at the earlier of:
(a)
the time (if any) the provider gives a statement to the relevant individual under this section for the *financial year mentioned in subsection (7); and
(b)
the later of:
(i)
14 July after the end of the financial year mentioned in subsection (7); and
(ii)
if, under section 388-55, the Commissioner defers to a later time the time within which the statement under this section for that financial year is required to be given to the individual - that later time.
392-5(7)
The *financial year is the financial year in which the *ESS deferred taxing point for the *ESS interest occurs, disregarding subsection 83A-115(3) or 83A-120(3) (whichever is applicable) of the Income Tax Assessment Act 1997 (about the 30 day rule).
History
S 392-5 inserted by No 133 of 2009, s 3 and Sch 1 item 5, applicable in relation to the ESS interests mentioned in subsections 83A-5(1) and 83A-5(2) of the Income Tax (Transitional Provisions) Act 1997.
SECTION 392-10
CHANGE OR OMISSION IN INFORMATION GIVEN TO THE COMMISSIONER
392-10(1)
If the provider becomes aware of a material change or material omission in any information given to the individual or the Commissioner under this Division, the provider must:
(a)
tell the individual or the Commissioner, as applicable, of the change in the *approved form; or
(b)
give the omitted information to the individual or the Commissioner, as applicable, in the approved form.
392-10(2)
Information required by subsection (1) must be given no later than 30 days after the provider becomes aware of the change or omission.
Note 1:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
Note 2:
Section 286-75 provides an administrative penalty for breach of this section.
History
S 392-10 inserted by No 133 of 2009, s 3 and Sch 1 item 5, applicable in relation to the ESS interests mentioned in subsections 83A-5(1) and 83A-5(2) of the Income Tax (Transitional Provisions) Act 1997.
Subdivision 392-B - Miscellaneous
History
Subdiv 392-B inserted by No 133 of 2009, s 3 and Sch 1 item 5, applicable in relation to the ESS interests mentioned in subsections 83A-5(1) and 83A-5(2) of the Income Tax (Transitional Provisions) Act 1997.
SECTION 392-15
392-15
APPLICATION OF CERTAIN PROVISIONS OF DIVISION 83A OF THE
INCOME TAX ASSESSMENT ACT 1997
The following provisions of the Income Tax Assessment Act 1997 have effect for the purposes of this Division in the same way as they have for the purposes of Division 83A of that Act:
(a)
section 83A-130 (about takeovers and restructures);
(b)
section 83A-305 (about associates);
(c)
section 83A-315 (about market values and discounts);
(d)
section 83A-320 (about trusts);
(e)
section 83A-325 (about relationships similar to employment);
(f)
section 83A-335 (about stapled securities);
(g)
section 83A-340 (about indeterminate rights).
History
S 392-15inserted by No 133 of 2009, s 3 and Sch 1 item 5, applicable in relation to the ESS interests mentioned in subsections 83A-5(1) and 83A-5(2) of the Income Tax (Transitional Provisions) Act 1997.
Division 393 - Reports by investment bodies
History
Div 393 inserted by No 2 of 2015, s 3 and Sch 2 item 72, applicable in relation to quarters or financial years (as the case requires) beginning on or after 1 July 2015.
Guide to Division 393
SECTION 393-1
WHAT THIS DIVISION IS ABOUT
An investment body must give to the Commissioner quarterly reports about the quoting of investors' tax file numbers and ABNs, and annual reports on Part VA investments.
History
S 393-1 inserted by No 2 of 2015, s 3 and Sch 2 item 72, applicable in relation to quarters or financial years (as the case requires) beginning on or after 1 July 2015.
TABLE OF SECTIONS
TABLE OF SECTIONS
| 393-5 |
Reports about quoting tax file numbers and ABNs |
| 393-10 |
Annual investment income reports |
| 393-15 |
Errors in reports |
SECTION 393-5
REPORTS ABOUT QUOTING TAX FILE NUMBERS AND ABNs
393-5(1)
If an entity is an *investment body in relation to a *Part VA investment for which either of the following occurs during a *quarter:
(a)
an *investor's *tax file number is *quoted in connection with the investment;
(b)
an investor's *ABN is quoted in connection with the investment;
the entity must give to the Commissioner a report on all Part VA investments, in relation to which the entity is an investment body, for which either of those events occurs during the quarter.
393-5(2)
The report must be in the *approved form.
393-5(3)
The report must be given to the Commissioner no later than 28 days after the end of the *quarter.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
393-5(4)
Subsection (1) does not apply to an *investment body in relation to a *quarter for which the investment body has complied with an *arrangement in force between the investment body and the Commissioner relating to the reporting of *tax file numbers and *ABNs.
History
S 393-5 inserted by No 2 of 2015, s 3 and Sch 2 item 72, applicable in relation to quarters or financial years (as the case requires) beginning on or after 1 July 2015.
SECTION 393-10
ANNUAL INVESTMENT INCOME REPORTS
393-10(1)
An entity must give to the Commissioner a report, for a *financial year, on all *Part VA investments in relation to which it was an *investment body at any time during the year.
393-10(2)
The report must be in the *approved form.
393-10(3)
The report must be given to the Commissioner within the following period after the end of the *financial year:
(a)
the period the Commissioner specifies by legislative instrument; or
(b)
otherwise - 4 months.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
393-10(4)
The report need not include particulars of an investment for which the return during the *financial year was less than $1.
393-10(5)
Despite subsection (1), the entity need not give to the Commissioner a report, for a *financial year during which the total number of *Part VA investments in relation to which it was an *investment body is less than:
(a)
the number the Commissioner specifies by legislative instrument; or
(b)
otherwise - 10.
393-10(5A)
Paragraph (5)(b) does not apply to an *investment body that is a *managed investment trust.
History
S 393-10(5A) inserted by No 53 of 2016, s 3 and Sch 6 item 68, effective 5 May 2016. For application provision, see note under Division 12A heading.
393-10(6)
Subsection (1) does not apply to an *investment body in relation to a *financial year for which the investment body has complied with an *arrangement in force between the investment body and the Commissioner relating to the reporting on *Part VA investments.
History
S 393-10 inserted by No 2 of 2015, s 3 and Sch 2 item 72, applicable in relation to quarters or financial years (as the case requires) beginning on or after 1 July 2015.
SECTION 393-15
ERRORS IN REPORTS
393-15(1)
An entity must give to the Commissioner a corrected report if:
(a)
the entity has given a report to the Commissioner under this Division; and
(b)
after giving the report, the entity becomes aware of a material error in it.
393-15(2)
The report must be in the *approved form.
393-15(3)
The report must be given to the Commissioner no later than 28 days after the entity becomes aware of the error.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
History
S 393-15 inserted by No 2 of 2015, s 3 and Sch 2 item 72, applicable in relation to quarters or financial years (as the case requires) beginning on or after 1 July 2015.
Division 394 - Reporting about forestry managed investment schemes
History
Div 394 inserted by No 79 of 2007, s 3 and Sch 8 item 3, applicable to amounts paid by a participant under a forestry managed investment scheme on or after 1 July 2007. The amendment does not apply if any other amounts were paid by the participant or any other participant under the scheme before 1 July 2007.
Guide to Division 394
SECTION 394-1
WHAT THIS DIVISION IS ABOUT
A forestry manager of a forestry managed investment scheme must give the Commissioner information about initial contributions by participants in the scheme. The forestry manager must also inform the Commissioner if the trees are not established under the scheme within 18 months of the first investment in the scheme.
History
S 394-1 inserted by No 79 of 2007, s 3 and Sch 8 item 3, applicable to amounts paid by a participant under a forestry managed investment scheme on or after 1 July 2007. The amendment does not apply if any other amounts were paid by the participant or any other participant under the scheme before 1 July 2007.
History
S 394-1 inserted by No 79 of 2007.
TABLE OF SECTIONS
TABLE OF SECTIONS
| 394-5 |
Statements about initial contributions to scheme |
| 394-10 |
Statements about failure to establish trees within 18 months |
SECTION 394-5
STATEMENTS ABOUT INITIAL CONTRIBUTIONS TO SCHEME
394-5(1)
The *forestry manager of a *forestry managed investment scheme must give the Commissioner a statement in relation to the scheme if:
(a)
the scheme satisfies the requirement in paragraph 394-10(1)(c) of the Income Tax Assessment Act 1997 (the *70% DFE rule); and
(b)
the forestry manager (or an *associate of the forestry manager) receives an amount under the scheme that is included in the forestry manager's (or the associate's) assessable income under section 15-46 of that Act; and
(c)
that amount is the amount that is first paid under the scheme by a *participant in the scheme.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
394-5(2)
A statement under subsection (1) must be in the *approved form.
394-5(3)
The statement must be given to the Commissioner within 3 months after the end of the income year in which the *forestry manager (or the *associate) receives the amount.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
394-5(4)
The *approved form may require the statement to contain the following information:
(a)
the name of the scheme;
(b)
information relating to the identity of the *forestry manager (or the *associate);
(c)
information relating to the amounts paid or payable under the scheme by *participants in the scheme.
394-5(5)
Subsection (4) does not limit the information that the *approved form may require the statement to contain.
History
S 394-5 inserted by No 79 of 2007, s 3 and Sch 8 item 3, applicable to amounts paid by a participant under a forestry managed investment scheme on or after 1 July 2007. The amendment does not apply if any other amounts were paid by the participant or any other participant under the scheme before 1 July 2007.
SECTION 394-10
STATEMENTS ABOUT FAILURE TO ESTABLISH TREES WITHIN 18 MONTHS
394-10(1)
If:
(a)
a *forestry managed investment scheme satisfies the requirement in paragraph 394-10(1)(c) of the Income Tax Assessment Act 1997 (the *70% DFE rule); and
(b)
the condition in subsection 394-10(4) of that Act is not satisfied in relation to the scheme;
the *forestry manager of the scheme must give the Commissioner a statement in relation to the reasons why that condition was not satisfied.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
394-10(2)
A statement under subsection (1) must be in the *approved form.
394-10(3)
The statement must be given to the Commissioner within 3 months after the end of the 18 months mentioned in subsection 394-10(4) of the Income Tax Assessment Act 1997.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
394-10(4)
The *approved form may require the statement to contain the following information:
(a)
the name of the scheme;
(b)
information relating to the identity of the *forestry manager;
(c)
information relating to the circumstances that gave rise to the condition not being satisfied.
394-10(5)
Subsection (4) does not limit the information that the *approved form may require the statement to contain.
History
S 394-10 inserted by No 79 of 2007, s 3 and Sch 8 item 3, applicable to amounts paid by a participant under a forestry managed investment scheme on or after 1 July 2007. The amendment does not apply if any other amounts were paid by the participant or any other participant under the scheme before 1 July 2007.
Division 396 - Third party reporting
History
Div 396 heading substituted by No 162 of 2015, s 3 and Sch 4 item 17, effective 30 November 2015. The heading formerly read:
Division 396 - FATCA
Div 396 inserted by No 67 of 2014, s 3 and Sch 1 item 2, effective 30 June 2014. No 67 of 2014, s 3 and Sch 1 item 3 contains the following application provision:
3 Application
Application rules
(1)
Subject to subitem (2), the amendments made by this Schedule apply in relation to a U.S. Reportable Account that is maintained by a Reporting Australian Financial Institution on or after 1 July 2014.
(2)
The following provisions apply in relation to a payment that is made by a Reporting Australian Financial Institution on or after 1 July 2014:
(a)
section 396-10 in Schedule 1 to the Taxation Administration Act 1953 (as inserted by this Schedule);
(b)
any other provision inserted in that Schedule by this Schedule, to the extent that the provision relates to the section mentioned in paragraph (a).
Permissions and elections
(3)
For the purpose of subitems (1) and (2), subsections 396-20(2) and (3) in Schedule 1 to the Taxation Administration Act 1953 (as inserted by this Schedule) apply in determining the meaning of a term used in those subitems.
Guide to Division 396
SECTION 396-1A
WHAT THIS DIVISION IS ABOUT
This Division requires:
(a) financial institutions to give to the Commissioner information for the purposes of the FATCA Agreement and the Common Reporting Standard; and
(b) certain entities to give to the Commissioner information about transactions that could have tax consequences for other entities.
History
S 396-1A substituted by No 23 of 2016, s 3 and Sch 1 item 19, effective 19 March 2016. S 396-1A formerly read:
SECTION 396-1A WHAT THIS DIVISION IS ABOUT
Financial institutions must give the Commissioner information for the purposes of the FATCA Agreement.
Certain entities must give the Commissioner information about transactions that could reasonably be expected to have tax consequences for other entities.
S 396-1A inserted by No 162 of 2015, s 3 and Sch 4 item 18, effective 30 November 2015.
Subdivision 396-A - FATCA
History
Subdiv 396-A heading inserted by No 162 of 2015, s 3 and Sch 4 item 18, effective 30 November 2015.
Guide to Subdivision 396-A
SECTION 396-1
WHAT THIS SUBDIVISION IS ABOUT
This Subdivision gives effect to the FATCA Agreement between the Government of Australia and the Government of the United States of America.
Reporting Australian Financial Institutions must give the Commissioner certain information about U.S. Reportable Accounts. For the 2015 and 2016 calendar years, they must also give the Commissioner information about payments made to Nonparticipating Financial Institutions.
This Subdivision also creates record-keeping obligations in relation to the requirements to give the Commissioner information.
History
S 396-1 inserted by No 67 of 2014, s 3 and Sch 1 item 2, effective 30 June 2014. For application provision see note under Div 396 heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
| 396-5 |
Statements about U.S. Reportable Accounts |
| 396-10 |
Statements about payments to Nonparticipating Financial Institutions |
| 396-15 |
Meaning of the
FATCA Agreement
|
| 396-20 |
Permissions and elections |
| 396-25 |
Record keeping |
Operative provisions
SECTION 396-5
STATEMENTS ABOUT U.S. REPORTABLE ACCOUNTS
396-5(1)
Subsection (2) applies if:
(a)
an entity is a Reporting Australian Financial Institution (within the meaning of the *FATCA Agreement) at any time in a calendar year; and
(b)
the entity maintains a U.S. Reportable Account (within the meaning of the FATCA Agreement) at any time in the year.
396-5(2)
The entity must give the Commissioner a statement that contains the information in respect of that U.S. Reportable Account that the Australian Government is required to obtain in order for it to fulfil its obligations under the *FATCA Agreement in respect of that U.S. Reportable Account.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
History
S 396-5(2) amended by No 23 of 2016, s 3 and Sch 1 item 8, by inserting a note at the end, effective 19 March 2016. For application and transitional provision, see note under Subdiv 396-C heading.
396-5(3)
The information contained in the statement must be determined by the entity by applying the due diligence procedures required under the *FATCA Agreement.
Note:
Those due diligence procedures are specified in Annex I to the FATCA Agreement, subject to the application of Article 7 of that Agreement (consistency in the application of FATCA to partner jurisdictions).
396-5(4)
A statement under subsection (2) must be in the *approved form.
396-5(5)
More than one statement under subsection (2) may be included in the same document.
396-5(6)
The statement must be given to the Commissioner no later than the first 31 July after the end of the calendar year.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
History
S 396-5(6) amended by No 23 of 2016, s 3 and Sch 1 item 9, by inserting "calendar", effective 19 March 2016. For application and transitional provision, see note under Subdiv 396-C heading.
History
S 396-5 inserted by No 67 of 2014, s 3 and Sch 1 item 2, effective 30 June 2014. For application provision see note under Div 396 heading.
SECTION 396-10
STATEMENTS ABOUT PAYMENTS TO NONPARTICIPATING FINANCIAL INSTITUTIONS
396-10(1)
Subsection (2) applies if:
(a)
an entity is a Reporting Australian Financial Institution (within the meaning of the *FATCA Agreement) at any time in a calendar year; and
(b)
the calendar year is the 2015 or 2016 year; and
(c)
the entity makes a payment to a Nonparticipating Financial Institution (within the meaning of the FATCA Agreement) at any time in the year.
396-10(2)
The entity must give the Commissioner a statement that contains the information in respect of that payment that the Australian Government is required to obtain in order for it to fulfil its obligations under the *FATCA Agreement in respect of that payment.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
History
S 396-10(2) amended by No 23 of 2016, s 3 and Sch 1 item 10, by inserting a note at the end, effective 19 March 2016. For application and transitional provision, see note under Subdiv 396-C heading.
396-10(3)
The information contained in the statement must be determined by the entity by applying the due diligence procedures required under the *FATCA Agreement.
Note:
Those due diligence procedures are specified in Annex I to the FATCA Agreement, subject to the application of Article 7 of that Agreement (consistency in the application of FATCA to partner jurisdictions).
396-10(4)
A statement under subsection (2) must be in the *approved form.
396-10(5)
More than one statement under subsection (2) may be included in the same document.
396-10(6)
The statement must be given to the Commissioner no later than the first 31 July after the end of the calendar year.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
History
S 396-10(6) amended by No 23 of 2016, s 3 and Sch 1 item 11, by inserting "calendar", effective 19 March 2016. For application and transitional provision, see note under Subdiv 396-C heading.
History
S 396-10 inserted by No 67 of 2014, s 3 and Sch 1 item 2, effective 30 June 2014. For application provision see note under Div 396 heading.
SECTION 396-15
396-15
MEANING OF THE
FATCA AGREEMENT
The
FATCA Agreement
is the Agreement between the Government of Australia and the Government of the United States of America to Improve International Tax Compliance and to Implement FATCA, done at Canberra on 28 April 2014.
Note:
The text of the Agreement is set out in Australian Treaty Series [2014] ATNIF 5. In 2014, the text of the Agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
History
S 396-15 inserted by No 67 of 2014, s 3 and Sch 1 item 2, effective 30 June 2014. For application provision see note under Div 396 heading.
SECTION 396-20
PERMISSIONS AND ELECTIONS
396-20(1)
This section applies, for the purposes of this Subdivision:
(a)
in determining whether the conditions in subsections 396-5(1) and 396-10(1) are satisfied; and
(b)
in determining which information the Australian Government is required to obtain in order for it to fulfil its obligations under the *FATCA Agreement.
History
S 396-20(1) amended by No 162 of 2015, s 3 and Sch 4 item 21, by substituting "this Subdivision" for "this Division", effective 30 November 2015.
396-20(2)
To the extent that the *FATCA Agreement gives Australia the ability to permit an entity to use or rely on matters provided for in U.S. Treasury Regulations in determining obligations under the FATCA Agreement, assume that the permission has been given.
396-20(3)
To the extent that the *FATCA Agreement gives Australia the ability to provide for an entity to make an election in determining obligations under the FATCA Agreement, assume that the entity may make the election.
History
S 396-20 inserted by No 67 of 2014, s 3 and Sch 1 item 2, effective 30 June 2014. For application provision see note under Div 396 heading.
SECTION 396-25
RECORD KEEPING
396-25(1)
If an entity is obliged to give the Commissioner a statement under subsection 396-5(2) or 396-10(2), the entity must keep written records that:
(a)
correctly record the procedures by which the entity determines the information that is required to be contained in the statement; and
(b)
are in English, or readily accessible and easily convertible into English.
396-25(2)
The entity must retain the records until the expiration of 5 years after the entity gives the Commissioner the statement under subsection 396-5(2) or 396-10(2).
Note:
Section 288-25 imposes an administrative penalty if an entity does not keep and retain records as required by this section.
History
S 396-25 inserted by No 67 of 2014, s 3 and Sch 1 item 2, effective 30 June 2014. For application provision see note under Div 396 heading.
Subdivision 396-B - Information about transactions that could have tax consequences for taxpayers
History
Subdiv 396-B inserted by No 162 of 2015, s 3 and Sch 4 item 1, effective 30 November 2015. No 162 of 2015, s 3 and Sch 4 item 27 contains the following application provision:
27 Application of amendments
27(1)
Subdivision 396-B in Schedule 1 to the Taxation Administration Act 1953 applies in relation to transactions entered into on or after:
(a)
if table item 3 or 4 in section 396-55 in that Schedule describes the transaction - 1 July 2016; or
(b)
otherwise - 1 July 2017.
27(2)
However, subparagraphs 396-55(a)(ii) and (b)(ii) in Schedule 1 to the Taxation Administration Act 1953 apply in relation to transactions entered into on or after:
(a)
if table item 3 or 4 in section 396-55 in that Schedule describes the transaction - 1 July 2016; or
(b)
otherwise - 1 July 2020.
Guide to Subdivision 396-B
SECTION 396-50
WHAT THIS SUBDIVISION IS ABOUT
The Commissioner can require certain entities to give information about transactions that could reasonably be expected to have tax consequences for other entities.
History
S 396-50 inserted by No 162 of 2015, s 3 and Sch 4 item 1, effective 30 November 2015. For application provision, see note under Subdiv 396-B heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
| 396-55 |
Reporting tax-related information about transactions to the Commissioner |
| 396-60 |
Information required |
| 396-65 |
Exemptions - wholesale clients |
| 396-70 |
Exemptions - other cases |
| 396-75 |
Errors in reports |
Operative provisions
SECTION 396-55
396-55
REPORTING TAX-RELATED INFORMATION ABOUT TRANSACTIONS TO THE COMMISSIONER
An entity mentioned in column 1 of an item of this table must:
(a)
prepare a report in the *approved form setting out information about any transactions described in that item that happened during this period:
(i)
a *financial year; or
(ii)
such other period as the Commissioner specifies by legislative instrument for that item; and
(b)
give the report to the Commissioner on or before:
(i)
the 31st day after the end of that period; or
(ii)
such other time after the end of that period as the Commissioner specifies by legislative instrument for that item;
unless section 396-65, or a notice or determination under section 396-70, provides that the entity is not required to do so.
|
Information to be reported by third parties about transactions
|
|
Column 1
|
Column 2
|
|
Item
|
This entity:
|
must report information about this transaction:
|
| 1 |
a government related entity (within the meaning of the *GST Act), other than a *local governing body |
the provision of a grant by the entity to an entity that has an *ABN |
| 2 |
a government related entity (within the meaning of the *GST Act) |
the provision of consideration (within the meaning of the *GST Act): |
| |
(a) |
by the entity to an entity; and |
| |
(b) |
wholly or partly for a *supply of services; |
| |
unless the supply of services is merely incidental to a supply of goods (within the meaning of the GST Act) |
| 3 |
a State or Territory |
the transfer of a freehold or leasehold interest in real property situated in the State or Territory |
| 4 |
*ASIC |
a transaction about which data has been delivered to *ASIC under the *market integrity rules |
| 5 |
a participant (within the meaning of the Corporations Act 2001) in an *Australian financial market |
a transaction, involving the participant, that: |
| |
(a) |
results in a change to the type, name or number of *shares in a company, or units in a unit trust, that are held by another entity; and |
| |
(b) |
is a transaction about which data is required to be delivered to *ASIC under the *market integrity rules |
| 6 |
a company whose *shares are listed for quotation in the official list of an *Australian financial market |
a transaction that: |
| |
(a) |
results in a change to the type, name or number of *shares in the company that are held by an entity; and |
| |
(b) |
is not a transaction about which data is required to be delivered to *ASIC under the *market integrity rules |
| 7 |
the trustee of a unit trust |
a transaction that: |
| |
|
(a) |
results in a change to the type, name or number of units in the unit trust that are held by an entity; and |
| |
|
(b) |
is not a transaction about which data is required to be delivered to *ASIC under the *market integrity rules |
| 8 |
the trustee of a trust (other than a unit trust) |
a transaction that results in a change to the type, name or number of any *shares in a company, or units in a unit trust: |
| |
|
(a) |
that are held as assets of the trust; and |
| |
|
(b) |
to which one or more entities are absolutely entitled as beneficiaries of the trust; |
| |
|
unless the trustee gives the Commissioner an *income tax return for the income year in which the transaction was entered into |
| 9 |
an administrator of a payment system (within the meaning of the Payment Systems (Regulation) Act 1998) |
a transaction involving an electronic payment if: |
| (a) |
the transaction is facilitated by the payment system on behalf of an entity; and |
| (b) |
the administrator reasonably believes that the transaction: |
| |
|
(i) |
provides a payment to the entity, or provides a refund or cash to a customer of the entity; and |
| |
|
(ii) |
is for the purposes of a *business carried on by the entity |
| 9A |
an *eligible community housing provider |
the issuing by the provider of a certificate under section 980-15 of the Income Tax Assessment Act 1997 |
| 10 |
a company |
the issuing by the company of a *share that could give rise to an entitlement to a *tax offset (or a modified CGT treatment) under Subdivision 360-A of the Income Tax Assessment Act 1997 |
| 11 |
an entity that makes a *supply of a cleaning service and has an *ABN |
the provision of consideration (within the meaning of the *GST Act) by the entity to another entity wholly or partly for the *supply by the other entity of a cleaning service, unless: |
| (a) |
the entities are *members of the same *consolidated group or *MEC group; or |
| (b) |
Division 12 requires that an amount be withheld from the payment of the consideration |
| 12 |
an entity that makes a *supply of a courier service or a road freight service and has an *ABN |
the provision of consideration (within the meaning of the *GST Act) by the entity to another entity wholly or partly for the *supply by the other entity of a courier service or a road freight service, unless: |
| (a) |
the entities are *members of the same *consolidated group or *MEC group; or |
| (b) |
Division 12 requires that an amount be withheld from the payment of the consideration |
| 13 |
an entity that makes a *supply of a security, investigation or surveillance service and has an *ABN |
the provision of consideration (within the meaning of the *GST Act) by the entity to another entity wholly or partly for the *supply by the other entity of a security, investigation or surveillance service, unless: |
| (a) |
the entities are *members of the same *consolidated group or *MEC group; or |
| (b) |
Division 12 requires that an amount be withheld from the payment of the consideration |
| 14 |
an entity that makes a *supply of an information technology service and has an *ABN |
the provision of consideration (within the meaning of the *GST Act) by the entity to another entity wholly or partly for the *supply by the other entity of an information technology service, unless: |
| (a) |
the entities are *members of the same *consolidated group or *MEC group; or |
| (b) |
Division 12 requires that an amount be withheld from the payment of the consideration |
| 15 |
an operator of an electronic distribution platform (within the meaning of the *GST Act, but disregarding paragraph 84-70(1)(c) of that Act) |
the provision of consideration (within the meaning of the GST Act) by an entity to another entity (the
supplier
) wholly or partly for a *supply made by the supplier through the electronic distribution platform, if: |
| (a) |
the supply is connected with the indirect tax zone (within the meaning of the GST Act), or would be connected with the indirect tax zone (within the meaning of the GST Act) if the definition of
indirect tax zone
in the GST Act included the external Territories; and |
| (b) |
no amount is required by Division 12 to be withheld from the payment of the consideration; and |
| (c) |
the operator and the supplier are not *members of the same *consolidated group or *MEC group; and |
| (d) |
the supply is not any of the following: |
| |
|
(i) |
a supply by way of transfer of ownership of goods (within the meaning of the GST Act); |
| |
|
(ii) |
a supply by way of transfer of ownership of real property (within the meaning of the GST Act); |
| |
|
(iii) |
a financial supply (within the meaning of the GST Act) |
Note:
An administrative penalty applies to a failure to give the report by that time (see subsection 286-75(1)). An administrative penalty applies for any false statements in the report (see section 284-75).
History
S 396-55 amended by No 69 of 2023, s 3 and Sch 2 item 160, by omitting "Chapter 7 of" before "the Corporations Act 2001" from table item 5, effective 15 September 2023.
S 396-55 amended by No 84 of 2022, s 3 and Sch 2 item 1, by inserting table item 15, effective 1 January 2023. No 84 of 2022, s 3 and Sch 2 item 2 contains the following application provision:
2 Application of amendment
2
The amendment made by this Schedule applies in relation to transactions entered into on or after:
(a)
for a transaction relating to a supply of taxi travel (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999) - 1 July 2023; or
(b)
for a transaction relating to a supply of short-term accommodation - 1 July 2023; or
(c)
in any other case - 1 July 2024.
S 396-55 amended by No 34 of 2019, s 3 and Sch 5 item 4, by inserting table item 9A, applicable in relation to records and disclosures of information made at or after 1 July 2019, whether the information was obtained before, at or after 1 July 2019.
S 396-55 amended by No 141 of 2018, s 3 and Sch 2 item 1, by substituting table item 12 and inserting table items 13 and 14, effective 1 January 2019. No 141 of 2018, s 3 and Sch 2 items 2 and 3 contain the following application provisions:
2 Application
(1)
Item 12 of the table in the amended provision applies in relation to a road freight service transaction unless:
(a)
the transaction happens before 1 July 2019; or
(b)
the transaction happens during an alternative reporting period for item 12 that begins before 1 July 2019.
(2)
An inserted item applies to a transaction unless:
(a)
the transaction happens before 1 July 2019; or
(b)
the transaction happens during an alternative reporting period for the item that begins before 1 July 2019.
(3)
In this item:
alternative reporting period
means a period specified under subparagraph (a)(ii) of the amended provision.
amended provision
means section 396-55 in Schedule 1 to the Taxation Administration Act 1953, as amended by item 1 of this Schedule.
inserted item
means either item 13 or 14 of the table in the amended provision.
road freight service transaction
means a transaction described in item 12 of the table that is not a transaction in relation to a courier service.
3 General exemptions
(1)
As from 1 July 2019 or the commencement of this Schedule, whichever is the later, the Commissioner is taken to have:
(a)
determined, under subsection 396-70(4) in Schedule 1 to the Taxation Administration Act 1953, the matter in subitem (2); and
(b)
revoked the determination of the matter in subitem 3(3) of Schedule 2 to the Treasury Laws Amendment (Black Economy Taskforce Measures No. 1) Act 2018, as amended by the Commissioner if it has been amended.
(2)
Where the amended provision requires an entity to prepare and give a report for a transaction that is described in item 12 of the table in that provision and that happens during a particular period (the
reporting period
), the entity is not so required if:
(a)
the total value of the consideration that:
(i)
is received by the entity during the reporting period; and
(ii)
relates to the supply by the entity, including by a contractor or subcontractor on behalf of the entity, of a courier service or a road freight service;
is less than 10% of the entity's relevant GST turnover as at the end of the reporting period; and
(b)
the transaction is not described in another item of the table in the amended provision; and
(c)
the entity has not, before the time by which the amended provision requires the report to be given, or within such further time allowed by the Commissioner, chosen to be required to prepare and give a report for the transaction.
(3)
For the purposes of paragraph (2)(c), giving a report for the transaction is sufficient evidence of the making of the choice.
(4)
Neither of the following is a legislative instrument:
(a)
the determination mentioned in paragraph (1)(a);
(b)
the revocation mentioned in paragraph (1)(b).
(5)
The Commissioner may, by legislative instrument under subsection 396-70(4) in Schedule 1 to the Taxation Administration Act 1953, repeal or amend the determination mentioned in paragraph (1)(a) as if the Commissioner had made it by legislative instrument under subsection 396-70(4).
Note:
See subsection 33(3) of the Acts Interpretation Act 1901. The legislative instrument would provide that the determination is repealed or amended.
(6)
For a transaction that happens on or after 1 July 2019 but during an alternative reporting period that begins before 1 July 2019:
(a)
the determination mentioned in paragraph (1)(a) does not apply; and
(b)
the determination to which paragraph (1)(b) refers applies despite its revocation.
(7)
In this item:
alternative reporting period
means a period specified under subparagraph 396-55(a)(ii) in Schedule 1 to the Taxation Administration Act 1953 for item 12 of the table in section 396-55.
amended provision
means section 396-55 in Schedule 1 to the Taxation Administration Act 1953, as amended by item 1 of this Schedule.
relevant GST turnover
, as at the end of a reporting period, means:
(a)
if the entity has been making supplies for at least 12 months - the entity's current GST turnover as at the end of the reporting period; or
(b)
otherwise - the entity's projected GST turnover, within the meaning of the
A New Tax System (Goods and Services Tax) Act 1999, as at the end of the reporting period.
Table item 12 formerly read:
| 12 |
an entity that makes a *supply of a courier service and has an *ABN |
the provision of consideration (within the meaning of the *GST Act) by the entity to another entity wholly or partly for the *supply by the other entity of a courier service, unless: |
| (a) |
the entities are *members of the same *consolidated group or *MEC group; or |
| (b) | Division 12 requires that an amount be withheld from the payment of the consideration |
S 396-55 amended by No 121 of 2018, s 3 and Sch 2 item 1, by inserting table items 11 and 12, effective 4 October 2018. No 121 of 2018, s 3 and Sch 2 items 2 and 3 contain the following application and transitional provisions:
Part 2 - Application and transitional provisions
2 Application
(1)
An inserted item applies in relation to a transaction unless:
(a)
the transaction happens before 1 July 2018; or
(b)
the transaction happens during an alternative reporting period that begins before 1 July 2018.
(2)
In this item:
alternative reporting period
, in relation to an inserted item, means a period specified for the inserted item under subparagraph (a)(ii) of the amended provision.
amended provision
means section 396-55 in Schedule 1 to the Taxation Administration Act 1953, as amended by item 1 of this Schedule.
inserted item
means either item 11 or 12 of the table in the amended provision.
3 General exemptions
(1)
As from the commencement of this Schedule, the Commissioner is taken to have determined, under subsection 396-70(4) in Schedule 1 to the Taxation Administration Act 1953, the matters in subitems (2) and (3).
Exemption in relation to cleaning services
(2)
Where the amended provision requires an entity to prepare and give a report for a transaction that is described in item 11 of the table in that provision and that happens during a particular period (the
reporting period
), the entity is not so required if:
(a)
the total value of the consideration that:
(i)
is received by the entity during the reporting period; and
(ii)
relates to the supply by the entity, including by a contractor or subcontractor on behalf of the entity, of a cleaning service;
is less than 10% of the entity's relevant GST turnover as at the end of the reporting period; and
(b)
the transaction is not described in another item of the table in the amended provision; and
(c)
the entity has not, before the time by which the amended provision requires the report to be given, or within such further time allowed by the Commissioner, chosen to be required to prepare and give a report for the transaction.
Exemption in relation to courier services
(3)
Where the amended provision requires an entity to prepare and give a report for a transaction that is described in item 12 of the table in that provision and that happens during a particular period (the
reporting period
), the entity is not so required if:
(a)
the total value of the consideration that:
(i)
is received by the entity during the reporting period; and
(ii)
relates to the supply by the entity, including by a contractor or subcontractor on behalf of the entity, of a courier service;
is less than 10% of the entity's relevant GST turnover as at the end of the reporting period; and
(b)
the transaction is not described in another item of the table in the amended provision; and
(c)
the entity has not, before the time by which the amended provision requires the report to be given, or within such further time allowed by the Commissioner, chosen to be required to prepare and give a report for the transaction.
Determination not a legislative instrument
(4)
The determination under subitem (1) is not a legislative instrument.
Repeal or amendment of determination
(5)
The Commissioner may, by legislative instrument under subsection 396-70(4) in Schedule 1 to the Taxation Administration Act 1953, repeal or amend the determination as if the Commissioner had made it by legislative instrument under subsection 396-70(4).
Note:
See subsection 33(3) of the Acts Interpretation Act 1901. The legislative instrument would provide that the determination under subitem (1) is repealed or amended.
(6)
For paragraphs (2)(c) and (3)(c), giving a report for the transaction is sufficient evidence of the making of the choice.
Definitions
(7)
In this item:
amended provision
means section 396-55 in Schedule 1 to the Taxation Administration Act 1953, as amended by item 1 of this Schedule.
relevant GST turnover
, as at the end of a reporting period, means:
(a)
if the entity has been making supplies for at least 12 months - the entity's current GST turnover as at the end of the reporting period; or
(b)
otherwise - the entity's projected GST turnover, within the meaning of the A New Tax System (Goods and Services Tax) Act 1999, as at the end of the reporting period.
S 396-55 amended by No 54 of 2016, s 3 and Sch 1 item 17, by inserting table item 10, applicable in relation to equity interests issued on or after 1 July 2016.
S 396-55 inserted by No 162 of 2015, s 3 and Sch 4 item 1, effective 30 November 2015. For application provision, see note under Subdiv 396-B heading.
SECTION 396-60
INFORMATION REQUIRED
Transactions not involving market participants
396-60(1)
For the purposes of section 396-55, the information required by the *approved form about a transaction (other than a transaction described in table item 5 in that section):
(a)
must relate to:
(i)
the identification, collection or recovery of a possible *tax-related liability; or
(ii)
the identification of a possible reduction of a possible tax-related liability;
of a party to the transaction (disregarding any exemption under a *taxation law that may apply to those parties); and
(b)
may relate to identifying the parties to the transaction; and
(c)
for a transaction described in table item 3 in that section - may include the *tax file numbers of those parties to the transaction who have quoted their tax file numbers to the State or Territory concerned.
History
S 396-60(1) amended by No 54 of 2016, s 3 and Sch 1 item 18, by substituting para (a), applicable in relation to equity interests issued on or after 1 July 2016. Para (a) formerly read:
(a)
must relate to the identification, collection or recovery of a possible *tax-related liability of a party to the transaction (disregarding any exemption under a *taxation law that may apply to those parties); and
Transactions involving market participants
396-60(2)
For the purposes of section 396-55, the information required by the *approved form about a transaction described in table item 5 in that section must relate to identifying the parties to the transaction.
Some reporting entities may request tax file numbers
396-60(3)
A State or Territory may request an entity to quote the entity's *tax file number to the State or Territory if:
(a)
the tax file number is for a report by the State or Territory under section 396-55 about a transaction described in table item 3 in that section; and
(b)
the entity is a party to the transaction.
History
S 396-60 inserted by No 162 of 2015, s 3 and Sch 4 item 1, effective 30 November 2015. For application provision, see note under Subdiv 396-B heading.
SECTION 396-65
EXEMPTIONS - WHOLESALE CLIENTS
396-65(1)
An entity is not required to include, in a report under section 396-55, information about a transaction described in table item 5, 6 or 7 in that section to the extent that the information relates to a party to the transaction:
(a)
who is not an individual; and
(b)
who, under the transaction, is being provided with:
(i)
a financial product (within the meaning of Division 3 of Part 7.1 of the Corporations Act 2001); or
(ii)
a financial service (within the meaning of that Act);
as a wholesale client (within the meaning of that Act).
Note:
This exemption does not apply to information relating to any other party to the transaction, such as the party providing the product or service.
History
S 396-65(1) amended by No 76 of 2023, s 3 and Sch 2 items 733 and 734, by substituting "Division 3 of Part 7.1" for "Chapter 7" in para (b)(i) and "that Act" for "that Chapter" (wherever occurring) in para (b), effective 20 October 2023.
396-65(2)
An entity is not required to include, in a report under section 396-55, information about a transaction described in table item 8 in that section to the extent that the information relates to a beneficiary mentioned in that item:
(a)
who is not an individual; and
(b)
who, under the transaction, is being provided with:
(i)
a financial product (within the meaning of Division 3 of Part 7.1 of the Corporations Act 2001); or
(ii)
a financial service (within the meaning of that Act);
as a wholesale client (within the meaning of that Act).
Note:
This exemption does not apply to information relating to any other party to the transaction, such as the party providing the product or service.
History
S 396-65(2) amended by No 76 of 2023, s 3 and Sch 2 items 735 and 736, by substituting "Division 3 of Part 7.1" for "Chapter 7" in para (b)(i) and "that Act" for "that Chapter" (wherever occurring) in para (b), effective 20 October 2023.
History
S 396-65 substituted by No 8 of 2019, s 3 and Sch 8 item 62, effective 1 April 2019 and applicable in relation to transactions entered into on or after 1 July 2017. S 396-65 formerly read:
SECTION 396-65 EXEMPTIONS - WHOLESALE CLIENTS
396-65
An entity is not required to include, in a report under section 396-55, information about a transaction described in table item 5, 6, 7 or 8 in that section to the extent that the information relates to a party to the transaction:
(a)
who is not an individual; and
(b)
who is being provided a financial product, or a financial service, under the transaction as a wholesale client.
Financial product
,
financial service
and
wholesale client
have the same meanings in this section as they do in Chapter 7 of the Corporations Act 2001.
Note:
This exemption does not apply to information relating to any other party to the transaction, such as the party providing the product or service.
S 396-65 inserted by No 162 of 2015, s 3 and Sch 4 item 1, effective 30 November 2015. For application provision, see note under Subdiv 396-B heading.
SECTION 396-70
EXEMPTIONS - OTHER CASES
Exemptions for particular entities
396-70(1)
The Commissioner may, in writing, notify an entity that it:
(a)
is not required to prepare and give reports under section 396-55; or
(b)
is not required to do so for specified classes of transactions.
396-70(2)
An entity dissatisfied with a decision to:
(a)
give it a notice under subsection (1); or
(b)
not give it a notice under subsection (1);
may object against the decision in the manner set out in Part IVC.
396-70(3)
A notice under subsection (1) is not a legislative instrument.
General exemptions
396-70(4)
The Commissioner may, by legislative instrument, determine that specified classes of entities:
(a)
are not required to prepare and give reports under section 396-55; or
(b)
are not required to do so for specified classes of transactions.
History
S 396-70 inserted by No 162 of 2015, s 3 and Sch 4 item 1, effective 30 November 2015. For application provision, see note under Subdiv 396-B heading.
SECTION 396-75
ERRORS IN REPORTS
396-75(1)
An entity must give to the Commissioner a corrected report if:
(a)
the entity has given a report to the Commissioner under this Subdivision; and
(b)
after giving the report, the entity becomes aware of a material error in it.
396-75(2)
The report must be in the *approved form.
396-75(3)
The report must be given to the Commissioner no later than 28 days after the entity becomes aware of the error.
Note 1:
An administrative penalty applies to a failure to give the report by that time (see subsection 286-75(1)). An administrative penalty applies for any false statements in the report (see section 284-75).
Note 2:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
History
S 396-75 inserted by No 162 of 2015, s 3 and Sch 4 item 1, effective 30 November 2015. For application provision, see note under Subdiv 396-B heading.
Subdivision 396-C - Common Reporting Standard
History
Subdiv 396-C inserted by No 23 of 2016, s 3 and Sch 1 item 13, effective 19 March 2016. No 23 of 2016 (as amended by No 8 of 2019), s 3 and Sch 1 items 14 and 15 contain the following application and transitional provisions:
14 Application of amendments and CRS
14(1)
The amendments made apply to:
(a)
the period from 1 July 2017 to 31 December 2017, as if the period were a calendar year; and
(b)
2018 and later calendar years.
14(2)
The date provided for in the CRS as mentioned in column 1 of an item of the following table is taken to be the date mentioned in column 2 of the item:
|
Dates
|
|
Item
|
Column 1
Date provided for in the CRS
|
Column 2
Actual date
|
| 1 |
the date provided for in subparagraph C(6) of Section III |
30 June 2017 |
| 2 |
the date provided for in paragraph D of Section III |
(a) |
in relation to a Preexisting Individual Account (within the meaning of the CRS) that is a Lower Value Account (within the meaning of the CRS) - 31 July 2019; and |
| |
|
(b) |
in relation to a Preexisting Individual Account that is a High Value Account (within the meaning of the CRS) - 31 July 2018 |
| 3 |
the date provided for in paragraph A of Section V |
30 June 2017 |
| 4 |
the dates provided for in paragraph B of Section V |
30 June 2017 |
| 5 |
the first occurring date provided for in subparagraph E(1) of Section V |
30 June 2017 |
| 6 |
the last occurring date provided for in subparagraph E(1) of Section V |
31 July 2018 |
| 7 |
the date provided for in subparagraph E(2) of Section V |
30 June 2017 |
| 8 |
the date provided for in subparagraph B(8)(b) of Section VIII |
1 July 2017 |
| 9 |
the date provided for in subparagraph C(14) of Section VIII |
30 June 2017 |
| 10 |
the first occurring date provided for in subparagraph C(15) of Section VIII |
30 June 2017 |
| 11 |
the date provided for in subparagraph C(17)(f)(ii) of Section VIII |
1 July 2017 |
14(3)
For the purposes of:
(a)
subparagraph C(6) of Section III of the CRS; and
(b)
paragraphs A and B and subparagraph E(2) of Section V; and
(c)
subparagraph C(15) of Section VIII;
the following periods are taken to be separate calendar years:
(d)
the period from 1 January 2017 to 30 June 2017;
(e)
the period from 1 July 2017 to 31 December 2017.
15 Transitional provisions
Participating Jurisdiction Financial Institutions
15(1)
For the purposes of applying subparagraph D(2) of Section V and subparagraph A(2) of Section VI of the CRS under Schedule
1 to the
Taxation Administration Act 1953, a Financial Institution (within the meaning of the CRS) that:
(a)
is an Investment Entity (within the meaning of the CRS) because of subparagraph A(6)(b) of Section VIII of the CRS; and
(b)
is not a Participating Jurisdiction Financial Institution (within the meaning of the CRS); and
(c)
would be a Participating Jurisdiction Financial Institution if the jurisdictions declared to be committed jurisdictions under subitem (2) were Participating Jurisdictions (within the meaning of the CRS);
is taken not to be a Passive NFE (within the meaning of the CRS) during the period from 1 July 2017 to 31 December 2017, and during the whole of 2018 and 2019.
15(2)
The Commissioner may, by legislative instrument, declare one or more jurisdictions (within the meaning of the CRS) to be committed jurisdictions.
High Value Accounts
15(2A)
For the purposes of subsections
396-105(1) and
(2) in Schedule
1 to the
Taxation Administration Act 1953, an account maintained by a Reporting Financial Institution on 1 July 2017 is treated as being a Reportable Account (within the meaning of the CRS) on that day if the account:
(a)
would be a Reportable Account (within the meaning of the CRS) on that day if the Reporting Financial Institution applied the due diligence procedures described in the CRS in relation to the account on or before that day; and
(b)
is a High Value Account (within the meaning of the CRS) on 30 June 2017.
Preexisting Entity Accounts
15(2B)
For the purposes of subsections
396-105(1) and
(2) in Schedule
1 to the
Taxation Administration Act 1953, an account maintained by a Reporting Financial Institution on 1 July 2017 is treated as being a Reportable Account (within the meaning of the CRS) on that day if the account:
(a)
would be a Reportable Account (within the meaning of the CRS) on that day if the Reporting Financial Institution applied the due diligence procedures described in the CRS in relation to the account on or before that day; and
(b)
is a Preexisting Entity Account (within the meaning of the CRS).
Reporting of Lower Value Accounts
15(3)
For the purposes of (and without limiting) subsections
396-105(1) and
(2) in Schedule
1 to the
Taxation Administration Act 1953, as amended by this Schedule, an account maintained by a Reporting Financial Institution at any time in the 2018 calendar year is treated as being a Reportable Account (within the meaning of the CRS) at that time if the account:
(a)
is a Lower Value Account (within the meaning of the CRS); and
(b)
has not been included in a statement under subsection
396-105(2) in that Schedule for the 2017 calendar year; and
(c)
at that time, would be a Reportable Account (within the meaning of the CRS) if the Reporting Financial Institution applied the due diligence procedures described in the CRS in relation to the account at that time.
History
S 15(3) substituted by No 8 of 2019, s 3 and Sch 8 item 2, effective 1 January 2018. S 15(3) formerly read:
Statements
15(3)
Despite subsection 396-105(6) in Schedule 1 to the Taxation Administration Act 1953, to the extent that a statement under subsection 396-105(2) in that Schedule for 2017 relates to an account that is a Lower Value Account (within the meaning of the CRS), the statement must be given to the Commissioner no later than 31 July 2019.
Note:
Section 388-55 in that Schedule allows the Commissioner to defer the time for giving an approved form.
15(4)
For the purpose of subitem (2A), (2B) or (3), subsections
396-120(2) to
(8) in Schedule
1 to the
Taxation Administration Act 1953, apply in determining the meaning of a term used in that subitem.
Guide to Subdivision 396-C
SECTION 396-100
WHAT THIS SUBDIVISION IS ABOUT
Australian Financial Institutions must give the Commissioner certain information about accounts of foreign residents. This obligation is based on the Common Reporting Standard.
Note 1:
This obligation will assist the Australian Government to exchange information with other jurisdictions in accordance with international agreements, such as the Multilateral Convention on Mutual Administrative Assistance in Tax Matters, done at Strasbourg on 25 January 1988.
In 2015, the text of the Convention was available on the OECD's website (http://www.oecd.org).
Note 2:
The purpose of the Common Reporting Standard is to reduce international tax evasion. It sets out due diligence procedures for financial institutions to apply to identify account holders that are foreign tax residents, and provides for financial institutions to report information with respect to such account holders.
This Subdivision also creates record-keeping obligations in relation to the requirement to give the Commissioner information.
This Subdivision also requires the Commissioner to report on certain Reportable Accounts that are maintained by Australian Reporting Financial Institutions.
History
S 396-100 inserted by No 23 of 2016, s 3 and Sch 1 item 13, effective 19 March 2016. For application and transitional provision, see note under Subdiv 396-C heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 396-105 |
Statements about Reportable Accounts |
| 396-110 |
Meaning of
CRS
|
| 396-115 |
Matters Common Reporting Standard leaves to domestic law |
| 396-120 |
Application of Common Reporting Standard |
| 396-125 |
Record keeping |
| 396-130 |
Anti-avoidance provisions |
| 396-135 |
Application of penalty to false or misleading self-certification |
| 396-136 |
Report on Reportable Accounts maintained by Australian Reporting Financial Institutions |
Operative provisions
SECTION 396-105
STATEMENTS ABOUT REPORTABLE ACCOUNTS
396-105(1)
Subsection (2) applies if:
(a)
at any time in a calendar year, an entity:
(i)
is a Reporting Financial Institution (within the meaning of the *CRS); or
(ii)
is an institution that a notice under subsection 396-130(5) requires to act as a Reporting Financial Institution; and
(b)
at that time in the year, the entity:
(i)
is resident in Australia (within the meaning of the CRS); or
(ii)
is a branch located in Australia (within the meaning of the CRS); and
(c)
at any time in the year, the entity maintains:
(i)
a Reportable Account (within the meaning of the CRS); or
(ii)
an account that a notice under subsection 396-130(2) requires the entity to treat as a Reportable Account.
Note:
Subsection 396-120(3) applies the CRS to all jurisdictions.
396-105(2)
The entity must give the Commissioner a statement that contains in respect of the account the information that the *CRS states the entity must report.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
396-105(3)
Whether an entity maintains a Reportable Account (within the meaning of the *CRS) must be determined by the entity by applying the due diligence procedures described in the CRS.
Note:
Section 288-85 provides an administrative penalty for failing to obtain a self-certification in relation to the account when applying the due diligence procedures.
396-105(4)
A statement under subsection (2) must be in the *approved form.
396-105(5)
More than one statement under subsection (2) may be included in the same document.
396-105(6)
The statement must be given to the Commissioner no later than the first 31 July after the end of the calendar year.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
History
S 396-105 inserted by No 23 of 2016, s 3 and Sch 1 item 13, effective 19 March 2016. For application and transitional provision, see note under Subdiv 396-C heading.
SECTION 396-110
MEANING OF
CRS
396-110(1)
The
CRS
is the Common Reporting Standard set out in Part II.B of the Standard for Automatic Exchange of Financial Account Information in Tax Matters approved by the Council of the Organisation for Economic Co-Operation and Development on 15 July 2014.
Note:
In 2015, the text of the Standard was available on the OECD's website (http://www.oecd.org).
396-110(2)
Subject to section 396-120, for the purposes of this Subdivision, the *CRS must be applied consistently with Part III.B (the
CRS Commentary
) of the Standard for Automatic Exchange of Financial Account Information in Tax Matters.
History
S 396-110 inserted by No 23 of 2016, s 3 and Sch 1 item 13, effective 19 March 2016. For application and transitional provision, see note under Subdiv 396-C heading.
SECTION 396-115
MATTERS COMMON REPORTING STANDARD LEAVES TO DOMESTIC LAW
Defined terms
396-115(1)
For the purposes of subparagraph B(1)(c) of Section VIII of the *CRS, the following Entities (within the meaning of the CRS) are defined as Non-Reporting Financial Institutions:
(a)
an Entity (other than a *self managed superannuation fund or a *small superannuation fund) to which any of the following paragraphs of Annex II of the *FATCA Agreement applies:
(i)
paragraph A (government entity), B (international organisation) or C (central bank) of section I;
(ii)
paragraph A (retirement fund) of section II;
(b)
an Entity the Minister prescribes by legislative instrument.
History
S 396-115(1) amended by No 141 of 2020, s 3 and Sch 4 item 78, by inserting "(other than a *self managed superannuation fund or a *small superannuation fund)" in para (a), effective 18 December 2020.
396-115(2)
Subparagraph (1)(a)(i) does not apply with respect to a payment that is derived from an obligation held in connection with a commercial financial activity of a type engaged in by a Specified Insurance Company, Custodial Institution, or Depository Institution (within the meaning of the *CRS).
396-115(3)
For the purposes of subparagraph C(17)(g) of Section VIII of the *CRS, the following accounts are defined as Excluded Accounts:
(a)
an account to which any of the following subparagraphs of paragraph A of section V of Annex II of the *FATCA Agreement applies:
(i)
subparagraph (1) (retirement and pension accounts);
(ii)
subparagraph (3) (certain other tax-favoured accounts);
(aa)
a *self managed superannuation fund account;
(ab)
a *small superannuation fund account;
(b)
an account the Minister prescribes by legislative instrument.
History
S 396-115(3) amended by No 141 of 2020, s 3 and Sch 4 item 79, by inserting para (aa) and (ab), effective 18 December 2020.
Elections by entities
396-115(4)
To the extent that the *CRS gives Australia the ability to provide for an entity to make an election in determining obligations under the CRS, assume that the entity may make the election.
Modifications mentioned in CRS Commentary
396-115(5)
The *CRS has effect with the following modifications mentioned in the *CRS Commentary:
(a)
the inclusion mentioned in paragraph 13 of the Commentary on Section VII concerning Special Due Diligence Requirements;
(b)
the 2 replacements mentioned in paragraph 82 of the Commentary on Section VIII concerning Defined Terms.
History
S 396-115 inserted by No 23 of 2016, s 3 and Sch 1 item 13, effective 19 March 2016. For application and transitional provision, see note under Subdiv 396-C heading.
SECTION 396-120
APPLICATION OF COMMON REPORTING STANDARD
Scope of this section
396-120(1)
This section applies:
(a)
for the purposes of section 288-85 (Failure by Reporting Financial Institution to obtain self-certification); and
(b)
for the purposes of this Subdivision:
(i)
in determining whether the conditions in subsection 396-105(1) are satisfied; and
(ii)
in determining which information the *CRS states a Reporting Financial Institution must report.
General reporting requirements
396-120(2)
Paragraph F of Section I of the *CRS is to be disregarded.
Reportable and Participating Jurisdictions
396-120(3)
All jurisdictions (other than Australia) are to be treated as Reportable Jurisdictions.
396-120(4)
Without limiting subparagraph D(5) of Section VIII of the *CRS, Australia is to be treated as a Participating Jurisdiction.
Accounts
396-120(5)
Without limiting subparagraph D(1) of Section VIII of the *CRS, an account maintained by a Reporting Financial Institution for an entity is treated as being a Reportable Account (within the meaning of the CRS) if:
(a)
the Reporting Financial Institution does not apply the due diligence procedures described in the CRS in relation to the account; and
(b)
the CRS does not state that the account is not required to be identified; and
(c)
the account would be such a Reportable Account if the Reporting Financial Institution applied those procedures.
396-120(6)
The date provided for in subparagraph C(9) of Section VIII of the *CRS (about Preexisting Accounts) (as affected by paragraph 396-115(5)(b) in this Schedule) is taken to be 30 June 2017.
396-120(7)
A reference in the *CRS to a New Account is treated as being a reference to a Financial Account maintained by a Reporting Financial Institution that is not a Preexisting Account.
Dollar amounts
396-120(8)
An entity may choose to treat all dollar amounts in the *CRS as being in Australian dollars.
Note:
Otherwise, all dollar amounts are in United States dollars: see subparagraph C(4) of Section VII of the CRS.
History
S 396-120 inserted by No 23 of 2016, s 3 and Sch 1 item 13, effective 19 March 2016. For application and transitional provision, see note under Subdiv 396-C heading.
SECTION 396-125
RECORD KEEPING
396-125(1)
If paragraph 396-105(1)(a) applies to an entity for a calendar year, the entity must keep written records that:
(a)
correctly record the procedures by which the entity determines:
(i)
whether, at any time during the year, the entity maintains an account to which paragraph 396-105(1)(c) applies; and
(ii)
the information that is required to be contained in the statement (if any) the entity is obliged to give the Commissioner under subsection 396-105(2); and
(b)
are in English, or readily accessible and easily convertible into English.
396-125(2)
The entity must retain the records, to the extent that they relate to a particular account, until:
(a)
the expiration of 5 years after the entity gives the Commissioner the statement in respect of the account under subsection 396-105(2); or
(b)
if the entity is not required to give the Commissioner a statement in respect of the account for the year - 31 July in the sixth year after the end of the year.
Note:
Section 288-25 imposes an administrative penalty if an entity does not keep and retain records as required by this section.
History
S 396-125 inserted by No 23 of 2016, s 3 and Sch 1 item 13, effective 19 March 2016. For application and transitional provision, see note under Subdiv 396-C heading.
SECTION 396-130
ANTI-AVOIDANCE PROVISIONS
Commissioner may require an account to be treated as a Reportable Account
396-130(1)
The Commissioner may require an entity that:
(a)
is a Reporting Financial Institution (within the meaning of the *CRS); or
(b)
is a Financial Institution that a notice under subsection (5) requires to act as a Reporting Financial Institution;
to treat an account the institution maintains or has maintained as if it is a Reportable Account (within the meaning of the CRS), if the Commissioner reasonably believes that:
(c)
the account would not be, or would not have been, such a Reportable Account if the Commissioner had not made such a requirement; and
(d)
one or more of the following:
(ia)
the Reporting Financial Institution;
(ib)
the Account Holder (within the meaning of the CRS);
(ic)
an intermediary of the Reporting Financial Institution or the Account Holder;
(id)
any other entity;
undertook a transaction, or entered into an *arrangement:
(i)
for the purpose of causing the account not to be such a Reportable Account; or
(ii)
for 2 or more purposes of which that purpose is the dominant purpose.
History
S 396-130(1) amended by No 141 of 2020, s 3 and Sch 4 item 80, by substituting para (d), effective 18 December 2020. Para (d) formerly read:
(d)
the Reporting Financial Institution or the Account Holder (within the meaning of the CRS) undertook a transaction, or entered into an *arrangement:
(i)
for the purpose of causing the account not to be such a Reportable Account; or
(ii)
for 2 or more purposes of which that purpose is the dominant purpose.
396-130(2)
The Commissioner must give written notice of the requirement to the Reporting Financial Institution.
396-130(3)
The Reporting Financial Institution may object, in the manner set out in Part IVC, against the Commissioner's decision to give the notice.
Commissioner may require a Financial Institution to act as a Reporting Financial Institution
396-130(4)
The Commissioner may require an entity that is a Financial Institution (within the meaning of the *CRS) to act as if it is a Reporting Financial Institution (within the meaning of the CRS), if the Commissioner reasonably believes that:
(a)
the institution would not be, or would not have been, such a Reporting Financial Institution if the Commissioner had not made such a requirement; and
(b)
the Financial Institution undertook a transaction, or entered into an *arrangement:
(i)
for the purpose of causing the institution not to be such a Reporting Financial Institution; or
(ii)
for 2 or more purposes of which that purpose is the dominant purpose.
396-130(5)
The Commissioner must give written notice of the requirement to the institution.
396-130(6)
The institution may object, in the manner set out in Part IVC, against the Commissioner's decision to give the notice.
History
S 396-130 inserted by No 23 of 2016, s 3 and Sch 1 item 13, effective 19 March 2016. For application and transitional provision, see note under Subdiv 396-C heading.
SECTION 396-135
396-135
APPLICATION OF PENALTY TO FALSE OR MISLEADING SELF-CERTIFICATION
For the purposes of applying Part 4-25 (Charge and penalties) in relation to a statement that is, or that relates to, a self-certification (within the meaning of the *CRS) that a Reporting Financial Institution is required to obtain when applying, under subsection 396-105(3), the due diligence procedures described in the CRS:
(a)
the CRS is treated as permitting the self-certification; and
(b)
the CRS is treated as being a *taxation law (but not an *Excise Act).
Note:
You are liable to an administrative penalty under subsection 284-75(4) if you give a self-certification that is false or misleading in a material particular.
History
S 396-135 inserted by No 23 of 2016, s 3 and Sch 1 item 13, effective 19 March 2016. For application and transitional provision, see note under Subdiv 396-C heading.
SECTION 396-136
REPORT ON REPORTABLE ACCOUNTS MAINTAINED BY AUSTRALIAN REPORTING FINANCIAL INSTITUTIONS
396-136(1)
This section applies if:
(a)
the Commissioner receives one or more statements under subsection 396-105(2) in relation to:
(i)
the 2018 calendar year; or
(ii)
a calendar year commencing after 2018; and
(b)
the statement contains information about a Reportable Account (within the meaning of the CRS); and
(c)
the total number of accounts of the kind mentioned in paragraph (b) for a jurisdiction (other than Australia) that is a Reportable Jurisdiction (within the meaning of the CRS) (the
relevant jurisdiction
) for the calendar year is 6 or more.
396-136(2)
The Commissioner must, no later than 31 December of the year following the calendar year, prepare and give to the Minister a report that sets out for each relevant jurisdiction in relation to the calendar year the following information:
(a)
the total number of accounts of the kind mentioned in paragraph (1)(b);
(b)
the sum of the amounts in those accounts.
396-136(3)
The Minister must cause a copy of the report given under subsection (2) to be tabled in each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
396-136(4)
The report given under subsection (2) is not a legislative instrument.
History
S 396-136 inserted by No 23 of 2016, s 3 and Sch 1 item 13, effective 19 March 2016. For application and transitional provision, see note under Subdiv 396-C heading.
Division 398 - Miscellaneous reporting obligations
History
Div 398 inserted by No 79 of 2010, s 3 and Sch 4 item 7, applicable to assessments for: (a) the 2010-11 income year; and (b) later income years.
Guide to Division 398
SECTION 398-1
WHATTHIS DIVISION IS ABOUT
This Division contains reporting obligations not covered by other Divisions of this Part.
History
S 398-1 inserted by No 79 of 2010, s 3 and Sch 4 item 7, applicable to assessments for: (a) the 2010-11 income year; and (b) later income years.
Subdivision 398-A - Farm Management Deposit reporting
History
Subdiv 398-A inserted by No 79 of 2010, s 3 and Sch 4 item 7, applicable to assessments for: (a) the 2010-11 income year; and (b) later income years.
SECTION 398-5
REPORTING TO AGRICULTURE DEPARTMENT
FMD provider must provide monthly information
398-5(1)
An *FMD provider must, before the 11th day after the end of a calendar month, give in writing to the *Agriculture Secretary the information specified in subsection (3) if the provider holds a *farm management deposit at the end of that month.
Penalty: 10 penalty units.
History
S 398-5(1) amended by No 147 of 2011, s 3 and Sch 5 items 11 and 12, by substituting "before the 11th day after the end of a calendar month" for "within 60 days after the end of a *quarter" and "that month" for "any month in the quarter", effective 29 November 2011.
No 147 of 2011, s 3 and Sch 5 item 16 contains the following application provisions:
16 Application of amendments
The amendments made by this Part apply in relation to information to be given for calendar months in the 2012-13 financial year and each later financial year.
Note:
Section 398-5 in Schedule 1 to the Taxation Administration Act 1953, as in force before the commencement of this Part, continues to apply in relation to information to be given for quarters ending before 1 July 2012.
398-5(2)
An offence under subsection (1) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
Information required
398-5(3)
The information is:
(a)
the number of *farm management deposits held at the end of that month; and
(b)
the number of depositors in respect of such deposits at the end of that month; and
(c)
the sum of the balances of such deposits at the end of that month; and
(d)
any other information, in relation to farm management deposits held by the *FMD provider at any time in that month, that is required by the regulations for the purposes of this section.
History
S 398-5(3) amended by No 147 of 2011, s 3 and Sch 5 items 13-15, by substituting "that month" for "each month in the *quarter" in para (a), "that month" for "each month in the quarter" in para (b) and (c), and substituting "that month" for "the quarter" in para (d), effective 29 November 2011. For application provisions see note under s 398-5(1).
Regulations not to require identity of depositor
398-5(4)
Regulations made for the purposes of paragraph (3)(d) must not require information:
(a)
that discloses the identity of a depositor; or
(b)
from which the identity of a depositor could reasonably be inferred.
History
S 398-5 inserted by No 79 of 2010, s 3 and Sch 4 item 7, applicable to assessments for: (a) the 2010-11 income year; and (b) later income years.
PART 5-30 - PAYMENT, ABN AND IDENTIFICATION VERIFICATION SYSTEM
History
Pt 5-30 inserted by No 179 of 1999.
Division 400 - Guide to Part 5-30
History
Div 400 inserted by No 179 of 1999.
SECTION 400-1
WHAT PART 5-30 IS ABOUT
To improve compliance with the tax laws that relate to payments for certain supplies, this Part imposes additional requirements on purchasers and suppliers.
The additional requirements relate to verification of ABNs and to reporting information about payments.
Regulations will specify the supplies that are covered and the additional requirements that apply to payments for those supplies.
History
S 400-1 inserted by No 179 of 1999.
SECTION 400-5
THE PAYMENT, ABN AND IDENTIFICATION VERIFICATION SYSTEM
400-5(1)
There are 4 components in the payment, ABN and identification verification system:
(a)
transaction reporting by purchasers (Division 405);
(b)
transaction reporting by suppliers (Division 410);
(c)
verification of suppliers' *ABNs by purchasers (Division 415);
(d)
verification of suppliers' identities by purchasers (Division 417).
One or more of the components may apply to a particular payment. The regulations will specify which components apply.
400-5(2)
Where a component of the system applies to a payment, the requirements of that component must be complied with.
History
S 400-5 inserted by No 179 of 1999.
Division 405 - Transaction reporting by purchasers
History
Div 405 inserted by No 179 of 1999.
SECTION 405-5
PAYMENTS TO WHICH THIS DIVISION APPLIES
405-5(1)
This Division applies to any payments made, or liable to be made, for a *supply where the supply is specified in regulations made for the purpose of this section.
405-5(2)
A payment is liable to be made if the obligation to make the payment is notified in an *invoice.
405-5(3)
Payments to which this Division applies are called
Division 405 payments
.
405-5(4)
Without limiting the ways in which the regulations may specify a *supply, the regulations may specify a supply by reference to:
(a)
the goods or services supplied; or
(b)
the supplier; or
(c)
the purchaser.
History
S 405-5 inserted by No 179 of 1999.
SECTION 405-10
REPORTING REQUIREMENTS
405-10(1)
Any entity (the
purchaser
) that makes, or is liable to make, a *Division 405 payment during a *quarter must give a *Division 405 report to the Commissioner within 21 days after the end of the quarter.
405-10(2)
A
Division 405 report
is a written statement in the *approved form that names the purchaser and, for each supplier in relation to whom the purchaser made, or was liable to make, a *Division 405 payment during the *quarter:
(a)
names the supplier; and
(b)
specifies the supplier's *ABN (if known by the purchaser); and
(c)
specifies the total of the Division 405 payments that the purchaser made, or was liable to make, to the supplier during the quarter that:
(i)
were notified in an invoice during the quarter (unless the payment was reported in an earlier Division 405 report); or
(ii)
were made during the quarter but for which no invoice had been received before the end of the quarter.
The report must also include any other information that the Commissioner requires.
405-10(3)
The Commissioner may, in writing, require particular information to be included in a *Division 405 report or a class of Division 405 reports.
405-10(4)
The Commissioner may, by written notice, vary any requirements under subsection (1), (2) or (3) in relation to a purchaser or class of purchaser. The Commissioner may do so in such instances and to such extent as the Commissioner thinks fit.
History
S 405-10 inserted by No 179 of 1999.
SECTION 405-15
405-15
INVOICES PRODUCED BY PURCHASERS
If a purchaser produces an *invoice that notifies the purchaser's obligation to make a payment, the purchaser is taken to have been notified of the payment at the time that the invoice is produced.
History
S 405-15 inserted by No 179 of 1999.
Division 410 - Transaction reporting by suppliers
History
Div 410 inserted by No 179 of 1999.
SECTION 410-5
PAYMENTS TO WHICH THIS DIVISION APPLIES
410-5(1)
This Division applies to any payments received, or entitled to be received, for a *supply where the supply is specified in regulations made for the purpose of this section.
410-5(2)
A payment is entitled to be received if the obligation to make the payment is notified in an *invoice.
410-5(3)
Payments to which this Division applies are called
Division 410 payments
.
410-5(4)
Without limiting the ways in which the regulations may specify a *supply, the regulations may specify a supply by reference to:
(a)
the goods or services supplied; or
(b)
the supplier; or
(c)
the purchaser.
History
S 410-5 inserted by No 179 of 1999.
SECTION 410-10
REPORTING REQUIREMENTS
410-10(1)
Any entity (the
supplier
) that receives, or is entitled to receive, a *Division 410 payment during a *quarter must give a *Division 410 report to the Commissioner within 21 days after the end of the quarter.
410-10(2)
A
Division 410 report
is a written statement in the *approved form that names the supplier and, for each purchaser in relation to whom the supplier received, or was entitled to receive, a *Division 410 payment during the *quarter:
(a)
names the purchaser; and
(b)
specifies the purchaser's *ABN (if known by the supplier); and
(c)
specifies the total of the Division 410 payments that the supplier received, or was entitled to receive, from the purchaser during the quarter that:
(i)
were notified in an invoice during the quarter (unless the payment was reported in an earlier Division 410 report); or
(ii)
were received during the quarter but for which no invoice had been provided before the end of the quarter.
The report must also include any other information that the Commissioner requires.
410-10(3)
The Commissioner may, in writing, require particular information to be included in a *Division 410 report or a class of Division 410 reports.
410-10(4)
The Commissioner may, by written notice, vary any requirements under subsection (1), (2) or (3) in relation to a supplier or class of supplier. The Commissioner may do so in such instances and to such extent as the Commissioner thinks fit.
History
S 410-10 inserted by No 179 of 1999.
SECTION 410-15
410-15
INVOICES PRODUCED BY PURCHASERS
If a purchaser produces an *invoice that notifies the purchaser's obligation to make a payment, the supplier is taken to have notified the purchaser of the payment at the time that the invoice is produced.
History
S 410-15 inserted by No 179 of 1999.
Division 415 - Verification of suppliers' ABNs by purchasers
History
Div 415 inserted by No 179 of 1999.
SECTION 415-5
PAYMENTS TO WHICH THIS DIVISION APPLIES
415-5(1)
This Division applies if:
(a)
a payment is made, or is liable to be made, by an entity (the
purchaser
) to another entity (the
supplier
) for a *supply; and
(b)
the supply is specified in regulations made for the purpose of this section; and
(c)
the supplier has purported to *quote his or her *ABN to the purchaser.
415-5(2)
Payments to which this Division applies are called
Division 415 payments
.
415-5(3)
Without limiting the ways in which the regulations may specify a *supply, the regulations may specify a supply by reference to:
(a)
the goods or services supplied; or
(b)
the supplier; or
(c)
the purchaser.
History
S 415-5 inserted by No 179 of 1999.
SECTION 415-10
415-10
ABN VERIFICATION REQUIREMENTS
Before the purchaser makes a *Division 415 payment to the supplier, the purchaser must obtain verification that the *ABN *quoted by the supplier is the ABN entered in the *Australian Business Register with the name given by the supplier.
Note:
If the purchaser has reasonable grounds to believe that the supplier has not correctly quoted his or her ABN, the purchaser is required to withhold an amount under section 12-190.
History
S 415-10 inserted by No 179 of 1999.
SECTION 415-15
METHOD OF OBTAINING ABN VERIFICATION
415-15(1)
To obtain verification of a supplier's *ABN, a purchaser must seek the verification in a manner approved in writing by the Commissioner.
415-15(2)
Without limiting the Commissioner's power under subsection (1), the Commissioner may approve verifications being sought orally or by way of electronic transmission.
415-15(3)
Verification of an *ABN may be obtained in such form, including orally or by way of electronic transmission, as the Commissioner approves in writing.
415-15(4)
The Commissioner may, by written notice, vary any requirements under subsection (1) in relation to:
(a)
a purchaser or class of purchaser; or
(b)
a supplier or class of supplier.
The Commissioner may do so in such instances and to such extent as the Commissioner thinks fit.
History
S 415-15 inserted by No 179 of 1999.
SECTION 415-20
VERIFICATION APPLIES TO LATER PAYMENTS
415-20(1)
Verification of a supplier's ABN applies to all later *Division 415 payments by the purchaser to the supplier unless there is a period of 2 years during which no *Division 415 payment is made by the purchaser to the supplier. If this occurs, the verification continues to apply to any purchases before 1 July first occurring after the end of the 2 year period.
415-20(2)
However, verification of a supplier's *ABN does not apply to a *Division 415 payment if the purchaser has reasonable grounds to believe that the *ABN *quoted by the supplier is no longer the ABN entered in the *Australian Business Register with the name given by the supplier.
History
S 415-20 inserted by No 179 of 1999.
Division 417 - Verification of suppliers' identities by purchasers
History
Div 417 inserted by No 179 of 1999.
SECTION 417-5
PAYMENTS TO WHICH THIS DIVISION APPLIES
417-5(1)
This Division applies if:
(a)
a payment is made, or liable to be made, by an entity (the
purchaser
) to another entity (the
supplier
) for a *supply; and
(b)
the supply is specified in regulations made for the purpose of this section.
417-5(2)
Payments to which this Division applies are called
Division 417 payments
.
417-5(3)
Without limiting the ways in which the regulations may specify a *supply, the regulations may specify a supply by reference to:
(a)
the goods or services supplied; or
(b)
the supplier; or
(c)
the purchaser.
History
S 417-5 inserted by No 179 of 1999.
SECTION 417-10
417-10
IDENTITY VERIFICATION REQUIREMENTS
Before the purchaser makes a *Division 417 payment, the purchaser must obtain verification of the supplier's identity.
Note:
If the purchaser has reasonable grounds to believe that the supplier has not correctly quoted his or her ABN, the purchaser is required to withhold an amount under section 12-190.
History
S 417-10 inserted by No 179 of 1999.
SECTION 417-15
METHOD OF OBTAINING IDENTITY VERIFICATION
417-15(1)
To obtain verification of a supplier's identity, a purchaser must carry out the identity verification procedure that is determined, in writing, by the Commissioner.
417-15(2)
The Commissioner may determine different identity verification procedures for:
(a)
different purchasers or classes of purchasers; or
(b)
different suppliers or classes of suppliers.
History
S 417-15 inserted by No 179 of 1999.
SECTION 417-20
VERIFICATION APPLIES TO LATER PAYMENTS
417-20(1)
Verification of a supplier's identity applies to all later *Division 417 payments by the purchaser to the supplier unless there is a period of 2 years during which no *Division 417 payment is made by the purchaser to the supplier. If this occurs, the verification continues to apply to any purchases before 1 July first occurring after the end of the 2 year period.
417-20(2)
However, verification of a supplier's identity does not apply to a later *Division 417 payment if the purchaser has reasonable grounds to believe that the verified identity is not the supplier's true identity.
History
S 417-20 inserted by No 179 of 1999.
Division 420 - Penalties for not reporting or verifying
History
Div 420 inserted by No 179 of 1999.
SECTION 420-5
420-5
FAILING TO REPORT OR VERIFY: ADMINISTRATIVE PENALTY
An entity that fails to:
(a)
give a *Division 405 report to the Commissioner as required by section 405-10; or
(b)
give a *Division 410 report to the Commissioner as required by section 410-10; or
(c)
verify a supplier's *ABN as required by section 415-10; or
(d)
verify a supplier's identity as required by section 417-10;
is liable to pay to the Commissioner a penalty of 20 penalty units.
Note 1:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Note 2:
Division 298 contains machinery provisions for administrative and civil penalties.
History
S 420-5 amended by No 32 of 2006, s 3 and Sch 3 item 16, by inserting "and civil" in note 2, applicable in relation to conduct engaged in on or after 6 April 2006.
S 420-5 amended by No 91 of 2000 and inserted by No 179 of 1999.
Division 425 - Other matters
History
Div 425 inserted by No 179 of 1999.
SECTION 425-20
CONSTRUCTIVE PAYMENT
425-20(1)
In working out whether an entity has paid an amount to another entity, and when the payment is made, the amount is taken to have been paid to the other entity when the first entity applies or deals with the amount in any way on the other's behalf or as the other directs.
425-20(2)
An amount is taken to be payable by an entity to another entity if the first entity is required to apply or deal with it in any way on the other's behalf or as the other directs.
History
S 425-20 inserted by No 179 of 1999.
SECTION 425-25
425-25
NON-CASH BENEFITS
For the purposes of this Part, if an entity (the
payer
) provides a *non-cash benefit to another entity (the
recipient
), the payer is taken to have made a payment of an amount equal to the *market value of the benefit provided.
History
S 425-25 inserted by No 179 of 1999.
425-30
425-30
(Repealed) SECTION 425-30 AMOUNTS TO BE EXPRESSED IN AUSTRALIAN CURRENCY
(Repealed by No 133 of 2003)
History
No 133 of 2003 contains the following transitional provision:
Transitional - sections 12-15 and 425-30 in Schedule 1 to the
Taxation Administration Act 1953
79
Despite the repeals of sections 12-15 and 425-30 in Schedule 1 to the Taxation Administration Act 1953, those sections continue to apply, in relation to an amount:
(a)
that is in a foreign currency; and
(b)
to which section 960-50 of the Income Tax Assessment Act 1997 does not apply;
as if those repeals had not happened.
S 425-30 inserted by No 179 of 1999.
PART 5-35 - REGISTRATION AND SIMILAR PROCESSES FOR VARIOUS TAXES
History
Part 5-35 inserted by No 95 of 2004. No 95 of 2004, s 3 and Sch 10 item 44, contains the following transitional provision:
44 Transitional - GST and FBT endorsements
(1)
This item applies in relation to an entity if:
(a)
immediately before 1 July 2005, the entity was endorsed under section 30-120 or section 50-105 of the Income Tax Assessment Act 1997; and
(b)
the entity failed to notify the Commissioner in writing before 1 July 2005 that it chose not to have this item apply to it.
(2)
The entity is taken to have made an application to the Commissioner under section 426-15 in Schedule 1 to the Taxation Administration Act 1953 for whichever of these kinds of endorsement is most appropriate for the entity:
(a)
endorsement as a charitable institution under subsection 176-1(1) of the A New Tax System (Goods and Services Tax) Act 1999;
(b)
endorsement as a trustee of a charitable fund under subsection 176-5(1) of the A New Tax System (Goods and Services Tax) Act 1999.
(3)
The entity is taken to have made an application to the Commissioner under section 426-16 in Schedule 1 to the Taxation Administration Act 1953 for whichever of these kinds of endorsement is most appropriate for the entity:
(a)
endorsement as a public benevolent institution under subsection 123C(1) of the Fringe Benefits Tax Assessment Act 1986;
(b)
endorsement for the operation of a public benevolent institution under subsection 123C(3) of the Fringe Benefits Tax Assessment Act 1986;
(c)
endorsement as a health promotion charity under subsection 123D(1) of the Fringe Benefits Tax Assessment Act 1986;
(d)
endorsement under subsection 123E(1) of the Fringe Benefits Tax Assessment Act 1986 as a charitable institution covered by paragraph 65J(1)(baa) of that Act.
Division426 - Process of endorsing charities and other entities
History
Div 426 inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
Guide to Division 426
SECTION 426-1
WHAT THIS DIVISION IS ABOUT
This Division sets out procedural rules relating to endorsement of charities and other entities (the conditions for entitlement to endorsement are set out in the GST Act, the Fringe Benefits Tax Assessment Act 1986, and the Income Tax Assessment Act 1997). These rules cover matters such as application for and revocation of endorsement, and entry of the details of endorsement on the Australian Business Register.
Subdivision 426-D deals with types of philanthropic trust funds known as
public ancillary funds
,
private ancillary funds
and
community charity trusts
.
Subdivision 426-E deals with certain philanthropic companies known as
community charity corporations
.
[
CCH Note:
S 426-1 will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1437, by substituting "and the recording of information about the endorsement by the Registrar" for ", and entry of the details of endorsement on the Australian Business Register", effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading.]
History
S 426-1 amended by No 52 of 2024, s 3 and Sch 3 item 8, by substituting "Subdivision 426-D deals with types of philanthropic trust funds known as
public ancillary funds
,
private ancillary funds
and
community charity trusts
. Subdivision 426-E deals with certain philanthropic companies known as
community charity corporations
." for "Subdivision 426-D deals with types of philanthropic trust funds known as
public ancillary funds
and
private ancillary funds
.", effective 29 June 2024.
S 426-1 amended by No 12 of 2012, s 3 and Sch 6 item 84, by substituting "GST Act" for "A New Tax System (Goods and Services Tax) Act 1999", effective 21 March 2012.
S 426-1 amended by No 147 of 2011, s 3 and Sch 8 item 11, by substituting "Subdivision 426-D deals with types of philanthropic trust funds known as
public ancillary funds
and
private ancillary funds
." for "Subdivision 426-D deals with a type of private philanthropic trust fund known as a
private ancillary fund
.", effective 1 January 2012.
S 426-1 amended by No 88 of 2009, s 3 and Sch 2 item 21, by inserting the para beginning with "Subdivision 426-D" at the end, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
S 426-1 inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
Subdivision 426-A - Application of Subdivision 426-B to various kinds of endorsement
History
Subdiv 426-A inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
SECTION 426-5
426-5
APPLICATION OF SUBDIVISION 426-B TO VARIOUS KINDS OF ENDORSEMENT
Subdivision 426-B applies separately in relation to each of these kinds of endorsement:
(a)
endorsement of an entity as a charity under subsection 176-1(1) of the *GST Act;
(b)
(Repealed by No 169 of 2012)
(ba)
endorsement of:
(i)
a fund as an approved worker entitlement fund under subsection 58PB(3) of the Fringe Benefits Tax Assessment Act 1986; or
(ii)
an entity for the operation of a fund as an approved worker entitlement fund under subsection 58PB(3A) of that Act;
(c)
endorsement of an entity as a public benevolent institution under subsection 123C(1) of the Fringe Benefits Tax Assessment Act 1986;
(d)
(Repealed by No 169 of 2012)
(e)
endorsement of an entity as a health promotion charity under subsection 123D(1) of the Fringe Benefits Tax Assessment Act 1986;
(f)
endorsement of an entity under subsection 123E(1) of the Fringe Benefits Tax Assessment Act 1986 as a registered charity covered by table item 1 in subsection 65J(1) of that Act;
(g)
endorsement of an entity as a *deductible gift recipient, or as a deductible gift recipient for the operation of a fund, authority or institution, under section 30-120 of the Income Tax Assessment Act 1997;
(h)
endorsement of an entity as exempt from income tax under section 50-105 of the Income Tax Assessment Act 1997.
History
S 426-5 amended by No 124 of 2013, s 3 and Sch 11 item 26, by substituting "a registered charity covered by table item 1 in subsection 65J(1)" for "a charitable institution covered by paragraph 65J(1)(baa)" in para (f), effective 30 June 2013. No 124 of 2013, s 3 and Sch 11 item 27 contains the following application provision:
27 Application and transitional provisions
(1)
The amendments made apply for the 2013-14 year of tax and later years of tax.
(2)
However, those amendments apply to an entity for the 2014-15 year of tax and later years of tax if the entity is endorsed under subsection 123E(1) of the Fringe Benefits Tax Assessment Act 1986 immediately before 30 June 2013.
(3)
If:
(a)
subitem (2) applies to an entity; and
(b)
the entity's endorsement mentioned in that subitem is in force at the end of the 2013-14 year of tax;
that endorsement has effect after the end of that year of tax as if it were an endorsement under subsection 123E(1) of that Act as amended.
S 426-5 amended by No 169 of 2012, s 3 and Sch 2 items 68 and 131, by substituting para (a) for para (a) and (b), and repealing para (d), effective 3 December 2012. Para (a), (b) and (d) formerly read:
(a)
endorsement of an entity as a charitable institution under subsection 176-1(1) of the *GST Act;
(b)
endorsement of an entity as a trustee of a charitable fund under subsection 176-5(1) of the GST Act;
(d)
endorsement of an entity for the operation of a public benevolent institution under subsection 123C(3) of the Fringe Benefits Tax Assessment Act 1986;
S 426-5 amended by No 12 of 2012, s 3 and Sch 6 items 85-86, by substituting "*GST Act" for "A New Tax System (Goods and Services Tax) Act 1999" in para (a) and "GST Act" for "A New Tax System (Goods and Services Tax) Act 1999" in para (b), effective 21 March 2012.
S 426-5 amended by No 41 of 2011, s 3 and Sch 5 item 10, by inserting para (ba), effective 28 June 2011.
No 41 of 2011, s 3 and Sch 5 items 13 and 14 contain the following transitional provisions:
13 Transitional provision - approved worker entitlement funds
Scope
(1)
This item applies to a fund that, just before the commencement of this item, was an approved worker entitlement fund under subsection 58PB(2) of the Fringe Benefits Tax Assessment Act 1986.
Fund taken to have been endorsed
(2)
Treat the fund as having been endorsed, on that commencement, by the Commissioner under subsection 58PB(3) of that Act, as amended by this Part.
(3)
To avoid doubt, subitem (2) does not prevent the Commissioner from revoking that endorsement at a later time under section 426-55 in Schedule 1 to the Taxation Administration Act 1953.
Fund not required to have ABN for 6 months
(4)
Paragraph 58PB(4)(f) of the Fringe Benefits Tax Assessment Act 1986, as added by this Part, does not apply to the fund before the end of the period of 6 months starting on the day this item commences.
14 Transitional provision - Australian Business Registrar
14
During the period of 18 months starting on the day this item commences, the Australian Business Registrar:
(a)
may enter, but is not required to enter, in the Australian Business Register under subsection 426-65(1) in Schedule 1 to the Taxation Administration Act 1953 a statement that:
(i)
an approved worker entitlement fund is endorsed as mentioned in paragraph (ba) of that subsection, as inserted by this Part; or
(ii)
an entity is endorsed as mentioned in paragraph (bb) of that subsection, as inserted by this Part; and
(b)
may publish on the Australian Taxation Office website, in relation to an approved worker entitlement fund:
(i)
the name of the fund; and
(ii)
the ABN (within the meaning of the A New Tax System (Australian Business Number) Act 1999) of the fund, or of the entity that operates the fund; and
(iii)
the date on which the fund was endorsed as mentioned in paragraph (ba) of that subsection, or on which an entity was endorsed for the operation of the fund under paragraph (bb) of that subsection.
S 426-5 inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
SECTION 426-10
HOW SUBDIVISION 426-B APPLIES TO GOVERNMENT ENTITIES IN RELATION TO ENDORSEMENT UNDER SECTION 30-120OF THE
INCOME TAX ASSESSMENT ACT 1997
426-10(1)
This section applies in relation to endorsement under section 30-120 of the Income Tax Assessment Act 1997.
426-10(2)
Subdivision 426-B applies in relation to a *government entity in the same way as it applies in relation to an entity.
426-10(3)
If, apart from this subsection, section 426-40 or 426-45 (as applied by this section) would impose an obligation on a *government entity:
(a)
that is an unincorporated association or body; and
(b)
for whose management a single person is responsible to persons or bodies outside the government entity;
the obligation is imposed on that person.
426-10(4)
Subsection (3) has effect despite:
(a)
subsection (2); and
(b)
subsection 426-50(2) as it applies because of this section.
History
S 426-10 inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
Subdivision 426-B - Process of endorsement etc.
History
Subdiv 426-B inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
SECTION 426-15
APPLYING FOR ENDORSEMENT
426-15(1)
An entity may apply to the Commissioner for endorsement.
426-15(2)
The application:
(a)
must be in a form approved by the Commissioner; and
(b)
may be *lodged electronically; and
(c)
mustbe signed for the entity, or include the entity's *electronic signature if the application is lodged electronically; and
(d)
must be lodged at, or posted to, an office or facility designated by the Commissioner as a receiving centre for applications of that kind.
Note:
The Commissioner could approve a form that is part of an application form for an ABN.
426-15(3)
Section 426-5 does not prevent the Commissioner from approving a single form to be used by an entity to make applications for 2 or more kinds of endorsement.
History
S 426-15 inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
SECTION 426-20
DEALING WITH AN APPLICATION FOR ENDORSEMENT
Requiring further information or documents
426-20(1)
The Commissioner may require an applicant to give the Commissioner specified information, or a specified document, that the Commissioner needs in order to decide whether the applicant is entitled to endorsement.
Treating application as being refused
426-20(2)
After the time worked out under subsection (3), the applicant may give the Commissioner written notice that the applicant wishes to treat the application as having been refused, if the Commissioner has not given the applicant before that time written notice that the Commissioner endorses or refuses to endorse the applicant.
Note:
Section 426-25 requires the Commissioner to give the applicant written notice if the Commissioner endorses or refuses to endorse the applicant.
426-20(3)
The time is the end of the 60th day after the application was made. However, if before that time the Commissioner requires the applicant under subsection (1) to give information or a document, the time is the later of the following (or either of them if they are the same):
(a)
the end of the 28th day after the last day on which the applicant gives the Commissioner information or a document he or she has required;
(b)
the end of the 60th day after the application was made.
426-20(4)
If the applicant gives notice under subsection (2), section 426-35 operates as if the Commissioner had refused the application on the day on which the notice is given.
Note:
Section 426-35 lets the applicant object against refusal of an application in the manner set out in Part IVC of this Act. That Part provides for review of the refusal objected against.
426-20(5)
The notice given by the applicant:
(a)
may be *lodged electronically; and
(b)
must be signed for the applicant, or include the applicant's *electronic signature if the application is *lodged electronically.
History
S 426-20 inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
SECTION 426-25
NOTIFYING OUTCOME OF APPLICATION FOR ENDORSEMENT
426-25(1)
The Commissioner must give the applicant written notice if:
(a)
the Commissioner endorses the applicant; or
(b)
the Commissioner refuses to endorse the applicant.
426-25(2)
The Commissioner may give the notice by way of electronic transmission. This does not limit the ways in which the Commissioner may give the notice.
History
S 426-25 inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
SECTION 426-30
DATE OF EFFECT OF ENDORSEMENT
426-30(1)
The endorsement has effect from a date specified by the Commissioner.
426-30(2)
The date specified may be any date (including a date before the application for endorsement was made and a date before the applicant had an *ABN).
History
S 426-30 inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
SECTION 426-35
426-35
REVIEW OF REFUSAL OF ENDORSEMENT
If the applicant is dissatisfied with the Commissioner's refusal to endorse the applicant in accordance with the application, the applicant may object against the refusal in the manner set out in Part IVC of this Act.
Note:
That Part provides for review of the refusal objected against.
History
S 426-35 inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
SECTION 426-40
CHECKING ENTITLEMENT TO ENDORSEMENT
426-40(1)
The Commissioner may require an entity that is endorsed to give the Commissioner information or a document that is relevant to the entity's entitlement to endorsement. The entity must comply with the requirement.
Note 1:
The conditions for an entity to be entitled to be endorsed are set out in:
(a) subsection 176-1(2) of the GST Act; and
(b) subsections 123C(2), 123D(2) and 123E(2) of the Fringe Benefits Tax Assessment Act 1986; and
(c) sections 30-120 and 50-105 of the Income Tax Assessment Act 1997.
Note 2:
Failure to comply with this subsection is an offence against section 8C. Also, the Commissioner may revoke the endorsement of the entity under section 426-55 if it fails to comply with this subsection.
Note 3:
Section 426-50 modifies the way this subsection operates in relation to partnerships and unincorporated bodies.
History
S 426-40(1) amended by No 169 of 2012, s 3 and Sch 2 items 68A and 132, by omitting "and 176-5(2)" after "176-1(2)" in para (a) and "and (4)" after "123C(2)" in para (b) of note 1, effective 3 December 2012.
S 426-40(1) amended by No 12 of 2012, s 3 and Sch 6 item 87, by substituting "GST Act" for "A New Tax System (Goods and Services Tax) Act 1999" in para (a) of note 1, effective 21 March 2012.
426-40(2)
The requirement:
(a)
is to be made by notice in writing to the entity; and
(b)
may ask the entity to give the information in writing; and
(c)
must specify:
(i)
the information or document the entity is to give; and
(ii)
the period within which the entity is to give the information or document.
The period specified under subparagraph (c)(ii) must end at least 28 days after the notice is given.
426-40(3)
The Commissioner may give the notice by way of electronic transmission. This does not limit the ways in which the Commissioner may give the notice.
426-40(4)
If the requirement is for the entity to give information in writing, the document setting out the information:
(a)
must be given to the Commissioner; and
(b)
may be *lodged electronically; and
(c)
must be signed for the entity, or include the entity's *electronic signature if the document is lodged electronically.
History
S 426-40 inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
SECTION 426-45
TELLING COMMISSIONER OF LOSS OF ENTITLEMENT TO ENDORSEMENT
426-45(1)
Before, or as soon as practicable after, an entity that is endorsed ceases to be entitled to be endorsed, the entity must give the Commissioner written notice of the cessation.
Note 1:
Failure to comply with this subsection is an offence against section 8C.
Note 2:
Section 426-50 modifies the way this subsection operates in relation to partnerships and unincorporated bodies.
426-45(2)
The notice:
(a)
may be *lodged electronically; and
(b)
must be signed for the entity, or include the entity's *electronic signature if the document is lodged electronically.
426-45(3)
Subsection (1) does not apply to an entitlement to endorsement ceasing because the entity ceases to have an *ABN.
History
S 426-45 inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
SECTION 426-50
PARTNERSHIPS AND UNINCORPORATED BODIES
Application to partnerships
426-50(1)
If, apart from this subsection, section 426-40 or 426-45 would impose an obligation on a partnership, the obligation is imposed on each partner, but may be discharged by any of the partners.
Application to unincorporated bodies
426-50(2)
If, apart from this subsection, section 426-40 or 426-45 would impose an obligation on an unincorporated association or body, the obligation is imposed on each member of the committee of management of the association or body, but may be discharged by any of the members of the committee.
Defences for partners and members of committee of management
426-50(3)
In a prosecution of a person for an offence against section 8C of this Act because of subsection (1) or (2), it is a defence if the person proves that the person:
(a)
did not aid, abet, counsel or procure the act or omission because of which the offence is taken to have been committed; and
(b)
was not in any way, by act oromission, directly or indirectly, knowingly concerned in, or party to, the act or omission because of which the offence is taken to have been committed.
History
S 426-50 inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
SECTION 426-55
REVOKING ENDORSEMENT
426-55(1)
The Commissioner may revoke the endorsement of an entity if:
(a)
at any time after the date of effect of the endorsement, the entity is not, or was not, entitled to be endorsed; or
(b)
the Commissioner has required the entity under section 426-40 to provide information or a document that is relevant to its entitlement to endorsement and the entity has not provided the required information or document within the time specified in the requirement; or
(c)
in the case of an entity endorsed under section 30-120 of the Income Tax Assessment Act 1997 - the entity has contravened Subdivision 30-CA of that Act (which requires the entity to ensure that certain things are stated in any receipts it issues for certain gifts).
Note:
The conditions for an entity to be entitled to be endorsed are set out in:
(a) subsection 176-1(2) of the GST Act; and
(b) subsections 58PB(4) and (4A), 123C(2), 123D(2) and 123E(2) of the Fringe Benefits Tax Assessment Act 1986; and
(c) sections 30-120 and 50-105 of the Income Tax Assessment Act 1997.
History
S 426-55(1) amended by No 70 of 2015, s 3 and Sch 6 item 57, by substituting para (a), applicable to a decision, on or after 25 June 2015, to revoke an endorsement (regardless of when the endorsement took effect). Para (a) formerly read:
(a)
the entity is not entitled to be endorsed; or
S 426-55(1) amended by No 169 of 2012, s 3 and Sch 2 items 68B and 133, by omitting "and 176-5(2)" after "176-1(2)" in para (a) and "and (4)" after "123C(2)" in para (b) of the note, effective 3 December 2012.
S 426-55(1) amended by No 12 of 2012, s 3 and Sch 6 item 88, by substituting "GST Act" for "A New Tax System (Goods and Services Tax) Act 1999" in para (a) of note, effective 21 March 2012.
S 426-55(1) amended by No 41 of 2011, s 3 and Sch 5 item 11, by inserting "58PB(4) and (4A)," in para (b) of the note, effective 28 June 2011. For transitional provisions see note under s 426-5.
426-55(2)
The revocation has effect from a day specified by the Commissioner (which may be a day before the Commissioner decided to revoke the endorsement).
426-55(3)
However, if the Commissioner revokes the endorsement because the entity is not, or was not, entitled to it, the Commissioner must not specify a day before the day on which the entity first ceased to be entitled.
History
S 426-55(3) amended by No 70 of 2015, s 3 and Sch 6 item 58, by inserting ", or was not", applicable to a decision, on or after 25 June 2015, to revoke an endorsement (regardless of when the endorsement took effect).
426-55(4)
The Commissioner must give the entity written notice if the Commissioner revokes its endorsement.
426-55(5)
The Commissioner may give the notice by way of electronic transmission. This does not limit the ways in which the Commissioner may give the notice.
History
S 426-55 inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
SECTION 426-60
426-60
REVIEW OF REVOCATION OF ENDORSEMENT
If the entity is dissatisfied with the revocation of its endorsement, the entity may object against the revocation in the manner set out in Part IVC of this Act.
Note:
That Part provides for review of the revocation objected against.
History
S 426-60 inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
Subdivision 426-C - Entries on Australian Business Register
[
CCH Note:
Subdiv 426-C heading will be substituted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1438, effective 1 July 2026 or a day or days to be fixed by Proclamation. The heading will read:
Subdivision 426-C - Registrar must record certain statements
No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 items 1465-1468 contain the following application and transitional provisions:
Part 3 - Application and transitional provisions
1465 Definitions
(1)
In this Part:
amending item
means:
(a)
an item (other than item 103) of Part 2 of this Schedule that amends a provision of any of the following:
(i)
the A New Tax System (Australian Business Number) Act 1999;
(ii)
the A New Tax System (Goods and Services Tax) Act 1999;
(iii)
the Australian Prudential Regulation Authority Act 1998;
(iv)
the Income Tax Assessment Act 1997;
(v)
the Superannuation Industry (Supervision) Act 1993;
(vi)
the Taxation Administration Act 1953; or
(b)
an item specified under subitem (2).
application day
, for an amendment made by an amending item, as applying in relation to a matter, means the day on and after which the amendment applies in relation to that matter because of item 1467.
commencement day
, for an amending item, means the day on which the item commences (taking into account Part 1 of Schedule 4 to the Treasury Laws Amendment (2022 Measures No. 1) Act 2022).
interim period
means the period:
(a)
starting at the start of 22 June 2022; and
(b)
ending at the end of the day before the day on which Part 2 of Schedule 4 to the Treasury Laws Amendment (2022 Measures No. 1) Act 2022 commences.
postponed item
means any of the following that commenced on 22 June 2022 (disregarding Part 1 of Schedule 4 to the Treasury Laws Amendment (2022 Measures No. 1) Act 2022):
(a)
an item of Part 2 of Schedule 1 to the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020;
(b)
an item of Part 3 of Schedule 1 to the Financial Sector Reform (Hayne Royal Commission Response - Better Advice) Act 2021;
(c)
an item of Part 4 of Schedule 2 to the Treasury Laws Amendment (2021 Measures No. 1) Act 2021.
Note:
Item 103 of Schedule 1 to the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020 is not covered by paragraph (a) because that item commenced on 4 April 2021.
(2)
For the purposes of paragraph (b) of the definition of
amending item
in subitem (1), the Minister may, by legislative instrument, specify items that:
(a)
are in a Schedule to any Act and amend a provision that:
(i)
is a provision of an Act referred to in paragraph (a) of that definition; and
(ii)
deals with a matter related to a government registry regime; and
(b)
are to commence on a day after the end of the interim period but before 1 July 2026.
(3)
For the purposes of subparagraph 1467(1)(c)(i), the Minister may, by legislative instrument, specify a day for an item specified under subitem (2) of this item. The day must occur after the end of the interim period but before 1 July 2026.
1466 Validation of acts or things done during interim period
Object
(1)
The object of this item is to treat all situations during the interim period in every respect as if:
(a)
the amendments made by Part 1 of Schedule 4 to the Treasury Laws Amendment (2022 Measures No. 1) Act 2022 had been made at the start of 21 June 2022; and
(b)
the amendments made by the postponed items had not been made at the start of 22 June 2022 and had had no effect during the interim period.
Validation of acts and things done in interim period
(2)
An act or thing that was done at any time during the interim period is as valid, and is taken always to have been as valid, as it would have been if:
(a)
the amendments made by Part 1 of Schedule 4 to the Treasury Laws Amendment (2022 Measures No. 1) Act 2022 had been made at the start of 21 June 2022; and
(b)
in particular, the amendments made by the postponed items had not been made at the start of 22 June 2022 and had had no effect during the interim period.
Continuation of delegations
(3)
Without limiting subitem (2), if:
(a)
a function or power conferred by any of the following Acts was delegated to a person:
(i)
the A New Tax System (Australian Business Number) Act 1999;
(ii)the A New Tax System (Goods and Services Tax) Act 1999;
(iii)
the Australian Prudential Regulation Authority Act 1998;
(iv)
the Commonwealth Registers Act 2020;
(v)
the Income Tax Assessment Act 1997;
(vi)
the Superannuation Industry (Supervision) Act 1993;
(vii)
the Taxation Administration Act 1953; and
(b)
the delegation was in force immediately before 22 June 2022; and
(c)
but for this subitem, the delegation would have ceased to have effect at the start of 22 June 2022 because of any of the amendments made by the postponed items;
then:
(d)
an act or thing done by the delegate in the interim period is, and is taken always to have been, as valid a performance or exercise of the function or power as it would have been if the delegation had continued in force throughout the interim period; and
(e)
the delegation has effect, on and after the day section 1 of the Treasury Laws Amendment (2022 Measures No. 1) Act 2022 commences, as if it had been made at the time that section commences.
Acts and things to which this item applies
(4)
This item applies to an act or thing, regardless of the basis on which, or capacity in which, the act or thing was done or purported to be done.
1467 Application of amendments
(1)
An amendment of a provision of an Act that is made by an amending item applies, in relation to a matter (the
relevant matter
), on and after the earliest of the following days:
(a)
if the amending item is covered by a notifiable instrument in force under paragraph (2)(a) of this item - the day the instrument specifies for the item;
(b)
if the amending item is covered by a notifiable instrument in force under paragraph (2)(b) of this item that specifies matters for the item that include the relevant matter - the day the instrument specifies for the item in relation to those matters;
(c)
whichever of the following is applicable:
(i)
if a day is specified for the amending item under subitem 1465(3) - that day;
(ii)
otherwise - 1 July 2026.
Note:
The provision, as in force immediately before the commencement day for the amending item, will continue to apply in relation to the relevant matter until the day that applies under this subitem.
(2)
The Minister:
(a)
may by notifiable instrument specify days for amending items for the purposes of paragraph (1)(a); and
(b)
may by notifiable instrument specify days and matters for amending items for the purposes of paragraph (1)(b).
Note:
For specification by class, see subsection 13(3) of the Legislation Act 2003.
(3)
A day specified for an amending item in a notifiable instrument made under subitem (2) must be:
(a)
on or after the day that the instrument is made; and
(b)
on or after the commencement day for the amending item.
(4)
Without limiting subsection 13(3) of the Legislation Act 2003, an instrument made under subitem (2) of this item may specify all amending items as a class of amending items.
1468 Things started but not finished by ASIC
1468
If:
(a)
an amending item amends a provision of an Act; and
(b)
before the application day for the amendment made by the amending item, as applying in relation to a matter, ASIC started doing a thing that relates to that matter under the provision as in force immediately before the commencement day for the amending item; and
(c)
immediately before that application day, ASIC had not finished doing that thing; and
(d)
on and after that application day, doing that thing is within the powers or functions of the Registrar;
then, on and after that application day:
(e)
ASIC may finish doing that thing as if that thing were being done by the Registrar in performing or exercising the Registrar's functions or powers; and
(f)
to the extent that ASIC does not finish doing that thing under paragraph (e), the Registrar may finish doing that thing in performing and exercising the Registrar's functions and powers.
]
History
Subdiv 426-C inserted by No 95 of 2004. For transitional provision, see note under Part 5-35 heading.
SECTION 426-65
ENTRIES ON AUSTRALIAN BUSINESS REGISTER
[
CCH Note:
S 426-65 heading will be substituted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1439, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading. The heading will read:
426-65 REGISTRAR MUST RECORD CERTAIN STATEMENTS
]
426-65(1)
If an entity that is endorsed in any of these ways:
(a)
as a charity under subsection 176-1(1) of the *GST Act;
(b)
(Repealed by 169 of 2012)
(ba)
as an approved worker entitlement fund under subsection 58PB(3) of the Fringe Benefits Tax Assessment Act 1986;
(bb)
for the operation of an approved worker entitlement fund under subsection 58PB(3A) of the Fringe Benefits Tax Assessment Act 1986;
(c)
as a public benevolent institution under subsection 123C(1) of the Fringe Benefits Tax Assessment Act 1986;
(d)
(Repealed by No 169 of 2012)
(e)
as a health promotion charity under subsection 123D(1) of the Fringe Benefits Tax Assessment Act 1986;
(f)
as a registered charity covered by table item 1 in subsection 65J(1) of the Fringe Benefits Tax Assessment Act 1986 under subsection 123E(1) of that Act;
(g)
as exempt from income tax under section 50-105 of the Income Tax Assessment Act 1997;
the *Australian Business Registrar must enter in the *Australian Business Register a statement that the entity is so endorsed for a specified period.
Note 1:
An entry (or lack of entry) of a statement required by this section does not affect concessions available to the entity under the Act for the purposes of which it is endorsed.
Note 2:
For entities and government entities that are endorsed under section 30-120 of the Income Tax Assessment Act 1997, see section 30-229 of that Act.
[CCH Note:
S 426-65(1) will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 items 1440-1442, by substituting "an entity" for "an entity that", "*Registrar must make a record of" for "*Australian Business Registrar must enter in the *Australian Business Register" and "The recording (or otherwise)" for "An entry (or lack of entry)", effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading.]
History
S 426-65(1) amended by No 124 of 2013, s 3 and Sch 11 item 26, by substituting "a registered charity covered by table item 1 in subsection 65J(1)" for "a charitable institution covered by paragraph 65J(1)(baa)" in para (f), effective 30 June 2013. No 124 of 2013, s 3 and Sch 11 item 27 contains the following application provision:
27 Application and transitional provisions
(1)
The amendments made apply for the 2013-14 year of tax and later years of tax.
(2)
However, those amendments apply to an entity for the 2014-15 year of tax and later years of tax if the entity is endorsed under subsection 123E(1) of the Fringe Benefits Tax Assessment Act 1986 immediately before 30 June 2013.
(3)
If:
(a)
subitem (2) applies to an entity; and
(b)
the entity's endorsement mentioned in that subitem is in force at the end of the 2013-14 year of tax;
that endorsement has effect after the end of that year of tax as if it were an endorsement under subsection 123E(1) of that Act as amended.
S 426-65(1) amended by No 169 of 2012, s 3 and Sch 2 items 68C and 134, by substituting para (a) for para (a) and (b), and repealing para (d), effective 3 December 2012. Para (a), (b) and (d) formerly read:
(a)
as a charitable institution under subsection 176-1(1) of the *GST Act;
(b)
as a trustee of a charitable fund under subsection 176-5(1) of the GST Act;
(d)
for the operation of a public benevolent institution under subsection 123C(3) of the Fringe Benefits Tax Assessment Act 1986;
S 426-65(1) amended by No 12 of 2012, s 3 and Sch 6 items 89-90, by substituting "*GST Act" for "A New Tax System (Goods and Services Tax) Act 1999" in para (a) and "GST Act" for "A New Tax System (Goods and Services Tax) Act 1999" in para (b), effective 21 March 2012.
S 426-65(1) amended by No 41 of 2011, s 3 and Sch 5 item 12, by inserting paras (ba) and (bb), effective 28 June 2011. For transitional provisions see note under s 426-5.
426-65(2)
The *Australian Business Registrar may remove the statement from the *Australian Business Register after the end of the period.
[
CCH Note:
S 426-65(2) will be substituted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1443, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading. S 426-65(2) will read:
426-65(2)
The *Registrar may remove the record of the statement after the end of the period.
]
426-65(2A)
If the endorsed entity is also registered under the Australian Charities and Not-for-profits Commission Act 2012 as an entity of a particular type or subtype, the *Australian Business Registrar must also enter in the *Australian Business Register:
(a)
a statement that the entity is so registered; and
(b)
a statement as to the date of effect of the registration.
[
CCH Note:
S 426-65(2A) will be amended by No 69 of 2020 (asamended by No 35 of 2022), s 3 and Sch 1 item 1444, by substituting "*Registrar must also maintain a record of" for "*Australian Business Registrar must also enter in the *Australian Business Register", effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading.]
History
S 426-65(2A) amended by No 169 of 2012, s 3 and Sch 3 item 19, by substituting "must" for "may", effective 3 June 2013.
S 426-65(2A) inserted by No 169 of 2012, s 3 and Sch 3 item 17, effective 3 December 2012.
426-65(2B)
The *Australian Business Registrar may remove the statements from the *Australian Business Register if the registration is revoked under the Australian Charities and Not-for-profits Commission Act 2012.
[
CCH Note:
S 426-65(2B) will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1445, by substituting "*Registrar may remove the records of the statements" for "*Australian Business Registrar may remove the statements from the *Australian Business Register", effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading.]
History
S 426-65(2B) inserted by No 169 of 2012, s 3 and Sch 3 item 17, effective 3 December 2012.
426-65(3)
The *Australian Business Registrar must take reasonable steps to ensure that a statement appearing in the *Australian Business Register under this section is true. For this purpose, the Registrar may:
(a)
change the statement; or
(b)
remove the statement from the Register if the statement is not true; or
(c)
remove the statement from the Register and enter another statement in the Register under this section.
[
CCH Note:
S 426-65(3) will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 items 1446-1449, by substituting "*Registrar must take reasonable steps to ensure that a statement recorded" for "*Australian Business Registrar must take reasonable steps to ensure that a statement appearing in the *Australian Business Register", inserting "record of the" before "statement" in para (a), substituting "record of the statement" for "statement from the Register" in para (b) and substituting para (c), effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading. Para (c) will read:
(c)
remove the record of the statement and make a record of another statement for the purposes of this section.
]
426-65(4)
Making, changing or removing an entry in the *Australian Business Register as required or permitted by this section does not contravene section 355-25 or 355-155.
[
CCH Note:
S 426-65(4) will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1450, by substituting "a record" for "an entry in the *Australian Business Register", effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading.]
History
S 426-65(4) amended by No 145 of 2010, s 3 and Sch 2 item 117, by substituting "section 355-25 or 355-155" for "section 16 of the Income Tax Assessment Act 1936 (Officers to observe secrecy)", effective 17 December 2010.
S 426-65 inserted by No 95 of 2004, s 3 and Sch 10 item 41, effective 1 July 2005. For transitional provision, see note under Part 5-35 heading.
Subdivision 426-D - Ancillary and community charity trust funds
History
Subdiv 426-D heading substituted by No 52 of 2024, s 3 and Sch 3 item 9, effective 29 June 2024. The heading formerly read:
Subdivision 426-D - Public and private ancillary funds
Subdiv 426-D heading substituted by No 147 of 2011, s 3 and Sch 8 item 12, effective 1 January 2012. For transitional provisions, see note under s 426-102. The heading formerly read:
Subdivision 426-D - Private ancillary funds
Subdiv 426-D inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. No 88 of 2009, s 3 and Sch 2 items 25 to 31 contain the following transitional provisions:
Division 1 - Preliminary
25 Definitions
25
In this Part:
commencement time
means the time at which this item commences. [CCH Note: Commencement was 1 October 2009.]
constitutional corporation
has the meaning given by the Income Tax Assessment Act 1997.
deductible gift recipient
has the meaning given by the Income Tax Assessment Act 1997.
prescribed private fund
has the meaning given by the Income Tax Assessment Act 1997 (as in force just before the commencement time).
private ancillary fund
has the meaning given by section 426-105 in Schedule 1 to the Taxation Administration Act 1953.
private ancillary fund guidelines
has the meaning given by section 426-110 in Schedule 1 to the Taxation Administration Act 1953.
Division 2 - Declared prescribed private funds
26 Transitional - prescribed private fund declarations
26(1)
The Minister may, by legislative instrument, declare a trust to be a prescribed private fund.
26(2)
Despite subsection 12(2) of the Legislative Instruments Act 2003, the declaration has effect during the period:
(a)
starting at the time specified in the declaration, which must be before the commencement time; and
(b)
ending just before the commencement time.
Division 3 - Transitional private ancillary funds
27 Application of Division
27
This Division applies to a trust if, just before the commencement time, the trust was a prescribed private fund (whether or not becauseof a declaration made under item 26).
28 Transitional - trustees need not be constitutional corporations
28
Paragraph 426-105(1)(a) (trustees of private ancillary funds must be constitutional corporations) and sections 426-125 to 426-165 (Suspension and removal of trustees) in Schedule 1 to the Taxation Administration Act 1953 do not apply to the trust during the period:
(a)
starting at the commencement time; and
(b)
ending at the earlier of the following:
(i)
the time (at or after the commencement time) the trust first satisfies the requirements of that paragraph (disregarding this item);
(ii)
the first time any of the trustees of the trust revoke the agreement mentioned in item 29 in accordance with subsection 426-105(2) in that Schedule.
29 Transitional - agreement to comply with private ancillary fund guidelines
29(1)
For the purposes of Subdivision 426-D in Schedule 1 to the Taxation Administration Act 1953, each of the trustees of the trust is taken to have agreed, at the commencement time and in accordance with paragraph 426-105(1)(b) in that Schedule, to comply with the rules in the private ancillary fund guidelines, as in force from time to time.
29(2)
To avoid doubt, subitem (1) does not prevent a trustee from revoking that agreement at a later time as mentioned in paragraph 426-105(1)(c) in that Schedule.
30 Transitional - endorsement as a deductible gift recipient
30(1)
The trust is taken to have been endorsed as a deductible gift recipient under section 30-120 of the Income Tax Assessment Act 1997 at the commencement time.
30(2)
To avoid doubt, subitem (1) does not prevent the Commissioner from revoking that endorsement at a later time under section 426-55 in Schedule 1 to the Taxation Administration Act 1953.
31 Transitional - transfer of property
31
For the purposes of item 2 of the column headed "Recipient" of the table in subsection 30-15(2) of the Income Tax Assessment Act 1997, disregard a transfer of all of the property of the trust to another private ancillary fund if:
(a)
the other fund is a deductible gift recipient; and
(b)
every trustee of the other fund is a constitutional corporation; and
(c)
the transfer happens during the period mentioned in item 28.
Guide to Subdivision 426-D
SECTION 426-100
WHAT THIS SUBDIVISION IS ABOUT
This Subdivision deals with types of philanthropic trust funds known as
public ancillary funds
,
private ancillary funds
and
community charity trusts
.
The Minister must make guidelines determining when such trust funds are entitled to be endorsed as deductible gift recipients.
This Subdivision also provides for:
(a) penalties for trustees who fail to comply with the applicable trust fund guidelines, and the liability of directors of trustees to pay those penalties in certain circumstances; and
(b) powers for the Commissioner to suspend or remove trustees who breach their obligations.
History
S 426-100 substituted by No 52 of 2024, s 3 and Sch 3 item 10, effective 29 June 2024. S 426-100 formerly read:
SECTION 426-100 WHAT THIS SUBDIVISION IS ABOUT
This Subdivision deals with types of philanthropic trust funds known as
public ancillary funds
and
private ancillary funds
.
The Minister may make guidelines determining when ancillary funds are entitled to be endorsed as deductible gift recipients.
This Subdivision also provides for:
(a) penalties for trustees who fail to comply with the public ancillary fund guidelines or private ancillary fund guidelines (whichever are applicable), and the liability of directors of trustees to pay those penalties in certain circumstances; and
(b) powers for the Commissioner to suspend or remove trustees who breach their obligations.
S 426-100 amended by No 147 of 2011, s 3 and Sch 8 items 13-15, by substituting "This Subdivision deals with types of philanthropic trust funds known as
public ancillary funds
and
private ancillary funds
." for "This Subdivision deals with a type of private philanthropic trust fund known as a
private ancillary fund
.", "when" for "when private", and "public ancillary fund guidelines or private ancillary fund guidelines (whichever are applicable)" for "private ancillary fund guidelines", effective 1 January 2012. For transitional provisions see note under s 426-102.
S 426-100 inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Public ancillary funds
|
| 426-102 |
Public ancillary funds |
| 426-103 |
Public ancillary fund guidelines |
| 426-104 |
Australian Business Register must show public ancillary fund status |
| |
|
|
Private ancillary funds
|
| 426-105 |
Private ancillary funds |
| 426-110 |
Private ancillary fund guidelines |
| 426-115 |
Australian Business Register must show private ancillary fund status |
|
Community charity trusts
|
| 426-117 |
Community charity trusts |
| 426-118 |
Community charity trust guidelines |
| 426-119 |
Australian Business Register must show community charity trust status |
|
Administrative penalties
|
| 426-120 |
Administrative penalties for trustees of ancillary and community charity trust funds |
|
Suspension and removal of trustees
|
| 426-125 |
Suspension or removal of trustees |
| 426-130 |
Commissioner to appoint acting trustee in cases of suspension or removal |
| 426-135 |
Terms and conditions of appointment of acting trustee |
| 426-140 |
Termination of appointment of acting trustee |
| 426-145 |
Resignation of acting trustee |
| 426-150 |
Property vesting orders |
| 426-155 |
Powers of acting trustee |
| 426-160 |
Commissioner may give directions to acting trustee |
| 426-165 |
Property vested in acting trustee - former trustees' obligations relating to books, identification of property and transfer of property |
|
Limitation on certain transfers
|
| 426-170 |
Limitation on ancillary and community charity trust funds making certain transfers |
Public ancillary funds
SECTION 426-102
PUBLIC ANCILLARY FUNDS
426-102(1)
A trust is a
public ancillary fund
if:
(a)
at least one of the following subparagraphs applies:
(i)
each trustee of the trust is a *constitutional corporation;
(ii)
the only trustee of the trust is the Public Trustee of a State or Territory, or each trustee of the trust is prescribed by the regulations for the purposes of this subparagraph; and
(b)
each trustee of the trust has agreed, in the *approved form given to the Commissioner, to comply with the rules in the *public ancillary fund guidelines, as in force from time to time; and
(c)
none of the trustees has revoked that agreement in accordance with subsection (2).
History
S 426-102(1) amended by No 88 of 2013, s 3 and Sch 7 item 225, by inserting "each trustee of the trust" before "is prescribed" in para (a)(ii), effective 28 June 2013.
426-102(2)
A trustee may revoke an agreement mentioned in paragraph (1)(b) only by giving the revocation to the Commissioner in the *approved form.
426-102(3)
Sections 426-125 to 426-165 do not apply to a *public ancillary fund if subparagraph (1)(a)(ii) of this section applies to the fund.
History
S 426-102 inserted by No 147 of 2011, s 3 and Sch 8 item 16, effective 1 January 2012. No 147 of 2011, s 3 and Sch 8 items 37 to 41 contain the following transitional provisions:
Division 3 - Transitional provisions
37 Definitions
37
In this Division:
commencement time
means the time at which this item commences. [
CCH Note:
Commencement was 1 January 2012.]
constitutional corporation
has the meaning given by the Income Tax Assessment Act 1997.
private ancillary fund
has the meaning given by section 426-105 in Schedule 1 to the Taxation Administration Act 1953.
public ancillary fund
has the meaning given by section 426-102 in Schedule 1 to the Taxation Administration Act 1953.
public ancillary fund guidelines
has the meaning given by section 426-103 in Schedule 1 to the Taxation Administration Act 1953.
38 Application of Division
38
This Division applies to a trust if, just before the commencement time, the trust was:
(a)
a public fund covered by item 2 of the table in subsection 30-15(2) of the Income Tax Assessment Act 1997; and
(b)
endorsed as a deductible gift recipient under section 30-120 of that Act; and
(c)
not a private ancillary fund.
39 Transitional provision - trustees need not be constitutional corporations
39
Paragraph 426-102(1)(a) (trustees of public ancillary funds must be constitutional corporations, Public Trustees or prescribed) and sections 426-125 to 426-165 (Suspension and removal of trustees) in Schedule 1 to the Taxation Administration Act 1953 do not apply to the trust during the period:
(a)
starting at the commencement time; and
(b)
ending at the earlier of the following:
(i)
the time (at or after the commencement time) the trust first satisfies the requirements of that paragraph (disregarding this item);
(ii)
the first time any of the trustees of the trust revoke the agreement mentioned in item 40 in accordance with subsection 426-102(2) in that Schedule.
40 Transitional provision - agreement to comply with public ancillary fund guidelines
40(1)
For the purposes of Subdivision 426-D in Schedule 1 to the Taxation Administration Act 1953, each of the trustees of the trust is taken to have agreed, at the commencement time and in accordance with paragraph 426-102(1)(b) in that Schedule, to comply with the rules in the public ancillary fund guidelines, as in force from time to time.
40(2)
To avoid doubt, subitem (1) does not prevent a trustee from revoking that agreement at a later time as mentioned in paragraph 426-102(1)(c) in that Schedule.
41 Transitional provision - transfer of property
41
For the purposes of item 2 of the column headed "Recipient" of the table in subsection 30-15(2) of the Income Tax Assessment Act 1997, disregard a transfer of all of the property of the trust to another public ancillary fund if:
(a)
the other fund is a deductible gift recipient; and
(b)
at least one of the following subparagraphs applies:
(i)
every trustee of the other fund is a *constitutional corporation;
(ii)
the only trustee of the other fund is the Public Trustee of a State or Territory, or is prescribed by the regulations for the purposes of subparagraph 426-102(1)(a)(ii) in Schedule 1 to the Taxation Administration Act 1953; and
(c)
the transfer happens during the period mentioned in item 39.
SECTION 426-103
426-103
PUBLIC ANCILLARY FUND GUIDELINES
The Minister must, by legislative instrument, formulate guidelines (the
public ancillary fund guidelines
) setting out:
(a)
rules that *public ancillary funds and their trustees must comply with if the funds are to be, or are to remain, endorsed as *deductible gift recipients; and
(b)
the amount of the administrative penalty, or how to work out the amount of the administrative penalty, under subsection 426-120(1) in relation to public ancillary funds.
History
S 426-103 inserted by No 147 of 2011, s 3 and Sch 8 item 16, effective 1 January 2012. For transitional provisions see note under s 426-102.
SECTION 426-104
AUSTRALIAN BUSINESS REGISTER MUST SHOW PUBLIC ANCILLARY FUND STATUS
[
CCH Note:
S 426-104 heading will be substituted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1451, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading. The heading will read:
426-104 REGISTRAR MUST RECORD PUBLIC ANCILLARY FUND STATUS
]
426-104(1)
If a *public ancillary fund has an *ABN, the *Australian Business Registrar must enter in the *Australian Business Register in relation to the fund a statement that it is a public ancillary fund.
Note 1:
An entry (or lack of entry) of a statement required by this section does not affect whether a trust is a public ancillary fund.
Note 2:
The Australian Business Register will also show if a public ancillary fund is endorsed as a deductible gift recipient: see section 30-229 of the Income Tax Assessment Act 1997.
[
CCH Note:
S 426-104(1) will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 items 1452-1454, by substituting "*Registrar must make a record of" for "*Australian Business Registrar must enter in the *Australian Business Register in relation to the fund", "The recording (or otherwise)" for "An entry (or lack of entry)" in note 1 and "Registrar will also record a statement about a public ancillary fund that" for "Australian Business Register will also show if a public ancillary fund" in note 2, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading.]
History
S 426-104(1) amended by No 147 of 2011, s 3 and Sch 2 item 36, by substituting "must" for "may", effective 1 July 2012.
426-104(2)
The *Australian Business Registrar must take reasonable steps to ensure that a statement appearing in the *Australian Business Register under this section is true. For this purpose, the Registrar may:
(a)
change the statement; or
(b)
remove the statement from the Register if the statement is not true.
[
CCH Note:
S 426-104(2) will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 items 1455-1457, by substituting "*Registrar must take reasonable steps to ensure that a statement recorded" for "*Australian Business Registrar must take reasonable steps to ensure that a statement appearing in the *Australian Business Register", inserting "record of the" before "statement" in para (a) and substituting "record of the statement" for "statement from the Register" in para (b), effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading.]
History
S 426-104 inserted by No 147 of 2011, s 3 and Sch 8 item 16, effective 1 January 2012. For transitional provisions see note under s 426-102.
Private ancillary funds
SECTION 426-105
PRIVATE ANCILLARY FUNDS
426-105(1)
A trust is a
private ancillary fund
if:
(a)
each trustee of the trust is a *constitutional corporation; and
(b)
each trustee has agreed, in the *approved form given to the Commissioner, to comply with the rules in the *private ancillary fund guidelines, as in force from time to time; and
(c)
none of the trustees has revoked that agreement in accordance with subsection (2).
426-105(2)
A trustee may revoke an agreement mentioned in paragraph (1)(b) only by giving the revocation to the Commissioner in the *approved form.
History
S 426-105 inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
SECTION 426-110
426-110
PRIVATE ANCILLARY FUND GUIDELINES
The Minister must, by legislative instrument, formulate guidelines (the
private ancillary fund guidelines
) setting out:
(a)
rules that *private ancillary funds and their trustees must comply with if the funds are to be, or are to remain, endorsed as *deductible gift recipients; and
(b)
the amount of the administrative penalty, or how to work out the amount of the administrative penalty, under subsection 426-120(1) in relation to private ancillary funds.
History
S 426-110 amended by No 147 of 2011, s 3 and Sch 8, item 17, by inserting "in relation to private ancillary funds" in para (b), effective 1 January 2012. For transitional provisions see note under s 426-102.
S 426-110 inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
SECTION 426-115
AUSTRALIAN BUSINESS REGISTER MUST SHOW PRIVATE ANCILLARY FUND STATUS
[
CCH Note:
S 426-115 heading will be substituted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1458, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading. The heading will read:
426-115 REGISTRAR MUST RECORD PRIVATE ANCILLARY FUND STATUS
]
426-115(1)
If a *private ancillary fund has an *ABN, the *Australian Business Registrar must enter in the *Australian Business Register in relation to the fund a statement that it is a private ancillary fund.
Note 1:
An entry (or lack of entry) of a statement required by this section does not affect whether a trust is a private ancillary fund.
Note 2:
The Australian Business Register will also show if a private ancillary fund is endorsed as a deductible gift recipient: see section 30-229 of the Income Tax Assessment Act 1997.
[
CCH Note:
S 426-115(1) will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 items 1459-1461, by substituting "*Registrar must make a record of" for "*Australian Business Registrar must enter in the *Australian Business Register in relation to the fund", "The recording (or otherwise)" for "An entry (or lack of entry)" in note 1 and "Registrar will also record a statement about a private ancillary fund that" for "Australian Business Register will also show if a private ancillary fund" in note 2, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading.]
History
S 426-115(1) amended by No 88 of 2009, s 3 and Sch 2 item 24, by substituting "must" for "may", effective 1 January 2010. For transitional provisions, see note under Subdiv 426-D heading.
426-115(2)
The *Australian Business Registrar must take reasonable steps to ensure that a statement appearing in the *Australian Business Register under this section is true. For this purpose, the Registrar may:
(a)
change the statement; or
(b)
remove the statement from the Register if the statement is not true.
[
CCH Note:
S 426-115(2) will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 items 1462-1464, by substituting "*Registrar must take reasonable steps to ensure that a statement recorded" for "*Australian Business Registrar must take reasonable steps to ensure that a statement appearing in the *Australian Business Register", inserting "record of the" before "statement" in para (a) and substituting "record of the statement" for "statement from the Register" in para (b), effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading.]
History
S 426-115 inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
Community charity trusts
SECTION 426-117
COMMUNITY CHARITY TRUSTS
426-117(1)
A trust is a
community charity trust
if:
(a)
the trust is specified in a declaration in force under subsection (3); and
(b)
each trustee of the trust is a *constitutional corporation; and
(c)
each trustee has agreed, in the *approved form given to the Commissioner, to comply with the rules in the *community charity trust guidelines, as in force from time to time; and
(d)
none of the trustees has revoked that agreement in accordance with subsection (2).
426-117(2)
A trustee may revoke an agreement mentioned in paragraph (1)(c) only by giving the revocation to the Commissioner in the *approved form.
426-117(3)
The Minister may, by legislative instrument, declare one or more trusts for the purposes of paragraph (1)(a).
History
S 426-117 inserted by No 52 of 2024, s 3 and Sch 3 item 11, effective 29 June 2024.
SECTION 426-118
426-118
COMMUNITY CHARITY TRUST GUIDELINES
The Minister must, by legislative instrument, formulate guidelines (the
community charity trust guidelines
) setting out:
(a)
rules that *community charity trusts and their trustees must comply with if the trusts are to be, or are to remain, endorsed as *deductible gift recipients; and
(b)
the amount of the administrative penalty, or how to work out the amount of the administrative penalty, under subsection 426-120(1) in relation to community charity trusts.
History
S 426-118 inserted by No 52 of 2024, s 3 and Sch 3 item 11, effective 29 June 2024.
SECTION 426-119
AUSTRALIAN BUSINESS REGISTER MUST SHOW COMMUNITY CHARITY TRUST STATUS
426-119(1)
If a *community charity trust has an *ABN, the *Australian Business Registrar must enter in the *Australian Business Register in relation to the trust a statement that it is a community charity trust.
Note 1:
An entry (or lack of entry) of a statement required by this section does not affect whether a trust is a community charity trust.
Note 2:
The Australian Business Register will also show if a community charity trust is endorsed as a deductible gift recipient: see section 30-229 of the Income Tax Assessment Act 1997.
426-119(2)
The *Australian Business Registrar must take reasonable steps to ensure that a statement appearing in the *Australian Business Register under this section is true. For this purpose, the Registrar may:
(a)
change the statement; or
(b)
remove the statement from the Register if the statement is not true.
History
S 426-119 inserted by No 52 of 2024, s 3 and Sch 3 item 11, effective 29 June 2024.
Administrative penalties
SECTION 426-120
ADMINISTRATIVE PENALTIES FOR TRUSTEES OF ANCILLARY AND COMMUNITY CHARITY TRUST FUNDS
Administrative penalty
426-120(1)
The persons mentioned in subsection (2) are jointly and severally liable to an administrative penalty if:
(a)
a trustee of an *ancillary or community charity trust fund holds the fund out as being endorsed, entitled to be endorsed, or entitled to remain endorsed, as a *deductible gift recipient; and
(b)
the fund is not so endorsed or entitled.
Note:
The Commissioner is required to give written notice of the penalty (see section 298-10).
History
S 426-120(1) amended by No 52 of 2024, s 3 and Sch 3 items 13 and 14, by substituting "*ancillary or community charity trust fund" for "*ancillary fund" in para (a) and inserting the note, effective 29 June 2024.
S 426-120(1) amended by No 147 of 2011, s 3 and Sch 8 item 19, by substituting "an *ancillary fund" for "a *private ancillary fund" in para (b), effective 1 January 2012. For transitional provisions see note under s 426-102.
426-120(2)
The persons are:
(a)
each person who is a trustee of the fund; and
(b)
each director of each *constitutional corporation that is a trustee of the fund, if:
(i)
any of the penalty cannot reasonably be recovered from the constitutional corporation; and
(ii)
the constitutional corporation is neither a licensed trustee company (within the meaning of the Corporations Act 2001) nor the Public Trustee of a State or Territory.
Note:
A person mentioned in paragraph (2)(a) may, in certain circumstances, not be a constitutional corporation:see item 28 of Schedule 2 to the Tax Laws Amendment (2009 Measures No 4) Act 2009 (former prescribed private funds).
History
S 426-120(2) amended by No 76 of 2023, s 3 and Sch 2 item 737, by omitting "of Chapter 5D" before "the Corporations Act 2001" from para (b)(ii), effective 20 October 2023.
S 426-120(2) amended by No 147 of 2011, s 3 and Sch 8 item 20, by substituting "neither a licensed trustee company (within the meaning of Chapter 5D of the Corporations Act 2001) nor the Public Trustee of a State or Territory" for "not a registered trustee company" in para (b)(ii), effective 1 January 2012. For transitional provisions see note under s 426-102.
426-120(3)
The amount of the penalty is:
(a)
the amount specified in the *applicable trust fund guidelines for the purposes of subsection (1); or
(b)
the amount worked out in accordance with the method specified in the applicable trust fund guidelines for the purposes of subsection (1).
The guidelines may specify different penalties or methods for different circumstances.
History
S 426-120(3) substituted by No 52 of 2024, s 3 and Sch 3 item 15, effective 29 June 2024. S 426-120(3) formerly read:
426-120(3)
The amount of the penalty is:
(a)
the amount specified in the *public ancillary fund guidelines under paragraph 426-103(b), or the *private ancillary fund guidelines under paragraph 426-110(b), whichever are applicable; or
(b)
the amount worked out in accordance with the method specified under that paragraph.
The guidelines may specify different penalties or methods for different circumstances.
S 426-120(3) amended by No 147 of 2011, s 3 and Sch 8 item 21 and 22, by substituting para (a) and substituting "guidelines may" for "private ancillary fund guidelines may", effective 1 January 2012. For transitional provisions see note under s 426-102. Para (a) formerly read:
(a)
the amount specified in the *private ancillary fund guidelines under paragraph 426-110(b); or
426-120(4)
The penalty must not be reimbursed from the fund.
Note:
Division 298 in this Schedule contains machinery provisions for administrative penalties.
Defences for directors
426-120(5)
Paragraph (2)(b) does not apply to a director if:
(a)
the director was not aware of the holding out mentioned in paragraph (1)(a) and it would not have been reasonable to expect the director to have been aware of that holding out; or
(b)
the director tookall reasonable steps to ensure that the holding out mentioned in that paragraph did not occur; or
(c)
there were no such steps that the director could have taken.
426-120(6)
In determining what is reasonable for the purposes of paragraph (5)(a), (b) or (c), have regard to all relevant circumstances.
426-120(7)
A person who wishes to rely on subsection (5) bears an evidential burden in relation to the matters in that subsection.
Power of courts to grant relief
426-120(8)
Section 1318 of the Corporations Act 2001 (power of Court to grant relief in case of breach of director's duty) does not apply to a liability of a director under this section.
History
S 426-120 inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
Suspension and removal of trustees
SECTION 426-125
SUSPENSION OR REMOVAL OF TRUSTEES
Suspension
426-125(1)
The Commissioner may suspend all of the trustees of an *ancillary or community charity trust fund if the Commissioner is satisfied that the fund, or any of the trustees of the fund, have breached:
(a)
the *applicable trust fund guidelines; or
(b)
any other *Australian law.
History
S 426-125(1) amended by No 52 of 2024, s 3 and Sch 3 items 16 and 17, by substituting "*ancillary or community charity trust fund" for "*ancillary fund" and para (a), effective 29 June 2024. Para (a) formerly read:
(a)
the *public ancillary fund guidelines or the *private ancillary fund guidelines (whichever are applicable); or
S 426-125(1) amended by No 147 of 2011, s 3 and Sch 8 items 23 and 24, by substituting "an *ancillary fund" for "a *private ancillary fund" and substituting para (a), effective 1 January 2012. For transitional provisions see note under s 426-102. Para (a) formerly read:
(a)
the *private ancillary fund guidelines; or
426-125(2)
The suspension of a trustee:
(a)
starts when the Commissioner gives the trustee notice of the suspension under subsection (3); and
(b)
ends at the time specified in the notice.
426-125(3)
If the Commissioner decides to suspend a trustee under this section, the Commissioner must give to the trustee a written notice:
(a)
setting out the decision; and
(b)
giving the reasons for the decision; and
(c)
setting out the time the suspension ends.
Extension of suspensions
426-125(4)
The Commissioner may change the time the suspension of a trustee ends.
426-125(5)
If the Commissioner decides to change the time the suspension of a trustee ends under this section, the Commissioner must give to the trustee a written notice:
(a)
setting out the decision; and
(b)
giving the reasons for the decision; and
(c)
setting out the new time the suspension ends.
Removal
426-125(6)
The Commissioner may remove all of the trustees of an *ancillary or community charity trust fund if the Commissioner is satisfied that the fund, or any of the trustees of the fund, have breached:
(a)
the *applicable trust fund guidelines; or
(b)
any other *Australian law.
History
S 426-125(6) amended by No 52 of 2024, s 3 and Sch 3 items 18 and 19, by substituting "*ancillary or community charity trust fund" for "*ancillary fund" and para (a), effective 29 June 2024. Para (a) formerly read:
(a)
the *public ancillary fund guidelines or the *private ancillary fund guidelines (whichever are applicable); or
S 426-125(6) amended by No 147 of 2011, s 3 and Sch 8 items 25 and 26, by substituting "an *ancillary fund" for "a *private ancillary fund" and substituting para (a), effective 1 January 2012. For transitional provisions see note under s 426-102. Para (a) formerly read:
(a)
the *private ancillary fund guidelines; or
426-125(7)
If the Commissioner decides to remove a trustee under this section, the Commissioner must give to the trustee a written notice:
(a)
setting out the decision; and
(b)
giving the reasons for the decision.
Review of decisions under this section
426-125(8)
A trustee who is dissatisfied with any of the following decisions under this section may object in the manner set out in Part IVC of this Act:
(a)
a decision to suspend the trustee;
(b)
a decision to change the time a suspension of the trustee ends;
(c)
a decision to remove the trustee.
History
S 426-125 inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
SECTION 426-130
COMMISSIONER TO APPOINT ACTING TRUSTEE IN CASES OF SUSPENSION OR REMOVAL
Appointment of acting trustee
426-130(1)
If the Commissioner suspends all of the trustees of an *ancillary or community charity trust fund under section 426-125, the Commissioner must appoint a single entity to act as the trustee (the
acting trustee
) of the fund during the period of the suspension.
History
S 426-130(1) amended by No 52 of 2024, s 3 and Sch 3 item 20, by substituting "*ancillary or community charity trust fund" for "*ancillary fund", effective 29 June 2024.
S 426-130(1) amended by No 147 of 2011, s 3 and Sch 8 item 27, by substituting "an *ancillary fund" for "a *private ancillary fund", effective 1 January 2012. For transitional provisions see note under s 426-102.
426-130(2)
If the Commissioner removes all of the trustees of an *ancillary or community charity trust fund under section 426-125, the Commissioner must appoint a single entity to act as the trustee (the
acting trustee
) of the fund until all of the vacancies in the position of trustee are filled.
History
S 426-130(2) amended by No 52 of 2024, s 3 and Sch 3 item 21, by substituting "*ancillary or community charity trust fund" for "*ancillary fund", effective 29 June 2024.
S 426-130(2) amended by No 147 of 2011, s 3 and Sch 8 item 27, by substituting "an *ancillary fund" for "a *private ancillary fund", effective 1 January 2012. For transitional provisions see note under s 426-102.
Acting trustee need not be constitutional corporation
426-130(3)
An acting trustee need not be a *constitutional corporation, and may be the Commissioner.
History
S 426-130(3) amended by No 52 of 2024, s 3 and Sch 3 item 22, by omitting the second sentence, effective 29 June 2024. The second sentence formerly read:
Paragraph 426-105(1)(a) does not apply in relation to an acting trustee.
426-130(4)
An entity that is not a *constitutional corporation may not act as trustee under this section for longer than 6 months.
Acting trustee must have agreed to comply with guidelines
426-130(5)
An entity may only be appointed as acting trustee if the entity has agreed, in accordance with paragraph 426-102(1)(b), 426-105(1)(b) or 426-117(1)(c), to comply with the rules in the *applicable trust fund guidelines as in force from time to time.
History
S 426-130(5) substituted by No 52 of 2024, s 3 and Sch 3 item 23, effective 29 June 2024. S 426-130(5) formerly read:
Acting trustee must have agreed to comply with guidelines
426-130(5)
An entity may only be appointed as acting trustee if the entity has, in accordance with paragraph 426-102(1)(b) or 426-105(1)(b), agreed to comply with the rules in the *public ancillary fund guidelines or the *private ancillary fund guidelines (whichever are applicable) as in force from time to time.
S 426-130(5) amended by No 147 of 2011, s 3 and Sch 8 item 28, by substituting "paragraph 426-102(1)(b) or 426-105(1)(b), agreed to comply with the rules in the *public ancillary fund guidelines or the *private ancillary fund guidelines (whichever are applicable)" for "paragraph 426-105(1)(b), agreed to comply with the rules in the *private ancillary fund guidelines,", effective 1 January 2012. For transitional provisions see note under s 426-102.
History
S 426-130 inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
SECTION 426-135
TERMS AND CONDITIONS OF APPOINTMENT OF ACTING TRUSTEE
426-135(1)
The Commissioner may determine the terms and conditions of the appointment of the acting trustee, including fees. The determination has effect despite anything in:
(a)
any *Australian law other than this section; or
(b)
the *ancillary or community charity trust fund's governing rules.
History
S 426-135(1) amended by No 52 of 2024, s 3 and Sch 3 item 24, by substituting "*ancillary or community charity trust fund's" for "*ancillary fund's" in para (b), effective 29 June 2024.
S 426-135(1) amended by No 147 of 2011, s 3 and Sch 8 item 29, by substituting "*ancillary fund's" for "*private ancillary fund's" in para (b), effective 1 January 2012. For transitional provisions see note under s 426-102.
426-135(2)
Without limiting subsection (1), the Commissioner may make a determination under that subsection to the effect that the acting trustee's fees are to be paid out of the corpus of the *ancillary or community charity trust fund.
History
S 426-135(2) amended by No 52 of 2024, s 3 and Sch 3 item 25, by substituting "*ancillary or community charity trust fund" for "*ancillary fund, "effective 29 June 2024.
S 426-135(2) amended by No 147 of 2011, s 3 and Sch 8 item 30, by substituting "*ancillary fund" for "*private ancillary fund", effective 1 January 2012. For transitional provisions see note under s 426-102.
History
S 426-135 inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
SECTION 426-140
426-140
TERMINATION OF APPOINTMENT OF ACTING TRUSTEE
The Commissioner may terminate the appointment of the acting trustee at any time.
History
S 426-140 inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
SECTION 426-145
RESIGNATION OF ACTING TRUSTEE
426-145(1)
The acting trustee may resign by writing given to the Commissioner.
426-145(2)
The resignation does not take effect until the end of the seventh day after the day on which it was given to the Commissioner.
History
S 426-145 inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
SECTION 426-150
PROPERTY VESTING ORDERS
426-150(1)
If the Commissioner appoints an acting trustee, the Commissioner must make a written order vesting the property of the *ancillary or community charity trust fund in the acting trustee.
History
S 426-150(1) amended by No 52 of 2024, s 3 and Sch 3 item 26, by substituting "*ancillary or community charity trust fund" for "*ancillary fund", effective 29 June 2024.
S 426-150(1) amended by No 147 of 2011, s 3 and Sch 8 item 30, by substituting "*ancillary fund" for "*private ancillary fund", effective 1 January 2012. For transitional provisions see note under s 426-102.
426-150(2)
If the appointment ends, the Commissioner must make a written order vesting the property of the fund in the new acting trustee, the previously suspended trustee or trustees or the new actual trustee or trustees (whichever is applicable).
426-150(3)
If the Commissioner makes an order under this section vesting property of an *ancillary or community charity trust fund in an entity or entities, then, subject to subsection (4), the property immediately vests in the entity or entities by force of this section.
History
S 426-150(3) amended by No 52 of 2024, s 3 and Sch 3 item 27, by substituting "*ancillary or community charity trust fund" for "*ancillary fund", effective 29 June 2024.
S 426-150(3) amended by No 147 of 2011, s 3 and Sch 8 item 31, by substituting "an *ancillary fund" for "a *private ancillary fund", effective 1 January 2012. For transitional provisions see note under s 426-102.
426-150(4)
If:
(a)
the property is of a kind whose transfer or transmission may be registered under an *Australian law; and
(b)
that law enables the registration of such an order, or enables the entity or entities to be registered as the owner of that property;
the property does not vest in the entity or entities until the requirements of the law referred to in paragraph (a) have been complied with.
History
S 426-150 inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
SECTION 426-155
426-155
POWERS OF ACTING TRUSTEE
Subject to section 426-150:
(a)
the acting trustee has and may exercise all the rights, title and powers, and must perform all the functions and duties, of the original trustee or trustees; and
(b)
the *ancillary or community charity trust fund's governing rules and every *Australian law apply in relation to the acting trustee as if the acting trustee were the trustee of the fund.
History
S 426-155 amended by No 52 of 2024, s 3 and Sch 3 item 28, by substituting "*ancillary or community charity trust fund's" for "*ancillary fund's" in para (b), effective 29 June 2024.
S 426-155 amended by No 147 of 2011, s 3 and Sch 8 item 32, by substituting "*ancillary fund's" for "*private ancillary fund's" in para (b), effective 1 January 2012. For transitional provisions see note under s 426-102.
S 426-155 inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
SECTION 426-160
COMMISSIONER MAY GIVE DIRECTIONS TO ACTING TRUSTEE
426-160(1)
The Commissioner may give the acting trustee a written notice directing the acting trustee to do, or not to do, one or more specified acts or things in relation to the *ancillary or community charity trust fund.
History
S 426-160(1) amended by No 52 of 2024, s 3 and Sch 3 item 29, by substituting "*ancillary or community charity trust fund" for "*ancillary fund", effective 29 June 2024.
S 426-160(1) amended by No 147 of 2011, s 3 and Sch 8 item 33, by substituting "*ancillary fund" for "*private ancillary fund", effective 1 January 2012. For transitional provisions see note under s 426-102.
426-160(2)
The acting trustee commits an offence if:
(a)
the acting trustee engages in conduct (within the meaning of subsection 2(1) of this Act); and
(b)
that engagement in conduct contravenes a notice given to the acting trustee under subsection (1).
Penalty: 100 penalty units.
426-160(3)
This section does not affect the validity of a transaction entered into in contravention of a notice given under subsection (1).
History
S 426-160 inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
SECTION 426-165
PROPERTY VESTED IN ACTING TRUSTEE - FORMER TRUSTEES' OBLIGATIONS RELATING TO BOOKS, IDENTIFICATION OF PROPERTY AND TRANSFER OF PROPERTY
Books
426-165(1)
An entity commits an offence if:
(a)
the Commissioner makes an order under subsection 426-150(1) or (2) vesting the property of an *ancillary or community charity trust fund in an acting trustee; and
(b)
just before the Commissioner made the order, the property was vested in:
(i)
the entity (the
former trustee
); or
(ii)
2 or more entities (the
former trustees
), including the entity; and
(c)
the former trustee or former trustees do not, within 14 days of the Commissioner making the order, give the acting trustee all books (within the meaning of the Corporations Act 2001) relating to the fund's affairs that are in the former trustee's or former trustees' possession, custody or control.
Penalty: 50 penalty units.
History
S 426-165(1) amended by No 52 of 2024, s 3 and Sch 3 item 30, by substituting "*ancillary or community charity trust fund" for "*ancillary fund" in para (a), effective 29 June 2024.
S 426-165(1) amended by No 147 of 2011, s 3 and Sch 8 item 34, by substituting "an *ancillary fund" for "a *private ancillary fund" in para (a), effective 1 January 2012. For transitional provisions see note under s 426-102.
S 426-165(1) amended by No 56 of 2010, s 3 and Sch 6 item 111, by renumbering para (b)(a) and (b) as para (b)(i) and (ii), effective 3 June 2010.
Identification of property and transfer of property
426-165(2)
Subsections (3) to (5) apply if:
(a)
the property of an *ancillary or community charity trust fund is vested in an entity (the
former trustee
) or entities (the
former trustees
); and
(b)
the Commissioner makes an order under subsection 426-150(1) or (2) vesting the property in an acting trustee.
History
S 426-165(2) amended by No 52 of 2024, s 3 and Sch 3 item 31, by substituting "*ancillary or community charity trust fund" for "*ancillary fund" in para (a), effective 29 June 2024.
S 426-165(2) amended by No 147 of 2011, s 3 and Sch 8 item 34, by substituting "an *ancillary fund" for "a *private ancillary fund" in para (a), effective 1 January 2012. For transitional provisions see note under s 426-102.
426-165(3)
The acting trustee may, by notice in writing to the former trustee or former trustees, require the former trustee or former trustees, so far as the former trustee or former trustees can do so:
(a)
to identify property of the fund; and
(b)
to explain how the former trustee or former trustees have kept account of that property.
426-165(4)
The acting trustee may, by notice in writing to the former trustee or former trustees, require the former trustee or former trustees to take specified action that is necessary to bring about a transfer of specified property of the fund to the acting trustee.
426-165(5)
The former trustee, or each of the former trustees, commits an offence if:
(a)
the acting trustee gives the former trustee or former trustees a notice under subsection (3) or (4); and
(b)
the former trustee or former trustees do not, within 28 days of the notice being given, comply with the requirement in the notice.
Penalty: 50 penalty units.
Strict liability
426-165(6)
Subsections (1) and (5) are offences of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 426-165 inserted by No 88 of 2009, s 3 and Sch 2 item 22, effective 1 October 2009. For transitional provisions, see note under Subdiv 426-D heading.
Limitation on certain transfers
SECTION 426-170
LIMITATION ON ANCILLARY AND COMMUNITY CHARITY TRUST FUNDS MAKING CERTAIN TRANSFERS
426-170(1)
An *ancillary fund must not provide money, property or benefits to another ancillary fund unless permitted to do so by the *public ancillary fund guidelines or the *private ancillary fund guidelines (whichever are applicable) for the first-mentioned fund.
426-170(2)
A *community charity trust must not provide money, property or benefits to:
(a)
another community charity trust; or
(b)
an *ancillary fund; or
(c)
a *community charity corporation;
unless permitted to do so by the *community charity trust guidelines.
History
S 426-170 substituted by No 52 of 2024, s 3 and Sch 3 item 33, effective 29 June 2024. S 426-170 formerly read:
SECTION 426-170 ANCILLARY FUNDS MUST NOT PROVIDE FUNDS TO OTHER ANCILLARY FUNDS
426-170
An *ancillary fund must not provide money, property or benefits to another ancillary fund unless permitted to do so by the *public ancillary fund guidelines or the *private ancillary fund guidelines (whichever are applicable).
S 426-170 inserted by No 147 of 2011, s 3 and Sch 8 item 35, effective 1 January 2012. For transitional provisions see note under s 426-102.
Subdivision 426-E - Community charity corporations
History
Subdiv 426-E inserted by No 52 of 2024, s 3 and Sch 3 item 34, effective 29 June 2024.
Guide to Subdivision 426-E
SECTION 426-175
WHAT THIS SUBDIVISION IS ABOUT
This Subdivision deals with philanthropic companies known as
community charity corporations
.
The Minister must make guidelines determining when community charity corporations are entitled to be endorsed as deductible gift recipients.
This Subdivision also provides for penalties for failures to comply with the guidelines.
History
S 426-175 inserted by No 52 of 2024, s 3 and Sch 3 item 34, effective 29 June 2024.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Community charity corporations
|
| 426-180 |
Community charity corporations |
| 426-185 |
Community charity corporation guidelines |
| 426-190 |
Australian Business Register must show community charity corporation status |
|
Administrative penalties
|
| 426-195 |
Administrative penalties for community charity corporations |
|
Limitation on certain transfers
|
| 426-200 |
Limitation on community charity corporations making certain transfers |
Community charity corporations
SECTION 426-180
COMMUNITY CHARITY CORPORATIONS
426-180(1)
A company is a
community charity corporation
if:
(a)
the company is:
(i)
a *constitutional corporation; or
(ii)
a body corporate that is not a constitutional corporation; and
(b)
the company is specified in a declaration in force under subsection (3); and
(c)
each director of the company has agreed, in the *approved form given to the Commissioner, to comply with the rules in the *community charity corporation guidelines, as in force from time to time; and
(d)
none of the directors of the company has revoked that agreement in accordance with subsection (2).
426-180(2)
A director may revoke an agreement mentioned in paragraph (1)(c) only by giving the revocation to the Commissioner in the *approved form.
426-180(3)
The Minister may, by legislative instrument, declare one or more companies for the purposes of paragraph (1)(b).
History
S 426-180 inserted by No 52 of 2024, s 3 and Sch 3 item 34, effective 29 June 2024.
SECTION 426-185
426-185
COMMUNITY CHARITY CORPORATION GUIDELINES
The Minister must, by legislative instrument, formulate guidelines (the
community charity corporation guidelines
) setting out:
(a)
rules that *community charity corporations and their directors must comply with if the corporations are to be, or are to remain, endorsed as *deductible gift recipients; and
(b)
the amount of the administrative penalty, or how to work out the amount of the administrative penalty, under subsection 426-195(1) in relation to community charity corporations.
History
S 426-185 inserted by No 52 of 2024, s 3 and Sch 3 item 34, effective 29 June 2024.
SECTION 426-190
AUSTRALIAN BUSINESS REGISTER MUST SHOW COMMUNITY CHARITY CORPORATION STATUS
426-190(1)
If a *community charity corporation has an *ABN, the *Australian Business Registrar must enter in the *Australian Business Register in relation to the corporation a statement that it is a community charity corporation.
Note 1:
An entry (or lack of entry) of a statement required by this section does not affect whether a company is a community charity corporation.
Note 2:
The Australian Business Register will also show if a community charity corporation is endorsed as a deductible gift recipient: see section 30-229 of the Income Tax Assessment Act 1997.
426-190(2)
The *Australian Business Registrar must take reasonable steps to ensure that a statement appearing in the *Australian Business Register under this section is true. For this purpose, the Registrar may:
(a)
change the statement; or
(b)
remove the statement from the Register if the statement is not true.
History
S 426-190 inserted by No 52 of 2024, s 3 and Sch 3 item 34, effective 29 June 2024.
Administrative penalties
SECTION 426-195
ADMINISTRATIVE PENALTIES FOR COMMUNITY CHARITY CORPORATIONS
Administrative penalty
426-195(1)
All of the directors of a *community charity corporation are jointly and severally liable to an administrative penalty if:
(a)
the corporation, or a director of the corporation, holds out that the corporation is endorsed as a *deductible gift recipient and the corporation is not so endorsed; or
(b)
the corporation, or a director of the corporation, holds out that the corporation is entitled to remain endorsed as a deductible gift recipient and the corporation is not so entitled; or
(c)
the corporation, or a director of the corporation, holds out that the corporation will be endorsed, as a deductible gift recipient, at a particular time and the corporation is not so endorsed at that time.
Note:
The Commissioner is required to give written notice of the penalty (see section 298-10).
426-195(2)
The amount of the penalty is:
(a)
the amount specified in the *community charity corporation guidelines for the purposes of subsection (1); or
(b)
the amount worked out in accordance with the method specified in the community charity corporation guidelines for the purposes of subsection (1).
The guidelines may specify different penalties or methods for different circumstances.
426-195(3)
A director who is liable to the penalty must not be reimbursed the penalty from the corporation.
Note:
Division 298 in this Schedule contains machinery provisions for administrative penalties.
Defences for directors
426-195(4)
Subsection (1) does not apply to a director if:
(a)
the director was not aware of the holding out mentioned in paragraph (1)(a), (b) or (c) (whichever applicable) and it would not have been reasonable to expect the director to have been aware of that holding out; or
(b)
the director took all reasonable steps to ensure that the holding out mentioned in that paragraph did not occur; or
(c)
there were no such steps that the director could have taken.
426-195(5)
In determining what is reasonable for the purposes of paragraph (4)(a), (b) or (c), have regard to all relevant circumstances.
426-195(6)
A person who wishes to rely on subsection (4) bears an evidential burden in relation to the matters in that subsection.
Power of courts to grant relief
426-195(7)
Section 1318 of the Corporations Act 2001 (power of Court to grant relief in case of breach of director's duty) does not apply to a liability of a director under this section.
History
S 426-195 inserted by No 52 of 2024, s 3 and Sch 3 item 34, effective 29 June 2024.
Limitation on certain transfers
SECTION 426-200
426-200
LIMITATION ON COMMUNITY CHARITY CORPORATIONS MAKING CERTAIN TRANSFERS
A *community charity corporation must not provide money, property or benefits to:
(a)
another community charity corporation; or
(b)
an *ancillary fund; or
(c)
a *community charity trust;
unless permitted to do so by the *community charity corporation guidelines.
History
S 426-200 inserted by No 52 of 2024, s 3 and Sch 3 item 34, effective 29 June 2024.
PART 5-45 - APPLICATION OF TAXATION LAWS TO CERTAIN ENTITIES
Division 444 - Obligations of entities on behalf of other entities
History
Div 444 substituted by No 73 of 2006, s 3 and Sch 5 item 52, effective 1 July 2006. Div 444 formerly read:
Division 444 - Entities that are not legal persons
SECTION 444-5 PARTNERSHIPS
444-5(1)
This Schedule applies to a partnership as if the partnership were a person, but with the changes set out in this section.
444-5(2)
An obligation that this Schedule would otherwise impose on the partnership:
(a)
is imposed instead on each partner; but
(b)
may be discharged by any of the partners.
444-5(3)
The partners are jointly and severally liable to pay an amount that would otherwise be payable by the partnership under this Schedule.
History
S 444-5 inserted by No 179 of 1999.
SECTION 444-10 UNINCORPORATED COMPANIES
444-10
An obligation that this Schedule would otherwise impose on a company that is not incorporated:
(a)
is imposed instead on each member of the company's committee of management; but
(b)
may be discharged by any of those members.
History
S 444-10 inserted by No 179 of 1999.
SECTION 444-15 SUPERANNUATION FUNDS
444-15
If a *superannuation fund does not have a trustee of the fund, this Schedule applies to the fund as if:
(a)
the person who manages the fund were the trustee of the fund; or
(b)
each of the persons who manage the fund were a trustee of the fund.
Note:
The trustee of a superannuation fund is an entity. See subsection 960-100(2) of the Income Tax Assessment Act 1997.
History
S 444-15 inserted by No 179 of 1999.
Guide to Division 444
SECTION 444-1
WHAT THIS DIVISION IS ABOUT
This Division imposes onto other entities the liabilities of unincorporated associations or bodies, companies, partnerships, superannuation funds, incapacitated entities, trusts and various indirect tax specific entities.
History
S 444-1 amended by No 14 of 2012, s 3 and Sch 1 item 34, by inserting ", trusts", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
S 444-1 inserted by No 73 of 2006, s 3 and Sch 5 item 52, effective 1 July 2006.
Subdivision 444-A - Unincorporated associations and bodies and companies
History
Subdiv 444-A inserted by No 73 of 2006, s 3 and Sch 5 item 52, effective 1 July 2006.
SECTION 444-5
UNINCORPORATED ASSOCIATIONS AND BODIES
444-5(1)
Obligations that would be imposed under this Schedule or an *indirect tax law on an unincorporated association or body of entities are imposed on each member of the committee of management of the association or body, but may be discharged by any of those members.
History
S 444-5(1) amended by No 96 of 2014, s 3 and Sch 1 item 99, by omitting ", the *MRRT law" after "under this Schedule", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 444-5(1) amended by No 14 of 2012, s 3 and Sch 1 item 35, by inserting ", the *MRRT law", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
444-5(1A)
(Repealed by No 96 of 2014)
History
S 444-5(1A) repealed by No 96 of 2014, s 3 and Sch 1 item 100, effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. S 444-5(1A) formerly read:
444-5(1A)
An amount that is payable under the *MRRT law by an unincorporated association or body of entities is payable by each member of the committee of management of the association or body.
S 444-5(1A) inserted by No 14 of 2012, s 3 and Sch 1 item 36, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
444-5(1B)
(Repealed by No 96 of 2014)
History
S 444-5(1B) repealed by No 96 of 2014, s 3 and Sch 1 item 100, effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. S 444-5(1B) formerly read:
444-5(1B)
If there is more than one such member, those members are jointly and severally liable to pay the amount.
S 444-5(1B) inserted by No 14 of 2012, s 3 and Sch 1 item 36, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
444-5(2)
Any offence against this Schedule or an *indirect tax law that is committed by the association or body is taken to have been committed by each member of its committee of management.
History
S 444-5(2) amended by No 96 of 2014, s 3 and Sch 1 item 101, by omitting ", the *MRRT law" after "against this Schedule", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 444-5(2) amended by No 14 of 2012, s 3 and Sch 1 item 37, by inserting ", the *MRRT law", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
444-5(3)
In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (2), it is a defence if the entity proves that the entity:
(a)
did not aid, abet, counsel or procure the relevant act or omission; and
(b)
was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).
Note 1:
The defence in subsection (3) does not apply in relation to offences under Part 2.4 of the Criminal Code.
Note 2:
A defendant bears a legal burden in relation to the matters in subsection (3): see section 13.4 of the Criminal Code.
SECTION 444-10
PUBLIC OFFICERS OF COMPANIES
444-10(1)
The individual who is the public officer of a company for the purposes of the Income Tax Assessment Act 1936 is also the public officer of the company for the purposes of an *indirect tax law. The public officer's address for service under that Act is also the public officer's address for service for the same purposes.
History
S 444-10(1) amended by No 96 of 2014, s 3 and Sch 1 item 102, by omitting "and the *MRRT law" after "*indirect tax law", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 444-10(1) amended by No 14 of 2012, s 3 and Sch 1 item 38, by inserting "and the *MRRT law", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
444-10(2)
The public officer is answerable for doing everything required to be done by the company under an *indirect tax law, and in case of default is liable to the same penalties.
History
S 444-10(2) amended by No 96 of 2014, s 3 and Sch 1 item 102, by omitting "and the *MRRT law" after "*indirect tax law", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 444-10(2) amended by No 14 of 2012, s 3 and Sch 1 item 38, by inserting "and the *MRRT law", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
444-10(3)
A proceeding under an *indirect tax law that is brought against the public officer is taken to have been brought against the company, and the company is liable jointly with the public officer for any penalty imposed on the public officer.
History
S 444-10(3) amended by No 96 of 2014, s 3 and Sch 1 item 103, by omitting "or the *MRRT law" after "*indirect tax law", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 444-10(3) amended by No 14 of 2012, s 3 and Sch 1 item 39, by inserting "or the *MRRT law", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
444-10(4)
Everything done by the public officer that the public officer is required to do in that capacity is taken to have been done by the company.
444-10(5)
Service of a notice or other document on the public officer or at the public officer's address for service is sufficient service on the company for the purposes of an *indirect tax law. If at any time there is no public officer, service on an individual who is acting or appears to be acting in the business of the company is sufficient.
Note:
See section 444-15 for alternative ways to give a notice to, or serve a process on, a company (through its officers, attorneys or agents).
History
S 444-10(5) amended by No 96 of 2014, s 3 and Sch 1 item 104, by omitting "and the *MRRT law" after "*indirect tax law", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 444-10(5) amended by No 180 of 2012, s 3 and Sch 6 item 30, by inserting the note at the end, applicable in relation to an act or omission by a body corporate occurring on or after 11 December 2012.
S 444-10(5) amended by No 14 of 2012, s 3 and Sch 1 item 40, by inserting "and the *MRRT law", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
444-10(6)
This section does not, by implication, reduce any ofthe obligations or liabilities of the company.
History
S 444-10 inserted by No 73 of 2006, s 3 and Sch 5 item 52, effective 1 July 2006.
SECTION 444-15
444-15
NOTIFYING AND SERVING COMPANIES
For the purposes of an *indirect tax law, if the Commissioner considers it appropriate, a notice or process may be given to, or served on, a company by giving the notice to, or serving the process on:
(a)
a director, the secretary or another officer of the company; or
(b)
an attorney or agent of the company.
Note:
See subsection 444-10(5) for alternative ways to serve a notice or another document on a company (through its public officer or someone else acting or appearing to act for the company).
History
S 444-15 amended by No 96 of 2014, s 3 and Sch 1 item 105, by omitting "or the *MRRT law" after "*indirect tax law", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 444-15 substituted by No 180 of 2012, s 3 and Sch 6 item 31, applicable in relation to an act or omission by a body corporate occurring on or after 11 December 2012. S 444-15 formerly read:
SECTION 444-15 LIABILITY OF DIRECTORS AND OFFICERS OF A COMPANY
444-15(1)
Any notice, process or proceeding that may be given to, served on or taken against a company or its public officer under an *indirect tax law or the *MRRT law may, if the Commissioner considers it appropriate, be given to, served on, or taken against an entity (the
representative
) who is:
(a)
a director, secretary or other officer of the company; or
(b)
an attorney or agent of the company.
History
S 444-15(1) amended by No 14 of 2012, s 3 and Sch 1 item 41, by inserting "or the *MRRT law", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
444-15(2)
The representative has the same liability in respect of the notice, process or proceeding as the company or public officer would have had if it had been given to, served on or taken against the company or public officer.
444-15(3)
This section does not, by implication, reduce any of the obligations or liabilities of the company or public officer.
S 444-15 inserted by No 73 of 2006, s 3 and Sch 5 item 52, effective 1 July 2006.
Subdivision 444-B - Partnerships
History
Subdiv 444-B inserted by No 73 of 2006, s 3 and Sch 5 item 52, effective 1 July 2006.
SECTION 444-30
PARTNERSHIPS
444-30(1)
Obligations that are imposed under this Schedule or an *indirect tax law on a partnership are imposed on each partner, but may be discharged by any of the partners.
History
S 444-30(1) amended by No 96 of 2014, s 3 and Sch 1 item 106, by omitting ", the *MRRT law" after "under this Schedule", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 444-30(1) amended by No 14 of 2012, s 3 and Sch 1 item 42, by inserting ", the *MRRT law", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
444-30(2)
The partners are jointly and severally liable to pay any amount that is payable under this Schedule or an *indirect tax law by the partnership.
History
S 444-30(2) amended by No 96 of 2014, s 3 and Sch 1 item 106, by omitting ", the *MRRT law" after "under this Schedule", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 444-30(2) amended by No 14 of 2012, s 3 and Sch 1 item 42, by inserting ", the *MRRT law", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
444-30(3)
Any offence against this Schedule or an *indirect tax law that is committed by a partnership is taken to have been committed by each of the partners.
History
S 444-30(3) amended by No 96 of 2014, s 3 and Sch 1 item 106, by omitting ", the *MRRT law" after "against this Schedule", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 444-30(3) amended by No 14 of 2012, s 3 and Sch 1 item 42, by inserting ", the *MRRT law", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
444-30(4)
In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (3), it is a defence if the entity proves that the entity:
(a)
did not aid, abet, counsel or procure the relevant act or omission; and
(b)
was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).
Note 1:
The defence in subsection (4) does not apply in relation to offences under Part 2.4 of the Criminal Code.
Note 2:
A defendant bears a legal burden in relation to the matters in subsection (4): see section 13.4 of the Criminal Code.
444-30(5)
If a civil penalty may be imposed in relation to a contravention of a provision of this Schedule or an *indirect tax law:
(a)
subsection (3) applies to a contravention of the provision in a corresponding way to the way in which it applies to an offence; and
(b)
subsection (4) does not apply.
History
S 444-30(5) inserted by No 37 of 2024, s 3 and Sch 1 item 35, applicable in relation to conduct engaged in on or after 1 July 2024.
History
S 444-30 inserted by No 73 of 2006, s 3 and Sch 5 item 52, effective 1 July 2006.
Subdivision 444-C - Superannuation funds
History
Subdiv 444-C inserted by No 73 of 2006, s 3 and Sch 5 item 52, effective 1 July 2006.
SECTION 444-50
444-50
SUPERANNUATION FUNDS
If a superannuation fund does not have a trustee of the fund, this Schedule applies to the fund as if:
(a)
the entity that manages the fund were the trustee of the fund; or
(b)
each of the entities that manage the fund were a trustee of the fund.
Note:
The trustee of a superannuation fund is taken to be an entity: see subsection 960-100(2) of the Income Tax Assessment Act 1997.
History
S 444-50 inserted by No 73 of 2006, s 3 and Sch 5 item 52, effective 1 July 2006.
Subdivision 444-D - Incapacitated entities
History
Subdiv 444-D inserted by No 73 of 2006, s 3 and Sch 5 item 52, effective 1 July 2006.
SECTION 444-70
REPRESENTATIVES OF INCAPACITATED ENTITIES
444-70(1)
If:
(a)
there are, at the same time, 2 or more *representatives of the same *incapacitated entity; and
(b)
the representatives were not appointed to act in different capacities as representatives;
the representatives are jointly and severally liable to pay any amount that is payable under an *indirect tax law by any of the representatives in relation to that same incapacitated entity.
History
S 444-70(1) amended by No 96 of 2014, s 3 and Sch 1 item 107, by omitting "or the *MRRT law" after "*indirect tax law", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 444-70(1) amended by No 14 of 2012, s 3 and Sch 1 item 43, by inserting "or the *MRRT law", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
S 444-70(1) substituted by No 118 of 2009, s 3 and Sch 1 item 49, effective 4 December 2009. S 444-70(1) formerly read:
444-70(1)
If there are 2 or more *representatives of the same *incapacitated entity, the representatives are jointly and severally liable to pay any amount that is payable under an *indirect tax law by any of the representatives in relation to that same incapacitated entity.
444-70(2)
If:
(a)
there are, at the same time, 2 or more *representatives of the same *incapacitated entity; and
(b)
the representatives were not appointed to act in different capacities as representatives;
any offence against an *indirect tax law that is committed by one of the representatives is taken to have been committed by each of the representatives.
History
S 444-70(2) amended by No 96 of 2014, s 3 and Sch 1 item 107, by omitting "or the *MRRT law" after "*indirect tax law", effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
S 444-70(2) amended by No 14 of 2012, s 3 and Sch 1 item 43, by inserting "or the *MRRT law", effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
S 444-70(2) substituted by No 118 of 2009, s 3 and Sch 1 item 49, effective 4 December 2009. S 444-70(2) formerly read:
444-70(2)
If there are 2 or more *representatives of the same *incapacitated entity, any offence against an *indirect tax law that is committed by one of the representatives is taken to have been committed by each of the representatives.
444-70(3)
In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (2), it is a defence if the entity proves that the entity:
(a)
did not aid, abet, counsel or procure the relevant act or omission; and
(b)
was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).
Note 1:
The defence in subsection (3) does not apply in relation to offences under Part 2.4 of the Criminal Code.
Note 2:
A defendant bears a legal burden in relation to the matters in subsection (3): see section 13.4 of the Criminal Code.
History
S 444-70 inserted by No 73 of 2006, s 3 and Sch 5 item 52, effective 1 July 2006.
Subdivision 444-E - Indirect tax specific entities
History
Subdiv 444-E inserted by No 73 of 2006, s 3 and Sch 5 item 52, effective 1 July 2006.
SECTION 444-80
GST JOINT VENTURES
Joint and several liability
444-80(1)
The *participants in a *GST joint venture are jointly and severally liable to pay any amount (an
indirect tax amount
) that is payable under an *indirect tax law by the *joint venture operator for the joint venture, to the extent that the amount relates to the joint venture.
History
S 444-80(1) amended by No 74 of 2010, s 3 and Sch 1 item 57, by inserting "(an
indirect tax amount
)" after "any amount", applicable to tax periods starting on or after 1 July 2010.
Indirect tax sharing agreements
444-80(1A)
Despite subsection (1), if:
(a)
before the *joint venture operator for the joint venture is required to give to the Commissioner a *GST return for a *tax period, an agreement (the
indirect tax sharing agreement
) has been entered into between:
(i)
the joint venture operator; and
(ii)
one or more *participants in the joint venture (the
contributing participant
) (other than the joint venture operator); and
(b)
a particular amount (the
contribution amount
) could be determined under the indirect tax sharing agreement for each contributing participant in relation to that tax period; and
(c)
the contribution amounts for each of the contributing participants under the indirect tax sharing agreement represent a reasonable allocation among:
(i)
the joint venture operator; and
(ii)
the contributing participants;
of the total amount payable, under *indirect tax laws, for which the participants in the joint venture would be jointly or severally liable under subsection (1) in relation to that tax period;
then:
(d)
if the contributing participant leaves the joint venture before the joint venture operator for the joint venture is required to give to the Commissioner a GST return for that tax period, and subsection (1B) applies - the contributing participant is not liable under subsection (1) in relation to an indirect tax amount relating to that tax period; or
(e)
otherwise - the contributing participant's liability under subsection (1) in relation to that tax period is not to exceed that contribution amount.
History
S 444-80(1A) inserted by No 74 of 2010, s 3 and Sch 1 item 58, applicable to tax periods starting on or after 1 July 2010.
444-80(1B)
This subsection applies if:
(a)
leaving the joint venture was not part of an arrangement, a purpose of which was to prejudice the recovery by the Commissioner of the indirect tax amount; and
(b)
before the day on which the *joint venture operator is required to give to the Commissioner a *GST return for that tax period, the contributing participant pays to the joint venture operator:
(i)
the contribution amount relating to that tax period; or
(ii)
if the contribution amount cannot be determined at the time of the payment - an amount that is a reasonable estimate of the contribution amount.
History
S 444-80(1B) inserted by No 74 of 2010, s 3 and Sch 1 item 58, applicable to tax periods starting on or after 1 July 2010.
444-80(1C)
Subsection (1A) does not apply if:
(a)
the indirect tax sharing agreement was entered into as part of an arrangement; and
(b)
a purpose of the arrangement was to prejudice the recovery by the Commissioner of the indirect tax amount.
History
S 444-80(1C) inserted by No 74 of 2010, s 3 and Sch 1 item 58, applicable to tax periods starting on or after 1 July 2010.
444-80(1D)
Subsection (1A) does not apply if:
(a)
the Commissioner gives the *joint venture operator of the joint venture written notice under this subsection in relation to the indirect tax sharing agreement (whether before, when or after an indirect tax amount to which the agreement relates becomes payable); and
(b)
the notice requires the joint venture operator to give the Commissioner a copy of the agreement in the *approved form within 14 days after the notice is given; and
(c)
the Commissioner does not receive a copy of the agreement by the time required.
History
S 444-80(1D) inserted by No 74 of 2010, s 3 and Sch 1 item 58, applicable to tax periods starting on or after 1 July 2010.
444-80(1E)
Subsection (1A) does not apply if, apart from this subsection, the requirements of subsection (1A) would be satisfied in relation to 2 or more agreements:
(a)
that were entered into by the *joint venture operator; and
(b)
that relate to the same tax period.
History
S 444-80(1E) inserted by No 74 of 2010, s 3 and Sch 1 item 58, applicable to tax periods starting on or after 1 July 2010.
Criminal liability of participants in GST joint ventures
444-80(2)
Any offence against an *indirect tax law that:
(a)
is committed by the *joint venture operator for a *GST joint venture; and
(b)
relates to the joint venture;
is taken to have been committed by each of the *participants in the joint venture.
444-80(3)
In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (2), it is a defence if the entity proves that the entity:
(a)
did not aid, abet, counsel or procure the relevant act or omission; and
(b)
was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).
Note 1:
The defence in subsection (3) does not apply in relation to offences under Part 2.4 of the Criminal Code.
Note 2:
A defendant bears a legal burden in relation to the matters in subsection (3): see section 13.4 of the Criminal Code.
History
S 444-80 inserted by No 73 of 2006, s 3 and Sch 5 item 52, effective 1 July 2006.
SECTION 444-85
NON-PROFIT SUB-ENTITIES
444-85(1)
Obligations that would be imposed under the *GST law or the *fuel tax law on a *non-profit sub-entity are imposed on each entity who is responsible, to entities or bodies outside the sub-entity, for the management of the sub-entity, but may be discharged by any entity who is so responsible.
444-85(2)
The entities who are so responsible in respect of the sub-entity arejointly and severally liable to pay any amount that is payable under the *GST law or the *fuel tax law by the sub-entity.
444-85(3)
Any offence against the *GST law or the *fuel tax law that is committed by the sub-entity is taken to have been committed by each entity who is responsible, to entities or bodies outside the sub-entity, for the management of the sub-entity.
444-85(4)
In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (3), it is a defence if the entity proves that the entity:
(a)
did not aid, abet, counsel or procure the relevant act or omission; and
(b)
was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).
Note 1:
The defence in subsection (4) does not apply in relation to offences under Part 2.4 of the Criminal Code.
Note 2:
A defendant bears a legal burden in relation to the matters in subsection (4): see section 13.4 of the Criminal Code.
History
S 444-85 inserted by No 73 of 2006, s 3 and Sch 5 item 52, effective 1 July 2006.
SECTION 444-90
GST GROUPS
Joint and several liability
444-90(1)
The *members of a *GST group are jointly and severally liable to pay any amount (an
indirect tax amount
) that is payable under an *indirect tax law by the *representative member for the group.
History
S 444-90(1) amended by No 74 of 2010, s 3 and Sch 1 item 60, by inserting "(an
indirect tax amount
)" after "any amount", applicable to tax periods starting on or after 1 July 2010.
Indirect tax sharing agreements
444-90(1A)
Despite subsection (1), if:
(a)
before the *representative member of the group is required to give to the Commissioner a *GST return for a *tax period, an agreement (the
indirect tax sharing agreement
) has been entered into between:
(i)
the representative member; and
(ii)
one or more other *members of the group (the
contributing member
); and
(b)
a particular amount (the
contributing amount
) could be determined under the indirect tax sharing agreement for each contributing member in relation to that tax period; and
(c)
the contribution amounts for each of the contributing members under the indirect tax sharing agreement represent a reasonable allocation among:
(i)
the representative member; and
(ii)
the contributing members;
of the total amount payable, under *indirect tax laws, for which the members of the group would be jointly or severally liable under subsection (1) in relation to that tax period;
then:
(d)
if the contributing member leaves the group before the representative member of the group is required to give to the Commissioner a GST return for that tax period, and subsection (1B) applies - the contributing member is not liable under subsection (1) in relation to an indirect tax amount relating to that tax period; or
(e)
otherwise - the contributing member's liability under subsection (1) in relation to that tax period is not to exceed that contribution amount.
History
S 444-90(1A) inserted by No 74 of 2010, s 3 and Sch 1 item 61, applicable to tax periods starting on or after 1 July 2010.
444-90(1B)
This subsection applies if:
(a)
leaving the group was not part of an arrangement, a purpose of which was to prejudice the recovery by the Commissioner of the indirect tax amount; and
(b)
before the day on which the *representative member is required to give to the Commissioner a *GST return for that tax period, the contributing member pays to the representative member:
(i)
the contribution amount relating to that tax period; or
(ii)
if the contribution amount cannot be determined at the time of the payment - an amount that is a reasonable estimate of the contribution amount.
History
S 444-90(1B) inserted by No 74 of 2010, s 3 and Sch 1 item 61, applicable to tax periods starting on or after 1 July 2010.
444-90(1C)
Subsection (1A) does not apply if:
(a)
the indirect tax sharing agreement was entered into as part of an arrangement; and
(b)
a purpose of the arrangement was to prejudice the recovery by the Commissioner of the indirect tax amount.
History
S 444-90(1C) inserted by No 74 of 2010, s 3 and Sch 1 item 61, applicable to tax periods starting on or after 1 July 2010.
444-90(1D)
Susbection (1A) does not apply if:
(a)
the Commissioner gives the *representative member of the group written notice under this subsection in relation to the indirect tax sharing agreement (whether before, when or after an indirect tax amount to which the agreement relates becomes payable); and
(b)
the notice requires the representative member to give the Commissioner a copy of the agreement in the *approved form within 14 days after the notice is given; and
(c)
the Commissioner does not receive a copy of the agreement by the time required.
History
S 444-90(1D) inserted by No 74 of 2010, s 3 and Sch 1 item 61, applicable to tax periods starting on or after 1 July 2010.
444-90(1E)
Subsection (1A) does not apply if, apart from this subsection, the requirements of subsection (1A) would be satisfied in relation to 2 or more agreements:
(a)
that were entered into by the *representative member; and
(b)
that relate to the same tax period.
History
S 444-90(1E) inserted by No 74 of 2010, s 3 and Sch 1 item 61, applicable to tax periods starting on or after 1 July 2010.
Effect of prohibitions on certain arrangements
444-90(2)
Subsection (1) does not apply to a *member of a *GST group if an *Australian law has the effect of prohibiting the member from entering into any *arrangement under which the member becomes subject to the liability referred to in that subsection.
444-90(3)
However, a *member to which subsection (2) applies remains liable for any amount payable under an *indirect tax law by the *representative member for the group, to the extent that the liability arises from an act or omission of the member to which subsection (2) applies.
Criminal liability of members of GST groups
444-90(4)
Any offence against an *indirect tax law that is committed by the *representative member for a *GST group is taken to have been committed by each of the *members of the group.
444-90(5)
In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (4), it is a defence if the entity proves that the entity:
(a)
did not aid, abet, counsel or procure the relevant act or omission; and
(b)
was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).
Note 1:
The defence in subsection (5) does not apply in relation to offences under Part 2.4 of the Criminal Code.
Note 2:
A defendant bears a legal burden in relation to the matters in subsection (5): see section 13.4 of the Criminal Code.
History
S 444-90 inserted by No 73 of 2006, s 3 and Sch 5 item 52, effective 1 July 2006.
Subdivision 444-F - Trusts
History
Subdiv 444-F inserted by No 37 of 2024, s 3 and Sch 1 item 36, applicable in relation to conduct engaged in on or after 1 July 2024.
Former Subdiv 444-F repealed by No 96 of 2014, s 3 and Sch 1 item 108, effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading.
Former Subdiv 444-F inserted by No 14 of 2012, s 3 and Sch 1 item 44, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
SECTION 444-120
444-120
JOINT AND SEVERAL LIABILITY FOR ALL TRUSTEES
If:
(a)
a trust has more than one trustee; and
(b)
a civil penalty is imposed in relation to a contravention of a provision of this Schedule or an *indirect tax law on one of those trustees;
then all the trustees are jointly and severally liable to pay the amount of the penalty.
History
S 444-120 inserted by No 37 of 2024, s 3 and Sch 1 item 36, applicable in relation to conduct engaged in on or after 1 July 2024.
Former s 444-120 repealed by No 96 of 2014, s 3 and Sch 1 item 108, effective 30 September 2014. For transitional provisions see note under Pt 3-15 heading. S 444-120 formerly read:
SECTION 444-120 TRUSTS
Obligations
444-120(1)
Subject to subsection (2), an obligation that is imposed under the *MRRT law on a trust is imposed on each of the following entities, but may be discharged by any such entity:
(a)
an entity that is the trustee of the trust at the time the obligation arises;
(b)
an entity that is the trustee of the trust at a time that is:
(i)
after the obligation arises; and
(ii)
before the obligation has been discharged.
444-120(2)
An amount that is payable under the *MRRT law by a trust is payable as set out in the table:
Joint and several liability
444-120(3)
If an amount is payable under this section by more than one entity, those entities are jointly and severally liable to pay the amount.
Commissioner has direct access to trust assets
444-120(4)
For the purpose of ensuring the payment of an amount payable by an entity under this section in relation to a liability of a trust, the Commissioner has the same remedies against the property of the trust as the Commissioner would have against the property of the entity.
Right of indemnity
444-120(5)
An entity that pays an amount of a liability it has under this section is entitled to be indemnified out of the assets of the trust for the liability.
Offences
444-120(6)
Any offence against the *MRRT law that is committed by a trust is taken to have been committed by the trustee of the trust, or, if the trust has more than one trustee, by each of the trustees.
444-120(7)
In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (6), it is a defence if the entity proves that the entity:
(a)
did not aid, abet, counsel or procure the relevant act or omission; and
(b)
was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).
Note 1:
The defence in subsection (7) does not apply in relation to offences under Part 2.4 of the Criminal Code.
Note 2:
A defendant bears a legal burden in relation to the matters in subsection (7): see section 13.4 of the Criminal Code.
Former s 444-120 inserted by No 14 of 2012, s 3 and Sch 1 item 44, effective 1 July 2012. For application and transitional provisions see note under Part 3-15 heading.
Division 446 - Local governing bodies
History
Div 446 inserted by No 101 of 2006, s 3 and Sch 2 item 970, effective 14 September 2006. For application and saving provisions see the CCH Australian Income Tax Legislation archive.
Guide to Division
SECTION 446-1
WHAT THIS DIVISION IS ABOUT
A local governing body can resolve that its members are subject to Pay As You Go withholding. This also results in themembers being treated as employees for a wide range of other taxation purposes.
TABLE OF SECTIONS
TABLE OF SECTIONS
|
Operative provisions
|
| 446-5 |
Requirements for unanimous resolutions by local governing bodies |
Operative provisions
SECTION 446-5
REQUIREMENTS FOR UNANIMOUS RESOLUTIONS BY LOCAL GOVERNING BODIES
When section applies
446-5(1)
This section applies to the following unanimous resolutions made by a *local governing body:
(a)
a resolution that the remuneration of members of the body be subject to withholding under Part 2-5 (about Pay As You Go withholding);
(b)
a resolution cancelling a resolution covered by paragraph (a).
History
S 446-5(1) amended by No 101 of 2006, s 3 and Sch 3 item 21, by repealing the note at the end, effective 1 January 2008. The note formerly read:
Note:
Item 14 of Schedule 6 to the Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006 provides that this section also applies to resolutions in force just before the repeal of the predecessor of this section (section 221B of the Income Tax Assessment Act 1936).
When resolution takes effect
446-5(2)
The resolution must specify a day as the day on which the resolution takes effect. The specified day must be within the 28-day period beginning on the day after the day on which the resolution was made.
Resolution not affected by change in membership of body
446-5(3)
The resolution continues in force in spite of a change in the membership of the *local governing body.
Commissioner to be notified of resolution
446-5(4)
The *local governing body must give written notice of the resolution to the Commissioner within 7 days after the resolution was made.
Eligible local governing bodies to be notified by notifiable instrument
446-5(5)
If the Commissioner is notified of the resolution, the Commissioner must, by notifiable instrument, publish notice of the making of the resolution. The instrument must also set out:
(a)
the name of the *local governing body; and
(b)
the day on which the resolution takes effect.
History
S 446-5(5) amended by No 64 of 2020, s 3 and Sch 3 item 321, by substituting "the Commissioner must, by notifiable instrument, publish notice of the making of the resolution. The instrument must also set out" for "the Commissioner must cause to be published in the Gazette a notice setting out", effective 1 October 2020. For transitional provisions, see note under s 16-153(7).
When resolution applies for purposes of affected provisions
446-5(6)
This table sets out when the resolution applies for the purposes of particular provisions whose operation it affects.
|
When the resolution applies
|
|
Item
|
If the resolution affects the operation of ...
|
the resolution applies to ...
|
| 1 |
section 12-45 |
amounts that become payable after the day on which the resolution takes effect |
| 2 |
Subdivision AB of Division 17 of Part III of the Income Tax Assessment Act 1936 (about tax offset for lump sum payments in arrears) |
*ordinary income *derived, and amounts that become *statutory income, after the day on which the resolution takes effect |
| 3 |
sections 26-30 and 34-5 of the Income Tax Assessment Act 1997 (about deductions for relatives' travel expenses and non-compulsory uniforms) |
expenditure incurred after the day on which the resolution takes effect |
| 4 |
Divisions 28 and 900 of the Income Tax Assessment Act 1997 (about car expenses and substantiation) |
expenses incurred after the day on which the resolution takes effect |
| 5 |
section 130-80 of the Income Tax Assessment Act 1997 (about capital gains tax and employee share trusts) |
*shares and rights to which a beneficiary becomes absolutely entitled after the day on which the resolution takes effect |
| 6 |
provisions of the Fringe Benefits Tax Assessment Act 1986 relating to assessments |
(a) in the case of a loan benefit within the meaning of the Fringe Benefits Tax Assessment Act 1986 - a loan made after the day on which the resolution takes effect;
(b) in the case of a housing benefit within the meaning of that Act - the subsistence, after the day on which the resolution takes effect, of the housing right concerned;
(c) in the case of a residual benefit within the meaning of that Act that is *provided during a period - so much of the period as occurs after the day on which the resolution takes effect;
(d) any other *fringe benefit provided after the day on which the resolution takes effect. |
| 7 |
Division 4 of Part II of the Income Tax Rates Act 1986 (about pro-rating the tax-free threshold) |
amounts that become assessable income after the day on which the resolution takes effect |
| 8 |
the provisions of the Child Support (Registration and Collection) Act 1988 |
*ordinary income *derived, and amounts that become *statutory income, after the day on which the resolution takes effect |
| 9 |
section 9-20 of the *GST Act (about the meaning of
enterprise
) |
activities, or series of activities, done after the day on which the resolution takes effect |
| 10 |
Division 111 of the *GST Act (about reimbursement of employees) |
reimbursements made after the day on which the resolution takes effect |
History
S 446-5(6) amended by No 12 of 2012, s 3 and Sch 6 item 91, by substituting "*GST Act" for "A New Tax System (Goods and Services Tax) Act 1999" in table items 9 and 10, column headed "If the resolution affects the operation of …", effective 21 March 2012.
S 446-5(6) amended by No 133 of 2009, s 3 and Sch 1 item 82, by substituting "section 130-80" for "section 130-90" in table item 5, applicable in relation to the ESS interests mentioned in subsections 83A-5(1) and (2) of the Income Tax (Transitional Provisions) Act 1997.
History
S 446-5 inserted by No 101 of 2006, s 3 and Sch 2 item 970, effective 14 September 2006. For application and saving provisions see the CCH Australian Income Tax Legislation archive.
PART 5-100 - MISCELLANEOUS
History
Pt 5-100 inserted by No 90 of 2010, s 3 and Sch 3 item 1, effective 29 June 2010.
Division 850 - Transactions exempt from application of taxation laws
History
Div 850 inserted by No 90 of 2010, s 3 and Sch 3 item 1, effective 29 June 2010.
Subdivision 850-A - Declaration relating to security or intelligence agency
History
Subdiv 850-A inserted by No 90 of 2010, s 3 and Sch 3 item 1, effective 29 June 2010.
SECTION 850-100
DECLARATION RELATING TO SECURITY OR INTELLIGENCE AGENCY
Object
850-100(1)
The object of this section is to remove the possibility of a conflict arising between Australia's national security interests and Australia's taxation laws.
Making a declaration
850-100(2)
The Director-General of Security holding office under the Australian Security Intelligence Organisation Act 1979 may declare that this section applies to one or more specified entities (the Australian Security Intelligence Organisation itself may be specified) in relation to one or more specified transactions.
850-100(3)
The Director-General of the Australian Secret Intelligence Service (
ASIS
) may declare that this section applies to one or more specified entities (ASIS itself may be specified) in relation to one or more specified transactions.
850-100(3A)
The Director-General of the Australian Signals Directorate (
ASD
) may declare that this section applies to one or more specified entities (ASD itself may be specified) in relation to one or more specified transactions.
History
S 850-100(3A) inserted by No 25 of 2018, s 3 and Sch 1 item 91, effective 1 July 2018.
850-100(4)
A declaration under this section may only be made if the relevant Director-General is satisfied that the making of the declaration is necessary for the proper performance of the functions of:
(a)
for the Director-General of Security - the Australian Security Intelligence Organisation; or
(b)
for the Director-General of ASIS - ASIS; or
(c)
for the Director-General of ASD - ASD.
History
S 850-100(4) amended by No 25 of 2018, s 3 and Sch 1 item 92, by inserting para (c), effective 1 July 2018.
850-100(5)
A declaration under this section must be in writing, signed by the relevant Director-General.
Note 1:
A declaration may specify an entity or transaction by reference to a class of entities or transactions (see subsection 33(3AB) of the Acts Interpretation Act 1901). For example, a declaration may specify the subsidiaries of a specified company, or the parties to a specified transaction.
Note 2:
For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
History
S 850-100(5) amended by No 46 of 2011, s 3 and Sch 2 item 1111, by substituting "subsection 33(3AB)" for "subsection 46(3)" in note 1, effective 27 December 2011. For saving and transitional provisions see note under s 6B(1).
850-100(6)
A declaration may be made even though:
(a)
a transaction it specifies has already been entered into or carried out; or
(b)
an entity it specifies has died or ceased to exist;
(whether before or after the commencement of this section).
850-100(7)
A written document signed by the relevant Director-General purporting to be a declaration is prima facie evidence that this section has been complied with in making the declaration, but this subsection does not affect the performance of the functions of the Inspector-General of Intelligence and Security.
Effect of declaration
850-100(8)
For an entity specified in a declaration in relation to a specified transaction, the transaction is to be disregarded in determining any of the following:
(a)
the existence or amount of a liability of the entity relating to taxation under any *Commonwealth law, even if the law requires express words to be used to exempt an entity or transaction from liability to taxation under that law;
Example:
Examples of liabilities covered by paragraph (a) are a liability to GST (despite section 177-5 of the GST Act), and amounts required to be paid by Part 2-5 in this Schedule (Pay as you go (PAYG) withholding).
(b)
the existence or amount of any kind of benefit (however the benefit is expressed) relating to taxation under any Commonwealth law;
Example:
Examples of benefits covered by paragraph (b) are deductions, credits and offsets under the Income Tax Assessment Act 1997, and input tax credits under the GST Act.
(c)
the existence or extent of any other obligation (or right) of the entity relating to a liability or benefit of a kind mentioned in paragraph (a) or (b).
Example:
Examples of obligations covered by paragraph (c) include the following:
(a) an obligation to withhold money from a payment;
(b) an obligation to lodge a return, or to provide information, to the Commissioner of Taxation;
(c) an obligation to become registered under a taxation law.
History
S 850-100(8) amended by No 12 of 2012, s 3 and Sch 6 items 92-93, by substituting "GST Act" for "A New Tax System (Goods and Services Tax) Act 1999" in examples of para (a) and (b), effective 21 March 2012.
850-100(9)
A declaration under this section is not a legislative instrument.
History
S 850-100 inserted by No 90 of 2010, s 3 and Sch 3 item 1, effective 29 June 2010.
Division 990 - Miscellaneous
History
Div 990 inserted by No 81 of 2016, s 3 and Sch 10 item 65, effective 1 January 2017 and applicable to documents (however described) that the Commissioner gives on or after 1 July 2017 under taxation laws.
Subdivision 990-A - Combining notices
History
Subdiv 990-A inserted by No 81 of 2016, s 3 and Sch 10 item 65, effective 1 January 2017 and applicable to documents (however described) that the Commissioner gives on or after 1 July 2017 under taxation laws.
SECTION 990-5
COMMISSIONER MAY COMBINE NOTICES
990-5(1)
For the purposes of a *taxation law under which the Commissioner must or may give you a document (however described), that document may be included in or with any other document (however described) that the Commissioner gives you under a taxation law.
990-5(2)
This section is enacted for the avoidance of doubt.
History
S 990-5 inserted by No 81 of 2016, s 3 and Sch 10 item 65, effective 1 January 2017 and applicable to documents (however described) that the Commissioner gives on or after 1 July 2017 under taxation laws.
•
