Income Tax Assessment Act 1936
View history note
Hide history notePt VIIA repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Pt VIIA originally inserted by No 10 of 1943.
Div 1 repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Div 1 heading inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
Definition of " serious taxation offence " amended by No 143 of 2007, No 137 of 2000 and inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251B repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251B formerly read:
SECTION 251B TERRITORIES
251B
For the purposes of this Part:
(a)
the Australian Capital Territory and Norfolk Island shall each be deemed to be part of the State of New South Wales;
(b)
(Omitted by No 80 of 1975)
(c)
the Northern Territory shall be deemed to be part of the State of South Australia; and
(d)
the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands shall each be deemed to be part of the State of Western Australia.
S 251B amended by No 80 of 1975.
(Repealed by No 114 of 2009)
S 251BA repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251BA formerly read:
SECTION 251BA COMPANIES IN WHICH QUALIFIED DIRECTORS HAVE A SUBSTANTIAL INTEREST
251BA(1)
For the purposes of this Part, a company shall be taken to be a company in which qualified directors have a substantial interest if:
(a)
shares in the company carrying between them the right to exercise not less than 25 per cent of the voting power in the company are beneficially owned by a director who, or by directors each of whom, is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters; and
(b)
the voting power in the company, to the extent to which it relates to those shares, is not controlled, or capable of being controlled, by a person or persons other than the director or directors concerned.
251BA(2)
A reference in subsection (1) to control of the voting power in a company is a reference to control that is direct or indirect and includes a reference to control that is exercisable as a result or by means of arrangements or practices:
(a)
whether or not having legal or equitable force; and
(b)
whether or not based on legal or equitable rights.
S 251BA inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251BB repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251BB formerly read:
SECTION 251BB NON-EXEMPT COMPANIES
251BB
For the purposes of this Part, a company shall be taken to be a non-exempt company as at a particular time unless either of the following paragraphs applies:
(a)
all of the following conditions are satisfied:
(i)
the company was registered as a tax agent immediately before the commencement of section 39 of the
Taxation Laws Amendment Act (No. 2) 1988
;
(ii)
the company was registered as a tax agent at all times after that commencement and before that time;
(iii)
at all times after that commencement and before that time, shares in the company carrying between them:
(A)
the right to exercise more than one-half of the voting power in the company;
(B)
the right to receive more than one-half of any dividends that may be paid by the company; and
were beneficially owned by persons who, immediately before that commencement, beneficially owned shares in the company carrying between them rights of those kinds;
(C)
the right to receive more than one-half of any distribution of capital of the company;
(b)
the company is an authorised trustee company.
S 251BB inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251BC repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251BC formerly read:
the Board may, in making the decision referred to in paragraph (a), disregard the conviction, the doing of the act or thing or the omission, as the case requires.
SECTION 251BC FIT AND PROPER PERSONS TO PREPARE INCOME TAX RETURNS
251BC(1)
Without limiting the generality of an expression used in this Part, but subject to this section, a person is not a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters, as at a particular time, if:
(a)
the person is not a natural person;
(b)
both of the following conditions are satisfied:
(i)
the person was not registered as a tax agent, or as a nominee, for the purposes of this Part immediately before the commencement of section 39 of the
Taxation Laws Amendment Act (No. 2) 1988
;
(ii)
the person does not hold such qualifications (whether academic, by way of experience or otherwise) as are prescribed;
(c)
the person has not attained the age of 18 years;
(d)
the person is not of good fame, integrity and character;
(e)
the person has been convicted of a serious taxation offence during the previous 5 years; or
(f)
the person is under sentence of imprisonment for a serious taxation offence.
251BC(2)
Nothing in paragraph (1)(e) or (f) limits the generality of paragraph (1)(d).
251BC(3)
Where:
(a)
a Board is required, in considering an application for:
(i)
re-registration as a tax agent; or
to decide whether the Board is satisfied that a particular person is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters;
(ii)
re-registration of a nominee of a tax agent;
(b)
the person is not under sentence of imprisonment for a serious taxation offence; and
(c)
the Board is satisfied that, because of special circumstances:
(i)
a conviction of the person;
(ii)
the doing of an act or thing by the person; or
should be disregarded;
(iii)
an omission of the person;
251BC(4)
For the purposes of this section:
(a)
a person who has been released from serving a part of a sentence of imprisonment on parole or upon licence to be at large shall be taken to be under sentence of imprisonment during any period during which action can be taken by way of requiring the person to serve the whole or a part of the remainder of that sentence; and
(b)
a person who has been released by a court from serving the whole or a part of a sentence of imprisonment upon the person giving a good behaviour security shall be taken to be under sentence of imprisonment during any period during which action can be taken for a breach of a condition of that security.
251BC(5)
A reference in subsection (4) to a good behaviour security given by a person is a reference to a security given by the person, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to his or her behaviour.
S 251BC inserted by No 78 of 1988.
Div 2 repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Div 2 heading inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251C repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251C formerly read:
SECTION 251C TAX AGENTS
'
BOARDS
251C
For the purposes of this Part there shall be in each State a Tax Agents
'
Board.
(Repealed by No 114 of 2009)
S 251D repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251D formerly read:
S 251D(1) amended by No 78 of 1988, No 39 of 1983, No 108 of 1981 and No 33 of 1965. S 251(1A) inserted by No 78 of 1988. S 251D(3) substituted by No 78 of 1988.
SECTION 251D CONSTITUTION OF BOARDS
251D(1)
Subject to this Part, each Board shall consist of 3 members who shall be
-
(a)
an officer of the Australian Taxation Office appointed by the Minister; and
(b)
2 other persons appointed by the Minister.
251D(1A)
The Minister shall appoint as Chairperson one of the persons referred to in paragraph (1)(b).
251D(2)
A vacancy in the office of a member shall not invalidate the proceedings of a Board.
251D(3)
A member of a Board holds office on a part-time basis.
(Repealed by No 114 of 2009)
S 251DA repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251DA formerly read:
S 251DA(3) amended by No 43 of 1996.
SECTION 251DA REMUNERATION AND ALLOWANCES
251DA(1)
A member of a Board shall be paid such remuneration as is determined by the Remuneration Tribunal.
251DA(2)
A member shall be paid such allowances as are prescribed.
251DA(3)
This section has effect subject to the
Remuneration Tribunal Act 1973
.
S 251DA inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251E repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251E formerly read:
SECTION 251E CONDUCT OF BUSINESS OF BOARD
251E
At all meetings of a Board
-
(a)
any 2 members shall form a quorum;
(b)
all questions shall be decided by a majority of the members present;
(c)
if the Chairperson is not present
-
the members present shall elect one of their number to preside; and
(d)
the Chairperson or member presiding shall have a deliberative, but not a casting, vote.
S 251E amended by No 78 of 1988 and No 108 of 1981.
(Repealed by No 114 of 2009)
S 251F repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251F formerly read:
SECTION 251F BOARD NOT TO BE SUED
251F
No action or suit shall be brought or maintained against any person who is or has been a member of a Board for any nonfeasance or misfeasance in connexion with his duties.
(Repealed by No 114 of 2009)
S 251G repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251G formerly read:
SECTION 251G SUMMONING OF WITNESSES ETC.
251G
A Board or a member of a Board shall have such powers as are prescribed with respect to the taking of evidence, the administration of oaths or affirmations, the summoning of witnesses and the production of documents.
(Repealed by No 216 of 1973) Former Division 3 - Registration of tax agents
Div 3 repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Div 3 heading inserted by No 78 of 1988.
Subdiv A repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Subdiv A heading inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251J repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251J formerly read:
S 251J(2) amended by No 78 of 1988, No 108 of 1981 and No 143 of 1965. S 251J(3) substituted for former s 251J(3) to (12) by No 78 of 1988. Former s 251J(3) amended by No 108 of 1981 and No 11 of 1947. S 251J(3) substituted for former s 251J(3) to (12) by No 78 of 1988. Former s 251J(4) to (6) amended by No 108 of 1981. Former s 251J(5) amended by No 143 of 1965. S 251J(3) substituted for former s 251J(3) to (12) by No 78 of 1988. Former s 251J(10) amended by No 123 of 1984, No 108 of 1981, No 143 of 1965 and No 11 of 1947. Former s 251J(12) amended by No 51 of 1973 and inserted by No 28 of 1944.
SECTION 251J APPLICATIONS FOR ORIGINAL REGISTRATION OF TAX AGENTS
251J(1)
A person or partnership desiring to be registered as a tax agent may make application to a Board for registration.
251J(2)
Every application under this section shall be accompanied by a lodgment fee of $80, or such higher fee as is prescribed, which the Board shall pay to the Commissioner.
251J(3)
An application shall be in the approved form and shall be accompanied by such information as is required by the form to be provided.
251J(4)-(6)
(Omitted by No 78 of 1988)
251J(7)-(9)
(Omitted by No 216 of 1973)
251J(10)-(12)
(Omitted by No 78 of 1988)
S 251J inserted by No 10 of 1943.
(Repealed by No 114 of 2009)
S 251JA repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251JA formerly read:
SECTION 251JA ORIGINAL REGISTRATION OF TAX AGENTS
251JA(1)
The Board shall register the applicant as a tax agent if the applicant satisfies the Board that:
(a)
if the applicant is a natural person:
(i)
the applicant is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters; and
(ii)
the applicant is not an undischarged bankrupt;
(b)
if the applicant is a partnership:
(i)
a partner specified in the application as the original nominee of the partnership is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters;
(ii)
in the case of each partner who is a natural person
-
the partner:
(A)
has attained the age of 18 years at the date on which the application is made; and
(B)
is of good fame, integrity and character;
(iii)
in the case of each partner that is a company
-
each executive officer of the company:
(A)
has attained the age of 18 years at the date on which the application is made; and
(B)
is of good fame, integrity and character; and
(iv)
there is no partner who is an undischarged bankrupt; or
(c)
if the applicant is a company:
(i)
a person employed by the company and specified in the application as the original nominee of the company is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters;
(ii)
each executive officer of the company:
(A)
has attained the age of 18 years at the date on which the application is made; and
(B)
is of good fame, integrity and character;
(iii)
except where the company is an authorised trustee company
-
the company is a company in which qualified directors have a substantial interest; and
(iv)
the company has not gone into liquidation.
251JA(2)
The Board shall refuse to register the applicant in any other case.
251JA(3)
Where a Board makes a decision refusing to register an applicant as a tax agent, the Board shall cause to be served on the applicant a notice inwriting setting out that decision and giving the reasons for that decision.
S 251JA and Subdivisions B to G substituted for former s 251JA by No 78 of 1988. Former s 251JA amended by No 51 and 216 of 1973 and inserted by No 11 of 1947.
Subdiv B repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Subdiv B inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251JB repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251JB formerly read:
SECTION 251JB APPLICATIONS FOR RE-REGISTRATION OF TAX AGENTS
251JB(1)
A registered tax agent may apply to the Board by which the tax agent was registered for re-registration.
251JB(2)
An application shall be accompanied by a lodgment fee of $40, or such higher fee as is prescribed, which the Board shall pay to the Commissioner.
251JB(3)
An application shall be in the approved form and shall be accompanied by such information as is required by the form to be provided.
251JB(4)
An application for re-registration as a tax agent shall be made:
(a)
during the period:
(i)
commencing 60 days before; and
the day on which the existing registration ceases to be in force; or
(ii)
ending 30 days before;
(b)
if the Board, on request in writing made by the tax agent, allows the application to be made at a later time but before the existing registration ceases to be in force
-
before that later time.
251JB(5)
Where a Board makes a decision refusing to allow a later time for the making of an application for re-registration, the Board shall cause to be served on the applicant a notice in writing setting out that decision and giving the reasons for that decision.
S 251JB inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251JC repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251JC formerly read:
the applicant shall be taken to have been registered as a tax agent during the period commencing at the expiry time and ending at the notice time.
SECTION 251JC RE-REGISTRATION OF TAX AGENTS
251JC(1)
The Board shall re-register the applicant as a tax agent if the applicant satisfies the Board that:
(a)
if the applicant is a natural person:
(i)
the applicant is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters; and
(ii)
the applicant is not an undischarged bankrupt;
(b)
if the applicant is a partnership:
(i)
a partner specified in the application as the original nominee of the partnership is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters;
(ii)
in the case of each partner who is a natural person
-
the partner:
(A)
has attained the age of 18 years at the date on which the application is made; and
(B)
is of good fame, integrity and character;
(iii)
in the case of each partner that is a company
-
each executive officer of the company:
(A)
has attained the age of 18 years at the date on which the application is made; and
(B)
is of good fame, integrity and character; and
(iv)
there is no partner who is an undischarged bankrupt;
(c)
if the applicant is a company:
(i)
a person employed by the company and specified in the application as the original nominee of the company is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters;
(ii)
each executive officer of the company:
(A)
has attained the age of 18 years at the date on which the application is made; and
(B)
is of good fame, integrity and character;
(iii)
if the company is a non-exempt company
-
the company is a company in which qualified directors have a substantial interest; and
(iv)
the company has not gone into liquidation; and
(d)
in all cases
-
the applicant has not permanently ceased to carry on business as a tax agent.
251JC(2)
The Board shall refuse to re-register the applicant in any other case.
251JC(3)
Where a Board makes a decision refusing to re-register an applicant as a tax agent, the Board shall cause to be served on the applicant a notice in writing setting out that decision and giving the reasons for that decision.
251JC(4)
Where:
(a)
a Board makes a decision refusing to re-register an applicant as a tax agent; and
(b)
notice of that decision was served on the applicant at a time (in this subsection called the
"
notice time
"
) after the time (in this subsection called the
"
expiry time
"
) when the existing registration ceased to be in force;
S 251JC inserted by No 78 of 1988.
Subdiv C repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Subdiv C inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251JD repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251JD formerly read:
the registration shall be taken to be terminated at the time of that change.
SECTION 251JD REGISTRATION OF A PARTNERSHIP TERMINATED IF CONSTITUTION CHANGES
251JD
Where:
(a)
a partnership is registered as a tax agent; and
(b)
there is a change in the constitution of the partnership;
S 251JD inserted by No 78 of 1988.
Subdiv D repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Subdiv D inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251JE repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251JE formerly read:
the person may apply to a Board for registration as a tax agent. the new partnership may apply to a Board for registration as a tax agent. the Board shall cause to be served on the person who lodged the document a notice in writing setting out that opinion. the person who made the purported application may make an application under this section in consequence of the change in the constitution of the original partnership within 7 days after the day of service of the notice under subsection (8).
SECTION 251JE APPLICATIONS FOR REGISTRATION OF SUCCESSOR TAX AGENTS
251JE(1)
Where:
(a)
the registration of a partnership (in this section called the
"
original partnership
"
) is terminated because of section
251JD
;
(b)
the registration of the original partnership was not suspended immediately before the termination; and
(c)
both of the following conditions are satisfied in relation to a particular natural person:
(i)
the person was a partner, and a registered nominee, of the original partnership immediately before the termination;
(ii)
the person is not an undischarged bankrupt;
251JE(2)
Where:
(a)
the registration of a partnership (in this section also called the
"
original partnership
"
) is terminated because of section
251JD
;
(b)
the registration of the original partnership was not suspended immediately before the termination; and
(c)
both of the following conditions are satisfied in relation to another partnership (in this section called the
"
new partnership
"
):
(i)
a partner was a partner, and a registered nominee, of the original partnership immediately before the termination;
(ii)
there is no partner who is an undischarged bankrupt;
251JE(3)
An application shall be in the approved form and shall be accompanied by such information as is required by the form to be provided.
251JE(4)
Subject to subsection (9), an application shall be made within 30 days after the termination of the registration of the original partnership.
251JE(5)
An application by a natural person may specify, as the original nominee or original nominees of the natural person, a person who, or persons each of whom:
(a)
was a registered nominee of the original partnership immediately before the termination; and
(b)
is an employee of the natural person.
251JE(6)
An application made by a new partnership shall specify, as an original nominee of the partnership, a partner of the kind referred to in subparagraph (2)(c)(i).
251JE(7)
An application made by a new partnership may specify, as an additional original nominee or original nominees of the partnership, a person who, or persons each of whom:
(a)
was a registered nominee of the original partnership immediately before the termination; and
(b)
is a partner, or an employee, of the new partnership.
251JE(8)
Where:
(a)
a Board receives a document purporting to be an application made in accordance with this section; and
(b)
the Board is of the opinion that the document is not an application made in accordance with this section;
251JE(9)
Where:
(a)
a Board causes to be served a notice under subsection (8) relating to a document purporting to be an application made in accordance with this section in consequence of a change in the constitution of the original partnership;
(b)
the purported application was made within 30 days after the termination of the registration of the original partnership; and
(c)
the notice under subsection (8) was served after the end of the period of 21 days after the termination of the registration of the original partnership;
S 251JE inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251JF repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251JF formerly read:
SECTION 251JF REGISTRATION OF SUCCESSOR
251JF
The Board shall register the applicant as a tax agent within 60 days after receiving the application.
S 251JF inserted by No 78 of 1988.
Subdiv E repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Subdiv E inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251JG repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251JG formerly read:
SECTION 251JG REGISTRATION OF TAX AGENTS TO BE IN FORCE FOR 3 YEARS
251JG(1)
The registration of a tax agent granted by a Board comes into force, or shall be deemed to have come into force, as the case requires:
(a)
if the registration was granted under section
251JA
-
on the day on which it was granted;
(b)
if the registration was granted under section
251JC
by way of the re-registration of an existing registration
-
immediately after the existing registration ceases or ceased to be in force; or
(c)
if the registration was granted under section
251JF
in consequence of a change in the constitution of a partnership:
(i)
if the tax agent is a natural person
-
immediately after that change; or
(ii)
if the tax agent is a partnership (in this subparagraph called the
"
new partnership
"
)
-
immediately after whichever of the following times is the later:
(A)
the time of that change;
(B)
the time of the formation of the new partnership.
251JG(2)
The registration of a tax agent granted by a Board under section
251JA
or
251JC
shall, unless terminated, cancelled or surrendered under this Act, continue in force for a period of 3 years.
251JG(3)
The registration of a tax agent granted by a Board under section
251JF
in consequence of a change in the constitution of a partnership shall, unless terminated, cancelled or surrendered under this Act, continue in force until the end of the period (including a period that is applicable because of one or more applications of this subsection) during which the registration of the partnership would have been in force if it had not been terminated because of section
251JD
.
S 251JG inserted by No 78 of 1988.
Subdiv F repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Subdiv F inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251JH repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251JH formerly read:
SECTION 251JH SURRENDER OF REGISTRATION
251JH
A person or partnership that is registered as a tax agent may, by notice in writing to the Board by which the tax agent was registered, surrender that registration.
S 251JH inserted by No 78 of 1988.
Subdiv G repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Subdiv G inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251JK repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251JK formerly read:
SECTION 251JK DEATH OF NATURAL PERSON
251JK
The registration of a natural person as a tax agent terminates on death.
S 251JK inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251JM repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251JM formerly read:
SECTION 251JM COMPANIES CEASING TO EXIST
251JM
The registration of a company as a tax agent terminates upon the company ceasing to exist.
S 251JM inserted by No 78 of 1988.
Subdiv H repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Subdiv H heading inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251K repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251K formerly read:
the Board shall suspend or cancel the registration of the tax agent. S 251K(1) amended by No 146 of 2001, substituted for former s 251K(1) and (1A), by No 78 of 1988. S 251K(1) substituted for former s 251K(1) and (1A) by No 78 of 1988. Former s 251K(1A) inserted by No 123 of 1984. S 251K(1B) amended by No 78 of 1988. S 251K(2) amended by No 78 of 1988, No 108 of 1981 and No 11 of 1947. S 251K(3) to (3D) substituted for s 251(2A) and (3) by No 78 of 1988. Former s 251K(2A) amended by No 108 of 1981 and No 216 of 1973 and inserted by No 11 of 1947. S 251K(3) to (3D) substituted for s 251(2A) and (3) by No 78 of 1988. S 251K(3A) inserted by No 78 of 1988. S 251K(3B) inserted by No 78 of 1988. S 251K(3C) inserted by No 78 of 1988. S 251K(3D) inserted by No 78 of 1988. S 251K(4) amended by No 78 of 1988. S 251K(5) to (7) substituted for s 251(5) to (10) by No 78 of 1988. Former s 251K(5) amended by No 48 of 1986 and No 123 of 1984, substituted by No 57 of 1977 and amended by No 164 of 1973 and No 11 of 1947. Former s 251K(5A) inserted by No 11 of 1947. S 251K(6) inserted by No 78 of 1988. Former s 251K(6) omitted by No 172 of 1978, substituted by No 57 of 1977 and amended by No 51 of 1973 and No 11 of 1947. S 251K(5) to (7) substituted for s 251(5) to (10) by No 78 of 1988. Former s 251K(7) substituted by No 216 of 1973. S 251K(5) to (7) substituted for s 251(5) to (10) by No 78 of 1988. Former s 251K(8) amended by No 123 of 1984 and inserted by No 216 of 1973. S 251K(9) inserted by No 123 of 1984. S 251K(10) inserted by No 123 of 1984.
SECTION 251K CANCELLATION OR SUSPENSION OF REGISTRATION OF TAX AGENTS
251K(1)
Where a Board is satisfied that a tax agent, or a registered nominee of a tax agent, has been convicted of:
(a)
an offence against section
8N
,
8T
or
8U
of the
Taxation Administration Act 1953
, or against Division
136
or
137
of the
Criminal Code
in relation to a taxation law (within the meaning of the
Taxation Administration Act 1953
); or
(b)
an offence against:
(i)
section
6
of the
Crimes Act 1914
; or
being an offence that relates to an offence of the kind referred to in paragraph (a) of this subsection;
(ii)
section
11.1
,
11.4
or
11.5
of the
Criminal Code
;
251K(1A)
(Omitted by No 78 of 1988)
251K(1B)
Nothing in subsection (1) shall be taken to restrict or limit, by implication, the generality of subsection (2).
251K(2)
A Board may suspend or cancel the registration of any tax agent upon being satisfied that:
(a)
any return which has been prepared by or on behalf of the tax agent is false in any material particular; unless the tax agent establishes to the satisfaction of the Board that he had no knowledge of the falsity or that the falsity was due to his inadvertence;
(b)
the tax agent:
(i)
has neglected the business of a principal; or
(ii)
has been guilty of misconduct as a tax agent; or
(c)
a registered nominee of the tax agent is not a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters;
(d)
if the tax agent is a natural person
-
the tax agent is not a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters;
(e)
if the tax agent is a partnership:
(i)
in the case of a partner who is a natural person
-
the partner:
(A)
has not attained the age of 18 years; or
(B)
is not of good fame, integrity and character; or
(ii)
in the case of a person who is an executive officer of a partner that is a company
-
the person:
(A)
has not attained the age of 18 years; or
(B)
is not of good fame, integrity and character; or
(f)
if the tax agent is a company
-
an executive officer of the company:
(i)
has not attained the age of 18 years; or
(ii)
is not of good fame, integrity and character.
251K(2A)
(Omitted by No 78 of 1988)
251K(3)
If the registration of a tax agent is not already suspended, a suspension of the registration of the tax agent shall be for such period as the Board concerned thinks fit.
251K(3A)
If the registration of a tax agent is already suspended, a suspension of the registration of the tax agent shall be for such further period as the Board concerned thinks fit, being a period commencing at the end of the period for which the registration of the tax agent is already suspended.
251K(3B)
The period, or further period, of a suspension under subsection (1) shall not be less than 3 months.
251K(3C)
A Board shall cancel the registration of a tax agent who is a natural person if:
(a)
the person becomes an undischarged bankrupt; or
(b)
the person permanently ceases to carry on business as a tax agent.
251K(3D)
A Board shall cancel the registration of a tax agent that is a non-exempt company if the company ceases to be a company in which qualified directors have a substantial interest.
251K(4)
A Board shall cancel the registration of a tax agent which is a partnership or a company:
(a)
in a case where the tax agent is a partnership:
(i)
if there is no partner registered as a nominee in respect of the tax agent; or
(ii)
if any partner becomes an undischarged bankrupt;
(b)
in a case where the tax agent is a company:
(i)
if there is no nominee registered in respect of the tax agent; or
(ii)
if the company goes into liquidation; or
(c)
if the tax agent permanently ceases to carry on business as a tax agent.
251K(5)
Where a Board makes a decision suspending or cancelling the registration of a tax agent, the Board shall cause to be served on the tax agent a notice in writing setting out that decision and giving the reasons for that decision.
251K(5A)
(Repealed by No 57 of 1977)
251K(6)
A person or partnership whose registration as a tax agent is suspended shall, except for the purposes of section
251BB
or
251BC
, Division
3
,
4
or
6
or section
251Q
, be taken not to be registered as a tax agent while that registration remains suspended.
251K(7)
A suspension of the registration of a tax agent continues notwithstanding that, during the period of suspension, the tax agent is re-registered.
251K(8)
-
(10)
(Omitted by No 78 of 1988)
Div 4 repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Div 4 inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251KA repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251KA formerly read:
SECTION 251KA ORIGINAL NOMINEE TO BE REGISTERED AS A NOMINEE
251KA(1)
Where a partnership or company is registered by a Board as a tax agent under section
251JA
or
251JC
, the person specified in the application for registration or re-registration as the original nominee of the partnership or company, as the case may be, shall be registered by the Board as a nominee of the tax agent for the purposes of this Part.
251KA(2)
Where a partnership or company is registered as a tax agent during a particular period because of subsection
251JC(4)
, the person specified in the application for re-registration as the original nominee of the partnership or company, as the case may be, shall be taken to have been registered as a nominee of the tax agent for the purposes of this Part during that period.
251KA(3)
Where a person or partnership is registered as a tax agent under section
251JF
, the person or each of the persons specified in the application for registration as the original nominee or as the original nominees of the person or partnership, as the case may be, shall be registered by the Board concerned as a nominee of the tax agent for the purposes of this Part.
S 251KA inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251KB repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251KB formerly read:
which the Board shall pay to the Commissioner.
SECTION 251KB APPLICATIONS FOR REGISTRATION OR RE-REGISTRATION OF NOMINEES
251KB(1)
A person or partnership may, in an application made for the purpose, request a Board to register or re-register, as a nominee of the person or partnership for the purposes of this Part:
(a)
in the case of a partnership
-
a partner or an employee of the partnership; or
(b)
in the case of a natural person or company
-
an employee of the person or company.
251KB(2)
An application shall be accompanied by a lodgment fee of:
(a)
if the proposed nominee is not already registered as a nominee of the person or partnership
-
$80, or such higher fee as is prescribed; or
(b)
if the proposed nominee is already registered as a nominee of the person or partnership
-
$5, or such higher fee as is prescribed;
251KB(3)
An application shall be in the approved form and shall be accompanied by such information as is required by the form to be provided.
251KB(4)
An application for re-registration as a nominee of a tax agent shall be made:
(a)
during the period:
(i)
commencing 60 days before; and
the day on which the existing registration ceases to be in force; or
(ii)
ending 30 days before;
(b)
if the Board, on request in writing made by the tax agent, allows the application to be made at a later time but before the existing registration ceases to be in force
-
before that later time.
251KB(5)
Where a Board makes a decision refusing to allow a later time for the making of an application for re-registration, the Board shall cause to be served on the applicant and on the proposed nominee a notice in writing setting out that decision and giving the reasons for that decision.
S 251KB inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251KC repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251KC formerly read:
the proposed nominee shall be taken to have been registered as a nominee of the tax agent during the post-expiry period.
SECTION 251KC REGISTRATION AND RE-REGISTRATION OF NOMINEES OF TAX AGENTS
251KC(1)
The Board shall register or re-register the proposed nominee as a nominee of the tax agent for the purposes of this Part if the Board is satisfied that the proposed nominee is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters.
251KC(2)
The Board shall refuse to register or re-register the proposed nominee in any other case.
251KC(3)
Where the Board makes a decision refusing to register or re-register a proposed nominee, the Board shall cause to be served on the applicant and on the proposed nominee a notice in writing setting out that decision and giving the reasons for that decision.
251KC(4)
Where:
(a)
a Board makes a decision refusing to re-register a proposed nominee as a nominee of a tax agent;
(b)
notice of that decision was served on the proposed nominee at a time (in this subsection called the
"
notice time
"
) after the time (in this subsection called the
"
expiry time
"
) when the existing registration ceased to be in force; and
(c)
the tax agent was registered during the whole or a part of the period (which whole or part is in this subsection called the
"
post-expiry period
"
) commencing at the expiry time and ending at the notice time;
S 251KC inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251KD repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251KD formerly read:
SECTION 251KD DURATION OF REGISTRATION OF NOMINEES
251KD(1)
The registration of a nominee granted by a Board comes into force, or shall be deemed to have come into force, as the case requires:
(a)
if the registration was granted by way of the re-registration of an existing registration
-
immediately after the existing registration ceases or ceased to be in force;
(b)
if the registration was granted under section
251KA
-
at the time when the registration of the tax agent concerned came or comes into force; or
(c)
in any other case
-
on the day on which it was granted.
251KD(2)
A person ceases to be a registered nominee of a tax agent if:
(a)
in a case where the tax agent is a natural person
-
the nominee ceases to be an employee of the tax agent;
(b)
in a case where the tax agent is a partnership
-
there comes a time when the nominee is neither a member of the partnership nor an employee of the partnership;
(c)
in a case where the tax agent is a company
-
the nominee ceases to be an employee of the company;
(d)
the tax agent notifies the Board by which it was registered that the tax agent no longer desires that person to be its nominee;
(e)
the registration of the nominee is cancelled;
(f)
the nominee dies; or
(g)
the registration of the tax agent is terminated, cancelled, surrendered or otherwise ceases to be in force.
S 251KD inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251KE repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251KE formerly read:
SECTION 251KE CANCELLATION OF REGISTRATION OF NOMINEES
251KE(1)
A Board may cancel the registration of a nominee of a tax agent if the Board is satisfied that the nominee is not a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters.
251KE(2)
Where a Board makes a decision cancelling the registration of a nominee of a tax agent, the Board shall cause to be served on the tax agent and on the nominee a notice in writing setting out that decision and giving the reasons for that decision.
S 251KE inserted by No 78 of 1988.
Div 5 repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Div 5 inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251KF repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251KF formerly read:
the Commissioner shall refund the lodgment fee paid in respect of the application.
SECTION 251KF REFUND OF LODGMENT FEES IF APPLICATION WITHDRAWN
251KF
Where:
(a)
an application under section
251J
,
251JB
or
251KB
is withdrawn; and
(b)
the application was neither granted nor refused before the withdrawal;
S 251KF inserted by No 78 of 1988.
Div 6 repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Div 6 inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251KG repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251KG formerly read:
Penalty: 5 penalty units. S 251KG(1) amended by
No 143 of 2007
, s 3 and Sch 7 item 104, by substituting
"
5 penalty units
"
for
"
$500
"
in the penalty, effective 24 September 2007. For
strict liability
, see section
6.1
of the
Criminal Code
.
SECTION 251KG TAX AGENTS WHO ARE NATURAL PERSONS
251KG(1)
A natural person who is registered as a tax agent shall forthwith notify the Board by which the tax agent was registered if:
(a)
the person becomes an undischarged bankrupt;
(b)
the person permanently ceases to carry on business as a tax agent; or
(c)
a person who is a registered nominee of the tax agent for the purposes of this Part ceases to be employed by the tax agent.
251KG(2)
An offence under subsection (1) is an offence of strict liability.
Note:
S 251KG(2) inserted by No 146 of 2001.
S 251KG inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251KH repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251KH formerly read:
Penalty: 5 penalty units. S 251KH(1) amended by
No 143 of 2007
, s 3 and Sch 7 item 104, by substituting
"
5 penalty units
"
for
"
$500
"
in the penalty, effective 24 September 2007. For
strict liability
, see section
6.1
of the
Criminal Code
.
SECTION 251KH TAX AGENTS THAT ARE PARTNERSHIPS
251KH(1)
A partnership that is registered as a tax agent shall forthwith notify the Board by which it was registered if:
(a)
a partner becomes an undischarged bankrupt;
(b)
a person becomes an executive officer of a partner that is a company;
(c)
a person who is a registered nominee of the partnership for the purposes of this Part and was employed by the partnership at the time the person was last registered as a nominee ceases to be employed by the partnership; or
(d)
the partnership permanently ceases to carry on business as a tax agent.
251KH(2)
An offence under subsection (1) is an offence of strict liability.
Note:
S 251KH(2) inserted by No 146 of 2001.
S 251KH inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251KJ repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251KJ formerly read:
each person who was a partner immediately before the change shall forthwith notify the Board by which the tax agent was registered. For
strict liability
, see section
6.1
of the
Criminal Code
.
SECTION 251KJ CHANGES IN THE CONSTITUTION OF PARTNERSHIPS
251KJ(1)
Where:
(a)
a partnership is registered as a tax agent; and
(b)
there is a change in the constitution of the partnership;
251KJ(1A)
An offence under subsection (1) is an offence of strict liability.
Note:
S 251KJ(1A) inserted by No 146 of 2001.
251KJ(2)
A person who was a partner in a partnership immediately before a change in the constitution of the partnership is not guilty of an offence against subsection (1) in relation to that change if another person who was a partner in the partnership immediately before that change complies with subsection (1).
Penalty: 5 penalty units.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (2), see subsection 13.3(3) of the Criminal Code .
S 251KJ(2) amended by No 146 of 2001.
S 251KJ amended by No 143 of 2007 , s 3 and Sch 7 item 104, by substituting " 5 penalty units " for " $500 " in the penalty, effective 24 September 2007.
S 251KJ inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251KK repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251KK formerly read:
Penalty: 5 penalty units. S 251KK(2) amended by
No 143 of 2007
, s 3 and Sch 7 item 104, by substituting
"
5 penalty units
"
for
"
$500
"
in the penalty, effective 24 September 2007. For
strict liability
, see section
6.1
of the
Criminal Code
.
SECTION 251KK TAX AGENTS THAT ARE COMPANIES
251KK(1)
A company that is registered as a tax agent shall forthwith notify the Board by which it was registered if:
(a)
the company goes into liquidation;
(b)
any person who is a nominee of the company for the purposes of this Part ceases to be employed by the company;
(c)
a person becomes an executive officer of the company; or
(d)
the company permanently ceases to carry on business as a tax agent.
251KK(2)
A registered tax agent that is a non-exempt company shall forthwith notify the Board if it has reasonable grounds to believe that the company has ceased to be a company in which qualified directors have a substantial interest.
251KK(3)
An offence under this section is an offence of strict liability.
Note:
S 251KK(3) inserted by No 146 of 2001.
S 251KK inserted by No 78 of 1988.
Div 7 repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Div 7 heading inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251L repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251L formerly read:
Penalty: 200 penalty units. See section
4AA
of the
Crimes Act 1914
for the current value of a penalty unit.
SECTION 251L UNREGISTERED TAX AGENTS NOT TO CHARGE FEES
251L(1)
Subject to this section, a person who is not a registered tax agent must not knowingly or recklessly demand or receive any fee for:
(a)
preparing or lodging on behalf of a taxpayer a return, notice, statement, application or other document about the taxpayer
'
s liabilities under a taxation law; or
(b)
giving advice about a taxation law on behalf of a taxpayer; or
(c)
preparing or lodging on behalf of a taxpayer an objection under Part
IVC
of the
Taxation Administration Act 1953
against an assessment, determination, notice or decision under a taxation law; or
(d)
applying for a review of, or instituting an appeal against, a decision on such an objection; or
(e)
on behalf of a taxpayer, dealing with the Commissioner or a person who is exercising powers or performing functions under a taxation law.
Note:
S 251L(1) substituted by No 91 of 2000, amended by No 123 of 1984, No 108 of 1981 and No 143 of 1965.
251L(2)
(Repealed by No 91 of 2000)
S 251L(2) amended by No 108 of 1981, No 143 of 1965 and No 28 of 1944.
251L(3)
(Repealed by No 91 of 2000)
S 251L(3) amended by No 108 of 1981.
251L(4)
(Repealed by No 91 of 2000)
S 251L(4) amended by No 48 of 1986 and No 51 of 1973.
251L(5)
A person shall not be entitled to sue for, recover or set-off any fee which he is prohibited by this section from demanding.
251L(6)
Subsection (1) does not apply to the provision of a BAS service on behalf of a taxpayer by:
(a) a member (except a student member or retired member) of a recognised professional association; or
(b) a bookkeeper working under the direction of a registered tax agent; or
(c) where the BAS service is under Part 2-5 in Schedule 1 to the Taxation Administration Act 1953 - a person who provides payroll services to an employer; or
(d) where a BAS service relates to imports or exports to which an indirect tax law (within the meaning of subsection 995-1(1) of the Income Tax Assessment Act 1997 ) applies - a customs broker licensed under Part XI of the Customs Act 1901 .
S 251L(6) amended by No 73 of 2006 , s 3 and Sch 5 item 155, by substituting " subsection 995-1(1) of the Income Tax Assessment Act 1997 " for " Part VI of the Taxation Administration Act 1953 " in para (d), effective 1 July 2006.
S 251L(6) inserted by No 91 of 2000.
Former s 251L(6) omitted by No 123 of 1984 and No 108 of 1981 and inserted by No 11 of 1947.
251L(7)
A BAS service is any of these:
(a) preparing or lodging an approved form about a taxpayer ' s liabilities, obligations or entitlements under a BAS provision;
(b) giving advice about a BAS provision;
(c) dealing with the Commissioner or a person who is exercising powers or performing functions under a taxation law in relation to a BAS provision.
S 251L(7) inserted by No 91 of 2000.
251L(8)
Subsection (1) does not apply to the provision of any of these services on behalf of a taxpayer by a barrister or solicitor who is acting in the course of his or her profession:
(a) preparing or lodging a notice, application or other document about the taxpayer ' s liabilities under a taxation law;
(b) giving advice about a taxation law;
(c) preparing or lodging an objection under Part IVC of the Taxation Administration Act 1953 against an assessment, determination, notice or decision under a taxation law;
(d) applying for a review of, or instituting an appeal against, a decision on such an objection or undertaking any litigation or proceedings about a taxation law;
(e) while acting for a trust or a deceased estate for which the barrister or solicitor is the trustee or legal personal representative, preparing or lodging a return or statement about the trust ' s or estate ' s liabilities, obligations or entitlements under a taxation law;
(f) dealing with the Commissioner or a person who is exercising powers or performing functions under a taxation law about any of the matters specified in paragraphs (a) to (e).
S 251L(8) inserted by No 91 of 2000.
251L(9)
A member of a recognised professional association can provide BAS services through an entity for:
(a) if the member is a partner in a partnership - the partnership; or
(b) if the member is a director or employee of a company - the company.
S 251L(9) inserted by No 91 of 2000.
251L(10)
A defendant does not bear an evidential burden in relation to a matter specified in subsection (6) or (8).
S 251L(10) inserted by No 91 of 2000.
(Repealed by No 114 of 2009)
S 251LA repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251LA formerly read:
SECTION 251LA
RECOGNISED PROFESSIONAL ASSOCIATIONS
251LA(1)
A
recognised professional association
is an organisation that:
(a)
meets the requirements in subsections (2) to (10); or
(b)
is a charitable institution or a public educational institution:
(i)
that meets the requirements in subsections (2) to (4); and
(ii)
whose income is exempt from income tax under section
50-5
of the
Income Tax Assessment Act 1997
; and
(iii)
whose sole or principal activity is providing education, training and information about taxation.
251LA(2)
The organisation must:
(a)
be administered by a committee of management elected by and accountable to its members; and
(b)
not be carried on for profit or gain (excluding a reasonable salary or honorarium) to:
(i)
an office holder of the organisation; or
(ii)
its members; or
(iii)
members of bodies (
member bodies
) that are its members; and
(iv)
any person who is a member of that committee of management.
251LA(3)
The individuals who are members of that committee must be of good fame, integrity and character.
251LA(4)
The organisation must have at least 1,000 financial members who have the right to vote at meetings of the organisation.
251LA(5)
An individual or member body must not be eligible for membership of the organisation unless the individual, or each individual who is a member of the member body (except a student member), has completed the requirements for:
(a)
a diploma or certificate in accounting from a college or institute of technical and further education involving at least 2 years
'
full time, or 4 years
'
part time, study; or
(b)
an Australian tertiary qualification in accountancy involving at least 3 years
'
full time, or 6 years
'
part time, study; or
(c)
some other similar qualification, or exemption from qualification, acceptable to the organisation; or
(d)
admission as a legal practitioner in Australia.
251LA(6)
Under the rules of the organisation, individuals who are its members or members of its member bodies and who carry on a profession must:
(a)
be subject to rules controlling their conduct in the practice of that profession; and
(b)
be subject to discipline for breaches of those rules; and
(c)
be required to undertake at least 15 hours of continuing professional education in each year (unless exempted in special circumstances); and
(d)
if they are permitted by that organisation to be in public practice
-
have professional indemnity insurance.
251LA(7)
The organisation must have in place adequate operational procedures to ensure it is properly managed and its rules are enforced.
251LA(8)
The organisation must have satisfactory arrangements in place for:
(a)
notifying clients of its members or of members of its member bodies as to how to make complaints; and
(b)
hearing and deciding those complaints; and
(c)
taking disciplinary action if complaints are justified.
251LA(9)
The organisation must have satisfactory arrangements in place for publishing annual statistics about:
(a)
the kinds and frequency of complaints (except complaints under this Act about registered tax agents); and
(b)
findings made as a result of the complaints; and
(c)
action taken as a result of those findings.
251LA(10)
The organisation must be able to pay its debts as they fall due.
S 251LA inserted by No 91 of 2000.
(Repealed by No 114 of 2009)
S 251M repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251M formerly read:
The general interest charge is worked out under Part
IIA
of the
Taxation Administration Act 1953
and shortfall interest charge is worked out under Division
280
in Schedule
1
to that Act. Subsection
8AAB(4)
of that Act lists the provisions that apply the general interest charge.
SECTION 251M NEGLIGENCE OF REGISTERED TAX AGENT ETC.
251M(1)
If, through the negligence of a registered tax agent, or of a person exempted under section
251L
, a taxpayer becomes liable to pay a fine or other penalty, the general interest charge under a provision of this Act, or to pay shortfall interest charge, the registered tax agent, or the person, as the case may be, shall be liable to pay to the taxpayer the amount of that fine or other penalty, additional tax, general interest charge or shortfall interest charge, and that amount may be sued for and recovered by the taxpayer in any court of competent jurisdiction.
Note 1:
Note 2:
S 251M(1) amended by No 101 of 2006 , s 3 and Sch 2 item 1034, by omitting the reference to a repealed inoperative division in note 1, effective 14 September 2006. For application and savings provisions see the CCH Australian Income Tax Legislation archive .
S 251M(1) amended by No 75 of 2005, No 11 of 1999, No 101 of 1992 and No 108 of 1981.
251M(2)
Nothing in this section shall exonerate the taxpayer from his liability.
(Repealed by No 114 of 2009)
S 251N repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251N formerly read:
Penalty: 10 penalty units. S 251N(1) amended by
No 143 of 2007
, s 3 and Sch 7 item 104, by substituting
"
10 penalty units
"
for
"
$1,000
"
in the penalty, effective 24 September 2007. S 251N(1) amended by No 123 of 1984, No 108 of 1981, No 51 of 1973 and No 143 of 1965. Penalty: 10 penalty units. S 251N(2) amended by
No 143 of 2007
, s 3 and Sch 7 item 104, by substituting
"
10 penalty units
"
for
"
$1,000
"
in the penalty, effective 24 September 2007. S 251N(2) amended by No 146 of 2001, No 78 of 1988, No 123 of 1984, No 108 of 1981 and No 143 of 1965. A defendant bears an evidential burden in relation to the matters in subsection (2A), see subsection
13.3(3)
of the
Criminal Code
.
SECTION 251N PREPARATION OF RETURNS ETC. ON BEHALF OF REGISTERED TAX AGENTS
251N(1)
A registered tax agent or a person exempted under section
251L
shall not allow any person, not being his employee, a registered tax agent or, in the case of a partnership which is registered as a tax agent, a member of that partnership:
(a)
to prepare on his behalf, either directly or indirectly, his own or any other income tax return or objection; or
(b)
to conduct on his behalf, either directly or indirectly, any business of himself or any other person relating to any income tax return or income tax matter.
251N(2)
A partnership or company which is registered as a tax agent shall not allow any person to do anything specified in paragraph (1)(a) or (b).
251N(2A)
Subsection (2) does not apply to the extent that the person does the thing under the supervision and control of a registered nominee of the partnership or company.
Note:
S 251N(2A), (2B) and (2C) substituted for s 251(2A) by No 146 of 2001.
S 251N(2A) inserted by No 78 of 1988.
251N(2B)
A natural person who is registered as a tax agent must not allow any person to do anything specified in paragraph (1)(a) or (b).
Penalty: 10 penalty units.
S 251N(2B) amended by No 143 of 2007 , s 3 and Sch 7 item 104, by substituting " 10 penalty units " for " $1,000 " in the penalty, effective 24 September 2007.
S 251N(2A), (2B) and (2C) substituted for s 251(2A) by No 146 of 2001.
251N(2C)
Subsection (2B) does not apply to the extent that the person does the thing under the supervision and control of:
(a) the tax agent; or
(b) a registered nominee of the tax agent.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (2C), see subsection 13.3(3) of the Criminal Code .
S 251N(2A), (2B) and (2C) substituted for s 251(2A) by No 146 of 2001.
251N(3)
Nothing in this section shall be construed as prohibiting the employment by a registered tax agent or person exempted under section 251L of solicitor or counsel to act in the course of his profession in the preparation of any objection or in any litigation or proceedings before a board, the Tribunal or a court, or in an advisory capacity either in connexion with the preparation of any such return or the conduct of any such business.
S 251N(3) amended by No 48 of 1986 and No 51 of 1973.
(Repealed by No 114 of 2009)
S 251O repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251O formerly read:
Penalty: 10 penalty units. S 251O(1) amended by
No 143 of 2007
, s 3 and Sch 7 item 104, by substituting
"
10 penalty units
"
for
"
$1,000
"
in the penalty, effective 24 September 2007. S 251O(1) amended by No 78 of 1988, No 123 of 1984, No 108 of 1981, No 51 of 1973 and No 143 of 1965. S 251O(2) inserted by No 78 of 1988.
SECTION 251O ADVERTISING ETC. BY PERSONS OTHER THAN REGISTERED TAX AGENTS
251O(1)
Subject to this section, a person, not being a registered tax agent or a person exempted under section
251L
, shall not, directly or indirectly:
(a)
describe himself as or represent himself to be a tax agent; or
(b)
advertise in any manner whatsoever that income tax returns will be prepared by him or that any other matter in connexion with income tax will be attended to by him.
251O(2)
Paragraph (1)(b) does not apply in relation to advertising that relates to acts or things done or to be done:
(a)
by a solicitor or counsel acting in the course of his or her profession:
(i)
in the preparation of an objection;
(ii)
in litigation or proceedings before a board, the Tribunal or a court; or
(iii)
in an advisory capacity in connection with the preparation of an income tax return or with any income tax matter; or
(b)
by a person providing services on a voluntary basis under a scheme approved by the Commissioner by notice published in the
Gazette.
Div 8 repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010.
Div 8 heading inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251P repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251P formerly read:
SECTION 251P OFFENCES BY PARTNERSHIPS
251P
Where, under any provision of this Part, an obligation is imposed on a partnership to do, or refrain from doing, anything, every partner shall, upon the refusal or failure of the partnership to comply with the obligations, unless he proves that he had no knowledge of the refusal or failure, be guilty of an offence, and be liable to the penalty provided in respect of the obligation:
S 251P amended by No 123 of 1984 and inserted by No 10 of 1943.
(Repealed by No 114 of 2009)
S 251Q repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251Q formerly read:
SECTION 251Q REMOVAL OF BUSINESS TO ANOTHER STATE
251Q
Where a registered tax agent or a person exempted under section
251L
removes his place of business, or if he has more than one place of business, his principal place of business, to another State, the Board in that State shall, for the purposes of this Part, be deemed to be the Board by which the tax agent or person was registered or exempted.
S 251Q amended by No 51 of 1973 and inserted by No 11 of 1947.
(Repealed by No 114 of 2009)
S 251QA repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251QA formerly read:
SECTION 251QA REVIEW OF DECISIONS
251QA
Applications may be made to the Tribunal for review of the following decisions of a Board:
(a)
a decision refusing to register a person or a partnership as a tax agent (not being a decision under Subdivision D of Division
3
);
(b)
a decision refusing to re-register a tax agent;
(c)
a decision refusing to allow a later time for the making of an application for re-registration as a tax agent;
(d)
a decision to suspend or cancel the registration of a tax agent;
(e)
a decision refusing to register a person as a nominee of a tax agent;
(f)
a decision refusing to re-register a person as a nominee of a tax agent;
(g)
a decision refusing to allow a later time for the making of an application for re-registration as a nominee of a tax agent;
(h)
a decision to cancel the registration of a nominee of a tax agent.
S 251QA inserted by No 78 of 1988.
(Repealed by No 114 of 2009)
S 251QB repealed by No 114 of 2009, s 3 and Sch 1 item 7, effective 1 March 2010. S 251QB formerly read:
SECTION 251QB STATEMENTS TO ACCOMPANY NOTIFICATION OF DECISIONS
251QB(1)
Where a decision of a kind referred to in section
251QA
is made and notice in writing of the decision is given to a person affected by the decision, that notice shall include a statement to the effect that a person whose interests are affected by the decision may, subject to the
Administrative Appeals Tribunal Act 1975
, if dissatisfied with the decision, make application to the Tribunal for review of the decision.
251QB(2)
Any failure to comply with subsection (1) does not affect the validity of the decision.
S 251QB inserted by No 78 of 1988.