INCOME TAX ASSESSMENT ACT 1936

PART VIII - MISCELLANEOUS  

SECTION 252   PUBLIC OFFICER OF COMPANY  

252(1)  


Every company carrying on business in Australia, or deriving in Australia income from property, shall at all times, unless exempted by the Commissioner, be represented for the purposes of this Act by a public officer duly appointed by the company or by its duly authorized agent or attorney, and with respect to every such company and public officer the following provisions shall apply:


(a) The company, if it has not appointed a public officer before the commencement of this Act, shall appoint a public officer within three months after the commencement of this Act or after the company commences to carry on business or derive income in Australia.


(b) The company shall keep the office of the public officer constantly filled.


(c) No appointment of a public officer shall be deemed to be duly made until after notice thereof in writing, specifying the name of the officer and an address for service upon the officer has been given to the Commissioner.


(d) The company shall duly appoint a public officer when and as often as such an appointment becomes necessary.


(e) Service of any document at the address for service, or on the public officer of the company, shall be sufficient service upon the company for all the purposes of this Act or the regulations, and if at any time there is no public officer then service upon any person acting or appearing to act in the business of the company shall be sufficient.


(f) The public officer shall be answerable for the doing of all such things as are required to be done by the company under this Act or the regulations, and in case of default shall be liable to the same penalties.


(g) Everything done by the public officer which the officer is required to do in the officer ' s representative capacity shall be deemed to have been done by the company. The absence or non-appointment of a public officer shall not excuse the company from the necessity of complying with any of the provisions of this Act or the regulations, or from any penalty for refusal or failure to comply therewith, but the company shall be liable to the provisions of this Act as if there were no requirement to appoint a public officer.


(h) Any notice given to or requisition made upon the public officer shall be deemed to be given to or made upon the company.


(i) Any proceedings under this Act taken against the public officer shall be deemed to have been taken against the company, and the company shall be liable jointly with the public officer for any penalty imposed upon the officer.


(j) (Repealed by No 180 of 2012)

252(2)  


A person is not capable of being a public officer of a company at a particular time unless the person:


(a) is a natural person who has attained the age of 18 years; and


(b) is ordinarily resident in Australia; and


(c) is capable of understanding the nature of the person ' s appointment as the public officer of the company.

252(3)  


A company that contravenes paragraph (1)(d) commits, in respect of each day on which it contravenes that paragraph (including the day of a conviction of an offence against this subsection or any subsequent day), an offence punishable on conviction by a fine not exceeding 1 penalty unit.

252(4)  


An offence under subsection (3) is an offence of strict liability.

252(5)  


A reference in subsection (1) (other than in paragraph (a)) to this Act or the regulations includes a reference to Part III of the Taxation Administration Act 1953 to the extent to which that Part of that Act relates to this Act or the regulations.

252(6)  
(Repealed by No 2 of 2015)

SECTION 252A   PUBLIC OFFICER OF TRUST ESTATE  

252A(1)  


Where, at any time after the expiration of the period of 90 days after the commencement of this section:


(a) any business of a trust estate is carried on in Australia or any income from property (not being solely income in respect of which tax is payable under Division 11A of Part III ) is derived by a trust estate from sources in Australia;


(b) there is not a trustee of the trust estate who is a resident;


(c) there is not in force in relation to the trust estate an exemption granted by the Commissioner under subsection (3); and


(d) there is not in force in relation to the trust estate an appointment of a public officer made in accordance with subsection (5),

each person who, at that time, is a trustee of the trust estate is, in respect of each day on which the circumstances set out in paragraphs (a), (b), (c) and (d) are in existence (including the day of a conviction of an offence against this subsection or any subsequent day), guilty of an offence punishable on conviction by a fine not exceeding 1 penalty unit.

252A(1A)  


An offence under subsection (1) is an offence of strict liability.

252A(2)  
A reference in subsection (1) to the period of 90 days after the commencement of this section shall, in the application of that subsection in relation to a trust estate that, before the commencement of this section, did not carry on any business in Australia or derive income from property (not being solely income in respect of which tax is payable under Division 11A of Part III ) from sources in Australia, be read as a reference to the period of 90 days after the date on which any business of the trust estate is commenced to be carried on in Australia, or the date on which the trust estate commences to derive such income from sources in Australia, whichever first occurs.

252A(2A)  


A person is not capable of being a public officer of a trust estate at a particular time unless the person:


(a) is a natural person who has attained the age of 18 years; and


(b) is ordinarily resident in Australia; and


(c) is capable of understanding the nature of the person's appointment as the public officer of the trust estate.

252A(3)  


The Commissioner may, by writing signed by him or her, grant to the trustee of a trust estate an exemption from the provisions of subsection (1) in relation to the trust estate.

252A(4)  
An exemption under subsection (3) may be granted unconditionally or on such conditions as the Commissioner thinks fit and may be granted without limitation as to time or may be granted in respect of a period specified in the exemption.

252A(5)  
An appointment of a public officer of a trust estate for the purposes of this section shall be made by giving notice in writing to the Commissioner:


(a) that is signed by a trustee of the trust estate or by a duly authorized agent or attorney of a trustee of a trust estate; and


(b) that specifies the name of the public officer and an address in Australia for service upon the public officer of any documents that are required or permitted by or under this Act or the regulations to be served upon the public officer of the trust estate.

252A(6)  


The appointment of a public officer of a trust estate ceases to be in force if the public officer dies or lodges with the Commissioner a notice of the officer's resignation as public officer of the trust estate.

252A(7)  
Where, by or under this Act or the regulations:


(a) a document is permitted to be served upon or given to the trustee of a trust estate; or


(b) a requisition is permitted or required to be made upon the trustee of a trust estate,

that document shall be deemed to have been served upon or given to the trustee if it is served upon the public officer of the trust estate or at the address for service of the public officer of the trust estate, or that requisition shall be deemed to have been made upon the trustee if it is made upon the public officer of the trust estate, as the case may be.

252A(8)  
A reference in subsection (7) to the service of a document upon the public officer of a trust estate, or the making of a requisition upon the public officer of a trust estate, shall, if there is not in force an appointment under this section of a public officer in relation to the trust estate, be read as a reference to any person acting or appearing to act in the business of the trust estate.

252A(9)  
The public officer of a trust estate shall be answerable for the doing of all such things as are required to be done by the trustee of the trust estate under this Act or the regulations, and in case of default shall be liable to the same penalties.

252A(10)  
Where any proceedings for an offence against this Act or the regulations are taken against the public officer, those proceedings shall be deemed to have also been taken against the trustee or trustees of the trust estate and the trustee or trustees shall be liable jointly with the public officer for any penalty in respect of the offence.

252A(11)  
Notwithstanding the preceding provisions of this section and without affecting any of the obligations or liabilities of the public officer of a trust estate, any notice, process or proceeding that, under this Act or the regulations, may be given to, served upon or taken against the trustee or public officer of the trust estate may, if the Commissioner thinks fit, be given to, served upon or taken against any agent or attorney of the trustee of the trust estate and that agent or attorney shall have the same liability in respect of that notice, process or proceeding as the trustee or public officer would have had if it had been given to, served upon or taken against the trustee or public officer.

252A(12)  


Everything done by the public officer of a trust estate that the officer is required to do in the officer's capacity of public officer shall be deemed to have been done by the trustee of the trust estate.

252A(13)  


The absence or non-appointment of a public officer shall not excuse the trustee of a trust estate from the necessity of complying with any of the provisions of this Act or the regulations, or from any penalty for refusal or failure to comply with any of those provisions, but the trustee shall be liable to the provisions of this Act and the regulations as if there were no requirement to appoint a public officer.

252A(14)  


A reference in this section to this Act or the regulations includes a reference to Part III of the Taxation Administration Act 1953 to the extent to which that Part of that Act relates to this Act or the regulations.

252A(15)  
(Repealed by No 2 of 2015)

SECTION 253   253   NOTIFYING AND SERVING COMPANIES  


For the purposes of this Act, or a regulation under this Act, if the Commissioner thinks fit, a notice or process may be given to, or served on, a company by giving the notice to, or serving the process on:


(a) a director, the secretary or another officer of the company; or


(b) an attorney or agent of the company.

SECTION 254   AGENTS AND TRUSTEES  

254(1)  
With respect to every agent and with respect also to every trustee, the following provisions shall apply:


(a) He or she shall be answerable as taxpayer for the doing of all such things as are required to be done by virtue of this Act in respect of the income, or any profits or gains of a capital nature, derived by him or her in his or her representative capacity, or derived by the principal by virtue of his or her agency, and for the payment of tax thereon.


(b) He or she shall in respect of that income, or those profits or gains, make the returns and be assessed thereon, but in his or her representative capacity only, and each return and assessment shall, except as otherwise provided by this Act, be separate and distinct from any other.


(c) If he or she is a trustee of the estate of a deceased person, the returns shall be the same as far as practicable as the deceased person, if living, would have been liable to make.


(d) He or she is hereby authorized and required to retain from time to time out of any money which comes to him or her in his or her representative capacity so much as is sufficient to pay tax which is or will become due in respect of the income, profits or gains.


(e) He or she is hereby made personally liable for the tax payable in respect of the income, profits or gains to the extent of any amount that he or she has retained, or should have retained, under paragraph (d); but he or she shall not be otherwise personally liable for the tax.


(f) He or she is hereby indemnified for all payments which he or she makes in pursuance of this Act or of any requirement of the Commissioner.


(g) Where as one of 2 or more joint agents or trustees he or she pays any amount for which they are jointly liable, each other one is liable to pay him or her an equal share of the amount so paid.


(h) For the purpose of insuring the payment of tax the Commissioner shall have the same remedies against attachable property of any kind vested in or under the control or management or in the possession of any agent or trustee, as the Commissioner would have against the property of any other taxpayer in respect of tax.

254(2)  


Subsection (1) applies to the following in the same way as it applies to tax:


(a) the general interest charge under:


(i) section 163AA , former section 170AA , former subsection 204(3) , former subsection 221AZMAA(1) , former subsection 221AZP(1) , former subsection 221YD(3) or former section 221YDB of this Act;

(ii) section 5-15 of the Income Tax Assessment Act 1997 ;


(b) additional tax under former Part VII of this Act;


(c) shortfall interest charge.

254(3)  


In paragraphs (1)(d) and (e), and in its first occurrence in paragraph (1)(h), tax includes, in addition to the things mentioned in subsection (2):


(a) trustee beneficiary non-disclosure tax within the meaning of Division 6D of Part III ; and


(b) general interest charge payable under section 102UP in respect of such tax.

SECTION 255   PERSON IN RECEIPT OR CONTROL OF MONEY FROM NON-RESIDENT  

255(1)  


With respect to every person having the receipt control or disposal of money belonging to a non-resident, who derives income, or profits or gains of a capital nature, from a source in Australia or who is a shareholder, debenture holder, or depositor in a company deriving income, or profits or gains of a capital nature, from a source in Australia, the following provisions shall, subject to this Act, apply:


(a) the person shall when required by the Commissioner pay the tax due and payable by the non-resident;


(b) the person is hereby authorized and required to retain from time to time out of any money which comes to the person on behalf of the non-resident so much as is sufficient to pay the tax which is or will become due by the non-resident;


(c) the person is hereby made personally liable for the tax payable by the person on behalf of the non-resident to the extent of any amount that the person has retained, or should have retained, under paragraph (b); but the person shall not be otherwise personally liable for the tax;


(d) the person is hereby indemnified for all payments which the person makes in pursuance of this Act or of any requirement of the Commissioner.

255(2)  


Every person who is liable to pay money to a non-resident shall be deemed to be a person having the control of money belonging to the non-resident, and, subject to subsection (2A), all money due by the person to the non-resident shall be deemed to be money which comes to the person on behalf of the non-resident.

255(2A)  


For the purposes of this section, money due by a person to a non-resident from which an amount must be withheld under section 12-325 in Schedule 1 to the Taxation Administration Act 1953 (about natural resource payments) or Subdivision 12-H in that Schedule(about distributions to foreign residents from withholding MITs) shall be deemed not to be money which comes to the person on behalf of the non-resident.

255(2B)  


For the purposes of subsection (2A), if an entity must pay an amount to the Commissioner under Subdivision 12A-C in Schedule 1 to the Taxation Administration Act 1953 in respect of money due by the entity to a non-resident, treat that amount as being an amount that must be withheld from the money under Subdivision 12-H in that Schedule.

255(3)  


Where the Commonwealth, a State or an authority of the Commonwealth or a State has the receipt, control or disposal of money belonging to a non-resident, this section (other than paragraph (1)(c)) applies to and in relation to the Commonwealth, the State or the authority, as the case may be, in the same manner as it applies to and in relation to any other person.

255(4)  


This section applies to the following in the same way as it applies to tax:


(a) the general interest charge under:


(i) section 163AA , former section 170AA , former subsection 204(3) , former subsection 221AZMAA(1) , former subsection 221AZP(1) , former subsection 221YD(3) or former section 221YDB of this Act;

(ii) section 5-15 of the Income Tax Assessment Act 1997 ;


(b) additional tax under former Part VII of this Act;


(c) shortfall interest charge.

255(5)  


This section applies to an equity holder in the same way as it applies to a shareholder.

FORMER SECTION 256   256   PERSON PAYING ROYALTY TO A NON-RESIDENT TAXPAYER  
(Repealed by No 154 of 1986)

SECTION 257   257   PAYMENT OF TAX BY BANKER  


Where any income of any person out of Australia is paid, or any proceeds of the disposal of an asset of any person out of Australia are paid, into the account of that person with a banker, the Commissioner may, by notice in writing to the banker, appoint the banker to be the person's agent in respect of the money so paid so long as the banker is indebted in respect thereof, and thereupon the banker shall accordingly be that person's agent.

SECTION 260   CONTRACTS TO EVADE TAX VOID  

260(1)   [Void contracts]  

Every contract, agreement, or arrangement made or entered into, orally or in writing, whether before or after the commencement of this Act, shall so far as it has or purports to have the purpose or effect of in any way, directly or indirectly:


(a) altering the incidence of any income tax;


(b) relieving any person from liability to pay any income tax or make any return;


(c) defeating, evading, or avoiding any duty or liability imposed on any person by this Act; or


(d) preventing the operation of this Act in any respect;

be absolutely void, as against the Commissioner, or in regard to any proceeding under this Act, but without prejudice to such validity as it may have in any other respect or for any other purpose.

260(2)   [Section not applicable after 27 May 1981]  

This section does not apply to any contract, agreement or arrangement made or entered into after 27 May 1981.

FORMER SECTION 261   261   COVENANT BY MORTGAGOR TO PAY TAX  
(Repealed by No 76 of 1996)

SECTION 262   262   PERIODICAL PAYMENTS IN THE NATURE OF INCOME  


Where under any contract agreement or arrangement made or entered into orally or in writing, either before or after the commencement of this Act, a person assigns, conveys, transfers or disposes of any property on terms and conditions which include the payment for the assignment, conveyance, transfer or disposal of the property by periodical payments which, in the opinion of the Commissioner, are either wholly or in part really in the nature of income of that person such of those payments as are derived in the year of income shall, to the extent to which they are in that opinion in the nature of income, be included in the person's assessable income.

SECTION 262A   KEEPING OF RECORDS  

262A(1)  


Subject to this section, a person carrying on a business must keep records that record and explain all transactions and other acts engaged in by the person that are relevant for any purpose of this Act.

262A(1A)  


Without limiting subsection (1), if the person is an OBU (within the meaning of Division 9A of Part III ), the person must, subject to this section, maintain the same accounting records in respect of, and separately account for, money used in its OB activities (within the meaning of that Division) as it would if it were a bank conducting banking activities with another person.

262A(1AA)  


Subsection (1A) does not require an OBU to maintain a separate nostro account or vostro account for its OBU activities. Nostro accounts and vostro accounts are accounts held or maintained by the OBU for the sole purpose of settling international transactions.

262A(1B)  


Without limiting subsection (1), a foreign bank must maintain accounting records in respect of, and separately account for, money used in the activities of a permanent establishment in Australia through which the bank carries on banking business.

262A(1BA)  


Without limiting subsection (1), a foreign entity (as defined in the Income Tax Assessment Act 1997 ) that is a financial entity (as defined in that Act) must maintain accounting records in respect of, and separately account for, money used in the activities of a permanent establishment in Australia of the entity.

262A(1C)  


Without limiting subsection (1), if a trust is taken to be 2 separate trusts under section 50-80 of the Income Tax Assessment Act 1997 , the trustee must maintain accounting records in respect of, and separately account for, those 2 trusts.

262A(1D)  


A taxpayer who is a full self-assessment taxpayer must:


(a) keep a record containing particulars of the basis of the calculation of the amounts that the taxpayer specified under section 161AA in a return for a year of income; and


(b) produce to the Commissioner, when and as required by the Commissioner under this Act, a document containing those particulars.

262A(2)  
The records to be kept under subsection (1) include:


(a) any documents that are relevant for the purpose of ascertaining the person ' s income and expenditure; and


(b) documents containing particulars of any election, choice, estimate, determination or calculation made by the person under this Act and, in the case of an estimate, determination or calculation, particulars showing the basis on which and method by which the estimate, determination or calculation was made.

262A(2AAA)  


Subsection (1) applies to a participant in a forestry managed investment scheme in relation to the scheme even if the participant is not carrying on a business in relation to the scheme.

262A(2AAB)  


Subsection (2AAC) applies to the forestry manager of a forestry managed investment scheme if:


(a)the forestry manager (or an associate of the forestry manager) receives an amount under the scheme; and


(b) the amount is included in the forestry manager ' s (or the associate ' s) assessable income under section 15-46 of the Income Tax Assessment Act 1997 .

262A(2AAC)  


The records to be kept under subsection (1) by the forestry manager include records about the basis on which the scheme satisfies the requirement in paragraph 394-10(1)(c) of the Income Tax Assessment Act 1997 (the 70% DFE rule).

262A(2AAD)  


Subsection (1) applies to a person who has a Division 230 financial arrangement even if the person is not carrying on a business in relation to the arrangement. However, that subsection only requires the person to keep records that, for the purposes of this Act, are relevant to the arrangement.

262A(2AAE)  


To avoid doubt, for the purposes of subsection (4), if the records mentioned in that subsection relate to a Division 230 financial arrangement that a person has, the transactions or acts mentioned in that subsection are taken to be completed at:


(a) the end of the year of income in which the person ceases to have the arrangement; or


(b) if:


(i) the person applies the hedging financial arrangement method in Subdivision 230-E of the Income Tax Assessment Act 1997 to determine the amount of one or more gains or losses the person makes from the arrangement; and

(ii) determining the way in which those gains or losses are dealt with in accordance with subsection 230-310(4) of that Act is possible only at a time after the end of the income year mentioned in paragraph (a);
the end of the year of income in which that time occurs.

262A(2AA)  


The records to be kept under subsection (1) include records required to be kept for the purposes of section 820-960 , 820-980 or 820-985 of the Income Tax Assessment Act 1997 .

262A(2A)  


If an entity is required to withhold an amount under Division 12 in Schedule 1 to the Taxation Administration Act 1953 , or to pay an amount to the Commissioner under Division 13 or 14 of that Schedule, the entity must keep records that record and explain all transactions and other acts engaged in by the entity that are relevant for the purposes of that Schedule.

262A(3)  


A person who is required by this section to keep records must:


(a) keep the records in writing in the English language or so as to enable the records to be readily accessible and convertible into writing in the English language; and


(b) keep the records so as to enable the person ' s liability under this Act to be readily ascertained; and


(c) for records required to be kept under section 820-960 of the Income Tax Assessment Act 1997 - comply with the applicable provisions of that section; and


(ca) for records required to be kept under section 230-355 of the Income Tax Assessment Act 1997 - comply with the applicable provisions of that section; and


(d) for records required to be kept under section 820-980 of that Act - comply with subsections (2) and (3) of that section; and


(e) for records required to be kept under section 820-985 of that Act - comply with subsections (2) and (3) of that section.

262A(4)  
A person who has possession of any records kept or obtained under or for the purposes of this Act must retain those records until:


(a) in a case to which paragraph (b) does not apply - the end of 5 years after those records were prepared or obtained, or the completion of the transactions or acts to which those records relate, whichever is the later; or


(b) if the period (in this paragraph called the assessment period ) within which the Commissioner may, under section 170 , amend an assessment in respect of the person ' s income of the year of income to which those records relate, or in which a transaction or act to which those records relate was completed, is extended under subsection 170(7) :


(i) the end of the period of 5 years referred to in paragraph (a); or

(ii) the end of the assessment period as so extended;
whichever is the later.

262A(4AAA)  


Subsection (4) does not apply to any record required to be kept by a provision in Schedule 1 to the Taxation Administration Act 1953 .

262A(4A)  


A person who makes an election under subsection 371(8) must retain the election until the end of 5 years after the election was made.

262A(4AA)  


A person who is a party to a joint election for roll-over relief made under former section 59AA, 122R, 123F, 124AO or 124W must retain the election, or a copy, until the end of 5 years after the earlier of:


(a) the disposal by the person of the property; or


(b) the loss or destruction of the property.

262A(4ACA)  


Subsection (4AC) does not apply in relation to a disposal of property:


(a) to which former subsection 58(1), 122JAA(1), 122JG(1), 123BBA(1), 123BF(1), 124AMAA(1), 124GA(1) or 124JD(1) applies; and


(b) that occurs in the 1997-98 year of income or a later year of income.

262A(4AC)  


If former subsection 58(1) , subsection 73AA(1) , or former subsection 122JAA(1) , 122JG(1) , 123BBA(1) , 123BF(1) , 124AMAA(1) , 124GA(1) , 124JD(1) or 124PA(1) applies to the disposal of property by the transferor referred to in that subsection to the transferee referred to in that subsection:


(a) the transferor must give to the transferee, within the period specified in subsection (4AD), a notice containing such information about the transferor ' s holding of the property as will enable the transferee to work out how former section 58, section 73AA , or former section 122JAA, 122JG, 123BBA, 123BF, 124AMAA, 124GA,124JD or 124PA , as the case may be, will apply to the transferee ' s holding of the property; and


(b) the transferee must retain the notice, or a copy, until the end of 5 years after the earlier of:


(i) the disposal by the person of the property; or

(ii) the loss or destruction of the property.

262A(4AD)  


The notice referred to in subsection (4AC) must be given within 6 months after the later of the following:


(a) the end of the year of income of the transferee in which the disposal occurred;


(b) the commencement of subsection (4AC);

or within such further period as the Commissioner allows.

262A(4AE)  


A person who made an election under former paragraph 54A(1)(a) in relation to a unit of property must retain the election, or a copy, until the end of 5 years after the earlier of:


(a) the disposal by the person of the property; or


(b) the loss or destruction of the property.

262A(4AF)  


If:


(a) a person (the " transferor " ) disposes of, or of a lease of, any part of a building within the meaning of former Division 10C of Part III to another person (the " transferee " ); and


(b) either:


(i) one or more deductions have been allowed to the transferor under former subsection 124ZC(2A) or (4A) in respect of qualifying hotel expenditure or qualifying apartment expenditure in respect of the building; or

(ii) if there have been one or more prior successive owners or lessees of the building - one or more deductions have been allowed to any of the prior successive owners or lessees under former subsection 124ZC(2A) or (4A) in respect of qualifying hotel expenditure or qualifying apartment expenditure in respect of the building;

then:


(c) the transferor must give to the transferee, within the period specified in subsection (4AG), a notice containing such information about the transferor ' s holding or lease of the building as will enable the transferee to work out how former Division 10C of Part III applies to the transferee ' s holding or lease of the building; and


(d) the transferee must retain the notice, or a copy, until the end of 5 years after the earlier of:


(i) the transferee ceasing to be the owner or lessee of the part of the building; or

(ii) the destruction of the building.

262A(4AG)  


The notice referred to in subsection (4AF) must be given within 6 months after the later of the following:


(a) the end of the year of income of the transferee in which the disposal occurred;


(b) the commencement of subsection (4AF);

or within such further period as the Commissioner allows.

262A(4AH)  


If:


(a) a person (the " transferor " ) disposes of, or of a lease of, any part of a building within the meaning of former Division 10D of Part III to another person (the " transferee " ); and


(b) either:


(i) one or more deductions have been allowed to the transferor under former subsection 124ZH(2A) in respect of qualifying expenditure in respect of the building; or

(ii) if there have been one or more prior successive owners or lessees of the building - one or more deductions have been allowed to any of the prior successive owners or lessees under former subsection 124ZH(2A) in respect of qualifying expenditure in respect of the building;

then:


(c) the transferor must give to the transferee, within the period specified in subsection (4AJ), a notice containing such information about the transferor ' s holding or lease of the building as will enable the transferee to work out how former Division 10D of Part III applies to the transferee ' s holding or lease of the building; and


(d) the transferee must retain the notice, or a copy, until the end of 5 years after the earlier of:


(i) the transferee ceasing to be the owner or lessee of the part of the building; or

(ii) the destruction of the building.

262A(4AJ)  


The notice referred to in subsection (4AH) must be given within 6 months after the later of the following:


(a) the end of the year of income of the transferee in which the disposal occurred;


(b) the commencement of subsection (4AH);

or within such further period as the Commissioner allows.

262A(4AJA)  
If:


(a) a person (the transferor ) disposes of capital works within the meaning of Division 43 of the Income Tax Assessment Act 1997 , being capital works begun after 26 February 1992, to another person (the transferee ); and


(b) a deduction has been allowed under former Division 10C or 10D of Part III of this Act, or under Division 43 of the Income Tax Assessment Act 1997 , in respect of those capital works;

then:


(c) the transferor must give the transferee, within 6 months after the end of the year of income in which the disposal occurred or within a further period allowed by the Commissioner, a notice containing such information as will allow the transferee to work out how Division 43 of the Income Tax Assessment Act 1997 will apply to the transferee in respect of the capital works; and


(d) the transferee must retain the notice or a copy of it until the end of 5 years after the transferee disposes of the capital works or the capital works are destroyed, whichever is the earlier.

262A(4AK)  
(Repealed by No 16 of 1999)

262A(4AL)  


A person who makes an election in accordance with subitem 22(3), 22A(3), 23(3) or 23A(2) of the Taxation Laws Amendment (Trust Loss and Other Deductions) Act 1998 must retain the election until the end of 5 years after the election was made.

262A(5)  


Nothing in this section requires a person to retain records or an election where:


(a) the Commissioner has notified the person that retention of the records or election is not required; or


(b) the person is a company that has gone into liquidation and finally ceased to exist.

262A(5A)  


An offence under this section is an offence of strict liability.

262A(6)  


In this section:

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

foreign bank
means body corporate that is a foreign ADI (authorised deposit-taking institution) for the purposes of the Banking Act 1959 .

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

forestry manager
of a forestry managed investment scheme has the same meaning as in the Income Tax Assessment Act 1997 .

participant
in a forestry managed investment scheme has the same meaning as in the Income Tax Assessment Act 1997 .

Penalty: 30 penalty units.

FORMER SECTION 263   263   ACCESS TO BOOKS ETC.  
(Repealed by No 2 of 2015)

FORMER SECTION 264   264   COMMISSIONER MAY REQUIRE INFORMATION AND EVIDENCE  
(Repealed by No 2 of 2015)

FORMER SECTION 264AA   264AA   REPORTING TO AGRICULTURE SECRETARY  
(Repealed by No 79 of 2010 )

SECTION 264A   OFFSHORE INFORMATION NOTICES  

264A(1)  
Where the Commissioner has reason to believe that:


(a) information relevant to the assessment of a taxpayer is:


(i) within the knowledge (whether exclusive or otherwise) of a person outside Australia; or

(ii) recorded (whether exclusively or otherwise) in a document outside Australia; or

(iii) kept (whether exclusively or otherwise) by means of a mechanical, electronic or other device outside Australia; or


(b) documents relevant to the assessment of a taxpayer are outside Australia (whether or not copies are in Australia or, if the documents are copies of other documents, whether or not those other documents are in Australia);

the Commissioner may, by notice in writing served on the taxpayer (which notice is in this section called the offshore information notice ), request the taxpayer:


(c) to give to the Commissioner, within the period and in the manner specified in the offshore information notice, any such information; or


(d) to produce to the Commissioner, within the period and in the manner specified in the offshore information notice, any such documents; or


(e) to make copies of any such documents and to produce to the Commissioner, within the period and in the manner specified in the offshore information notice, those copies.

264A(2)  
The period specified in the offshore information notice must end 90 days after the date of service of the notice.

264A(3)  
Upon written application made by the taxpayer within the period specified in the offshore information notice, the Commissioner may, by notice in writing served on the taxpayer, extend the period specified in the offshore information notice.

264A(4)  
Where:


(a) an application under subsection (3) is made before the end of the period specified in the offshore information notice; and


(b) at the end of the period, the Commissioner has not notified the taxpayer of the Commissioner's decision on the application;

the following provisions have effect:


(c) the Commissioner is taken to have extended the period under subsection (3) to the end of the day (in this subsection called the decision day ) on which the Commissioner's decision is notified to the taxpayer;


(d) if the Commissioner decides to extend the period - the extended period must end after the decision day.

264A(5)  
A reference in this section (other than subsection (3)) to the period specified in the offshore information notice is a reference to the period as extended under subsection (3).

264A(6)  
Where:


(a) an offshore information notice (in this subsection called the first notice ) was served on a taxpayer; and


(b) during the period specified in the first notice (including a period specified by virtue of one or more previous applications of this subsection), another offshore information notice (which other notice is in this subsection called the subsequent notice ) is served on the taxpayer; and


(c) the subsequent notice is expressed to be by way of variation of the first notice;

the following provisions have effect:


(d) the request, or each of the requests, set out in the subsequent notice is taken, for the purposes of subsections (10), (11) and (14), to have been set out in the first notice;


(e) if the period specified in the first notice would, apart from this subsection, end before the end of the period specified in the subsequent notice - the period specified in the first notice is taken to have been extended under subsection (3) to the end of the period specified in the subsequent notice.

264A(7)  
The Commissioner may, by notice in writing served on the taxpayer, vary the offshore information notice by:


(a) reducing its scope; or


(b) correcting a clerical error or obvious mistake;

and, if the Commissioner does so, a reference in this section to the offshore information notice is to be read as a reference to the notice as so varied.

264A(8)  
The Commissioner may withdraw an offshore information notice.

264A(9)  
If the Commissioner withdraws an offshore information notice, nothing in this section prevents the Commissioner giving another offshore information notice in substitution, in whole or in part, for the withdrawn notice.

264A(10)  
If the taxpayer refuses or fails to comply with the request or requests set out in the offshore information notice, then, except with the consent of the Commissioner:


(a) if the information or documents to which the request or requests apply are only relevant to one issue concerning the assessment of the taxpayer:


(i) where the request, or any of the requests, apply to information - the information is not admissible in proceedings disputing the taxpayer's assessment; or

(ii) where the request, or any of the requests, apply to documents - neither the documents, nor any secondary evidence of the documents, are admissible in proceedings disputing the taxpayer's assessment; or


(b) if:


(i) the information or documents to which the request or requests apply are relevant to 2 or more issues concerning the assessment of the taxpayer; and

(ii) the refusal or failure of the taxpayer relates to information or documents that are relevant to any or all of those issues;
the following provisions have effect:

(iii) where the request, or any of the requests, apply to information - the information, to the extent to which it is relevant to the issue or issues mentioned in subparagraph (ii), is not admissible in proceedings disputing the taxpayer's assessment;

(iv) where the request, or any of the requests, apply to documents - neither:

(A) the documents, to the extent to which they are relevant to the issue or issues mentioned in subparagraph (ii); nor

(B) secondary evidence of the documents, to the extent to which the secondary evidence is relevant to the issue or issues mentioned in subparagraph (ii);
are admissible in proceedings disputing the taxpayer's assessment.

264A(11)  
Without limiting the power conferred by subsection (10), where:


(a) the taxpayer refuses or fails to comply with the request or requests set out in the offshore information notice; and


(b) the refusal or failure of the taxpayer relates to some, but not all, of the information or documents to which the request or requests apply and that are relevant to a particular issue concerning the assessment of the taxpayer;

the Commissioner, in exercising that power, must have regard to whether there is reason to believe that, because of the absence of that information or those documents, the remaining information or documents that are relevant to that issue are, or are likely to be, misleading.

264A(12)  
The Commissioner, in exercising the power conferred by subsection (10), must ignore the consequences (whether direct or indirect) of an obligation arising under a law of, or of a part of, a foreign country, in so far as that obligation relates to the secrecy of information or documents.

264A(13)  
In spite of anything in this section, the Commissioner must give a consent under subsection (10) in any case where a refusal would have the effect, for the purposes of the Constitution, of making any tax or penalty incontestable.

264A(14)  
Where, before the commencement of the hearing of proceedings disputing the taxpayer's assessment, the Commissioner forms both of the following views:


(a) the view that the taxpayer has refused or failed to comply with the request or requests set out in the offshore information notice;


(b) the view that the Commissioner is unlikely to give a consent under subsection (10) in relation to that request or those requests and in relation to those proceedings;

the Commissioner must serve on the taxpayer a notice in writing setting out those views.

264A(15)  
A failure to comply with subsection (14) does not affect the validity of a decision under subsection (10).

264A(16)  
A reference in this section to a refusal or failure of a taxpayer to comply with a request includes a reference to a refusal or failure resulting from the taxpayer being incapable of complying with the request.

264A(17)  
A reference in this section to proceedings disputing the taxpayer's assessment is a reference to proceedings before a court or the Tribunal arising out of, or relating to, an objection against the assessment.

264A(18)  


Nothing in this Act precludes an offshore information notice from being set out in the same document as a notice under section 353-10 in Schedule 1 to the Taxation Administration Act 1953 .

264A(19)  
An offshore information notice must set out the effect of subsection (10).

264A(20)  
A failure to comply with subsection (19) does not affect the validity of the offshore information notice.

264A(21)  
A request under this section is not taken to be a requirement for the purposes of any other provision of this Act or of any provision of the Taxation Administration Act 1953 .

264A(22)  
A refusal or failure to comply with a request set out in an offshore information notice is not an offence.

264A(23)  


The express references in this section to documents do not imply that references to documents in any other provision of this Act, or in a provision of the Taxation Administration Act 1953 , do not have the meaning given by the definition of document in section 2B of the Acts Interpretation Act 1901 .

264A(24)  


Nothing in this section affects the operation of section 353-10 in Schedule 1 to the Taxation Administration Act 1953 and nothing in that section affects the operation of this section.

FORMER SECTION 264B   264B   NOTICES ETC. TO BE SIGNED  
(Repealed by No 91 of 2000)

SECTION 264BB   COMMISSIONER MAY REQUIRE PRIVATE HEALTH INSURERS TO PROVIDE INFORMATION  

264BB(1)  


The Commissioner may, by notice in writing, require a private health insurer to provide information relevant to the operation of this Act about each person who is covered at any time during a financial year specified in the notice by a complying health insurance policy issued by the insurer or who paid premiums under such a policy.

264BB(2)  


The information that the Commissioner may require the private health insurer to provide includes the following:


(a) the name, address and date of birth of each person mentioned in subsection (1);


(b) the membership number of the policy;


(c) the name, address and date of birth of any spouse of a person covered by the policy (other than a spouse permanently living separately and apart from the person);


(d) whether the policy covers hospital treatment, general treatment or both;


(e) the date on which the policy was issued;


(f) whether the policy has terminated or been suspended, and, if it has, the date on which it terminated or was suspended;


(g) the amount of the premium payable under the policy;


(ga) whether the premium has been reduced under section 23-1 of the Private Health Insurance Act 2007 , and if so, the amount of the reduction;


(gb) the name, address and date of birth of a participant (within the meaning of the Private Health Insurance Act 2007 ) in the premiums reduction scheme (within the meaning of that Act) in respect of the policy;


(gc) whether the premium has been increased in accordance with Division 34 of the Private Health Insurance Act 2007 , and if so, the amount of the increase;


(h) the period to which the premium relates;


(i) any increase or decrease in the premium;


(j) whether a payment in respect of a premium that was due within a period specified by the Commissioner was not paid.

264BB(3)  
The information required by a notice under subsection (1) is to be provided:


(a) in a form (including an electronic form) approved by the Commissioner; and


(b) within the period specified in the notice.

264BB(4)   [Interpretation]  

In this section, the following terms have the same meanings as in the Private Health Insurance Act 2007 :


          complying health insurance policy
          general treatment
          hospital treatment
          private health insurer

FORMER SECTION 264C   264C   TAXPAYER MAY DIRECT PAYMENTS TO SPECIFIED ACCOUNTS  
(Repealed by No 91 of 2000)

FORMER SECTION 265   265   RELEASE OF TAXPAYERS FROM LIABILITY IN CASES OF HARDSHIP  
(Repealed by No 67 of 2003)

SECTION 265A   RELEASE OF LIABILITY OF MEMBERS OF THE DEFENCE FORCE ON DEATH  

265A(1)   [Amount of liability to be released]  

Subject to subsection (2), where, in respect of the income of any year of income, income tax is payable by the trustee of the estate of a deceased person who has been a member of the Defence Force, the trustee shall, by force of this section, be released from the payment of so much of that tax as remains after deducting any tax deductions unapplied:


(a) where the assessable income of the year of income consists solely of pay and allowances earned as a member of the Defence Force - from the amount of income tax so payable by the trustee; or


(b) where the assessable income of the year of income includes income other than such pay and allowances:


(i) from the amount of income tax so payable by the trustee; or

(ii) from the amount by which the income tax payable in respect of the income of the year of income has been increased by the inclusion of such pay and allowances in the assessable income of that year,
whichever is the less.

265A(2)   [Refund]  

Nothing in subsection (1) shall be construed so as to authorize or require the Commissioner to refund any amount paid as or for income tax by or on behalf of the taxpayer or his trustee.

265A(3)   [Dependants]  

The provisions of subsection (1) do not apply in any case where the death of the taxpayer has occurred in circumstances (including the circumstances of his or her service) in which the Commonwealth would not be liable to pay pensions or compensation:


(a) under Part II or IV of the Veterans ' Entitlements Act 1986 to the dependants of deceased members of the Forces or veterans; or


(b) mentioned in paragraph 234(1)(b) of the Military Rehabilitation and Compensation Act 2004 to the wholly dependent partners of deceased members (within the meaning of that Act).

265A(4)   [Rights of dependants]  

Any decision of an authority constituted under the Repatriation Act 1920-1962 on any question affecting the right of any dependants of a deceased member of the Forces to a pension under that Act or under the Repatriation (Far East Strategic Reserve) Act 1956-1962 or the Repatriation (Special Overseas Service) Act 1962 , or any decision of an authority constituted under the Veterans ' Entitlements Act 1986 on a question affecting the right of a dependant of a deceased veteran to a pension under Part II or IV of that Act, or any decision of the Military Rehabilitation and Compensation Commission established under section 361 of the Military Rehabilitation and Compensation Act 2004 on a question affecting the right of a dependant of a deceased member (within the meaning of that Act) to compensation under Chapter 5 of that Act, in respect of his or her death shall, so long as that decision has not been reversed or overruled, be conclusive evidence of the matters of fact or law so decided for the purposes of the application of subsection (3) in relation to that deceased member of the Forces.

265A(5)   [``tax deductions unapplied'']  

In this section:

tax deductions unapplied
, in relation to a deceased person, means the total of any amounts withheld under paragraph 12-45(1)(c) in Schedule 1 to the Taxation Administration Act 1953 from amounts earned by the deceased person as a member of the Defence Force where:


(a) the amounts have not been credited in payment of income tax; and


(b) the Commissioner has not made a payment in respect of them.

265A(6)  
(Omitted by No 73 of 1989)

265A(7)  
(Omitted by No 73 of 1989)

SECTION 265B   NOTICES IN RELATION TO CERTAIN SECURITIES  

265B(1)  
Subject to subsection (2), for the purposes of this section:


(a) expressions used in this section that are also used in Division 16E of Part III have the same respective meanings as in that Division; and


(b) sections 159GV (other than subsection 159GV(2) ) and 159GZ apply as if references in those sections to " this Division " were references to " section 265B " .

265B(2)  
Subsection (1) applies as if paragraph (c) of the definition of " qualifying security " in subsection 159GP(1) were omitted.

265B(3)  


The holder of a security may apply at any time to the issuer for a notice under this section in relation to the security.

265B(4)  
Where the issuer of a security receives an application under subsection (3) in relation to the security, the issuer shall within 21 days of receipt of the application issue a notice in writing to the applicant, expressed to be issued under this section and identifying the security, that states that the notice was issued at a specified time on a specified date and:


(a) where the security is not a qualifying security - that the security is not a qualifying security; or


(b) where the security is a qualifying security - that -


(i) the security is a qualifying security;

(ii) the security was issued for a specified consideration;

(iii) where the security was partially redeemed on one or more occasions before the time of issue of the notice - that the security was partially redeemed by a specified amount or amounts on a specified date or dates; and

(iv) where the security was varied to become a qualifying security - the security was varied, for a specified consideration, to become a qualifying security.

SECTION 266   266   REGULATIONS  


The Governor-General may make regulations, not inconsistent with this Act or the Income Tax Assessment Act 1997 , prescribing all matters which by this Act or the Income Tax Assessment Act 1997 are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for giving effect to this Act or the Income Tax Assessment Act 1997 , and for prescribing penalties not exceeding a fine of 5 penalty units for offences against the regulations.