Tax Laws Amendment (New Tax System for Managed Investment Trusts) Act 2016 (53 of 2016)
Schedule 3 Withholding MITs and fund payments
Taxation Administration Act 1953
11 After Division 12 in Schedule 1
Insert:
Division 12A - Distributions by AMITs (including deemed payments)
Table of Subdivisions
Guide to Division 12A
12A-A Distributions by AMITs relating to dividend, interest and royalties
12A-B Distributions by AMITs relating to Subdivision 12-H fund payments
12A-C Deemed payments by AMITs etc.
Guide to Division 12A
12A-1 What this Division is about
When a withholding MIT that is an AMIT gives a member an AMMA statement, the trustee is deemed to have made a payment to the member.
The deemed payment can flow through one or more custodians, giving rise to subsequent deemed payments.
Withholding liabilities under Subdivisions 12-F and 12-H do not apply in relation to deemed payments (although analogous liabilities may arise under Subdivision 12A-C).
AMIT trustees, custodians and other entities may be required to give notices etc. to recipients of such deemed payments.
Subdivision 12A-A - Distributions by AMITs relating to dividend, interest and royalties
Guide to Subdivision 12A-A
12A-5 What this Subdivision is about
Withholding liabilities under Subdivision 12-F do not apply in relation to deemed payments arising under Subdivision 12A-C relating to dividends, interest or royalties (although analogous liabilities may arise under Subdivision 12A-C).
AMIT trustees, custodians and other entities may be required to give notices etc. to recipients of such deemed payments.
Table of sections
Operative provisions
12A-10 Deemed payments - no obligation to withhold under Subdivision 12-F (dividend, interest and royalty payments)
12A-15 Dividend, interest or royalty payments relating to AMIT - requirement to give notice or make information available
12A-20 Failure to give notice or make information available under section 12A-15: administrative penalty
12A-25 Meaning of AMIT DIR payment
12A-30 Meaning of AMIT dividend payment
12A-35 Meaning of AMIT interest payment
12A-40 Meaning of AMIT royalty payment
Operative provisions
12A-10 Deemed payments - no obligation to withhold under Subdivision 12-F (dividend, interest and royalty payments)
(1) If the entity that receives a payment as mentioned in subsection 12-215(1), 12-250(1) or 12-285(1) is the trustee of an *AMIT, the entity need not withhold an amount under that subsection from the payment if the payment arises because of the operation of section 12A-205 (deemed payments).
Note: The trustee may have to pay the Commissioner an amount in respect of the deemed payment (see Subdivision 12A-C).
(2) Subsection (3) applies if:
(a) the entity that receives a payment as mentioned in subsection 12-215(1), 12-250(1) or 12-285(1) is a *custodian; and
(b) it received the payment from an *AMIT.
(3) The entity need not withhold an amount under that subsection from the payment mentioned in that subsection if:
(a) the payment arises because of the operation of section 12A-205 (deemed payments); or
(b) the payment is a *post-AMMA actual payment in respect of a payment that so arises.
Note: Either or both of the trustee of the AMIT concerned and the custodian may have to pay the Commissioner an amount in respect of the deemed payment (see Subdivision 12A-C).
(4) Disregard this section for the purposes of section 12A-15.
12A-15 Dividend, interest or royalty payments relating to AMIT - requirement to give notice or make information available
AMITs and custodians
(1) An entity that is an *AMIT or a *custodian must comply with subsection (2) if:
(a) the entity makes a payment to another entity (the recipient ) from which an amount would have been required to be withheld under Subdivision 12-F if:
(i) the entity were a company; and
(ii) the payment had been made to a foreign resident; and
(iii) the condition in either or both of paragraphs 12-210(a) or (b), of paragraphs 12-245(a) or (b) or of paragraphs 12-280(a) or (b) (as the case requires) were satisfied; and
(b) an amount is not required to be withheld from the payment because:
(i) the recipient is not a foreign resident; or
(ii) the recipient is a foreign resident carrying on business in Australia at or through a permanent establishment (within the meaning of subsection 128B(3F) of the Income Tax Assessment Act 1936) of the recipient in Australia, and the payment is attributable to the permanent establishment; and
(c) the payment is any of the following:
(i) a payment that arises because of the operation of section 12A-205 (deemed payments);
(ii) a *pre-AMMA actual payment in respect of a payment that so arises.
(2) The entity must:
(a) give to the recipient a written notice containing the details specified in subsection (3); or
(b) make those details available on a website in a way that the details are readily accessible to the recipient for not less than 5 continuous years.
(3) The notice must be given, or the details must be made available on a website, before or at the time when the payment is made and:
(a) must specify the part of the payment from which an amount would have been so required to have been withheld; and
(b) must specify the income year of the *AMIT to which that part relates.
Note: Failure to give the notice or make the details available as required by this section incurs an administrative penalty: see section 12A-20.
Other entities
(4) An entity that is not an *AMIT or a *custodian must comply with subsection (5) if:
(a) the entity receives a payment; and
(b) another entity (the subsequent recipient ) is or becomes entitled:
(i) to receive from the entity; or
(ii) to have the entity credit to the subsequentrecipient, or otherwise deal with on the subsequentrecipient's behalf or as the subsequentrecipient directs;
an amount attributable to the payment; and
(c) the entity would have been required to withhold an amount from the payment under subsection 12-215(1), 12-250(1) or 12-285(1) if the subsequentrecipient had been a foreign resident; and
(d) an amount is not required to be withheld from the payment because:
(i) the subsequentrecipient is not a foreign resident; or
(ii) the subsequentrecipient is a foreign resident carrying on business in Australia at or through a permanent establishment (within the meaning of subsection 128B(3F) of the Income Tax Assessment Act 1936) of the subsequentrecipient in Australia, and the payment is attributable to the permanent establishment; and
(e) the payment is any of the following:
(i) a payment that arises because of the operation of section 12A-205 (deemed payments);
(ii) a *pre-AMMA actual payment in respect of a payment that so arises.
(5) The entity must:
(a) give to the subsequentrecipient a written notice containing the details specified in subsection (6); or
(b) make those details available on a website in a way that the details are readily accessible to the subsequentrecipient for not less than 5 continuous years.
(6) The notice must be given, or the details must be made available on a website, before or at the time when the amount is paid or credited to the subsequentrecipient, or is dealt with on the subsequentrecipient's behalf or as the subsequentrecipient directs, and:
(a) must specify the part of the payment referred to in paragraph (4)(a) from which an amount would have been so required to have been withheld; and
(b) must specify the income year of the *AMIT to which that part relates.
Note: Failure to give the notice or make the details available as required by this section incurs an administrative penalty: see section 12A-20.
12A-20 Failure to give notice or make information available under section 12A-15: administrative penalty
An entity that:
(a) is required to give a notice, or make details available on a website, under section 12A-15 in relation to:
(i) a payment made to another entity; or
(ii) an amount paid or credited to, or dealt with on behalf of or as directed by, another entity; and
(b) fails to comply with that section;
is liable to pay to the Commissioner a penalty equal to the amount that would have been required to be withheld under this Subdivision (disregarding section 12-300) in relation to amounts attributable to the payment or amount if the notice had been given or the details had been made available.
Note: Division 298 in this Schedule contains machinery provisions for administrative penalties.
12A-25 Meaning of AMIT DIR payment
An AMIT DIR payment means any of the following:
(a) an *AMIT dividend payment;
(b) an *AMIT interest payment;
(c) an *AMIT royalty payment.
12A-30 Meaning of AMIT dividend payment
(1) This section applies to a trust that is an *AMIT for an income year.
(2) The object of this section is to ensure that the total of the *AMIT dividend payments that the trustee of the *AMIT makes in relation to the income year equals, as nearly as practicable, the amount mentioned in subsection (3).
(3) The amount is the total of the *determined member components for the *AMIT for the income year of the character of a dividend (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to a requirement to withhold under Subdivision 12-F.
(4) A payment (the actual or deemed payment ) that the trustee of a trust makes in relation to an income year is an AMIT dividend payment in relation to that year. However, the amount of the AMIT dividend payment is worked out under the following method statement, and may be:
(a) the amount of the actual or deemed payment; or
(b) the amount of the actual or deemed payment, increased or reduced as a result of the method statement.
Note: The payment by the trustee may be an actual payment, or a deemed payment under section 12A-205.
Method statement
Step 1. Work out what it is reasonable to expect will be the amount mentioned in subsection (3).
Step 2. The AMIT dividend payment is so much of the step 1 amount as is reasonable having regard to:
(a) the object of this section; and
(b) the amounts of any earlier AMIT dividend payments made by the trustee in relation to the income year; and
(c) the expected amounts of any later AMIT dividend payments the trustee expects to make in relation to the income year.
(5) The amount mentioned in subsection (3) and the expected amounts of any later *AMIT dividend payments are to be worked out on the basis of the trustee's knowledge when the payment is made.
(6) Subsection (5) does not apply if the payment is a payment arising because of the operation of section 12A-205 (deemed payments).
(7) However, the payment is not an AMIT dividend payment in relation to the income year if:
(a) the payment is a *post-AMMA actual payment in respect of another payment; and
(b) the other payment arises because of the operation of section 12A-205; and
(c) the other payment is an AMIT dividend payment.
12A-35 Meaning of AMIT interest payment
(1) This section applies to a trust that is an *AMIT for an income year.
(2) The object of this section is to ensure that the total of the *AMIT interest payments that the trustee of the *AMIT makes in relation to the income year equals, as nearly as practicable, the amount mentioned in subsection (3).
(3) The amount is the total of the *determined member components for the *AMIT for the income year of the character of interest (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to a requirement to withhold under Subdivision 12-F.
(4) To work out the amount of an AMIT interest payment , apply subsections 12A-30(4), (5), (6) and (7). For this purpose:
(a) treat references in those subsections to AMIT dividend payments as instead being references to AMIT interest payments; and
(b) treat the reference in subsection 12A-30(4) to "the amount mentioned in subsection (3)" as instead being a reference to "the amount mentioned in subsection 12A-35(3)".
12A-40 Meaning of AMIT royalty payment
(1) This section applies to a trust that is an *AMIT for an income year.
(2) The object of this section is to ensure that the total of the *AMIT royalty payments that the trustee of the *AMIT makes in relation to the income year equals, as nearly as practicable, the amount mentioned in subsection (3).
(3) The amount is the total of the *determined member components for the *AMIT for the income year of the character of a *royalty that is subject to a requirement to withhold under Subdivision 12-F.
(4) To work out the amount of an AMIT royalty payment , apply subsections 12A-30(4), (5), (6) and (7). For this purpose:
(a) treat references in those subsections to AMIT dividend payments as instead being references to AMIT royalty payments; and
(b) treat the reference in subsection 12A-30(4) to "the amount mentioned in subsection (3)" as instead being a reference to "the amount mentioned in subsection 12A-40(3)".
Subdivision 12A-B - Distributions by AMITs relating to Subdivision 12-H fund payments
Guide to Subdivision 12A-B
12A-100 What this Subdivision is about
Withholding liabilities under Subdivision 12-H do not apply in relation to deemed payments arising under Subdivision 12A-C analogous to fund payments under Subdivision 12-H (although analogous liabilities may arise under Subdivision 12A-C).
AMIT trustees, custodians and other entities may be required to give notices etc. to recipients of such deemed payments.
Table of sections
Operative provisions
12A-105 Deemed payments - no obligation to withhold under Subdivision 12-H
12A-110 Meaning of fund payment - AMITs
Operative provisions
12A-105 Deemed payments - no obligation to withhold under Subdivision 12-H
(1) The trustee mentioned in subsection 12-385(1) need not withhold an amount under that subsection from the payment mentioned in that subsection if the payment arises because of the operation of section 12A-205 (deemed payments).
Note: The trustee may have to pay the Commissioner an amount in respect of the deemed payment (see Subdivision 12A-C).
(2) The *custodian mentioned in subsection 12-390(1) need not withhold an amount under that subsection from the later payment mentioned in that subsection if:
(a) the later payment arises because of the operation of section 12A-205 (deemed payments); or
(b) the later payment is a *post-AMMA actual payment in respect of a payment of a kind mentioned in paragraph (a).
Note: Either or both of the trustee of the AMIT concerned and the custodian may have to pay the Commissioner an amount in respect of the deemed payment (see Subdivision 12A-C).
(3) The entity mentioned in subsection 12-390(4) need not withhold an amount under that subsection from the payment mentioned in that subsection if:
(a) the payment arises because of the operation of section 12A-205 (deemed payments); or
(b) the payment is a *post-AMMA actual payment in respect of a payment of a kind mentioned in paragraph (a).
Note: The entity may have to pay the Commissioner an amount in respect of the deemed payment (see Subdivision 12A-C).
(4) Disregard this section for the purposes of section 12-395.
12A-110 Meaning of fund payment - AMITs
(1) This section applies to a trust that is an *AMIT for an income year.
(2) The object of this section is to ensure that the total of the *fund payments that the trustee of the *AMIT makes in relation to the income year equals, as nearly as practicable, the amount mentioned in subsection (3).
(3) The amount is the sum of the following amounts:
(a) total of the *determined member components for the *AMIT for the income year of a character relating to assessable income, disregarding determined member components (the excluded components ) of any of the following characters:
(i) the character of a *discount capital gain from a *CGT asset that is not*taxable Australian property;
(ii) the character of a *capital gain (other than a discount capital gain) from a CGT asset that is not taxable Australian property;
(iii) the character of a dividend (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to, or exempted from, a requirement to withhold under Subdivision 12-F;
(iv) the character of interest (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to, or exempted from, a requirement to withhold under Subdivision 12-F;
(v) the character of a *royalty that is subject to, or exempted from, a requirement to withhold under Subdivision 12-F;
(vi) the character of *ordinary income, or *statutory income, from a source other than an *Australian source;
(vii) if a legislative instrument under subsection (4) specifies a character - that character;
(b) the total of each *capital loss of the AMIT from a *CGT event that happened in the income year to a CGT asset that is not taxable Australian property.
(4) The Commissioner may, by legislative instrument, specify one or more characters for the purposes of subparagraph (3)(a)(vii).
(5) A payment (the actual or deemed payment ) that the trustee of a trust makes in relation to an income year is a fund payment in relation to that year. However, the amount of the fund payment is worked out under the following method statement, and may be:
(a) the amount of the actual or deemed payment; or
(b) the amount of the actual or deemed payment, increased or reduced as a result of the method statement.
Note: The payment by the trustee may be an actual payment, or a deemed payment under section 12A-205.
Method statement
Step 1. Reduce the actual or deemed payment by so much of it that is attributable to the excluded components.
Step 2. Work out what it is reasonable to expect will be the amount mentioned in subsection (3).
Do so on the basis that a *capital gain from *taxable Australian property of the trust that was or would be reduced under step 3 of the method statement in subsection 102-5(1) of the Income Tax Assessment Act 1997 were double the amount it actually is.
Step 3. The fund payment is so much of the step 2 amount as is reasonable having regard to:
(a) the object of this section; and
(b) the step 1 amount; and
(c) the amounts of any earlier fund payments made by the trustee in relation to the income year; and
(d) the expected amounts of any later fund payments the trustee expects to make in relation to the income year.
(6) The amount mentioned in subsection (3) and the expected amounts of any later *fund payments are to be worked out on the basis of the trustee's knowledge when the payment is made.
(7) Subsection (6) does not apply if the payment is a payment arising because of the operation of section 12A-205 (deemed payments).
(8) However, the payment is not a fund payment in relation to the income year if:
(a) the payment (the actual payment ) is a *post-AMMA actual payment in respect of another payment; and
(b) the other payment arises because of the operation of section 12A-205; and
(c) the other payment is a fund payment.
(9) An amount is also not a fund payment in relation to the income year unless it is paid:
(a) during the income year; or
(b) within 3 months after the end of the income year; or
(c) within a longer period (starting at the end of the period referred to in paragraph (b) and not exceeding 3 years) allowed by the Commissioner.
(10) The Commissioner may allow a longer period as mentioned in paragraph (9)(c) only if the Commissioner is of the opinion that:
(a) if the other payment arises at a time because of the operation of section 12A-205 (deemed payments) - the *AMIT complied with subsection 276-455(1) of the Income Tax Assessment Act 1997 in respect of the income year (requirement to give AMMA statements within 3 months); or
(b) otherwise - the trustee was unable to make the payment during the income year, or within 3 months after the end of the income year, because of circumstances beyond the influence or control of the trustee.
Subdivision 12A-C - Deemed payments by AMITs etc.
Guide to Subdivision 12A-C
12A-200 What this Subdivision is about
When a withholding MIT that is an AMIT gives a member an AMMA statement, the trustee is deemed to have made a payment to the member.
The payment is generally the sum of the determined member components reflected in the statement that are of a character relating to assessable income, reduced by any previous actual payments related to those components.
The deemed payment can flow through one or more custodians, giving rise to subsequent deemed payments.
Table of sections
Operative provisions
12A-205 Issue of AMMA statement etc. deemed to be payment
12A-210 Post-AMMA actual payment and pre-AMMA actual payment in respect of deemed payment
12A-215 AMIT payment to the Commissioner in respect of deemed payments to offshore entities etc.
12A-220 Custodian payment to the Commissioner in respect of deemed payments to offshore entities etc.
Operative provisions
12A-205 Issue of AMMA statement etc. deemed to be payment
(1) This section applies if:
(a) an entity (the first recipient ) is or was a *member of a *withholding MIT in respect of an income year; and
(b) the withholding MIT is an *AMIT for the income year; and
(c) the AMIT gives the first recipient an *AMMA statement for the income year.
(2) For the purposes of this Part, Subdivision 840-M of the Income Tax Assessment Act 1997 and Division 11A of Part III of the Income Tax Assessment Act 1936:
(a) treat the trustee of the *AMIT as having made a payment (the first deemed payment ) of an amount to the first recipient at the time the AMIT gave the first recipient the *AMMA statement; and
(b) treat the amount of the first deemed payment as being the amount worked out as follows:
(i) first, work out the total of all the *determined member components of all the *members of the AMIT of a character relating to assessable income for the income year;
(ii) next, identify each of the *pre-AMMA actual payments (if any) made to those members in respect of all payments by the trustee to those members that arise from the operation of paragraph (a);
(iii) next, identify every *AMIT DIR payment (if any) and each *fund payment (if any) that arises from each such pre-AMMA actual payment;
(iv) next, reduce the result of subparagraph (i) by the sum of each such AMIT DIR payment and fund payment;
(v) next, work out how much of the result of subparagraph (iv) is referable to the first recipient.
(3) Also, for the purposes of Division 11A of Part III of the Income Tax Assessment Act 1936, treat the first recipient as having derived the first deemed payment just before the end of the income year to which the *AMMA statement relates.
(4) Subsection (5) applies if:
(a) the first recipient is a *custodian; and
(b) another entity (the subsequent recipient ):
(i) starts to have, at a time, an entitlement to an amount that is reasonably attributable to all or part of the first deemed payment; or
(ii) would start to have, at a time, such an entitlement if the first deemed payment were an actual payment of an amount.
(5) For the purposes of this Part, Subdivision 840-M of the Income Tax Assessment Act 1997 and Division 11A of Part III of the Income Tax Assessment Act 1936:
(a) treat the first recipient as having made a payment (the subsequent deemed payment ) of an amount to the subsequent recipient at that time; and
(b) treat the amount of the subsequent deemed payment as being the amount of the entitlement mentioned in subparagraph (4)(b)(i) or (ii); and
(c) treat the amount of the subsequent deemed payment as being attributable to the first deemed payment.
(6) Also, for the purposes of Division 11A of Part III of the Income Tax Assessment Act 1936, treat the subsequent recipient as having derived the subsequent deemed payment at the time the subsequent deemed payment arises.
(7) If:
(a) an entity is a subsequent recipient mentioned in subsection (4) (including as a result of a previous operation of this subsection); and
(b) subsection (5) applies with the result that a payment is treated as having been made to the entity; and
(c) the entity is a *custodian;
apply subsections (4), (5) and (6) again as if the entity were the first recipient mentioned in subsection (4).
Note: This means that the entity is treated under subsection (5) as having made a payment to another entity if the other entity has (or would have) an entitlement as mentioned in paragraph (4)(b).
12A-210 Post-AMMA actual payment and pre-AMMA actual payment in respect of deemed payment
(1) A payment that does not arise because of the operation of section 12A-205 is a post-AMMA actual payment in respect of a payment (the deemed payment ) that does arise because of the operation of that section if:
(a) the payment and the deemed payment are both attributable to the same *member component for the *AMIT mentioned in that section; and
(b) the actual payment is made at or after the time the deemed payment arises.
(2) A payment that does not arise because of the operation of section 12A-205 is a pre-AMMA actual payment in respect of a payment (the deemed payment ) that does arise because of the operation of that section if:
(a) the payment and the deemed payment are both attributable to the same *member component for the *AMIT mentioned in that section; and
(b) the actual payment is made before the time the deemed payment arises.
12A-215 AMIT payment to the Commissioner in respect of deemed payments to offshore entities etc.
(1) A trustee of a trust that is an *AMIT for an income year must pay an amount to the Commissioner if:
(a) the trust is a *withholding MIT in relation to the income year; and
(b) the trustee makes a payment (the deemed payment ) that arises because of the operation of section 12A-205; and
(c) the payment is made to an entity (the recipient ) that is:
(i) if the payment is a *fund payment - an entity covered by section 12-410; or
(ii) if the payment is an *AMIT DIR payment - an entity that is not an Australian resident.
Note 1: An entity may be covered by section 12-410 if the entity has an address outside Australia or payment is authorised to be made to a place outside Australia.
Note 2: If the payment is made to a recipient not covered by subparagraph (c)(i) or (ii), the trustee is required to give a notice to the recipient or publish information on a website setting out certain details about the payment: see sections 12-395 and 12A-15.
(2) The amount that the trustee must pay is equal to the amount that the trustee would, if the assumptions in subsection (3) were made, have had to withhold under:
(a) if the deemed payment is a *fund payment - section 12-385; or
(b) if the deemed payment is an *AMIT DIR payment - section 12-210, 12-245 or 12-280.
(3) The assumptions are that:
(a) the deemed payment had not arisen because of the operation of section 12A-205; and
(b) the deemed payment had instead been an actual payment; and
(c) if the deemed payment is an *AMIT DIR payment:
(i) where it corresponds to the character of a dividend (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to a requirement to withhold under Subdivision 12-F - the trust had been a company, and it had paid it as a dividend; or
(ii) where it corresponds to the character of interest (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to a requirement to withhold under Subdivision 12-F - it were the payment of interest; or
(iii) where it corresponds to the character of a *royalty that is subject to a requirement to withhold under Subdivision 12-F - it were the payment of a royalty; and
(d) if the deemed payment is an AMIT DIR payment - the condition in either or both of paragraphs 12-210(a) or (b), of paragraphs 12-245(a) or (b) or of paragraphs 12-280(a) or (b) (as the case requires) were satisfied.
(4) The trustee may recover from the recipient as a debt an amount that the trustee has paid to the Commissioner under subsection (1).
(5) The trustee is entitled to set off an amount that the trustee can recover from the recipient under subsection (4) against debts due by the trustee to the recipient.
12A-220 Custodian payment to the Commissioner in respect of deemed payments to offshore entities etc.
(1) A *custodian must pay an amount to the Commissioner if:
(a) the trustee of a trust that was an *AMIT for an income year and was a *withholding MIT in relation to the income year made a payment (the first deemed payment ) that:
(i) arose because of the operation of section 12A-205; and
(ii) was a *fund payment or an *AMIT DIR payment; and
(b) the custodian makes a payment (the subsequent deemed payment ) that arises because of the operation of section 12A-205; and
(c) the first deemed payment gave rise to the subsequent deemed payment, because of one or more operations of section 12A-205; and
(d) the subsequent deemed payment or part of it (the covered part )was covered by a notice or information under:
(i) if the first deemed payment was a fund payment - section 12-395; or
(ii) if the first deemed payment was an AMIT DIR payment - section 12A-15; and
(e) the subsequent deemed payment is made to an entity (the recipient ) that is:
(i) if the first deemed payment was a fund payment - covered by section 12-410; or
(ii) if the first deemed payment was an AMIT DIR payment - not an Australian resident.
Note 1: An entity may be covered by section 12-410 if the entity has an address outside Australia or payment is authorised to be made to a place outside Australia.
Note 2: If the payment is made to a recipient not covered by subparagraph (e)(i) or (ii), the trustee is required to give a notice to the recipient or publish information on a website setting out certain details about the payment: see sections 12-395 and 12A-15.
(2) The amount that the *custodian must pay is the amount that the custodian would, if the assumptions in subsection (3) were made, have had to withhold under:
(a) if the first deemed payment was a *fund payment - subsection 12-390(1); or
(b) if the first deemed payment was an *AMIT DIR payment - section 12-210, 12-245 or 12-280.
(3) The assumptions are that:
(a) the subsequent deemed payment had not arisen because of the operation of section 12A-205; and
(b) the subsequent deemed payment had instead been an actual payment; and
(c) if the first deemed payment was an *AMIT DIR payment:
(i) where the first deemed payment corresponded to the character of a dividend (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to a requirement to withhold under Subdivision 12-F - the *custodian had been a company, and it had paid the subsequent deemed payment as a dividend; or
(ii) where the first deemed payment corresponded to the character of interest (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to a requirement to withhold under Subdivision 12-F - the subsequent deemed payment were the payment of interest; or
(iii) where the first deemed payment corresponded to the character of a *royalty that is subject to a requirement to withhold under Subdivision 12-F - the subsequent deemed payment were the payment of a royalty; and
(d) if the first deemed payment was an AMIT DIR payment - the condition in either or both of paragraphs 12-210(a) or (b), of paragraphs 12-245(a) or (b) or of paragraphs 12-280(a) or (b) (as the case requires) were satisfied.
(4) The *custodian may recover from the recipient as a debt an amount that the custodian has paid to the Commissioner under subsection (1).
(5) The *custodian is entitled to set off an amount that the custodian can recover from the recipient under subsection (4) against debts due by the custodian to the recipient.