TAXATION ADMINISTRATION ACT 1953
Note: See section 3AA .Chapter 2 - Collection, recovery and administration of income tax
Note: A Commissioner ' s Remedial Power (CRP 2017/1) is relevant to this part of the tax law. Taxation Administration (Remedial Power - Foreign Resident Capital Gains Withholding) Determination 2017 (F2017L00992) modifies the operation of s 18-15 , 18-20 and 18-25 in Sch 1 to the Taxation Administration Act 1953 as follows:
To the extent that an entity ' s entitlement to a credit referred to in s 18-15 , 18-20 or 18-25 in Sch 1 to TAA is in respect of an amount paid to the Commissioner under Subdiv 14-D of Sch 1 to TAA, treat the entitlement as arising in the income year in which the transaction causing that application of Subdiv 14-D is recognised for income tax purposes for the entity. The modification applies in respect of transactions entered into on or after 1 July 2016.
An entity must treat a modification as not applying to it or any other entity if the modification would produce a less favourable result for it. The Commissioner is empowered by s 370-5 of Sch 1 to TAA to make modifications, by legislative instrument, to ensure the law is administered to achieve its intended purpose or object.
An entity (the recipient ) may apply in writing to the Commissioner for the refund of an amount if:
(a) another entity (the payer ):
(i) withheld an amount purportedly under Division 12 from a payment made to, or received for, the recipient; or
(ia) paid the amount to the Commissioner purportedly under Division 13 for an *alienated personal services payment in relation to which an amount is included in the recipient ' s assessable income year under section 86-15 of the Income Tax Assessment Act 1997 ; or
(ii) paid to the Commissioner an amount purportedly under Division 14 for a *non-cash benefit provided to, or received for, the recipient; or
(iii) paid to the Commissioner an amount purportedly under Subdivision 14-D for *capital proceeds provided to, or applied on behalf of, the recipient; and
(i) the amount was so withheld, or paid to the Commissioner, in error; or
(ii) in the case of an amount withheld from a payment of an amount purported to have been paid by way of * parental leave pay or *dad and partner pay - the amount paid was not lawfully so payable; and
(c) if subparagraph (a)(i), (ia) or (ii) applies - section 18-65 does not apply because the payer did not become aware of the matter mentioned in paragraph (b), or the recipient did not apply for a refund, as mentioned in subsection 18-65(1) ; and
(d) if subparagraph (a)(i) applies - the payer has already paid the withheld amount to the Commissioner.
For the purposes of this section, if an entity has paid an amount to the Commissioner purportedly under Subdivision 12A-C (about deemed payments by AMITs), treat the entity as having withheld the amount purportedly under Division 12 .
The Commissioner must refund the amount if the application sets out:
(a) if the recipient has a *tax file number - that tax file number; or
(b) if the recipient does not have a tax file number but was taken to have quoted a tax file number to the payer before the amount was withheld or paid to the Commissioner - the basis on which the recipient was taken to have quoted the tax file number; or
(c) if the payment or *non-cash benefit was in respect of a *Part VA investment made by the recipient in the course or furtherance of an *enterprise carried on by it - the recipient ' s *ABN;
and the Commissioner is satisfied that it would be fair and reasonable to refund the amount, having regard to:
(d) the circumstances that gave rise to the withholding obligation (if any); and
(e) the nature of the matter mentioned in paragraph (1)(b); and
(f) any other matter the Commissioner considers relevant.
A person who is dissatisfied with a decision under this section may object against the decision in the manner set out in Part IVC .