Income Tax Assessment Act 1936

PART I - PRELIMINARY  

SECTION 1  

1   SHORT TITLE  
This Act may be cited as the Income Tax Assessment Act 1936.

FORMER SECTION 5  

5   PARTS  
(Repealed by No 164 of 1973)

SECTION 6   INTERPRETATION  

6(1AA)    


So far as a provision of the Income Tax Assessment Act 1936 gives an expression a particular meaning, the provision does not also have effect for the purposes of the Income Tax Assessment Act 1997 (the 1997 Act ), or for the purposes of Schedule 1 to the Taxation Administration Act 1953 , except as provided in the 1997 Act or in that Schedule.

6(1)    


In this Act, unless the contrary intention appears:

100% subsidiary
has the same meaning as in the Income Tax Assessment Act 1997 .

accrued leave transfer payment
(Repealed by No 56 of 2010)

adjusted fringe benefits total
, of a taxpayer for a year of income, has the meaning given by clause 4 of Schedule 3 to the A New Tax System (Family Assistance) Act 1999 .

adjusted taxable income for rebates
means adjusted taxable income (within the meaning of the A New Tax System (Family Assistance) Act 1999 , disregarding clauses 3 and 3A of Schedule 3 to that Act).

AFOF
means an Australian venture capital fund of funds within the meaning of subsection 118-410(3) of the Income Tax Assessment Act 1997 .

agent
: this Act applies to some entities (within the meaning of the Income Tax Assessment Act 1997 ) that are not agents in the same way as it applies to agents: see section 960-105 of the Income Tax Assessment Act 1997 .

Agriculture Secretary
(Repealed by No 110 of 2014)

allowable deduction
has the same meaning as deduction has in the Income Tax Assessment Act 1997 .

AMIT
(short for attribution managed investment trust ) has the same meaning as in the Income Tax Assessment Act 1997 .

amount paid-up
on a share means the amount (if any), including any premium, paid on that share.

amount unpaid
on a share means the amount (if any) unpaid on that share.

apportionable deductions
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

approved form
has the meaning given by section 388-50 in Schedule 1 to the Taxation Administration Act 1953 .

approved stock exchange
has the same meaning as in the Income Tax Assessment Act 1997 .

Arts Department
(Repealed by No 110 of 2014)

Arts Minister
(Repealed by No 110 of 2014)

Arts Secretary
(Repealed by No 110 of 2014)

assessable income
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

assessment
means:


(a) the ascertainment:


(i) of the amount of taxable income (or that there is no taxable income); and

(ii) of the tax payable on that taxable income (or that no tax is payable); and

(iii) of the total of a taxpayer ' s tax offset refunds for a year of income (or that the taxpayer can get no such refunds for the year of income); or
Note 1:

A taxpayer does not have a taxable income if the taxpayer ' s deductions equal or exceed the taxpayer ' s assessable income: see subsection 4-15(1) of the Income Tax Assessment Act 1997 .

Note 2:

A taxpayer may have no tax payable on an amount of taxable income if that income is below the tax-free threshold or if the taxpayer ' s tax offsets reduce the taxpayer ' s basic income tax liability to nil.


(b) (Repealed by No 53 of 2016)


(c) for a taxpayer that is the trustee of a unit trust that is a public trading trust (within the meaning of section 102R ) - the ascertainment:


(i) of the net income of the trust (within the meaning of section 102M ) (or that there is no net income); and

(ii) of the tax payable on that net income (or that no tax is payable); and

(iii) of the total of a taxpayer ' s tax offset refunds for a year of income (or that the taxpayer can get no such refunds for the year of income); or


(d) for a taxpayer that is the trustee of a trust estate (other than a trustee to which paragraph (b) or (c) applies or the trustee of a complying superannuation fund, a non-complying superannuationfund, a complying approved deposit fund, a non-complying approved deposit fund or a pooled superannuation trust) - the ascertainment:


(i) of so much of the net income of the trust estate as is net income in respect of which the trustee is liable to pay tax (or that there is no net income in respect of which the trustee is so liable); and

(ii) of the tax payable on that net income (or that no tax is payable); and

(iii) of the total of a taxpayer ' s tax offset refunds for a year of income (or that the taxpayer can get no such refunds for the year of income); or


(e) the ascertainment of the amount of interest payable under section 102AAM (about distributions from non-resident trust estates); or


(f) (Repealed by No 15 of 2017)


(g) (Repealed by No 4 of 2018)


(h) the ascertainment of the amount of income tax payable on the no-TFN contributions income as defined by section 295-610 of the Income Tax Assessment Act 1997 (or that no tax is payable); or


(i) (Repealed by No 70 of 2015)


(j) the ascertainment of the amount payable (or that no amount is payable) under the following:


(i) subsection 276-105(2) of the Income Tax Assessment Act 1997 (AMIT trustee taxed on amounts attributed to foreign resident members);

(ii) subsection 276-340(2) of that Act (AMIT trustee taxed on trust component deficit of character relating to tax offset);

(iii) subsection 276-405(2) of that Act (AMIT trustee taxed on shortfall in determined member components of character relating to assessable income);

(iv) subsection 276-410(2) of that Act (AMIT trustee taxed on excess in determined member components of character relating to tax offset);

(v) subsection 276-415(2) of that Act (AMIT trustee taxed on amounts of determined trust component that are not reflected in member components);

(vi) subsection 276-420(2) of that Act (AMIT trustee taxed on amounts of under of character relating to assessable income not properly carried forward);

(vii) subsection 276-425(2) of that Act (AMIT trustee taxed on amounts of over of character relating to tax offset not properly carried forward); or


(k) the ascertainment of the amount payable under subsection 177P(1) (diverted profits tax).

attribution managed investment trust
: see AMIT .

Australia
has the same meaning as in the Income Tax Assessment Act 1997 .

Australian superannuation fund
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

bank or banker
includes, but is not limited to, a body corporate that is an ADI (authorised deposit-taking institution) for the purposes of the Banking Act 1959 .

base interest rate
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

basic income tax liability
has the meaning given by section 4-10 of the Income Tax Assessment Act 1997 .

Board of Referees
(Repealed by No 216 of 1973)

business
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

capital gain
has the same meaning as in the Income Tax Assessment Act 1997 .

capital loss
has the same meaning as in the Income Tax Assessment Act 1997 .

capital proceeds
has the same meaning as in the Income Tax Assessment Act 1997 .

CGT asset
has the same meaning as in the Income Tax Assessment Act 1997 .

CGT event
has the same meaning as in the Income Tax Assessment Act 1997 .

Chief Executive Centrelink
has the same meaning as in the Human Services (Centrelink) Act 1997 .

child
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

Commissioner
means the Commissioner of Taxation.

Commonwealth education or training payment
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

Commonwealth securities
(Repealed by No 64 of 2020)

company
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

complying approved deposit fund
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

complying superannuation fund
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

"concessional deductions"
(Repealed by No 107 of 1989)

consolidated group
has the same meaning as in the Income Tax Assessment Act 1997 .

constituent document
, in relation to a company, means the memorandum and articles of association of the company, or any rules or other document constituting the company or governing its activities.

corporate limited partnership
has the meaning given by section 94D .

corporate tax entity
has the same meaning as in the Income Tax Assessment Act 1997 .

corporate tax rate
has the same meaning as in the Income Tax Assessment Act 1997 .

cost base
of a CGT asset has the same meaning as in the Income Tax Assessment Act 1997 .

creditable acquisition
has the meaning given by section 195-1 of the GST Act.

"daughter"
(Repealed by No 135 of 1990)

debenture
, in relation to a company, includes debenture stock, bonds, notes and any other securities of the company, whether constituting a charge on the assets of the company or not.

debt interest
has the same meaning as in the Income Tax Assessment Act 1997 .

deductible gift recipient
has the meaning given by the Income Tax Assessment Act 1997 .

Defence Department
(Repealed by No 145 of 2010)

Defence Minister
(Repealed by No 145 of 2010)

Defence Secretary
(Repealed by No 145 of 2010)

demerged entity
has the meaning given by section 125-70 of the Income Tax Assessment Act 1997 .

demerger
has the meaning given by section 125-70 of the Income Tax Assessment Act 1997 .

demerger allocation
means:


(a) the total market value of the allocation represented by the ownership interests issued by the demerged entity in itself under a demerger to the owners of ownership interests in the head entity of the demerger group; or


(b) the total market value of the allocation represented by the ownership interests disposed of by a member of a demerger group under a demerger to the owners of ownership interests in the head entity; or


(c) the total of both of those market values.

demerger dividend
means that part of a demerger allocation that is assessable as a dividend under subsection 44(1) or that would be so assessable apart from subsections 44(3) and (4) .

demerger group
has the meaning given by section 125-65 of the Income Tax Assessment Act 1997 .

demerger subsidiary
has the meaning given by section 125-65 of the Income Tax Assessment Act 1997 .

demerging entity
has the meaning given by section 125-70 of the Income Tax Assessment Act 1997 .

depreciating asset
has the same meaning as in the Income Tax Assessment Act 1997 .

Deputy Commissioner
means a Deputy Commissioner of Taxation.

distribution
, when used in a franking context, has the same meaning as in the Income Tax Assessment Act 1997 .

diverted profits tax
has the meaning given by the Income Tax Assessment Act 1997 .

dividend
includes:


(a) any distribution made by a company to any of its shareholders, whether in money or other property; and


(b) any amount credited by a company to any of its shareholders as shareholders;


(c) (Repealed by No 63 of 1998)

but does not include:


(d) moneys paid or credited by a company to a shareholder or any other property distributed by a company to shareholders (not being moneys or other property to which this paragraph, by reason of subsection (4), does not apply or moneys paid or credited, or property distributed for the redemption or cancellation of a redeemable preference share), where the amount of the moneys paid or credited, or the amount of the value of the property, is debited against an amount standing to the credit of the share capital account of the company; or


(e) moneys paid or credited, or property distributed, by a company for the redemption or cancellation of a redeemable preference share if:


(i) the company gives the holder of the share a notice when it redeems or cancels the share; and

(ii) the notice specifies the amount paid-up on the share immediately before the cancellation or redemption; and

(iii) the amount is debited to the company ' s share capital account;
except to the extent that the amount of those moneys or the value of that property, as the case may be, is greater than the amount specified in the notice as the amount paid-up on the share; or


(f) a reversionary bonus on a life assurance policy.

Note:

Subsection (4) sets out when paragraph (d) of this definition does not apply.

dividend (withholding) tax
(Repealed by No 85 of 1967)

Division 230 financial arrangement
has the same meaning as in the Income Tax Assessment Act 1997 .

dual resident investment company
has the meaning given by section 6F .

dwelling
has the meaning given by the Income Tax Assessment Act 1997 .

Education Department
(Repealed by No 110 of 2014)

Education Secretary
(Repealed by No 15 of 2017)

eligible taxable income
has the meaning given by section 102AD .

Employment Department
(Repealed by No 41 of 2011)

Employment Minister
(Repealed by No 41 of 2011)

Employment Secretary
has the meaning given by the Income Tax Assessment Act 1997 .

employment termination payment
has the same meaning as in the Income Tax Assessment Act 1997 .

equity holder
has the same meaning as in the Income Tax Assessment Act 1997 .

equity interest
has the same meaning as in the Income Tax Assessment Act 1997 .

ESVCLP
means an early stage venture capital limited partnership within the meaning of subsection 118-407(4) of the Income Tax Assessment Act 1997 .

exempt entity
has the same meaning as in the Income Tax Assessment Act 1997 .

exempt income
has the meaning given by section 6-20 of the Income Tax Assessment Act 1997 .

exploration credit
has the same meaning as in the Income TaxAssessment Act 1997 .

exploration development incentive tax offset
(Repealed by No 15 of 2018)

Families Secretary
has the meaning given by the Income Tax Assessment Act 1997 .

family tier 1 threshold
(Repealed by No 11 of 2014)

farm management deposit
has the meaning given by the Income Tax Assessment Act 1997 .

FHSA
(Repealed by No 70 of 2015)

FHSA trust
(Repealed by No 70 of 2015)

FMD provider
has the meaning given by the Income Tax Assessment Act 1997 .

foreign superannuation fund
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

foreign tax
has the meaning given by section 6AB .

frankable distribution
has the same meaning as in the Income Tax Assessment Act 1997 .

franked part
of a distribution has the same meaning as in the Income Tax Assessment Act 1997 .

franking credit
has the same meaning as in the Income Tax Assessment Act 1997 .

franking debit
has the same meaning as in the Income Tax Assessment Act 1997 .

franking deficit tax
has the same meaning as in the Income Tax Assessment Act 1997 .

franking surplus
has the same meaning as in the Income Tax Assessment Act 1997 .

franks with an exempting credit
has the same meaning as in the Income Tax Assessment Act 1997 .

friendly society
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

friendly society dispensary
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

fringe benefit
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

full self-assessment taxpayer
, for a year of income (the current year ), means any of the following:


(a) a company;


(b) (Repealed by No 53 of 2016)


(c) the trustee of a trust that is a public trading trust in relation to the current year for the purposes of Division 6C of Part III ;


(d) the trustee of a complying approved deposit fund or a non-complying approved deposit fund in relation to the current year;


(e) the trustee of a complying superannuation fund or a non-complying superannuation fund in relation to the current year;


(f) the trustee of a pooled superannuation trust in relation to the current year.


(g) (Repealed by No 70 of 2015)

Note:

A corporate limited partnership is taken to be a company under section 94J , so it will fall within paragraph (a) of this definition.

fund payment
has the same meaning as in the Income Tax Assessment Act 1997 .

general insurance company
has the same meaning as in the Income Tax Assessment Act 1997 .

general insurance policy
has the same meaning as in the Income Tax Assessment Act 1997 .

general interest charge
means the charge worked out under Part IIA of the Taxation Administration Act 1953 .

general partner
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

GST Act
means the A New Tax System (Goods and Services Tax) Act 1999 .

head company
of a consolidated group or a MEC group has the same meaning as in the Income Tax Assessment Act 1997 .

head entity
of a demerger group has the meaning given by section 125-65 of the Income Tax Assessment Act 1997 .

Health Department
(Repealed by No 110 of 2014)

Health Minister
has the meaning given by the Income Tax Assessment Act 1997 .

Health Secretary
(Repealed by No 110 of 2014)

hold
, in relation to an RSA, has the same meaning as in the Retirement Savings Accounts Act 1997 .

holder
, in relation to an RSA, has the same meaning as in the Retirement Savings Accounts Act 1997 .

Housing Secretary
(Repealed by No 110 of 2014)

Immigration Department
(Repealed by No 110 of 2014)

Immigration Minister
(Repealed by No 110 of 2014)

Immigration Secretary
(Repealed by No 110 of 2014)

income from personal exertion
or income derived from personal exertion means income consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, superannuation allowances, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered, the proceeds of any business carried on by the taxpayer either alone or as a partner with any other person, any amount received as a bounty or subsidy in carrying on a business, any amount that is included in the assessable income of the taxpayer by reason of section 393-10 of the Income Tax Assessment Act 1997 , the income from any property where that income forms part of the emoluments of any office or employment of profit held by the taxpayer, and any profit arising from the sale by the taxpayer of any property acquired by the taxpayer for the purpose of profit-making by sale or from the carrying on or carrying out of any profit-making undertaking or scheme, but does not include:


(a) interest, unless the taxpayer ' s principal business consists of the lending of money, or unless the interest is received in respect of a debt due to the taxpayer for goods supplied or services rendered by the taxpayer in the course of the taxpayer ' s business; or


(b) rents, dividends or non-share dividends.

income from property
or income derived from property means all income not being income from personal exertion.

income tax
means income tax imposed as such by any Act, as assessed under this Act, but, except in section 260 , does not include mining withholding tax or withholding tax.

income tax or tax
(Repealed by No 110 of 2014)

Indigenous land
has the same meaning as in the Income Tax Assessment Act 1997 .

Indigenous person
has the same meaning as in the Income Tax Assessment Act 1997 .

industrial, commercial or scientific equipment
means industrial, commercial or scientific equipment to the extent that an amount paid or credited as consideration for the use of the equipment, or for the right to use the equipment, is not rent from land (including rent from an interest in land or rent from fixtures on land).

insurance business
has the same meaning as in the Insurance Act 1973 .

insurance funds
, in relation to a company, means all the Australian statutory funds of the company and all other funds maintained by the company in respect of the life assurance business of the company.

interest income
, in relation to a taxpayer, means income consisting of interest, or a payment in the nature of interest, in respect of:


(a) money lent, advanced or deposited; or


(b) credit given; or


(c) any other form of debt or liability;

whether security is given or not, other than:


(d) an amount to the extent to which it is a return on an equity interest in a company; or


(e) interest derived by the taxpayer from a transaction directly related to the active conduct of a trade or business; or


(f) interest derived by the taxpayer from carrying on a banking business or any other business whose income is principally derived from the lending of money; or


(g) interest received by the taxpayer during a year of income from a foreign company, where:


(i) at any time during the year of income, the taxpayer had (or would have had, if the taxpayer were a company and a resident), a voting interest, within the meaning of section 334A , amounting to at least 10% of the voting power, within the meaning of that section, in that company; and

(ii) during the year of income or the preceding year of income, the company has not derived an amount of interest income exceeding 10% of the total profits derived by the company during the same year.

intermediary
(Repealed by No 32 of 2008 )

international tax sharing treaty
(Repealed by No 101 of 2013)

junior minerals exploration incentive tax offset
means a tax offset under Subdivision 418-B of the Income Tax Assessment Act 1997 .

life assurance company
has the meaning given to life insurance company by the Income Tax Assessment Act 1997 .

life assurance policy
has the meaning given to life insurance policy by the Income Tax Assessment Act 1997 .

life assurance premium
has the meaning given to life insurance premium by the Income Tax Assessment Act 1997 .

limited partner
has the same meaning as in the Income Tax Assessment Act 1997 .

limited partnership
has the same meaning as in the Income Tax Assessment Act 1997 .

liquidator
means the person who, whether or not appointed as liquidator, is the person required by law to carry out the winding-up of a company.

listed public company
has the same meaning as in the Income Tax Assessment Act 1997 .

Note:

For the meaning of listed public company in Schedule 2F to this Act, see section 272-135 in that Schedule.

live stock
(Repealed by No 101 of 2006)

loss carry back tax offset
has the same meaning as in the Income Tax Assessment Act 1997 .

loss year
has the same meaning as in the Income Tax Assessment Act 1997 .

managed investment trust
has the same meaning as in the Income Tax Assessment Act 1997 .

MEC group
has the same meaning as in the Income Tax Assessment Act 1997 .

medical expense rebate higher phase-in limit
(Repealed by No 11 of 2014)

medical expense rebate lower phase-in limit
(Repealed by No 11 of 2014)

Medicare levy
means Medicare levy imposed as such by any Act as assessed under this Act.

Medicare levy (fringe benefits) surcharge
has the meaning given by the Income Tax Assessment Act 1997 .

member
of a consolidated group or MEC group has the same meaning as in the Income Tax Assessment Act 1997 .

member of a family tax benefit (Part B) family without shared care
: a taxpayer is a member of a family tax benefit (Part B) family without shared care if:


(a) the taxpayer, or the taxpayer ' s spouse while being the taxpayer ' s partner (within the meaning of the A New Tax System (Family Assistance) Act 1999 ), is eligible for family tax benefit at the Part B rate (within the meaning of that Act); and


(b) clause 31 of Schedule 1 to that Act does not apply in respect of the Part B rate.

minerals
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

mining withholding tax
means income tax payable in accordance with section 128V .

mortgage
includes any charge, lien or encumbrance to secure the repayment of money.

mutual life assurance company
means a life assurance company the profits of which are divisible only among the policy holders.

natural resource
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997 .

necessary connection with Australia
(Repealed by No 168 of 2006 )

net capital gain
has the same meaning as in the Income Tax Assessment Act 1997 .