A New Tax System (Goods and Services Tax) Act 1999

Chapter 4 - The special rules

Part 4-1 - Special rules mainly about particular ways entities are organised

Note:

The special rules in this Part mainly modify the operation of Part 2-2 so far as that Part deals with liability for GST and entitlement to input tax credits, but the special rules also affect other aspects of Part 2-2 and the other Parts of Chapter 2 .

Division 58 - Representatives of incapacitated entities

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History

Div 58 inserted by No 118 of 2009, s 3 and Sch 1 item 8, effective 1 July 2000. No 118 of 2009, s 3 and Sch 1 items 50 - 55 contains the following transitional provisions:

50 Application of Division 72
(1)
Division 72 of the A New Tax System (Goods and Services Tax) Act 1999 does not apply in relation to a supply or acquisition that an incapacitated entity made to or from an associate of the incapacitated entity if:

(a) making the supply or acquisition was within the scope of the representative ' s responsibility or authority for managing the incapacitated entity ' s affairs; and

(b) the supply or acquisition was made before the day this Act received the Royal Assent [ ie 4 December 2009].

(2)
Division 72 of that Act does not apply in relation to a supply or acquisition that an incapacitated entity made to or from an associate of the incapacitated entity if:

(a) making the supply or acquisition was within the scope of the representative ' s responsibility or authority for managing the incapacitated entity ' s affairs; and

(b) the incapacitated entity is being wound up under a member ' s voluntary winding up (within the meaning of the Corporations Act 2001 ); and

(c) the resolution for voluntary winding up (within the meaning of the Corporations Act 2001 ) was passed before the day on which the Bill that became this Act was introduced into the House of Representatives [ ie 16 September 2009].
51 Cancellations of registration under section 147-10
(1)
If:

(a) before the commencement of this item [ ie 4 December 2009], the Commissioner cancelled the registration of an incapacitated entity; and

(b) but for the enactment of this Schedule, the cancellation would have continued to have effect under section 147-10 of the A New Tax System (Goods and Services Tax) Act 1999 ;
the cancellation continues to have effect after that commencement as a cancellation under section 58-25 of that Act as inserted by this Schedule.

(2)
If:

(a) before the commencement of this item [ ie 4 December 2009], an objection had been made under section 110-50 in Schedule 1 to the Taxation Administration Act 1953 against a decision under section 147-10 of the A New Tax System (Goods and Services Tax) Act 1999 ; and

(b) as at that commencement, the objection had not been finally determined;
Part IVC of the Taxation Administration Act 1953 continues to apply after that commencement in relation to the objection as if the decision were a decision under section 58-25 of the A New Tax System (Goods and Services Tax) Act 1999 as inserted by this Schedule.

52 Notices under section 147-15
If:

(a) before this Act received the Royal Assent [ ie 4 December 2009], a representative who ceased to be a representative of an incapacitated entity notified the Commissioner of that cessation; and

(b) but for the enactment of this Schedule, the notice would have met the requirements of section 147-15 of the A New Tax System (Goods and Services Tax) Act 1999 ;
the notice has effect as a notice under section 58-30 of that Act as inserted by this Schedule.
53 Time limit on recovery by the Commissioner
If:

(a) because of the amendments made by this Schedule, you are liable to pay a net amount, net fuel amount or amount of indirect tax that you would not have been liable to pay if the amendments had not been made; and

(b) the net amount, net fuel amount or amount of indirect tax corresponds to an amount paid to you as a refund, or applied under Division 3 of Part IIB of the Taxation Administration Act 1953 :

(i) on or after 12 December 2008 and before this Act received the Royal Assent [ ie 4 December 2009]; and

(ii) in relation to the net amount, net fuel amount or amount of indirect tax;

that Act applies in relation to the net amount, net fuel amount or amount of indirect tax as if the reference in subsection 105-50(1) in Schedule 1 to that Act to 4 years after the net amount, net fuel amount or amount of indirect tax became payable by you were a reference to 4 years after the payment of the refund or application of the amount under that Division.
54 Refunds of amounts wrongly paid by incapacitated entities
If:

(a) before this Act received the Royal Assent [ ie 4 December 2009], an incapacitated entity paid an amount of indirect tax (including any relevant general interest charge under the Taxation Administration Act 1953 ) that was payable by a representative of an incapacitated entity; and

(b) but for this item, the Commissioner would be liable to refund the amount to the incapacitated entity;
the Commissioner is not liable to refund the amount unless the representative has also paid the amount to the Commissioner.
55 Liability of representatives of incapacitated entities
A representative of an incapacitated entity is not liable to make a payment to the Commissioner relating to a net amount if:

(a) but for this item, the representative would be liable, because of amendments made by this Schedule, to make the payment; and

(b) the liability arose as a result of acts or omissions that were within the scope of the representative ' s responsibility or authority for managing the incapacitated entity ' s affairs; and

(c) the liability arose before 6 February 2009; and

(d) the net amount has been disclosed in a GST return given to the Commissioner in accordance with the A New Tax System (Goods and Services Tax) Act 1999 :

(i) before 6 February 2009; or

(ii) within the period required under that Act for giving the return; and

(e) either the incapacitated entity has paid the net amount to the Commissioner, or both of the following apply:

(i) the incapacitated entity was unable to pay the net amount to the Commissioner before 6 February 2009;

(ii) the representative did not, on that day, have access to assets of the incapacitated entity, or to an indemnity, through which the net amount could be paid to the Commissioner; and

(f) the representative acted in good faith in relation to the net amount.

58-10 Circumstances in which representatives have GST-related liabilities and entitlements

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General rule

(1)
A *representative of an *incapacitated entity :

(a) is liable to pay any GST that the incapacitated entity would, but for this section or section 48-40 , be liable to pay on a *taxable supply or a *taxable importation ; and

(b) is entitled to any input tax credit that the incapacitated entity would, but for this section or section 48-45 , be entitled to for a *creditable acquisition or a *creditable importation ; and

(c) has any *adjustment that the incapacitated entity would, but for this section or section 48-50 , have;

to the extent that the making of the supply, importation or acquisition to which the GST, input tax credit or adjustment relates is within the scope of the representative ' s responsibility or authority for managing the incapacitated entity ' s affairs.

Exceptions for certain taxable supplies

(2)
This section does not apply to the GST payable on a *taxable supply to the extent that one or more of the following apply:

(a) the *incapacitated entity received the *consideration for the supply before the *representative became a representative of the incapacitated entity;

(b) if, under Division 83 or section 84-5 or 86-5 , the GST is payable by the recipient of the supply - the incapacitated entity provided the consideration for the supply before the representative became a representative of the incapacitated entity;

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(c) if:

(i) the supply is a supply for which a *voucher to which Division 100 applies is redeemed; and

(ii) the incapacitated entity supplied the voucher before the representative became a representative of the incapacitated entity;

the consideration for the supply referred to in subparagraph (i) does not exceed the consideration provided for the incapacitated entity ' s supply of the voucher.

View history note

Exception for certain creditable acquisitions

(3)
This section does not apply to an input tax credit for a *creditable acquisition to the extent that the *incapacitated entity provided the *consideration for the acquisition before the *representative became a representative of the incapacitated entity.

Exceptions for certain adjustments

(4)
This section does not apply to an *adjustment to the extent that one or more of the following apply:

(a) if the adjustment relates to a supply - the *incapacitated entity received the *consideration for the supply before the *representative became a representative of the incapacitated entity;

(b) if the adjustment relates to an acquisition - the incapacitated entity provided the consideration for the supply before the representative became a representative of the incapacitated entity;

(c) the adjustment would not be attributable to a tax period applying to the representative in the capacity of a representative of the incapacitated entity.

Incapacitated entity not liable to pay GST etc.

(5)
An *incapacitated entity or, if the incapacitated entity is a *member of a *GST group , the *representative member of that group:

(a) is not liable to pay the GST on a *taxable supply or a *taxable importation to the extent that a *representative of the incapacitated entity is liable under this section to pay the GST on the supply or importation; and

(b) is not entitled to the input tax credit for a *creditable acquisition or a *creditable importation to the extent that a representative of the incapacitated entity is entitled under this section to the input tax credit for the acquisition or importation; and

(c) does not have an *adjustment to the extent that a representative of the incapacitated entity has the adjustment under this section.

Other

(6)

View history reference

This section has effect despite sections 9-40 , 11-20 , 13-15 , 15-15 , 83-5 , 84-10 and 86-5 and subsections 48-40(1) and (1A) , 48-45(1) and 48-50(1) (which are about who is liable for GST, and who is entitled to input tax credits).

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