Income Tax Assessment Act 1997

CHAPTER 2 - LIABILITY RULES OF GENERAL APPLICATION  

PART 2-5 - RULES ABOUT DEDUCTIBILITY OF PARTICULAR KINDS OF AMOUNTS  

Division 26 - Some amounts you cannot deduct, or cannot deduct in full  

Operative provisions  

SECTION 26-52   Bribes to foreign public officials  

26-52(1)    
You cannot deduct under this Act a loss or outgoing you incur that is a ^* bribe to a foreign public official.

26-52(2)    

An amount is a bribe to a foreign public official to the extent that:

(a)    you incur the amount in, or in connection with:

(i) providing a benefit to another person; or

(ii) causing a benefit to be provided to another person; or

(iii) offering to provide, or promising to provide, a benefit to another person; or

(iv) causing an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and

(b)    the benefit is not legitimately due to the other person (see subsection (6) ); and

(c)    you incur the amount with the intention of influencing a ^* foreign public official (who may or may not be the other person) in the exercise of the official ' s duties as a foreign public official in order to:

(i) obtain or retain business; or

(ii) obtain or retain an advantage in the conduct of business that is not legitimately due to you, or another person, as the recipient, or intended recipient, of the advantage in the conduct of business (see subsection (7) ).

The benefit may be any advantage and is not limited to property.

26-52(2A)    

For the purposes of subsection (2) , disregard whether business, or a business advantage, was actually obtained or retained.

Payments that written law of foreign public official ' s country requires or permits

26-52(3)    

An amount is not a bribe to a foreign public official if, assuming the benefit had been provided, and all related acts had been done, in the *foreign public official ' s country, a written law of that country would have required or permitted the provision of the benefit.

Facilitation payments

26-52(4)    

An amount is not a bribe to a foreign public official if:

(a)    the value of the benefit is of a minor nature; and

(b)    the amount is incurred for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature.

26-52(5)    
For the purposes of this section, a routine government action is an action of a ^* foreign public official that:

(a)    is ordinarily and commonly performed by the official; and

(b)    is covered by any of the following subparagraphs:

(i) granting a permit, licence or other official document that qualifies a person to do business in a foreign country or in a part of a foreign country;

(ii) processing government papers such as a visa or work permit;

(iii) providing police protection or mail collection or delivery;

(iv) scheduling inspections associated with contract performance or related to the transit of goods;

(v) providing telecommunications services, power or water;

(vi) loading and unloading cargo;

(vii) protecting perishable products, or commodities, from deterioration;

(viii) any other action of a similar nature; and

(c)    does not involve a decision about:

(i) whether to award new business; or

(ii) whether to continue existing business with a particular person; or

(iii) the terms of new business or existing business; and

(d)    does not involve encouraging a decision about:

(i) whether to award new business; or

(ii) whether to continue existing business with a particular person; or

(iii) the terms of new business or existing business.

Benefit not legitimately due

26-52(6)    

In working out if a benefit is not legitimately due to another person in a particular situation, disregard the following:

(a)    

the fact that the benefit may be, or be perceived to be, customary, necessary or required in the situation;

(b)    the value of the benefit;

(c)    any official tolerance of the benefit.

Advantage in the conduct of business that is not legitimately due

26-52(7)    

In working out if an advantage in the conduct of business is not legitimately due in a particular situation, disregard the following:

(a)    the fact that the advantage may be customary, or perceived to be customary, in the situation;

(b)    the value of the advantage;

(c)    any official tolerance of the advantage.

Duties of foreign public official

26-52(8)    
The duties of a ^* foreign public official are any authorities, duties, functions or powers that:

(a)    are conferred on the official; or

(b)    the official holds himself or herself out as having.