TAXATION ADMINISTRATION ACT 1953

SCHEDULE 1 - COLLECTION AND RECOVERY OF INCOME TAX AND OTHER LIABILITIES  

Note: See section 3AA .

Chapter 4 - Generic assessment, collection and recovery rules  

PART 4-25 - CHARGES AND PENALTIES  

Division 295 - Miscellaneous civil penalties  

Subdivision 295-B - Civil penalty for possession of tobacco without relevant documentation  

Guide to Subdivision 295-B

SECTION 295-75   POSSESSION OF TOBACCO WITHOUT RELEVANT DOCUMENTATION ETC.  

295-75(1)  
A person contravenes this subsection if:


(a) the person possesses a thing; and


(b) the thing is tobacco; and


(c) the place in which the person possesses the tobacco is in Australia but not in an external Territory; and


(d) the condition in subsection (2) is satisfied; and


(e) the weight of the tobacco equals or exceeds 2 kilograms.

295-75(2)  
For the purposes of paragraph (1)(d), the condition in this subsection is satisfied if:


(a) the person has not provided any of the following:


(i) a *tax invoice indicating how the person obtained the tobacco;

(ii) a bill of lading indicating how the person obtained the tobacco;

(iii) a customs declaration indicating how the person obtained the tobacco; or


(b) the person:


(i) has stated that the possession was engaged in on behalf of or at the request of another person; and

(ii) has not provided information enabling the other person to be identified and located.

295-75(3)  
A person is liable to a civil penalty if the person contravenes subsection (1).

Penalty: 100 penalty units.

295-75(4)  
Section 308-510 applies to this section in the same way that it applies to Division 308 .

295-75(5)  
Subsection (1) does not apply if:


(a) the person is an individual; and


(b) the person possesses the tobacco for his or her personal use.

295-75(6)  
Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:


(a) a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or


(b) a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

295-75(7)  
Subsection (1) does not apply if:


(a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or


(b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or


(c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 .

295-75(8)  
Subsection (1) does not apply if:


(a) the person has permission (within the meaning of the Excise Act 1901 ):


(i) to possess the tobacco; or

(ii) to move the tobacco; or


(b) the tobacco is covered by an authority under section 55 of that Act; or


(c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.

295-75(9)  
Subsection (1) does not apply if:


(a) any of the following circumstances exist:


(i) *excise duty has been paid on the tobacco;

(ii) *customs duty has been paid on the tobacco;

(iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

(iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or


(b) the person has reasonable grounds to suspect that any of those circumstances exist.

295-75(10)  
If person wishes to rely on subsection (5), (6), (7), (8) or (9) in civil penalty proceedings, the person bears an *evidential burden in relation to that matter.




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