SWIMMING POOLS TAX REFUND ACT 1992 (Repealed)

SECTION 1(Repealed by 101 of 2006)   SHORT TITLE  

1    This Act may be cited as the Swimming Pools Tax Refund Act 1992.

SECTION 2   COMMENCEMENT  

2    This Act commences on the day on which it receives the Royal Assent.

SECTION 3   INTERPRETATION  

3    In this Act:

``Commissioner'' means the Commissioner of Taxation;

`` in situ pool tax'' means the tax referred to in the definition of ``in situ pool tax provisions'';

`` in situ pool tax payment'' means an amount paid to the Commissioner in purported compliance with the requirements of the law relating to sales tax, or under an agreement, to pay in situ pool tax;

`` in situ pool tax provisions '' means the provisions of the Sales Tax Assessment Act (No. 1) 1930 that, when incorporated and read as one with the Sales Tax Act (No. 1) 1930, would have had the effect of imposing a tax on a sale value of so much of a swimming pool as is constructed in situ, but which, in accordance with the judgment of the High Court in Mutual Pools & Staff Pty Ltd v Federal Commissioner of Taxation (1992) 104 ALR 545, were of no effect;

`` in situ pool tax refund payment'' means any payment that the Commonwealth is liable to make by way of refund of an in situ pool tax payment, whether the liability arose as a result of a refund agreement or otherwise;

``pool builder'' means the person to whom an in situ pool tax refund payment is liable to be made;

``pool purchaser'' means a person for whom a swimming pool referred to in the definition of `in situ pool tax provisions' was constructed;

``refund agreement'' means an agreement having the effect that the Commonwealth is required to refund an in situ pool tax payment together with interest.

SECTION 4   IN SITU POOL TAX REFUND PAYMENTS ONLY TO BE MADE IN CERTAIN CIRCUMSTANCES  

4(1)  [Commonwealth liability]  

Except as provided by this section, the Commonwealth is not liable to make any in situ pool tax refund payment.

4(2)  [Refund to pool builder]  

If, before the commencement of this Act or within 2 years after its commencement, the pool builder in respect of an in situ pool tax payment has made a declaration to the Commissioner, in a form approved by the Commissioner for the purpose, of either or both of the following kinds:

(a)  that a specified amount, being the whole or part of the in situ pool tax concerned, was not passed on to the pool purchaser in relation to the swimming pool concerned;

(b)  that a specified amount, being the whole or part of any of the in situ pool tax concerned that was passed on to the pool purchaser in relation to the swimming pool concerned, has been refunded to the pool purchaser;

then the Commonwealth is only liable to make the in situ pool tax refund payment to the pool builder to the extent that it equals the sum of:

(c)  the amount of the tax that was not passed on; and

(d)  the amount of the tax that was refunded.

4(3)  [Joint declaration by pool builder and pool purchaser]  

If, before the commencement of this Act or within 2 years after its commencement, the pool builder in respect of an in situ pool tax refund payment and the pool purchaser in relation to the swimming pool concerned have jointly made adeclaration to the Commissioner, in a form approved by the Commissioner for the purpose, that a specified amount, being the whole or part of any of the in situ pool tax concerned that was passed on to the pool purchaser, has not been refunded to the pool purchaser, then subsection (4) applies.

4(4)  [Refund to pool purchaser]  

If a declaration is made under subsection (3), the Commonwealth is liable to make so much of the in situ pool tax refund payment as equals the amount of the tax that was passed on to the pool purchaser and not refunded, but is liable to make the payment to the pool purchaser instead of to the pool builder.

4(5)  [Declaration by pool purchaser]  

Subject to subsection (6), if a declaration cannot reasonably be made under subsection (3) (because of the non-existence, death, incapacity or refusal of the pool builder, or for any other reason), the Commissioner must allow the pool purchaser, within the same period allowed under subsection (3), to make the declaration, but in a different form approved by the Commissioner for the purpose.

4(6)  [Commissioner must make reasonable efforts to contact pool builder]  

Before the Commissioner allows the pool purchaser to make the declaration, the Commissioner must make reasonable efforts to contact the pool builder and obtain his or her views on the matter.

4(7)  [Review of Commissioner's decision]  

The pool builder or the pool purchaser may apply to the Administrative Appeals Tribunal for review of a decision of the Commissioner to allow, or not allow, the pool purchaser to make the declaration.

4(8)  [Refund if pool purchaser makes declaration]  

If the pool purchaser makes the declaration, subsection (4) applies as if it were made under subsection (3).

4(9)  [Only one declaration for same swimming pool]  

A person is not entitled to make more than one declaration for the purpose of each of subsections (2), (3) and (5) in respect of the same swimming pool.

SECTION 5   PAYMENT OF INTEREST ON IN SITU POOL TAX REFUND PAYMENTS  

5(1)  [Commissioner liable to pay interest]  

If an in situ pool tax refund payment is made to a person in accordance with section 4, the Commissioner is, subject to section 7, liable to pay interest to the person on the amount of the payment in accordance with this section.

5(2)  [Refund to pool builder]  

If the in situ pool tax refund payment was made because subsection 4(2) applied:

(a)  the interest on so much of the payment as equals the tax that was not passed on as mentioned in paragraph 4(2)(c) is payable in respect of the period beginning when the in situ pool tax payment concerned was made and ending when the in situ pool tax refund payment was made; and

(b)  the interest on the rest of the payment is payable in respect of the period beginning when the refund of the tax referred to in paragraph 4(2)(d) was made and ending when the in situ pool tax refund payment was made.

5(3)  [Joint declaration or declaration by pool purchaser]  

If the in situ pool tax refund payment was made because subsection 4(3) or (5) applied, the interest is payable in respect of the period beginning when the in situ pool tax payment concerned was made and ending when the in situ pool tax refund payment was made.

5(4)  [Rate of interest]  

The interest is payable at the same rate per annum as is applicable to interest in respect of the period under the Taxation (Interest on Overpayments and Early Payments) Act 1983.

5(5)  [Interest to be rounded up or down]  

If the interest is not a multiple of one cent, it is to be rounded up or down to the nearest multiple of one cent (amounts ending in 0.5 cent being rounded up).

SECTION 6   PAYMENT OF INTEREST TO POOL PURCHASERS ON REFUNDS BY POOL BUILDERS  

6(1)  [Commissioner liable to pay interest to pool purchaser]  

If an in situ pool tax refund payment is liable to be made in accordance with section 4 in a case where an amount of in situ pool tax was refunded as mentioned in paragraph 4(2)(d) to the pool purchaser, the Commissioner is, subject to section 7, liable to pay interest to the pool purchaser on the amount refunded in accordance with this section.

6(2)  [Period when interest payable]  

The interest is payable in respect of the period beginning when the in situ pool tax payment concerned was made and ending when the amount was refunded.

6(3)  [Rate of interest]  

The interest is payable at the same rate per annum as is applicable to interest in respect of the period under the Taxation (Interest on Overpayments and Early Payments) Act 1983.

6(4)  [Interest to be rounded up or down]  

If the interest is not a multiple of one cent, it is to be rounded up or down to the nearest multiple of one cent (amounts ending in 0.5 cent being rounded up).

SECTION 7   $100 OF POOL PURCHASER'S INTEREST PAYABLE BY WAY OF COMPENSATION TO POOL BUILDER  

7    If, apart from this section, the Commissioner becomes liable to pay interest under section 5 (because subsection 4(3), but not 4(5), applies) or 6, or both, to a pool purchaser, the Commissioner is liable to pay to the pool builder concerned (instead of to the pool purchaser):

(a)  if the total amount of interest that the Commissioner becomes liable to pay under those sections is less than or equal to $100 - all of the interest; or

(b)  in any other case - $100 of the interest.

SECTION 8   INTEREST NOT PAYABLE ON IN SITU POOL TAX PAYMENTS OR IN SITU POOL TAX REFUND PAYMENTS  

8    If, apart from this Act, the Commonwealth would be liable, on the basis of a refund agreement or otherwise, to pay interest on any in situ pool tax payment or any in situ pool tax refund payment, then the Commonwealth is not so liable.

SECTION 9   APPLICATION OF REFUND PAYMENTS AND INTEREST AGAINST LIABILITIES  

9(1)  [Commissioner's discretion to apply payment or interest]  

If:

(a)  an in situ pool tax refund payment is, in accordance with section 4, liable to be made to a person; or

(b)  any interest is liable to be paid to a person under section 5, 6 or 7;

the Commissioner may apply the payment or interest in total or partial discharge of a liability of the person to the Commonwealth.

9(2)  [Amount less than 50 cents not payable]  

If the payment or interest is so applied andthe amount of the payment or interest remaining is less than 50 cents, it is not payable.

SECTION 10   GENERAL ADMINISTRATION OF ACT  

10    The Commissioner has the general administration of this Act.

SECTION 11   INFORMATION AND EVIDENCE  

11(1)  [Persons may be required to provide information etc]  

For the purpose of the application of the Taxation Administration Act 1953 in relation to declarations under section 4 of this Act, the Commissioner may, by notice in writing, require any person:

(a)  to give the Commissioner such information as the Commissioner requires; or

(b)  to attend and give evidence before the Commissioner or before any officer authorised by the Commissioner for the purpose; or

(c)  to produce books, documents and other papers in the custody or under the control of the person.

11(2)  [Form and verification of information etc]  

The Commissioner may require the person to give the information or evidence on oath, and either orally or in writing. For that purpose, the Commissioner or the officer may administer an oath.

11(3)  [Expenses of attendance]  

If regulations for the purposes of subsection 23(3) of the Sales Tax Assessment Act (No. 1) 1930 prescribe scales of expenses to be allowed to persons required to attend under section 23 of that Act, those scales of expenses are to be allowed to persons required to attend under this section.

SECTION 12   ACCESS TO PREMISES ETC  

12    Section 12E of the Sales Tax Procedure Act 1934 has effect, in addition to its effect under that Act, as if the application of the Taxation Administration Act 1953 in relation to declarations under section 4 of this Act were a purpose of a Sales Tax Assessment Act.

SECTION 13   SECRECY  

13    Section 4A of the Sales Tax Procedure Act 1934 applies as if this Act were part of that Act.