TAXATION ADMINISTRATION ACT 1953

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

Note: See section 3AA .

Chapter 5 - Administration  

PART 5-45 - APPLICATION OF TAXATION LAWS TO CERTAIN ENTITIES  

Division 444 - Obligations of entities on behalf of other entities  

Subdivision 444-E - Indirect tax specific entities  

SECTION 444-90   GST GROUPS  

Joint and several liability

444-90(1)  


The *members of a *GST group are jointly and severally liable to pay any amount (an indirect tax amount ) that is payable under an *indirect tax law by the *representative member for the group. Indirect tax sharing agreements

444-90(1A)  


Despite subsection (1), if:


(a) before the *representative member of the group is required to give to the Commissioner a *GST return for a *tax period, an agreement (the indirect tax sharing agreement ) has been entered into between:


(i) the representative member; and

(ii) one or more other *members of the group (the contributing member ); and


(b) a particular amount (the contributing amount ) could be determined under the indirect tax sharing agreement for each contributing member in relation to that tax period; and


(c) the contribution amounts for each of the contributing members under the indirect tax sharing agreement represent a reasonable allocation among:


(i) the representative member; and

(ii) the contributing members;
of the total amount payable, under *indirect tax laws, for which the members of the group would be jointly or severally liable under subsection (1) in relation to that tax period;

then:


(d) if the contributing member leaves the group before the representative member of the group is required to give to the Commissioner a GST return for that tax period, and subsection (1B) applies - the contributing member is not liable under subsection (1) in relation to an indirect tax amount relating to that tax period; or


(e) otherwise - the contributing member ' s liability under subsection (1) in relation to that tax period is not to exceed that contribution amount.

444-90(1B)  


This subsection applies if:


(a) leaving the group was not part of an arrangement, a purpose of which was to prejudice the recovery by the Commissioner of the indirect tax amount; and


(b) before the day on which the *representative member is required to give to the Commissioner a *GST return for that tax period, the contributing member pays to the representative member:


(i) the contribution amount relating to that tax period; or

(ii) if the contribution amount cannot be determined at the time of the payment - an amount that is a reasonable estimate of the contribution amount.

444-90(1C)  


Subsection (1A) does not apply if:


(a) the indirect tax sharing agreement was entered into as part of an arrangement; and


(b) a purpose of the arrangement was to prejudice the recovery by the Commissioner of the indirect tax amount.

444-90(1D)  


Susbection (1A) does not apply if:


(a) the Commissioner gives the *representative member of the group written notice under this subsection in relation to the indirect tax sharing agreement (whether before, when or after an indirect tax amount to which the agreement relates becomes payable); and


(b) the notice requires the representative member to give the Commissioner a copy of the agreement in the *approved form within 14 days after the notice is given; and


(c) the Commissioner does not receive a copy of the agreement by the time required.

444-90(1E)  


Subsection (1A) does not apply if, apart from this subsection, the requirements of subsection (1A) would be satisfied in relation to 2 or more agreements:


(a) that were entered into by the *representative member; and


(b) that relate to the same tax period.

Effect of prohibitions on certain arrangements

444-90(2)  
Subsection (1) does not apply to a *member of a *GST group if an *Australian law has the effect of prohibiting the member from entering into any *arrangement under which the member becomes subject to the liability referred to in that subsection.

444-90(3)  
However, a *member to which subsection (2) applies remains liable for any amount payable under an *indirect tax law by the *representative member for the group, to the extent that the liability arises from an act or omission of the member to which subsection (2) applies. Criminal liability of members of GST groups

444-90(4)  
Any offence against an *indirect tax law that is committed by the *representative member for a *GST group is taken to have been committed by each of the *members of the group.

444-90(5)  
In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (4), it is a defence if the entity proves that the entity:


(a) did not aid, abet, counsel or procure the relevant act or omission; and


(b) was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).

Note 1:

The defence in subsection (5) does not apply in relation to offences under Part 2.4 of the Criminal Code.

Note 2:

A defendant bears a legal burden in relation to the matters in subsection (5): see section 13.4 of the Criminal Code.



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