Treasury Laws Amendment (Major Bank Levy) Act 2017 (64 of 2017)

Schedule 1   Amendments

Taxation Administration Act 1953

15   After Part 3-10 in Schedule 1

Insert:

Part 3-15 - Major bank levy

Division 115 - General provisions relating to the major bank levy

115-1 What this Division is about

An ADI that is liable to pay levy under the Major Bank Levy Act 2017 must give quarterly returns to the Commissioner.

An amount of levy is due and payable when an ADI's last PAYG instalment within an instalment quarter is due.

Table of sections

115-5 Returns

115-10 When major bank levy is due and payable

115-5 Returns

(1) An *ADI that is liable to pay levy for a *quarter under the Major Bank Levy Act 2017 must give to the Commissioner a return relating to the levy, in the *approved form.

(2) The return must be given on or before the *MBL reporting day for the *quarter.

(3) The MBL reporting day for the *quarter is the day by which the *ADI is required to give to *APRA a report, in accordance with a standard determined by APRA under section 13 of the Financial Sector (Collection of Data) Act 2001, that:

(a) relates to the *quarter; and

(b) states the total liabilities amount (within the meaning of the Major Bank Levy Act 2017) for the quarter in relation to the ADI.

115-10 When major bank levy is due and payable

(1) An amount of levy under the Major Bank Levy Act 2017 that an *ADI is liable to pay for a *quarter is due and payable on the first day:

(a) that occurs on or after the *MBL reporting day for the quarter; and

(b) on which the last instalment that the ADI is liable to pay within an *instalment quarter is due under Subdivision 45-B.

(2) If that amount remains unpaid after it is due and payable, the *ADI is liable to pay *general interest charge on the unpaid amount for each day in the period that:

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

(b) finishes at the end of the last day at the end of which either of the following remains unpaid:

(i) the amount;

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

Division 117 - Anti-avoidance

Table of Subdivisions

Guide to Division 117

117-A Application of this Division

117-B Commissioner may negate effects of schemes for MBL benefits

Guide to Division 117

117-1 What this Division is about

This Division applies to deter schemes that give entities MBL benefits.

If the sole or dominant purpose of entering into a scheme is to give an entity such a benefit, the Commissioner may negate the MBL benefit an entity gets from the scheme by making a determination.

Subdivision 117-A - Application of this Division

Table of sections

117-5 Object of this Division

117-10 Application of this Division

117-15 Meaning of MBL benefit

117-20 Matters to be considered in determining purpose

117-5 Object of this Division

The object of this Division is to deter *schemes to give entities benefits that reduce or defer liabilities to levy under the Major Bank Levy Act 2017.

117-10 Application of this Division

(1) This Division applies if:

(a) an entity gets or got an *MBL benefit from a *scheme; and

(b) taking account of the matters described in section 117-20, it is reasonable to conclude that an entity that (whether alone or with others) entered into or carried out the scheme, or part of the scheme, did so for the sole or dominant purpose of that entity or another entity getting an MBL benefit from the scheme; and

(c) the scheme:

(i) has been or is entered into at or after 7.30 pm, by legal time in the Australian Capital Territory, on 9 May 2017; or

(ii) has been or is carried out or commenced at or after that time (other than a scheme that was entered into before that time).

(2) It does not matter whether the *scheme, or any part of the scheme, was entered into or carried out inside or outside Australia.

117-15 Meaning of MBL benefit

(1) An entity gets an MBL benefit from a *scheme, if:

(a) an amount of levy under the Major Bank Levy Act 2017 that is payable by the entity under this Act apart from this Division is, or could reasonably be expected to be, smaller than it would be apart from the scheme or a part of the scheme; or

(b) all or part of an amount of levy under the Major Bank Levy Act 2017 that is payable by the entity under this Act apart from this Division is, or could reasonably be expected to be, payable later than it would have been apart from the scheme or a part of the scheme.

(2) To avoid doubt, a smaller liability mentioned in paragraph (1)(a) includes a case where the liability is zero, or there is no such liability for a particular *quarter.

117-20 Matters to be considered in determining purpose

The following matters are to be taken into account under section 117-10 in considering an entity's purpose in entering into or carrying out the *scheme, or part of the scheme:

(a) the manner in which the scheme was entered into or carried out;

(b) the form and substance of the scheme;

(c) the time at which the scheme was entered into and the length of the period during which the scheme was carried out;

(d) the effect that the Major Bank Levy Act 2017, and any other *taxation law to the extent that it applies in relation to that Act, would have in relation to the scheme apart from this Division;

(e) any change in the financial position of the entity that has resulted, or may reasonably be expected to result, from the scheme;

(f) any change that has resulted, or may reasonably be expected to result, from the scheme in the financial position of an entity (a connected entity ) that has or had a connection or dealing with the entity, whether the connection or dealing is or was of a business or other nature;

(g) any other consequence for the entity or a connected entity of the scheme having been entered into or carried out;

(h) the nature of the connection (whether of a business or other nature) between the entity and a connected entity.

Subdivision 117-B - Commissioner may negate effects of schemes for MBL benefits

Table of sections

117-25 Commissioner may negate entity's MBL benefits

117-30 Determination has effect according to its terms

117-35 Commissioner may disregard scheme in making determinations

117-40 One determination may cover several quarters etc.

117-45 Commissioner must give copy of determination to entity affected

117-50 Objections

117-25 Commissioner may negate entity's MBL benefits

(1) For the purpose of negating an *MBL benefit the entity mentioned in paragraph 117-10(1)(a) gets or got from the *scheme, the Commissioner may:

(a) make a determination stating the amount that is (and has been at all times) the entity's liability for levy under the Major Bank Levy Act 2017, for a specified *quarter that has ended; or

(b) make a determination stating the amount that is (and has been at all times) a particular amount mentioned in paragraph 5(2)(a) or (b) of that Act, for a specified quarter that has ended.

(2) A determination under this section is not a legislative instrument.

(3) The Commissioner may take such action as the Commissioner considers necessary to give effect to the determination.

117-30 Determination has effect according to its terms

For the purpose of making an *assessment, a statement in a determination under this Subdivision has effect according to its terms, despite the provisions of a *taxation law outside of this Division.

117-35 Commissioner may disregard scheme in making determinations

For the purposes of making a determination under this Subdivision, the Commissioner may:

(a) treat a particular event that actually happened as not having happened; and

(b) treat a particular event that did not actually happen as having happened and, if appropriate, treat the event as:

(i) having happened at a particular time; and

(ii) having involved particular action by a particular entity; and

(c) treat a particular event that actually happened as:

(i) having happened at a time different from the time it actually happened; or

(ii) having involved particular action by a particular entity (whether or not the event actually involved any action by that entity).

117-40 One determination may cover several quarters etc.

To avoid doubt, statements relating to different *quarters and different *MBL benefits may be included in a single determination under this Subdivision.

117-45 Commissioner must give copy of determination to entity affected

(1) The Commissioner must give a copy of a determination under this Subdivision to the entity whose liability for levy under the Major Bank Levy Act 2017 is stated in the determination.

(2) A failure to comply with subsection (1) does not affect the validity of the determination.

117-50 Objections

If the entity whose liability for levy under the Major Bank Levy Act 2017 is stated in a determination under this Subdivision is dissatisfied with the determination, the entity may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953.