Treasury Laws Amendment (Black Economy Taskforce Measures No. 1) Act 2018 (121 of 2018)

Schedule 1   Electronic sales suppression tools

Part 1   Amendments

Taxation Administration Act 1953

2   After Subdivision B of Division 2 of Part III

Insert:

Subdivision BAA - Offences relating to electronic sales suppression tools

8WAA Object of this Subdivision

The object of this Subdivision is to deter the production, use and distribution of tools to manipulate or falsify electronic point of sale records to facilitate tax evasion.

8WAB Interpretation

In this Subdivision:

electronic sales suppression tool means a device, software program or other thing, a part of any such thing, or a combination of any such things or parts, that meets the following conditions:

(a) it is capable of falsifying, manipulating, hiding, obfuscating, destroying, or preventing the creation of, a record that:

(i) an entity is required by a taxation law to keep or make; and

(ii) is, or would be, created by a system that is or includes an electronic point of sale system;

(b) a reasonable person would conclude that one of its principal functions is to falsify, manipulate, hide, obfuscate, destroy, or prevent the creation of, such records.

right to use includes right to possess.

supply has the meaning given by section 9-10 of the A New Tax System (Goods and Services Tax) Act 1999.

8WAC Producing or supplying electronic sales suppression tools

(1) A person commits an offence if the person manufactures, develops or publishes an electronic sales suppression tool.

Penalty: 5,000 penalty units.

(2) A person commits an offence if the person:

(a) makes a supply of, or makes available for use, an electronic sales suppression tool or a right to use an electronic sales suppression tool; or

(b) provides a service to an entity that involves the use of an electronic sales suppression tool.

Penalty: 5,000 penalty units.

(3) Subsections (1) and (2) do not apply to conduct undertaken by the person for the purpose of preventing or deterring tax evasion or enforcing a taxation law.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

(4) An offence against subsection (1) or (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(5) Section 15.4 (extended geographical jurisdiction - category D) of the Criminal Code applies to an offence against subsection (1) if the electronic sales suppression tool is, at any time, used to modify records that a taxation law requires an entity to keep or make.

(6) Section 15.4 (extended geographical jurisdiction - category D) of the Criminal Code applies to an offence against subsection (2) if the person makes a supply of, or makes available for use, the electronic sales suppression tool or the right to use the tool to an entity that is required by a taxation law to keep or make any record.

8WAD Possessing electronic sales suppression tools

(1) A person commits an offence if:

(a) the person is required under, or pursuant to, a taxation law to keep or make a record; and

(b) the person acquires, or has possession or control of, an electronic sales suppression tool or a right to use an electronic sales suppression tool.

Penalty: 500 penalty units.

(2) Subsection (1) does not apply to conduct undertaken by a person for the purpose of preventing or deterring tax evasion or enforcing a taxation law.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) An offence against subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

8WAE Incorrectly keeping records using electronic sales suppression tools

(1) A person commits an offence if:

(a) the person is required under, or pursuant to, a taxation law to keep or make a record; and

(b) the record is kept, made or altered with the use of an electronic sales suppression tool, or is prevented by the use of an electronic sales suppression tool from being kept, made or altered; and

(c) as a result of the use:

(i) the record does not correctly record and explain the matter, transaction, act or operation to which it relates; or

(ii) the person does not keep or make the record in accordance with the taxation law.

Penalty: 1,000 penalty units.

(2) An offence against subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.