Tax Laws Amendment (2009 Measures No. 5) Act 2009 (118 of 2009)

Schedule 1   GST and representatives of incapacitated entities

Part 3   Amendments commencing on Royal Assent

A New Tax System (Goods and Services Tax) Act 1999

25   At the end of Division 58

Add:

58-45 GST returns for representatives of incapacitated entities

(1) If an individual is appointed as a *representative of 2 or more *incapacitated entities, the individual may give to the Commissioner one *GST return for a tax period in respect of the entities if the entities are *members of the same *GST group.

(2) This section has effect despite section 31-5 (which is about who must give GST returns).

58-50 Representatives to give GST returns for incapacitated entities

(1) A *representative of an *incapacitated entity must give to the Commissioner a *GST return for a tax period applying to the incapacitated entity if:

(a) the incapacitated entity has failed to give to the Commissioner a GST return for a tax period; and

(b) the Commissioner, in writing, directs the representative to give to the Commissioner a GST return.

Note: Deciding to direct a representative of an incapacitated entity to give to the Commissioner a GST return is a reviewable GST decision (see Subdivision 110-F in Schedule 1 to the Taxation Administration Act 1953).

(2) The tax period may be any tax period applying to the *incapacitated entity, including:

(a) a tax period that ends before the *representative became a representative of the incapacitated entity; and

(b) a tax period that starts after the representative became a representative of the incapacitated entity.

(3) The *GST return by the *representative:

(a) must be in accordance with the requirements of Division 31 as they would apply in relation to the *incapacitated entity except to the extent that the direction under paragraph (1)(b) modifies those requirements; and

(b) must be given to the Commissioner within the period specified in the direction.

(4) Without limiting the matters that the Commissioner may take into account in deciding whether to give a direction under paragraph (1)(b), the Commissioner must take into account:

(a) the likelihood of a dividend to unsecured creditors of the *incapacitated entity being declared, and the likely amounts of any such dividend; and

(b) the likelihood that, if the Commissioner were given the *GST return, it would reveal a liability to pay an amount to the Commissioner under the *GST law; and

(c) the availability of books and records that would make it possible to prepare the GST return; and

(d) the likelihood that the cost to the *representative of preparing the GST return would be covered by the incapacitated entity's assets without resulting in an unreasonable impact on the other creditors of the incapacitated entity.

(5) The *incapacitated entity is taken to have complied with Division 31 in relation to giving a *GST return for a tax period if the *representative gives to the Commissioner a return for the tax period in accordance with this section.

(6) A direction under paragraph (1)(b) is not a legislative instrument.

(7) This section has effect despite section 31-5 (which is about who must give GST returns).

58-55 Incapacitated entities not required to give GST returns in some cases

(1) An *incapacitated entity is not required to give a *GST return for a tax period if:

(a) the entity's *net amount for the tax period is zero; and

(b) the entity does not have an *increasing adjustment that is attributable to the tax period; and

(c) the entity is not liable for GST that is attributable to the tax period.

(2) This section has effect despite section 31-5 (which is about who must give GST returns).

58-60 Representative to notify Commissioner of certain liabilities etc.

(1) A *representative of an *incapacitated entity must notify the Commissioner, in the *approved form, of an amount of GST for which the entity is liable, or an *increasing adjustment that the entity has, if:

(a) the representative becomes aware, or could reasonably be expected to have become aware, of the amount of GST, or the adjustment; and

(b) the amount of GST, or the adjustment, has not been taken into account in any *GST return that has been given to the Commissioner; and

(c) the Commissioner has not been previously notified of the amount of GST, or the adjustment, under this section.

Note: Section 286-75 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for breach of this subsection.

(2) The notification must be given to the Commissioner before the day on which the *representative declares a dividend to unsecured creditors of the *incapacitated entity.

(3) This section does not apply if the *representative is a representative of a kind that does not have the capacity to declare dividends to unsecured creditors of the *incapacitated entity.

(4) This section does not apply in circumstances determined by the Commissioner under subsection (5).

(5) The Commissioner may, by legislative instrument, determine circumstances in which this section does not apply.

58-65 Money available to meet representative's liabilities

A *representative of an *incapacitated entity who is liable to pay an amount because of this Division is authorised and required to apply any money which the representative receives in his or her capacity as that representative in order to pay the liability.

58-70 Protection for actions of representative

A *representative of an *incapacitated entity is not liable to civil or criminal proceedings in relation to an act done, or omitted to be done, in good faith, in the performance or purported performance, or exercise or purported exercise, of the representative's duties or powers under, or in relation to, the *GST law.