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

Schedule 5   Administrative provisions

Part 1   Administrative provisions

Taxation Administration Act 1953

52   Division 444 in Schedule 1

Repeal the Division, substitute:

Division 444 - Obligations of entities on behalf of other entities

Table of Subdivisions

Guide to Division 444

444-A Unincorporated associations and bodies and companies

444-B Partnerships

444-C Superannuation funds

444-D Incapacitated entities

444-E Indirect tax specific entities

Guide to Division 444

444-1 What this Division is about

This Division imposes onto other entities the liabilities of unincorporated associations or bodies, companies, partnerships, superannuation funds, incapacitated entities and various indirect tax specific entities.

Subdivision 444-A - Unincorporated associations and bodies and companies

Table of sections

444-5 Unincorporated associations and bodies

444-10 Public officers of companies

444-15 Liability of directors and officers of a company

444-5 Unincorporated associations and bodies

(1) Obligations that would be imposed under this Schedule or an *indirect tax law on an unincorporated association or body of entities are imposed on each member of the committee of management of the association or body, but may be discharged by any of those members.

(2) Any offence against this Schedule or an *indirect tax law that is committed by the association or body is taken to have been committed by each member of its committee of management.

(3) In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (2), it is a defence if the entity proves that the entity:

(a) did not aid, abet, counsel or procure the relevant act or omission; and

(b) was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).

Note 1: The defence in subsection (3) does not apply in relation to offences under Part 2.4 of the Criminal Code.

Note 2: A defendant bears a legal burden in relation to the matters in subsection (3): see section 13.4 of the Criminal Code.

444-10 Public officers of companies

(1) The individual who is the public officer of a company for the purposes of the Income Tax Assessment Act 1936 is also the public officer of the company for the purposes of an *indirect tax law. The public officer's address for service under that Act is also the public officer's address for service for the same purposes.

(2) The public officer is answerable for doing everything required to be done by the company under an *indirect tax law, and in case of default is liable to the same penalties.

(3) A proceeding under an *indirect tax law that is brought against the public officer is taken to have been brought against the company, and the company is liable jointly with the public officer for any penalty imposed on the public officer.

(4) Everything done by the public officer that the public officer is required to do in that capacity is taken to have been done by the company.

(5) Service of a notice or other document on the public officer or at the public officer's address for service is sufficient service on the company for the purposes of an *indirect tax law. If at any time there is no public officer, service on an individual who is acting or appears to be acting in the business of the company is sufficient.

(6) This section does not, by implication, reduce any of the obligations or liabilities of the company.

444-15 Liability of directors and officers of a company

(1) Any notice, process or proceeding that may be given to, served on or taken against a company or its public officer under an *indirect tax law may, if the Commissioner considers it appropriate, be given to, served on, or taken against an entity (the representative ) who is:

(a) a director, secretary or other officer of the company; or

(b) an attorney or agent of the company.

(2) The representative has the same liability in respect of the notice, process or proceeding as the company or public officer would have had if it had been given to, served on or taken against the company or public officer.

(3) This section does not, by implication, reduce any of the obligations or liabilities of the company or public officer.

Subdivision 444-B - Partnerships

Table of sections

444-30 Partnerships

444-30 Partnerships

(1) Obligations that are imposed under this Schedule or an *indirect tax law on a partnership are imposed on each partner, but may be discharged by any of the partners.

(2) The partners are jointly and severally liable to pay any amount that is payable under this Schedule or an *indirect tax law by the partnership.

(3) Any offence against this Schedule or an *indirect tax law that is committed by a partnership is taken to have been committed by each of the partners.

(4) In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (3), it is a defence if the entity proves that the entity:

(a) did not aid, abet, counsel or procure the relevant act or omission; and

(b) was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).

Note 1: The defence in subsection (4) does not apply in relation to offences under Part 2.4 of the Criminal Code.

Note 2: A defendant bears a legal burden in relation to the matters in subsection (4): see section 13.4 of the Criminal Code.

Subdivision 444-C - Superannuation funds

Table of sections

444-50 Superannuation funds

444-50 Superannuation funds

If a superannuation fund does not have a trustee of the fund, this Schedule applies to the fund as if:

(a) the entity that manages the fund were the trustee of the fund; or

(b) each of the entities that manage the fund were a trustee of the fund.

Note: The trustee of a superannuation fund is taken to be an entity: see subsection 960-100(2) of the Income Tax Assessment Act 1997.

Subdivision 444-D - Incapacitated entities

Table of sections

444-70 Representatives of incapacitated entities

444-70 Representatives of incapacitated entities

(1) If there are 2 or more *representatives of the same *incapacitated entity, the representatives are jointly and severally liable to pay any amount that is payable under an *indirect tax law by any of the representatives in relation to that same incapacitated entity.

(2) If there are 2 or more *representatives of the same *incapacitated entity, any offence against an *indirect tax law that is committed by one of the representatives is taken to have been committed by each of the representatives.

(3) In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (2), it is a defence if the entity proves that the entity:

(a) did not aid, abet, counsel or procure the relevant act or omission; and

(b) was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).

Note 1: The defence in subsection (3) does not apply in relation to offences under Part 2.4 of the Criminal Code.

Note 2: A defendant bears a legal burden in relation to the matters in subsection (3): see section 13.4 of the Criminal Code.

Subdivision 444-E - Indirect tax specific entities

Table of sections

444-80 GST joint ventures

444-85 Non-profit sub-entities

444-90 GST groups

444-80 GST joint ventures

(1) The *participants in a *GST joint venture are jointly and severally liable to pay any amount that is payable under an *indirect tax law by the *joint venture operator for the joint venture, to the extent that the amount relates to the joint venture.

(2) Any offence against an *indirect tax law that:

(a) is committed by the *joint venture operator for a *GST joint venture; and

(b) relates to the joint venture;

is taken to have been committed by each of the *participants in the joint venture.

(3) In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (2), it is a defence if the entity proves that the entity:

(a) did not aid, abet, counsel or procure the relevant act or omission; and

(b) was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).

Note 1: The defence in subsection (3) does not apply in relation to offences under Part 2.4 of the Criminal Code.

Note 2: A defendant bears a legal burden in relation to the matters in subsection (3): see section 13.4 of the Criminal Code.

444-85 Non-profit sub-entities

(1) Obligations that would be imposed under the *GST law or the *fuel tax law on a *non-profit sub-entity are imposed on each entity who is responsible, to entities or bodies outside the sub-entity, for the management of the sub-entity, but may be discharged by any entity who is so responsible.

(2) The entities who are so responsible in respect of the sub-entity are jointly and severally liable to pay any amount that is payable under the *GST law or the *fuel tax law by the sub-entity.

(3) Any offence against the *GST law or the *fuel tax law that is committed by the sub-entity is taken to have been committed by each entity who is responsible, to entities or bodies outside the sub-entity, for the management of the sub-entity.

(4) In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (3), it is a defence if the entity proves that the entity:

(a) did not aid, abet, counsel or procure the relevant act or omission; and

(b) was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).

Note 1: The defence in subsection (4) does not apply in relation to offences under Part 2.4 of the Criminal Code.

Note 2: A defendant bears a legal burden in relation to the matters in subsection (4): see section 13.4 of the Criminal Code.

444-90 GST groups

(1) The *members of a *GST group are jointly and severally liable to pay any amount that is payable under an *indirect tax law by the *representative member for the group.

(2) Subsection (1) does not apply to a *member of a *GST group if an *Australian law has the effect of prohibiting the member from entering into any *arrangement under which the member becomes subject to the liability referred to in that subsection.

(3) However, a *member to which subsection (2) applies remains liable for any amount payable under an *indirect tax law by the *representative member for the group, to the extent that the liability arises from an act or omission of the member to which subsection (2) applies.

(4) Any offence against an *indirect tax law that is committed by the *representative member for a *GST group is taken to have been committed by each of the *members of the group.

(5) In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (4), it is a defence if the entity proves that the entity:

(a) did not aid, abet, counsel or procure the relevant act or omission; and

(b) was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).

Note 1: The defence in subsection (5) does not apply in relation to offences under Part 2.4 of the Criminal Code.

Note 2: A defendant bears a legal burden in relation to the matters in subsection (5): see section 13.4 of the Criminal Code.