Taxation Administration Act 1953

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

Note: See section 3AA .

Chapter 3 - Collection, recovery and administration of other taxes  

PART 3-30 - DIVERTED PROFITS TAX  

Division 145 - Assessments of diverted profits tax  

Guide to Division 145  

SECTION 145-25   RESTRICTED DPT EVIDENCE  

145-25(1)  
*Restricted DPT evidence is not admissible in evidence in proceedings under Part IVC on an appeal to the Federal Court of Australia related to the *DPT assessment.

145-25(2)  
Restricted DPT evidence means information or documents that:

(a) the entity that is the subject of the *DPT assessment (or an associate (within the meaning of section 318 of the Income Tax Assessment Act 1936 ) of that entity), had in its custody or under its control at a time before, during or after the *period of review; and

(b) the Commissioner did not have in his or her custody or under his or her control at any time in the period of review.

145-25(3)  
Subsection (1) does not prevent *restricted DPT evidence from being admissible in evidence in the proceedings if:

(a) the Commissioner consents to the admission of the restricted DPT evidence in accordance with subsection (4); or

(b) the court in which the proceedings take place considers that the admission of the restricted DPT evidence is necessary in the interests of justice; or

(c) the restricted DPT evidence is expert evidence that:

(i) comes into existence after the *period of review; and

(ii) is based on evidence that the Commissioner had in his or her custody or under his or her control at any time in the period of review.

145-25(4)  
For the purposes of paragraph (3)(a), the Commissioner may give the consent if the Commissioner considers that it is reasonable to do so.

145-25(5)  
In making a decision under paragraph (3)(a) or (b), the Commissioner or the court must have regard to:

(a) whether, if the *restricted DPT evidence were not admissible in evidence in the proceedings, the remaining information or documents that are relevant to the proceedings are, or are likely to be, misleading; and

(b) whether it would have been reasonable for the entity that is the subject of the *DPT assessment (or the associate of that entity mentioned in paragraph (2)(a)) to have given the Commissioner the restricted DPT evidence within the *period of review.

145-25(6)  
The Commissioner must give a consent for the purposes of paragraph (3)(a) if failure to do so would have the effect, for the purposes of the Constitution, of making any tax or penalty incontestable.

145-25(7)  
A consent for the purposes of paragraph (3)(a) is to be in writing.

145-25(8)  
If the Commissioner gives a consent for the purposes of paragraph (3)(a), the Commissioner must give the entity that is the subject of the *DPT assessment a copy of the consent as soon as practicable afterwards.