Financial Framework Legislation Amendment Act (No. 2) 2012 (82 of 2012)

Schedule 1   Amendments

Taxation Administration Act 1953

124   After section 15A

Insert:

15B Recoverable advances

(1) The Commissioner may make an advance to a person (the recipient ) on account of an amount to which the recipient may become entitled under a taxation law.

(2) The Commissioner must not make an advance under subsection (1) unless:

(a) if the advance is made in conjunction with other advances under that subsection - the Commissioner is satisfied that the total of the costs that would be likely to be incurred by:

(i) the Commonwealth; and

(ii) the recipients; and

(iii) persons other than the Commonwealth or the recipients;

if the advance and the other advances were not made is likely to exceed the total of the advance and the other advances; or

(b) otherwise - the Commissioner is satisfied that the total of the costs that would be likely to be incurred by:

(i) the Commonwealth; and

(ii) the recipient; and

(iii) persons other than the Commonwealth or the recipient;

if the advance were not made is likely to exceed the amount of the advance.

(3) An advance under subsection (1) may:

(a) be recovered under subsection (4); or

(b) be the subject of a determination under subsection (5).

(4) If an advance is made under subsection (1) to a person (the recipient ), the advance:

(a) is a debt due to the Commonwealth by the recipient; and

(b) is payable to the Commissioner; and

(c) may be recovered in a court of competent jurisdiction by the Commissioner, or by a Deputy Commissioner, suing in his or her official name;

whether or not the recipient has become entitled to an amount under a taxation law.

Note: See also section 47 of the Financial Management and Accountability Act 1997 (duty to pursue recovery of a debt).

Advance may discharge Commonwealth liability

(5) If:

(a) an advance is made to a person (the recipient ) under subsection (1); and

(b) the advance has not been fully recovered under subsection (4); and

(c) an amount is payable to the recipient by the Commonwealth under a taxation law (the Commonwealth liability );

the Commissioner may, by written notice given to the recipient, determine that the making of the advance is taken to have discharged so much of the Commonwealth liability as equals the whole, or a specified part, of the amount of the advance.

(6) A part of an advance must not be specified in a determination under subsection (5) if it has already been specified in a previous determination under subsection (5).

(7) If the whole, or a part, of an advance is the subject of a determination under subsection (5), the whole, or the part, as the case may be, of the advance is not recoverable under subsection (4).

(8) Subsection (5) does not limit Part IIB.

(9) For the purposes of section 47 of the Financial Management and Accountability Act 1997, a determination under subsection (5) of this section is taken to be a method of debt recovery.

15C Recoverable payments

(1) If, apart from this subsection, the Commissioner does not have power under a taxation law to pay an amount (the relevant amount ) to a person (the recipient ) purportedly as an amount to which the recipient is entitled to under a taxation law, then the Commissioner may pay the relevant amount to the recipient.

Recovery

(2) If a payment is made under subsection (1) to the recipient, the relevant amount:

(a) is a debt due to the Commonwealth by the recipient; and

(b) is payable to the Commissioner; and

(c) may be recovered in a court of competent jurisdiction by the Commissioner, or by a Deputy Commissioner, suing in his or her official name.

Note: See also section 47 of the Financial Management and Accountability Act 1997 (duty to pursue recovery of a debt).

(3) If:

(a) a payment is made under subsection (1) to the recipient; and

(b) an amount is payable to the recipient by the Commonwealth under a taxation law (the Commonwealth liability );

then:

(c) the relevant amount; or

(d) such part of the relevant amount as the Commissioner determines;

may, if the Commissioner so directs, be recovered by deduction from the Commonwealth liability.

Note: See also section 47 of the Financial Management and Accountability Act 1997 (duty to pursue recovery of a debt).

(4) For the purposes of a designated recovery provision, in determining whether an amount is payable, disregard subsection (1) of this section.

(5) If the relevant amount is recovered under a designated recovery provision, the relevant amount cannot be recovered under subsection (2) or (3) of this section.

(6) If the relevant amount is recovered under subsection (2) or (3) of this section, the relevant amount cannot be recovered under a designated recovery provision.

(7) Except as provided by subsection (6), subsection (3) does not limit Part IIB.

Designated recovery provisions

(8) For the purposes of this section, each of the following provisions is a designated recovery provision :

(a) section 8AAZN of this Act;

(b) section 70 of the Superannuation Guarantee (Administration) Act 1992;

(c) section 50 of the First Home Saver Accounts Act 2008;

(d) section 24 of the Superannuation (Government Co-contribution for Low Income Earners) Act 2003;

(e) a similar provision of a taxation law.

(9) For the purposes of a designated recovery provision, in determining:

(a) whether a person is entitled to an amount; or

(b) whether an amount is payable;

disregard subsection (1).

15D Reports about recoverable advances and recoverable payments

(1) During the applicable publication period for a reporting period, the Commissioner must publish, in such manner as the Commissioner thinks fit, a report that sets out:

(a) both:

(i) the number of advances made under subsection 15B(1) during the reporting period; and

(ii) the total amount of those advances; and

(b) both:

(i) the number of payments made under subsection 15C(1) during the reporting period; and

(ii) the total amount of those payments.

(2) However, a report is not required if:

(a) the number mentioned in subparagraph (1)(a)(i) is zero; and

(b) the number mentioned in subparagraph (1)(b)(i) is zero.

Deferred reporting

(3) Paragraph (1)(b) of this section does not require a report to deal with a payment unless, before the preparation of the report, an Australian Taxation Office official was aware the payment was made under subsection 15C(1).

(4) For the purposes of this section, if:

(a) a payment was made under subsection 15C(1) in a reporting period; and

(b) because of subsection (3) of this section, paragraph (1)(b) of this section did not require a report to deal with the payment; and

(c) during a later reporting period, an Australian Taxation Office official becomes aware that the payment was made under subsection 15C(1);

the payment is subject to a deferred reporting obligation in relation to the later reporting period.

(5) If one or more payments made under subsection 15C(1) during a reporting period are subject to a deferred reporting obligation in relation to a later reporting period, the Commissioner must, during the applicable publication period for the later reporting period:

(a) prepare a report that sets out:

(i) the number of those payments; and

(ii) the total amount of those payments; and

(iii) the reporting period during which the payments were made; and

(b) if a report is required under subsection (1) in relation to the later reporting period - include the paragraph (a) report in the subsection (1) report; and

(c) if paragraph (b) does not apply - publish, in such manner as the Commissioner thinks fit, the paragraph (a) report.

Reporting period

(6) For the purposes of this section, a reporting period is:

(a) a financial year; or

(b) if a shorter recurring period is specified in a legislative instrument made by the Minister - that period.

Applicable publication period

(7) For the purposes of this section, the applicable publication period for a reporting period is the period of:

(a) 4 months; or

(b) if a lesser number of months is specified, in relation to the reporting period, in a legislative instrument made by the Minister - that number of months;

beginning immediately after the end of the reporting period.

Australian Taxation Office official

(8) For the purposes of this section, Australian Taxation Office official means an official (within the meaning of the Financial Management and Accountability Act 1997) who is in the Australian Taxation Office or is part of the Australian Taxation Office.