Taxation Laws Amendment Act (No. 2) 1995 (169 of 1995)

Schedule 3   VARIOUS AMENDMENTS OF THE INCOME TAX ASSESSMENT ACT 1936

Part 1   REFUNDS OF TFN AMOUNTS DEDUCTED IN ERROR

12   After section 221YHZDA

Insert:

Refund of deductions made in error-post-15 July cases

Application for refund

"221YHZDAA.(1) If:

(a) an investment body in relation to a Part VA investment has made

a deduction after the commencement of this section, purportedly under

subsection 221YHZC(1A), from income paid, in respect of a particular

financial year, to a person in connection with the investment; and

(b) the amount deducted has been paid to the Commissioner; and

(c) the whole or a part of the amount of the deduction (the excess

amount) was made in error; and

(d) the person did not apply to the investment body for a refund of

the excess amount on the basis of the error, and the investment body

did not otherwise become aware of the error, before the end of 15 July

in the financial year after the one in which the deduction was made;

the person may apply in writing to the Commissioner for a refund under

this section.

Conditions for refund

"(2) If:

(a) the application states:

(i) if the person has a tax file number-that tax file number; or

(ii) if the person does not have a tax file number and was taken to

have quoted a tax file number to the investment body before the

deduction was made-the basis on which the person was taken to have

quoted the tax file number; and

(b) the Commissioner is satisfied that the person is entitled to

make the application under subsection (1); and

(c) the Commissioner considers that:

(i) it is unlikely that the person will become entitled to a credit

under section 221YHZK in respect of the excess amount before the end

of the financial year after the one in which the deduction was made;

or

(ii) the person would suffer hardship if the Commissioner did not

refund the excess amount; or

(iii) it would otherwise be fair and reasonable to refund the excess

amount;

the Commissioner must refund the excess amount to the person.

No credit in respect of refund

"(3) A person is not entitled to a credit under section 221YHZK in

respect of an amount refunded under subsection (2) of this section.

Special provision covering pre-1 July 1995 deductions

"221YHZDAB. If:

(a) immediately before the commencement of this section, an

investment body was liable, under subsection 221YHZDA(1) as in force

at that time, to pay to a person the whole or part of the amount of a

deduction made in error; and

(b) the deduction was made on or before 30 June 1995; and

(c) as at the commencement of this section, the person had not

applied to the investment body for a refund of the whole or the part

of the amount on the basis of the error, and the investment body had

not otherwise become aware of the error;

then:

(d) on the commencement of this section, the investment body ceases

to be liable to pay the whole or the part of the amount, and the

Commissioner instead becomes liable to pay the whole or the part of

the amount, to the person; and

(e) the person is not entitled to a credit under section 221YHZK in

respect of the whole or the part of the amount.

Special provision covering pre-commencement 1995-96 deductions

"221YHZDAC.(1) If:

(a) an investment body in relation to a Part VA investment has made

a deduction after 30 June 1995 but before the commencement of this

section, purportedly under subsection 221HYZC(1A), from income paid,

in respect of a particular financial year, to a person in connection

with the investment; and

(b) the amount deducted has been paid to the Commissioner; and

(c) the whole or a part of the amount of the deduction (the excess

amount) was made in error;

then:

(d) if the person applies to the investment body for a refund of the

excess amount on the basis of the error, or the investment body

becomes aware of the error, before the end of 15 July 1996-the

investment body is liable to pay the excess amount to the person and

may recover from the Commissioner, as a debt due to the investment

body, so much of the excess amount as it has not recorded as being

offset under paragraph 221YHZD(1AB)(c); and

(e) if paragraph (d) does not apply-the Commissioner is liable to

pay the excess amount to the person.

"(2) If the investment body or the Commissioner is liable to pay the

excess amount to the person under subsection (1), the person is not

entitled to a credit under section 221YHZK in respect of the excess

amount.

"(3) An amount payable under paragraph (1)(d) to a person by an

investment body is recoverable by the person as a debt.".

Note: The heading to section 221YHZDB is replaced by the heading

"Refund of deductions where exemption not claimed".