PART I - PRELIMINARY
SECTION 1
1
SHORT TITLE
This Act may be cited as the
Taxation Administration Act 1953.
SECTION 2
INTERPRETATION
2(1)
In this Act (except Schedule
1), unless the contrary intention appears-
approved form
has the meaning given by Schedule 1.
History
Definition of "approved form" inserted by No 12 of 2012, s 3 and Sch 6 item 27, effective 22 December 1999.
ASIO
means the Australian Security Intelligence Organisation.
History
Definition of "ASIO" inserted by No 161 of 1999.
ASIO officer
(Repealed by No 145 of 2010)
History
Definition of "ASIO officer" repealed by No 145 of 2010, s 3 and Sch 2 item 96, effective 17 December 2010. The definition formerly read:
ASIO officer
means:
(a)
the Director-General of Security; or
(b)
a person employed under paragraph 84(1)(a) or (b) of the Australian Security Intelligence Organisation Act 1979.
Definition of "ASIO officer" inserted by No 161 of 1999.
assessable amount
has the meaning given by subsection 155-5(2) in Schedule 1.
History
Definition of "assessable amount" inserted by No 21 of 2015, s 3 and Sch 7 item 33, effective 20 March 2015.
Australia
, when used in a geographical sense, has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "Australia" inserted by No 2 of 2015, s 3 and Sch 4 item 75, applicable from 1 July 2015.
authorised ASIO officer
(Repealed by No 145 of 2010)
History
Definition of "authorised ASIO officer" repealed by No 145 of 2010, s 3 and Sch 2 item 97, effective 17 December 2010. The definition formerly read:
authorised ASIO officer
means:
(a)
the Director-General of Security; or
(b)
any other ASIO officer who has been authorised in writing by the Director-General of Security to receive particular tax information.
Definition of "authorised ASIO officer" inserted by No 161 of 1999.
authorised law enforcement agency officer
(Repealed by No 145 of 2010)
History
Definition of "authorised law enforcement agency officer" repealed by No 145 of 2010, s 3 and Sch 2 item 98, effective 17 December 2010. The definition formerly read:
authorised law enforcement agency officer
means:
(a)
the head of a law enforcement agency; or
(b)
an officer of a law enforcement agency authorised in writing by the head of the agency to perform the functions of an authorised law enforcement agency officer under this Act.
Definition of "authorised law enforcement agency officer" inserted by No 107 of 1989.
authorised Royal Commission officer
(Repealed by No 145 of 2010)
History
Definition of "authorised Royal Commission officer" repealed by No 145 of 2010, s 3 and Sch 2 item 99, effective 17 December 2010. The definition formerly read:
authorised Royal Commission officer
means:
(a)
the person, or each of the persons, constituting an eligible Royal Commission; or
(b)
an official of an eligible Royal Commission authorised in writing by the Chairperson of the eligible Royal Commission to perform the functions of an authorised Royal Commission officer under this Act.
Definition of "authorised Royal Commission officer" inserted by No 47 of 1992.
Chairperson
(Repealed by No 145 of 2010)
History
Definition of "Chairperson" repealed by No 145 of 2010, s 3 and Sch 2 item 100, effective 17 December 2010. The definition formerly read:
Chairperson,
in relation to an eligible Royal Commission, means:
(a)
if the eligible Royal Commission is constituted by a single person - that person; or
(b)
if:
(i)
the eligible Royal Commission is constituted by 2 or more members; and
(ii)
one of those members is appointed to be the Chairperson (however described) of the eligible Royal Commission;
that member; or
(c)
if:
(i)
the eligible Royal Commission is constituted by 2 or more members; and
(ii)
paragraph (b) does not apply;
whichever of those members is designated as the Chairperson of the eligible Royal Commission for the purposes of this Act in accordance with a written notice that is:
(iii)
signed by all of those members; and
(iv)
given to the Commissioner.
Definition of "Chairperson" inserted by No 47 of 1992.
Commissioner
means the Commissioner of Taxation.
Customs diesel fuel rebate provision
(Repealed by No 54 of 2003)
History
Definition of "Customs diesel fuel rebate provision" repealed by No 54 of 2003, s 3 and Sch 5 item 1, effective 1 July 2003. The definition formerly read:
Customs diesel fuel rebate provision
means:
(a)
section 164, 164A, 164AA, 164AB, 164AC, 164AD, 164AE, 164AF or 240A, or subsection 273GAA(6), of the Customs Act 1901; or
(b)
any regulation made under the Customs Act 1901 for the purposes of a provision referred to in paragraph (a).
Act No 54 of 2003, s 3 and Sch 5 item 37 contains the following transitional provision:
37 Transitional
(1) Despite the amendments made by this Schedule, the Taxation Administration Act 1953 continues to apply, as if it had not been amended by this Schedule, in relation to any act or omission:
(a)
that took place before 1 July 2003 under or for the purposes of the Diesel and Alternative Fuels Grants Scheme Act 1999; or
(b)
that takes place on or after that day under or for the purposes of that Act in its continued operation in accordance with item 2 of Schedule 2 to this Act.
Note:
The above subitem will, for example, have the effect that:
(a) an order may be made under section 8W in the Taxation Administration Act 1953 in relation to an offence committed in relation to the Diesel and Alternative Fuels Grants Scheme Act 1999 before or after its repeal; and
(b) a document may be certified under section 15A in the Taxation Administration Act 1953 as a true copy of a document obtained under the Diesel and Alternative Fuels Grants Scheme Act 1999 before or after its repeal.
(2) Despite the repeal of subsection 17B(8) of the Taxation Administration Act 1953, section 17B of that Act continues to apply in relation to conduct that constituted or would constitute a contravention of the Diesel and Alternative Fuels Grants Scheme Act 1999, in its continued operation in accordance with item 2 of Schedule 2 to this Act, as if that Act were a taxation law.
Act No 54 of 2003, s 3 and Sch 7 item 1 contains the following additional transitional provision:
Transitional extension of Energy Grants (Credits) Scheme to certain fuel purchased or imported into Australia before 1 July 2003
(1) This item applies if, during the period from the beginning of 1 July 2000 until the end of 30 June 2003, a person purchased or imported into Australia on-road diesel fuel, on-road alternative fuel or off-road diesel fuel, within the meaning of the Energy Grants (Credits) Scheme Act 2003.
(2) The Energy Grants (Credits) Scheme Act 2003 applies to such fuel in the same way as it applies to on-road diesel fuel, on-road alternative fuel or off-road diesel fuel purchased or imported into Australia on or after 1 July 2003.
(3) If, as a result of subitem (2), a person becomes entitled to an energy grant under the Energy Grants (Credits) Scheme Act 2003, the person is not entitled to make a claim for payment of the grant under section 15 of the Product Grants and Benefits Administration Act 2000 if:
(a) the person has made a claim (other than one that has been withdrawn) in respect of the same fuel under section 15 of the Diesel and Alternative Fuels Grants Scheme Act 1999, including in its operation in accordance with item 2 of Schedule 2 to this Act; or
(b) the person has made an application (other than one that has been withdrawn) in respect of the same fuel under section 164 of the Customs Act 1901, including in its operation in accordance with item 25 of Schedule 3 to this Act; or
(c) the person has made an application (other than one that has been withdrawn) in respect of the same fuel under section 78A of the Excise Act 1901, including in its operation in accordance with item 18 of Schedule 4 to this Act.
Definition of "Customs diesel fuel rebate provision" inserted by No 25 of 2001.
Deputy Commissioner
means any Deputy Commissioner of Taxation.
Director-General of Security
means the Director-General of Security holding office under the Australian Security Intelligence Organisation Act 1979.
History
Definition of "Director-General of Security" inserted by No 161 of 1999.
eligible Royal Commission
(Repealed by No 145 of 2010)
History
Definition of "eligible Royal Commission" repealed by No 145 of 2010, s 3 and Sch 2 item 101, effective 17 December 2010. The definition formerly read:
eligible Royal Commission
means:
(a)
the Royal Commission of Western Australia referred to in a notice published in the Western Australian Government Gazette (No. 4 Special Issue) on 8 January 1991; or
(b)
a prescribed Royal Commission of the Commonwealth, a State or a Territory; or
(c)
a prescribed commission of inquiry of a State or a Territory; or
(d)
a prescribed board of inquiry of a State or a Territory.
Definition of "eligible Royal Commission" inserted by No 47 of 1992.
engage in conduct
means:
(a)
do an act; or
(b)
omit to perform an act.
History
Definition of "engage in conduct" inserted by No 146 of 2001.
excess concessional contributions determination
has the same meaning as in subsection 995-1(1) of the Income Tax Assessment Act 1997.
History
Definition of "excess concessional contributions determination" inserted by No 118 of 2013, s 3 and Sch 1 item 29, effective 29 June 2013. For application, transitional and saving provisions, see note under Sch 1 Pt 2-35 heading.
excise law
has the meaning given by the Income Tax Assessment Act 1997.
History
Definition of "excise law" inserted by No 74 of 2010, s 3 and Sch 2 item 13, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling".
exempt Australian government agency
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
History
Definition of "exempt Australian government agency" inserted by No 11 of 1999.
failure to notify penalty
means the penalty worked out under Division 2 of Part IIA.
History
Definition of "failure to notify penalty" inserted by No 11 of 1999.
fuel tax law
has the meaning given by the Fuel Tax Act 2006.
History
Definition of "fuel tax law" inserted by No 74 of 2010, s 3 and Sch 2 item 14, effective 1 July 2010. For transitional provision, see note under definition of "private indirect tax ruling".
general interest charge
means the charge worked out under Part IIA.
History
Definition of "general interest charge" amended by No 101 of 2006, s 3 and Sch 2 item 1057, by amending references to repealed inoperative provisions, effective 14 September 2006. For application and savings provisions see the CCH Australian Income Tax Legislation archive.
Definition of "general interest charge" inserted by No 11 of 1999.
head
(Repealed by No 145 of 2010)
History
Definition of "head" repealed by No 145 of 2010, s 3 and Sch 2 item 102, effective 17 December 2010. The definition formerly read:
head,
in relation to a law enforcement agency, means:
(a)
in the case of the Australian Federal Police - the Commissioner of that police force;
(b)
in the case of a police force of a State or the Northern Territory - the commanding officer of the police force;
(c)
in the case of the Office of the Director of Public Prosecutions - the Director of Public Prosecutions;
(ca)
in the case of the Australian Commission for Law Enforcement Integrity - the Integrity Commissioner (within the meaning of the Law Enforcement Integrity Commissioner Act 2006);
(d)
in the case of the Australian Crime Commission - the Chief Executive Officer of the Commission;
(daa)
(Repealed by No 125 of 2002)
(dab)
in the case of the Independent Commission Against Corruption - the Commissioner of the Commission;
(dac)
in the case of the New South Wales Crimes Commission - the Chairperson of the Commission;
(dad)
in the case of the Crime and Misconduct Commission - the Chairperson of that Commission;
(dae)
in the case of the New South Wales Police Integrity Commission - the Commissioner for the New South Wales Police Integrity Commission;
(daf)
(Repealed by No 100 of 2005)
(dag)
in the case of the Corruption and Crime Commission of Western Australia - the Commissioner for that Commission;
(da)
in the case of the Australian Securities Commission - the Chairperson of that Commission;
(e)
in the case of the National Companies and Securities Commission - the Chairman of that Commission;
(f)
in the case of the Corporate Affairs Commission of a State - the Commissioner for Corporate Affairs of that State;
(g)
in the case of the Corporate Affairs Commission of the Northern Territory - the Commissioner for Corporate Affairs for the Northern Territory; and
(h)
in the case of the Corporate Affairs Commission for the Australian Capital Territory - the Commissioner appointed under the Corporate Affairs Commission Ordinance 1980 of that Territory.
Definition of "head" amended by No 86 of 2006, s 3 and Sch 1 item 71, by inserting para (ca) after para (c), effective 30 December 2006.
Definition of "head" amended No 100 of 2005, No 63 of 2005, No 125 of 2002, by No 135 of 2001, No 94 of 1999; No 17 of 1993; No 100 of 1991; No 110 of 1990; and inserted by No 107 of 1989.
IGIS officer
(Repealed by No 145 of 2010)
History
Definition of "IGIS officer" repealed by No 145 of 2010, s 3 and Sch 2 item 103, effective 17 December 2010. The definition formerly read:
IGIS officer
means:
(a)
the Inspector-General; or
(b)
a member of staff appointed to assist the Inspector-General under the Inspector-General of Intelligence and Security Act 1986.
Definition of "IGIS officer" inserted by No 161 of 1999.
Immigration Department
has the meaning given by the Income Tax Assessment Act 1997.
History
Definition of "Immigration Department" amended by No 145 of 2010, s 3 and Sch 3 item 16, by substituting "Immigration Department has the meaning given by the Income Tax Assessment Act 1997" for "Immigration Department has the meaning given by the Income Tax Assessment Act 1936", effective 17 December 2010.
Definition of "Immigration Department" inserted by No 88 of 2009, s 3 and Sch 5 item 239, effective 18 September 2009.
Immigration Minister
(Repealed by No 110 of 2014)
History
Definition of "Immigration Minister" repealed by No 110 of 2014, s 3 and Sch 5 item 68, effective 16 October 2014. For transitional provision see note under s 15-50(1). The definition formerly read:
Immigration Minister
has the meaning given by the Income Tax Assessment Act 1997.
Definition of "Immigration Minister" amended by No 145 of 2010, s 3 and Sch 3 item 17, by substituting "Immigration Minister has the meaning given by the Income Tax Assessment Act 1997" for "Immigration Minister has the meaning given by the Income Tax Assessment Act 1936", effective 17 December 2010.
Definition of "Immigration Minister" inserted by No 88 of 2009, s 3 and Sch 5 item 240, effective 18 September 2009.
Immigration Secretary
has the meaning given by the Income Tax Assessment Act 1997.
History
Definition of "Immigration Secretary" amended by No 145 of 2010, s 3 and Sch 3 item 18, by substituting "Immigration Secretary has the meaning given by the Income Tax Assessment Act 1997" for "Immigration Secretary has the meaning given by the Income Tax Assessment Act 1936", effective 17 December 2010.
Definition of "Immigration Secretary" inserted by No 88 of 2009, s 3 and Sch 5 item 233, effective 18 September 2009.
indirect tax law
has the meaning given by the Income Tax Assessment Act 1997.
History
Definition of "indirect tax law" inserted by No 74 of 2010, s 3 and Sch 2 item 15, effective 1 July 2010. For transitional provision, see note under "private indirect tax ruling".
ineligible income tax remission decision
has the meaning given by section 14ZS.
History
Definition of "ineligible income tax remission decision" inserted by No 41 of 2011, s 3 and Sch 5 item 168, effective 27 June 2011.
Inspector-General
(Repealed by No 145 of 2010)
History
Definition of "Inspector-General" repealed by No 145 of 2010, s 3 and Sch 2 item 104, effective 17 December 2010. The definition formerly read:
Inspector-General
means the Inspector-General of Intelligence and Security holding office under the Inspector-General of Intelligence and Security Act 1986.
Definition of "Inspector-General" inserted by No 161 of 1999.
late reconciliation statement penalty
means the penalty worked out under Division 3 of Part IIA.
History
Definition of "late reconciliation statement penalty" inserted by No 11 of 1999.
law enforcement agency
(Repealed by No 145 of 2010)
History
Definition of "law enforcement agency" repealed by No 145 of 2010, s 3 and Sch 2 item 105, effective 17 December 2010. The definition formerly read:
law enforcement agency
means:
(a)
the Australian Federal Police; or
(b)
the police force of a State or of the Northern Territory; or
(c)
the Office of the Director of Public Prosecutions; or
(ca)
the Australian Commission for Law Enforcement Integrity; or
(d)
the Australian Crime Commission; or
(daa)
(Repealed by No 125 of 2002)
(dab)
the Independent Commission Against Corruption established by the Independent Commission Against Corruption Act 1988 of New South Wales; or
(dac)
the New South Wales Crimes Commission; or
(dad)
(Repealed by No 101 of 2004)
(dae)
the New South Wales Police Integrity Commission; or
(daf)
the Crime and Misconduct Commission of Queensland; or
(dag)
the Corruption and Crime Commission of Western Australia; or
(da)
the Australian Securities Commission; or
(e)
the National Companies and Securities Commission; or
(f)
a Corporate Affairs Commission established under a law of a State, of the Northern Territory or of the Australian Capital Territory.
Definition of "law enforcement agency" amended by No 86 of 2006, s 3 and Sch 1 item 72, by inserting para (ca), effective 30 December 2006.
Definition of "law enforcement agency" amended by No 63 of 2005; No 101 of 2004; No 125 of 2002; No 94 of 1999; No 17 of 1993; No 100 of 1991; No 110 of 1990; and inserted by No 107 of 1989.
migration officer
means:
(a)
the Immigration Secretary; or
(b)
an employee of the Immigration Department.
History
Definition of "migration officer" inserted by No 88 of 2009, s 3 and Sch 5 item 241, effective 18 September 2009.
objection decision
has the meaning given by subsection 14ZY(2).
History
Definition of "objection decision" inserted by No 39 of 2012, s 3 and Sch 1 item 29, effective 1 July 2012. For application provisions see note under s 8AAZLG(2).
officer
means a person appointed or engaged under the Public Service Act 1999.
History
Definition of "officer" substituted by No 146 of 1999.
official
(Repealed by No 145 of 2010)
History
Definition of "official" repealed by No 145 of 2010, s 3 and Sch 2 item 106, effective 17 December 2010. The definition formerly read:
official,
in relation to an eligible Royal Commission, means:
(a)
a barrister or solicitor appointed to assist the person or persons constituting the eligible Royal Commission; or
(b)
a person assisting a barrister or solicitor so appointed; or
(c)
a member of a police force assigned to the eligible Royal Commission to carry out an investigation on behalf of, or under the control of, the person or persons constituting the eligible Royal Commission; or
(d)
a person or employee under the control of the person or persons constituting the eligible Royal Commission.
Definition of "official" inserted by No 47 of 1992.
private ancillary fund
(Repealed by No 147 of 2011)
History
Definition of "private ancillary fund" repealed by No 147 of 2011, s 3 and Sch 8 item 43, effective 29 November 2011. The definition formerly read:
private ancillary fund
has the meaning given by section 426-105 in Schedule 1.
Definition of "private ancillary fund" inserted by No 88 of 2009, s 3 and Sch 2 item 16, effective 1 October 2009.
private indirect tax ruling
means a private ruling, to the extent that it relates to an indirect tax law (other than the fuel tax law).
History
Definition of "private indirect tax ruling" inserted by No 74 of 2010, s 3 and Sch 2 item 16, effective 1 July 2010.
No 74 of 2010, s 3 and Sch 2 item 46 contains the following transitional provision:
46 Transitional provision
Interpretation
(1)
In this item:
indirect tax ruling
has the meaning given by the Income Tax Assessment Act 1997, as in force just before 1 July 2010.
private indirect tax ruling
has the meaning given by the Income Tax Assessment Act 1997, as in force just before 1 July 2010.
Rulings
(2)
A private indirect tax ruling that is in force just before 1 July 2010 has effect, from that commencement, as if it had been made under Division 359 in Schedule 1 to the Taxation Administration Act 1953, as amended.
(3)
An indirect tax ruling that:
(a)
is in force just before the commencement of this item; and
(b)
is labelled as a public ruling, or was described as a public ruling in the Gazette in which it was published;
has effect, from that commencement, as if it had been made under Division 358 in Schedule 1 to the Taxation Administration Act 1953, as amended.
Applications for private rulings
(4)
An application for a private indirect tax ruling is taken to have been made under Division 359 in Schedule 1 to the Taxation Administration Act 1953, as amended, if:
(a)
you made the application before 1 July 2010; and
(b)
just before 1 July 2010:
(i)
the Commissioner had neither made the ruling nor declined to make the ruling; and
(ii)
you had not withdrawn the application.
private ruling
has the meaning given by section 359-5 in Schedule 1.
History
Definition of "private ruling" inserted by No 74 of 2010, s 3 and Sch 2 item 17, effective 1 July 2010. For transitional provision, see note under the definition of "private indirect tax ruling".
registered tax agent or BAS agent
has the same meaning as in the Tax Agent Services Act 2009.
History
Definition of "registered tax agent or BAS agent" inserted by No 114 of 2009, s 3 and Sch 1 item 14, effective 1 March 2010.
Second Commissioner
means a Second Commissioner of Taxation.
Small Taxation Claims Tribunal
(Repealed by No 60 of 2015)
History
Definition of "Small Taxation Claims Tribunal" repealed by No 60 of 2015, s 3 and Sch 8 item 45, effective 1 July 2015. The definition formerly read:
Small Taxation Claims Tribunal
means the Taxation Appeals Division of the Administrative Appeals Tribunal when that Division is required under Part IIIAA of the Administrative Appeals Tribunal 1975 to be known as the Small Taxation Claims Tribunal.
Definition of "Small Taxation Claims Tribunal" inserted by No 34 of 1997.
SPOR taxpayer
(Repealed by No 161 of 2005)
Hide history note
History
Definition of "SPOR taxpayer" inserted by No 179 of 1999.
taxation law
has the meaning given by the Income Tax Assessment Act 1997.
Note:
See also subsection (2).
History
Definition of "taxation law" amended by No 41 of 2011, s 3 and Sch 5 item 401, by inserting the note at the end, effective 27 June 2011.
Definition of "taxation law" substituted by No 9 of 2007, s 3 and Sch 5 item 31, applicable to the 2007-2008 income year and later years.
Act No 9 of 2007, s 3 and Sch 5 item 32 contained the following transitional provision:
Transitional - meaning of
taxation law
32
In determining the meaning of
taxation law
in the Taxation Administration Act 1953 before the commencement of this item, the amendments made are to be disregarded.
The definition formerly read:
taxation law
means:
(a)
this Act;
(b)
any other Act of which the Commissioner has the general administration (other than an Act prescribed for the purposes of this paragraph);
(ba)
the A New Tax System (Australian Business Number) Act 1999;
(bb)
(Repealed by No 54 of 2003)
(c)
regulations under an Act referred to in paragraph (a), (b) or (ba);
Note:
Subsection (2) restricts the meaning of this term in Part III, and in Subdivision 284-B in Schedule 1.
Definition of "taxation law" amended by No 54 of 2003, No 25 of 2001, No 201 of 1999 and No 85 of 1999.
tax liability
means a liability to the Commonwealth arising under, or by virtue of, a taxation law.
Tribunal
means the Administrative Appeals Tribunal.
History
Definition of "Tribunal" amended by No 60 of 2015, s 3 and Sch 8 item 46, by omitting "or, in appropriate circumstances, the Small Taxation Claims Tribunal" after "Administrative Appeals Tribunal", effective 1 July 2015.
Definition of "Tribunal" amended by No 34 of 1997, and inserted by No 48 of 1986.
2(2)
Despite the definition of
taxation law
in subsection (1), an Excise Act (as defined in subsection
4(1) of the
Excise Act 1901) is not a taxation law for the purposes of Part III of this Act.
History
S 2(2) amended by No 41 of 2011, s 3 and Sch 5 item 402, by omitting ", and Subdivision 284-B in Schedule 1 to," before "this Act.", effective 27 June 2011.
S 2(2) substituted by No 74 of 2006, s 3 and Sch 1 item 97, effective 1 July 2006. S 2(2) formerly read:
2(2)
Despite the definition of
taxation law
in subsection (1), the following are not taxation laws for the purposes of Part III, and Subdivision 284-B in Schedule 1:
(a)
any Excise Act (as defined in subsection 4(1) of the Excise Act 1901);
(b)
the Fuel (Penalty Surcharges) Administration Act 1997.
(c)
(Repealed by No 54 of 2003)
S 2(2) amended by No 54 of 2003. For transitional provisions, see note under definition of "Customs diesel fuel rebate provision" in s 2(1).
S 2(2) inserted by No 25 of 2001.
S 2 amended by No 179 of 1999 and substituted by No 123 of 1984.
SECTION 2A
2A
APPLICATION OF THE
CRIMINAL CODE
Chapter 2 of the
Criminal Code applies to all offences against this Act.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
History
S 2A inserted by No 146 of 2001.
SECTION 2B
2B
ACT BINDS THE CROWN
This Act binds the Crown in each of its capacities. However, it does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.
History
S 2B inserted by No 2 of 2015, s 3 and Sch 2 item 8, effective 25 February 2015.
SECTION 3
3
APPLICATION
This Act extends to every external Territory referred to in the definition of
Australia
.
History
S 3 substituted by No 2 of 2015, s 3 and Sch 4 item 76, applicable from 1 July 2015. S 3 formerly read:
SECTION 3 EXTENSION OF ACT TO EXTERNAL TERRITORIES
3
This Act extends to every external Territory.
3(2)
(Repealed by No 88 of 2009)
History
S 3(2) repealed by No 88 of 2009, s 3 and Sch 5 item 247, effective 18 September 2009. S 3(2) formerly read:
3(2)
Part IV does not extend to an external Territory to which the Banking Act 1959 does not extend.
S 3 (formerly s 3(1)) amended by No 88 of 2009, s 3 and Sch 5 item 246, by substituting "This" for "(1) Subject to subsection (2), this", effective 18 September 2009.
S 3 substituted by No 123 of 1984.
SECTION 3AA
SCHEDULE 1
3AA(1)
[Effect]
Schedule 1 has effect.
Definitions in Schedule 1 do not apply to rest of Act
3AA(1A)
So far as a provision in Schedule
1 gives an expression a particular meaning, the provision does
not also have effect for the purposes of this Act (other than Schedule
1), except as provided in this Act (other than Schedule
1).
History
S 3AA(1A) inserted by No 12 of 2012, s 3 and Sch 6 item 28, effective 22 December 1999.
3AA(2)
Application of interpretation provisions of
Income Tax Assessment Act 1997
.
An expression has the same meaning in Schedule 1 as in the Income Tax Assessment Act 1997.
3AA(3)
[ITAA97, Div 950]
Division 950 of the Income Tax Assessment Act 1997 (which contains rules for interpreting that Act) applies to Schedule 1 to this Act as if the provisions in that Schedule were provisions of that Act.
3AA(4)
(Repealed by No 91 of 2000)
History
S 3AA inserted by No 178 of 1999.
PART IA - ADMINISTRATION
History
Pt IA inserted by No 123 of 1984.
SECTION 3A
3A
GENERAL ADMINISTRATION OF ACT
The Commissioner has the general administration of this Act.
Note:
An effect of this provision is that people who acquire information under this Act are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1.
History
S 3A amended by No 145 of 2010, s 3 and Sch 2 item 107, by inserting the note at the end, effective 17 December 2010.
SECTION 3B
ANNUAL REPORT
3B(1)
The Commissioner shall, as soon as practicable after 30 June in each year, prepare and furnish to the Minister a report on the working of this Act.
History
S 3B(1) amended by No 107 of 1989.
3B(1AA)
A report under subsection (1) in relation to a year ending on 30 June shall:
(a)
(Repealed by No 21 of 2015)
(b)
set out:
(i)
the number of occasions (if any) during the year on which a request was made to disclose information under subsection 355-55(1) in Schedule 1 (about disclosures to Ministers); and
(ii)
the number of occasions (if any) during the year on which information was disclosed under that subsection; and
(iii)
the Ministers to whom the information was disclosed; and
(c)
set out:
(i)
the number of occasions (if any) during the year on which a request was made to disclose information under subsection 355-70(1) in Schedule 1 (about disclosures for law enforcement and related purposes); and
(ii)
the number of occasions (if any) during the year on which information was disclosed under that subsection; and
(iii)
the types of entities and the names of the courts and tribunals to which the information was disclosed; and
(iv)
if the information was disclosed under table item 1 or 6 in subsection 355-70(1) - the general categories of offences in relation to which the information was disclosed; and
(d)
set out the number (if any) of *taxation officers found guilty of the offence in section
355-25 in Schedule
1 (about disclosure of protected information); and
(e)
set out information on the exercise during the year of the Commissioner's powers under Subdivision 370-A in Schedule
1 (Commissioner's remedial power).
History
S 3B(1AA) amended by No 15 of 2017, s 3 and Sch 1 item 2, by inserting para (e), effective 1 March 2017.
S 3B(1AA) amended by No 21 of 2015, s 3 and Sch 7 item 34, by repealing para (a), effective 20 March 2015. Para (a) formerly read:
(a)
include information concerning any breaches, of which the Commissioner has notice, of undertakings given for the purposes of subsection 14C(2); and
S 3B(1AA) amended by No 145 of 2010, s 3 and Sch 2 item 108, by substituting paras (b) to (d) and repealing paras (e) to (f), effective 17 December 2010. Paras (b) to (f) formerly read:
(b)
set out, in relation to each general category of offence and in relation to each law enforcement agency:
(i)
the number of occasions (if any) during the year on which the Commissioner was requested by, or on behalf of, the head of the agency to disclose information under subsection 3E(1) to authorised law enforcement agency officers representing the agency; and
(ii)
the number of occasions (if any) during the year on which information was disclosed under subsection 3E(1) to authorised law enforcement agency officers representing the agency; and
(c)
set out, in relation to each general category of offence and in relation to each eligible Royal Commission:
(i)
the number of occasions (if any) during the year on which the Commissioner was requested by, or on behalf of, the Chairperson of the eligible Royal Commission to disclose information under subsection 3E(1) to authorised Royal Commission officers representing the eligible Royal Commission; and
(ii)
the number of occasions (if any) during the year on which information was disclosed under subsection 3E(1) to authorised Royal Commission officers representing the eligible Royal Commission; and
(d)
set out, in relation to ASIO:
(i)
the number of occasions (if any) during the year on which the Commissioner was requested by, or on behalf of, the Director-General of Security to disclose information under subsection 3EA(1) to an authorised ASIO officer; and
(ii)
the number of occasions (if any) during the year on which information was disclosed under subsection 3EA(1) to an authorised ASIO officer; and
(e)
set out:
(i)
the number of occasions (if any) during the year on which the Commissioner was requested to disclose documents under subsection 3G(1) in relation to the Project Wickenby taskforce; and
(ii)
the number of occasions (if any) during the year on which the Commissioner disclosed documents under that subsection; and
(f)
set out, in relation to a taskforce that has been prescribed under section 3H:
(i)
the number of occasions (if any) during the year on which the Commissioner was requested to disclose documents under subsection 3H(1) in relation to the taskforce; and
(ii)
the number of occasions (if any) during the year on which the Commissioner disclosed documents under that subsection.
S 3B(1AA) amended by No 88 of 2009, s 3 and Sch 5 item 248, by substituting para (a), effective 18 September 2009. Para (a) formerly read:
(a)
include information concerning:
(i)
any breaches or evasions of Part IV; and
(ii)
any breaches of undertakings given for the purposes of subsection 14C(2);
of which the Commissioner has notice; and
S 3B(1AA) amended by No 56 of 2007, s 3 and Sch 1 item 3, by inserting paras (e) and (f) at the end, applicable to disclosures of information made on or after 12 April 2007 (whenever the information was obtained).
S 3B(1AA) amended by No 161 of 1999 and No 47 of 1992 and inserted by No 107 of 1989.
3B(1A)
(Repealed by No 82 of 1993)
History
S 3B(1A) inserted by No 138 of 1987.
3B(1B)
Subsection (1) does not apply in relation to Part
III and sections
15 and
15A insofar as that Part and those sections apply in relation to the
Development Allowance Authority Act 1992.
History
S 3B(1B) amended by No 145 of 2010, s 3 and Sch 2 item 109, by omitting "13J," before "15 and 15A", effective 17 December 2010.
S 3B(1B) inserted by No 98 of 1992.
3B(1C)
Subsection (1) does not apply in relation to Part
III and sections
15 and
15A insofar as that Part and those sections apply in relation to the
Tax Agent Services Act 2009.
History
S 3B(1C) amended by No 15 of 2017, s 3 and Sch 4 item 86, by omitting "sections 3D and 3E," before "Part III", effective 1 April 2017.
S 3B(1C) inserted by No 114 of 2009, s 3 and Sch 1 item 15, effective 1 March 2010.
3B(2)
The Minister shall cause a copy of a report furnished under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
3B(3)
For the purposes of section
34C of the
Acts Interpretation Act 1901, a report that is required by subsection (1) to be furnished as soon as practicable after 30 June in a year shall be taken to be a periodic report relating to the working of this Act during the year ending on that 30 June.
3B(4)
In this section:
"this Act"
does not include Part IVC.
History
Definition of "this Act" amended by No 88 of 2009, s 3 and Sch 5 item 249, by omitting "except insofar as it relates to Part IV" after "does not include Part IVC", effective 18 September 2009.
S 3B(4) inserted by No 216 of 1991.
SECTION 3C
REPORTING OF INFORMATION ABOUT CORPORATE TAX ENTITY WITH REPORTED TOTAL INCOME OF $100 MILLION OR MORE
3C(1)
This section applies to a corporate tax entity for an income year if, according to information reported to the Commissioner in the entity's income tax return for the income year:
(a)
the entity has total income equal to or exceeding $100 million for the income year and, at the end of the income year:
(i)
the entity is not an Australian resident that is a private company for the income year; or
(ii)
the entity is a member of a wholly-owned group that has a foreign resident ultimate holding company; or
(iii)
the percentage of foreign shareholding in the entity is greater than 50%; or
(b)
the entity has total income equal to or exceeding $200 million for the income year and, at the end of the income year, the entity is an Australian resident that is a private company for the income year.
An expression used in this subsection that is also used in the Income Tax Assessment Act 1997 has the same meaning as in that Act.
History
S 3C(1) amended by No 170 of 2015, s 3 and Sch 1 item 4A, by substituting para (a) and (b), applicable in relation to an entity for the 2013-14 income year and each later income year. Para (a) and (b) formerly read:
(a)
the entity has total income equal to or exceeding $100 million for the income year; and
(b)
at the end of the income year:
(i)
the entity is not an Australian resident that is a private company for the income year; or
(ii)
the entity is a member of a wholly-owned group that has a foreign resident ultimate holding company; or
(iii)
the percentage of foreign shareholding in the entity is greater than 50%.
S 3C(1) substituted by No 149 of 2015, s 3 and Sch 1 item 1, applicable in relation to an entity for the 2013-14 income year and each later income year unless the Commissioner has, before 13 November 2015, made publicly available information about the entity for the income year under subsection 3C(2) of the Taxation Administration Act 1953. S 3C(1) formerly read:
3C(1)
This section applies to an entity if:
(a)
the entity is a corporate tax entity (within the meaning of the Income Tax Assessment Act 1997); and
(b)
the entity has total income equal to or exceeding $100 million for an income year, according to information reported to the Commissioner in the entity's income tax return (within the meaning of that Act) for the income year.
3C(2)
The Commissioner must, as soon as practicable after the end of the income year, make publicly available the information mentioned in subsection (3).
3C(3)
The information is as follows:
(a)
the entity's ABN (within the meaning of the
Income Tax Assessment Act 1997) and name;
(b)
the entity's total income for the income year, according to information reported to the Commissioner in the entity's income tax return (within the meaning of that Act) for the income year;
(c)
the entity's taxable income or net income (if any) for the income year, according to information reported to the Commissioner in that income tax return;
(d)
the entity's income tax payable (if any) for the financial year corresponding to the income year, according to information reported to the Commissioner in that income tax return.
3C(4)
Subsection (5) applies if:
(a)
the entity gives the Commissioner a notice in writing that the return mentioned in paragraph (3)(b) contains an error; and
(b)
the notice contains information that corrects the error.
3C(5)
The Commissioner may at any time make the information mentioned in paragraph (4)(b) publicly available, in accordance with subsection (2), in order to correct the error.
3C(6)
To avoid doubt, if the Commissioner considers that information made publicly available under subsection (2) fails to reflect all of the information required to be made publicly available under that subsection, the Commissioner may at any time make publicly available other information in order to remedy the failure.
History
S 3C inserted by No 124 of 2013, s 3 and Sch 5 item 1, applicable to: (a) the 2013-14 income year and later income years; and (b) the 2013-2014 MRRT year and later MRRT years; and (c) the year of tax (within the meaning of the Petroleum Resource Rent Tax Assessment Act 1987) starting on 1 July 2013 and later years of tax.
Former s 3C repealed by No 145 of 2010, s 3 and Sch 2 item 110, effective 17 December 2010. S 3C formerly read:
SECTION 3C SECRECY
3C(1)
In this section,
"officer"
means a person:
(a)
who is or has been appointed or employed by the Commonwealth; or
(b)
to whom powers or functions have been delegated by the Commissioner;
and who, by reason of the appointment or employment or in the course of the employment, or by reason of, or in the course of the exercise of powers or the performance of functions under, the delegation, as the case may be, may acquire or has acquired information with respect to the affairs of any other person disclosed or obtained under or for the purposes of this Act.
3C(1AA)
(Repealed by No 82 of 1993)
History
S 3C(1AA) inserted by No 138 of 1987.
3C(1AB)
This section does not apply in relation to information disclosed or obtained under or for the purposes of Part III insofar as that Part applies in relation to the Development Allowance Authority Act 1992 or the Tax Agent Services Act 2009.
History
S 3C(1AB) amended by No 114 of 2009, s 3 and Sch 1 item 16, by inserting "or the Tax Agent Services Act 2009", effective 1 March 2010.
S 3C(1AB) inserted by No 98 of 1992.
3C(1A)
For the purposes of this section, a person who, although not appointed or employed by the Commonwealth, performs services for the Commonwealth shall be taken to be employed by the Commonwealth.
History
S 3C(1A) inserted by No 123 of 1985.
3C(2)
Subject to subsection (4), a person who is or has been an officer shall not directly or indirectly:
(a)
make a record of any information with respect to the affairs of a second person; or
(b)
divulge or communicate to a second person any information with respect to the affairs of a third person;
being information disclosed or obtained under or for the purposes of this Act and acquired by the person by reason of the person's appointment or employment by the Commonwealth or in the course of such employment, or by reason of the delegation to the person of powers or functions by the Commissioner, or in the course of the exercise of such powers or the performance of such functions, as the case may be.
Penalty: $10,000 or imprisonment for 2 years, or both.
Note:
It is not a breach of subsection (2) to record or disclose information in accordance with an obligation Australia has under an agreement with another country. See section 23 of the International Tax Agreements Act 1953.
History
S 3C(2) amended by No 100 of 2006, s 3 and Sch 2 item 2, by inserting the note at the end, applicable to requests for the exchange of information made after 14 September 2006.
S 3C(2) amended by No 146 of 2001, No 97 of 1988.
3C(2A)
Subsection (2) does not apply to the extent that the person makes a record of the information, or divulges or communicates the information:
(a)
for the purposes of this Act; or
(b)
in the performance of the person's duties as an officer.
(c)
(Repealed by No 100 of 2006)
Note:
A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code.
History
S 3C(2A) amended by No 100 of 2006, s 3 and Sch 2 item 3, by substituting para (b) for para (b) and (c), applicable to requests for the exchange of information made after 14 September 2006. Para (b) and (c) formerly read:
(b)
in the performance of the person's duties as an officer; or
(c)
for the purposes of complying with an obligation Australia has under an agreement between Australia and another country.
S 3C(2A) substituted by No 10 of 2003, inserted by No 146 of 2001.
3C(3)
Except when it is necessary to do so for the purpose of carrying into effect the provisions of a taxation law, a person who is or has been an officer shall not be required:
(a)
to produce in court any document made or given under or for the purposes of this Act; or
(b)
to divulge or communicate to a court a matter or thing with respect to information disclosed or obtained under or for the purposes of this Act;
being a document or information acquired by the person by reason of the person's appointment or employment by the Commonwealth or in the course of such employment, or by reason of the delegation to the person of powers or functions by the Commissioner, or in the course of the exercise of such powers or the performance of such functions, as the case may be.
3C(4)
Nothing in subsection (2) prohibits the Commissioner, a Second Commissioner, a Deputy Commissioner or a person authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner from communicating any information to:
(a)
a person performing, as an officer, duties in relation to a taxation law, for the purpose of enabling the person to perform those duties; or
(b)
if the information relates to the non-compliance of a private ancillary fund or charity (or a trustee of a private ancillary fund or charity) with a law of the Commonwealth, a State or a Territory - the Attorney-General of a State or Territory for the purposes of the administration of a law of the State or Territory governing trusts and charities.
History
S 3C(4) substituted by No 88 of 2009, s 3 and Sch 2 item 17, effective 1 October 2009. S 3C(4) formerly read:
3C(4)
Nothing in subsection (2) shall be taken to prohibit the Commissioner, a Second Commissioner, a Deputy Commissioner or a person authorized by the Commissioner, a Second Commissioner or a Deputy Commissioner from communicating any information to a person performing, as an officer, duties in relation to a taxation law, for the purpose of enabling the person to perform those duties.
3C(5)
For the purposes of subsection (2), an officer shall be deemed to have communicated information to another person in contravention of that subsection if:
(a)
the officer communicates that information to any Minister of State of the Commonwealth, any Minister of the Crown of a State or any Minister of the Northern Territory; and
(b)
the information was acquired by the officer otherwise than for the purposes of Part II.
History
S 3C(5) amended by No 123 of 1985.
3C(6)
An officer shall, if and when required by the Commissioner, a Second Commissioner or a Deputy Commissioner to do so, make an oath or declaration, in a manner and form specified by the Commissioner by instrument in writing, to maintain secrecy in conformity with the provisions of this section.
3C(7)
For the purposes of this section, information communicated to the Commissioner by a person performing a function, or exercising a power, under a law of a State or of an internal Territory relating to taxation shall be taken to have been acquired by the Commissioner for the purposes of this Act.
History
S 3C(7) inserted by No 123 of 1985.
3C(8)
A reference in this section to a document or information acquired by a person does not include a reference to a document or information acquired by the person under a provision of this Part (other than this section) that authorises the disclosure of information.
History
S 3C(8) inserted by No 107 of 1989.
3C(9)
In this section:
taxation law
(Repealed by No 54 of 2003)
History
Definition of "taxation law" repealed by No 54 of 2003. For transitional provisions, see note under definition of "Customs diesel fuel rebate provision" in s 2(1). The definition of "taxation law" formerly read:
taxation law
includes the Diesel and Alternative Fuels Grants Scheme Act 1999.
Definition of "taxation law" inserted by No 201 of 1999.
this Act
does not include Part IVC, and does not include Part 3-10, and Divisions 355 and 382, in Schedule 1.
History
Definition of "this Act" amended by No 88 of 2009, s 3 and Sch 5 item 250, by omitting "except insofar as it relates to Part IV" after "does not include Part IVC", effective 18 September 2009.
Definition of "this Act" amended by No 73 of 2006, s 3 and Sch 5 item 160, by substituting "Part 3-10, and Divisions 355 and 382, in Schedule 1" for "Part VI", effective 1 July 2006.
Definition of "this Act" amended by No 56 of 1999.
S 3C(9) inserted by No 216 of 1991.
SECTION 3CA
REPORTING OF INFORMATION BY SIGNIFICANT GLOBAL ENTITIES
3CA(1)
This section applies to a corporate tax entity for an income year if:
(a)
the entity is a significant global entity for the income year; and
(b)
at the end of the income year, the entity is:
(i)
an Australian resident; or
(ii)
a foreign resident who operates an Australian permanent establishment (within the meaning of Part IVA of the Income Tax Assessment Act 1936); and
(c)
the entity does not lodge a general purpose financial statement for the financial year most closely corresponding to the income year:
(i)
with the Australian Securities and Investments Commission; and
(ii)
within the time provided under subsection 319(3) of the Corporations Act 2001 for lodgement of a report for that financial year.
3CA(2)
A corporate tax entity to which this section applies for an income year must, on or before the day by which the entity is required to lodge its income tax return for the income year with the Commissioner, give to the Commissioner in the approved form a general purpose financial statement for the financial year most closely corresponding to the income year.
Note:
Section 286-75 in Schedule 1 provides an administrative penalty for breach of this subsection.
History
S 3CA(2) amended by No 27 of 2017, s 3 and Sch 2 item 1, by inserting "in the approved form", applicable in relation to general purpose financial statements required to be given to the Commissioner at or after 1 July 2017.
3CA(3)
The Commissioner must give a copy of the statement to the Australian Securities and Investments Commission.
3CA(4)
The giving of the copy to the Australian Securities and Investments Commission under subsection (3) is taken, for the purposes of the
Corporations Act 2001, to be lodgement of the document with the Australian Securities and Investments Commission.
Note:
Under section 1274 of the Corporations Act 2001, a person may inspect, and require to be given a copy or extract of, any document lodged with the Australian Securities and Investments Commission.
3CA(5)
For the purposes of this section, a general purpose financial statement in relation to an entity:
(a)
must be prepared in accordance with:
(i)
the accounting principles; or
(ii)
if accounting principles do not apply in relation to the entity - commercially accepted principles relating to accounting; and
(b)
if the entity is a member of a group of entities that are consolidated for accounting purposes as a single group - must relate to:
(i)
the entity; or
(ii)
the entity and some or all of the other members of the group.
3CA(6)
An expression used in this section that is also used in the
Income Tax Assessment Act 1997 has the same meaning as in that Act.
History
S 3CA inserted by No 170 of 2015, s 3 and Sch 1 item 4B, applicable in relation to income years commencing on or after 1 July 2016.
SECTION 3D
3D
REPORTING OF INFORMATION ABOUT ENTITY WITH MRRT PAYABLE
(Repealed by No 96 of 2014)
History
S 3D repealed by No 96 of 2014, s 3 and Sch 1 item 54, effective 30 September 2014. For transitional provisions see note under Sch 1 Pt 3-15 heading. S 3D formerly read:
SECTION 3D REPORTING OF INFORMATION ABOUT ENTITY WITH MRRT PAYABLE
3D(1)
This section applies to an entity if the entity has an amount of MRRT payable for an MRRT year, according to information reported to the Commissioner in the entity's MRRT return for the MRRT year.
3D(2)
The Commissioner must, as soon as practicable after the end of the MRRT year, make publicly available the information mentioned in subsection (3).
3D(3)
The information is as follows:
(a)
the entity's ABN (within the meaning of the Income Tax Assessment Act 1997) and name;
(b)
the entity's MRRT payable for the MRRT year, according to information reported to the Commissioner in the entity's MRRT return for the MRRT year.
3D(4)
Subsection (5) applies if:
(a)
the entity gives the Commissioner a notice in writing that the return mentioned in paragraph (3)(b) contains an error; and
(b)
the notice contains information that corrects the error.
3D(5)
The Commissioner may at any time make the information mentioned in paragraph (4)(b) publicly available, in accordance with subsection (2), in order to correct the error.
3D(6)
To avoid doubt, if the Commissioner considers that information made publicly available under subsection (2) fails to reflect all of the information required to be made publicly available under that subsection, the Commissioner may at any time make publicly available other information in order to remedy the failure.
3D(7)
In this section:
MRRT return
has the meaning given by the Income Tax Assessment Act 1997.
MRRT year
has the meaning given by section 300-1 of the Minerals Resource Rent Tax Act 2012.
S 3D inserted by No 124 of 2013, s 3 and Sch 5 item 1, applicable to: (a) the 2013-14 income year and later income years; and (b) the 2013-2014 MRRT year and later MRRT years; and (c) the year of tax (within the meaning of the Petroleum Resource Rent Tax Assessment Act 1987) starting on 1 July 2013 and later years of tax.
Former s 3D repealed by No 145 of 2010, s 3 and Sch 2 item 110, effective 17 December 2010. S 3D formerly read:
SECTION 3D PROVISION OF TAXATION INFORMATION TO AUSTRALIAN CRIME COMMISSION
History
S 3D heading amended by No 125 of 2002.
3D(1)
Notwithstanding anything in a taxation secrecy provision, the Commissioner may communicate information to the Chief Executive Officer of the ACC for the purposes of a tax-related investigation.
History
S 3D(1) amended by No 125 of 2002.
3D(2)
Where:
(a)
information has, whether before or after the commencement of this section, been communicated to a Royal Commission under paragraph 16(4)(k) of the Income Tax Assessment Act 1936; or
(b)
information has been communicated to the State Commissioner under section 16A of that Act;
and the Royal Commission or the State Commissioner, as the case may be, is of the opinion that the information is or may be relevant to a tax-related investigation, the Royal Commission or State Commissioner may communicate the information to the Chief Executive Officer of the ACC in spite of subsection 16(4A) or section 16A of that Act, as the case may be.
History
S 3D(2) amended by No 125 of 2002, substituted by No 120 of 1987.
3D(3)
(Repealed by No 125 of 2002)
History
S 3D(3) amended by No 120 of 1987.
3D(4)
Where a special ACC operation/investigation is being carried out and the Chief Executive Officer of the ACC considers that the Commissioner, under the provisions of a taxation law or of a previous law of the Commonwealth of which the Commissioner had the general administration, may have acquired particular information (in this section referred to as the
"requested information"
) that is relevant to the operation or investigation, the Chief Executive Officer of the ACC may apply to a Judge for an order under subsection (7).
History
S 3D(4) amended by No 125 of 2002.
3D(5)
An application under subsection (4) shall be in writing and shall be accompanied by an affidavit made by the applicant that:
(a)
sets out details of the operation or investigation in relation to which the application is made; and
(b)
specifies particulars of the requested information.
History
S 3D(5) amended by No 125 of 2002.
3D(6)
The Chief Executive Officer of the ACC who makes an application under subsection (4) shall give notice in writing to the Commissioner of the making of the application and of the particulars of the requested information.
History
S 3D(6) amended by No 125 of 2002.
3D(7)
Where an application is made to a Judge under subsection (4):
(a)
the Judge may order the Commissioner to disclose to the Chief Executive Officer of the ACC all of the requested information, or such of the requested information as is specified in the order, that the Commissioner has acquired under the provisions of a taxation law or of a previous law of the Commonwealth of which the Commissioner had the general administration; and
(b)
if the Judge makes an order under paragraph (a) - the Judge may make a further order prohibiting the Chief Executive Officer of the ACC from communicating the information except in such manner as is, and to such persons (being persons to whom the Chief Executive Officer of the ACC is otherwise entitled to communicate the information) as are, specified in the order, and a Judge may at any time, on application by the Chief Executive Officer of the ACC or by the Commissioner, notice of which shall be given to the Commissioner or to the Chief Executive Officer of the ACC, as the case requires, vary or revoke such a further order.
History
S 3D(7) amended by No 125 of 2002.
3D(8)
A Judge shall not make an order under subsection (7) in relation to an application unless:
(a)
the Commissioner has been given the opportunity to bring to the notice of the Judge any matter to which the Commissioner considers the Judge should have regard in considering the application;
(b)
the applicant has given to the Judge, on oath or by affidavit, such further information (if any) as the Judge requires concerning the operation or investigation in relation to which the application is made; and
(c)
the Judge is satisfied that:
(i)
there are reasonable grounds for believing that the information to be specified in the order is relevant to the operation or investigation in relation to which the application is made; and
(ii)
the information to be specified in the order is not readily obtainable by the Chief Executive Officer of the ACC from a source other than the Commissioner.
History
S 3D(8) amended by No 125 of 2002.
3D(9)
A Judge, in considering for the purposes of paragraph (8)(c) whether or not particular information that may be relevant to an operation or investigation is readily obtainable by the Chief Executive Officer of the ACC from a source other than the Commissioner, shall have regard to any prejudice to the conduct of the operation or investigation that may result if the Chief Executive Officer of the ACC is required to obtain the information from such a source.
History
S 3D(9) amended by No 125 of 2002.
3D(10)
Notwithstanding anything in a taxation secrecy provision, where a Judge makes an order under subsection (7):
(a)
in the case of an order under paragraph (7)(a) - the Commissioner shall comply with the order; or
(b)
in the case of an order under paragraph (7)(b) that has not been revoked - the Chief Executive Officer of the ACC shall comply with the order, or with the order as varied pursuant to paragraph (7)(b), as the case requires.
History
S 3D(10) amended by No 125 of 2002.
3D(11)
Subject to subsections (12) and (13), where information is communicated to the Chief Executive Officer of the ACC under:
(a)
subsection (1) or (2); or
(b)
an order made under subsection (7);
then:
(ba)
the Chief Executive Officer of the ACC may, in a manner that does not identify, and is not reasonably capable of being used to identify, a person to whom the information relates, communicate the information to the Board of the ACC;
(c)
the Chair of the Board of the ACC may, in a manner that does not identify, and is not reasonably capable of being used to identify, a person to whom the information relates, communicate the information to the Inter-Governmental Committee in a report by the Chair under subsection 59(4) of the ACC Act;
(ca)
the Chief Executive Officer of the ACC may communicate the information to an examiner who is conducting an examination under Division 2 of Part II of the ACC Act;
(d)
an examiner may divulge the information in the course of such an examination before the examiner;
(e)
the Chief Executive Officer of the ACC may communicate the information to the Commissioner of the Australian Federal Police, or to the commanding officer of the Police Force of a State, if the Chief Executive Officer of the ACC is of the opinion that the information indicates that a person may have committed an offence against a law of the Commonwealth or of a Territory, or against a law of that State, as the case may be, being an offence the punishment, or maximum punishment, for which is or includes imprisonment for life or for a period exceeding 6 months;
(f)
subject to paragraphs (ba), (c), (ca), (d) and (e), the Chief Executive Officer of the ACC, the Chair of the Board of the ACC and an examiner must not divulge or communicate the information except to a member of the staff of the ACC for the purposes of, or in connection with:
(i)
in a case where paragraph (a) applies - a tax related investigation; or
(ii)
in a case where paragraph (b) applies - a special ACC operation/investigation;
(g)
a person who is no longer the Chief Executive Officer of the ACC, the Chair of the Board of the ACC or an examiner must not make a record of the information, or divulge or communicate the information, in any circumstances;
(h)
a person to whom information has been communicated in accordance with paragraph (d) shall not make a record of the information, or divulge or communicate the information, in any circumstances; and
(j)
a member of the staff of the ACC to whom information has been communicated in accordance with paragraph (f) or this paragraph shall not:
(i)
while he or she is such a person - divulge or communicate the information except to another member of the staff of the ACC, or to an examiner, for the purposes of, or in connection with:
(A)
in the case of information that was originally communicated to the Chief Executive Officer of the ACC pursuant to subsection (1) or (2) - a tax-related investigation;
(B)
in the case of information that was originally communicated to the Chief Executive Officer of the ACC pursuant to an order made under subsection (7) - a special ACC operation/investigation; or
(C)
(Repealed by No 125 of 2002)
(ii)
when he or she is no longer such a person - make a record of the information, or divulge or communicate the information, in any circumstances.
History
S 3D(11) amended by No 125 of 2002.
3D(12)
Nothing in subsection (11) prevents the communication of information respecting the affairs of a person to:
(a)
if the person is not a company - the person;
(b)
if the person to whose affairs the information relates is a company:
(i)
any person who is, or has been, a director or officer of the company; or
(ii)
any person who is, or has been, directly involved in, or responsible for, the preparation of information furnished to the Commissioner on behalf of the company; or
(c)
the person who furnished the information to the Commissioner.
History
S 3D(12)(b) substituted by No 168 of 1985.
3D(13)
Where subsection (12) permits the communication of information to a person, nothing in subsection (11) prevents the communication of the information to a barrister or solicitor appearing before an examiner for the purpose of representing the person.
History
S 3D(13) amended by No 125 of 2002.
3D(14)
Where information is communicated to a person in accordance with subsection (12) or (13), being information that was not furnished to the Commissioner by the person and does not relate to the affairs of the person, the person shall not make a record of the information, or divulge or communicate the information, in any circumstances.
3D(15)
Where information is communicated under paragraph (11)(e) to the commanding officer of a Police Force:
(a)
that commanding officer must not divulge or communicate the information; and
(b)
a person who is no longer the commanding officer of that Police Force must not make a record of the information, or divulge or communicate the information, in any circumstances; and
(c)
a person to whom information has been communicated in accordance with subsection (15A) or (15B) must not:
(i)
while he or she is a person or employee under the control of the commanding officer of that Police Force - divulge or communicate the information; or
(ii)
when he or she is no longer a person or employee under the control of the commanding officer of that Police Force - make a record of the information, or divulge or communicate the information, in any circumstances.
History
S 3D(15), (15A) and (15B) substituted for s 3D(15) by No 146 of 2001.
3D(15A)
Paragraph (15)(a) does not apply where the commanding officer, while still the commanding officer of that Police Force, divulges or communicates the information to a person or employee under his or her control for the purposes of, or in connection with, the performance by that person or employee of the duties of his or her office or employment.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (15A), see subsection 13.3(3) of the Criminal Code.
History
S 3D(15), (15A) and (15B) substituted for s 3D(15) by No 146 of 2001.
3D(15B)
Subparagraph (15)(c)(i) does not apply where the person, while he or she is a person or employee under the control of the commanding officer of that Police Force, divulges or communicates the information to:
(a)
that commanding officer for the purposes of, or in connection with, the performance by that commanding officer of the duties of his or her office; or
(b)
to another person or employee under the control of that commanding officer for the purposes of, or in connection with, the performance by that person or employee of the duties of his or her office or employment.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (15B), see subsection 13.3(3) of the Criminal Code.
History
S 3D(15), (15A) and (15B) substituted for s 3D(15) by No 146 of 2001.
3D(16)
If information is communicated to the Chief Executive Officer of the ACC under subsection (1) or (2) or under an order made under subsection (7), then nothing in subsection (11), (14), (15) or (17) prohibits:
(a)
the communication of the information to a person for the purposes of, or in connection with, the prosecution of a person for a taxation offence; or
(b)
if the information is admissible in a prosecution of a person for a taxation offence - the communication of the information to a court in the course of proceedings before that court against the last-mentioned person for that offence.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (16), see subsection 13.3(3) of the Criminal Code.
History
S 3D(16) substituted by No 125 of 2002, amended by No 146 of 2001.
3D(17)
A person to whom information has been communicated in accordance with paragraph (16)(a) shall not make a record of the information, or divulge or communicate the information, except as permitted by this section.
History
S 3D(17) amended by No 125 of 2002.
3D(18)
Notwithstanding anything in the ACC Act, a person shall not be required pursuant to a provision of that Act to divulge or communicate information in particular circumstances to the Chief Executive Officer of the ACC, to an examiner, or to a member of the staff of the ACC, if a taxation secrecy provision would, but for subsection (1), prohibit the person from so divulging or communicating the information in those circumstances.
History
S 3D(18) amended by No 125 of 2002.
3D(19)
A person to whom information is communicated pursuant to subsection (1), (2), (11), (15A), (15B) or (16) or pursuant to an order made under subsection (7) shall not be required to divulge or communicate that information to any court.
History
S 3D(19) amended by No 146 of 2001.
3D(20)
(Repealed by No 125 of 2002)
3D(21)
A person who makes a record of, or divulges or communicates, information in contravention of a provision of this section is guilty of an offence punishable, upon conviction, by a fine of an amount not exceeding 100 penalty units or imprisonment for a period not exceeding 2 years, or both.
History
S 3D(21) amended by No 143 of 2007, s 3 and Sch 7 item 104, by substituting "100 penalty units" for "$10,000", effective 24 September 2007.
S 3D(21) amended by No 97 of 1988.
3D(22)
In this section, unless the contrary intention appears:
ACC
means the Australian Crime Commission.
History
Definition of "ACC" inserted by No 125 of 2002.
ACC Act
means the Australian Crime Commission Act 2002.
History
Definition of "ACC Act" inserted by No 125 of 2002.
ACC operation/investigation
has the same meaning as in the ACC Act.
History
Definition of "ACC operation/investigation" inserted by No 125 of 2002.
acting member
(Repealed by No 125 of 2002)
Authority
(Repealed by No 125 of 2002)
Board of the ACC
means the Board of the Australian Crime Commission established under section 7B of the ACC Act.
History
Definition of "Board of the ACC" inserted by No 125 of 2002.
commanding officer
, in relation to a Police Force, means, in the case of the Australian Federal Police, the Commissioner of the Australian Federal Police.
company
means a body or association, whether incorporated or unincorporated, but does not include a partnership.
examiner
has the same meaning as in the ACC Act.
History
Definition of "examiner" inserted by No 125 of 2002.
inquiry
means the inquiry being made by Gerald Edward Fitzgerald Q.C. under the Order in Council that was made under The Commissions of Inquiry Act of 1950 of the State of Queensland and published in the Queensland Government Gazette, on 26 May 1987, at pages 758A and 758B, being that Order in Council as amended by:
(a)
the Order in Council made under that Act and published in the Queensland Government Gazette, on 24 June 1987, at pages 1841A and 1841B; and
(b)
any other instrument, whether made before or after the commencement of this section.
History
Definition of "inquiry" inserted by No 120 of 1987.
Inter-Governmental Committee
means the Inter-Governmental Committee referred to in section 8 of the ACC Act.
History
Definition of "Inter-Governmental Committee" amended by No 125 of 2002.
Judge
means a person who is a Judge of the Federal Court of Australia.
"member"
(Repealed by No 125 of 2002)
member of the staff of the ACC
has the same meaning as in the ACC Act.
History
Definition of "member of the staff of the ACC" inserted by No 125 of 2002.
"member of the staff of the Authority"
(Repealed by No 125 of 2002)
Police Force
means the Australian Federal Police or a Police Force of a State.
prescribed information
(Repealed by No 125 of 2002)
prescribed investigation
(Repealed by No 125 of 2002)
relevant Act
(Repealed by No 125 of 2002)
special ACC operation/investigation
has the same meaning as in the ACC Act.
History
Definition of "special ACC operation/investigation" inserted by No 125 of 2002.
special investigation
(Repealed by No 125 of 2002)
State
includes the Northern Territory.
State Commissioner
means Gerald Edward Fitzgerald Q.C., in his capacity as the person making the inquiry.
History
Definition of "State Commissioner" inserted by No 120 of 1987.
taxation law
(Repealed by No 54 of 2003)
History
Definition of "taxation law" inserted by No 201 of 1999.
taxation offence
has the same meaning as that expression has in Part III.
taxation secrecy provision
means a provision of a taxation law, being a provision that is a secrecy provision for the purposes of the ACC Act.
History
Definition of "taxation secrecy provision" amended by No 125 of 2002.
tax-related investigation
means an ACC operation/investigation, in so far as it relates to a taxation offence or taxation offences.
History
Definition of "tax-related investigation" amended by No 125 of 2002.
Territory
does not include the Northern Territory.
S 3D inserted by No 104 of 1985.
SECTION 3E
REPORTING OF INFORMATION ABOUT ENTITY WITH PRRT PAYABLE
3E(1)
This section applies to an entity if the entity has an amount of PRRT payable for a year of tax, according to information reported to the Commissioner in the entity's PRRT return for the year of tax.
3E(2)
The Commissioner must, as soon as practicable after the end of the year of tax, make publicly available the information mentioned in subsection (3).
3E(3)
The information is as follows:
(a)
the entity's ABN (within the meaning of the
Income Tax Assessment Act 1997) and name;
(b)
the PRRT payable by the entity in respect of the year of tax, according to information reported to the Commissioner in the entity's PRRT return for the year of tax.
3E(4)
Subsection (5) applies if:
(a)
the entity gives the Commissioner a notice in writing that the return mentioned in paragraph (3)(b) contains an error; and
(b)
the notice contains information that corrects the error.
3E(5)
The Commissioner may at any time make the information mentioned in paragraph (4)(b) publicly available, in accordance with subsection (2), in order to correct the error.
3E(6)
To avoid doubt, if the Commissioner considers that information made publicly available under subsection (2) fails to reflect all of the information required to be made publicly available under that subsection, the Commissioner may at any time make publicly available other information in order to remedy the failure.
3E(7)
In this section:
PRRT return
means a return under section 59 or 60 of the Petroleum Resource Rent Tax Assessment Act 1987.
year of tax
has the meaning given by the Petroleum Resource Rent Tax Assessment Act 1987.
History
S 3E inserted by No 124 of 2013, s 3 and Sch 5 item 1, applicable to: (a) the 2013-14 income year and later income years; and (b) the 2013-2014 MRRT year and later MRRT years; and (c) the year of tax (within the meaning of the Petroleum Resource Rent Tax Assessment Act 1987) starting on 1 July 2013 and later years of tax.
Former s 3E repealed by No 145 of 2010, s 3 and Sch 2 item 110, effective 17 December 2010. S 3E formerly read:
SECTION 3E USE OF TAX INFORMATION BY LAW ENFORCEMENT AGENCIES AND ELIGIBLE ROYAL COMMISSIONS ETC.
3E(1)
Notwithstanding any taxation secrecy provision, the Commissioner may disclose information acquired by the Commissioner under the provisions of a tax law to an authorised law enforcement agency officer, or to an authorised Royal Commission officer, if the Commissioner is satisfied that the information is relevant to:
(a)
establishing whether a serious offence has been, or is being, committed; or
(b)
the making, or proposed or possible making, of a proceeds of crime order.
History
S 3E(1) amended by No 47 of 1992.
3E(2)
Where information is communicated to an officer under subsection (1) of this section or paragraph 3EA(3)(e), the officer must not divulge or communicate the information to another person, or make a record of the information.
History
S 3E(2), (2A), (2B), and (2C) substituted for s 3E(2) by No 146 of 2001.
S 3E(2) amended by No 161 of 1999 and No 47 of 1992.
3E(2A)
Subsection (2) does not apply to the extent that the information was divulged or communicated, or the record of the information was made, for, or in connection with:
(a)
the investigation of a serious offence; or
(b)
an investigation relating to the making, or proposed or possible making, of a proceeds of crime order.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (2A), see subsection 13.3(3) of the Criminal Code.
History
S 3E(2), (2A), (2B) and (2C) substituted for s 3E(2) by No 146 of 2001.
3E(2B)
A person to whom information has been communicated in accordance with subsection (2A) or (2C) must not divulge or communicate the information to another person, or make a record of the information.
History
S 3E(2), (2A), (2B) and (2C) substituted for s 3E(2) by No 146 of 2001.
3E(2C)
Subsection (2B) does not apply to the extent that the information was divulged or communicated, or the record of the information was made, for, or in connection with, the investigation mentioned in subsection (2A).
Note:
A defendant bears an evidential burden in relation to the matters in subsection (2C), see subsection 13.3(3) of the Criminal Code.
History
S 3E(2), (2A), (2B) and (2C) substituted for s 3E(2) by No 146 of 2001.
3E(3)
Where information is communicated to a person under subsection (1), (2A) or (2C) of this section or paragraph 3EA(3)(e), the person:
(a)
shall not voluntarily give the information in evidence in a proceeding before a court; and
(b)
shall not be required to divulge or communicate the information to a court.
History
S 3E(3) amended by No 146 of 2001 and No 161 of 1999.
3E(4)
Where information is communicated to an officer under subsection (1) of this section or paragraph 3EA(3)(e), nothing in subsection (2), (2B) or (3) prohibits:
(a)
the communication of the information to a person, or the making of a record of the information, for the purposes of, or in connection with:
(i)
the prosecution, or proposed or possible prosecution, of a person for a tax-related offence; or
(ii)
proceedings, or proposed or possible proceedings, for the making of a proceeds of crime order; or
(b)
the voluntary communication of the information to a court in the course of either of the following proceedings before that court:
(i)
a prosecution of a person for a tax-related offence;
(ii)
proceedings for the making of a proceeds of crime order.
History
S 3E(4) amended by No 146 of 2001, No 161 of 1999 and No 47 of 1992.
3E(5)
A person to whom information has been communicated in accordance with paragraph (4)(a) or this subsection shall not divulge or communicate the information, or make a record of the information.
History
S 3E(5) amended by No 146 of 2001.
3E(5A)
Subsection (5) does not apply to the extent that the information was divulged or communicated, or the record of the information was made, for, or in connection with:
(a)
the prosecution referred to in subparagraph (4)(a)(i); or
(b)
the proceedings referred to in subparagraph (4)(a)(ii).
Note:
A defendant bears an evidential burden in relation to the matters in subsection (5A), see subsection 13.3(3) of the Criminal Code.
History
S 3E(5A) inserted by No 146 of 2001.
3E(6)
A person to whom information is communicated in accordance with paragraph (4)(a) or subsection (5) shall not be required to divulge or communicate that information to a court.
3E(6A)
If information is communicated to an authorised Royal Commission officer under subsection (1):
(a)
the person or persons constituting the eligible Royal Commission concerned may, in a manner that does not identify, and is not reasonably capable of being used to identify, the person to whom the information relates:
(i)
communicate the information to the appropriate executive authority in a report by the eligible Royal Commission; or
(ii)
divulge the information in the course of a proceeding conducted by the eligible Royal Commission, other than a proceeding conducted in private; and
(b)
the person or persons constituting the eligible Royal Commission concerned may communicate the information to the appropriate executive authority in a report by the eligible Royal Commission; and
(c)
the person or persons constituting the eligible Royal Commission concerned may divulge the information in the course of a proceeding conducted in private by the eligible Royal Commission where each person present is covered by one of the following categories:
(i)
the person or persons constituting the eligible Royal Commission;
(ii)
an official of the eligible Royal Commission;
(iii)
if the person to whose affairs the information relates is a company:
(A)
a person who is, or has been, a director or officer of the company; or
(B)
a person who is, or has been, directly involved in, or responsible for, the preparation of information given to the Commissioner on behalf of the company;
(iv)
if the person to whose affairs the information relates is not a company - that person;
(v)
the person who gave the information to the Commissioner;
(vi)
a barrister or solicitor representing either of the following in relation to the proceeding:
(A)
a company covered by subparagraph (iii);
(B)
a person covered by sub-subparagraph (iii)(A) or (B) or subparagraph (iv) or (v).
History
S 3E(6A) inserted by No 47 of 1992.
3E(6B)
A person does not contravene subsection (2) or (2B) because of anything done for the purposes of enabling a thing mentioned in paragraph (6A)(a), (b) or (c) to happen.
History
S 3E(6B) amended by No 146 of 2001 and inserted by No 47 of 1992.
3E(6C)
If information is communicated to the appropriate executive authority under paragraph (6A)(b), the executive authority:
(a)
must not divulge or communicate the information to another person, or make a record of the information; and
(b)
must not voluntarily give the information in evidence in a proceeding before a court; and
(c)
is not to be required to divulge or communicate the information to a court.
History
S 3E(6C) amended by No 146 of 2001 and inserted by No 47 of 1992.
3E(6CA)
Paragraph (6C)(a) does not apply to the extent that the information was divulged or communicated, or the record of the information was made, for the purposes of, or in connection with, the disclosure of the information to an authorised law enforcement agency officer.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (6CA), see subsection 13.3(3) of the Criminal Code.
History
S 3E(6CA) inserted by No 146 of 2001.
3E(6D)
If information is communicated to an authorised law enforcement agency officer under paragraph (6C)(a), this section has effect as if the information had been communicated to the officer under subsection (1).
History
S 3E(6D) inserted by No 47 of 1992.
3E(7)
A person who divulges or communicates information, or makes a record of information, in contravention of this section is guilty of an offence punishable, upon conviction, by a fine not exceeding $10,000 or imprisonment for a period not exceeding 2 years, or both.
3E(8)
Subsection (1) is in addition to, and not in derogation of, any other provision of this Act or of any other law relating to the communication of information.
3E(9)
For the purposes of this section, the communication of information to, or the making of a record of information by, a barrister or a solicitor representing a person in relation to a particular prosecution or other proceedings shall be taken to be the communication of the information, or the making of a record of the information, as the case requires, for the purposes of, or in connection with, that prosecution or those proceedings, as the case may be.
3E(10)
A reference in this section to:
(a)
the possible making of a proceeds of crime order in respect of a person; or
(b)
possible proceedings for the making of a proceeds of crime order in respect of a person;
includes a reference to the making of an order that is only a possibility, or to proceedings that are only a possibility, at the time in question because the person has not been convicted (within the meaning of section 331 of the Proceeds of Crime Act 2002) of an offence to which the order relates.
History
S 3E(10) amended by No 86 of 2002.
3E(11)
In this section:
appropriate executive authority
, in relation to an eligible Royal Commission, means:
(a)
in the case of an eligible Royal Commission of the Commonwealth - the Governor-General; or
(b)
in the case of an eligible Royal Commission of a State - the Governor of the State; or
(c)
in the case of an eligible Royal Commission of the Northern Territory - the Administrator, or acting Administrator, of the Northern Territory; or
(d)
in the case of an eligible Royal Commission of the Australian Capital Territory - the Chief Minister, or acting Chief Minister, of that Territory; or
(e)
in any other case - the person specified in the regulations.
History
Definition of "appropriate executive authority" inserted by No 47 of 1992.
company
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
History
Definition of "company" amended by No 101 of 2006, s 3 and Sch 2 item 929, by substituting "meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997" for "same meaning as in section 6 of the Income Tax Assessment Act 1936", effective 14 September 2006. For application and savings provisions see the CCH Australian Income Tax Legislation archive.
Definition of "company" inserted by No 47 of 1992.
proceeds of crime order
means an order, relating to a person's commission of a serious offence, under:
(a)
Chapter 2 or Division 1 of Part 3-1 of the Proceeds of Crime Act 2002; or
(b)
Part II or III of the Proceeds of Crime Act 1987; or
(c)
a law of a State or Territory corresponding to paragraph (a) or (b); or
(d)
Division 3 of Part XIII of the Customs Act 1901.
History
Definition of "proceeds of crime order" substituted by No 86 of 2002.
serious offence
means an offence against a law of the Commonwealth, of a State or of a Territory that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
taxation secrecy provision
means a provision of a tax law that prohibits the communication or divulging of information.
tax law
means:
(a)
a taxation law;
(b)
any other Act of which the Commissioner has the general administration;
(c)
a repealed Act of which the Commissioner had the general administration; or
(d)
regulations under an Act referred to in paragraph (b) or (c).
tax-related offence
means:
(a)
an offence against:
(i)
a tax law; or
(ii)
the Crimes (Taxation Offences) Act 1980;
(b)
an offence against the Crimes Act 1914 or the Criminal Code relating to a law referred to in paragraph (a); or
(c)
an offence against section 134.1, 134.2, 135.1, 135.2 or 135.4 of the Criminal Code, being an offence that relates to a liability to the Commonwealth arising under, or by virtue of, a tax law.
History
Definition of "tax-related offence" amended by No 146 of 2001 and No 137 of 2000.
S 3E inserted by No 107 of 1989.
SECTION 3EA
3EA
USE BY ASIO OFFICERS OF TAX INFORMATION
(Repealed by No 145 of 2010)
History
S 3EA repealed by No 145 of 2010, s 3 and Sch 2 item 110, effective 17 December 2010. S 3EA formerly read:
SECTION 3EA USE BY ASIO OFFICERS OF TAX INFORMATION
3EA(1)
Despite any taxation secrecy provision, the Commissioner may disclose tax information to an authorised ASIO officer if the Commissioner is satisfied that the information is relevant to the performance of ASIO's functions under subsection 17(1) of the Australian Security Intelligence Organisation Act 1979 (
ASIO's 17(1) functions
).
3EA(2)
Subject to this section, if a person who is or has been an ASIO officer obtained tax information under subsection (1) or (3) of this section or subsection 3EC(2), the person must not communicate or divulge the information to another person, or make a record of the tax information.
Penalty: Imprisonment for 2 years.
3EA(3)
In relation to a person who is an ASIO officer, each of the following is an exception to the prohibition in subsection (2):
(a)
making a record of the information for the purposes of, or in connection with, the performance of the ASIO officer's duties in carrying out ASIO's 17(1) functions;
(b)
divulging or communicating the information to another ASIO officer for the purposes of, or in connection with, the performance of that ASIO officer's duties in carrying out ASIO's 17(1) functions;
(c)
divulging or communicating the information to a solicitor or barrister representing a person in:
(i)
a prosecution of a person for a tax-related offence; or
(ii)
proceedings for the making of a proceeds of crime order;
for the purposes of, or in connection with, the prosecution or proceedings;
Note:
Section 3EB deals with the use by a legal practitioner of tax information provided by ASIO.
(d)
divulging or communicating the information to an IGIS officer for the purposes of, or in connection with, the performance of that IGIS officer's duties in relation to ASIO or employees of ASIO;
Note:
Section 3EC deals with the use by an IGIS officer of tax information provided by ASIO.
(e)
divulging or communicating the information to a law enforcement agency officer for the purposes of, or in connection with:
(i)
the investigation of a serious offence; or
(ii)
an investigation relating to the making, or proposed or possible making, of a proceeds of crime order; or
(iii)
the prosecution, or proposed or possible prosecution, of a person for a tax-related offence; or
(iv)
the proceedings, or proposed or possible proceedings, for the making of a proceeds of crime order.
Note:
Section 3E deals with the use by a law enforcement agency officer of tax information provided by ASIO.
3EA(4)
If a person who is or has been an ASIO officer obtained tax information under subsection (1) or (3) of this section or subsection 3EC(2), the person must not:
(a)
be required to divulge or communicate the information to a court; or
(b)
voluntarily give the information in evidence in proceedings before a court, except in the course of:
(i)
the prosecution of a person for a tax-related offence; or
(ii)
the proceedings for the making of a proceeds of crime order.
3EA(5)
A reference in this section to:
(a)
the possible making of a proceeds of crime order in respect of a person; or
(b)
the possible proceedings for the making of a proceeds of crime order in respect of a person;
includes a reference to, the making of an order, or proceedings, that are only a possibility at the time in question because the person has not been convicted (within the meaning of section 5 of the Proceeds of Crime Act 1987) of an offence to which the order relates.
3EA(6)
In this section:
proceeds of crime order
has the meaning given by section 3E.
serious offence
has the meaning given by section 3E.
taxation secrecy provision
has the meaning given by section 3E.
tax information
means information acquired by the Commissioner under the provisions of a tax law.
tax law
has the meaning given by section 3E.
tax-related offence
has the meaning given by section 3E.
S 3EA inserted by No 161 of 1999.
SECTION 3EB
3EB
USE BY LEGAL PRACTITIONERS OF TAX INFORMATION PROVIDED BY ASIO
(Repealed by No 145 of 2010)
History
S 3EB repealed by No 145 of 2010, s 3 and Sch 2 item 110, effective 17 December 2010. S 3EB formerly read:
SECTION 3EB USE BY LEGAL PRACTITIONERS OF TAX INFORMATION PROVIDED BY ASIO
3EB(1)
Subject to this section, a person to whom tax information has been communicated under paragraph 3EA(3)(c) or subsection (2) of this section must not divulge or communicate the information to another person, or make a record of the information.
Penalty: Imprisonment for 2 years.
3EB(2)
An exception to the prohibition in subsection (1) is the communicating or divulging of the information, or the making of a record of the information, for the purposes of, or in connection with, the prosecution or proceedings mentioned in paragraph 3EA(3)(c).
3EB(3)
A person to whom information has been communicated or divulged under paragraph 3EA(3)(c) or subsection (2) of this section must not be required to divulge or communicate the information to a court.
3EB(4)
In this section:
tax information
has the meaning given by section 3EA.
S 3EB inserted by No 161 of 1999.
SECTION 3EC
3EC
USE BY IGIS OFFICERS OF TAX INFORMATION PROVIDED BY ASIO
(Repealed by No 145 of 2010)
History
S 3EC repealed by No 145 of 2010, s 3 and Sch 2 item 110, effective 17 December 2010. S 3EC formerly read:
SECTION 3EC USE BY IGIS OFFICERS OF TAX INFORMATION PROVIDED BY ASIO
3EC(1)
Subject to this section, if a person who is or has been an IGIS officer obtained tax information under section 3EA or subsection (2) of this section, the person must not communicate or divulge the information to another person, or make a record of the information.
Penalty: Imprisonment for 2 years.
3EC(2)
In relation to a person who is an IGIS officer, each of the following is an exception to the prohibition in subsection (1):
(a)
making a record of the information for the purposes of, or in connection with, the performance of the IGIS officer's duties in relation to ASIO or employees of ASIO;
(b)
divulging or communicating the information to another IGIS officer for the purposes of, or in connection with, the performance of that IGIS officer's duties in relation to ASIO or employees of ASIO;
(c)
divulging or communicating the information to the Director-General of Security:
(i)
in a draft report under section 21 of the Inspector-General of Intelligence and Security Act 1986; or
(ii)
in a report under section 22 or 25A of that Act;
in relation to ASIO or employees of ASIO.
History
S 3EC(2) amended by No 101 of 2003, s 3 and Sch 6 item 32, by substituting "of ASIO" for "or ASIO", effective 10 December 1999.
3EC(3)
If a person who is or has been an IGIS officer obtained tax information under section 3EA or subsection (2) of this section, the person must not:
(a)
be required to divulge or communicate the information to a court; or
(b)
voluntarily give the information in evidence in proceedings before a court.
3EC(4)
In this section:
tax information
has the meaning given by section 3EA.
S 3EC inserted by No 161 of 1999.
SECTION 3ED
3ED
PROVIDING TAX INFORMATION RELEVANT TO SPONSORSHIP UNDER THE
MIGRATION ACT 1958
(Repealed by No 145 of 2010)
History
S 3ED repealed by No 145 of 2010, s 3 and Sch 2 item 110, effective 17 December 2010. S 3ED formerly read:
SECTION 3ED PROVIDING TAX INFORMATION RELEVANT TO SPONSORSHIP UNDER THE
MIGRATION ACT 1958
3ED(1)
Despite any taxation secrecy provision, the Commissioner may disclose information acquired under a taxation law to a migration officer if the Commissioner is satisfied that the information:
(a)
relates to a holder or former holder of a visa, or an approved sponsor or former approved sponsor of a person for a visa, whose identity is disclosed to the Commissioner under section 140ZH of the Migration Act 1958; and
(b)
is relevant to:
(i)
the exercise of the Immigration Minister's powers under Division 3A of Part 2 of the Migration Act 1958 or regulations made under that Division; or
(ii)
the exercise of the Immigration Minister's powers under Part 8D of that Act, to the extent that it relates to a contravention of a civil penalty provision in Division 3A of Part 2 of that Act; or
(iii)
the administration of Division 3A of Part 2 of that Act or regulations made under that Division.
Note:
Division 3A of Part 2 of the Migration Act 1958 deals with sponsorship obligations and Part 8D of that Act allows proceedings to be brought for contraventions of civil penalty provisions.
History
S 3ED(1) amended by No 88 of 2008, s 3 and Sch 5 item 242, by inserting "Immigration" in para (b)(i) and (ii), effective 18 September 2009.
3ED(2)
If:
(a)
both:
(i)
a person is or has been a migration officer; and
(ii)
information is disclosed to the person under subsection (1); or
(b)
a person is someone to whom information is disclosed under subsection (3);
then, the person must not disclose the information to another person or a court, or make a record of the information.
Penalty: Imprisonment for 2 years.
3ED(3)
However, subsection (2) does not apply in the following circumstances:
(a)
in the case of a person who is a migration officer - the information is disclosed or a record of the information is made for the purposes of, or in connection with:
(i)
the exercise of the Immigration Minister's powers under Division 3A of Part 2 of the Migration Act 1958 or regulations made under that Division; or
(ii)
the exercise of the Immigration Minister's powers under Part 8D of that Act, to the extent that it relates to a contravention of a civil penalty provision in Division 3A of Part 2 of that Act; or
(iii)
the administration of Division 3A of Part 2 of that Act or regulations made under that Division;
(b)
in any case - the information is disclosed to a person or a court, or a record of the information is made, for the purposes of, or in connection with:
(i)
a review of a decision concerning the exercise of the Immigration Minister's powers under Division 3A of Part 2 of the Migration Act 1958 or regulations made under that Division; or
(ii)
civil penalty proceedings under Part 8D of the Migration Act 1958 in relation to a contravention of a provision in Division 3A of Part 2 of that Act; or
(iii)
a penalty to be paid by a person, as an alternative to civil penalty proceedings against the person, in accordance with regulations made under section 140R of the Migration Act 1958; or
(iv)
any proceedings arising from the review of a decision mentioned in subparagraph (i), the proceedings mentioned in subparagraph (ii) or the penalty mentioned in subparagraph (iii).
History
S 3ED(3) amended by No 88 of 2008, s 3 and Sch 5 item 242, by inserting "Immigration" in para (a)(i) and (ii) and (b)(i), effective 18 September 2009.
3ED(4)
This section is in addition to, and not in derogation of, any other provision of this Act or of any other law relating to the communication of information.
3ED(5)
In this section:
approved sponsor
has the same meaning as in the Migration Act 1958.
taxation law
has the meaning given by the Income Tax Assessment Act 1997.
taxation secrecy provision
has the meaning given by section 3E.
History
S 3ED(5) amended by No 88 of 2008, s 3 and Sch 5 item 243, by repealing the definition of "migration officer", effective 18 September 2009. The definition formerly read:
migration officer
means the Secretary, or an employee, of the Department administered by the Minister who administers the Migration Act 1958.
S 3ED inserted by No 159 of 2008, s 3 and Sch 2 item 1, effective 14 September 2009. No 159 of 2008, s 3 and Sch 2 item 2 contains the following application provision:
Application of amendment of the
Taxation Administration Act 1953
(1)
The amendment applies to information acquired by the Commissioner under a taxation law before, on or after 14 September 2009.
(2)
To avoid doubt, information acquired by the Commissioner under a taxation law may relate to a person who, immediately before this Schedule commences:
(a)
is a standard business sponsor; or
(b)
is an approved sponsor, other than an approved professional development sponsor; or
(c)
both:
(i)
was a standard business sponsor and an approved sponsor; and
(ii)
remained bound by an undertaking made under section 140H of the Migration Act 1958 that was enforceable under section 140Q of that Act.
(3)
In this item:
approved professional development sponsor
has the same meaning as in regulation 1.03 of the Migration Regulations 1994 as in force immediately before 14 September 2009.
approved sponsor
has the same meaning as in the Migration Act 1958.
Migration Act 1958
means the Migration Act 1958 as in force immediately before 14 September 2009.
standard business sponsor
has the same meaning as in regulation 1.20B of the Migration Regulations 1994 as in force immediately before 14 September 2009.
taxation law
has the meaning given by the Income Tax Assessment Act 1997.
SECTION 3F
3F
PROVISION OF TAXATION INFORMATION TO CHIEF EXECUTIVE OFFICER OF CUSTOMS
(Repealed by No 145 of 2010)
History
S 3F repealed by No 145 of 2010, s 3 and Sch 2 item 110, effective 17 December 2010. S 3F formerly read:
SECTION 3F PROVISION OF TAXATION INFORMATION TO CHIEF EXECUTIVE OFFICER OF CUSTOMS
3F(1)
Notwithstanding any taxation secrecy provision, the Commissioner may disclose to the Chief Executive Officer of Customs any information that has come to the knowledge of the Commissioner in the performance of the Commissioner's official duties.
History
S 3F(1) amended by No 25 of 2001.
3F(2)
Subsection (1) is in addition to, and not in derogation of, any other provision of this Act or of any other law relating to the communication of information.
3F(3)
In this section:
taxation secrecy provision
has the same meaning as in section 3E.
S 3F inserted by No 107 of 1989.
SECTION 3G
3G
PROVIDING TAXATION INFORMATION TO THE PROJECT WICKENBY TASKFORCE
(Repealed by No 145 of 2010)
History
S 3G repealed by No 145 of 2010, s 3 and Sch 2 item 110, effective 17 December 2010. S 3G formerly read:
SECTION 3G PROVIDING TAXATION INFORMATION TO THE PROJECT WICKENBY TASKFORCE
Disclosure of taxation information by the Commissioner
3G(1)
The Commissioner may disclose information acquired under a taxation law to a person to whom subsection (2) applies (a
Project Wickenby officer
) if:
(a)
the Commissioner is satisfied that the information is relevant to a purpose of the Project Wickenby taskforce; and
(b)
the disclosure occurs before 1 July 2012, or a later prescribed date.
Project Wickenby officer
3G(2)
This subsection applies to a person:
(a)
who holds an office in, is employed in, or is performing services for:
(i)
an agency in the Project Wickenby taskforce; or
(ii)
an agency that is supporting the Project Wickenby taskforce; and
(b)
whose duties relate to a purpose of the Project Wickenby taskforce.
Project Wickenby taskforce agencies
3G(3)
The following agencies are agencies in the Project Wickenby taskforce:
(a)
the Australian Taxation Office;
(b)
the Australian Crime Commission;
(c)
the Australian Federal Police;
(d)
the Australian Securities and Investments Commission;
(e)
the Office of the Director of Public Prosecutions;
(f)
a prescribed agency.
Project Wickenby taskforce supporting agencies
3G(4)
The following agencies are agencies supporting the Project Wickenby taskforce:
(a)
the Attorney-General's Department;
(b)
the Australian Transaction Reports and Analysis Centre;
(c)
the Australian Government Solicitor;
(d)
a prescribed agency.
Purposes of Project Wickenby taskforce
3G(5)
The purposes of the Project Wickenby taskforce are to:
(a)
detect; and
(b)
deter; and
(c)
investigate; and
(d)
enforce the law relating to;
the promotion of or participation in arrangements (within the meaning of the Income Tax Assessment Act 1997) of an international character, or purported international character, that relate to one or more of these:
(e)
tax avoidance or evasion;
(f)
breaches of laws regulating financial markets and corporations;
(g)
criminal activity in the nature of fraud or obtaining benefits by deception (including deceiving investors or creditors);
(h)
money laundering;
(i)
concealing income or assets.
Offence - disclosure of taxation information by Project Wickenby officer
3G(6)
A person commits an offence if:
(a)
the person is or has been a Project Wickenby officer; and
(b)
the person:
(i)
makes a record of information about the affairs of a second person; or
(ii)
discloses to a third person information about the affairs of a second person; and
(c)
the information was disclosed to the person under this section.
Penalty: Imprisonment for 2 years.
3G(7)
Subsection (6) does not apply if the person:
(a)
makes a record of the information for a purpose of the Project Wickenby taskforce; or
(b)
discloses the information:
(i)
to a Project Wickenby officer; and
(ii)
for a purpose of the Project Wickenby taskforce.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (7): see subsection 13.3(3) of the Criminal Code.
3G(8)
Subsection (6) does not apply if:
(a)
a record of the information is made, or the information is disclosed to a person, for the purposes of, or in connection with:
(i)
an actual, proposed or possible criminal, civil or administrative proceeding; or
(ii)
the exercise of an administrative power or the performance of an administrative function;
relating to a purpose of the Project Wickenby taskforce; or
(b)
the information is voluntarily communicated to a court or tribunal in the course of a proceeding of a kind referred to in subparagraph (a)(i).
Note:
A defendant bears an evidential burden in relation to the matters in subsection (8): see subsection 13.3(3) of the Criminal Code.
Offence - disclosure of taxation information by other people
3G(9)
A person commits an offence if:
(a)
information is disclosed to the person in accordance with paragraph (8)(a); and
(b)
the person makes a record of the information, or discloses the information to another person.
Penalty: Imprisonment for 2 years.
3G(10)
Subsection (9) does not apply to the person if a record of the information is made, or the information is disclosed to another person, for the purposes of, or in connection with, the proceeding or the exercise of the power or the performance of the function referred to in paragraph (8)(a).
Note:
A defendant bears an evidential burden in relation to the matters in subsection (10): see subsection 13.3(3) of the Criminal Code.
No requirement to disclose taxation information to a court etc
3G(11)
A person who is or has been a Project Wickenby officer is not to be required to disclose to a court or tribunal information that was disclosed to the person under this section unless it is necessary that the information be disclosed for the purposes of a taxation law.
Other matters
3G(12)
This section:
(a)
has effectdespite any provision of a taxation law that prohibits the communication or divulging of information; and
(b)
is in addition to, and does not detract from, any other provision of this Act or of any other law relating to the communication of information.
S 3G inserted by No 56 of 2007, s 3 and Sch 1 item 4, applicable to disclosures of information made on or after 12 April 2007 (whenever the information was obtained).
SECTION 3H
3H
PROVIDING TAXATION INFORMATION TO PRESCRIBED TASKFORCES
(Repealed by No 145 of 2010)
History
S 3H repealed by No 145 of 2010, s 3 and Sch 2 item 110, effective 17 December 2010. S 3H formerly read:
SECTION 3H PROVIDING TAXATION INFORMATION TO PRESCRIBED TASKFORCES
Disclosure of taxation information by the Commissioner
3H(1)
The Commissioner may disclose information acquired under a taxation law to a taskforce officer of a prescribed taskforce if the Commissioner is satisfied that the information is relevant to a purpose of the prescribed taskforce.
Taskforce officer
3H(2)
A person is a taskforce officer of a prescribed taskforce if:
(a)
the person holds an office in, is employed in, or is performing services for, an agency in the prescribed taskforce; and
(b)
the person's duties relate to a purpose of the prescribed taskforce.
Taskforce may be prescribed
3H(3)
The regulations may prescribe a taskforce for the purposes of this section. A major purpose of the taskforce must be protecting the public finances of Australia.
3H(4)
Without limiting subsection (3), regulations made for the purposes of this section may deal with the following matters:
(a)
the purposes of the taskforce;
(b)
the agencies in the taskforce;
(c)
the period during which information can be disclosed to a taskforce officer of the prescribed taskforce.
Offence - disclosure of taxation information by taskforce officer
3H(5)
A person commits an offence if:
(a)
the person is or has been a taskforce officer of a prescribed taskforce; and
(b)
the person:
(i)
makes a record of information about the affairs of a second person; or
(ii)
discloses to a third person information about the affairs of a second person; and
(c)
the information was disclosed to the person under this section.
Penalty: Imprisonment for 2 years.
3H(6)
Subsection (5) does not apply if the person:
(a)
makes a record of the information for a purpose of the prescribed taskforce; or
(b)
discloses the information:
(i)
to a taskforce officer of the prescribed taskforce; and
(ii)
for a purpose of the prescribed taskforce.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (6): see subsection 13.3(3) of the Criminal Code.
3H(7)
Subsection (5) does not apply if:
(a)
a record of the information is made, or the information is disclosed to a person, for the purposes of, or in connection with:
(i)
an actual, proposed or possible criminal, civil or administrative proceeding; or
(ii)
the exercise of an administrative power or the performance of an administrative function;
relating to a purpose of a prescribed taskforce; or
(b)
the information is voluntarily communicated to a court or tribunal in the course of a proceeding of a kind referred to in subparagraph (a)(i).
Note:
A defendant bears an evidential burden in relation to the matters in subsection (7): see subsection 13.3(3) of the Criminal Code.
Offence - disclosure of taxation information by other people
3H(8)
A person commits an offence if:
(a)
information is disclosed to the person in accordance with paragraph (7)(a); and
(b)
the person makes a record of the information, or discloses the information to another person.
Penalty: Imprisonment for 2 years.
3H(9)
Subsection (8) does not apply to the person if the record of the information is made, or the information is disclosed to another person, for the purposes of, or in connection with, the proceeding or the exercise of the power or the performance of the function referred to in paragraph (7)(a).
Note:
A defendant bears an evidential burden in relation to the matters in subsection (9): see subsection 13.3(3) of the Criminal Code.
No requirement to disclose taxation information to a court etc.
3H(10)
A person who is or has been a taskforce officer of a prescribed taskforce is not to be required to disclose to a court or tribunal information that was disclosed to the person under this section unless it is necessary that the information be disclosed for the purposes of a taxation law.
Other matters
3H(11)
This section:
(a)
has effect despite any provision of a taxation law that prohibits the communication or divulging of information; and
(b)
is in addition to, and does not detract from, any other provision of this Act or of any other law relating to the communication of information.
S 3H inserted by No 56 of 2007, s 3 and Sch 1 item 4, applicable to disclosures of information made on or after 12 April 2007 (whenever the information was obtained).
PART II - COMMISSIONER OF TAXATION, SECOND COMMISSIONER OF TAXATION AND DEPUTY COMMISSIONER OF TAXATION
SECTION 4
4
COMMISSIONER AND SECOND COMMISSIONERS OF TAXATION
There shall be a Commissioner of Taxation and 3 Second Commissioners of Taxation, who shall be appointed by the Governor-General.
History
S 4 amended by No 154 of 1986 and No 65 of 1985.
SECTION 4A
STATUTORY AGENCY ETC. FOR PURPOSES OF PUBLIC SERVICE ACT
4A(1)
[Staff]
The staff necessary to assist the Commissioner are to be persons engaged under the Public Service Act 1999.
4A(2)
[Statutory Agency]
For the purposes of the Public Service Act 1999:
(a)
the Commissioner and the APS employees assisting the Commissioner together constitute a Statutory Agency; and
(b)
the Commissioner is the Head of that Statutory Agency.
History
S 4A inserted by No 146 of 1999.
The Commissioner of Taxation and each Second Commissioner of Taxation shall be appointed for terms of 7 years respectively and shall be eligible for re-appointment.
History
S 5(1) amended by No 159 of 2001.
Act No 159 of 2001, s 3 and Sch 1 item 97 contained the following application provision:
Application of amendments
97
The amendments do not apply to an appointment if the term of the appointment began before 29 October 2001.
S 5(1) amended by No 123 of 1984.
5(2)
(Repealed by No 159 of 2001)
History
S 5(2) repealed by No 159 of 2001.
Act No 159 of 2001, s 3 and Sch 1 item 97 contained the following application provision:
Application of amendments
97
The amendments do not apply to an appointment if the term of the appointment began before 29 October 2001.
S 5(2) amended by No 123 of 1984.
5(3)
[Not subject to
Public Service Act
]
The Commissioner of Taxation and the Second Commissioners of Taxation are not subject to the Public Service Act 1999.
History
S 5(3) amended by No 146 of 1999 and No 65 of 1985.
5(4)-(5)
(Omitted by No 123 of 1984)
5(6)
(Omitted by No 133 of 1974)
SECTION 5A
REMUNERATION AND ALLOWANCES OF COMMISSIONER AND SECOND COMMISSIONERS
5A(1)
[Remuneration]
The Commissioner of Taxation and the Second Commissioners of Taxation shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration by the Tribunal is in operation, they shall be paid remuneration at the respective rates that were applicable immediately before the commencement of this section.
5A(2)
[Allowances]
The Commissioner of Taxation and the Second Commissioners of Taxation shall be paid such allowances as are prescribed.
5A(3)
[Subject to the
Remuneration Tribunal Act
]
This section has effect subject to the Remuneration Tribunal Act 1973.
History
S 5A(3) amended by No 43 of 1996 and No 65 of 1985.
SECTION 6
LEAVE OF ABSENCE
6(1)
[Recreation leave]
The Commissioner and a Second Commissioner have such recreation leave entitlements as are determined by the Remuneration Tribunal.
History
S 6(1) amended by No 146 of 1999.
6(2)
[Other leave entitlements]
The Minister may grant the Commissioner and a Second Commissioner leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.
History
S 6 substituted by No 122 of 1991.
Former s 6 substituted by No 123 of 1984.
SECTION 6A
6A
RESIGNATION
The Commissioner or a Second Commissioner may resign his or her office by writing signed by the Commissioner or Second Commissioner, as the case may be, and delivered to the Governor-General.
History
S 6A substituted by No 123 of 1984.
SECTION 6B
ACTING APPOINTMENTS
6B(1)
The Minister may appoint a person to act in the office of Commissioner of Taxation:
(a)
during a vacancy in that office; or
(b)
during any period, or during all periods, when the person holding that office is absent from duty or from Australia or is, for any other reason, unable to perform the functions of that office.
Note:
For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
History
S 6B(1) amended by No 46 of 2011, s 3 and Sch 2 item 1109, by inserting a note at the end, effective 27 December 2011. No 46 of 2011, s 3 and Sch 3 items 10 and 11 contain the following saving and transitional provisions:
10 Saving - appointments
10
The amendments made by Schedule 2 do not affect the validity of an appointment that was made under an Act before the commencement of this item and that was in force immediately before that commencement.
11 Transitional regulations
11
The Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments and repeals made by Schedules 1 and 2.
S 6B(1) amended by No 4 of 2007, s 3 and Sch 2 item 17, by substituting "Minister" for "Prime Minister", effective 19 February 2007. Act No 4 of 2007, s 3 and Sch 2 item 19 contained the following transitional provision:
19 Transitional
An appointment made by the Prime Minister under section 6B of the Taxation Administration Act 1953 before the commencement of this item [ie 19 February 2007] and in force at that commencement continues to have effect after that commencement according to its terms as if it had been made by the Minister just after that commencement.
S 6B(1) amended by No 62 of 1987.
6B(2)
The Minister may appoint a person to act in an office of Second Commissioner of Taxation:
(a)
during a vacancy in that office; or
(b)
during any period, or during all periods, when the person holding the office of Second Commissioner of Taxation is absent from duty or from Australia, is acting in the office of Commissioner of Taxation or is, for any other reason, unable to perform the functions of the office of Second Commissioner of Taxation.
Note:
For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
History
S 6B(2) amended by No 46 of 2011, s 3 and Sch 2 item 1109, by inserting a note at the end, effective 27 December 2011. For saving and transitional provisions see note under s6B(1).
S 6B(2) amended by No 4 of 2007, s 3 and Sch 2 item 17, by substituting "Minister" for "Prime Minister", effective 19 February 2007. For transitional provision see note under s 6B(1).
S 6B(2) amended by No 62 of 1987.
6B(3)
(Repealed by No 46 of 2011)
History
S 6B(3) repealed by No 46 of 2011, s 3 and Sch 2 item 1110, effective 27 December 2011. For saving and transitional provisions see note under s 6B(1). S 6B(3) formerly read:
6B(3)
An appointment of a person under subsection (1) or (2) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.
6B(4)
(Repealed by No 46 of 2011)
History
S 6B(4) repealed by No 46 of 2011, s 3 and Sch 2 item 1110, effective 27 December 2011. For saving and transitional provisions see note under s 6B(1). S 6B(4) formerly read:
6B(4)
A person appointed under subsection (1) or (2) to act during a vacancy shall not continue so to act for more than 12 months.
6B(5)
(Repealed by No 46 of 2011)
History
S 6B(5) repealed by No 46 of 2011, s 3 and Sch 2 item 1110, effective 27 December 2011. For saving and transitional provisions see note under s 6B(1). S 6B(5) formerly read:
6B(5)
Where a person is acting in the office of Commissioner of Taxation in accordance with paragraph (1)(b) or in an office of Second Commissioner of Taxation in accordance with paragraph (2)(b) and the office becomes vacant while the person is so acting, then, subject to subsection (3), the person may continue so to act until the Minister otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurs expires, whichever first happens.
S 6B(5) amended by No 4 of 2007, s 3 and Sch 2 item 17, by substituting "Minister" for "Prime Minister", effective 19 February 2007. For transitional provision see note under s 6B(1).
S 6B(5) amended by No 62 of 1987.
6B(6)
While a person is acting in the office of Commissioner of Taxation, the person has and may exercise all the powers, and shall perform all the functions, of the Commissioner under this Act or any other law.
6B(6A)
For the purposes of subsection (6), the Commissioner's powers and functions include powers and functions given to the Commissioner in his or her capacity as Registrar of the Australian Business Register.
History
S 6B(6A) inserted by No 85 of 1999.
6B(7)
While a person is acting in an office of Second Commissioner of Taxation, the person has and may exercise all the powers, and shall perform all the functions, of the Second Commissioner under this Act or any other law.
6B(8)
(Repealed by No 46 of 2011)
History
S 6B(8) repealed by No 46 of 2011, s 3 and Sch 2 item 1110, effective 27 December 2011. For saving and transitional provisions see note under s 6B(1). S 6B(8) formerly read:
6B(8)
The Minister may:
(a)
determine the terms and conditions of appointment, including remuneration and allowances, of a person acting in the office of Commissioner of Taxation or in an office of Second Commissioner of Taxation; and
(b)
terminate such an appointment at any time.
S 6B(8) amended by No 4 of 2007, s 3 and Sch 2 item 17, by substituting "Minister" for "Prime Minister", effective 19 February 2007. For transitional provision see note under s 6B(1).
S 6B(8) amended by No 62 of 1987.
6B(9)
(Repealed by No 46 of 2011)
History
S 6B(9) repealed by No 46 of 2011, s 3 and Sch 2 item 1110, effective 27 December 2011. For saving and transitional provisions see note under s 6B(1). S 6B(9) formerly read:
6B(9)
A person appointed under subsection (1) or (2) may resign the appointment by writing signed by the person and delivered to the Minister.
S 6B(9) amended by No 4 of 2007, s 3 and Sch 2 item 17, by substituting "Minister" for "Prime Minister", effective 19 February 2007. For transitional provision see note under s 6B(1).
S 6B(9) amended by No 62 of 1987.
6B(10)
(Repealed by No 46 of 2011)
History
S 6B(10) repealed by No 46 of 2011, s 3 and Sch 2 item 1110, effective 27 December 2011. For saving and transitional provisions see note under s 6B(1). S 6B(10) formerly read:
6B(10)
The validity of anything done by or in relation to a person purporting to act in the office of Commissioner of Taxation or in an office of Second Commissioner of Taxation shall not be called in question on the ground that the occasion for the appointment had not arisen, that there was a defect or irregularity in or in connection with the appointment, that the appointment had ceased to have effect or that the occasion for the person to act had not arisen or had ceased.
6B(11)
(Repealed by No 4 of 2007)
History
S 6B(11) repealed by No 4 of 2007, s 3 and Sch 2 item 18, effective 19 February 2007. For transitional provision see note under s 6B(1). S 6B(11) formerly read:
6B(11)
A power conferred on the Prime Minister by this section may be exercised on the Prime Minister's behalf by the Treasurer, where the Treasurer is authorised by the Prime Minister to do so.
S 6B(11) inserted by No 62 of 1987.
S 6B inserted by No 123 of 1984.
SECTION 6C
SUSPENSION AND REMOVAL FROM OFFICE OF COMMISSIONER OR SECOND COMMISSIONER
6C(1)
[Removal from office]
The Governor-General may remove the Commissioner or a Second Commissioner from office on an address praying for the removal of the Commissioner or the Second Commissioner, as the case may be, on the ground of proved misbehaviour or physical or mental incapacity being presented to the Governor-General by each House of the Parliament in the same session of the Parliament.
6C(2)
[Suspension from office]
The Governor-General may suspend the Commissioner or a Second Commissioner from office on the ground of misbehaviour or physical or mental incapacity.
6C(3)
[Statement of grounds]
Where the Governor-General suspends the Commissioner or a Second Commissioner, the Minister shall cause a statement of the grounds of the suspension to be laid before each House of the Parliament within 7 sitting days of that House after the suspension.
6C(4)
[Termination of suspension]
If, at the expiration of 15 sitting days of a House of the Parliament after the day on which the statement was laid before that House, an address under subsection (1) has not been presented to the Governor-General by each House of the Parliament, the suspension terminates.
6C(5)
[Effect of suspension]
The suspension of the Commissioner or a Second Commissioner from office under this section does not affect any entitlement of the Commissioner or Second Commissioner, as the case may be, to be paid remuneration and allowances.
6C(6)
[Removal from office in certain circumstances]
If:
(a)
the Commissioner or a Second Commissioner becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;
(b)
the Commissioner or a Second Commissioner engages, except with the approval of the Minister, in paid employment outside the duties of the office of Commissioner or Second Commissioner, as the case may be; or
(c)
the Commissioner or a Second Commissioner is absent from duty, except on leave of absence, for 14 consecutive days or 28 days in any 12 months;
the Governor-General shall remove the Commissioner or Second Commissioner, as the case may be, from office.
History
S 6C(6)(c) amended by No 122 of 1991.
6C(7)
[Retirement with consent]
The Governor-General may, with the consent of the Commissioner or a Second Commissioner, retire the Commissioner or Second Commissioner, as the case may be, from office on the ground of physical or mental incapacity.
6C(8)
[No removal or suspension except as provided]
The Commissioner or a Second Commissioner shall not be suspended, removed or retired from office except as provided by this section.
History
S 6C inserted by No 123 of 1984.
SECTION 6D
POWERS OF SECOND COMMISSIONER
6D(1)
[Powers subject to subsec (2)]
Subject to subsection (2) and to the regulations, a Second Commissioner has all the powers, and may perform all the functions, of the Commissioner under a taxation law.
6D(2)
[Subsec (1) not applicable]
Subsection (1) does not apply in relation to:
(a)
section
8 of this Act; or
(b)
a provision of a taxation law that:
(i)
provides that the Commissioner has the general administration of the taxation law; or
(ii)
requires the Commissioner to furnish to the Minister a report on the working of the taxation law during any period.
6D(3)
[Deemed performance by Commissioner]
When a power or function of the Commissioner under a taxation law is exercised or performed by a Second Commissioner, the power or function shall, for the purposes of the taxation law, be deemed to have been exercised or performed by the Commissioner.
6D(4)
[Commissioner's powers and functions]
The exercise of a power, or the performance of a function, of the Commissioner under a taxation law by a Second Commissioner does not prevent the exercise of the power, or the performance of the function, by the Commissioner.
6D(5)
(Repealed by No 54 of 2003)
History
S 6D(5) repealed by No 54 of 2003. For transitional provisions, see note under definition of "Customs diesel fuel rebate provision" in s 2(1).
S 6D(5) inserted by No 201 of 1999.
History
S 6D inserted by No 123 of 1984.
SECTION 7
7
DEPUTY COMMISSIONERS OF TAXATION
There shall be such Deputy Commissioners of Taxation as are required.
SECTION 8
DELEGATION
8(1)
[Delegation by Commissioner]
The Commissioner may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Commissioner, delegate to a Deputy Commissioner or any other person all or any of the Commissioner's powers or functions under a taxation law or any other law of the Commonwealth or a Territory, other than this power of delegation.
History
S 8(1) substituted by No 123 of 1984.
8(1A)
[Registrar of Australian Business Register]
For the purposes of this section, the Commissioner's powers and functions include powers and functions given to the Commissioner in his or her capacity as Registrar of the Australian Business Register.
History
S 8(1A) inserted by No 85 of 1999.
8(2)
[Deemed performance by Commissioner]
Subject to subsection (5), a power or function so delegated, when exercised or performed by the delegate, shall, for the purposes of the taxation law or the other law, as the case may be, be deemed to have been exercised or performed by the Commissioner.
History
S 8(2) substituted by No 123 of 1984.
8(3)
(Omitted by No 123 of 1984)
8(4)
[Commissioner may exercise delegated power]
A delegation under this section does not prevent the exercise of a power or the performance of a function by the Commissioner.
History
S 8(4) amended by No 123 of 1984.
8(5)
[Review and alteration of delegation]
A delegation under this section may be made subject to a power ofreview and alteration by the Commissioner, within a period specified in the instrument of delegation, of acts done in pursuance of the delegation.
History
S 8(5) amended by No 123 of 1984.
8(6)
[Duration of delegation]
A delegation under this section continues in force notwithstanding a change in the occupancy of, or a vacancy in, the office of Commissioner, but, for the purposes of the application of subsection 33(3) of the Acts Interpretation Act 1901 to a delegation under this section, nothing in any law shall be taken to preclude the revocation or variation of the delegation by the same or a subsequent holder of that office.
History
S 8(6) inserted by No 123 of 1984.
PART IIA - THE GENERAL INTEREST CHARGE
History
Div 1 heading of this Part repealed by No 101 of 2006, s 3 and Sch 1 item 288, effective 14 September 2006. The heading formerly read: "Division 1 - General interest charge".
Part IIA (heading) substituted by No 101 of 2006, s 3 and Sch 2 item 930, effective 14 September 2006. For application and savings provisions see the CCH Australian Income Tax Legislation archive. The heading formerly read:
PART IIA - CHARGES AND PENALTIES FOR FAILING TO MEET OBLIGATIONS
Part IIA inserted by No 11 of 1999.
SECTION 8AAA
OVERVIEW
This Part explains how to work out the general interest charge on an amount.
Usually, a person is liable to pay the charge if an amount that the person must pay to the Commissioner is not paid on time. But there are also other circumstances in which a person can be liable.
A person is only liable to pay the charge if a provision of an Act makes the person liable.
History
S 8AAA amended by No 79 of 2010, s 3 and Sch 1 item 36, by omitting "(Most of the provisions are in the Income Tax Assessment Act 1936.)" after "Act makes the person liable", effective 1 July 2010.
S 8AAA amended by No 101 of 2006, s 3 and Sch 2 item 931, by substituting "Part" for "Division", effective 14 September 2006. For application and savings provisions see the CCH Australian Income Tax Legislation archive.
S 8AAA inserted by No 11 of 1999.
SECTION 8AAB
WHEN THE GENERAL INTEREST CHARGE APPLIES
8AAB(1)
There are certain provisions of this Act and other Acts that make persons liable to pay the general interest charge. Subsection (4) lists the provisions.
History
S 8AAB(1) amended by No 41 of 2011, s 3 and Sch 5 item 34, by substituting "Subsection (4) lists" for "Subsections (4) and (5) list", effective 27 June 2011.
8AAB(2)
A person is only liable to pay the charge on an amount if a provision specifies that the person is liable to pay the charge on the amount.
8AAB(3)
The charge does not apply to the Commonwealth or an authority of the Commonwealth.
8AAB(4)
The following table is an index of the laws that deal with liability to the charge.
|
Liability to general interest charge
|
|
Item
|
Column 1
|
Column 2
|
Column 3
|
|
Section
|
Act
|
Topic
|
| 1 |
162-100 |
A New Tax System (Goods and Services Tax) Act 1999 |
payment of GST instalments |
| 2 |
168-10 |
A New Tax System (Goods and Services Tax) Act 1999 |
supplies later found to be GST-free supplies |
| 3 |
25-10 |
A New Tax System (Wine Equalisation Tax) Act 1999 |
purchases later found to be GST free supplies |
| 3A |
175-65 |
Australian Charities and Not-for-profits Commission Act 2012 |
payment of administrative penalty |
| 4 |
(Repealed by No 70 of 2015) |
| 5 |
93 |
Fringe Benefits Tax Assessment Act 1986 |
payment of fringe benefits tax |
| 6 |
112B |
Fringe Benefits Tax Assessment Act 1986 |
payment of fringe benefits tax instalments |
| 7 |
102UP |
Income Tax Assessment Act 1936 |
payment of trustee beneficiary non-disclosure tax |
| 8 |
128C |
Income Tax Assessment Act 1936 |
payment of withholding tax |
| 9 |
163AA |
Income Tax Assessment Act 1936 |
returns by instalment taxpayers |
| 10 |
163B |
Income Tax Assessment Act 1936 |
returns by persons other than instalment taxpayers |
| 10A |
172A |
Income Tax Assessment Act 1936 |
repayments of excessive tax offset refunds |
| 11 |
271-80 in Schedule 2F |
Income Tax Assessment Act 1936 |
payment of family trust distribution tax |
| 12 |
5-15 |
Income Tax Assessment Act 1997 |
unpaid income tax or shortfall interest charge |
| 13 |
197-75 |
Income Tax Assessment Act 1997 |
payment of untainting tax |
| 14 |
214-155 |
Income Tax Assessment Act 1997 |
payment of franking tax by a corporate tax entity |
| 15 |
292-390 |
Income Tax Assessment Act 1997 |
payment of excess non-concessional contributions tax or shortfall interest charge |
| 15A |
293-75 |
Income Tax Assessment Act 1997 |
payment of Division 293 tax or shortfall interest charge |
| 15B |
294-250 |
Income Tax Assessment Act 1997 |
payment of excess transfer balance tax |
| 16 |
(Repealed by No 70 of 2015) |
| 16A |
418-170 |
Income Tax Assessment Act 1997 |
payment of excess exploration credit tax or shortfall interest charge |
| 17 |
721-30 |
Income Tax Assessment Act 1997 |
liability of members of consolidated groups |
| 18 |
840-810 |
Income Tax Assessment Act 1997 |
payment of managed investment trust withholding tax |
| 18A |
840-910 |
Income Tax Assessment Act 1997 |
payment of Seasonal Labour Mobility Program withholding tax |
| 19 |
214-105 |
Income Tax (Transitional Provisions) Act 1997 |
payment of franking deficit tax |
| 19A |
(Repealed by No 96 of 2014) |
| 20 |
85 |
Petroleum Resource Rent Tax Assessment Act 1987 |
payment of petroleum resource rent tax, shortfall interest charge or instalment transfer interest charge |
| 20A |
282-19 |
Private Health Insurance Act 2007 |
repayment of private health insurance premium reduction or refund |
| 21 |
35 |
Product Grants and Benefits Administration Act 2000 |
payment of a designated scheme debt |
| 22 |
21 |
Superannuation Contributions Tax (Assessment and Collection) Act 1997 |
increase in liability to pay superannuation contributions surcharge because of amendment of assessment |
| 23 |
22 |
Superannuation Contributions Tax (Assessment and Collection) Act 1997 |
liability to pay superannuation contributions surcharge because of new assessment |
| 24 |
25 |
Superannuation Contributions Tax (Assessment and Collection) Act 1997 |
payment of superannuation contributions surcharge or advance instalment |
| 25 |
18 |
Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 |
increase in liability to pay superannuation contributions surcharge because of amendment of assessment |
| 26 |
21 |
Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 |
payment of superannuation contributions surcharge |
| 27 |
25 |
Superannuation (Government Co-contribution for Low Income Earners) Act 2003 |
repayments or underpayments of Government co-contributions that cannot be credited to an account |
| 28 |
49 |
Superannuation Guarantee (Administration) Act 1992 |
payment of superannuation guarantee charge |
| 29 |
15DC |
Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 |
payment of superannuation (self managed superannuation funds) supervisory levy |
| 30 |
17A |
Superannuation (Unclaimed Money and Lost Members) Act 1999 |
payment of unclaimed money |
| 31 |
18C |
Superannuation (Unclaimed Money and Lost Members) Act 1999 |
repayment of Commissioner's payment that cannot be credited to an account |
| 32 |
20F |
Superannuation (Unclaimed Money and Lost Members) Act 1999 |
payment of unclaimed superannuation of former temporary residents |
| 33 |
20M |
Superannuation (Unclaimed Money and Lost Members) Act 1999 |
repayment of Commissioner's payment for former temporary resident that cannot be credited to an account |
| 34 |
24F |
Superannuation (Unclaimed Money and Lost Members) Act 1999 |
payment in respect of lost member accounts |
| 35 |
24L |
Superannuation (Unclaimed Money and Lost Members) Act 1999 |
repayment of Commissioner's payment for former lost member that cannot be credited to an account |
| 36 |
8AAZF |
Taxation Administration Act 1953 |
RBA deficit debts |
| 37 |
8AAZN |
Taxation Administration Act 1953 |
overpayments made by the Commissioner |
| 38 |
16-80 in Schedule 1 |
Taxation Administration Act 1953 |
payment of PAYG withholding amounts |
| 38A |
18-150 in Schedule 1 |
Taxation Administration Act 1953 |
PAYG withholding non-compliance tax |
| 39 |
45-80 in Schedule 1 |
Taxation Administration Act 1953 |
payment of PAYG instalments |
| 40 |
45-230 in Schedule 1 |
Taxation Administration Act 1953 |
shortfall in quarterly PAYG instalments worked out on the basis of a varied rate |
| 41 |
45-232 in Schedule 1 |
Taxation Administration Act 1953 |
shortfall in quarterly PAYG instalments worked out on the basis of estimated benchmark tax |
| 42 |
45-235 in Schedule 1 |
Taxation Administration Act 1953 |
shortfall in annual PAYG instalments |
| 43 |
45-600 and 45-620 in Schedule 1 |
Taxation Administration Act 1953 |
tax benefits relating to PAYG instalments |
| 44 |
45-870 and 45-875 in Schedule 1 |
Taxation Administration Act 1953 |
head company's liability on shortfall in quarterly PAYG instalments |
| 44Q |
95-25 in Schedule 1 |
Taxation Administration Act 1953 |
payment of excess concessional contributions charge or shortfall interest charge |
| 45 |
105-80 in Schedule 1 |
Taxation Administration Act 1953 |
payment of a net fuel amount or an amount of indirect tax |
| 45A |
115-10 in Schedule 1 |
Taxation Administration Act 1953 |
payment of major bank levy |
| 45B |
(Repealed by No 96 of 2014) |
| 45C |
133-115 in Schedule 1 |
Taxation Administration Act 1953 |
payment of debt account discharge liability |
| 46 |
263-30 in Schedule 1 |
Taxation Administration Act 1953 |
payment of a foreign revenue claim |
| 47 |
268-75 in Schedule 1 |
Taxation Administration Act 1953 |
late payment of estimate |
| 48 |
298-25 in Schedule 1 |
Taxation Administration Act 1953 |
payment of administrative penalty |
| 49 |
(Repealed by No 32 of 2014) |
| 50 |
13 |
Termination Payments Tax (Assessment and Collection) Act 1997 |
increase in liability to pay termination payments surcharge because of amendment of assessment |
| 51 |
16 |
Termination Payments Tax (Assessment and Collection) Act 1997 |
payment of termination payments surcharge |
[
CCH Note:
S 8AAB(4) will be amended by No 21 of 2015, s 3 and Sch 6 item 60, by repealing table item 16A, effective 1 July 2020. For savings provisions, see note under Sch 1 s 45-340.]
History
S 8AAB(4) amended by No 64 of 2017, s 3 and Sch 1 item 14, by inserting table item 45A, applicable in relation to quarters starting on or after 1 July 2017.
S 8AAB(4) amended by No 81 of 2016, s 3 and Sch 1 item 10, by inserting table item 15B, effective 1 January 2017 and applicable on and after 1 July 2017.
S 8AAB(4) amended by No 70 of 2015, s 3 and Sch 1 item 151, by repealing table items 4 and 16, effective 1 July 2015. Table items 4 and 16 formerly read:
| 4 |
52 |
First Home Saver Accounts Act 2008 |
repayment of FHSA contributions |
| 16 |
345-115 |
Income Tax Assessment Act 1997 |
payment of FHSA misuse tax |
S 8AAB(4) amended by No 21 of 2015, s 3 and Sch 6 item 26, by inserting table item 16A, applicable in relation to the 2015-16, 2016-17 and 2017-18 income years, but not in relation to any later income years.
S 8AAB(4) amended by No 2 of 2015, s 3 and Sch 2 item 90, by omitting "or penalty tax" after "payment of fringe benefits tax" in table item 5, column 3, effective 25 February 2015. For savings provisions, see note under Sch 1 s 250-10(2).
S 8AAB(4) amended by No 96 of 2014, s 3 and Sch 1 item 55, by repealing table items 19A, 45A and 45B, effective 30 September 2014. For transitional provisions see note under Sch 1 Pt 3-15 heading. Table items 19A, 45A and 45B formerly read:
| 19A |
50-15 |
Minerals Resource Rent Tax Act 2012 |
payment of MRRT |
| 45A |
115-30 in Schedule 1 |
Taxation Administration Act 1953 |
payment of MRRT instalments |
| 45B |
115-65 in Schedule 1 |
Taxation Administration Act 1953 |
shortfall in MRRT instalments worked out on the basis of a varied rate |
S 8AAB(4) amended by No 32 of 2014, s 3 and Sch 1 item 2, by repealing table item 49, effective 28 May 2014. No 32 of 2014, s 3 and Sch 1 item 10 contains the following transitional provision:
Transitional - recovering overpayments etc.
Despite the repeals made by this Act, the following provisions continue to apply, on and after the commencement of this Part, in relation to amounts paid by way of a tax bonus before that commencement:
(a)
sections 8 and 9 of the Tax Bonus for Working Australians Act (No. 2) 2009;
(b)
table item 49 in subsection 8AAB(4) of the Taxation Administration Act 1953;
(c)
table item 142 in subsection 250-10(2) in Schedule 1 to the Taxation Administration Act 1953.
Table item 49 formerly read:
| 49 |
9 |
Tax Bonus for Working Australians Act (No. 2) 2009 |
repayment of overpayment of tax bonus |
S 8AAB(4) amended by No 118 of 2013, s 3 and Sch 1 items 30 and 81, by inserting table item 44Q and inserting "non-concessional" after "excess" in column 3 of table item 15, effective 29 June 2013. For application, transitional and saving provisions, see note under Sch 1 Pt 2-35 heading.
S 8AAB(4) amended by No 88 of 2013, s 3 and Sch 5 item 22, by inserting table item 10A, applicable to assessments made on or after 1 July 2013 for the 2013-14 income year or later income years.
S 8AAB(4) amended by No 82 of 2013, s 3 and Sch 3 items 14 and 15, by inserting table items 15A and 45C, effective 28 June 2013. For application provision, see note under Sch 1 Pt 3-20 heading.
S 8AAB(4) amended by No 169 of 2012, s 3 and Sch 3 item 2A, by inserting table item 3A, effective 3 December 2012.
S 8AAB(4) amended by No 58 of 2012, s 3 and Sch 1 item 8, by inserting table item 18A, effective 21 June 2012.
S 8AAB(4) amended by No 26 of 2012, s 3 and Sch 1 item 41, by inserting table item 20A, applicable in relation to premiums, and amounts in respect of premiums, paid on and after 1 July 2012.
S 8AAB(4) amended by No 14 of 2012, s 3 and Sch 1 items 1 and 2, by inserting table items 19A, 45A and 45B, effective 1 July 2012. For application and transitional provisions see note under Sch 1 Part 3-15 heading.
S 8AAB(4) substituted by No 41 of 2011, s 3 and Sch 5 item 35, effective 27 June 2011. S 8AAB(4) formerly read:
8AAB(4)
The following table is an index of the provisions of the Income Tax Assessment Act 1936 that deal with liability to the charge.
|
Liability to the charge under the
Income Tax Assessment Act 1936
|
|
Item
|
Section
|
Topic
|
| 1AA |
102UP |
payment of trustee beneficiary non-disclosure tax |
| 1 |
128C |
payment of withholding tax |
| 1A |
(Repealed by No 80 of 2006) |
| 2 to 5 |
(Repealed by No 16 of 2003) |
| 6 |
163AA |
returns by instalment taxpayers |
| 7 |
163B |
returns by persons other than instalment taxpayers |
| 8 |
170AA |
amended assessments |
| 9 |
(Repealed by No 79 of 2010) |
| 10 to 29 |
(Repealed by No 101 of 2006) |
| 30 |
(Repealed by No 79 of 2010) |
| 31 |
271-80 of Schedule 2F |
payment of family trust distribution tax |
Archived:
S 8AAB(4) (table items 10 to 29) repealed as inoperative by No 101 of 2006, s 3 and Sch 1 item 289, effective 14 September 2006. For application and savings provisions and for former wording see the CCH Australian Income Tax Legislation archive.
S 8AAB(4) amended by No 79 of 2010, s 3 and Sch 1 item 37, by repealing table items 9 and 30, effective 1 July 2010. Table items 9 and 30 formerly read:
9 [mldr ] 204 [mldr ] payment of tax assessed and shortfall interest charge on that tax
30 [mldr ] 222AJA [mldr ] payments of estimates of certain amounts
S 8AAB(4) amended by No 143 of 2007, s 3 and Sch 4 item 47, by substituting "trustee" for "ultimate" in the column headed "Topic" in table item 1AA, applicable to the first income year starting on or after 24 September 2007 and later income years.
S 8AAB(4) amended by No 80 of 2006, s 3 and Sch 4 item 10, by repealing table item 1A, applicable in relation to transfers made into a company's share capital account after 25 May 2006. The table item formerly read:
1A ... 160ARDZA ... payment of untainting tax
S 8AAB(4) amended by No 75 of 2005, No 16 of 2003, No 58 of 2000, No 178 of 1999.
8AAB(5)
(Repealed by No 41 of 2011)
History
S 8AAB(5) repealed by No 41 of 2011, s 3 and Sch 5 item 35, effective 27 June 2011. S 8AAB(5) formerly read:
8AAB(5)
The following table is an index of the provisions of Acts other than the Income Tax Assessment Act 1936 that deal with liability to the charge.
|
Liability to the charge under other Acts
|
|
Item
|
Section
|
Act
|
| 1AA |
162-100 |
A New Tax System (Goods and Services Tax) Act 1999 |
| 1AB |
168-10 |
A New Tax System (Goods and Services Tax) Act 1999 |
| 1AD |
25-10 |
A New Tax System (Wine Equalisation Tax) Act 1999 |
| 1A |
52 |
First Home Saver Accounts Act 2008 |
| 1A |
(Repealed by No 54 of 2003) |
| 1 |
93 |
Fringe Benefits Tax Assessment Act 1986 |
| 2 |
112B |
Fringe Benefits Tax Assessment Act 1986 |
| 2AAA |
5-15 |
Income Tax Assessment Act 1997 |
| 2AA |
197-75 |
Income Tax Assessment Act 1997 |
| 2A |
214-155 |
Income Tax Assessment Act 1997 |
| 2B |
292-390 |
Income Tax Assessment Act 1997 |
| 2C |
345-115 |
Income Tax Assessment Act 1997 |
| 2D |
840-810 |
Income Tax Assessment Act 1997 |
| 3 |
65 |
Petroleum Resource Rent Tax Assessment Act 1987 |
| 4 |
85 |
Petroleum Resource Rent Tax Assessment Act 1987 |
| 4A |
35 |
Product Grants and Benefits Administration Act 2000 |
| 5 to 7 |
(Repealed by No 101 of 2006) |
| 8 |
21 |
Superannuation Contributions Tax (Assessment and Collection) Act 1997 |
| 9 |
22 |
Superannuation Contributions Tax (Assessment and Collection) Act 1997 |
| 10 |
25 |
Superannuation Contributions Tax (Assessment and Collection) Act 1997 |
| 11 |
18 |
Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 |
| 12 |
21 |
Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 |
| 12A |
25 |
Superannuation (Government Co-contribution for Low Income Earners) Act 2003 |
| 13 |
49 |
Superannuation Guarantee (Administration) Act 1992 |
| 13A |
15DC |
Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 |
| 13AA |
17A |
Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 13AB |
18C |
Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 13B |
20F |
Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 13C |
20M |
Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 13D |
24F |
Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 13E |
24L |
Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 14 |
8AAN |
Taxation Administration Act 1953 |
| 15 |
8AAT |
Taxation Administration Act 1953 |
| 16 |
8AAZF |
Taxation Administration Act 1953 |
| 17 |
8AAZN |
Taxation Administration Act 1953 |
| 17AA |
(Repealed by No 73 of 2006) |
| 17A |
(Repealed by No 58 of 2006) |
| 17B | 16-80 in Schedule 1 |
Taxation Administration Act 1953 |
| 17C |
(Repealed by No 91 of 2000) |
| 17D |
(Repealed by No 91 of 2000) |
| 17E |
45-80 in Schedule 1 |
Taxation Administration Act 1953 |
| 17F |
45-230 in Schedule 1 |
Taxation Administration Act 1953 |
| 17GA |
45-232 in Schedule 1 |
Taxation Administration Act 1953 |
| 17G |
45-235 in Schedule 1 |
Taxation Administration Act 1953 |
| 17H |
45-600 and 45-620 in Schedule 1 |
Taxation Administration Act 1953 |
| 17J |
45-870 and 45-875 in Schedule 1 |
Taxation Administration Act 1953 |
| 17K |
105-80 in Schedule 1 |
Taxation Administration Act 1953 |
| 17K |
(Repealed by No 97 of 2008) |
| 17L |
263-30 in Schedule 1 |
Taxation Administration Act 1953 |
| 17M |
268-75 in Schedule 1 |
Taxation Administration Act 1953 |
| 18 |
298-25 in Schedule 1 |
Taxation Administration Act 1953 |
| 18A |
9 |
Tax Bonus for Working Australians Act (No 2) 2009 |
| 19 |
13 |
Termination Payments Tax (Assessment and Collection) Act 1997 |
| 20 |
16 |
Termination Payments Tax (Assessment and Collection) Act 1997 |
| 21 to 22 |
(Repealed by No 101 of 2006) |
S 8AAB(5) amended by No 79 of 2010, s 3 and Sch 1 items 38 and 39, by inserting table items 2AAA and 17M, effective 1 July 2010.
S 8AAB(5) amended by No 20 of 2010, s 3 and Sch 2 items 19 and 20, by inserting table items 1AB and 1AD, applicable in relation to goods acquired, and wine purchased, on or after 1 July 2010.
S 8AAB(5) amended by No 133 of 2009, s 3 and Sch 3 item 41, by inserting table items 13D and 13E, applicable in relation to:
(a) the last unclaimed money day (within the meaning of the Superannuation (Unclaimed Money and Lost Members) Act 1999) occurring before 1 July 2010; and
(b) later unclaimed money days.
S 8AAB(5) amended by No 27 of 2009, s 3 and Sch 2 item 64, by inserting table items 13AA and 13AB, effective 27 March 2009.
S 8AAB(5) amended by No 6 of 2009, s 3 and Sch 1 item 5, by inserting table item 18A, effective 18 February 2009.
S 8AAB(5) amended by No 151 of 2008, s 3 and Sch 1 item 23, by inserting table items 13B and 13C, effective 18 December 2008.
S 8AAB(5) amended by No 97 of 2008, s 3 and Sch 3 items 177 to 179, by omitting "section" before "292-390" in table item 2B, repealing table item 17K (second occurring) and inserting table item 17L, effective 3 October 2008. Table item 17K (second occurring) formerly read:
17K ... 263-30 in Schedule 1 ... Taxation Administration Act 1953
S 8AAB(5) amended by No 45 of 2008, s 3 and Sch 1 items 53 and 54, by inserting table items 1A and 2C, effective 26 June 2008.
S 8AAB(5) amended by No 32 of 2008, s 3 and Sch 1 item 24, by inserting table item 2D, applicable to fund payments made in relation to the first income year starting on or after the first 1 July after 23 June 2008 and later income years.
S 8AAB(5) amended by No 15 of 2007, s 3 and Sch 1 item 366, by inserting table item 2B, applicable to the 2007-2008 income year and later years.
S 8AAB(5) amended by No 9 of 2007, s 3 and Sch 5 item 33, applicable to the 2007-2008 income year and later years.
S 8AAB(5) amended by No 101 of 2006, s 3 and Sch 5 item 139, by repealing table items 5 to 7 and 21 and 22, effective 14 September 2006. For application and savings provisions see the CCH Australian Income Tax Legislation archive. The items formerly read:
5 ... 68 ... Sales Tax Assessment Act 1992
6 ... 91ZB ... Sales Tax Assessment Act 1992
7 ... 91ZC ... Sales Tax Assessment Act 1992
21 ... 18 ... Tobacco Charges Assessment Act 1955
22 ... 38 ... Wool Tax (Administration) Act 1964
S 8AAB(5) amended by No 100 of 2006, s 3 and Sch 1 item 2, by inserting table item 17K (second occurring), effective 14 September 2006.
S 8AAB(5) amended by No 80 of 2006, s 3 and Sch 4 item 11, by inserting table item 2AA, applicable in relation to transfers made into a company's share capital account after 25 May 2006
S 8AAB(5) amended by No 73 of 2006, s 3 and Sch 5 item 161, by repealing table item 17AA and inserting table item 17K, effective 1 July 2006. Table item 17AA formerly read:
17AA ... 40 ... Taxation Administration Act 1953
S 8AAB(5) (table) amended by No 58 of 2006, s 3 and Sch 7 item 131, by repealing table item 17A, effective 22 June 2006. Table item 17A formerly read:
17A ... 16-50 in Schedule 1 ... Taxation Administration Act 1953
S 8AAB(5) amended by No 111 of 2003, No 54 of 2003, No 16 of 2003, No 68 of 2002, No 73 of 2001, No 91 of 2000, No 89 of 2000, No 60 of 2000, No 44 of 2000, No 178 of 1999, No 118 of 1999, No 59 of 1999.
History
S 8AAB inserted by No 11 of 1999.
SECTION 8AAC
AMOUNT OF THE GENERAL INTEREST CHARGE
8AAC(1)
[Calculating the charge]
The general interest charge for a day is worked out in accordance with this section.
8AAC(2)
[Charge payable on deficit on a running balance account]
If the charge is payable under section 8AAZF on the RBA deficit at the end of that day, then the charge is worked out by multiplying the general interest charge rate for that day by the RBA deficit at the end of that day.
8AAC(3)
[Other original unpaid amounts]
If the charge is not payable under section 8AAZF, but applies to an amount that remains unpaid (the
original unpaid amount
), then the charge is worked out by multiplying the general interest charge rate for that day by the sum of so much of the following amounts as remains unpaid:
(a)
the charge from previous days;
(b)
the original unpaid amount.
8AAC(4)
[Other specified amounts]
If the charge applies to an amount that is specified in the provision that imposes the charge, but neither subsection (2) nor (3) applies, then the charge is worked out by multiplying the general interest charge rate for that day by the sum of the following amounts:
(a)
so much of the charge from previous days as remains unpaid;
(b)
the specified amount.
History
S 8AAC inserted by No 11 of 1999.
SECTION 8AAD
WHAT IS THE
GENERAL INTEREST CHARGE RATE
?
8AAD(1)
[Working out the rate]
The
general interest charge rate
for a day is the rate worked out by adding 7 percentage points to the base interest rate for that day, and dividing that total by the number of days in the calendar year.
8AAD(2)
[Working out the "base interest rate"]
Thebase interest rate
for a day depends on which quarter of the year the day is in. For each day in a quarter in the second column of the table, it is the monthly average yield of 90-day Bank Accepted Bills published by the Reserve Bank of Australia for the month in the third column of the table.
|
Base interest rate
|
|
Item
|
For days in this quarter...
|
the monthly average yield of 90-day Bank Accepted Bills for this month applies...
|
| 1 |
1 January to 31 March |
the preceding November |
| 2 |
1 April to 30 June |
the preceding February |
| 3 |
1 July to 30 September |
the preceding May |
| 4 |
1 October to 31 December |
the preceding August |
8AAD(3)
[Monthly average yield]
If the monthly average yield of 90-day Bank Accepted Bills for a particular month in the third column of the table in subsection (2) is not published by the Reserve Bank of Australia before the beginning of the relevant quarter, assume that it is the same as the last monthly average yield of 90-day Bank Accepted Bills published by the Reserve Bank of Australia before that month.
8AAD(4)
[Base interest rate rounded]
The base interest rate must be rounded to the second decimal place (rounding .005 upwards).
History
S 8AAD substituted by No 73 of 2001 and inserted by No 11 of 1999.
SECTION 8AAE
8AAE
WHEN THE CHARGE IS DUE AND PAYABLE
The general interest charge for a day is due and payable to the Commissioner at the end of that day.
Note:
For provisions about collection and recovery of the charge, see Part 4-15 in Schedule 1.
History
S 8AAE amended by No 179 of 1999 and inserted by No 11 of 1999.
SECTION 8AAF
NOTIFICATION BY COMMISSIONER
8AAF(1)
The Commissioner may give notice to a person liable to pay the charge of the amount of the charge for a particular day or days.
8AAF(2)
(Repealed by No 178 of 1999)
8AAF(3)
(Repealed by No 81 of 2016)
History
S 8AAF(3) repealed by No 81 of 2016, s 3 and Sch 10 item 86, effective 1 January 2017 and applicable to documents (however described) that the Commissioner gives on or after 1 July 2017 under taxation laws. S 8AAF(3) formerly read:
8AAF(3)
The notice may be included in any other notice issued by the Commissioner in respect of the person.
8AAF(4)
A notice given to a person by the Commissioner under this section is prima facie evidence of the matters stated in the notice.
History
S 8AAF(4) inserted by No 179 of 1999.
History
S 8AAF inserted by No 11 of 1999.
SECTION 8AAG
REMISSION OF THE CHARGE
8AAG(1)
[Commissioner may remit all or part]
The Commissioner may remit all or a part of the charge payable by a person.
8AAG(2)
[Overdue unpaid amounts]
However, if a person is liable to pay the charge because an amount remains unpaid after the time by which it is due to be paid, the Commissioner may only remit all or a part of the charge in the circumstances set out in subsection (3), (4) or (5).
8AAG(3)
[Circumstances not due to the person]
The Commissioner may remit all or a part of the charge referred to in subsection (2) if the Commissioner is satisfied that:
(a)
the circumstances that contributed to the delay in payment were not due to, or caused directly or indirectly by, an act or omission of the person; and
(b)
the person has taken reasonable action to mitigate, or mitigate the effects of, those circumstances.
8AAG(4)
[Where it is fair and reasonable to remit charge]
The Commissioner may remit all or a part of the charge referred to in subsection (2) if the Commissioner is satisfied that:
(a)
the circumstances that contributed to the delay in payment were due to, or caused directly or indirectly by, an act or omission of the person; and
(b)
the person has taken reasonable action to mitigate, or mitigate the effects of, those circumstances; and
(c)
having regard to the nature of those circumstances, it would be fair and reasonable to remit all or a part of the charge.
8AAG(5)
[When Commissioner may remit charges]
The Commissioner may remit all or a part of the charge referred to in subsection (2) if the Commissioner is satisfied that:
(a)
there are special circumstances because of which it would be fair and reasonable to remit all or a part of the charge; or
(b)
it is otherwise appropriate to do so.
History
S 8AAG(5) substituted by No 91 of 2000.
History
S 8AAG inserted by No 11 of 1999.
SECTION 8AAGA
8AAGA
ROUNDING OF THE CHARGE
If the amount of the charge payable for any period is not a multiple of 5 cents, the Commissioner may round it down to the nearest multiple of 5 cents.
History
S 8AAGA inserted by No 178 of 1999.
SECTION 8AAH
JUDGMENT FOR PAYMENT OF AN UNPAID AMOUNT
8AAH(1)
[All or part of amounts]
This section applies if judgment is given by, or entered in, a court for the payment of:
(a)
all or a part of an amount in respect of which a person is, or was, liable to pay the charge because the amount remains unpaid after the time by which it is due to be paid; or
(b)
an amount that includes all or a part of the unpaid amount.
8AAH(2)
[Consequences of judgment]
The consequences of judgment being given or entered are:
(a)
the unpaid amount is not taken, for the purposes of a provision that makes, or would make, the person liable to pay the charge on the unpaid amount, to have ceased to be due and payable by reason only of the giving or entering of the judgment; and
(b)
if the judgment debt carries interest, the amount of the charge that the person would, if not for this paragraph, be liable to pay on the unpaid amount is reduced by:
(i)
in a case to which paragraph (1)(a) applies - the amount of the interest; or
(ii)
in a case to which paragraph (1)(b) applies - the amount worked out using the formula:
Unpaid amount or part
ofunpaid amount
Judgment debt |
× Interest |
Archived:
Div 2 and 3 repealed as inoperative by No 101 of 2006, s 3 and Sch 1 item 290, effective 14 September 2006. For application and savings provisions and for former wording see the CCH Australian Income Tax Legislation archive.
History
S 8AAH inserted by No 11 of 1999.
Division 4 - Recovery of charges and penalties [Repealed]
History
Div 4 inserted by No 11 of 1999.
SECTION 8AAU
8AAU
OVERVIEW
(Repealed by No 179 of 1999)
History
S 8AAU inserted by No 11 of 1999.
SECTION 8AAV
8AAV
RECOVERY OF AMOUNTS BY COMMISSIONER
(Repealed by No 179 of 1999)
History
S 8AAV inserted by No 11 of 1999.
SECTION 8AAW
8AAW
SUBSTITUTED SERVICE
(Repealed by No 179 of 1999)
History
S 8AAW inserted by No 11 of 1999.
PART IIB - RUNNING BALANCE ACCOUNTS, APPLICATION OF PAYMENTS AND CREDITS, AND RELATED MATTERS
History
Part IIB inserted by No 11 of 1999.
Division 1 - Preliminary
History
Div 1 inserted by No 11 of 1999.
SECTION 8AAZA
8AAZA
DEFINITIONS
In this Part, unless the contrary intention appears:
company
includes any body or association (whether or not it is incorporated), but does not include a partnership or a non-entity joint venture.
History
Definition of "company" amended by No 92 of 2000.
compulsory ABSTUDY SSL repayment amount
has the same meaning as in the Student Assistance Act 1973.
History
Definition of "compulsory ABSTUDY SSL repayment amount" inserted by No 169 of 2015, s 3 and Sch 1 item 82, effective 1 January 2016.
compulsory repayment amount
has the same meaning as in the Higher Education Support Act 2003.
History
Definition of "compulsory repayment amount" inserted by No 150 of 2003, s 3 and Sch 2 item 152, effective 1 January 2004.
compulsory SSL repayment amount
has the same meaning as in Chapter 2AA of the Social Security Act 1991.
History
Definition of "compulsory SSL repayment amount" inserted by No 169 of 2015, s 3 and Sch 1 item 83, effective 1 January 2016.
compulsory TSL repayment amount
has the same meaning as in the Trade Support Loans Act 2014.
History
Definition of "compulsory TSL repayment amount" inserted by No 82 of 2014, s 3 and Sch 1 item 8, effective 18 July 2014.
credit
includes:
(a)
an amount that the Commissioner must pay to a taxpayer under a taxation law (other than the
Product Grants and Benefits Administration Act 2000 or Division
18 (refunds) of the
A New Tax System (Luxury Car Tax) Act 1999), whether or not described as a credit; and
(b)
an amount received by the Commissioner in respect of a taxpayer as a result of the Commissioner having made a claim that is similar in nature to a foreign revenue claim (as defined in section
263-10 in Schedule
1).
History
Definition of "credit" amended by No 32 of 2014, s 3 and Sch 1 item 3, by omitting ", the Tax Bonus for Working Australians Act (No 2) 2009" after "Product Grants and Benefits Administration Act 2000" in para (a), effective 28 May 2014.
Definition of "credit" amended by No 6 of 2009, s 3 and Sch 1 item 6, by inserting ", the Tax Bonus for Working Australians Act (No 2) 2009" after "the Product Grants and Benefits Administration Act 2000", effective 18 February 2009.
Definition of "credit" amended by No 150 of 2008, s 3 and Sch 1 item 6, by inserting "or Division 18 (refunds) of the A New Tax System (Luxury Car Tax) Act 1999" after "Product Grants and Benefits Administration Act 2000" in para (a), applicable to taxable supplies of luxury cars and taxable importations of luxury cars on or after 1 July 2008.
Definition of "credit" substituted by No 100 of 2006, s 3 and Sch 1 item 3, applicable to claims for assistance in collection of foreign tax debts made after 14 September 2006. The definition formerly read:
credit
includes an amount that the Commissioner must pay to a taxpayer under a taxation law (other than the Product Grants and Benefits Administration Act 2000), whether or not described as a credit.
Definition of "credit" amended by No 54 of 2003, inserted by No 179 of 1999.
"deficit"
(Repealed by No 178 of 1999)
entity
means any of the following:
(a)
a company;
(b)
a partnership;
(c)
a person in a particular capacity of trustee;
(d)
a body politic;
(e)
a corporation sole;
(f)
any other person.
excess non-RBA credit
means a credit that arises under section 8AAZLA or 8AAZLB.
History
Definition of "excess non-RBA credit" inserted by No 178 of 1999.
FS assessment debt
means an FS assessment debt under:
(a)
subsection 19AB(2) of the
Social Security Act 1991; or
(b)
the
Student Assistance Act 1973 as in force at a time on or after 1 July 1998.
History
Definition of "FS assessment debt" substituted by No 106 of 2000.
HEC assessment debt
(Repealed by No 56 of 2010)
History
Definition of "HEC assessment debt" repealed by No 56 of 2010, s 3 and Sch 6 item 27, effective 3 June 2010. The definition formerly read:
HEC assessment debt
has the same meaning as in Chapter 5A of the Higher Education Funding Act 1988.
non-entity joint venture
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
History
Definition of "non-entity joint venture" inserted by No 92 of 2000.
non-RBA tax debt
means a tax debt other than an RBA deficit debt.
primary tax debt
means any amount due to the Commonwealth directly under a taxation law (other than, except in Division 4, the Product Grants and Benefits Administration Act 2000), including any such amount that is not yet payable.
History
Definition of "primary tax debt" amended by No 54 of 2003.
RBA
means a running balance account established under section 8AAZC.
"RBA class"
(Repealed by No 178 of 1999)
"RBA deficit"
(Repealed by No 178 of 1999)
RBA deficit debt
, in relation to an RBA of an entity, means a balance in favour of the Commissioner, based on:
(a)
primary tax debts that have been allocated to the RBA and that are currently payable; and
(b)
payments made in respect of current or anticipated primary tax debts of the entity, and credits to which the entity is entitled under a taxation law, that have been allocated to the RBA.
History
Definition of "RBA deficit debt" substituted by No 178 of 1999.
RBA group
means a GST group under Division 48 of the A New Tax System (Goods and Services Tax) Act 1999.
History
Definition of "RBA group" inserted by No 92 of 2000.
RBA statement
means a statement prepared by the Commissioner under section 8AAZG.
RBA surplus
, in relation to an RBA of an entity, means a balance in favour of the entity, based on:
(a)
primary tax debts that have been allocated to the RBA; and
(b)
payments made in respect of current or anticipated primary tax debts of the entity, and credits to which the entity is entitled under a taxation law, that have been allocated to the RBA.
History
Definition of "RBA surplus" inserted by No 178 of 1999.
secondary tax debt
means an amount that is not a primary tax debt, but is due to the Commonwealth in connection with a primary tax debt.
Note:
An example of a secondary tax debt is an amount due to the Commonwealth under an order of a court made in a proceeding for recovery of a primary tax debt.
"special priority credit"
(Repealed by No 178 of 1999)
tax debt
means a primary tax debt or a secondary tax debt.
tax debtor
means:
(a)
in relation to a tax debt - the person or persons who are liable for the tax debt; and
(b)
in relation to an RBA - the person or persons who are liable for the tax debts that are allocated to the RBA.
History
S 8AAZA inserted by No 11 of 1999.
SECTION 8AAZB
8AAZB
TRUSTEE TO BE TREATED AS SEPARATE ENTITY FOR EACH CAPACITY
For the purposes of this Part, a person who is a trustee in more than one capacity is to be treated as a separate entity in relation to each of those capacities.
History
S 8AAZB inserted by No 11 of 1999.
Division 2 - Running Balance Accounts (or RBAs)
History
Div 2 inserted by No 11 of 1999.
SECTION 8AAZC
ESTABLISHMENT OF RBAs
8AAZC(1)
[System of accounts]
The Commissioner may establish one or more systems of accounts for primary tax debts.
Note:
This section does not prevent the Commissioner from establishing other accounts that are not RBAs.
History
S 8AAZC(1) substituted by No 178 of 1999.
No 178 of 1999, Sch 2 item 36, contained the following transitional provision:
Transitional - existing RBAs
Although item 8 repeals and substitutes subsection 8AAZC(1) of the Taxation Administration Act 1953, an RBA system established under the old version of that subsection continues in existence after the commencement of that item as if it had been established under the new version of that subsection.
8AAZC(2)
[RBA]
Each account is to be known as a Running Balance Account (or RBA).
8AAZC(3)
[Any entity]
An RBA may be established for any entity.
Note:
The same person might be part of different entities. For example, a person might have a trustee capacity and also be a partner in a partnership. The person would then be a tax debtor in relation to each of the separate RBAs established for the trustee capacity and the partnership.
8AAZC(4)
[Basis for establishing RBA]
RBAs for entities may be established on any basis that the Commissioner determines.
History
S 8AAZC(4) amended by No 178 of 1999.
8AAZC(4A)
[Separate RBAs]
Without limiting subsection (4), separate RBAs may be established for different types of primary tax debts.
History
S 8AAZC(4A) inserted by No 178 of 1999.
8AAZC(5)
[Some bases]
Without limiting subsection (4), separate RBAs may be established for:
(a)
different businesses or undertakings conducted by the same entity; or
(b)
different parts of the same business or undertaking; or
(c)
different periods.
History
S 8AAZC inserted by No 11 of 1999.
SECTION 8AAZD
ALLOCATION OF TAX DEBTS TO RBAs
8AAZD(1)
[Primary tax debt]
The Commissioner may allocate a primary tax debt to an RBA that has been established for that type of tax debt.
Note:
General interest charge on an RBA deficit debt is not allocated to the RBA: it accrues automatically under section 8AAZF.
History
S 8AAZD(1) and (1A) substituted for s 8AAZD(1) by No 178 of 1999.
8AAZD(1A)
Separate RBAs for one entity.
If 2 or more RBAs for an entity have been established for that kind of tax debt, the Commissioner may allocate the debt to any one of those RBAs, or between any 2 or more of those RBAs, in the manner the Commissioner determines.
Note:
Separate RBAs may be established for different businesses or undertakings conducted by the same entity, for different parts of the same business or undertaking or for different periods: see subsection 8AAZC(5).
History
S 8AAZD(1) and (1A) substituted for s 8AAZD(1) by No 178 of 1999.
8AAZD(2)
Definition.
In this section:
primary tax debt
does not include:
(a)
general interest charge; or
(b)
an RBA deficit debt.
History
S 8AAZD(2) amended by No 178 of 1999.
History
S 8AAZD inserted by No 11 of 1999.
SECTION 8AAZE
8AAZE
ALLOCATION OF PAYMENTS AND CREDITS TO RBAs
(Repealed by No 178 of 1999)
History
S 8AAZE inserted by No 11 of 1999.
SECTION 8AAZF
GENERAL INTEREST CHARGE ON RBA DEFICIT DEBT
8AAZF(1)
[Where deficit debt exists at end of day]
If there is an RBA deficit debt at the end of a day, then general interest charge is payable by the tax debtor on that RBA deficit debt for that day.
History
S 8AAZF(1) amended by No 178 of 1999.
8AAZF(2)
[General interest charge amount]
The balance of the RBA is altered in the Commissioner's favour by the amount of the general interest charge payable.
History
S 8AAZF(2) substituted by No 178 of 1999.
History
S 8AAZF inserted by No 11 of 1999.
SECTION 8AAZG
8AAZG
RBA STATEMENTS
The Commissioner may at any time prepare a statement for an RBA, containing such particulars as the Commissioner determines.
History
S 8AAZG inserted by No 11 of 1999.
SECTION 8AAZH
LIABILITY FOR RBA DEFICIT DEBT
8AAZH(1)
[Liability]
If there is an RBA deficit debt on an RBA at the end of a day, the tax debtor is liable to pay to the Commonwealth the amount of the debt. The amount is due and payable at the end of that day.
Note:
For provisions about collection and recovery of the amount, see Part 4-15 in Schedule 1.
History
S 8AAZH(1) substituted by No 44 of 2000, amended by No 178 of 1999 and substituted by No 179 of 1999.
8AAZH(2)
[Several tax debtors]
If there are several tax debtors, their liability for the debt is of the same kind as their liability for the tax debts that were allocated to the RBA.
Example:
If the tax debtors are jointly and severally liable for the tax debts that were allocated to the RBA, they will also be jointly and severally liable for the RBA deficit debt.
History
S 8AAZH(2) amended by No 178 of 1999.
History
S 8AAZH inserted by No 11 of 1999.
SECTION 8AAZI
RBA STATEMENT TO BE EVIDENCE
8AAZI(1)
[Prima facie evidence]
The production of an RBA statement:
(a)
is prima facie evidence that the RBA was duly kept; and
(b)
is prima facie evidence that the amounts and particulars in the statement are correct.
8AAZI(2)
[RBA statement]
In this section:
RBA statement
includes a document that purports to be a copy of an RBA statement and is signed by the Commissioner or a delegate of the Commissioner or by a Second Commissioner or Deputy Commissioner.
History
S 8AAZI inserted by No 11 of 1999.
SECTION 8AAZJ
EVIDENTIARY CERTIFICATE ABOUT RBA TRANSACTIONS ETC.
8AAZJ(1)
[Prima facie evidence]
In proceedings for recovery of an RBA deficit debt, a Commissioner's certificate stating any of the following matters in respect of a specified RBA is prima facie evidence of those matters:
(a)
that no tax debts (other than general interest charge on the RBA deficit debt) were allocated to the RBA after the balance date shown on a specified RBA statement for the RBA;
(b)
that general interest charge is payable on the RBA deficit debt, as specified in the certificate;
(c)
that payments and credits were allocated to the RBA, as specified in the certificate;
(d)
that a specified amount was the RBA deficit debt on the date of the certificate.
History
S 8AAZJ(1) amended by No 178 of 1999.
8AAZJ(2)
[Commissioner's certificate]
In this section:
Commissioner's certificate
means a certificate signed by the Commissioner or a delegate of the Commissioner, or by a Second Commissioner or Deputy Commissioner.
History
S 8AAZJ inserted by No 11 of 1999.
SECTION 8AAZK
8AAZK
EFFECT OF JUDGMENT IN PROCEEDINGS TO RECOVER RBA DEFICIT DEBT
(Repealed by No 178 of 1999)
History
Former s 8AAZK inserted by No 11 of 1999.
Division 3 - Treatment of payments, credits and RBA surpluses
History
Div 3 (consisting of s 8AAZL) substituted by No 178 of 1999.
Although subsec 8AAZL(3) was repealed as a result of the substitution, special priority credits referred to in that subsection are to continue to be applied in accordance with former subsec 8AAZL(3) (No 91 of 2000, s 3 and Sch 2 item 129).
Former Div 3 inserted by No 11 of 1999.
SECTION 8AAZL
AMOUNTS COVERED BY THIS DIVISION
8AAZL(1)
This Division sets out how the Commissioner must treat the following kinds of amount:
(a)
a payment the Commissioner receives in respect of a current or anticipated tax debt or tax debts of an entity;
(b)
a credit (including an excess non-RBA credit) that an entity is entitled to under a taxation law;
(c)
an RBA surplus of an entity.
8AAZL(2)
The Commissioner must treat each such amount using the method set out in section
8AAZLA or
8AAZLB (but not both).
Note:
In either case, section 8AAZLC has some additional rules that apply to RBA surpluses and to certain excess non-RBA credits.
8AAZL(3)
However, the Commissioner does not have to treat an amount using either of those methods if doing so would require the Commissioner to apply the amount against a tax debt:
(a)
that is due but not yet payable; or
(b)
in respect of which the taxpayer has complied with an arrangement under section
255-15 to pay the debt by instalments; or
(c)
in respect of which the Commissioner has agreed to defer recovery under section
255-5.
History
S 8AAZL(3) amended by No 61 of 2011, s 3 and Sch 6 item 1, by substituting para (a), effective 1 July 2011. Para (a) formerly read:
(a)
that is:
(i)
not a BAS amount (as defined in subsection 995-1(1) of the Income Tax Assessment Act 1997); and
(ii)
due but not yet payable; or
S 8AAZL(3) inserted by No 156 of 2000.
8AAZL(4)
Furthermore, the Commissioner does not have to treat an amount using either of those methods if:
(a)
doing so would require the Commissioner to apply the amount against a tax debt; and
(b)
the tax debt is a penalty that is due and payable under section
269-20 in Schedule
1 (penalties for directors of non-complying companies).
History
S 8AAZL(4) inserted by No 99 of 2012, s 3 and Sch 1 item 1, effective 30 June 2012. For application provisions see note under Sch 1 s 269-52.
History
S 8AAZL substituted by No 178 of 1999.
SECTION 8AAZLA
METHOD 1 - ALLOCATING THE AMOUNT FIRST TO AN RBA
8AAZLA(1)
[Allocation]
The Commissioner may, in the manner he or she determines, allocate the amount to an RBA of the entity or, if the entity is a member of an RBA group, to an RBA of another member of the group.
History
S 8AAZLA(1) amended by No 92 of 2000.
8AAZLA(2)
[Application of amount]
The Commissioner must then also apply the amount against the following kinds of debts (if there are any):
(a)
tax debts that have been allocated to that RBA;
(b)
general interest charge on such tax debts.
8AAZLA(3)
[Excess non-RBA credit]
To the extent that the amount is not applied under subsection (2), it gives rise to an
excess non-RBA credit
in favour of the entity that:
(a)
is equal to the part of the amount that is not applied; and
(b)
relates to the RBA to which the amount was allocated.
History
S 8AAZLA inserted by No 178 of 1999.
SECTION 8AAZLB
METHOD 2 - APPLYING THE AMOUNT FIRST AGAINST A NON-RBA TAX DEBT
8AAZLB(1)
[Application]
The Commissioner may, in the manner he or she determines, apply the amount against a non-RBA tax debt of the entity or, if the entity is a member of an RBA group, against a non-RBA tax debt of another member of the group.
History
S 8AAZLB(1) inserted by No 92 of 2000.
8AAZLB(2)
[Obligation]
If the non-RBA tax debt is:
(a)
a tax debt that has been allocated to an RBA; or
(b)
general interest charge on such a tax debt;
the Commissioner must then also allocate the amount to that RBA.
8AAZLB(3)
[Excess non-RBA credit]
To the extent that the amount is not applied under subsection (1), it gives rise to an
excess non-RBA credit
in favour of the entity that is equal to the part of the amount that is not applied.
8AAZLB(4)
[Balance adjusted]
The excess non-RBA credit relates to the RBA (if any) that the Commissioner determines and the balance of that RBA is adjusted in the entity's favour by the amount of that credit.
8AAZLB(5)
Separate RBAs for one entity.
If the non-RBA tax debt mentioned in subsection (1) has been allocated to 2 or more RBAs, the Commissioner must allocate the amount applied between those RBAs in the proportions in which the tax debt was allocated.
Note:
Separate RBAs may be established for different businesses or undertakings conducted by the same entity, for different parts of the same business or undertaking or for different periods: see subsection 8AAZC(5).
History
S 8AAZLB inserted by No 178 of 1999.
SECTION 8AAZLC
RBA SURPLUS AND RELATED CREDITS MUST REMAIN EQUIVALENT IF ONE OR THE OTHER IS APPLIED
8AAZLC(1)
RBA surpluses.
If an RBA surplus is allocated or applied under this Division, the Commissioner must reduce by the same amount excess non-RBA credits that relate to the RBA.
8AAZLC(2)
Excess non-RBA credits.
If, under this Division, an excess non-RBA credit that relates to an RBA (the
related RBA
) is:
(a)
allocated to an RBA; or
(b)
applied against a non-RBA tax debt;
the related RBA is adjusted in the Commissioner's favour by the same amount.
History
S 8AAZLC inserted by No 178 of 1999.
SECTION 8AAZLD
8AAZLD
SPECIAL PRIORITY CREDITS
If, under this Division, the Commissioner is to apply a credit that arises under Schedule
1 to this Act (the PAYG system), the Commissioner must apply it, whether under section
8AAZLA or
8AAZLB:
(a)
(Repealed by No 56 of 2010)
(aa)
first, against any compulsory repayment amount of the entity; and
(ab)
then against any compulsory SSL repayment amount of the entity; and
(ac)
then against any compulsory ABSTUDY SSL repayment amount of the entity; and
(ad)
then against any compulsory TSL repayment amount of the entity; and
(b)
then against any FS assessment debt of the entity;
before applying it against other non-RBA tax debts of the entity.
History
S 8AAZLD amended by No 169 of 2015, s 3 and Sch 1 item 84, by inserting para (ab) and (ac), effective 1 January 2016.
S 8AAZLD amended by No 82 of 2014, s 3 and Sch 1 item 10, by inserting para (ad), effective 18 July 2014.
S 8AAZLD amended by No 56 of 2010, s 3 and Sch 6 items 28 and 29, by repealing para (a) and substituting "first," for "secondly," in para (aa), effective 3 June 2010. Para (a) formerly read:
(a)
first, against any HEC assessment debt of the entity; and
S 8AAZLD amended by No 150 of 2003, s 3 and Sch 2 item 153, by inserting para (aa), effective 1 January 2004.
S 8AAZLD inserted by No 178 of 1999.
SECTION 8AAZLE
8AAZLE
INSTRUCTIONS TO COMMISSIONER NOT BINDING
In doing anything under this Division, the Commissioner is not required to take account of any instructions of any entity.
History
S 8AAZLE inserted by No 178 of 1999.
Division 3A - Refunds of RBA surpluses and credits
History
Div 3A inserted by No 178 of 1999.
SECTION 8AAZLF
COMMISSIONER MUST REFUND RBA SURPLUSES AND CREDITS
8AAZLF(1)
[Amount not allocated or applied]
The Commissioner must refund to an entity so much of:
(a)
an RBA surplus of the entity; or
(b)
a credit (including an excess non-RBA credit) in the entity's favour;
as the Commissioner does not allocate or apply under Division 3.
8AAZLF(2)
Voluntary payments only to be refunded on request.
However, the Commissioner is not required to refund an RBA surplus or excess non-RBA credit that arises because a payment is made in respect of an anticipated tax debt of an entity unless the entity later requests, in the approved manner, that the Commissioner do so.
8AAZLF(3)
[Refund]
Onreceiving such a request, the Commissioner must refund so much of the amount as the Commissioner does not allocate or apply under Division 3.
8AAZLF(4)
Effect of refunding RBA surplus.
If the Commissioner refunds an RBA surplus under this section, the Commissioner must reduce by the same amount excess non-RBA credits that relate to the RBA.
8AAZLF(5)
Effect of refunding credit that relates to an RBA.
If, under this section, the Commissioner refunds an excess non-RBA credit that relates to an RBA, the RBA is adjusted in the Commissioner's favour by the same amount.
History
S 8AAZLF inserted by No 178 of 1999.
SECTION 8AAZLG
RETAINING REFUNDS UNTIL INFORMATION OR NOTIFICATION GIVEN
8AAZLG(1)
View history note