Explanatory Memorandum(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)
Chapter 3 - Running balance accounts, general interest charge and related matters
3.1 Schedule 2 to this Bill will amend the TAA 1953and other Acts, for which the Commissioner has administrative responsibility, to give effect to the aligned business tax obligations of one return and one payment outlined in ANTS. The measures covered by the amendments will:
- enable taxpayers to provide a single activity statement and corresponding net payment or refund claim (ANTS at page 146);
- extend the application of the current RBA arrangements so that the Commissioner can establish RBAs to record business tax debts and payments in a more accurate and efficient manner;
- allow payments and credits to be allocated to an RBA to reflect the Commissioners accounting practices. This is an alternative to the current legislative rule which requires the Commissioner to allocate payments and credits to primary tax debts;
- align the payment dates for FBT instalments with the quarterly remittance dates of other business taxes by changing the current instalment arrangement to a system of 4equal instalments followed by a year end reconciliation upon assessment (ANTS at page 146);
- allow the Commissioner to accept voluntary payments from taxpayers on account of future taxation debts (ANTS at page135);
- vary some existing penalty arrangements so that they can be managed within an RBA framework; and
- make technical amendments to the RBA and GIC provisions in TLAA3 1999. These amendments ensure the provisions apply as intended to PAYE, PPS, RPS and sales tax. The amendments are also necessary to support the expansion of the RBA system to other debts in the tax reform environment from 1 July 2000.
3.2 The measures are explained in the following Sections:
Section 1 - Extending RBA arrangements and the treatment of payments and credits
Section 2 - Payment and notification of FBT instalment and assessment debts
Section 3 - Voluntary payments
Section 4 - GIC on unpaid tax
Section 5 - GIC on unpaid non-electronic payment penalty
Section 6 - Technical improvements
3.3 To allow the Commissioner to establish RBAs to account for tax obligations under the Governments Tax Reform proposals.
3.4 The amendments will apply to RBAs established on or after 1 July 2000 in respect of all tax debts. [Item 35]
3.5 The current RBA arrangements are contained in Part IIB of the TAA 1953 and apply to establish separate RBAs from 1 July 1999 to account for PAYE, PPS, RPS and sales tax debts. The arrangements represented the first step towards the establishment of an integrated account to record the taxation obligations of a taxpayer.
3.6 With the introduction of a range of new business tax obligations under the Governments Tax Reform proposals, there is a need to expand the scope of RBAs. All debts notified on a business activity statement (BAS) and any associated payments and credit entitlements will be recorded on a single account for that business.
3.7 The separate RBAs established under the existing provisions for the 4 classes of tax debts will continue after 1 July 2000, but only for the purpose of recording any unpaid amounts which arose before that time. [Item 36]
3.8 The amendments to the TAA 1953 will extend the current RBA arrangements to allow the Commissioner to establish an RBA to account for any primary tax debt. A primary tax debt is any liability under a taxation law, including amounts that are not yet due for payment. This amendment will enable the Commissioner to establish an RBA for taxpayers with obligations under the Governments Tax Reform proposals. [Items 8 to 10, amended section 8AAZC]
3.9 A taxpayer will be required to notify the Commissioner of all liabilities under the new tax system. The BAS will be the approved form for notifying most business tax liabilities so that those debts and any credit entitlements can be recorded on an RBA. From 1 July 2000 the following obligations will be notified on a BAS:
- Goods and services tax;
- Wine equalisation tax;
- Luxury car tax;
- Pay as you go: income tax withholding;
- Pay as you go: income tax instalments;
- Fringe benefits tax instalments; and
- Deferred company instalments.
3.10 Existing systems will continue to account for other tax debts such as assessed income tax, assessed FBT and superannuation liabilities. These non-RBA debts may come into the RBA framework at some future stage.
3.11 There is also a need to ensure the RBA system, which records the income tax instalment and fringe benefits tax instalment debts, interacts correctly with the income tax and FBT assessment systems.
3.12 The law imposes tax by making an assessment of income tax or FBT payable for the year. The instalment obligations are mechanisms for collecting that assessed tax. By having these collection obligations the law establishes a liability for instalments in addition to the liability for the full amount of assessed tax payable for a year. It is therefore necessary to have a provision that limits a taxpayers overall income tax and FBT debt to the annual assessed amount.
3.13 New section 45-30 in Schedule 1 of the TAA 1953 and new subsection 105(1) of the FBTAA 1986 will achieve this by giving a taxpayer credit for each instalment payable for the year of income. The credit will exist regardless of whether an instalment is paid. The entitlement to the credit will arise upon assessment or a determination that no tax is payable for the year. (This timing qualification is necessary to avoid the credit operating to immediately eliminate the instalment liability.) A taxpayer can make an estimate of tax payable to vary an instalment debt. The instalment liability is reduced or increased accordingly and the credit entitlement is adjusted so that it applies to the varied liability. [Item 121]
3.14 An amendment will clarify that a taxpayers liability for an instalment is not affected by an assessment of tax payable for the year or the entitlement to the credit. New sections 8AAZLA and 8AAZLB allow the Commissioner to apply the credit against any tax debt. [Item 121, new subsections 105(2) and 45-30(3) in Schedule 1 of the TAA 1953]
3.15 A taxpayers instalment debt will be recorded on an RBA and any unpaid amount will be reflected as part of the deficit balance on the RBA. As mentioned above, a taxpayers assessed liability may be recorded on an RBA at some future stage. There will be a separate account recording the assessed tax payable, if any, and a credit for any instalment debt raised. Where the tax payable is less than the instalment debt raised, there will be a credit. This could give rise to a refund if there are no other outstanding tax debts including instalment debts.
3.16 Under the RBA system introduced by TLAA3 1999, the Commissioner can allocate certain classes of primary tax debts to an RBA. Amended section 8AAZD will allow the Commissioner to allocate any primary tax debt to an RBA.
3.17 The Commissioner can establish more than one RBA for a tax debt of an entity. Where this is the case, the Commissioner will be able to allocate a primary tax debt to one of those RBAs or between any of those RBAs. This could occur if separate RBAs are established to account for the tax debts of several operational branches of a large company. For example, section 54-5 of the GSTA1999 allows an entity to register GST branches. Although the tax debt for a particular period is the liability of the entity, the Commissioner can allocate each branch's debt to a separate RBA established for that branch. [Items 3, 8 to 11, 81 and 82, new subsection 8AAZD(1A)]
3.18 The allocation of a primary tax debt to an RBA establishes a parallel liability ie. an amount on an RBA that relates to the underlying primary tax debt. Where the primary tax debt remains unpaid, the amount is a debt owing to the Commonwealth and payable to the Commissioner. As such, it can be sued for and recovered in the Courts. Similarly, any unpaid balance on an RBA is a debt for which a taxpayer can be sued. This parallel system has been established to give the Commissioner the flexibility to pursue unpaid tax in proceedings for either a primary tax debt or the balance on an RBA which reflects that debt but not both.
3.19 Where the total amount of primary tax debts allocated to an RBA is greater than the payments and credits applied to the RBA, the account will have a deficit balance. If a primary debt allocated to the RBA is currently due and payable there will be an RBA deficit debt . On the other hand, if the payments and credits applied to the RBA are greater than the primary tax debts allocated to the account there will be an RBA surplus . Consequential amendments are also being made throughout the RBA framework to achieve consistency in relation to the concept of an RBA deficit debt. [Items 1, 4, 5, 6 and 16 to 20, amended section 8AAZA]
3.20 Unpaid primary tax debts are subject to the imposition of the GIC calculated daily on a compounding basis under Division 1 of Part IIA of the TAA 1953. If there is an RBA deficit debt on an RBA to which the primary tax debt was allocated then GIC is also payable on that deficit under section 8AAZF of the TAA 1953. The balance on the RBA is increased to reflect the GIC payable at the end of the day. [Items 13 to 15]
3.21 To ensure liabilities in respect of debts allocated to an RBA and the corresponding RBA deficit debts remain parallel, special rules are needed for the treatment of payments and credits. In the current law this is achieved by first applying amounts against the primary tax debt and then offsetting the RBA by the same amount. However, in practice, when a taxpayer makes a payment in respect of a tax debt notified on a BAS, the Commissioner will apply the payment to the RBA that records the debt. The payment will not be recorded as a payment against the primary tax debt.
3.22 The rules allowing the Commissioner to account for payments and credits on an RBA in section 8AAZL of Division 3 of Part IIB will be repealed and replaced with provisions to support the new administrative arrangements. The current arrangements allow amounts to be applied first against a non-RBA tax debt. The new arrangements go further by allowing the Commissioner an alternative approach of allocating amounts against an RBA. [Items 12, 21 and 22, new Division 3 of Part IIB]
3.23 The new arrangements reflect the proposed credit card type approach of reducing an outstanding balance consisting of several individual primary or non-RBA tax debts. Applying an amount to an RBA will reduce the RBA deficit debt as well as the primary tax debts allocated to the RBA, and GIC that has accrued on those primary tax debts. [Item 22, new section 8AAZLA]
3.24 New section 8AAZLB maintains the existing payment and crediting rule, currently in section 8AAZL, by allowing the Commissioner to apply an amount to reduce non-RBA tax debts or any GIC on those debts. This provision is necessary to provide a statutory rule for the elimination of a primary tax debt by a payment or credit (eg. a payment made by a taxpayer in respect of assessed income tax). However, if the non-RBA tax debt has been allocated to an RBA, new subsection 8AAZLB(2) requires the Commissioner to also allocate that payment or credit to the RBA to eliminate the parallel liability. [Item 22]
3.25 Where the amount of payment or credit applied to an RBA is greater than the deficit balance on the account there will be an RBA surplus. Similarly, where the payment or credit is greater than the non-RBA tax debt to which it is applied there will be an excess non-RBA credit . [Item 2, amended section 8AAZA]
3.26 The RBA surplus and excess non-RBA credit can be related amounts. If one of these amounts is applied to reduce a tax debt, being another RBA deficit or non-RBA tax debt of the entity, then the Commissioner must adjust the related surplus or credit by the same amount. [Item 22, new section 8AAZLC]
3.27 New subsection 8AAZLF(1) will require the Commissioner to refund any RBA surplus or excess non-RBA credit where there are no other tax debts to which they can be applied. Under new subsection 8AAZLF(4) ,where an RBA surplus is refunded the parallel excess non-RBA credit is reduced accordingly. Similarly, under new subsection 8AAZLF(5) , if an excess non-RBA credit is refunded, then any related RBA is adjusted by the same amount.
3.28 There are 2 new rules relating to refunds of amounts from an RBA established to account for the new business tax obligations notified on a BAS from 1 July 2000. Firstly, new section 8AAZLG provides that the Commissioner will be able to retain a refund where an entity has an outstanding BAS. Secondly, new section 8AAZLH provides that any refund in respect of these BAS obligations must be paid into a financial institution account nominated by the entity (this can be an account of a person other than the entity).
3.29 Under new section 8AAZLH , the Commissioner will be able to withhold a refund until the entity nominates an account. However, the Commissioner will have the discretion to pay refunds to the entity in a different way (eg. by cheque). These rules, which are similar to provisions in the GSTA 1999, will now apply to all BAS obligations. This is necessary because refunds from an RBA are made in respect of the RBA surplus which is an aggregated amount.
3.30 To align FBT instalment payment dates with the other relevant remittance dates in order to ensure a unified approach to notification and payment of obligations on a BAS.
3.31 The amendments will apply to the FBT year starting on 1 April2000 and also apply to later years. [Item 140]
3.32 A BAS will provide for the notification of different tax information on one form. In order for it to aggregate tax information effectively, the due dates for notification and payment need to be aligned. Currently, this is not the case as there is inconsistency across the tax laws. This is especially apparent between FBT and income tax instalments.
3.33 The FBT year of tax is currently from 1 April to 31 March and employers are required to lodge an annual return no later than 28 April. Upon lodgment of the return the Commissioner is deemed to make an assessment of the FBT payable. The assessed tax becomes due and payable on the 28 April. Where the tax payable for the year is $3,000 or more, employers are required to pay 3 instalments; on 28 July, 28 October and 28 January in the year of tax. Each instalment is based on the tax payable for the previous year.
3.34 From 1 July 2000, the Commissioner will provide taxpayers with a BAS to assist in the notification and payment of their business tax obligations. Notification and payment using a BAS will be made on a quarterly or monthly basis, depending on the nature of the obligation. The proposed new arrangements, announced in ANTS, will require all quarterly payments to be aligned so that they are due no later than 21 July, 21 October, 21 January and 21 April.
3.35 New section102 of the FBTAA1986 requires employers to pay 4 instalments rather than 3 instalments under the current law. New section103 sets the due dates for payment of the instalments on 21 July, 21 October, 21 January in the year of tax and 21 April in the following year. These new payment dates have generated consequential amendments. [Items 120, 121, 126, 127, 130 and 132]
Due date for lodgment of FBT return and payment of assessed tax
3.36 Lodgment of the FBT return and payment of the assessed tax are currently due on 28 April following the FBT year. As the new date for payment of the 4th instalment and lodgment of the BAS notification is 21 April, the lodgment date of the annual return and the due date for payment will be changed to allow further time for business to meet their obligations. Amendments will defer the due date for these requirements from 28 April to 21 May following the FBT year. [Items 118 and 119]
3.37 New section 104 will require an employer to notify the Commissioner of an instalment liability in an approved form. This will enable the Commissioner to have the instalment notified in a BAS together with other business tax obligations. Where an employer wants to vary an instalment, by estimating the amount of tax payable for the year, that estimate must also be in an approved form. [Items 121, 135 and 136]
3.38 The instalment provisions in the current FBTAA1986 include references which deal with the transitional year of tax (1 July1986 to 31 March 1987) when that Act was introduced. This transitional year is not relevant to the new instalment dates so amendments will remove such references. As the transitional year is no longer relevant to other parts of the FBTAA1986 those provisions not in use are being removed. [Items 94 to 117, 122 to 125, 128, 129, 131, 133, 134, 137 to 139]
3.39 To allow taxpayers to make voluntary payments in respect of anticipated tax debts.
3.40 The amendment will apply to payments received on or after 1 July 2000. [Item 35]
3.41 There is no statutory recognition in the taxation laws of voluntary payments made by taxpayers on account of anticipated tax debts. The Commissioner can accept these payments and hold them on trust for a taxpayer to be applied to tax debts owed to the Commonwealth when they crystallise. ANTS foreshadowed the concept of voluntary payments under the new PAYG arrangements by indicating that taxpayers will be able to make additional payments as it suits them.
3.42 New subsection8AAZLF(1) of the TAA 1953 requires the Commissioner to refund to the taxpayer an RBA surplus or a credit in favour of the taxpayer. A voluntary payment will give rise to a credit on an RBA which will put the account into surplus and create a requirement to refund. Therefore a provision is needed to allow the Commissioner to retain voluntary payments. The amendments will provide that the Commissioner is not required to refund an excess credit or RBA surplus that arises from a voluntary payment. However, the amendments will require the Commissioner to refund an RBA surplus or an excess credit when the taxpayer requests the Commissioner to do so. [Item 22, new subsections 8AAZLF(2) and (3)]
3.43 To replace several late payment penalties with the GIC. These penalties were not included in the amendments to introduce the GIC in TLAA3 1999.
3.44 The amendments will apply from 1 July 1999 which is the commencement date for the GIC provisions. [Item 92]
3.45 Section 271-80 in Schedule 2F to the ITAA 1936 imposes a penalty of 16% per annum on family trust distribution tax that remains unpaid at the end of 60 days after it becomes due and payable. Section102UP, which is being inserted into the ITAA 1936 by A New Tax System (Closely Held Trusts) Act 1999 , also imposes a penalty of 16% per annum on ultimate beneficiary non-disclosure tax that remains unpaid at the end of 60 days after it becomes due and payable.
3.46 The method of calculating penalty under sections 102UP and 271-80 is inconsistent with the method used to calculate penalty interest for all other amounts of unpaid tax under laws administered by the Commissioner. The penalty applying under these two penalty provisions should be based on the new GIC. These amendments will give effect to that policy.
3.47 New section 102UP replaces the current late payment penalty provision and makes the person liable to pay the GIC on any unpaid ultimate beneficiary non-disclosure tax. New section 271-80 replaces the current late payment penalty provision with liability to pay the GIC on any unpaid family trust distribution tax. [Items 40, 41, 61, 62, 75 and 76]
3.48 The GIC is calculated under section 8AAC of the TAA 1953 at the rate provided in section 8AAD. The GIC is calculated daily on a compounding basis. The GIC rate applying from 1 July 1999 is 12.72% which is a lower rate than the 16% interest that currently applies to unpaid amounts under the provisions being amended. Any retrospective application of the GIC will result in a reduced penalty because of the lower interest rate.
3.49 To vary the penalty for which a large remitter is liable so that it can be managed on an RBA.
3.50 The amendment will apply from 1 July 1999 which is the commencement date for the GIC provisions. [Item 92]
3.51 Section220AAW of the ITAA 1936 imposes a penalty where amounts payable under Division1AAA of Part VI (remittance of RPS, PAYE and PPS deductions) by a large remitter are not paid electronically. This penalty is a defined amount being the greater of $500 or the GIC rate for 7days on the amount of the non-electronic payment. Where this penalty remains unpaid it does not attract a late payment penalty in the form of GIC like most other penalties.
3.52 The RBA system has been built to facilitate the recording and recovery of these remittances and any relevant penalties. One of the operating principles of the RBA system is that interest will apply from the due date of payment to all amounts recorded on an RBA. As there is no GIC payable on the unpaid non-electronic payment penalty, the debt does not fit in to the RBA framework.
3.53 New section 220AAW will impose the GIC on the unpaid penalty. This will enable the Commissioner to record the debt on an RBA. The penalty will be due for payment on the day the large remitter pays an amount to the Commissioner other than by electronic transfer. No change is being made to the amount of the non-electronic payment penalty. [Item48]
3.54 To make technical improvements to the RBA and GIC provisions introduced in the TLAA3 1999.
3.55 The amendments will apply from 1 July 1999 which is the commencement date for the GIC and RBA provisions. [Item 92]
3.56 Technical amendments are required to the recently enacted RBA and GIC arrangements. These are necessary to:
- facilitate the application of RBAs to all tax debts;
- clarify the application of certain GIC provisions; and
- reinstate review rights inadvertently omitted by the earlier amendments.
3.57 A transitional provision is being inserted into the TLAA3 1999to allow GIC to apply to all primary tax debts, in relation to periods prior to 1 July 1999, that remain outstanding on that date. These debts include penalties and interest that accrued prior to 1 July 1999. This approach is necessary to enable earlier debts to be calculated and carried over to the new RBA system. An example of such a debt is an outstanding amount of unremitted PAYE deductions under the former subsection 221F(5) of the ITAA 1936. This provision was repealed in 1998 but debts under this statute are still being pursued by the Commissioner and, as such, need to be recorded on an RBA. [Item 89 and 93]
3.58 The GIC rate that applies to any part of the period before 1 July 1999 will be 12.72% which is the GIC rate that applies to unpaid amounts on 1 July 1999. The approach will generally favour taxpayers as the GIC is less than the current late payment penalties which apply to outstanding debts. [Subitem 93(4)]
3.59 New subitem93(5) will ensure that where a person is liable to both a penalty and the GIC in respect of an obligation, the Commissioner will be required to remit either amount. This double liability was created by the TLAA3 1999 and may occur as a result of the application of the transitional provision explained above.
3.60 Subsection 399(2) of the TLAA3 1999 is being amended to clarify that the GIC is payable from 1 July 1999 in respect of amended assessment interest and underestimation interest to the extent that the interest period spans 1 July 1999. [Items 90 and 91]
3.61 Non-payment of late lodgment penalty and interest under sections 163B and 163C of the ITAA 1936 currently attract late payment penalty. Similarly, non-payment of provisional tax underestimation penalty under section 221YDB also attracts late payment penalty. When the TLAA3 1999 replaced late payment penalties with the GIC, these two penalties were omitted and not replaced with the GIC. These amendments will rectify this error and impose the GIC as intended. [Items43 and 52]
3.62 Subsection 221N(4) was repealed by the TLAA3 1999. This removed the objection right that a taxpayer had against remission decisions concerning the 100% penalty for undeducted PAYE amounts. The objection provision should not have been repealed. New subsection 221N(3) restores a taxpayers right to object to a remission decision under subsection 221N(1). [Item 51]
3.63 A large remitter also had a right of review against a decision of the Commissioner not to remit the non-electronic payment penalty imposed under section 220AAW. This right was also inadvertently removed. It is being restored by an amendment to paragraph 220AAZF(g). [Item 49]
3.64 There were certain references to late payment penalties under the former sections 207 and 207A which were removed by TLAA3 1999. In place of these late payment provisions a reference to the GIC was inserted. As the GIC has much broader application, amendments are being made to restrict reference to the GIC to those amounts covered by the former sections 207 and 207A. [Items 56 to 60]
3.65 The parallel liability that exists for GIC on any unpaid primary tax debt that has been allocated to an RBA can notionally give rise to a tax deduction for both that GIC and the GIC that accrues on the RBA deficit debt. New subsection 25-5(7) ensures that there is no double deduction for GIC on an RBA debt where GIC is deductible in respect of a corresponding non-RBA debt. [Item 65]
3.66 A failure to notify (FTN) penalty was introduced by TLAA3 1999 to impose a penalty on a person that does not advise the Commissioner of certain payment obligations. Section 95A is the sales tax FTN penalty provision. It is based on the taxpayer not notifying the Commissioner of an assessable dealing with goods in a sales tax return. The Commissioner does not require a taxpayer to disclose the amount of an assessable dealing in the sales tax return. The approved sales tax return form only requires the taxpayer to disclose the amount of tax payable. An amendment to section 95A is necessary to clarify that the FTN penalty is payable when a taxpayer fails to notify the Commissioner of an amount of tax payable on an assessable dealing in a return. [Items 67 to 70]
3.67 Section 99 is being amended to remove the requirement for the sales tax FTN penalty to be assessed. An assessment of the penalty is not necessary as all FTN penalties are required to be notified by the Commissioner under section 8AAL of the TAA 1953. Section 100 is also being amended to remove the FTN provision from this sales tax penalty remission provision. The remission of all FTN penalties is provided for by section 8AAM of the TAA 1953. [Items 71 to 74]
Taxation (Interest on Overpayments and Early Payments) Act 1983
3.68 The definition of relevant tax in subsection 3(1) includes reference to GIC amounts in subsections 220AAE(3), 220AAM(3), 220AAR(3) and 222AJA(3). GIC amounts are not reviewable decisions and therefore should not trigger the payment of interest under the Act. An amendment is being made to remove these provisions from the definition of relevant tax . [Items 83 and 84]
3.69 Subparagraph 12A(1)(a)(i) previously allowed for the payment of interest on refunds of remitted late payment penalty and interest under sections 207 and 207A. Refunds arising from the remission of the GIC imposed on unpaid amounts, that were previously subject to late payment penalty and interest, also need to attract interest under Part IIIA of the Act. An amendment is being made to subparagraph 12A(1)(a)(i) to include the GIC payable under sections 163AA and 170AA and subsections 204(3), 221AZMAA(1) and 221YD(3). [Items 85 and 86]
3.70 Subsection 8AAF(2) provides that if the amount of the GIC specified in a notice is not a multiple of 5 cents, the Commissioner may round it down to the nearest multiple of 5 cents. The RBA arrangements will generally round down the GIC at the end of each calculation period irrespective of whether a notice is given. New section 8AAGA will reflect this practice and allow the Commissioner to round down the GIC calculated for any period. This makes subsection 8AAF(2) redundant so it is being repealed. [Items 77 and 78]
3.71 There are other minor technical amendments which have not been specifically explained, but which are consequential to the RBA and GIC changes. Examples of those amendments include:
- changing the reference to section 8AAZL of the TAA 1953 [items 23 to 34] ;
- making catch up amendments to the definition of relevant tax in subsection 3(1) of the Crimes (Taxation Offences) Act 1980 [items 37 to 39] ;
- restoring the obligation to remit amounts deducted from natural resource payments which was inadvertently omitted in amending section 221YHZD [items 53 to 55] ;
- correcting the reference to the TAA 1953 in [item 66] ; and
- correcting references to the late reconciliation statement penalty in subsections 8AAP(4) and 8AAQ(2) of the TAA 1953 [items79 and 80] .