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

Schedule 8   LATE LODGEMENT PENALTY

Part 8   INCOME TAX ASSESSMENT ACT 1936

3   After section 163

Insert:

Late lodgement penalty-relevant entities and instalment taxpayers

"163A.(1) Subject to subsection (2), if:

(a) a person who is a relevant entity or an instalment taxpayer is

required to furnish a return under section 161, 162 or 163 in relation

to a year of income; and

(b) the return is not furnished within:

(i) in the case of section 161-the period specified in the notice

under that section or any further period allowed by the Commissioner

under that section; or

(ii) in the case of section 162 or 163-the time required by the

Commissioner under that section;

the person is liable to pay, by way of penalty, $10 for each week or

part of a week that occurs after the end of the period, the further

period or the time mentioned in paragraph (b) and before the return is

furnished.

Note: The penalty is payable even if the return is never

furnished.

Maximum penalty

"(2) The maximum penalty payable under subsection (1) in respect of

the return is $200.

Notification requirements

"(3) The Commissioner must give the person a notice in writing

stating that the person is liable to penalty under this section in

relation to the year of income and specifying:

(a) the amount of the penalty; and

(b) the day on which the penalty is due and payable.

The day specified must be at least 30 days after the day on which the

notice is given, and the amount is due and payable on the day

specified.

Notice in assessment notice

"(4) The notice may be included in any other notice of assessment in

respect of the person.

Remission of penalty

"(5) The Commissioner may, in his or her discretion, remit the whole

or any part of the penalty.

Notice in writing of decision

"(6) If the Commissioner makes a decision to remit part only of the

penalty, or not to remit any part of the penalty, the Commissioner

must:

(a) if the decision is made before the Commissioner gives the notice

under subsection (3)-advise the person of the decision in the notice

under subsection (3); or

(b) in any other case-give notice in writing of the decision to the

person.

Objections

"(7) If the person is dissatisfied with:

(a) the notice given to the person under subsection (3); or

(b) a decision of the Commissioner under subsection (5) in relation

to the person;

the person may object against the notice, or against the decision, as

the case requires, in the manner set out in Part IVC of the Taxation

Administration Act 1953.

Income tax or tax includes penalty

"(8) Unless the contrary intention appears, in sections 205, 206,

207, 207A, 208, 209, 214, 215, 216, 254, 255, 258, 259 and 265, but

not in any other section of this Act, a reference to income tax or tax

includes a reference to the penalty.

Definitions

"(9) In this section:

instalment taxpayer has the same meaning as in Division 1C of Part VI;

relevant entity has the same meaning as in Division 1B of Part VI.

Late lodgement penalty-additional tax for persons other than relevant

entities and instalment taxpayers

"163B.(1) If:

(a) a person (other than a relevant entity or an instalment

taxpayer) is required to furnish a return under section 161, 162 or

163 in relation to a year of income; and

(b) the return is not furnished within:

(i) in the case of section 161-the period specified in the notice

under that section or any further period allowed by the Commissioner

under that section; or

(ii) in the case of section 162 or 163-the time required by the

Commissioner under that section; and

(c) an assessment (other than an amended assessment) is made of the

income tax payable by the person for the year of income (whether or

not on the basis of a return that is later furnished by the person);

the person is liable to pay, by way of penalty, additional tax at the

rate of 8% per annum on the amount in subsection (2), for the period

in subsection (4).

Amount on which additional tax payable

"(2) The additional tax is payable on the lesser of:

(a) the amount of income tax payable under the assessment (after

allowing any rebate or deduction under subsection 100(2) and before

any crediting, applying or other payment); and

(b) the person's net tax payable (see subsection (3)).

Meaning of net tax payable

"(3) The person's net tax payable is the amount worked out using the

formula:

Tax liabilities - Crediting amounts and payments on account

where:

Tax liabilities means the sum of the following amounts (worked out

disregarding any payment on account of the amounts):

(a) income tax payable under the assessment (after allowing any

rebate or deduction under subsection 100(2) and before allowing any

crediting, applying or refunding, notified in the notice of

assessment, of an income tax crediting amount);

(b) additional tax for the year of income payable by the person

under Part VII immediately before any such crediting, applying or

refunding;

(c) interest for the year of income payable by the person under

section 102AAM immediately before any such crediting, applying or

refunding;

(d) an HEC assessment debt notified in the notice of assessment;

(e) an FS assessment debt notified in the notice of assessment;

Crediting amounts and payments on account means the sum of:

(a) any income tax crediting amounts notified in the notice of

assessment; and

(b) any payments made on account of the amounts in paragraphs (a) to

(e) of the definition of Tax liabilities.

Period for which additional tax payable

"(4) The additional tax is payable for the period beginning on the

day after the end of the period, further period or the time mentioned

in paragraph (1)(b) and ending at the earlier of:

(a) the end of the day on which the return is furnished; and

(b) the end of the day on which the Commissioner made the

assessment.

Commissioner to assess

"(5) The Commissioner must make an assessment of the additional tax

payable by the person.

Notice in assessment notice

"(6) A notice of the assessment may be included in any other notice

of assessment in respect of the person.

Remission of additional tax

"(7) The Commissioner may, in his or her discretion, remit the whole

or any part of the additional tax.

Income tax or tax includes additional tax

"(8) Unless the contrary intention appears, in sections 170, 172,

174, 204, 205, 206, 207, 207A, 208, 209, 214, 215, 216, 254, 255, 258,

259 and 265, but not in any other section of this Act, a reference to

income tax or tax includes a reference to the additional tax.

Minimum amount

"(9) If less than $20 of additional tax is payable under this

section, the additional tax is taken to be $20.

Definitions

"(10) In this section:

income tax crediting amount, in relation to the income tax payable by

a person for a year of income, means an amount required or permitted

to be credited or applied under section 159GDA, 160AN, 220AZC, 221H,

221K, 221YE, 221YHG, 221YHZL, 221YT, 221ZG or 221ZT against the income

tax;

instalment taxpayer has the same meaning as in Division 1C of Part VI;

relevant entity has the same meaning as in Division 1B of Part VI.

Late lodgement penalty-interest for persons other than relevant

entities and instalment taxpayers

"163C.(1) If a person becomes liable to pay additional tax under

section 163B (disregarding any remission under subsection 163B(7)),

the person is also liable to pay, by way of penalty, interest at the

rate provided for under section 214A on the amount on which, and for

the period for which, the additional tax is payable under section

163B.

Commissioner to notify interest

"(2) The Commissioner must give the person a notice in writing

stating that the person is liable to pay interest under this section

in relation to the year of income concerned and specifying:

(a) the amount of the interest; and

(b) the day on which the interest is due and payable.

The day specified must be at least 30 days after the day on which the

notice is given, and the amount is due and payable on the day

specified.

Notice in assessment notice

"(3) The notice may be included in any other notice of assessment in

respect of the person.

Remission of interest

"(4) The Commissioner may, in his or her discretion, remit the whole

or any part of the interest.

Income tax or tax includes interest

"(5) Unless the contrary intention appears, in sections 205, 206,

207, 207A, 208, 209, 214, 215, 216, 254, 255, 258, 259 and 265 but not

in any other section of this Act, a reference to income tax or tax

includes a reference to the interest.".


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