Fuel Tax (Consequential and Transitional Provisions) Act 2006 (73 of 2006)

Schedule 5   Administrative provisions

Part 1   Administrative provisions

Taxation Administration Act 1953

41   After Part 2-10 in Schedule 1

Insert:

Chapter 3 - Collection, recovery and administration of other taxes

Part 3-10 - Indirect taxes

Division 105 - General rules for indirect taxes

Table of Subdivisions

Guide to Division 105

105-A Assessments

105-B Review of indirect tax decisions

105-C Limits on credits, refunds and recovering amounts

105-D General interest charge and penalties

105-E Evidence

105-F Indirect tax refund schemes

105-G Other administrative provisions

Guide to Division 105

105-1 What this Division is about

This Division contains rules relating to the administration of the indirect tax laws.

Note: Administration rules relevant to particular indirect tax laws are in Divisions 110, 111 and 112.

The rules in this Division deal with the following:

(a) how assessments are made or amended and their effect;

(b) review of assessments;

(c) limits on credits, refunds and recovering amounts;

(d) the effect of relying on a ruling;

(e) the effect of not passing on refunds of overpaid amounts;

(f) charges and penalties;

(g) the evidentiary effect of official indirect tax documents;

(h) refunding indirect tax because of Australia's international obligations;

(i) your address for service of documents and requirements for notifications.

Subdivision 105-A - Assessments

Table of sections

105-5 Commissioner may make assessment of indirect tax

105-10 Request for assessment

105-15 Indirect tax liabilities do not depend on assessment

105-20 Commissioner must give notice of the assessment

105-25 Amendment of assessment

105-30 Later assessment prevails in case of inconsistency

105-5 Commissioner may make assessment of indirect tax

(1) The Commissioner may at any time make an assessment of:

(a) your *net amount, or any part of your net amount, for a *tax period; or

(b) your *net fuel amount, or any part of your net fuel amount, for a tax period or *fuel tax return period.

(2) The Commissioner may at any time make an assessment of the amount of *indirect tax payable by you on an importation of goods.

(3) The Commissioner may make an assessment under this section even if he or she has already made an assessment for the *tax period, *fuel tax return period or importation concerned.

Note: An assessment made under this section is a reviewable indirect tax decision: see Subdivision 105-B.

105-10 Request for assessment

(1) You may request the Commissioner in the *approved form to make an assessment of:

(a) your *net amount for a *tax period; or

(b) your *net fuel amount for a tax period or *fuel tax return period; or

(c) an amount of *indirect tax payable by you on an importation of goods.

(2) The Commissioner must comply with the request if it is made within:

(a) 4 years after:

(i) the end of the *tax period or *fuel tax return period; or

(ii) the importation; or

(b) such further period as the Commissioner allows.

105-15 Indirect tax liabilities do not depend on assessment

(1) Your liability to pay *indirect tax or a *net fuel amount, and the time by which a *net amount, a net fuel amount or an amount of indirect tax must be paid, do not depend on, and are not in any way affected by, the making of an assessment under this Subdivision.

(2) The Commissioner's obligation to pay:

(a) a *net amount under section 35-5 of the *GST Act; or

(b) a *net fuel amount under section 61-5 of the Fuel Tax Act 2006;

and the time by which it must be paid, do not depend on, and are not in any way affected by, the making of an assessment under this Subdivision.

Note: However, a notice of assessment can be used as evidence of liability: see section 105-100.

105-20 Commissioner must give notice of the assessment

(1) The Commissioner must give you notice of an assessment as soon as practicable after the assessment is made. However, failing to do so does not affect the validity of the assessment.

(2) The Commissioner may give you the notice electronically if you are required to lodge or have lodged your *GST returns electronically.

105-25 Amendment of assessment

The Commissioner may amend an assessment at any time. An amended assessment is an assessment for all purposes of any *indirect tax law.

Note 1: However, there is a time limit on the recovery of overpaid or underpaid net amounts, net fuel amounts and indirect tax: see sections 105-50 and 105-55.

Note 2: An amendment under this section is a reviewable indirect tax decision: see Subdivision 105-B.

105-30 Later assessment prevails in case of inconsistency

If there is an inconsistency between assessments that relate to the same *tax period, *fuel tax return period or importation of goods, the later assessment prevails to the extent of the inconsistency.

Subdivision 105-B - Review of indirect tax decisions

Table of sections

105-40 Reviewable indirect tax decisions

105-40 Reviewable indirect tax decisions

(1) You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that is a *reviewable indirect tax decision relating to you.

(2) A decision under section 105-5 or 105-25 involving an assessment of a *net amount, a *net fuel amount or an amount of *indirect tax is a reviewable indirect tax decision .

Subdivision 105-C - Limits on credits, refunds and recovering amounts

Table of sections

105-50 Time limit on recovering unpaid net amounts, net fuel amounts and indirect taxes

105-55 Time limit on refunds and credits

105-60 Reliance on Commissioner's interpretation of an indirect tax law (other than a fuel tax law)

105-65 Restriction on refunds

105-50 Time limit on recovering unpaid net amounts, net fuel amounts and indirect taxes

Any unpaid *net amount, *net fuel amount or amount of *indirect tax (together with any relevant *general interest charge under section 105-80) ceases to be payable 4 years after it became payable by you unless:

(a) within those 4 years the Commissioner has required payment of the amount by giving a notice to you; or

(b) the Commissioner is satisfied that the payment of the amount was avoided by fraud or evaded.

105-55 Time limit on refunds and credits

(1) You are not entitled to a refund or credit to which this subsection applies in respect of a *tax period or importation unless:

(a) within 4 years after:

(i) the end of the tax period; or

(ii) the importation;

as the case requires, you notify the Commissioner (in a *GST return or otherwise) that you are entitled to the refund or credit; or

(b) within that period the Commissioner notifies you (in a notice of assessment or otherwise) that you are entitled to the refund or credit; or

(c) in the case of a credit - the credit is taken into account in working out a *net amount or *net fuel amount that the Commissioner may recover from you only because of paragraph 105-50(b).

(2) Subsection (1) applies to:

(a) a refund under section 35-5 of the *GST Act or section 61-5 of the Fuel Tax Act 2006 in respect of a particular *tax period; or

(b) an *input tax credit or *fuel tax credit that is attributable to a particular tax period; or

(c) a *wine tax credit the amount of which could have been included in a reduction of your *net amount for a tax period under section 21-15 of the *Wine Tax Act; or

(d) a refund of an amount of *indirect tax relating to an importation.

Fuel tax - non-business taxpayers

(3) If you are neither *registered for GST nor *required to be registered for GST, you are not entitled to a refund or *fuel tax credit to which this subsection applies in respect of a *fuel tax return period, acquisition, manufacture or importation unless:

(a) within 4 years after:

(i) the end of the fuel tax return period; or

(ii) the acquisition, manufacture or importation;

(as the case requires) you notify the Commissioner that you are entitled to the refund or credit; or

(b) within that period the Commissioner notifies you (in a notice of assessment or otherwise) that you are entitled to the refund or credit; or

(c) in the case of a fuel tax credit - the credit is taken into account in working out a *net fuel amount that the Commissioner may recover from you only because of paragraph 105-50(b).

(4) Subsection (3) applies to:

(a) a refund, under section 61-5 of the Fuel Tax Act 2006, of a *net fuel amount attributable to a *fuel tax return period; or

(b) a *fuel tax credit for *taxable fuel that you acquire, manufacture or import.

(5) To avoid doubt, if, under subsection (3), you are not entitled to a *fuel tax credit, then you are not entitled to a refund under section 61-5 of the Fuel Tax Act 2006 in relation to the credit.

105-60 Reliance on Commissioner's interpretation of an indirect tax law (other than a fuel tax law)

(1) This section applies to you if:

(a) the Commissioner alters a previous *indirect tax ruling that applied to you; and

(b) relying on the previous ruling, you have underpaid a *net amount or an amount of *indirect tax, or the Commissioner has overpaid an amount under section 35-5 of the *GST Act, in respect of one or more:

(i) *taxable supplies or *taxable importations; or

(ii) *wine taxable dealings; or

(iii) *taxable supplies of luxury cars or *taxable importations of luxury cars; or

(iv) *creditable acquisitions or *creditable importations;

that happened before the alteration.

Note: For reliance on the Commissioner's interpretation of a fuel tax law, see Division 357.

(2) Unless the Commissioner is satisfied that you contributed to the giving, or continuing in force, of the earlier ruling by a misstatement or by suppressing a material fact:

(a) the underpaid *net amount or *indirect tax ceases to be payable; or

(b) the overpaid amount under section 35-5 of the *GST Act is taken to have been payable in full;

from when the previous ruling was made.

(3) In deciding whether an *indirect tax ruling applies to you, or whether a ruling has been altered:

(a) a *private indirect tax ruling applies only to the entity to whom it was given; and

(b) so far as a private indirect tax ruling conflicts with an earlier *public indirect tax ruling, the private indirect tax ruling prevails; and

(c) so far as a public indirect tax ruling conflicts with an earlier private indirect tax ruling, the public indirect tax ruling prevails; and

(d) an alteration that a later indirect tax ruling makes to an earlier indirect tax ruling is disregarded so far as the alteration results from a change in the law that came into operation after the earlier indirect tax ruling was given.

105-65 Restriction on refunds

(1) The Commissioner need not give you a refund to which this section applies, or apply an amount under Division 3 or 3A of Part IIB to which this section applies, if:

(a) you overpaid the amount, or the amount was not refunded to you, because a *supply was treated as a *taxable supply to any extent; and

(b) the supply is not a taxable supply to that extent (for example, because it is *GST-free); and

(c) one of the following applies:

(i) the Commissioner is not satisfied that you have reimbursed a corresponding amount to the recipient of the supply;

(ii) the recipient is *registered or *required to be registered.

Note: Divisions 3 and 3A of Part IIB deal with payments, credits and RBA surpluses.

(2) This section applies to:

(a) so much of any *net amount or amount of *indirect tax as you have overpaid; or

(b) so much of any net amount that is payable to you under section 35-5 of the *GST Act as the Commissioner has not paid to you or applied under Division 3 of Part IIB of this Act.

Note: Division 3 of Part IIB deals with payments, credits and RBA surpluses.

Subdivision 105-D - General interest charge and penalties

Table of sections

105-80 General interest charge

105-85 Amending Acts cannot impose penalties or general interest charge earlier than 28 days after Royal Assent

105-80 General interest charge

(1) If any of an amount (the liability ) to which this section applies remains unpaid after the time by which it is due to be paid, you are liable to pay the *general interest charge on the unpaid amount of the liability for each day in the period that:

(a) started at the beginning of the day by which the liability was due to be paid; and

(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:

(i) the liability;

(ii) general interest charge on any of the liability.

Note: The general interest charge is worked out under Division 1 of Part IIA.

(2) This section applies to either of the following amounts that you are liable to pay:

(a) a *net fuel amount;

(b) an amount of *indirect tax.

105-85 Amending Acts cannot impose penalties or general interest charge earlier than 28 days after Royal Assent

(1) An Act that amends an *indirect tax law does not have the effect of making you liable to:

(a) a penalty for an offence against an indirect tax law; or

(b) *general interest charge under section 105-80;

for any act or omission that happens before the 28th day (the postponed day ) after the day on which the amending Act receives the Royal Assent.

(2) If the amending Act would (apart from this section) have the effect of making you liable to such a penalty or charge because you contravened a requirement to do something:

(a) within a specified period ending before the postponed day; or

(b) before a specified time happening before the postponed day;

the requirement has effect instead by reference to a period ending at the start of the postponed day, or by reference to the start of the postponed day, as the case requires.

(3) This section does not relieve you from liability to such a penalty or charge to the extent to which the liability would have existed if the amending Act had not been enacted.

Subdivision 105-E - Evidence

Table of sections

105-100 Production of assessment or declaration is conclusive evidence

105-105 Certificate of amount payable is prima facie evidence

105-110 Signed copies are evidence

105-100 Production of assessment or declaration is conclusive evidence

The production of:

(a) a notice of assessment under this Part; or

(b) a declaration under:

(i) section 165-40 or subsection 165-45(3) of the *GST Act; or

(ii) section 75-40 or subsection 75-45(3) of the Fuel Tax Act 2006;

is conclusive evidence:

(c) that the assessment or declaration was properly made; and

(d) except in proceedings under Part IVC of this Act on a review or appeal relating to the assessment or declaration - that the amounts and particulars in the assessment or declaration are correct.

105-105 Certificate of amount payable is prima facie evidence

The presentation of a certificate signed by the Commissioner or a Deputy Commissioner certifying that, from the time specified in the certificate, an amount was payable under an *indirect tax law (whether to or by the Commissioner) is prima facie evidence:

(a) that the amount is payable from that time; and

(b) that the particulars stated in the certificate are correct.

105-110 Signed copies are evidence

(1) The production of a document signed by the Commissioner or a Deputy Commissioner that appears to be a copy of, or extract from, any document made or given by or to an entity for the purposes of an *indirect tax law is evidence of the matters set out in the document to the same extent as the original document would have been evidence of those matters.

(2) To avoid doubt, subsection (1) applies to a copy or extract of a document that was given by or to the Commissioner on a data processing device or by way of electronic transmission, unless it is shown that the document was not authorised.

Subdivision 105-F - Indirect tax refund schemes

Table of sections

105-120 Refund scheme - defence related international obligations

105-125 Refund scheme - international obligations

105-120 Refund scheme - defence related international obligations

(1) The Commissioner must, on behalf of the Commonwealth, pay you an amount equal to the amount of *indirect tax borne by you in respect of an acquisition (within the meaning of the *GST Act) if:

(a) you are in a class of entities determined by the *Defence Minister; and

(b) the acquisition is covered by a determination of the Defence Minister; and

(c) the acquisition is made:

(i) by or on behalf of a *visiting force that is; or

(ii) by a member (within the meaning of the Defence (Visiting Forces) Act 1963) of the visiting force who is; or

(iii) by any other entity that is;

covered by a determination of the Defence Minister; and

(d) at the time of the acquisition, it was intended for:

(i) the official use of the visiting force; or

(ii) the use of a member (within the meaning of the Defence (Visiting Forces) Act 1963) of the visiting force; or

(iii) any other use;

and that use is covered by a determination of the Defence Minister; and

(e) you claim the amount in the *approved form.

(2) The amount is payable:

(a) in accordance with the conditions and limitations; and

(b) within the period and manner;

determined by the *Defence Minister.

(3) The *Defence Minister may only determine an entity under subparagraph (1)(c)(iii) or a use under subparagraph (1)(d)(iii) if the Commonwealth is under an international obligation to grant *indirect tax concessions in relation to the kind of entity or the kind of use.

(4) A determination under this section is a legislative instrument.

105-125 Refund scheme - international obligations

(1) The Commissioner must, on behalf of the Commonwealth, pay you, or an entity in a class of entities determined by the Commissioner, an amount equal to the amount of *indirect tax borne by you in respect of an acquisition (within the meaning of the *GST Act) made by you if:

(a) you are a kind of entity specified in the regulations; and

(b) the acquisition is of a kind specified in the regulations; and

(c) you or the entity claims the amount in the *approved form.

(2) The amount is payable:

(a) in accordance with the conditions and limitations; and

(b) within the period and manner;

set out in the regulations.

(3) The regulations may only specify a kind of entity for the purposes of paragraph (1)(a) or a kind of acquisition for the purposes of paragraph (1)(b) if the Commonwealth is under an international obligation to grant *indirect tax concessions in relation to the kind of entity or the kind of acquisition.

(4) A determination by the Commissioner under subsection (1) is not a legislative instrument.

Subdivision 105-G - Other administrative provisions

Table of sections

105-140 Address for service

105-145 Commissioner must give things in writing

105-140 Address for service

(1) Your address for service for the purposes of an *indirect tax law is:

(a) if you are registered in the *Australian Business Register - the address shown in the Register as your address for service; or

(b) if you are not registered in that Register - the address last notified by you in a document under an indirect tax law; or

(c) if you have not notified an address in a document under an indirect tax law - your Australian place of business or residence last known to the Commissioner; or

(d) any other address that the Commissioner reasonably believes to be your address for service.

Note: If you are a company, see also sections 444-10 and 444-15.

(2) If:

(a) under an *indirect tax law, you are:

(i) liable to pay an amount of *indirect tax; or

(ii) entitled to a credit; and

(b) you change your address for service;

you must notify the Commissioner in writing of the new address within 28 days after the change.

(3) If:

(a) a notice or other document must be served on you:

(i) under an *indirect tax law; or

(ii) in proceedings for recovery of an amount under an indirect tax law; and

(b) you have notified the Commissioner of an Australian address for service;

the Commissioner may serve the notice or document by post to that address.

(4) However, if:

(a) you must lodge or have lodged *GST returns electronically; and

(b) you notify the Commissioner of an address for effecting service by way of electronic transmission;

the Commissioner may serve a notice of assessment, or notice of penalty or *general interest charge under an *indirect tax law, on you by electronic transmission to that address.

105-145 Commissioner must give things in writing

(1) Any notice, approval, direction, authority or declaration that the Commissioner may give, or must give, to you under an *indirect tax law must be in writing.

(2) However, this does not prevent the Commissioner giving any of those things to you by electronic transmission if a provision of an *indirect tax law allows the Commissioner to do so.

Division 110 - Goods and services tax

Table of Subdivisions

Guide to Division 110

110-F Review of GST decisions

Guide to Division 110

110-1 What this Division is about

This Division gives you the right to object against reviewable GST decisions that relate to you. Section 110-50 sets out the reviewable GST decisions.

Subdivision 110-F - Review of GST decisions

Table of sections

110-50 Reviewable GST decisions

110-50 Reviewable GST decisions

(1) You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that is:

(a) a *reviewable GST decision relating to you; or

(b) a *reviewable GST transitional decision relating to you.

Note: You may object to a decision relating to you under section 105-5 or 105-25 involving an assessment of a net amount or indirect tax: see Subdivision 105-B.

(2) Each of the following decisions is a reviewable GST decision :

(3) A decision under section 24B of the A New Tax System (Goods and Services Tax Transition) Act 1999 refusing an application for a determination under that section, or making a determination under that section, is a reviewable GST transitional decision .

Division 111 - Wine tax and luxury car tax

Table of Subdivisions

Guide to Division 111

111-C Review of wine tax decisions

111-D Effect on contracts from amendments to laws

Guide to Division 111

111-1 What this Division is about

This Division gives you the right to object against decisions that relate to you disallowing the whole or part of a claim for a wine tax credit.

It also explains how contracts to supply wine or a luxury car are affected if a wine tax law or luxury car tax law changes.

Subdivision 111-C - Review of wine tax decisions

Table of sections

111-50 Reviewable wine tax decisions

111-50 Reviewable wine tax decisions

(1) You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that is a *reviewable wine tax decision relating to you.

Note: You may object to a decision relating to you under section 105-5 or 105-25 involving an assessment of a net amount or indirect tax: see Subdivision 105-B.

(2) A decision under section 17-45 of the *Wine Tax Act disallowing the whole or part of a claim for a *wine tax credit is a reviewable wine tax decision .

Subdivision 111-D - Effect on contracts from amendments to laws

Table of sections

111-60 Alteration of contracts if cost of complying with agreement is affected by later alteration to wine tax or luxury car tax laws

111-60 Alteration of contracts if cost of complying with agreement is affected by later alteration to wine tax or luxury car tax laws

(1) If, after a contract involving a *supply or a *wine taxable dealing has been made, an alteration to the *wine tax law or the *luxury car tax law happens and the alteration directly causes an increase or decrease in the cost to a party to the agreement of complying with the agreement, then the contract is altered as follows:

(a) if the cost is increased - by allowing the party to add the increase to the contract price;

(b) if the cost is decreased - by allowing the other party to deduct the decrease from the contract price.

(2) The contract is not altered if:

(a) the contract has express written provision to the contrary; or

(b) it is clear from the terms of the contract that the alteration of the *wine tax law or the *luxury car tax law has been taken into account in the agreed contract price.

Division 112 - Fuel tax

Table of Subdivisions

Guide to Division 112

112-E Review of fuel tax decisions

Guide to Division 112

112-1 What this Division is about

This Division gives you the right to object against reviewable fuel tax decisions that relate to you. Section 112-50 sets out the reviewable fuel tax decisions.

Subdivision 112-E - Review of fuel tax decisions

Table of sections

112-50 Reviewable fuel tax decisions

112-50 Reviewable fuel tax decisions

(1) You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that is a *reviewable fuel tax decision relating to you.

Note: You may object to a decision relating to you under section 105-5 or 105-25 involving an assessment of a net fuel amount: see Subdivision 105-B.

(2) Each of the following decisions is a reviewable fuel tax decision :