S 136AF repealed by No 101 of 2013, s 3 and Sch 2 item 1, applicable: (a) in respect of tax other than withholding tax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 136AF formerly read:
SECTION 136AF CONSEQUENTIAL ADJUSTMENTS TO ASSESSABLE INCOME AND ALLOWABLE DEDUCTIONS
136AF(1)
Where, by reason of the application of section 136AD in relation to the supply or acquisition of property by a taxpayer, an amount is included in the assessable income of the taxpayer of a year of income or a deduction is not allowable or is not, in part, allowable, to the taxpayer in respect of a year of income, the Commissioner may, in relation to any taxpayer (in this subsection referred to as the
relevant taxpayer
):
(a)
if, in the opinion of the Commissioner:
(i)
there has been included, or would but for this subsection be included, in the assessable income of the relevant taxpayer of a year of income an amount that would not have been included or would not be included, as the case may be, in the assessable income of the relevant taxpayer of that year of income if the property had been supplied or acquired, as the case may be, under an agreement between independent parties dealing at arm
'
s length with each other in relation to the supply or acquisition; and
(ii)
it is fair and reasonable that that amount or a part of that amount should not be included in the assessable income of the relevant taxpayer of that year of income;
determine that that amount or that part of that amount, as the case may be, should not have been included or shall not be included, as the case may be, in the assessable income of the relevant taxpayer of that year of income; and
(b)
if, in the opinion of the Commissioner:
(i)
an amount would have been allowed or would be allowable to the relevant taxpayer as a deduction in relation to a year of income if the property had been supplied or acquired, as the case may be, under an agreement between independent parties dealing at arm
'
s length with each other in relation to the supply or acquisition, being an amount that was not allowed or would not, but for this subsection, be allowable, as the case may be, as a deduction to the relevant taxpayer in relation to that year of income; and
(ii)
it is fair and reasonable that that amount or a part of that amount should be allowable as a deduction to the relevant taxpayer in relation to that year of income,
determine that that amount or that part of that amount, as the case may be, should have been allowed or shall be allowable, as the case may be, as a deduction to the relevant taxpayer in relation to that year of income,
and the Commissioner shall take such action as the Commissioner considers necessary to give effect to any such determination.
History
S 136AF(1) amended by No 41 of 2011, s 3 and Sch 5 Pt 27, by removing gender-specific language, effective 27 June 2011.
136AF(1A)
Subsection (1) also has the effect that it would have if the reference in that subsection to the application of section 136AD in relation to a taxpayer included references to:
(a)
the application of section 136AD in accordance with section 102AAZA for the purpose of calculating the attributable income of a trust estate; and
(b)
the application of section 136AD in accordance with section 400 for the purpose of calculating the attributable income of a CFC.
History
S 136AF(1A) inserted by No 5 of 1991.
136AF(2)
Where the Commissioner makes a determination under subsection (1) by virtue of which an amount is allowed as a deduction to a taxpayer in relation to a year of income, that amount shall be deemed to be so allowed as a deduction by virtue of such provision of this Act as the Commissioner determines.
136AF(3)
Where:
(a)
by reason of the application of section 136AD in relation to the supply or acquisition of property by a taxpayer, an amount is included in the assessable income of the taxpayer of a year of income or a deduction is not allowable or is not, in part, allowable, to the taxpayer in respect of a year of income;
(b)
in the opinion of the Commissioner, an amount of withholding tax has become payable and has been paid in respect of interest or royalties paid to a taxpayer (in this subsection referred to as the
relevant taxpayer
), being withholding tax that would not have become payable if the property had been supplied or acquired by the first-mentioned taxpayer under an agreement between independent parties dealing at arm
'
s length with each other in relation to the supply or acquisition; and
(c)
in the opinion of the Commissioner, it is fair and reasonable that that amount of withholding tax or part of that amount of withholding tax should not have become payable by the relevant taxpayer,
the Commissioner may determine that that amount of withholding tax or that part of that amount of withholding tax, as the case may be, should not have become payable by the relevant taxpayer and the Commissioner shall take such action as the Commissioner considers necessary to give effect to any such determination.
History
S 136AF(3) amended by No 41 of 2011, s 3 and Sch 5 Pt 27, by removing gender-specific language, effective 27 June 2011.
S 136AF(3) amended by No 73 of 2004, s 3 and Sch 4 item 1, by inserting
"
or royalties
"
after
"
interest
"
in para (b), applicable to an application of section 136AD of the
Income Tax Assessment Act 1936
that occurs on or after 23 June 2004.
136AF(4)
Where, at any time, a taxpayer considers that the Commissioner ought to make a determination under subsection (1) or (3) in relation to the taxpayer, the taxpayer may post to or lodge with the Commissioner a request in writing for the making by the Commissioner of a determination under the subsection concerned.
136AF(5)
The Commissioner shall consider the request and serve on the taxpayer, by post or otherwise, a written notice of the Commissioner
'
s decision on the request.
History
S 136AF(5) amended by No 41 of 2011, s 3 and Sch 5 Pt 27, by removing gender-specific language, effective 27 June 2011.
136AF(6)
If the taxpayer is dissatisfied with the Commissioner
'
s decision on the request, the taxpayer may object against it in the manner set out in Part IVC of the
Taxation Administration Act 1953
.
History
S 136AF(6) substituted for s 136AF(6) and (7) by No 216 of 1991.
S 136AF(6) amended by No 48 of 1986.
136AF(7)
(Omitted by No 216 of 1991)
History
S 136AF(6) substituted for s 136AF(6) and (7) by No 216 of 1991.
History
Archived:
S136AG repealed as inoperative by
No 101 of 2006
, s 3 and Sch 1 item 137, effective 14 September 2006. For
application and savings provisions
and for former wording see the
CCH Australian Income Tax Legislation archive
.
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