Taxation Administration Act 1953
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-
(a) do an act; or
(b) omit to perform an act.
(a) the Immigration Secretary; or
(b) an employee of the Immigration Department.
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.
SECTION 2A 2A APPLICATION OF THE CRIMINAL CODE
Chapter 2 of the Criminal Code applies to all offences against this Act.
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.
SECTION 3
3
APPLICATION
This Act extends to every external Territory referred to in the definition of Australia .
SECTION 3AA
SCHEDULE 1
3AA(1)
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).
Application of interpretation provisions of Income Tax Assessment Act 1997
3AA(2)
An expression has the same meaning in Schedule 1 as in the Income Tax Assessment Act 1997.
3AA(3)
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(Repealed by No 91 of 2000)
PART IA - ADMINISTRATION
SECTION 3A
3A
GENERAL ADMINISTRATION OF ACT
The Commissioner has the general administration of this Act.
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.
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(a) (Repealed by No 21 of 2015)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:
(c) set out:
(d) set out the number (if any) of taxation officers (within the meaning of the Income Tax Assessment Act 1997) 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).
3B(1A)
(Repealed by No 82 of 1993)
3B(1B)
(Repealed by No 4 of 2018)
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.
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:
SECTION 3C REPORTING OF INFORMATION ABOUT CORPORATE TAX ENTITY WITH REPORTED TOTAL INCOME OF $100 MILLION OR MORE 3C(1)
This section applies to an entity for an income year if: (a) the entity is a corporate tax entity; and (b) the entity has total income equal to or exceeding $100 million for the income year, according to information reported to the Commissioner in the entity's income tax return 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.
SECTION 3CA
REPORTING OF INFORMATION BY CORPORATE COUNTRY BY COUNTRY REPORTING ENTITIES
3CA(1)
This section applies to a corporate tax entity for an income year if:
(a) the entity is a country by country reporting entity for the income year; and
(b) at the end of the income year, the entity is:
(c) the entity does not lodge a general purpose financial statement for the financial year most closely corresponding to the income year:
3CA(1A)
However, this section does not apply to a corporate tax entity for an income year if:
(a) the entity is a government related entity (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999); and
(b) the Commissioner has given notice to the entity for the income year under subsection (1B).
3CA(1B)
For the purposes of paragraph (1A)(b), the Commissioner may give notice in writing to a government related entity (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999) for one or more specified income years if the Commissioner considers that it is appropriate to do so.
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.
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.
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:
(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:
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.
SECTION 3D
PUBLICATION OF INFORMATION BY CERTAIN COUNTRY BY COUNTRY REPORTING ENTITIES
3D(1)
This section applies to an entity for a period mentioned in subsection (2) (the reporting period ) if: (a) the entity is:
3D(2)
For the purposes of subsection (1), the period is: (a) if paragraph (b) of this subsection does not apply - each period for which audited consolidated financial statements for the entity for the period are prepared; or (b) if the entity does not prepare audited consolidated financial statements - each period for which the entity would be, on the assumption that the entity were a listed company (within the meaning of section 26BC of the Income Tax Assessment Act 1936), required to prepare such statements.
Publication of information
3D(3)
An entity to which this section applies for a reporting period must, within 12 months after the end of the reporting period: (a) publish the information set out in subsection 3DA(1), except to the extent the entity, the information and the reporting period are specified in an exemption under subsection 3DB(6); and (b) do so by giving a document containing the information to the Commissioner in the approved form.
3D(4)
The Commissioner must, as soon as practicable after receiving the document given in accordance with paragraph (3)(b), make the information in the document available on an Australian government website.
Government related entities
3D(5)
This section does not apply to a corporate tax entity for a period mentioned in subsection (2) if: (a) the entity is a government related entity (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999); and (b) the Commissioner has given notice to the entity for the period under subsection (6).
3D(6)
For the purposes of paragraph (5)(b), the Commissioner may give notice in writing to a government related entity (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999) for one or more specified periods if the Commissioner considers that it is appropriate to do so.
Interpretation
3D(7)
An expression used in this section or section 3DA or 3DB that is also used in the Income Tax Assessment Act 1997 has the same meaning as in that Act.
SECTION 3DA
PUBLICATION OF INFORMATION BY CERTAIN COUNTRY BY COUNTRY REPORTING ENTITIES - INFORMATION TO BE PUBLISHED
3DA(1)
For the purposes of paragraph 3D(3)(a), the information the entity must publish is as follows: (a) the name of the entity; (b) the names of each other entity that, at that time, was a member of the country by country reporting group; (c) a description of the country by country reporting group's approach to tax; (d) the matters listed in subsection (3) of this section for the reporting period in respect of each of the following jurisdictions:
3DA(2)
However, for the purposes of this section and sections 3D and 3DB, the entity is taken to have published the information set out in paragraph (1)(e) of this section if it publishes the matters listed in subsection (3) for the reporting period in respect of each jurisdiction in which the country by country reporting group operates.
3DA(3)
For the purposes of paragraph (1)(d) and subsection (2), the following matters are listed: (a) the name of the jurisdiction; (b) a description of main business activities; (c) the number of employees (on a full-time equivalent basis) as at the end of the reporting period; (d) revenue from unrelated parties; (e) revenue from related parties that are not tax residents of the jurisdiction; (f) profit or loss before income tax; (g) the book value at the end of the reporting period of tangible assets, other than cash and cash equivalents; (h) income tax paid (on a cash basis); (i) income tax accrued (current year); (j) the reasons for the difference between:
3DA(4)
For the purposes of subparagraph (1)(d)(ii), the Minister may, by legislative instrument, make a determination specifying jurisdictions.
3DA(5)
For the purposes of subparagraph (1)(e)(ii), the following matters are listed: (a) the number of employees (on a full-time equivalent basis) as at the end of the reporting period; (b) revenue from unrelated parties; (c) revenue from related parties that are not tax residents of the jurisdiction; (d) profit or loss before income tax; (e) the book value at the end of the reporting period of tangible assets, other than cash and cash equivalents; (f) income tax paid (on a cash basis); (g) income tax accrued (current year).
3DA(6)
The amounts published by the entity for the matters listed in paragraphs (3)(c) to (i) and subsection (5) must be based on: (a) if paragraph (b) of this subsection does not apply - amounts as shown in the audited consolidated financial statements for the entity for the reporting period; or (b) if audited consolidated financial statements for the entity for the reporting period have not been prepared - amounts that would be, on the assumptions that the entity were a listed company (within the meaning of section 26BC of the Income Tax Assessment Act 1936) and such statements were prepared, shown in those statements.
Interpretation
3DA(7)
For the purposes of determining the effect that paragraph (1)(c), subsections (3) and (5) and any regulations made for the purposes of paragraph (1)(f) have in relation to an entity, identify information mentioned in those provisions: (a) so as best to achieve consistency with Disclosures 207-1 and 207-4 of GRI 207:Tax 2019 of the Global Reporting Initiative's Sustainability Reporting Standards; and (b) having regard to the following documents, to the extent they are relevant:
SECTION 3DB
PUBLICATION OF INFORMATION BY CERTAIN COUNTRY BY COUNTRY REPORTING ENTITIES - CORRECTIONS AND EXEMPTIONS ETC.
Corrections
3DB(1)
If an entity becomes aware that a document it has given to the Commissioner under paragraph 3D(3)(b) contains an error, it: (a) if the error is a material error - must; or (b) otherwise - may;
3DB(2)
If paragraph (1)(a) applies, the entity must publish the information by giving the document containing the information to the Commissioner no later than 28 days after the entity becomes aware of the error.
3DB(3)
The Commissioner must, as soon as practicable after receiving the document given in accordance with subsection (1), make the information available on an Australian government website.
Exemptions
3DB(4)
For the purposes of subparagraph 3D(1)(f)(ii), the Commissioner may, by legislative instrument, specify a class of entity to which subsection 3D(3) does not apply.
3DB(5)
For the purposes of paragraph 3D(1)(g), the Commissioner may, by notice in writing, specify: (a) an entity that is exempt from publishing information under subsection 3D(3); and (b) the reporting period for which the exemption applies.
3DB(6)
For the purposes of paragraph 3D(3)(a), the Commissioner may, by notice in writing, specify: (a) an entity that is exempt from publishing information of a particular kind; and (b) the particular kind of information that the entity is exempt from publishing; and (c) the reporting period for which the exemption applies.
3DB(7)
A notice under subsection (5) or (6) must only specify a single reporting period.
3DB(8)
A notice under subsection (5) or (6) is not a legislative instrument.
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:
3EA
(Repealed) SECTION 3EA USE BY ASIO OFFICERS OF TAX INFORMATION
(Repealed by No 145 of 2010)
3EB
(Repealed) SECTION 3EB USE BY LEGAL PRACTITIONERS OF TAX INFORMATION PROVIDED BY ASIO
(Repealed by No 145 of 2010)
3EC
(Repealed) SECTION 3EC USE BY IGIS OFFICERS OF TAX INFORMATION PROVIDED BY ASIO
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.
View history note
Hide history note
ASIO
means the Australian Security Intelligence Organisation.
ASIO officer
(Repealed by No 145 of 2010)
assessable amount
has the meaning given by subsection 155-5(2) in Schedule 1.
Australia
, when used in a geographical sense, has the same meaning as in the Income Tax Assessment Act 1997.
authorised ASIO officer
(Repealed by No 145 of 2010)
authorised law enforcement agency officer
(Repealed by No 145 of 2010)
authorised Royal Commission officer
(Repealed by No 145 of 2010)
Chairperson
(Repealed by No 145 of 2010)
Commissioner
means the Commissioner of Taxation.
Customs diesel fuel rebate provision
(Repealed by No 54 of 2003)
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.
eligible recipient
has the meaning given by section 14ZZV.
eligible Royal Commission
(Repealed by No 145 of 2010)
eligible whistleblower
has the meaning given by section 14ZZU.
(a) do an act; or
(b) omit to perform an act.
excess concessional contributions determination
has the same meaning as in subsection 995-1(1) of the Income Tax Assessment Act 1997.
excise law
has the meaning given by the Income Tax Assessment Act 1997.
exempt Australian government agency
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
failure to notify penalty
means the penalty worked out under Division 2 of Part IIA.
fuel tax law
has the meaning given by the Fuel Tax Act 2006.
general interest charge
means the charge worked out under Part IIA.
head
(Repealed by No 145 of 2010)
IGIS officer
(Repealed by No 145 of 2010)
Immigration Department
has the meaning given by the Income Tax Assessment Act 1997.
Immigration Minister
(Repealed by No 110 of 2014)
Immigration Secretary
has the meaning given by the Income Tax Assessment Act 1997.
indirect tax law
has the meaning given by the Income Tax Assessment Act 1997.
ineligible income tax remission decision
has the meaning given by section 14ZS.
Inspector-General
(Repealed by No 145 of 2010)
Laminaria and Corallina decommissioning levy
has the same meaning as in the Income Tax Assessment Act 1997.
late reconciliation statement penalty
means the penalty worked out under Division 3 of Part IIA.
law enforcement agency
(Repealed by No 145 of 2010)
(a) the Immigration Secretary; or
(b) an employee of the Immigration Department.
objection decision
has the meaning given by subsection 14ZY(2).
officer
means a person appointed or engaged under the Public Service Act 1999.
official
(Repealed by No 145 of 2010)
private ancillary fund
(Repealed by No 147 of 2011)
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).
private ruling
has the meaning given by section 359-5 in Schedule 1.
registered tax agent or BAS agent
has the same meaning as in the Tax Agent Services Act 2009.
Second Commissioner
means a Second Commissioner of Taxation.
Small Taxation Claims Tribunal
(Repealed by No 60 of 2015)
SPOR taxpayer
(Repealed by No 161 of 2005)
taxation law
has the meaning given by the Income Tax Assessment Act 1997.
Note:
See also subsection (2).
tax liability
means a liability to the Commonwealth arising under, or by virtue of, a taxation law.
Tax Practitioners Board
means the Tax Practitioners Board established by section 60-5 of the Tax Agent Services Act 2009.
Tribunal
means the Administrative Review Tribunal.
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.
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.
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.
This Act extends to every external Territory referred to in the definition of Australia .
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).
Application of interpretation provisions of Income Tax Assessment Act 1997
3AA(2)
An expression has the same meaning in Schedule 1 as in the Income Tax Assessment Act 1997.
3AA(3)
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)
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.
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.
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 (within the meaning of the Income Tax Assessment Act 1997) 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).
3B(1A)
(Repealed by No 82 of 1993)
3B(1B)
(Repealed by No 4 of 2018)
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.
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.
SECTION 3C REPORTING OF INFORMATION ABOUT CORPORATE TAX ENTITY WITH REPORTED TOTAL INCOME OF $100 MILLION OR MORE 3C(1)
This section applies to an entity for an income year if: (a) the entity is a corporate tax entity; and (b) the entity has total income equal to or exceeding $100 million for the income year, according to information reported to the Commissioner in the entity's income tax return 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.
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.
This section applies to a corporate tax entity for an income year if:
(a) the entity is a country by country reporting 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(1A)
However, this section does not apply to a corporate tax entity for an income year if:
(a) the entity is a government related entity (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999); and
(b) the Commissioner has given notice to the entity for the income year under subsection (1B).
3CA(1B)
For the purposes of paragraph (1A)(b), the Commissioner may give notice in writing to a government related entity (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999) for one or more specified income years if the Commissioner considers that it is appropriate to do so.
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.
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.
This section applies to an entity for a period mentioned in subsection (2) (the reporting period ) if: (a) the entity is:
(i) a constitutional corporation; or
(ii) a partnership in which each of the partners is a constitutional corporation; or
(b) the entity was a country by country reporting parent for a period that includes the whole or a part of the period mentioned in subsection (2) that preceded the reporting period; and (c) the entity is a member of a country by country reporting group at any time during the reporting period; and (d) at any time during the reporting period, the entity or another member of the country by country reporting group is:
(iii) a trust of which each of the trustees is a constitutional corporation; and
(i) an Australian resident; or
(e) assuming that the reporting period were an income year, both of the following apply:
(ii) a foreign resident who operates an Australian permanent establishment (within the meaning of Part IVA of the Income Tax Assessment Act 1936); and
(i) the entity's aggregated turnover for the income year includes one or more amounts of income from an Australian source;
(f) the entity is not included in a class of entities:
(ii) the sum of those amounts is $10 million or more; and
(i) prescribed by the regulations for the purposes of this subparagraph; or
(g) the entity and the reporting period are not specified in an exemption under subsection 3DB(5).
(ii) specified in a legislative instrument under subsection 3DB(4); and
3D(2)
For the purposes of subsection (1), the period is: (a) if paragraph (b) of this subsection does not apply - each period for which audited consolidated financial statements for the entity for the period are prepared; or (b) if the entity does not prepare audited consolidated financial statements - each period for which the entity would be, on the assumption that the entity were a listed company (within the meaning of section 26BC of the Income Tax Assessment Act 1936), required to prepare such statements.
Publication of information
3D(3)
An entity to which this section applies for a reporting period must, within 12 months after the end of the reporting period: (a) publish the information set out in subsection 3DA(1), except to the extent the entity, the information and the reporting period are specified in an exemption under subsection 3DB(6); and (b) do so by giving a document containing the information to the Commissioner in the approved form.
Note:
Subsection 288-140(1) in Schedule 1 provides for an administrative penalty for failing to comply with this subsection on time.
3D(4)
The Commissioner must, as soon as practicable after receiving the document given in accordance with paragraph (3)(b), make the information in the document available on an Australian government website.
Government related entities
3D(5)
This section does not apply to a corporate tax entity for a period mentioned in subsection (2) if: (a) the entity is a government related entity (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999); and (b) the Commissioner has given notice to the entity for the period under subsection (6).
3D(6)
For the purposes of paragraph (5)(b), the Commissioner may give notice in writing to a government related entity (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999) for one or more specified periods if the Commissioner considers that it is appropriate to do so.
Interpretation
3D(7)
An expression used in this section or section 3DA or 3DB that is also used in the Income Tax Assessment Act 1997 has the same meaning as in that Act.
For the purposes of paragraph 3D(3)(a), the information the entity must publish is as follows: (a) the name of the entity; (b) the names of each other entity that, at that time, was a member of the country by country reporting group; (c) a description of the country by country reporting group's approach to tax; (d) the matters listed in subsection (3) of this section for the reporting period in respect of each of the following jurisdictions:
(i) Australia;
(e) in respect of the jurisdictions in which the country by country reporting group operates that are not mentioned in paragraph (d) of this subsection:
(ii) a jurisdiction specified in a determination under subsection (4), if the country by country reporting group operates in that jurisdiction;
(i) a description of the country by country reporting group's main business activities for the reporting period in the area consisting of those jurisdictions;
(ii) for each matter listed in subsection (5), the amounts for the reporting period for that matter in respect of each jurisdiction in the area, published as a sum of those amounts for that matter;
(f) if regulations for the purposes of this paragraph prescribe information - that information.
(iii) the currency used in calculating and presenting the information mentioned in subparagraph (ii);
3DA(2)
However, for the purposes of this section and sections 3D and 3DB, the entity is taken to have published the information set out in paragraph (1)(e) of this section if it publishes the matters listed in subsection (3) for the reporting period in respect of each jurisdiction in which the country by country reporting group operates.
3DA(3)
For the purposes of paragraph (1)(d) and subsection (2), the following matters are listed: (a) the name of the jurisdiction; (b) a description of main business activities; (c) the number of employees (on a full-time equivalent basis) as at the end of the reporting period; (d) revenue from unrelated parties; (e) revenue from related parties that are not tax residents of the jurisdiction; (f) profit or loss before income tax; (g) the book value at the end of the reporting period of tangible assets, other than cash and cash equivalents; (h) income tax paid (on a cash basis); (i) income tax accrued (current year); (j) the reasons for the difference between:
(i) the amount mentioned in paragraph (i) of this subsection; and
(k) the currency used in calculating and presenting the information mentioned in paragraphs (d) to (j) of this subsection.
(ii) the amount of income tax due if the income tax rate applicable in the jurisdiction were applied to the amount mentioned in paragraph (f) of this subsection;
3DA(4)
For the purposes of subparagraph (1)(d)(ii), the Minister may, by legislative instrument, make a determination specifying jurisdictions.
3DA(5)
For the purposes of subparagraph (1)(e)(ii), the following matters are listed: (a) the number of employees (on a full-time equivalent basis) as at the end of the reporting period; (b) revenue from unrelated parties; (c) revenue from related parties that are not tax residents of the jurisdiction; (d) profit or loss before income tax; (e) the book value at the end of the reporting period of tangible assets, other than cash and cash equivalents; (f) income tax paid (on a cash basis); (g) income tax accrued (current year).
3DA(6)
The amounts published by the entity for the matters listed in paragraphs (3)(c) to (i) and subsection (5) must be based on: (a) if paragraph (b) of this subsection does not apply - amounts as shown in the audited consolidated financial statements for the entity for the reporting period; or (b) if audited consolidated financial statements for the entity for the reporting period have not been prepared - amounts that would be, on the assumptions that the entity were a listed company (within the meaning of section 26BC of the Income Tax Assessment Act 1936) and such statements were prepared, shown in those statements.
Interpretation
3DA(7)
For the purposes of determining the effect that paragraph (1)(c), subsections (3) and (5) and any regulations made for the purposes of paragraph (1)(f) have in relation to an entity, identify information mentioned in those provisions: (a) so as best to achieve consistency with Disclosures 207-1 and 207-4 of GRI 207:Tax 2019 of the Global Reporting Initiative's Sustainability Reporting Standards; and (b) having regard to the following documents, to the extent they are relevant:
(i) the Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations, as approved by the Council of the Organisation for Economic Cooperation and Development and last amended on 7 January 2022;
(ii) Guidance on the Implementation of Country-by-Country Reporting: BEPS Action 13 (2022) of the Organisation for Economic Cooperation and Development;
(iii) a document, or part of a document, prescribed by the regulations for the purposes of this subparagraph.
Note 1:
The document in paragraph (a) could in 2024 be viewed on the Global Reporting Initiative's website (https://www.globalreporting.org).
Note 2:
The documents in subparagraphs (b)(i) and (ii) could in 2024 be viewed on the Organisation for Economic Cooperation and Development's website (https://www.oecd.org).
Corrections
3DB(1)
If an entity becomes aware that a document it has given to the Commissioner under paragraph 3D(3)(b) contains an error, it: (a) if the error is a material error - must; or (b) otherwise - may;
publish information that corrects the error by giving a document containing the information to the Commissioner in the approved form.
3DB(2)
If paragraph (1)(a) applies, the entity must publish the information by giving the document containing the information to the Commissioner no later than 28 days after the entity becomes aware of the error.
Note:
Subsection 288-140(1) in Schedule 1 provides for an administrative penalty for failing to comply with paragraph (1)(a) of this section on time.
3DB(3)
The Commissioner must, as soon as practicable after receiving the document given in accordance with subsection (1), make the information available on an Australian government website.
Exemptions
3DB(4)
For the purposes of subparagraph 3D(1)(f)(ii), the Commissioner may, by legislative instrument, specify a class of entity to which subsection 3D(3) does not apply.
3DB(5)
For the purposes of paragraph 3D(1)(g), the Commissioner may, by notice in writing, specify: (a) an entity that is exempt from publishing information under subsection 3D(3); and (b) the reporting period for which the exemption applies.
3DB(6)
For the purposes of paragraph 3D(3)(a), the Commissioner may, by notice in writing, specify: (a) an entity that is exempt from publishing information of a particular kind; and (b) the particular kind of information that the entity is exempt from publishing; and (c) the reporting period for which the exemption applies.
3DB(7)
A notice under subsection (5) or (6) must only specify a single reporting period.
3DB(8)
A notice under subsection (5) or (6) is not a legislative instrument.
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.
(Repealed by No 145 of 2010)
(Repealed by No 145 of 2010)
(Repealed by No 145 of 2010)
(Repealed by No 145 of 2010)
This section applies if the Commissioner makes a determination under section 418-101 of the Income Tax Assessment Act 1997 allocating exploration credits to an entity for an income year.
3F(2)
The Commissioner must, as soon as practicable after making the determination, make publicly available: (a) the ABN and name of the entity; and (b) the amount of the entity's exploration credits allocation for the income year.
3F(3)
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.
The Commissioner's functions include the function of developing and/or administering a framework or system for electronic invoicing.
3G(2)
Without limiting subsection (1), the Commissioner may develop the framework or system by adopting (with appropriate modifications) a framework or system for electronic invoicing operating outside Australia.
3G(3)
The Commissioner has power to do all things that are necessary or convenient to be done for or in connection with the performance of the Commissioner's functions under this section.
3G(4)
Without limiting subsection (3), the Commissioner's powers under that subsection include:
(a) entering into agreements for integrating the framework or system for electronic invoicing mentioned in subsection (1) with frameworks or systems for electronic invoicing that operate outside Australia; and
(b) entering into agreements for accessing the framework or system for electronic invoicing mentioned in subsection (1); and
(c) liaising with:
(i) foreign countries; and
to develop common approaches to electronic invoices between countries.
(ii) agencies, and other entities, of foreign countries;
3G(5)
This section does not limit any functions or powers the Commissioner has apart from this section.
This section applies to an R&D entity in relation to an income year if, according to information the entity gave the Commissioner, the entity is entitled under Division 355 of the Income Tax Assessment Act 1997 to a tax offset for amounts it can deduct under that Division for the income year.
3H(2)
The Commissioner must, as soon as practicable after the second 30 June after the financial year corresponding to the income year, make publicly available the information mentioned in subsection (3).
3H(3)
The information is as follows: (a) the entity's name; (b) the entity's ABN or, if the first information the entity gave the Commissioner indicating the entity's entitlement to the tax offset does not include the entity's ABN but does include the entity's ACN (within the meaning of the Corporations Act 2001), the entity's ACN; (c) if, according to the first information the entity gave the Commissioner indicating the entity's entitlement to the tax offset, the total described in paragraph (4)(a) exceeds the total described in paragraph (4)(b) - the excess.
3H(4)
For the purposes of paragraph (3)(c), the totals are as follows: (a) the total of what the entity can deduct for the income year as described in subsection (1) of this section; (b) the total of the amounts the entity has under section 355-445 of the Income Tax Assessment Act 1997 for the income year.
3H(5)
Subsection (6) applies if: (a) the entity gives the Commissioner a notice in writing that the information mentioned in paragraph (3)(c) contains an error; and (b) the notice contains information that corrects the error.
3H(6)
The Commissioner may at any time make the information mentioned in paragraph (5)(b) publicly available, in accordance with subsection (2), in order to correct the error.
3H(7)
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.
3H(8)
An expression used in this section and in the Income Tax Assessment Act 1997 has the same meaning in this section as in that Act.
The Commissioner's functions include providing services, or access to services, within digital ID systems.
3J(2)
Without limiting subsection (1), the Commissioner may participate within the Australian Government Digital ID System as one or more kinds of accredited entities.
3J(3)
The Commissioner has power to do all things that are necessary or convenient to be done for or in connection with the performance of theCommissioner's functions under this section.
3J(4)
This section does not limit any functions or powers the Commissioner has apart from this section.
3J(5)
To avoid doubt: (a) the Digital ID Act 2024 is not a taxation law; and (b) the functions referred to in subsection (1) are not performed under, or for the purposes of, a taxation law.
3J(6)
In this section:
accredited entity
has the same meaning as in the Digital ID Act 2024.
Australian Government Digital ID System
has the same meaning as in the Digital ID Act 2024.
digital ID system
has the same meaning as in the Digital ID Act 2024.
[
CCH Note:
S 3L will be inserted by No 9 of 2025, s 3 and Sch 1 item 5, effective the later of: (a) the first 1 January, 1 April, 1 July or 1 October to occur after the day this Act receives the Royal Assent; and (b) the first 1 January, 1 April, 1 July or 1 October to occur after the day the Future Made in Australia (Guarantee of Origin) Act 2024 commences. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. S 3L will read:
SECTION 3L REPORTING OF INFORMATION ABOUT HYDROGEN PRODUCTION TAX OFFSET
]
3L(1)
This section applies to an entity in relation to an income year if, according to information the entity gave the Commissioner, the entity is entitled under Division 421 of the Income Tax Assessment Act 1997 to a tax offset for the income year.
3L(2)
The Commissioner must, as soon as practicable after the second 30 June after the financial year corresponding to the income year, make publicly available the information mentioned in subsection (3).
3L(3)
The information is as follows:
(a)
the entity's name;
(b)
the entity's ABN or, if the first information the entity gave the Commissioner indicating the entity's entitlement to the tax offset does not include the entity's ABN but does include the entity's ACN (within the meaning of the Corporations Act 2001 ), the entity's ACN;
(c)
the sum of the amounts of the tax offsets that the entity is entitled to under Division 421 of the Income Tax Assessment Act 1997 for the income year, where the amount of each tax offset is worked out according to the first information that the entity gave the Commissioner indicating the entity's entitlement to the tax offset.
3L(4)
Subsection (5) applies if:
(a)
the entity gives the Commissioner notice, in the approved form, that the information mentioned in subsection (3) contains an error; and
(b)
the notice contains information that corrects the error.
3L(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.
3L(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.
3L(7)
An expression used in this section and in the Income Tax Assessment Act 1997 has the same meaning in this section as in that Act.
This section applies to a company in relation to an income year if, according to information the entity gave the Commissioner, the company is entitled to the CMPTI tax offset for the income year.
3K(2)
The Commissioner must, as soon as practicable after the second 30 June after the financial year corresponding to the income year, make publicly available the information mentioned in subsection (3).
3K(3)
The information is as follows: (a) the company's name; (b) the company's ABN; (c) the amount of the company's CMPTI tax offset for the income year.
3K(4)
Subsection (5) applies if: (a) the entity gives the Commissioner a notice in writing that the information mentioned in paragraph (3)(c) contains an error; and (b) the notice contains information that corrects the error.
3K(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.
3K(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.
3K(7)
An expression used in this section and in the Income Tax Assessment Act 1997 has the same meaning in this section as in that Act.
There shall be a Commissioner of Taxation and 3 Second Commissioners of Taxation, who shall be appointed by the Governor-General.
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.
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.
(Repealed by No 159 of 2001)
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.
(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.
The Commissioner and a Second Commissioner have such recreation leave entitlements as are determined by the Remuneration Tribunal.
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.
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.
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.
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.
6B(3)
(Repealed by No 46 of 2011)
6B(4)
(Repealed by No 46 of 2011)
6B(5)
(Repealed by No 46 of 2011)
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.
[ CCH Note: S 6B(6A) will be substituted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1431, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading. S 6B(6A) will read:
]
6B(6A)
For the purposes of subsection (6), if the Commissioner is appointed as the Registrar under section 6 of the Commonwealth Registers Act 2020, the Commissioner's powers and functions include powers and functions given to the Commissioner in the Commissioner's capacity as that Registrar.
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)
6B(9)
(Repealed by No 46 of 2011)
6B(10)
(Repealed by No 46 of 2011)
6B(11)
(Repealed by No 4 of 2007)
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](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.
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.
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
6D(3) [Deemed performance by Commissioner]
(ii) requires the Commissioner to furnish to the Minister a report on the working of the taxation law during any period.
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)
There shall be such Deputy Commissioners of Taxation as are required. SECTION 8 DELEGATION 8(1)
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.
8(1A)
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.
[ CCH Note: S 8(1A) will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1432, by substituting "the Commissioner's capacity as the Registrar (within the meaning of the A New Tax System (Australian Business Number) Act 1999)" for "his or her capacity as Registrar of the Australian Business Register", effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading.]
8(2)
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.
8(3)
(Omitted by No 123 of 1984)
8(4)
A delegation under this section does not prevent the exercise of a power or the performance of a function by the Commissioner.
8(5)
A delegation under this section may be made subject to a power of review and alteration by the Commissioner, within a period specified in the instrument of delegation, of acts done in pursuance of the delegation.
8(6)
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.
PART IIA - THE GENERAL INTEREST CHARGE
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.
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.
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 |
| 3B | 67 | Excise Act 1901 | payment of excise duty for tobacco goods |
| 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 | former section 163AA | Income Tax Assessment Act 1936 | returns by instalment taxpayers |
| 10 | former section 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 or shortfall interest charge |
| 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 |
| 12A | 44-50 | Income Tax Assessment Act 1997 | payment of assessed build to rent development misuse tax |
| 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 labour mobility program withholding tax |
| 19 | 214-105 | Income Tax (Transitional Provisions) Act 1997 | payment of franking deficit tax |
| 19A | 10 | Boosting Cash Flow for Employers (Coronavirus Economic Response Package) Act 2020 | wrong payment or overpayment of a cash flow boost |
| 19B | 10 | Coronavirus Economic Response Package (Payments and Benefits) Act 2020 | wrong payment or overpayment of a Coronavirus economic response payment |
| 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 |
| 27A | 115Q | Paid Parental Leave Act 2010 | repayments of PPL superannuation contributions or underpaid amounts 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 |
| 33A | 20QE | Superannuation (Unclaimed Money and Lost Members) Act 1999 | payment in respect of inactive low-balance accounts |
| 33B | 20QL | repayment of Commissioner's payment in respect of inactive low-balance accounts that cannot be credited to an account | |
| 33C | 21D | Superannuation (Unclaimed Money and Lost Members) Act 1999 | payment in respect of eligible rollover fund accounts |
| 33D | 21H | Superannuation (Unclaimed Money and Lost Members) Act 1999 | repayment of Commissioner's payment in respect of eligible rollover fund accounts that cannot be credited to an account |
| 33E | 22F | Superannuation (Unclaimed Money and Lost Members) Act 1999 | repayment of Commissioner's payment in respect of payments 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 |
| 35A | 24NB | Superannuation (Unclaimed Money and Lost Members) Act 1999 | repayment of Commissioner's payment for inactive low-balance accounts that cannot be credited to an active 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 | (Repealed by No 45 of 2021) | ||
| 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 | 125-10 in Schedule 1 | Taxation Administration Act 1953 | payment of Laminaria and Corallina decommissioning levy or shortfall interest charge |
| 45BA | 127-70 in Schedule 1 | Taxation Administration Act 1953 | payment of Australian IIR/UTPR tax or shortfall interest charge |
| 45BB | 127-70 in Schedule 1 | Taxation Administration Act 1953 | payment of Australian DMT tax or shortfall interest charge |
| 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 | (Repealed by No 23 of 2018) | ||
| 51 | (Repealed by No 23 of 2018) |
8AAB(5)
(Repealed by No 41 of 2011)
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.
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"]The base 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 |
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).
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.
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)
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.
SECTION 8AAG REMISSION OF THE CHARGE 8AAG(1)
The Commissioner may remit all or a part of the charge payable by a person.
Commissioner's Remedial Power
(a) in relation to:
(i) an entity; or
(ii) one or more entities in a relevant class; and
(b) whether or not the charge or penalty:
(i) has become due and payable; or
(ii) may become due and payable in the future.
Note: A Commissioner's Remedial Power modification is relevant to this part of the tax law. Taxation Administration (Remedial Power - Remission of Charges and Penalties) Determination 2023 (F2023L00956) modifies the operation of s 8AAG(1) of the Taxation Administration Act 1953 and any other provisions of a taxation law whose operation is affected by the modified operation of s 8AAG(1).
The operation of the relevant provision is modified as follows:
For the purposes of s 370-5 in Sch 1 to the Taxation Administration Act 1953, s 8AAG(1) of the Taxation Administration Act 1953 is modified to permit the Commissioner to remit the general interest charge, shortfall interest charge or an administrative penalty, as applicable:
An entity must treat a modification as not applying to it or any other entity if the modification would produce a less favourable result for it. The Commissioner is empowered by s 370-5 in Sch 1 to the Taxation Administration Act 1953 to make modifications, by legislative instrument, to ensure the law is administered to achieve its intended purpose or object.
8AAG(2)
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)
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)
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)
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.
Commissioner's Remedial Power
(a) in relation to:
(i) an entity; or
(ii) one or more entities in a relevant class; and
(b) whether or not the charge or penalty:
(i) has become due and payable; or
(ii) may become due and payable in the future.
Note: A Commissioner's Remedial Power modification is relevant to this part of the tax law. Taxation Administration (Remedial Power - Remission of Charges and Penalties) Determination 2023 (F2023L00956) modifies the operation of s 8AAG(5) of the Taxation Administration Act 1953 and any other provisions of a taxation law whose operation is affected by the modified operation of s 8AAG(5).
The operation of the relevant provision is modified as follows:
For the purposes of s 370-5 in Sch 1 to the Taxation Administration Act 1953, s 8AAG(5) of the Taxation Administration Act 1953 is modified to permit the Commissioner to remit the general interest charge, shortfall interest charge or an administrative penalty, as applicable:
An entity must treat a modification as not applying to it or any other entity if the modification would produce a less favourable result for it. The Commissioner is empowered by s 370-5 in Sch 1 to the Taxation Administration Act 1953 to make modifications, by legislative instrument, to ensure the law is administered to achieve its intended purpose or object.
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.
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
of unpaid amount
Judgment debt× Interest
(Repealed by No 179 of 1999)
(Repealed by No 179 of 1999)
(Repealed by No 179 of 1999)
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.
compulsory AASL repayment amount
has the same meaning as in the Australian Apprenticeship Support Loans Act 2014.
compulsory ABSTUDY SSL repayment amount
has the same meaning as in the Student Assistance Act 1973.
compulsory repayment amount
has the same meaning as in the Higher Education Support Act 2003.
compulsory SSL repayment amount
has the same meaning as in Chapter 2AA of the Social Security Act 1991.
compulsory TSL repayment amount
(Repealed by No 61 of 2023)
compulsory VETSL repayment amount
has the same meaning as in the VET Student Loans Act 2016.
(a) an amount that the Commissioner must pay to a taxpayer under a taxation law, whether or not described as a credit, other than the following amounts:
(i) an amount paid under the Product Grants and Benefits Administration Act 2000;
(ii) an amount paid under Division 18 (refunds) of the A New Tax System (Luxury Car Tax) Act 1999;
(iii) an amount paid under the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 to an entity, unless a determination of the Commissioner under section 8AAZAA specifies that the amount is a credit for the purposes of this subparagraph; 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).
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.
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.
HEC assessment debt
(Repealed by No 56 of 2010)
non-entity joint venture
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
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.
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.
RBA group
means a GST group under Division 48 of the A New Tax System (Goods and Services Tax) Act 1999.
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.
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.
(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.
The Commissioner may make a written determination that specifies that an amount paid under the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 to an entity is a credit for the purposes of subparagraph (a)(iii) of the definition of credit in section 8AAZA.
8AAZAA(2)
A determination under subsection (1) is not a legislative instrument.
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.
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.
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.
Without limiting subsection (4), separate RBAs may be established for different types of primary tax debts.
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.
The Commissioner may allocate a primary tax debt to an RBA thathas 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.
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).
In this section:
primary tax debt
does not include:
(a) general interest charge; or
(b) an RBA deficit debt.
(Repealed by No 178 of 1999)
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.
The balance of the RBA is altered in the Commissioner's favour by the amount of the general interest charge payable.
The Commissioner may at any time prepare a statement for an RBA, containing such particulars as the Commissioner determines.
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.
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.
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.
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.
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.
(Repealed by No 178 of 1999)
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.
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).
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.
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.
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.
(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).
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.
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 (aaa) then against any compulsory VETSL 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 AASL 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.
In doing anything under this Division, the Commissioner is not required to take account of any instructions of any entity.
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]On receiving 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.
The Commissioner may retain an amount that he or she otherwise would have to refund to an entity under section 8AAZLF, if the entity has not given the Commissioner a notification:
(a) that affects or may affect the amount that the Commissioner refunds to the entity; and
(b) that the entity is required to give the Commissioner under:
(i) any of the BAS provisions (as defined in subsection 995-1(1) of the Income Tax Assessment Act 1997); or
(ii) any of the petroleum resource rent tax provisions (as defined in that subsection); or
(iii) any provision of a taxation law (other than a provision mentioned in subparagraph (i) or (ii)).
8AAZLG(2)
The Commissioner may retain the amount until the entity has given the Commissioner that notification or the Commissioner makes or amends an assessment of the amount, whichever happens first.
Note:
Interest is payable under the Taxation (Interest on Overpayments and Early Payments) Act 1983 if the Commissioner is late in making the payment under subsection (2).
Commissioner may retain an amount
8AAZLGA(1)
The Commissioner may retain an amount that he or she otherwise would have to refund to an entity under section 8AAZLF, if the entity has given the Commissioner a notification that affects or may affect the amount that the Commissioner refunds to the entity, and:
(a) it would be reasonable to require verification of information (the notified information ) that:
(i) is contained in the notification; and
(ii) relates to the amount that the Commissioner would have to refund; or
(b) the entity has requested the Commissioner to retain the amount for verification of the notified information, and the request has not been withdrawn.
8AAZLGA(2)
In deciding whether to retain the amount under this section, the Commissioner must, as far as the information available to the Commissioner at the time of making the decision reasonably allows, have regard to the following:
(a) the likely accuracy of the notified information;
(b) the likelihood that the notified information was affected by:
(i) fraud or evasion; or
(ii) intentional disregard of a taxation law; or
(iii) recklessness as to the operation of a taxation law;
(c) the impact of retaining the amount on the entity's financial position;
(d) whether retaining the amount is necessary for the protection of the revenue, including the likelihood that the Commissioner could recover any of the amount if the notified information were found to be incorrect after the amount had been refunded;
(e) any complexity that would be involved in verifying the notified information;
(f) the time for which the Commissioner has already retained the amount;
(g) what the Commissioner has already done to verify the notified information;
(h) whether the Commissioner has enough information to make an assessment relating to the amount (including information obtained from making further requests for information);
(i) the extent to which the notified information is consistent with information that the entity previously provided;
(j) any other relevant matter.
Informing the entity of the retention of the amount
8AAZLGA(3)
The Commissioner must inform the entity (by serving a document on the entity or by other means) that he or she has retained the amount under this section. He or she must do so by the end of: (a) in a case to which paragraph 8AAZLF(1)(a) applies:
(i) if the whole or part of the RBA surplus of the entity arises because of a credit that arises directly under the BAS provisions (as defined in subsection 995-1(1) of the Income Tax Assessment Act 1997) - the 16th day to occur after the RBA interest day (within the meaning of section 12AF of the Taxation (Interest on Overpayments and Early Payments) Act 1983) for the RBA surplus; or
(b) in any other case - the 30th day after the entity gives to the Commissioner the notification mentioned in subsection (1) of this section.
(ii) otherwise - the RBA interest day for the RBA surplus of the entity; or
8AAZLGA(3A)
For the purposes of subparagraph (3)(a)(i), the whole or part of the RBA surplus is taken to arise because of a credit if the whole or part of the RBA surplus would not arise but for the credit being allocated to the RBA.
8AAZLGA(4)
In informing the entity that the amount is retained, the Commissioner may request information that he or she is aware will be required for the purposes of verifying the notified information.
How long the amount may be retained
8AAZLGA(5)
The Commissioner may retain the amount under this section only until:
(a) if paragraph (1)(a) applies - it would no longer be reasonable to require verification of the information; or
(b) if the Commissioner fails to inform the entity, in accordance with subsection (3), that he or she has retained the amount under this section - the end of the day after the time by which, under that subsection, the Commissioner is required to inform the entity; or
(c) in any case - there is a change to how much the Commissioner is required to refund, as a result of:
(i) the Commissioner amending an assessment relating to the amount; or
whichever happens first.
(ii) the Commissioner making or amending an assessment, under Division 105 in Schedule 1, relating to the amount;
Objecting to the decision to retain the amount
8AAZLGA(6)
The entity may object to a decision of the Commissioner to retain the amount under this section in the manner set out in Part IVC, if the entity is dissatisfied with the decision.
Note:
Interest on the amount may be payable under the Taxation (Interest on Overpayments and Early Payments) Act 1983.
8AAZLGA(7)
Before the end of the 7 days after the start of the period during which, under section 14ZW, the entity may object to the decision, the Commissioner must notify the entity, in writing, that the entity may object to the decision.
Note:
For the start of the period for objecting to the decision, see paragraph 14ZW(1)(aad) and subsection 14ZW(4).
8AAZLGA(8)
A failure to comply with subsection (7) does not affect the validity of the decision.
Commissioner may retain an amount
8AAZLGB(1)
The Commissioner may retain an amount that he or she otherwise would have to refund to an entity under section 8AAZLF, if:
(a) the Commissioner reasonably believes that the entity has made a payment as a result of which the entity is, or will be, required to notify the Commissioner under section 389-5 in Schedule 1; and
(b) the entity has not notified the Commissioner of the amount under that section; and
(c) the notification affects or may affect the amount that the Commissioner refunds to the entity.
8AAZLGB(2)
The Commissioner must inform the entity that he or she has retained the amount under this section. He or she must do so within 14 days after the day on which the relevant RBA surplus or credit arose.
How long the amount may be retained
8AAZLGB(3)
The Commissioner may retain the amount until:
(a) the entity has given the Commissioner that notification (including notification of a nil amount); or
(b) the Commissioner becomes reasonably satisfied that the entity is not required to give that notification; or
(c) the Commissioner becomes reasonably satisfied that the entity does not have a liability (a PAYGW liability ) to pay to the Commissioner an amount of a kind referred to in item 1 of the table in subsection 389-5(1) in Schedule 1; or
(d) the Commissioner ascertains (including as a result of making an estimate) the total amount of the entity's outstanding PAYGW liabilities;
whichever happens first.
Note:
Interest is payable under the Taxation (Interest on Overpayments and Early Payments) Act 1983 if the Commissioner is late in making the payment under subsection (3).
Objecting to the decision to retain the amount
8AAZLGB(4)
The entity may object to a decision of the Commissioner to retain the amount under this section in the manner set out in Part IVC, if the entity is dissatisfied with the decision.
Note:
For the start of the period for objecting to the decision, see paragraph 14ZW(1)(aae).
8AAZLGB(5)
Before the end of the 7 days after the start of the period during which, under section 14ZW, the entity may object to the decision, the Commissioner must notify the entity, in writing, that the entity may object to the decision.
8AAZLGB(6)
A failure to comply with subsection (5) does not affect the validity of the decision.
Commissioner may retain an amount
8AAZLGC(1)
The Commissioner may retain an amount that the Commissioner otherwise would have to refund to an entity under section 8AAZLF, if the entity has not nominated in the approved form a financial institution account that is: (a) maintained at a branch or office of the institution that is in Australia; and (b) held by:
(i) the entity, or the entity and some other entity; or
(ii) the entity's registered tax agent or BAS agent; or
(iii) a legal practitioner as trustee or executor for the entity.
8AAZLGC(2)
However, the Commissioner may not retain under this section an amount of a refund of an RBA surplus, or excess non-RBA credit that relates to an RBA, if primary tax debts arising under: (a) any of the BAS provisions (as defined in subsection 995-1(1) of the Income Tax Assessment Act 1997); or (b) any of the petroleum resource rent tax provisions (as defined in that subsection);
have been allocated to that RBA.
Note:
For refunds covered by this subsection, see instead section 8AAZLH.
Informing the entity of the retention of the amount
8AAZLGC(3)
The Commissioner must inform the entity (by serving a document on the entity or by other means) that the Commissioner has retained the amount under this section.
8AAZLGC(4)
In informing the entity that the amount is retained, the Commissioner must also notify the entity that: (a) the entity may nominate in the approved form a financial institution account for the purposes of this section; and (b) a failure to nominate such an account may delay payment of the amount.
8AAZLGC(5)
A failure to comply with subsection (3) or (4) does not affect the validity of the decision to retain the amount.
How long the amount may be retained
8AAZLGC(6)
The Commissioner may retain the amount until the earlier of: (a) the end of the day after the entity gives to the Commissioner a nomination in the approved form of a financial institution account for the purposes of this section; and (b) the end of the period of 90 days from when the Commissioner otherwise would have to refund the amount to the entity.
This section applies to refunds payable to an entity of RBA surpluses, or excess non-RBA credits that relate to an RBA, if primary tax debts arising under:
(a) any of the BAS provisions (as defined in subsection 995-1(1) of the Income Tax Assessment Act 1997); or
(b) any of the petroleum resource rent tax provisions (as defined in that subsection);
have been allocated to that RBA.
8AAZLH(2)
The Commissioner must pay those refunds to the credit of a financial institution account nominated in the approved form by the entity. The account nominated must be maintained at a branch or office of the institution that is in Australia.
[
CCH Note:
No 88 of 2013 (as amended by No 96 of 2014), s 3 and Sch 7 item 169 contains the following application provision:
the Commissioner may treat the information as information given by the entity in that approved form.
169 Application of subsection 8AAZLH(2)
]
169
For the purposes of applying section 8AAZLH of the Taxation Administration Act 1953 in relation to amounts that have been allocated to an RBA in relation to primary tax debts arising under any of the petroleum resource rent tax provisions (as defined in subsection 995-1(1) of the Income Tax Assessment Act 1997), if:
(a)
an entity has not nominated a financial institution account in the approved form as required by subsection 8AAZLH(2) of the Taxation Administration Act 1953; and
(b)
the Commissioner has information, given to the Commissioner before 1 July 2012, relating to a financial institution account into which refunds may be paid to an entity;
8AAZLH(2A)
The account must be one held by:
(a) the entity, or the entity and some other entity; or
(b) the entity's registered tax agent or BAS agent; or
(c) a legal practitioner as trustee or executor for the entity.
8AAZLH(3)
However, the Commissioner may direct that any such refunds be paid to the entity in a different way.
8AAZLH(4)
If an entity has not nominated a financial institution account for the purposes of this section and the Commissioner has not directed that any such refunds be paid in a different way, the Commissioner is not obliged to refund any amount to the entity until the entity does so.
8AAZLH(5)
If the Commissioner pays a refund to the credit of an account nominated by an entity, the Commissioner is taken to have paid the refund to the entity.
Division 4 - Miscellaneous provisions about tax debts
For the purposes of taxation laws, a payment in respect of a tax debt is taken not to have been made until it is received by:
(a) the Commissioner; or
(b) a person acting on behalf of the Commissioner.
An entity that, under subsection 33-10(2) of the A New Tax System (Goods and Services Tax) Act 1999, is required to pay an assessed net amount for a tax period electronically must also electronically pay the Commissioner all of its other tax debts that are due to be paid during that period.
8AAZMA(2)
A large withholder that, under subsection 16-85(1) in Schedule 1, is required to pay an amount electronically in a particular month must also electronically pay the Commissioner all of its other tax debts that are due to be paid during that month.
Where, apart from this section, an amount in respect of a tax debt is due and payable by, or on, a day (the payment day ) that is not a business day, the payment is due and payable on the first business day after the payment day.
8AAZMB(2) [Business day]In this section:
business day
means a day other than:
(a) a Saturday or a Sunday; or
(b) a day which is a public holiday for the whole of:
(i) any State; or
(ii) the Australian Capital Territory; or
(iii) the Northern Territory.
tax debt does not include general interest charge.
An administrative overpayment (the overpaid amount ):
(a) is a debt due to the Commonwealth by the person to whom the overpayment was made (the recipient ); and
(b) is payable to the Commissioner; and
(c) may be recovered in a court of competent jurisdiction by the Commissioner, or by a Deputy Commissioner, suing in his or her official name. 8AAZN(2) [General interest charge payable on overdue amounts]
(a) the Commissioner has given a notice to the recipient in respect of the overpaid amount, specifying a due date for payment that is at least 30 days after the notice is given; and
(b) any of the overpaid amount remains unpaid at the end of that due date;
then the recipient is liable to pay the general interest charge on the unpaid amount for each day in the period that:
(c) started at the beginning of that due date; and
(d) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) the overpaid amount;
8AAZN(3) [Administrative overpayment]
(ii) general interest charge on any of the overpaid amount.
In this section:
administrative overpayment
means an amount that the Commissioner has paid to a person by mistake, being an amount to which the person is not entitled.
Note:
Subsection 2(2) specifies laws that are not taxation laws for the purposes of this Part.
In this Part, unless the contrary intention appears:
corporation
means any body corporate.
director
, in relation to a corporation, includes:
(a) any person occupying or acting in the position of director of the corporation, by whatever name called and whether or not validly appointed to occupy, or duly authorized to act in, the position; and
(b) any person in accordance with whose directions or instructions the directors of the corporation are accustomed to act.
instrument
includes any document.
(a) an offence against section 8C, subsection 8D(1) or (2) or section 8N or 8Q, or against Division 136 or 137 of the Criminal Code in relation to a taxation law; or
(b) an offence against section 11.1 of the Criminal Code that relates to an offence of a kind referred to in paragraph (a).
prescribed taxation offence
means:
(a) a taxation offence (other than a prescribed offence) that is committed by a natural person and punishable by a fine and not by imprisonment;
(b) a prescribed offence (other than a prescribed offence that the Commissioner has elected under subsection 8F(1) or 8S(1) to treat otherwise than as a prescribed taxation offence) that is committed by a natural person; or
(c) a taxation offence that is committed by a corporation.
produce
, in relation to a book, paper, record or other document, includes permit access to.
(a) an offence against a taxation law; or
(b) an offence against:
(i) section 6 of the Crimes Act 1914; or
being an offence that relates to an offence against a taxation law.
(ii) section 11.1, 11.4 or 11.5 of the Criminal Code;
tax file number
means a tax file number as defined in section 202A of the Income Tax Assessment Act 1936.
For the purposes of the definition of director in subsection (1), a person shall not be regarded as a person in accordance with whose directions or instructions the directors of a corporation are accustomed to act by reason only that the directors act on advice given by that person in the proper performance of the functions attaching to the person's professional capacity or to the person's business relationship with the directors.
8AA (Repealed) SECTION 8AA APPLICATION OF PART TO THE DIESEL AND ALTERNATIVE FUELS GRANTS SCHEME ACT 1999(Repealed by No 54 of 2003)
(Repealed by No 4 of 2018)
This Part applies in relation to the Tax Agent Services Act 2009 as if references in this Part (other than paragraph 8C(1)(b) and sections 8HA, 8W, 8WC, 8ZE, 8ZG and 8ZH) to the Commissioner, or an office of the Commissioner, were references to the Tax Practitioners Board.
A reference in this Subdivision to a relevant offence is a reference to:
(a) an offence against section 8C, subsection 8D(1) or (2) or section 8H; or
(b) an offence against:
(i) section 6 of the Crimes Act 1914; or
being an offence that relates to an offence of a kind referred to in paragraph (a) of this subsection.
(ii) section 11.1, 11.4 or 11.5 of the Criminal Code;
For the purposes of this Subdivision, a person who is convicted of an offence against section 8C or subsection 8D(1) or (2) (in this subsection referred to as the subsequent offence ) shall be treated as having been previously convicted of a relevant offence (in this subsection referred to as the earlier offence ) if:
(a) the person was convicted of the earlier offence on an occasion earlier than, but not more than 5 years earlier than, the person's conviction of the subsequent offence; or
(b) the person is convicted of the earlier offence and the subsequent offence before the same court at the same sitting and the earlier offence was committed:
(i) at a time or on a day earlier than, but not more than 5 years earlier than, the subsequent offence; or
8B(3) [Offence against s 8C, 8D(1) or (2)]
(ii) at the same time, or on the same day, as the subsequent offence.
A reference in subsection 8E(2) or (3) or 8F(1) or subsection (2) of this section to an offence against section 8C or subsection 8D(1) or (2) includes a reference to an offence against section 11.1 of the Criminal Code that relates to an offence against section 8C or subsection 8D(1) or (2), as the case may be.
Unless the contrary intention appears, a reference in paragraph (2)(a) or (b) to a conviction of a person of an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.
8B(5)(Repealed by No 101 of 2006)
SECTION 8C FAILURE TO COMPLY WITH REQUIREMENTS UNDER TAXATION LAW 8C(1)
A person who refuses or fails, when and as required under or pursuant to a taxation law to do so: (a) to give any information or document to the Commissioner or another person; or (aa) to give information to the Commissioner in the manner in which it is required under a taxation law to be given; or (ab) to publish information in the manner in which it is required under a taxation law to be published; or (b) to lodge an instrument with the Commissioner or another person for assessment; or
(c) (Repealed by No 101 of 2006) (d) to notify the Commissioner or another person of a matter or thing; or (e) to produce a book, paper, record or other document to the Commissioner or another person; or (f) to attend before the Commissioner or another person; or (fa) to comply with a superannuation guarantee education direction in accordance with subsection 384-17(1) in Schedule 1; or (g) to apply for registration or cancellation of registration under the A New Tax System (Goods and Services Tax) Act 1999; or (h) to comply with a requirement under subsection 45A(2) of the Product Grants and Benefits Administration Act 2000; or (i) to comply with subsection 82-10F(4) of the Income Tax (Transitional Provisions) Act 1997;
commits an offence.
8C(1A)
An offence under subsection (1) is an offence of absolute liability.
Note:
For absolute liability , see section 6.2 of the Criminal Code.
8C(1B)
Subsection (1) does not apply to the extent that the person is not capable of complying with the relevant paragraph.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (1B), see subsection 13.3(3) of the Criminal Code.
8C(2)
For the purposes of paragraphs (1)(a) and (d), a person shall not be taken to have refused or failed to furnish information to the Commissioner or another person, or to notify the Commissioner or another person of a matter or thing, merely because the person has refused or failed to quote the person's tax file number to the Commissioner or other person.
A person who, when attending before the Commissioner or another person pursuant to a taxation law, refuses or fails, when and as required pursuant to a taxation law to do so:
(a) to answer a question asked of the person; or
(b) to produce a book, paper, record or other document;
commits an offence.
8D(1A)
An offence under subsection (1) is an offence of strict liability.
Note:
For strict liability , see section 6.1 of the Criminal Code.
8D(1B)
Subsection (1) does not apply to the extent that the person is not capable of complying with the relevant paragraph.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (1B), see subsection 13.3(3) ofthe Criminal Code.
8D(2)
A person who, when attending before the Commissioner or another person pursuant to a taxation law, refuses or fails, when and as required pursuant to a taxation law to do so, either to take an oath or make an affirmation commits an offence.
SECTION 8E PENALTIES FOR FAILURE TO COMPLY WITH REQUIREMENTS UNDER TAXATION LAW 8E(1) [Penalty for first offence]
Subject to subsections (2) and (3), an offence against section 8C or subsection 8D(1) or (2) is punishable on conviction by a fine not exceeding 20 penalty units.
Subject to subsection (3), where:
(a) a person is convicted of an offence against section 8C or subsection 8D(1) or (2); and
(b) the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence;
the penalty that the court may impose in respect of the first-mentioned offence is a fine not exceeding 40 penalty units.
(a) a person is convicted of an offence against section 8C or subsection 8D(1) or (2);
(b) in a case where the person is a natural person - the Commissioner has elected under subsection 8F(1) to treat the offence otherwise than as a prescribed taxation offence; and
(c) the court before which the person is convicted is satisfied that the person has previously been convicted of 2 or more relevant offences;
the penalty that the court may impose in respect of the first-mentioned offence is a fine not exceeding 50 penalty units or imprisonment for a period not exceeding 12 months, or both.
The Commissioner may, before the institution of a prosecution of a natural person for an offence against section 8C or subsection 8D(1) or (2), elect, in writing, to treat the offence otherwise than as a prescribed taxation offence.
8F(2) [Copy of election to be filed in court]Where a prosecution is instituted for an offence in relation to which an election under subsection (1) has been made, the Commissioner shall cause a copy of the election to be filed in the court in which the prosecution is instituted.
SECTION 8G ORDER TO COMPLY WITH REQUIREMENT 8G(1) [Court may order compliance](a) a person is convicted before a court of an offence against section 8C or subsection 8D(1) or (2); or
(b) a court makes an order under section 19B of the Crimes Act 1914 in relation to a person in respect of an offence against section 8C or subsection 8D(1) or (2);
in relation to the refusal or failure of the person to comply (whether in whole or in part) with a requirement made under or pursuant to a taxation law, the court may, in addition to imposing a penalty on the person or making such an order in relation to the person, as the case may be, and notwithstanding that the time for complying with the requirement or any other such requirement has passed, order the person to comply with:
(c) the requirement; and
(d) such other requirements made, or that could be made, in relation to the person under or pursuant to the taxation law as the court considers necessary to ensure the effectiveness of the first-mentioned requirement;
within a specified time or at a specified place and time.
8G(2) [Service of order]Where an order under subsection (1) is not given orally by the court to the person to whom the order is addressed, the proper officer of the court shall cause a copy of the order to be served on the person in the prescribed manner.
SECTION 8H PENALTY FOR FAILURE TO COMPLY WITH ORDER TO COMPLY 8H(1)A person who refuses or fails to comply with an order under subsection 8G(1) commits an offence punishable on conviction by a fine not exceeding 50 penalty units or imprisonment for a period not exceeding 12 months, or both.
8H(2)
An offence under subsection (1) is an offence of strict liability.
Note:
For strict liability , see section 6.1 of the Criminal Code.
8H(3)
Subsection (1) does not apply to the extent that the person is not capable of complying with the relevant paragraph.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (3), see subsection 13.3(3) of the Criminal Code.
SECTION 8HA COURT MAY ORDER PAYMENT OF AMOUNT IN ADDITION TO PENALTY 8HA(1) [Computation]
(a) a person (the convicted person ) is convicted before a court of an offence against section 8C, 8D or 8H in relation to a refusal or failure to do a particular thing; and
(b) the court is satisfied that the purpose of, or one of the purposes of, the refusal or failure was to facilitate the avoidance of an amount of a tax liability of the convicted person or another person;
the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding:
(c) if the offence is an offence to which subsection 8E(2) or (3) applies - 3 times that amount; or
(d) in any other case - 2 times that amount. 8HA(2) [Reference to conviction for offence]
A reference in this section to a conviction of a person for an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.
In this Subdivision:
accounting records
includes invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry and also includes:
(a) such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up; and
(b) such other documents (if any) as are prescribed.
accounts
means ledgers, journals, profit and loss accounts and balance-sheets, and includes statements, reports and notes attached to, or intended to be read with, any of the foregoing.
data processing device
means any article or material from which information is capable of being reproduced with or without the aid of any other article or device.
taxation officer
means a person exercising powers or performing functions under, pursuant to or in relation to a taxation law.
8J(2)
A reference in this Subdivision to a statement made to a taxation officer is a reference to a statement made to a taxation officer orally, in writing, in a data processing device, by way of electronic transmission or in any other form and, without limiting the generality of the foregoing, includes a statement:
(a) made in an application, certificate, declaration, notification, objection, return, claim or other document made, prepared, given or furnished, or purporting to be made, prepared, given or furnished, under or pursuant to a taxation law; or
(b) made in an instrument lodged for assessment under or pursuant to a taxation law; or
(c) made in answer to a question asked of a person under or pursuant to a taxation law; or
(d) made in any information furnished, or purporting to be furnished, under or pursuant to a taxation law; or
(e) made in a document furnished to a taxation officer otherwise than under or pursuant to a taxation law;
but does not include a statement made in a document produced pursuant to:
(f)-(g) (Repealed by No 101 of 2006)
(ga) (Repealed by No 4 of 2018)
(gb) (Repealed by No 54 of 2003)
(h) (Repealed by No 118 of 1999)
(ha) (Repealed by No 2 of 2015)
(j) (Repealed by No 118 of 1999)
(k) (Repealed by No 8 of 2019)
(kaa) subparagraph 451(2)(c)(ii) or paragraph 453(1)(e) of the Income Tax Assessment Act 1936;
(ka) (Omitted by No 82 of 1993)
(m) (Repealed by No 101 of 2006)
(ma)-(mb) (Repealed by No 2 of 2015)
(n)-(na) (Repealed by No 101 of 2006)
(nb) (Repealed by No 2 of 2015)
(p) paragraph 13G(1)(c) of this Act; or
(pa) paragraph 353-10(1)(c) in Schedule 1 to this Act; or
(q) paragraph 353-25(1)(b) or (c) in Schedule 1 to this Act.
(r) (Repealed by No 101 of 2006)
8J(2A)
If a document is given on a data processing device, or by way of electronic transmission, by a registered tax agent or BAS agent on behalf of a taxpayer, then, for the purposes of this Subdivision, each statement in the document is taken to have been made by the taxpayer unless the taxpayer can show that the taxpayer did not authorise the statement.
8J(3)
A reference in this Subdivision to a relevant offence is a reference to:
(a) an offence against:
(i) subsection 8K(1) or (1B) or 8L(1) or (1A) or section 8N, 8Q, 8T or 8U; or
(ii) the Crimes (Taxation Offences) Act 1980;
(b) an offence against:
(i) section 6 of the Crimes Act 1914; or
being an offence that relates to an offence of a kind referred to in paragraph (a) of this subsection; or
(ii) section 11.1, 11.4 or 11.5 of the Criminal Code;
(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 tax liability.
8J(4)
For the purposes of this Subdivision, a person who is convicted of an offence against subsection 8K(1) or (1B) or 8L(1) or (1A) or section 8N, 8Q, 8T or 8U (in this subsection referred to as the subsequent offence ) shall be treated as having been previously convicted of a relevant offence (in this subsection referred to as the earlier offence ) if:
(a) the person was convicted of the earlier offence on an occasion earlier than, but not more than 10 years earlier than, the person's conviction of the subsequent offence; or
(b) the person is convicted of the earlier offence and the subsequent offence before the same court at the same sitting and the earlier offence was committed:
(i) at a time or on a day earlier than, but not more than 10 years earlier than, the subsequent offence; or
(ii) at the same time, or on the same day, as the subsequent offence.
8J(5)
Unless the contrary intention appears, a reference in paragraph (4)(a) or (b) to a conviction of a person for an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.
8J(6)
A reference in subsection (4) of this section or subsection 8M(2) to an offence against subsection 8K(1) or (1B) or 8L(1) or (1A) includes a reference to an offence against section 11.1 of the Criminal Code that relates to an offence against subsection 8K(1) or (1B) or 8L(1) or (1A), as the case may be.
8J(7)
A reference in subsection 8R(2) or 8S(1) or subsection (4) of this section to an offence against section 8N or 8Q includes a reference to an offence against section 11.1 of the Criminal Code that relates to an offence against section 8N or 8Q, as the case may be.
8J(8)
A reference in subsection 8V(2) or subsection (4) of this section to an offence against section 8T or 8U includes a reference to an offence against section 11.1 of the Criminal Code that relates to an offence against section 8T or 8U, as the case may be.
8J(9)
A reference in this Subdivision to a statement made to a taxation officer includes a reference to a statement made to a person other than a taxation officer for a purpose in connection with the operation of a taxation law.
8J(10)
A reference in subsection (9) to a statement made to a person other than a taxation officer for a purpose in connection with the operation of a taxation law is a reference to such a statement made orally, in writing, in a data processing device or in any other form and, without limiting the generality of the foregoing, includes such a statement:
(a) made in an application, certificate, declaration, notification or other document, made, given or furnished to the person; or
(aa) made in:
(i) a tax invoice (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999); or
(ii) an adjustment note (within the meaning of that Act); or
given to the person; or
(iii) a third party adjustment note (within the meaning of that Act);
(b) made in answer to a question asked by the person; or
(c) made in any information furnished to the person.
8J(11)
Where a person omits from a return furnished under or pursuant to the Income Tax Assessment Act 1936 or the regulations under that Act, being a return of income derived by the person, a partnership or a trust estate during a period, any assessable income derived by the person, partnership or the trust estate, as the case may be, during the period, the person shall, for the purposes of this Subdivision, be taken to have made a statement in the return to the effect that the person, the partnership or the trust estate, as the case requires, did not derive the assessable income during the period.
8J(12)
Where:
(a) a person issues a notice to another person under section 265B of the Income Tax Assessment Act 1936;
(b) a person to whom a notice is issued under that section gives the notice to another person in connection with the transfer of a qualifying security to the other person; or
(c) a person gives advice in writing to another person, in connection with the transfer of a qualifying security, of a variation or partial redemption of the qualifying security;
any statement in the notice when so issued or given, or in the advice when so given, to the other person shall, for the purposes of this Division, be taken to have been made by the issuer or person giving the notice or advice, as the case may be, to the other person for a purpose in connection with the operation of a taxation law.
8J(13)
Where:
(a) the holder of a qualifying security transfers the security to another person;
(b) by virtue of the application of section 128AA of the Income Tax Assessment Act 1936, the holder is liable to pay withholding tax in relation to the transfer of the qualifying security;
(c) before the security was transferred, the holder gave to the transferee, in connection with the transfer, a notice issued to the holder under section 265B of that Act identifying the security;
(d) after the notice was issued to the holder, the security was varied or partially redeemed; and
(e) the holder did not advise the transferee in writing of the variation or partial redemption;
the holder shall, for the purposes of this Division, be taken to have made for a purpose in connection with the operation of a taxation law a statement that the qualifying security was not so varied or partially redeemed.
8J(14)
Where:
(a) the holder of a qualifying security who acquired the security on transfer (in this subsection referred to as the current acquisition transfer ) transfers the security to another person;
(b) by virtue of the application of section 128AA of the Income Tax Assessment Act 1936, the holder is liable to pay withholding tax in relation to the transfer of the security;
(c) before the security was transferred, the holder gave to the transferee, in connection with the transfer, a certificate issued to the holder under section 128AB of that Act identifying the security; and
(d) the holder had acquired the security on transfer on any occasion before the current acquisition transfer;
the holder shall, for the purposes of this Division, be taken to have made for a purpose in connection with the operation of a taxation law a statement that the certificate relates to the current acquisition transfer.
8J(15)
Where:
(a) a qualifying security is redeemed or partially redeemed from the holder;
(b) the holder acquired the security on transfer (in this subsection referred to as the current acquisition transfer );
(c) the holder is liable to pay withholding tax in relation to the redemption or partial redemption of the security;
(d) before the security was redeemed or partially redeemed, the holder gave to the issuer, in connection with the redemption or partial redemption, a certificate issued to the holder under section 128AB of the Income Tax Assessment Act 1936 identifying the security; and
(e) the holder had acquired the security on transfer on any occasion before the current acquisition transfer;
the holder shall, for the purposes of this Division, be taken to have made for a purpose in connection with the operation of a taxation law a statement that the certificate relates to the current acquisition transfer.
8J(16)
Subject to subsection (17), for the purposes of subsections (12) to (15) (inclusive):
(a) expressions used in those subsections that are also used in Division 16E of Part III of the Income Tax Assessment Act 1936 have the same respective meanings as in that Division; and
(b) sections 159GV (other than subsection 159GV(2)) and 159GZ of the Income Tax Assessment Act 1936 apply as if references in those sections to "this Division" were references to "section 8J of the Taxation Administration Act 1953".
8J(17)
Subsection (16) applies as if paragraph (c) of the definition of qualifying security in subsection 159GP(1) of the Income Tax Assessment Act 1936 were omitted.
8J(18)
(Repealed by No 79 of 2010)
8J(19)
(Repealed by No 79 of 2010)
SECTION 8K FALSE OR MISLEADING STATEMENTS 8K(1)
A person commits an offence if:
(a) the person makes a statement to a taxation officer; and
(b) the statement is false or misleading in a material particular.
8K(1A)
In subsection (1), absolute liability applies to the circumstance, that the statement is false or misleading in a material particular.
Note:
For absolute liability , see section 6.2 of the Criminal Code.
8K(1B)
A person commits an offence if:
(a) the person makes a statement to a taxation officer; and
(b) the person omits any matter or thing from the statement; and
(c) the statement is misleading in a material particular because of the omission.
8K(1C)
In subsection (1B), absolute liability applies to:
(a) the conduct, that the person omits a matter or thing; and
(b) the circumstance, that the statement is misleading in a material particular.
Note:
For absolute liability , see section 6.2 of the Criminal Code.
8K(2)
In a prosecution of a person for an offence against subsection (1) or (1B), it is a defence if the person proves that the person:
(a) did not know; and
(b) could not reasonably be expected to have known;
that the statement to which the prosecution relates was false or misleading.
Note:
The defendant bears a legal burden in relation to the matter in subsection (2), see section 13.4 of the Criminal Code.
8K(2A)
Subsection (1) or (1B) does not apply if:
(a) the statement (the original statement ) was made under section 389-5 in Schedule 1 notifying an amount under item 1, 2 or 2A of the table in subsection 389-5(1) in that Schedule (and no other item in that table); and
(b) the original statement related to the financial year in which it was made; and
(c) the person who made the original statement makes a further statement to a taxation officer that corrects the original statement in each of the respects in which it is false or misleading in a material particular; and
(d) the further statement:
(i) is in the approved form; and
(ii) if subsection 389-25(1) in that Schedule provides for a period for correcting the original statement - is made within that period; and
(iii) without limiting subparagraph (ii), is made within 14 days after the end of the financial year in which the original statement was made.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (2A), see subsection 13.3(3) of the Criminal Code.
8K(2B)
Subsection (1) or (1B) does not apply if:
(a) the statement (the original statement ) was made under section 390-5 in Schedule 1; and
(b) the person who made the original statement makes a further statement to a taxation officer that corrects the original statement in each of the respects in which it is false or misleading in a material particular; and
(c) subsection 390-7(1) in Schedule 1 provides for a period for correcting the original statement; and
(d) the further statement:
(i) is in the approved form; and
(ii) is made within the period referred to in paragraph (c) of this subsection.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (2B): see subsection 13.3(3) of the Criminal Code.
8K(3)
For the purposes of subsection (1B), a person shall not be taken to have omitted a matter or thing from a statement made to a taxation officer merely because the person has, in making the statement, failed to quote the person's tax file number.
SECTION 8L INCORRECTLY KEEPING RECORDS ETC. 8L(1)
A person commits an offence if:
(a) the person is required under, or pursuant to, a taxation law to keep any accounts, accounting records or other records; and
(b) the person keeps the accounts or records; and
(c) the accounts or records do not correctly record and explain the matters, transactions, acts or operations to which they relate.
8L(1A)
A person commits an offence if:
(a) the person is required under, or pursuant to, a taxation law to make a record of any matter, transaction, act or operation; and
(b) the person makes the record; and
(c) the record does not correctly record the matter, transaction, act or operation.
8L(1B)
An offence under subsection (1) or (1A) is an offence of absolute liability.
Note:
For absolute liability , see section 6.2 of the Criminal Code.
8L(2)
In a prosecution of a person for an offence against subsection (1) or (1A), it is a defence if the person proves that the person:
(a) did not know; and
(b) could not reasonably be expected to have known;
that:
(c) in the case of a prosecution for an offence against subsection (1) - the accounts, accounting records or other records to which the prosecution relates did not correctly record and explain the matters, transactions, acts or operations to which they relate; or
(d) in the case of a prosecution for an offence against subsection (1A) - the record to which the prosecution relates did not correctly record the matter, transaction, act or operation to which the record relates.
Note:
The defendant bears a legal burden in relation to the matter in subsection (2), see section 13.4 of the Criminal Code.
SECTION 8M PENALTIES FOR OFFENCES AGAINST SUBSECTIONS 8K(1) AND (1B) AND 8L(1) AND (1A) 8M(1) [First offence]
Subject to subsection (2), an offence against subsection 8K(1) or (1B) or 8L(1) or (1A) is punishable on conviction by a fine not exceeding 20 penalty units.
(a) a person is convicted of an offence against subsection 8K(1) or (1B) or 8L(1) or (1A); and
(b) the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence;
the penalty that the court may impose in respect of the first-mentioned offence is a fine not exceeding 40 penalty units.
A person commits an offence if:
(a) the person makes a statement (whether orally, in a document or in any other way) to a taxation officer; and
(b) the statement:
(i) is false or misleading in a material particular; or
(ii) omits any matter or thing without which the statement is misleading in a material particular; and
(c) the person is reckless as to whether the statement:
(i) is false or misleading in a material particular; or
(ii) omits any matter or thing without which the statement is misleading in a material particular.
8N(2)
This section does not apply if:
(a) the statement (the original statement ) was made under section 389-5 in Schedule 1 notifying an amount under item 1, 2 or 2A of the table in subsection 389-5(1) in that Schedule (and no other item in that table); and
(b) the original statement related to the financial year in which it was made; and
(c) the person who made the original statement makes a further statement to a taxation officer that corrects the original statement in each of the respects in which it is false or misleading in a material particular; and
(d) the further statement:
(i) is in the approved form; and
(ii) if subsection 389-25(1) in that Schedule provides for a period for correcting the original statement - is made within that period; and
(iii) without limiting subparagraph (ii), is made within 14 days after the end of the financial year in which the original statement was made.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (2), see subsection 13.3(3) of the Criminal Code.
8N(3)
This section does not apply if:
(a) the statement (the original statement ) was made under section 390-5 in Schedule 1; and
(b) the person who made the original statement makes a further statement to a taxation officer that corrects the original statement in each of the respects in which it is false or misleading in a material particular; and
(c) subsection 390-7(1) in Schedule 1 provides for a period for correcting the original statement; and
(d) the further statement:
(i) is in the approved form; and
(ii) is made within the period referred to in paragraph (c) of this subsection.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.
8P (Repealed) SECTION 8P KNOWINGLY MAKING FALSE OR MISLEADING STATEMENTS
(Repealed by No 146 of 2001) SECTION 8Q RECKLESSLY INCORRECTLY KEEPING RECORDS ETC. 8Q(1)
A person commits an offence if:
(a) the person is required under, or pursuant to, a taxation law to keep any accounts, accounting records or other records; and
(b) the person keeps the accounts or records; and
(ba) the accounts or records do not correctly record and explain the matters, transactions, acts or operations to which they relate; and
(c) the person is reckless as to whether the accounts or records correctly record and explain the matters, transactions, acts or operations to which they relate.
8Q(2)
A person commits an offence if:
(a) the person is required under, or pursuant to, a taxation law to make a record of any matter, transaction, act or operation; and
(b) the person makes the record; and
(ba) the record does not correctly record the matter, transaction, act or operation; and
(c) the person is reckless as to whether the record correctly records the matter, transaction, act or operation.
8Q(3)
In subsections (1) and (2), strict liability applies to the circumstance, that the person is required under, or pursuant to, a taxation law to keep the accounts, accounting records or other records.
Note:
For strict liability , see section 6.1 of the Criminal Code.
Subject to subsection (2), an offence against section 8N or 8Q is punishable on conviction by a fine not exceeding 30 penalty units.
(a) a person is convicted of an offence against section 8N or 8Q;
(b) in a case where the person is a natural person - the Commissioner has elected under subsection 8S(1) to treat the offence otherwise than as a prescribed taxation offence; and
(c) the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence;
the penalty that the court may impose in respect of the first-mentioned offence is a fine not exceeding 50 penalty units or imprisonment for a period not exceeding 12 months, or both.
The Commissioner may, before the institution of a prosecution of a natural person for an offence against section 8N, or 8Q, or against Division 136 or 137 of the Criminal Code in relation to a taxation law, elect, in writing, to treat the offence otherwise than as a prescribed taxation offence.
Where a prosecution is instituted for an offence in relation to which an election under subsection (1) has been made, the Commissioner shall cause a copy of the election to be filed in the court in which the prosecution is instituted.
SECTION 8T 8T INCORRECTLY KEEPING RECORDS WITH INTENTION OF DECEIVING OR MISLEADING ETC.A person who:
(a) keeps any accounts, accounting records or other records in such a way that they:
(i) do not correctly record and explain the matters, transactions, acts or operations to which they relate; or
(ii) are (whether in whole or in part) illegible, indecipherable, incapable of identification or, if they are kept in the form of a data processing device, incapable of being used to reproduce information;
(b) makes a record of any matter, transaction, act or operation in such a way that it does not correctly record the matter, transaction, act or operation;
(c) engages in conduct that results in the alteration, defacing, mutilation, falsification, damage, removal, concealing or destruction of any accounts, accounting records or other records (whether in whole or in part); or
(d) does or omits to do any other act or thing to any accounts, accounting records or other records;
with any of the following intentions, namely:
(e) deceiving or misleading the Commissioner or a particular taxation officer;
(f) hindering or obstructing the Commissioner or a particular taxation officer (otherwise than in the investigation of a taxation offence);
(g) hindering or obstructing the investigation of a taxation offence;
(h) hindering, obstructing or defeating the administration, execution or enforcement of a taxation law; or
(j) defeating the purposes of a taxation law;
(whether or not the person had any other intention) commits an offence.
A person who:
(a) engages in conduct that results in the falsification or concealing of the identity of, or the address or location of a place of residence or business of, the person or another person; or
(b) does or omits to do any act or thing the doing or omission of which facilitates the falsification or concealment of the identity of, or the address or location of a place of residence or business of, the person or another person;
with any of the following intentions, namely:
(c) deceiving or misleading the Commissioner or a particular taxation officer;
(d) hindering or obstructing the Commissioner or a particular taxation officer (otherwise than in the investigation of a taxation offence);
(e) hindering or obstructing the investigation of a taxation offence;
(f) hindering, obstructing or defeating the administration, execution or enforcement of a taxation law; or
(g) defeating the purposes of a taxation law;
(whether or not the person had any other intention) commits an offence.
Subject to subsection (2), an offence against section 8T or 8U is punishable on conviction by a fine not exceeding 50 penalty units or imprisonment for a period not exceeding 12 months, or both.
(a) a person is convicted of an offence against section 8T or 8U; and
(b) the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence;
the penalty that the court may impose in respect of the first-mentioned offence is a fine not exceeding 100 penalty units or imprisonment for a period not exceeding 2 years, or both.
Where:
(a) a person (in this subsection referred to as the convicted person ) is convicted before a court of:
(i) an offence against subsection 8K(1) or (1B) or section 8N, or against Division 136 or 137 of the Criminal Code in relation to a taxation law, in relation to a statement made to a taxation officer; or
(ii) an offence against subsection 8L(1) or (1A) or section 8Q in relation to the keeping of any accounts, accounting records or other records (in paragraph (b) referred to as the relevant accounts ) or the making of a record; and
(b) the court is satisfied that the proper amount of a tax liability of the convicted person or another person exceeds the amount that would have been the amount of the tax liability if it were assessed or determined, as the case requires, on the basis that the statement were not false or misleading, on the basis of the relevant accounts as they were kept or on the basis that the record were correct, as the case may be;
the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding:
(c) in a case where the offence is an offence to which subsection 8R(2) applies or that is against Division 136 or 137 of the Criminal Code in relation to a taxation law - 3 times the amount of the excess; or
(d) in any other case - double the amount of the excess.
8W(1A)
(Omitted by No 82 of 1993)
8W(1B)
(Repealed by No 4 of 2018)
8W(1C)
If the conditions in section 705-315 of the Income Tax Assessment Act 1997 are satisfied, then for the purposes of any application of subsection (1) of this section in relation to the errors mentioned in that section that were made in a statement that was made before the Commissioner became aware of the errors, the references in paragraphs (1)(c) and (d) of this section to the excess are taken instead to be references to the amount worked out using the formula:
where:
adjusted reset cost base asset setting amount
means:
(a) the tax cost setting amount, worked out under Division 705 of the Income Tax Assessment Act 1997, for all assets of a kind referred to in section 705-35 of that Act as reset cost base assets that the head company of the relevant group held continuously from the time when the subsidiary member referred to in subsection 705-315(2) of that Act joined the group until the start of the head company's income year in which the Commissioner became aware of the errors mentioned in section 705-315 of that Act;
less:
(b) the head company's deductions under Division 40 (except under Subdivision 40-F, 40-G, 40-H or 40-I) or Subdivision 328-D of the Income Tax Assessment Act 1997 for those assets for all income years before the earliest income year for which the Commissioner could amend the head company's assessment to correct any of the errors.
capital gain
(Repealed by No 107 of 2003)
original reset cost base asset setting amount
means the tax cost setting amount, worked out under Division 705 of the Income Tax Assessment Act 1997, for all reset cost base assets that the subsidiary member held at the time it joined the group, other than assets that the head company no longer held at the start of the earliest income year for which the Commissioner could amend the head company's assessment to correct any of the errors.
tax on capital gain
means the product of:
(a) the capital gain (within the meaning of the Income Tax Assessment Act 1997) that the head company makes as a result of CGT event L6 happening as mentioned in section 104-525 of that Act; and
(b) the corporate tax rate (within the meaning of that Act) in respect of taxable income for the income year in which that CGT event happens.
8W(2)
Where:
(a) a person (in this subsection referred to as the convicted person ) is convicted before a court of an offence against section 8T or 8U in relation to an act or omission; and
(b) the court is satisfied that the purpose of, or one of the purposes of, the act or omission was to facilitate the avoidance of an amount of a tax liability of the convicted person or another person;
the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding:
(c) in a case where the offence is an offence to which subsection 8V(2) applies - 3 times that amount; or
(d) in any other case - double that amount.
8W(2A)
If:
(a) a person (the convicted person ) is convicted before a court of:
(i) an offence against subsection 8K(1) or (1B) or section 8N, or against Division 136 or 137 of the Criminal Code in relation to a taxation law, in relation to a statement made to a taxation officer; or
(ii) an offence against subsection 8L(1) or (1A) or section 8Q in relation to the keeping of any records; and
(b) the offence relates to the Product Grants and Benefits Administration Act 2000; and
(c) the court is satisfied that the amount that would have been the amount of a product grant or benefit payable to the convicted person or another person, determined on the basis that:
(i) the statement were not false or misleading; or
as the case may be, exceeds the proper amount of the product grant or benefit payable to the convicted person or the other person;
(ii) on the basis of those records as they were kept;
the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding:
(d) in a case where the offence is an offence to which subsection 8R(2) applies, or that is against Division 136 or 137 of the Criminal Code in relation to a taxation law - 3 times the amount of the excess; or
(e) in any other case - double the amount of the excess.
8W(3)
A reference in this section to a conviction of a person for an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.
8W(4)
In this section:
CGT event
has the same meaning as in the Income Tax Assessment Act 1997.
fuel grant
(Repealed by No 60 of 2000)
grant or benefit
(Repealed by No 54 of 2003)
head company
has the same meaning as in the Income Tax Assessment Act 1997.
product grant or benefit
means a grant or benefit payable under the Product Grants and Benefits Administration Act 2000.
subsidiary member
has the same meaning as in the Income Tax Assessment Act 1997.
tax cost setting amount
has the same meaning as in the Income Tax Assessment Act 1997.
Subdivision BAA - Offences relating to electronic sales suppression tools SECTION 8WAA 8WAA OBJECT OF THIS SUBDIVISION
The object of this Subdivision is to deter the production, use and distribution of tools to manipulate or falsify electronic point of sale records to facilitate tax evasion.
In this Subdivision:
electronic sales suppression tool
means a device, software program or other thing, a part of any such thing, or a combination of any such things or parts, that meets the following conditions:
(a) it is capable of falsifying, manipulating, hiding, obfuscating, destroying, or preventing the creation of, a record that:
(i) an entity is required by a taxation law to keep or make; and
(ii) is, or would be, created by a system that is or includes an electronic point of sale system;
(b) a reasonable person would conclude that one of its principal functions is to falsify, manipulate, hide, obfuscate, destroy, or prevent the creation of, such records.
right to use
includes right to possess.
supply
has the meaning given by section 9-10 of the A New Tax System (Goods and Services Tax) Act 1999.
A person commits an offence if the person manufactures, develops or publishes an electronic sales suppression tool.
Penalty: 5,000 penalty units.
8WAC(2)
A person commits an offence if the person:
(a) makes a supply of, or makes available for use, an electronic sales suppression tool or a right to use an electronic sales suppression tool; or
(b) provides a service to an entity that involves the use of an electronic sales suppression tool.
Penalty: 5,000 penalty units.
8WAC(3)
Subsections (1) and (2) do not apply to conduct undertaken by the person for the purpose of preventing or deterring tax evasion or enforcing a taxation law.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
8WAC(4)
An offence against subsection (1) or (2) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
8WAC(5)
Section 15.4 (extended geographical jurisdiction - category D) of the Criminal Code applies to an offence against subsection (1) if the electronic sales suppression tool is, at any time, used to modify records that a taxation law requires an entity to keep or make.
8WAC(6)
Section 15.4 (extended geographical jurisdiction - category D) of the Criminal Code applies to an offence against subsection (2) if the person makes a supply of, or makes available for use, the electronic sales suppression tool or the right to use the tool to an entity that is required by a taxation law to keep or make any record.
A person commits an offence if:
(a) the person is required under, or pursuant to, a taxation law to keep or make a record; and
(b) the person acquires, or has possession or control of, an electronic sales suppression tool or a right to use an electronic sales suppression tool.
Penalty: 500 penalty units.
8WAD(2)
Subsection (1) does not apply to conduct undertaken by a person for the purpose of preventing or deterring tax evasion or enforcing a taxation law.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
8WAD(3)
An offence against subsection (1) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
A person commits an offence if:
(a) the person is required under, or pursuant to, a taxation law to keep or make a record; and
(b) the record is kept, made or altered with the use of an electronic sales suppression tool, or is prevented by the use of an electronic sales suppression tool from being kept, made or altered; and
(c) as a result of the use:
(i) the record does not correctly record and explain the matter, transaction, act or operation to which it relates; or
(ii) the person does not keep or make the record in accordance with the taxation law.Penalty: 1,000 penalty units.
8WAE(2)
An offence against subsection (1) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
A person must not require or request another person to quote the other person's tax file number.
Penalty: 100 penalty units or imprisonment for 2 years, or both.
8WA(1AA)
Subsection (1) does not apply if: (a) provision is made by or under a taxation law or legislation described in paragraph 202(e) of the Income Tax Assessment Act 1936 for the person to quote the number; or (b) the first-mentioned person requires or requests the number to be quoted in connection with that person exercising powers or performing functions under, or in relation to, or complying with an obligation imposed by, a taxation law or a law of the Commonwealth of the kind referred to in paragraph 202(c), (d), (g), (ga), (gaa), (h), (hab), (hac), (ha), (hb), (hc), (i), (ia), (j), (kb), (la), (m), (r), (s), (sa), (t) or (u) of the Income Tax Assessment Act 1936; or (c) the first-mentioned person requires or requests the number to be quoted in connection with the first-mentioned person acting on the other person's behalf in the conduct of the other person's affairs.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (1AA), see subsection 13.3(3) of the Criminal Code.
8WA(1A)
A person does not contravene subsection (1) by asking another person to quote the other person's tax file number if the request is made so that the number can be included in an application for the registration of an entity under the A New Tax System (Australian Business Number) Act 1999.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code.
8WA(2)
Nothing in subsection (1) shall be read as prohibiting a person from requesting the production of a document, or a copy of a document, on which another person's tax file number is recorded if the other person is not prevented from removing the tax file number from the document.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (2), see subsection 13.3(3) of the Criminal Code.
8WA(3)
For the purposes of this section, a person who makes to another person a statement that the other person could reasonably understand to mean that the other person is required or requested to quote the other person's tax file number shall be taken to require or request the other person to quote the number.
8WA(4)
Nothing in this section shall be read as imposing on a person an obligation to require another person to quote a tax file number.
8WA(5)
(Repealed by No 6 of 1991)
8WA(6)
(Repealed by No 6 of 1991)
A person must not: (a) record another person's tax file number or maintain such a record; or (b) use another person's tax file number in a manner connecting it with the other person's identity; or (c) divulge or communicate another person's tax file number to a third person.
Penalty: 100 penalty units or imprisonment for 2 years, or both.
8WB(1A)
Subsection (1) does not apply: (a) to the extent required or permitted by, or reasonably necessary in order to comply with an obligation imposed by, a taxation law or a law of the Commonwealth of a kind referred to in paragraph 202(c), (d), (e), (g), (ga), (gaa), (h), (hab), (hac), (ha), (hb), (hc), (i), (ia), (j), (ka), (kb), (la), (m), (o), (q), (r), (s), (sa), (t) or (u) of the Income Tax Assessment Act 1936; or (b) in connection with the first-mentioned person exercising powers or performing functions under, or in relation to, a taxation law or a law of the Commonwealth of a kind referred to in paragraph 202(c), (d), (e), (g), (ga), (gaa), (h), (hab), (hac), (ha), (hb), (hc), (i), (ia), (j), (ka), (kb), (la), (m), (o), (q), (r), (s), (sa), (t) or (u) of the Income Tax Assessment Act 1936; or (ba) in connection with the first-mentioned person exercising powers or performing functions of a registrar specified in subsection 355-67(2) in Schedule 1; or (c) in connection with the first-mentioned person acting on the other person's behalf in the conduct of the other person's affairs.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code.
8WB(2)
Without affecting any obligation imposed by or under a law of the Commonwealth other than this section, nothing in subsection (1A) shall be read as imposing on a person an obligation to do an act referred to in paragraph (1)(a), (b), (ba) or (c).
8WB(3)
(Repealed by No 6 of 1991)
8WB(4)
(Repealed by No 6 of 1991)
Where:
(a) a person is an investor in relation to 2 or more investments of a similar kind; and
(b) having regard to:
(i) the manner in which the person became an investor in relation to the investments; and
it would be reasonable to conclude that the person became such an investor in that manner for the sole or dominant purpose of ensuring, or attempting to ensure that:
(ii) any explanation made by the person as to becoming such an investor in that manner;
(iii) although the person has not, under Part VA of the Income Tax Assessment Act 1936, quoted the person's tax file number in connection with those investments (in this subparagraph called the non-TFN investments ):
(A) amounts would not be deducted under Division 3B of that Act, or withheld under section 12-140 or 12-145 in Schedule 1 to this Act, from income in respect of one or more of the non-TFN investments; and
(B) amounts would not be paid to the Commissioner under section 14-5 in Schedule 1 to this Act, in relation to income in respect of one or more of the non-TFN investments; and
(C) TFN withholding tax would not be payable under section 14-55 in Schedule 1 to this Act in respect of one or more of the non-TFN investments; or
(iv) the investments are not referred to in a report under the regulations made under that Act;
the person commits an offence.
Penalty: 100 penalty units or imprisonment for 2 years, or both.
8WC(2)
In this section:
investment
means an investment of a kind mentioned in section 202D of the Income Tax Assessment Act 1936;
investor
means an investor within the meaning of that section.
(Repealed by No 75 of 2001)
(Repealed by No 137 of 2000) SECTION 8XA 8XA UNAUTHORISED ACCESS TO TAXATION RECORDS
A person must not take action with the intention of obtaining information about another person's affairs that:
(a) is contained in records in the possession of the Commissioner; and
(b) is held or was obtained by the Commissioner under or for the purposes of a taxation law;
unless the person takes the action:
(c) under the Freedom of Information Act 1982; or
(d) in accordance with the processes of a court or the Tribunal; or
(e) in the course of exercising powers or performing functions under or in relation to a taxation law.
Penalty: 100 penalty units or imprisonment for 2 years, or both.
(Repealed by No 145 of 2010)
Where a corporation does or omits to do an act or thing the doing or omission of which constitutes a taxation offence, a person (by whatever name called and whether or not the person is an officer of the corporation) who is concerned in, or takes part in, the management of the corporation shall be deemed to have committed the taxation offence and is punishable accordingly.
8Y(2) [Defence]In a prosecution of a person for a taxation offence by virtue of subsection (1), it is a defence if the person proves that the person:
(a) did not aid, abet, counsel or procure the act or omission of the corporation concerned; and
(b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission of the corporation.
Note 1:
A defendant bears a legal burden in relation to the matters in subsection (2), see section 13.4 of the Criminal Code.
Note 2:
Subsection (2) does not apply in relation to a prosecution under Part 2.4 of the Criminal Code.
For the purposes of subsection (1), an officer of a corporation shall be presumed, unless the contrary is proved, to be concerned in, and to take part in, the management of the corporation.
8Y(4) ["officer"]In this section, "officer" , in relation to a corporation, means:
(a) a director or secretary of the corporation;
(b) a receiver and manager of property of the corporation;
(ba) an administrator, within the meaning of the Corporations Act 2001, of the corporation;
(bb) an administrator of a deed of company arrangement executed by the corporation under Part 5.3A of that Act;
(c) (Repealed by No 8 of 2007)
(d) a liquidator of the corporation appointed in a voluntary winding up of the corporation; or
(e) a trustee or other person administering a compromise or arrangement made between the corporation and another person or other persons.
The Commissioner may, for the purposes of subsection 8E(2) or (3), 8M(2), 8R(2) or 8V(2), issue a certificate setting out such facts as the Commissioner considers relevant with respect to:
(a) the conviction of a person of an offence against a provision of Subdivision A or B or against Division 136 or 137 of the Criminal Code in relation to a taxation law; or
(b) the conviction of a person of an offence against the Crimes (Taxation Offences) Act 1980; or
(c) the conviction of a person of an offence against:
(i) section 6 of the Crimes Act 1914; or
being an offence that relates to an offence of a kind referred to in paragraph (a) or (b) of this subsection; or
(ii) section 11.1, 11.4 or 11.5 of the Criminal Code;
(d) the conviction of a person of 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 tax liability; or
(e) the making of an order under section 19B of the Crimes Act 1914 in relation to a person in respect of an offence of a kind referred to in paragraph (a), (b), (c) or (d) of this subsection; or
(f) the conviction of a person of an offence against Division 136 or 137 of the Criminal Code, being an offence that relates to a taxation law.
A document purporting to be a certificate issued under subsection (1) shall be received in evidence in a court without further proof and is, for those purposes, prima facie evidence of the facts stated in it.
8Z(3) [Application of other laws]The provisions of this section are in addition to, and not in derogation of, any other law of the Commonwealth or any law of a State or Territory.
Division 3 - Prosecution of taxation offences SECTION 8ZA PROSECUTION OF TAXATION OFFENCES 8ZA(1) [Indictable offence]A taxation offence that is punishable by imprisonment for a period exceeding 12 months is, when committed by a natural person, an indictable offence.
8ZA(2) [Summary offence]A taxation offence that is punishable by imprisonment for a period not exceeding 12 months is, when committed by a natural person, punishable on summary conviction.
8ZA(3) [Prescribed taxation offence]A prescribed taxation offence, when committed by a natural person, is punishable on summary conviction.
8ZA(4) [Corporations]A taxation offence, when committed by a corporation, is punishable on summary conviction.
8ZA(5) [Summary conviction]In spite of anything in the preceding provisions of this section, if:
(a) a person is convicted of 2 or more offences against section 8T or 8U, or both, before the same court at the same sitting; and
(b) assuming that the person had only been convicted of one of those offences, that offence would have been punishable on summary conviction;
all those offences are punishable on summary conviction.
A reference in subsection (5) to a conviction of a person for an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.
A reference in subsection (5) to an offence against section 8T or 8U includes a reference to an offence against section 11.1 of the Criminal Code that relates to an offence against section 8T or 8U, as the case may be.
A prosecution for a taxation offence may be commenced at any time.
8ZB(2) [Application of Crimes Act]Subsection (1) has effect notwithstanding anything contained in section 15B of the Crimes Act 1914.
Where a person commits a taxation offence by doing an act, the taxation offence may be taken to have been committed at:
(a) the place where the act was done;
(b) if the person is a natural person - the usual place of residence or business of the person or the place of residence or business of the person last known to the Commissioner; or
(c) if the person is a corporation - the head office, a registered office or a principal office of the corporation,
and the person may be charged with, and convicted of, the taxation offence as if it had been committed at any of those places.
8ZC(2) [Place where act omitted to be done]Where a person commits a taxation offence by omitting to do an act, the taxation offence may be taken to have been committed at:
(a) the place where the act should have been done;
(b) if the person is a natural person - the usual place of residence or business of the person or the place of residence or business of the person last known to the Commissioner; or
(c) if the person is a corporation - the head office, a registered office or a principal office of the corporation,
and the person may be charged with, and convicted of, the taxation offence as if it had been committed at any of those places.
8ZC(3) [Subject to Constitution]This section has effect subject to section 80 of the Constitution.
Note:
This section does not apply as an averment. For averments, see section 8ZL of this Act and section 13.6 of the Criminal Code.
Where, in a prosecution for a taxation offence constituted by an act done, or omitted to be done, by a corporation, it is necessary to establish the intention of the corporation, it is sufficient to show that an employee or agent of the corporation by whom the act was done or omitted to be done, as the case may be, had the intention.
8ZD(2)
In a prosecution for a taxation offence, any act done, or omitted to be done, on behalf of a corporation by:
(a) a director, employee or agent of the corporation; or
(b) any other person:
(i) at the direction; or
of a director, employee or agent of the corporation,
(ii) with the consent or agreement (whether express or implied),
shall be deemed to have been done, or omitted to have been done, as the case may be, also by the corporation.
8ZD(3)
Part 2.5 of the Criminal Code does not apply to taxation offences.
SECTION 8ZE 8ZE CIVIL PENALTY NOT PAYABLE IF PROSECUTION INSTITUTED
If:
(a) a person is liable to pay by way of penalty (other than for an offence) an amount under a taxation law because of an act or omission of the person; and
(b) a prosecution is instituted against the person for a taxation offence constituted by the act or omission;
then (whether or not the prosecution is withdrawn):
(c) the person is not liable to pay the amount; and
(d) any amount paid, or applied by the Commissioner, in total or partial discharge of that liability is to be refunded to the person, or applied by the Commissioner in total or partial discharge of another tax liability of the person.
Note:
An example of a penalty referred to in paragraph (a) is a penalty payable under section 284-75 in Schedule 1.
Where a corporation is convicted of:
(a) a taxation offence (other than a prescribed offence) that, if committed by a natural person, is punishable by imprisonment; or
(b) a prescribed offence to which subsection 8E(3) or 8R(2) applies,
the penalty that the court before which the corporation is convicted may impose is a fine not exceeding 5 times the maximum fine that, but for this section, the court could impose as a penalty for the taxation offence.
SECTION 8ZG ENFORCEMENT OF ORDERS FOR PAYMENT 8ZG(1) [Order enforceable as a final judgment](a) upon the conviction of a person for a taxation offence, the court before which the person is convicted, in addition to imposing a penalty on the person, orders the person to pay an amount to the Commissioner; and
(b) the court has civil jurisdiction to the extent of the amount,
the order is enforceable in all respects as a final judgmentof the court in favour of the Commissioner.
8ZG(2) [Issue of certificate where court lacks jurisdiction](a) upon conviction of a person for a taxation offence, the court before which the person is convicted, in addition to imposing a penalty on the person, orders the person to pay an amount to the Commissioner; and
(b) the court:
(i) does not have civil jurisdiction; or
(ii) has civil jurisdiction, but does not have civil jurisdiction to the extent of the amount,
the proper officer of the court shall issue to the Commissioner a certificate in the prescribed form containing the prescribed particulars.
8ZG(3) [Certificate may be registered in a court]The certificate may, in the prescribed manner and subject to the prescribed conditions (if any), be registered in a court having civil jurisdiction to the extent of the amount ordered to be paid to the Commissioner.
8ZG(4) [Certificate enforceable as final judgment]Upon registration under subsection (3), the certificate is enforceable in all respects as a final judgment of the court in favour of the Commissioner.
8ZG(5) [Costs of registration]The costs of registration of the certificate and other proceedings under this section shall, subject to the prescribed conditions (if any), be deemed to be payable under the certificate.
SECTION 8ZH 8ZH PENALTIES NOT TO RELIEVE FROM TAXThe adjudgment or payment of:
(a) a penalty in respect of a taxation offence; or
(b) an amount ordered by a court, upon the conviction of a person for a taxation offence, to be paid by the person to the Commissioner,
does not relieve any person from liability to assessment or payment of any amount (whether by way of tax, duty, charge or otherwise) for which the person would otherwise be liable.
Division 4 - Prescribed taxation offencesA prosecution for a prescribed taxation offence shall take the form of a proceeding by the Commonwealth for the recovery of a pecuniary penalty.
8ZJ(2) [Court of summary jurisdiction]A prosecution for a prescribed taxation offence may be instituted by a person authorized under subsection (8) on behalf of, and in the official name of, the Commissioner by information or complaint in a court of summary jurisdiction.
8ZJ(3) [Supreme Court]A prosecution of a person for a prescribed taxation offence that is punishable by a fine exceeding the prescribed amount in relation to the person may be instituted by a person authorized under subsection (8) on behalf of, and in the official name of, the Commissioner by action in the Supreme Court of a State or Territory.
8ZJ(4) [Penalty where summary conviction]Where a court of summary jurisdiction convicts a person of a prescribed taxation offence, the penalty that the court may impose is a fine not exceeding the prescribed amount in relation to the person.
8ZJ(5) [Removal to Supreme Court]Where:
the prosecution shall, by force of this subsection and without any order of the Supreme Court, be removed to the Supreme Court.
(a)
a prosecution of a person for a prescribed taxation offence that is punishable by a fine exceeding the prescribed amount in relation to the person is instituted in accordance with subsection (2); and
(b)
before the expiration of the period of 14 days after service of process on the person in respect of the prescribed taxation offence, the person elects, in the prescribed manner, to have the case tried in the Supreme Court of the State or Territory in which the prosecution was instituted,
Where a prosecution for a prescribed taxation offence is instituted in the Supreme Court of a State or Territory in accordance with subsection (3) or is removed to the Supreme Court of a State or Territory by force of subsection (5), the prosecution may be conducted in accordance with:
(a) the usual practice and procedure of the Supreme Court in civil cases; or
(b) the directions of the Supreme Court or a Justice or Judge of the Supreme Court. 8ZJ(7) [Exercise of Supreme Court jurisdiction]
The jurisdiction of the Supreme Court of a State or Territory under this section shall be exercised by a single Justice or Judge of the Supreme Court.
8ZJ(8) [Authorized person may institute prosecutions]The Commissioner may, by writing, authorize a person to institute a prosecution for:
(a) a specified prescribed taxation offence;
(b) a prescribed taxation offence included in a specified class of prescribed taxation offences; or
(c) any prescribed taxation offence. 8ZJ(9) [``Prescribed amount'']
A reference in this section to the prescribed amount in relation to a person is a reference to:
(a) if the person is a natural person - $5,000; or
(b) if the person is a corporation - $25,000. SECTION 8ZK 8ZK PROTECTION OF WITNESSES
A witness called on behalf of the Commissioner in any prosecution for a prescribed taxation offence shall not be compelled:
(a) to disclose:
(i) the fact that the witness received any information;
(ii) the nature of any information received by the witness; or
(iii) the name of any person from whom the witness received any information; or
(b) if the witness is an officer, to produce any reports:
(i) made or received by the witness confidentially in the witness' official capacity; or
SECTION 8ZL AVERMENT 8ZL(1) [ Prima facie evidence]
(ii) containing confidential information.
In a prosecution for a prescribed taxation offence, a statement or averment contained in the information, claim or complaint is prima facie evidence of the matter so stated or averred.
8ZL(2) [Application of section]This section applies in relation to any matter so stated or averred although:
(a) evidence in support or rebuttal of the matter stated or averred, or of any other matter, is given; or
(b) the matter averred is a mixed question of law and fact, but, in that case, the statement or averment is prima facie evidence of the fact only. 8ZL(3) [Evidence to be considered on its merits]
Any evidence given in support or rebuttal of a matter so stated or averred shall be considered on its merits, and the credibility and probative value of such evidence shall be neither increased nor diminished by reason of this section.
8ZL(4) [Effect of section](a) does not apply to any fault element of an offence; and
(aa) does not apply in relation to any offence for which imprisonment is a penalty; and
(b) does not lessen or affect any onus of proof otherwise falling on a defendant.
Where a prosecution for a prescribed taxation offence is instituted by a person in the official name of the Commissioner, the prosecution shall be presumed, unless the contrary is proved, to have been instituted with the authority of the Commissioner.
8ZM(2) [Conclusive evidence of authority]In a prosecution for a prescribed taxation offence, the mere production of an instrument, telegram or copy of a telex message purporting to have been issued or sent by the Commissioner, a Second Commissioner or a Deputy Commissioner and purporting to notify a person that the person is authorized by the Commissioner to institute the prosecution, to institute prosecutions for a class of prescribed taxation offences in which the prescribed taxation offence is included or to institute prosecutions for any prescribed taxation offence is conclusive evidence of the authority of the person to institute the prosecution on behalf of, and in the official name of, the Commissioner.
SECTION 8ZN 8ZN COSTSIn a prosecution for a prescribed taxation offence, the court may award costs against any party. Division 5 - Service of summons for prescribed taxation offences
In this Division, unless the contrary intention appears:
defendant
, in relation to a prescribed taxation offence, means a person to whom a summons has been sent in the manner permitted by subsection 10(1) in relation to the prescribed taxation offence (whether or not the summons has been delivered to, or received by, the person);
"fine"
(Omitted by No 123 of 1984)
"prescribed offence"
(Omitted by No 123 of 1984)
summons
, in relation to a person, means a writ or process notifying or directing the person to appear on a designated day before a specified court.
"taxation Act"
(Omitted by No 123 of 1984)
A summons for the appearance before a court of summary jurisdiction of a person charged with having committed a prescribed taxation offence may be served upon the person to whom it is directed by sending a copy of the summons, not less than 21 days before the day on which the person is required by the summons to appear before the court, by ordinary prepaid post addressed to the person at the person's last known place of residence or last known place of business.
10(1A)
Subsection (1) has effect without prejudice to any other method of service provided for under any other law of the Commonwealth or under a law of a State or Territory.
10(2)
Where a summons is served in the manner permitted by subsection (1), the court may require the summons to be re-served if the court has reasonable cause to believe that the summons has not come tothe notice of the person to whom it is directed.
SECTION 11 NOTICE OF CONVICTION IN ABSENTIA 11(1)
Where a defendant who has not entered a plea in relation to a prescribed taxation offence is, in the defendant's absence, convicted of the prescribed taxation offence, the proper officer of the court concerned shall cause to be served on the defendant notice in writing of:
(a) the conviction;
(b) the order of the court;
(c) where the order of the court includes the imposition of a fine - the time allowed by the court for payment of the fine; and
(d) the right of the defendant to make an application under section 13A for an order setting aside the conviction.
11(2)
Without prejudice to any other method of service provided for under any other law of the Commonwealth or under a law of a State or Territory, a notice under subsection (1) may be served on the defendant by sending the notice to the defendant by ordinary prepaid post addressed to the defendant at the defendant's last known place of residence or last known place of business.
SECTION 12 12 NOTICE OF INTENTION TO ISSUE WARRANT IN DEFAULT OF PAYMENT
Where:
(a) a defendant, not being a body corporate, has been served with a notice under subsection 11(1), being a notice that includes notice of a fine imposed on him or her in consequence of a conviction;
(b) the fine is not paid in full within the time allowed by the court for payment of the fine; and
(c) a period of not less than 21 days has elapsed after the date of service of the notice,
the proper officer of the court concerned may cause to be served personally on the defendant a notice (in this section referred to as the personal notice ) informing the defendant that unless:
(d) the fine is paid in full before the expiration of 21 days after the date of service of the personal notice; or
(e) an application in accordance with section 13A for the setting aside of the conviction is made before the expiration of 14 days after the date of service of the personal notice,
a warrant for his or her commitment to prison may be issued.
Notwithstanding anything contained in any other law of the Commonwealth or in a law of a State or Territory, where a defendant who has not entered a plea in relation to a prescribed taxation offence is, in the defendant's absence, convicted of the prescribed taxation offence and the order of the court includes the imposition of a fine:
(a) a warrant for commitment of the defendant to prison for failure to pay the fine shall not be issued unless:
(i) a notice has been served on the defendant under section 12 in relation to the fine; and
(ii) a period of not less than 21 days has elapsed after the date of service of the notice; and
(b) no other action for enforcement of payment of the fine shall be taken unless:
(i) a notice has been served on the defendant in relation to the conviction under subsection 11(1); and
(ii) a period of not less than 21 days has elapsed after the date of service of the notice.
Where a defendant has been served with a notice under section 11 in relation to a conviction or order of a court, the defendant may:
(a) where a fine was imposed by the court - before the expiration of:
(i) the period allowed by the court for payment of the fine; or
whichever is the longer; or
(ii) a period of 21 days after the date of service of the notice,
(b) where no fine was imposed by the court - within 21 days after the date of service of the notice,
make an application in writing to the court, or to another court of summary jurisdiction that would have had jurisdiction to make the conviction or order, for an order setting aside the conviction or order.
13A(2) [Application where served with sec 12 notice]Where a defendant has been served with a notice under section 12 in relation to a conviction or order of a court, the defendant may, within 14 days after the date of service of the notice, make an application in writing to the court, or to another court of summary jurisdiction that would have had jurisdiction to make the conviction or order, for an order setting aside the conviction or order.
13A(3) [Parties to proceedings]Any person who was a party to the proceedings in which the conviction or order to which an application under subsection (1) or (2) relates was made shall be a party to proceedings in respect of the application.
13A(4) [Court to set aside order or conviction]Where a court is satisfied, on an application made by a defendant in accordance with subsection (1) or (2) in relation to a conviction or order, that:
(a) in the case of an application under subsection (1):
(i) the defendant did not receive notice of the proceedings in which the conviction or order was made, or did not receive such notice in sufficient time to enable the defendant to attend the proceedings; or
(ii) the defendant failed to attend the proceedings in which the conviction or order was made for reasons that, in the opinion of the court, render it desirable, in the interests of justice, that the conviction or order be set aside and the matter re-heard; or
(b) in the case of an application under subsection (2):
(i) the defendant:
(A) did not receive notice of the proceedings in which the conviction or order was made, or did not receive such notice in sufficient time to enable the defendant to attend the proceedings; and
(B) did not receive notice of the conviction or order, or did not receive such notice in sufficient time to enable the defendant to apply, within the time specified in paragraph (1)(a), for an order setting aside the conviction or order; or
(ii) the defendant failed to attend the proceedings in which the conviction or order was made, and failed to make an application in accordance with subsection (1) in relation to the notice served on the defendant under section 11 in relation to the conviction or order, for reasons that, in the opinion of the court, render it desirable, in the interests of justice, that the conviction or order be set aside and the matter re-heard,
the court shall set aside the conviction or order and shall:
(c) proceed forthwith to re-hear and determine the matter; or
(d) adjourn the proceedings for re-hearing the matter to such time and place as the court thinks fit. 13A(5) [Notice of making of application]
Where an application is made to a court (in this subsection referred to as the relevant court ) under this section for the setting aside of a conviction or order of a court, the proper officer of the relevant court shall forthwith:
(a) cause notice of the making of the application to be given to each party to the application other than the defendant; and
(b) where the conviction or order was made by a court other than the relevant court - cause notice of the making of the application to be given to that other court. 13A(6) [Notice of setting aside of conviction or order]
Where, under subsection (4), a court sets aside a conviction or order of another court, the proper officer of the first-mentioned court shall forthwith cause notice of the setting aside of that conviction or order to be given to the other court.
SECTION 13B 13B PROOF OF SERVICE OF SUMMONS OR NOTICEService of a summons in accordance with section 10 or of a notice in accordance with section 11 or 12 may be proved by the oath of the person who served it or by affidavit or otherwise. SECTION 13C APPLICATION OF OTHER LAWS 13C(1) [Service of summonses]
The provisions of this Division have effect in addition to, and not in derogation of, any other law of the Commonwealth or a State or Territory that makes provision for, or in relation to, the service of summonses.
Without limiting the generality of section 79 of the Judiciary Act 1903, the laws (if any) of a State or Territory relating to any procedure whereby a person may, without appearing in court in obedience to a summons, enter a plea in relation to a charge of having committed an offence apply in like manner, mutatis mutandis, to a defendant charged with having committed a prescribed taxation offence.
Where a person has been convicted in his or her absence of a prescribed taxation offence (whether before or after the commencement of this section), the Commissioner may apply to a court (in this section called the quashing court ) for:
(a) an order setting aside the conviction or setting aside the order of the convicting court in respect of the conviction; or
(b) an order varying the order of the convicting court in respect of the conviction so as to reduce its severity. 13CA(2) [Application to convicting court or other court]
The application shall be made in writing:
(a) to the convicting court; or
(b) to any other court of summary jurisdiction that would have had jurisdiction to make the conviction or order. 13CA(3) [Notice of application]
The proper officer of the quashing court shall, without delay, cause notice of the making of the application to be given to each party to the application (other than the Commissioner).
13CA(4) [Parties]Any person who was a party to the proceedings in which the defendant was convicted shall be made a party to the proceedings in respect of the application.
13CA(5) [Discretion of quashing court]If the quashing court is satisfied that:
(a) the conviction or order was made in circumstances that, in the opinion of the court, make it desirable, in the interests of justice, that:
(i) the conviction or order be set aside; or
(ii) the order be varied by reducing its severity; or
(b) because of other special circumstances (whether or not existing at the time the conviction or order was made) it is desirable, in the interests of justice, or in order to avoid undue hardship, that:
(i) the order be set aside; or
(ii) the order be varied so as to reduce its severity;
the court may set aside the conviction, or set aside or vary the order, as the case may be, on such terms as to costs or otherwise as the court thinks just.
13CA(6) [Warrants to be set aside]If the court sets aside the conviction, or sets aside or varies the order in respect of the conviction, the court shall also set aside any warrant issued in consequence of the conviction.
13CA(7) [Notice of setting aside or variation to convicting court](a) is not the convicting court; and
(b) sets aside the conviction, or sets aside or varies the order, of the convicting court;
the proper officer of the quashing court shall without delay cause notice of the setting aside or variation to be given to the convicting court.
13CA(8) [Order made under Crimes Act]A reference in this section to a conviction includes a reference to the making of an order under section 19B of the Crimes Act 1914.
13CA(9) [Further proceedings barred]The setting aside of a conviction or order under this section is a bar to any further legal proceeding against the defendant for the same matter in any court (other than on appeal).
13CA(10) [Non-derogation of other laws]This section is in addition to, and not in derogation of, any other law of the Commonwealth or any law of a State or Territory.
In this Part, unless the contrary intention appears-
Australian Capital Territory
includes the Jervis Bay Territory;
(a) a person appointed or engaged under the Public Service Act 1999; or
(b) a State taxation officer;
State
includes the Northern Territory;
(a) in relation to a State other than the Northern Territory - a Minister of the Crown of the State; or
(b) in relation to the Northern Territory - a Minister of the Northern Territory;
State tax law
means a law of a State relating to taxation;
(a) a person or authority, not being a State Minister, who or which is for the time being authorised under a law of a State to perform the functions of a State taxation officer under this Part; or
(b) a person, not being a State Minister, authorised by writing signed by a person or authority referred to in paragraph (a) to act under this Part;
Territory
means the Australian Capital Territory;
Territory tax law
means a law of the Territory relating to taxation;
Territory taxation officer
means:
(a) a person or authority, not being a Minister of State of the Commonwealth, who or which is for the time being authorised under a law of the Territory to perform the functions of a Territory taxation officer under this Part; or
(b) a person, not being a Minister of State of the Commonwealth, authorised by writing signed by a person or authority referred to in paragraph (a) to act under this Part. 13D(2) [Reference to State tax law]
A reference in Division 3 or 4 to a State tax law includes a reference to a Territory tax law.
13D(3) [Reference to State taxation officer]A reference in Division 3 or 4 to a State taxation officer includes a reference to a Territory taxation officer.
A State taxation officer may, by writing signed by the officer, refer a matter arising under a State tax law to the Commissioner for investigation in the Territory.
Where, under section 13E, a matter is referred to the Commissioner for investigation, the Commissioner may, by writing signed by the Commissioner, authorise an officer to conduct an investigation into that matter.
13F(2) [Conduct of investigation]For the purposes of conducting an investigation into a matter referred to the Commissioner under section 13E, an officer authorised under subsection (1) of this section to conduct the investigation:
(a) may, at all reasonable times, enter upon any land in the Territory;
(b) shall have full and free access at all reasonable times to all documents in the Territory; and
(c) may take extracts from, and make copies of, any documents in the Territory. 13F(3) [Entry on land in course of investigation]
An officer who enters upon land pursuant to subsection (2) is not authorised to remain on the land if, on request by the occupier of the land, the officer does not produce a certificate issued by the Commissioner stating that he or she is an officer authorised under subsection (1) to conduct an investigation into a matter specified in the certificate.
13F(4) [Facilities and assistance by occupier]The occupier of land entered or proposed to be entered by an officer under subsection (2) shall provide the officer with all reasonable facilities and assistance for the effective exercise of powers under this section.
Penalty for a contravention of this subsection: 10 penalty units.
Where, under section 13E, a matter is referred to the Commissioner for investigation, the Commissioner may, for the purposes of conducting the investigation in the Territory, by notice in writing, require any person, including any officer employed in or in connection with any department of a government or by any public authority:
(a) to furnish the Commissioner with such information as the Commissioner requires;
(b) to attend before the Commissioner, or before an officer authorised by the Commissioner for the purpose, at a time and place specified in the notice and there answer questions; and
(c) to produce to the Commissioner, or to an officer authorised by the Commissioner for the purpose, any documents in the custody or under the control of the person. 13G(2) [Information verified or furnished on oath]
The Commissioner may require the information or answers to be verified or furnished, as the case may be, on oath or affirmation and either orally or in writing, and for that purpose the Commissioner or an officer authorised by the Commissioner may administer an oath or affirmation.
13G(3) [Oath as to truth of answers]The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the information is or the answers will be true.
13G(4) [Copies or extracts of documents]The Commissioner may cause copies to be made of, or extracts to be taken from, any documents that are produced pursuant to paragraph (1)(c).
13G(5) [Attendance allowances]A person required pursuant to paragraph (1)(b) to attend before the Commissioner or an officer authorised by the Commissioner is entitled to payment of an allowance in respect of his or her expenses of an amount determined by the Commissioner in accordance with the regulations.
(Repealed by No 145 of 2010)
(Repealed by No 145 of 2010)
Where a document is obtained pursuant to a State tax law, a State taxation officer may certify a copy of the document to be a true copy.
13K(2)
Where, pursuant to a State tax law, a copy is made of a document, a State taxation officer may certify the copy to be a true copy.
13K(3)
Where a document is obtained pursuant to a State tax law, a State taxation officer may certify an extract taken from the document to be a true extract.
13K(4)
Where, pursuant to a State tax law, an extract is taken from a document, a State taxation officer may certify the extract to be a true extract.
13K(5)
Subject to subsection (6), a document purporting to be a copy or extract certified under subsection (1), (2), (3) or (4) shall be received in all courts and tribunals in proceedings arising out of a taxation law as evidence as if it were the original.
13K(6)
Subsection (5) does not apply in relation to a document if:
(a) in the case of proceedings for an offence - evidence is adduced that the document is not a true copy or a true extract; or
(b) in any other case - it is proved that the document is not a true copy or a true extract.
13K(7)
Where:
(a) pursuant to a State tax law, a copy (in this section referred to as the primary copy ) is made of, or an extract (in this section referred to as the primary extract ) is taken from, a document (in this section referred to as the original document ); and
(b) pursuant to subsection (2) or (4), a State taxation officer has certified the primary copy to be a true copy of, or the primary extract to be a true extract taken from, the original document,
a State taxation officer may:
(c) certify a copy of the primary copy or primary extract to be a true copy; or
(d) certify an extract taken from the primary copy or primary extract to be a true extract.
13K(8)
Subject to subsection (9), a document purporting to be:
(a) a copy, certified under subsection (7), of a primary copy of, or a primary extract taken from, an original document; or
(b) an extract, certified under subsection (7), taken from a primary copy of, or a primary extract taken from, an original document;
shall be received in all courts and tribunals in proceedings arising out of a taxation law as evidence as if it were the original document.
13K(9)
Subsection (8) does not apply in relation to a document if:
(a) in the case of proceedings for an offence, evidence is adduced that:
(i) the document is not a true copy of, or a true extract taken from, the primary copy or primary extract; or
(ii) the primary copy is not a true copy of, or the primary extract is not a true extract taken from, the original document; or
(b) in any other case, it is proved that:
(i) the document is not a true copy of, or a true extract taken from, the primary copy or primary extract; or
(ii) the primary copy is not a true copy of, or the primary extract is not a true extract taken from, the original document.
13K(10)
(Omitted by No 82 of 1993)
13K(11)
(Repealed by No 4 of 2018)
Division 5 - Australian Taxation Office may perform functions under State/Territory debits tax laws
In this section:
accounts
, in relation to a financial institution, includes accounts kept by way of withdrawable share capital in, or money deposited with, the financial institution;
co-operative housing society
means a society registered or incorporated as a co-operative housing society or similar society under a law of a State or Territory.
financial institution
includes:
(a) a body corporate that is an ADI (authorised deposit-taking institution) for the purposes of the Banking Act 1959; and
(b) a co-operative housing society; and
(c) a registered entity under the Financial Sector (Collection of Data) Act 2001.
State/Territory debits tax law
means:
(a) a State tax law; or
(b) a Territory tax law;
relating to the taxation of debits made to accounts kept with financial institutions.
13L(2) [Administration of debits tax law]The Commissioner may make an arrangement with an appropriate officer or authority of a State or the Territory about any matter in connection with the administration of a State/Territory debits tax law.
13L(3) [Arrangement provisions]In particular, an arrangement may provide:
(a) for the Commissioner or the Second Commissioners to perform functions, or exercise powers, conferred on them by a State/Territory debits tax law; or
(b) for the services of officers or employees under the control of the Commissioner to be made available to the State or the Territory or to an authority of the State or of the Territory for the purposes of matters relating to the administration of a State/Territory debits tax law.
(Repealed by No 88 of 2009)
(Repealed by No 88 of 2009)
(Repealed by No 88 of 2009)
(Repealed by No 88 of 2009)
(Repealed by No 88 of 2009)
(Repealed by No 123 of 1984)
(Repealed by No 216 of 1991)
(Repealed by No 216 of 1991)
(Repealed by No 216 of 1991)
(Repealed by No 216 of 1991)
(Repealed by No 216 of 1991)
(Repealed by No 216 of 1991)
(Repealed by No 216 of 1991)
(Repealed by No 216 of 1991)
(Repealed by No 216 of 1991)
(Repealed by No 88 of 2009)
(Repealed by No 88 of 2009)
(Repealed by No 123 of 1984)
(Repealed by No 88 of 2009)
(Repealed by No 65 of 1985)
(Repealed by No 88 of 2009)
(Repealed by No 123 of 1984)
(Repealed by No 48 of 1986)
In this Part, unless the contrary intention appears:
Australia
(Repealed by No 2 of 2015)
authorized officer
means a person who is:
(a) an officer for the purposes of the Customs Act 1901; or
(b) a member of the Australian Federal Police;
departure authorization certificate
means a certificate under subsection 14U(1);
departure prohibition order
means an order under subsection 14S(1).
Immigration Department
(Repealed by No 88 of 2009)
14Q(2)
A reference in this Part to the departure of a person from Australia for a foreign country is a reference to the departure of the person from Australia for a foreign country, whether or not the person intends to return to Australia.
Division 2 - Prohibition and authorisation of departure of certain tax debtors
A person in respect of whom a departure prohibition order is in force, and who knows that such an order is in force in respect of him or her, shall not depart from Australia for a foreign country.
Penalty: 50 penalty units or imprisonment for 12 months, or both.
Subsection (1) does not apply if the departure is authorised by a departure authorisation certificate.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (2), see subsection 13.3(3) of the Criminal Code.
Where:
(a) a person is subject to a tax liability; and
(b) the Commissioner believes on reasonable grounds that it is desirable to do so for the purpose of ensuring that the person does not depart from Australia for a foreign country without:
(i) wholly discharging the tax liability; or
(ii) making arrangements satisfactory to the Commissioner for the tax liability to be wholly discharged,
the Commissioner may, by order in accordance with the prescribed form, prohibit the departure of the person from Australia for a foreign country.
14S(2)
Subject to subsection (3), a departure prohibition order remains in force unless and until revoked under section 14T or set aside by a court.
14S(3)
A departure prohibition order made in respect of a person shall be taken, by virtue of this subsection, not to be in force in respect of the person during any period during which an order is in force under the Migration Act 1958 for the deportation of the person.
14S(4)
Where a departure prohibition order is made in respect of a person, the Commissioner shall forthwith:
(a) cause the person to be informed, as prescribed, of the making of the order; and
(b) subject to subsection (5), cause a copy of the order, and such information as the Commissioner considers is likely to facilitate the identification of the person, to be given to:
(i) the Immigration Secretary; and
(ii) such other persons as the Commissioner considers appropriate, being persons prescribed, or included in a class of persons prescribed, for the purposes of this paragraph.
14S(5)
Where a departure prohibition order is made in respect of a person whom the Commissioner is satisfied is an Australian citizen, the Commissioner shall not cause a copy of the order, or any information likely to facilitate the identification of the person, to be given to the Immigration Secretary unless the Commissioner is of the opinion that it is desirable to do so.
SECTION 14T REVOCATION AND VARIATION OF DEPARTURE PROHIBITION ORDERS 14T(1) [Revocation in certain circumstances]
Where a departure prohibition order is in force in respect of a person and:
(a) the tax liabilities to which the person is subject have been wholly discharged and the Commissioner is satisfied that it is likely that the tax liabilities to which the person may become subject in respect of, or arising out of, matters that have occurred will be:
(i) wholly discharged; or
(ii) completely irrecoverable; or
(b) the Commissioner is satisfied that the tax liabilities to which the person is subject are completely irrecoverable,
the Commissioner shall, on application being made to the Commissioner by the person to do so or on the Commissioner's own motion, revoke the departure prohibition order.
14T(2) [Revocation or variation of order]Where a departure prohibition order is in force in respect of a person, the Commissioner may, in the Commissioner's discretion and on application being made to the Commissioner to do so or on the Commissioner's own motion, revoke or vary the departure prohibition order.
14T(3) [``wholly discharged'']A reference in paragraph (1)(a) to tax liabilities having been wholly discharged includes a reference to arrangements satisfactory to the Commissioner having been made for those tax liabilities to be wholly discharged and a reference in that paragraph to the Commissioner being satisfied that it is likely that tax liabilities to which a person may become subject will be wholly discharged includes a reference to the Commissioner being satisfied that it is likely that arrangements satisfactory to the Commissioner will be made for those tax liabilities to be wholly discharged.
14T(4) [Commissioner to inform of revocation or variation]As soon as practicable after a departure prohibition order made in respect of a person is revoked or varied under this section, the Commissioner shall:
(a) cause to be served, as prescribed, on the person; and
(b) cause to be given to each person to whom a copy of the departure prohibition order was given;
notification of the revocation or variation of the departure prohibition order.
14T(5) [Refusal to revoke]As soon as practicable after a decision is made under subsection (1) or (2) refusing to revoke a departure prohibition order made in respect of a person, the Commissioner shall cause to be served, as prescribed, on the person notification of the decision.
SECTION 14U DEPARTURE AUTHORISATION CERTIFICATES 14U(1) [Issue of authorisation]Where, on application made by a person in respect of whom a departure prohibition order is in force:
(a) the Commissioner is satisfied:
(i) that, if a departure authorisation certificate is issued in respect of the person, it is likely that:
(A) the person will depart from Australia and will return to Australia within such period as the Commissioner considers to be appropriate in relation to the person; and
(B) circumstances of the kind referred to in paragraph 14T(1)(a) will come into existence within such period as the Commissioner considers to be appropriate in relation to the person; and
(ii) that it is not necessary or desirable for the person to give security under subsection (2) for the person's return to Australia; or
(b) in a case where the Commissioner is not satisfied with respect to the matters referred to in paragraph (a):
(i) the person has given security under subsection (2) to the satisfaction of the Commissioner for the person's return to Australia; or
(ii) if the person is unable to give such security, the Commissioner is satisfied that:
(A) a departure authorisation certificate should be issued in respect of the person on humanitarian grounds; or
(B) a refusal to issue a departure authorisation certificate in respect of the person would be detrimental to the interests of Australia,
the Commissioner shall issue a certificate authorising the person to depart from Australia for a foreign country on or before the seventh day after a day (being a day later than, but not more than 7 days later than, the day on which the certificate is issued) specified in the certificate.
14U(2) [Date of return to Australia]For the purposes of this section:
(a) a person may give security, by bond, deposit or any other means, for the person's return to Australia by such day as is agreed between the person and the Commissioner;
(b) the Commissioner may, in the Commissioner's discretion and on application by the person or on the Commissioner's own motion, substitute a later day for the day so agreed (including a day substituted by virtue of a previous application of this paragraph); and
(c) the Commissioner may refuse to substitute such a later day unless the person:
(i) increases, to the satisfaction of the Commissioner, the value of the security given by the person under this subsection; or
14U(3) [Copy of authorisation to be served]
(ii) gives a further security, to the satisfaction of the Commissioner, by bond, deposit or any other means, for the person's return to Australia by that later day.
As soon as practicable after a departure authorisation certificate is issued in respect of a person, the Commissioner shall:
(a) cause a copy of the departure authorisation certificate to be served, as prescribed, on the person; and
(b) cause a copy ofthe departure authorisation certificate to be given to each person to whom a copy of the departure prohibition order made in respect of the person was given. 14U(4) [Refusal to issue or vary]
As soon as practicable after a decision is made under subsection (1) refusing to issue a departure authorisation certificate in respect of a person or a decision is made under subsection (2) refusing to substitute a later day in relation to the return of a person to Australia, the Commissioner shall cause to be served, as prescribed, on the person notification of the decision.
Division 3 - Appeals from, and review of, decisions of the CommissionerA person aggrieved by the making of a departure prohibition order may appeal to the Federal Court of Australia or the Supreme Court of a State or Territory against the making of the departure prohibition order.
14V(2) [Application](a) subject to chapter III of the Constitution; and
(b) notwithstanding anything contained in section 9 of the Administrative Decisions (Judicial Review) Act 1977. SECTION 14W JURISDICTION OF COURTS 14W(1) [Single Judge]
The jurisdiction of a court under section 14V shall be exercised by a single Judge or Justice.
14W(2) [Appeal to Federal Court]An appeal lies to the Federal Court of Australia from a judgment or order of the Supreme Court of a State or Territory exercising jurisdiction under section 14V.
14W(3) [Appeal to High Court]An appeal lies to the High Court, with special leave of the High Court, from a judgment or order referred to in subsection (2).
14W(4) [No appeal except as provided]Except as provided in subsection (2) or (3), no appeal lies from a judgment or order referred to in subsection (2).
SECTION 14X 14X ORDERS OF COURT ON APPEALA court hearing an appeal under section 14V against the making of a departure prohibition order may, in its discretion:
(a) make an order setting aside the departure prohibition order; or
(b) dismiss the appeal. SECTION 14Y APPLICATIONS FOR REVIEW OF CERTAIN DECISIONS 14Y(1)
Applications may be made to the Tribunal for review of decisions of the Commissioner under section 14T or 14U.
14Y(2)
In subsection (1), decision has the same meaning as in the Administrative Review Tribunal Act 2024.
Division 4 - Enforcement
Where an authorised officer believes on reasonable grounds that:
(a) a person is about to depart from Australia for a foreign country;
(b) a departure prohibition order is in force in respect of the person; and
(c) the departure is not authorised by a departure authorisation certificate;
the authorised officer may:
(d) take such steps as are reasonably necessary to prevent the departure of the person, including, but without limiting the generality of the foregoing, steps to prevent the person going on board, or steps to remove the person from, a vessel or aircraft in which the authorised officer believes on reasonable grounds the departure will take place; and
(e) require the person to answer questions or produce documents to the authorised officer, or both, for the purposes of ascertaining whether:
(i) a departure prohibition order is in force in respect of the person; and
(ii) if a departure prohibition order is in force in respect of the person - the departure of the person from Australia for a foreign country is authorised by a departure authorisation certificate.
14Z(2)
A person who refuses or fails, when and as required to do so pursuant to subsection (1), to answer a question or produce a document, commits an offence punishable on conviction by a fine not exceeding 10 penalty units.
14Z(2A)
Subsection (2) does not apply to the extent that the person has a reasonable excuse.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (2A), see subsection 13.3(3) of the Criminal Code.
14Z(3)
(Repealed by No 146 of 2001)
14Z(4)
Section 8C does not apply in relation to a requirement made pursuant to subsection (1) of this section.
14Z(5)
Subsection 8K(1) and (1B) and section 8N do not apply in relation to an answer given to a question asked, or a document produced, pursuant to subsection (1).
SECTION 14ZA CERTAIN TAX DEBTORS TO PRODUCE AUTHORITY TO DEPART ETC. 14ZA(1) [Authorisation to be produced]
(a) a person in respect of whom a departure prohibition order is in force is about to depart from Australia for a foreign country; and
(b) the departure is authorised by a departure authorisation certificate;
the person shall, if required to do so pursuant to this subsection by an authorised officer, produce a copy of the departure authorisation certificate for inspection by the authorisedofficer.
Penalty: 5 penalty units.
An offence under subsection (1) is an offence of strict liability.
Note:
For strict liability , see section 6.1 of the Criminal Code.
Section 8C does not apply in relation to a requirement made pursuant to subsection (1) of this section.
PART IVAAA - PUBLIC RULINGS(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
14ZAL
(Repealed) SECTION 14ZAL DEALING WITH APPLICATION
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
This Part applies if a provision of an Act or a legislative instrument (including the provision as applied by another Act) provides that a person who is dissatisfied with an assessment, determination, notice or decision, or with a failure to make a private ruling, may object against it in the manner set out in this Part.
14ZL(2)
Such an objection is in this Part called a taxation objection .
SECTION 14ZM 14ZM DIVISION 2 - INTERPRETIVE
Division 2 contains interpretive provisions necessary for this Part.
Division 3 describes how taxation objections are to be made and how they are to be dealt with by the Commissioner.
Division 4 contains provisions about applications to the Tribunal for review of decisions by the Commissioner in relation to certain taxation objections and requests for extension of time.
Division 5 contains provisions about appeals to the Federal Court against decisions by the Commissioner in relation to certain taxation objections.
In this Part:
AAT
(Repealed by No 38 of 2024)
AAT Act
(Repealed by No 38 of 2024)
AAT extension application
(Repealed by No 38 of 2024)
appealable objection decision
(Repealed by No 88 of 2009)
ART
means the Administrative Review Tribunal.
ART Act
means the Administrative Review Tribunal Act 2024.
ART extension application
means an application under section 19 of the ART Act to extend the period during which an application may be made to the ART for review of a reviewable objection decision or an extension of time refusal decision.
delayed administration (beneficiary) objection
means a taxation objection made under:
(a) (Repealed by No 44 of 2000)
(b) subsection 220(3) of the Income Tax Assessment Act 1936 (including that subsection as applied by any other Act); or
(c) (Repealed by No 101 of 2006)
(d) (Repealed by No 44 of 2000)
(e)-(ea) (Repealed by No 101 of 2006)
(eb) (Repealed by No 44 of 2000)
(f) (Repealed by No 101 of 2006)
(g) subsection 260-145(5) in Schedule 1 (because of paragraph (a) of that subsection).
delayed administration (trustee) objection
means a taxation objection made under:
(a) subsection 220(7) of the Income Tax Assessment Act 1936 (including that subsection as applied by any other Act); or
(b) subsection 260-145(5) in Schedule 1 (because of paragraph (b) of that subsection).
(c) (Repealed by No 143 of 2007)
(d) (Repealed by No 44 of 2000)
(e)-(ea) (Repealed by No 143 of 2007)
(eb) (Repealed by No 44 of 2000)
(f) (Repealed by No 143 of 2007)
extension of time refusal decision
means a decision of the Commissioner under subsection 14ZX(1) to refuse a request by a person.
Family Court
(Repealed by No 13 of 2021)
Family Court Judge
(Repealed by No 13 of 2021)
Federal Court
means the Federal Court of Australia.
franking assessment
(Repealed by No 21 of 2015)
guidance and appeals panel
has the same meaning as in the ART Act.
ineligible income tax remission decision
(Repealed by No 41 of 2011)
ineligible sales tax remission decision
(Repealed by No 101 of 2006)
objection decision
(Repealed by No 39 of 2012)
private ruling
(Repealed by No 74 of 2010)
registration-type sales tax decision
(Repealed by No 101 of 2006)
reviewable objection decision
means an objection decision that is not an ineligible income tax remission decision.
Sales Tax Assessment Act
(Repealed by No 101 of 2006)
small business taxation assessment decision
means a taxation decision that is:
(a) an assessment of tax-related liabilities (as defined in section 255-1 in Schedule 1) relating in whole or in part to carrying on a business; and
(b) made in relation to a small business entity (within the meaning of the Income Tax Assessment Act 1997).
starting base assessment
(Repealed by No 15 of 2017)
taxation decision
means the assessment, determination, notice or decision against which a taxation objection may be, or has been, made.
taxation objection
has the meaning given by section 14ZL.
If:
(a) a provision of an Act (including a provision as applied by another Act) provides that a person who is dissatisfied with a taxation decision may object against it in the manner set out in this Part; and
(b) a notice incorporates notice of 2 or more such taxation decisions;
then, for the purposes of the provision and of this Part, the taxation decisions are taken to be one taxation decision.
14ZR(2)
If:
(a) under subsection (1), 2 or more taxation decisions are taken to be a single taxation decision (in this subsection called the deemed single taxation decision ); and
(b) the Commissioner makes an objection decision in relation to the deemed single taxation decision; and
(c) the objection decision is to any extent an ineligible income tax remission decision;
then, this Part has effect, in relation to any review or appeal, as if so much of the objection decision as consists of one or more ineligible income tax remission decisions were taken to be a separate objection decision.
(d)-(e) (Repealed by No 101 of 2006)
SECTION 14ZS INELIGIBLE INCOME TAX REMISSION DECISIONS 14ZS(1)
An objection decision is an ineligible income tax remission decision if it relates to the remission of additional tax payable by a taxpayer under the Income Tax Assessment Act 1936 (other than Division 11 of former Part IIIAA), except where the additional tax is payable under former section 163B, 224, 225, 226, 226G, 226H, 226J, 226K, 226L or 226M of that Act, whatever its amount, or is payable under a provision of former Part VII of that Act other than any of the preceding sections and its amount, after the decision is made, exceeds:
(a) in the case of additional tax payable under former section 222 of that Act because of the refusal or failure to furnish a return, or any information, relating to a year of income - the amount calculated, in respect of the period commencing on the last day allowed for furnishing the return or information and ending on:
(i) the day on which the return or information is furnished; or
whichever first happens, at the rate of 20% per year of the tax properly payable by the taxpayer in respect of the year of income; or
(ii) the day on which the assessment of the additional tax is made;
(b) (Omitted by No 101 of 1992)
(c) (Omitted by No 101 of 1992)
(d) if the amount calculated in accordance with paragraph (a) is less than $20 - $20.
14ZS(2)
A reference in this section to a provision of the Income Tax Assessment Act 1936 includes a reference to that provision as applied by any other Act.
14ZS(3)
(Omitted by No 101 of 1992)
14ZS(4)
(Omitted by No 101 of 1992)
(Repealed by No 101 of 2006)
A person making a taxation objection must:
(a) make it in the approved form; and
(b) lodge it with the Commissioner within the period set out in section 14ZW; and
(c) state in it, fully and in detail, the grounds that the person relies on.
Note:
A person who objects against the Commissioner's failure to make a private ruling must lodge a draft private ruling with the objection: see subsection 359-50(4).
If the taxation objection is made against a taxation decision, being an assessment or determination that has been amended in any particular, then a person's right to object against the amended assessment or amended determination is limited to a right to object against alterations or additions in respect of, or matters relating to, that particular.
If there has been a taxation objection against: (a) a private ruling; or (aa) a determination under subsection 820-423D(2) of the Income Tax Assessment Act 1997; or (b) a determination under subsection 960-555(3) of the Income Tax Assessment Act 1997; or (c) a determination under subsection 136-10(1) in Schedule 1 to this Act (about excess transfer balance);
the right of objection under this Part against an assessment, or against a decision made under an indirect tax law or an excise law, relating to the matter ruled or determined is limited to a right to object on grounds that neither were, nor could have been, grounds for the taxation objection against the ruling or determination.
Taxation decisions to which section applies
14ZVB(1)
This section applies to the following taxation decisions:
(a) an assessment against which a taxation objection may be made under section 175A of the Income Tax Assessment Act 1936;
(b) an excess concessional contributions determination;
(c) a determination under section 291-465 of the Income Tax Assessment Act 1997;
(d) a decision not to make a determination under that section;
(e) 2 or more taxation decisions that are taken to be a single taxation decision under subsection (2).
Decisions treated as single decision for common objection ground
14ZVB(2)
If:
(a) a person makes a taxation objection at a particular time, on a particular ground, against a taxation decision to which this section applies; and
(b) at that time, the person also objects, or could also object, on that ground, against another taxation decision to which this section applies;
then, for the purposes of this Part, those taxation decisions are taken to be one taxation decision.
Limited objection rights because of earlier objection
14ZVB(3)
A person cannot object under this Part against a taxation decision to which this section applies on a particular ground if:
(a) the ground was a ground for an objection the person has made against another decision to which this section applies; or
(b) the ground could have been a ground for an objection the person has made against another decision to which this section applies.
Taxation decisions to which section applies
14ZVC(1)
This section applies to the following taxation decisions:
(a) an assessment against which a taxation objection may be made under section 175A of the Income Tax Assessment Act 1936;
(b) an excess non-concessional contributions determination (within the meaning of the Income Tax Assessment Act 1997);
(c) an assessment against which a taxation objection may be made under section 292-245 of the Income Tax Assessment Act 1997;
(d) a determination under section 292-465 of the Income Tax Assessment Act 1997, or a decision not to make a determination under that section;
(e) a direction under section 292-467 of the Income Tax Assessment Act 1997, or a decision not to make a direction under that section;
(f) 2 or more taxation decisions that are taken to be a single taxation decision under subsection (2).
Decisions treated as single decision for common objection ground
14ZVC(2)
If:
(a) a person makes a taxation objection at a particular time, on a particular ground, against a taxation decision to which this section applies; and
(b) at that time, the person also objects, or could also object, on that ground, against another taxation decision to which this section applies;
then, for the purposes of this Part, those taxation decisions are taken to be a single taxation decision.
Limited objection rights because of earlier objection
14ZVC(3)
A person cannot object under this Part against a taxation decision to which this section applies on a particular ground if:
(a) the ground was a ground for an objection the person has made against another decision to which this section applies; or
(b) the ground could have been a ground for an objection the person has made against another decision to which this section applies.
Subject to this section, the person must lodge the taxation objection with the Commissioner within: (aa) if the taxation objection is made under section 175A of the Income Tax Assessment Act 1936:
(i) if item 1, 2, 3 or 3A of the table in subsection 170(1) of that Act applies to the assessment concerned - 2 years after notice of the assessment is given to the person; or
(aaa) if the taxation objection is made under section 78A of the Fringe Benefits Tax Assessment Act 1986 or former section 160AL of the Income Tax Assessment Act 1936 - 4 years after notice of the taxation decision to which it relates has been given to the person; or (aaaa) if the taxation objection is made under subsection 112-36(5) or 116-120(5) of the Income Tax Assessment Act 1997 - 60 days after the notice mentioned in paragraph (b) of that subsection is given to the person; or (aab) if the taxation objection is made under section 292-245 of the Income Tax Assessment Act 1997 - 4 years after notice of the assessment concerned is given to the person; or (aac) if the taxation objection is made under section 97-10 in Schedule 1 on a particular ground - within the same period that the person:
(ii) otherwise - 4 years after notice of the assessment concerned is given to the person; or
(i) must lodge a taxation objection on that ground under section 175A of the Income Tax Assessment Act 1936; or
(aaca) if the taxation objection is made on a particular ground under any of the following provisions:
(ii) would be required to lodge such a taxation objection, if, disregarding subsection 175A(2) of that Act, one could be made; or
(i) section 175A of the Income Tax Assessment Act 1936;
(ii) section 97-35 in Schedule 1 to this Act;
within the same period that the person must lodge a taxation objection on that ground under section 292-245 of the Income Tax Assessment Act 1997; or (aad) if the taxation objection is made under subsection 8AAZLGA(6) of this Act (retaining refunds while Commissioner verifies information) - the period:
(iii) section 292-245, 292-465 or 292-467 of the Income Tax Assessment Act 1997;
(i) starting at the end of the 60 day period after the end of the day before which, under subsection 8AAZLGA(3), the Commissioner is required to inform the entity mentioned in section 8AAZLGA that the Commissioner has retained an amount under that section; and
(aae) if the taxation objection is made under subsection 8AAZLGB(4) of this Act (retaining refunds until notification under Division 389 or ascertainment of liability) - the period:
(ii) ending on the day (if any) on which there is a change, of a kind mentioned in paragraph 8AAZLGA(5)(c), to how much the Commissioner is required to refund in relation to the amount; or
(i) starting at the end of the 60 day period after the end of the day before which, under subsection 8AAZLGB(2), the Commissioner is required to inform the entity mentioned in section 8AAZLGB that the Commissioner has retained an amount under that section; and
(ab) if the taxation objection is a delayed administration (beneficiary) objection made under subsection 260-145(5) in Schedule 1 (because of paragraph (a) of that subsection) or subsection 220(3) of the Income Tax Assessment Act 1936 (not including that subsection as applied by any other Act) - 4 years after notice of the taxation decision to which it relates has been first published; or (ac) if the taxation objection is a delayed administration (trustee) objection made under subsection 260-145(5) in Schedule 1 (because of paragraph (b) of that subsection) or subsection 220(7) of the Income Tax Assessment Act 1936 (not including that subsection as applied by any other Act) - 4 years after probate of the will, or letters of administration of the estate, of the deceased person concerned has been granted; or (a) if the taxation objection is a delayed administration (beneficiary) objection to which paragraph (ab) does not apply - 60 days after notice of the taxation decision to which it relates has been first published; or (b) if the taxation objection is a delayed administration (trustee) objection to whichparagraph (ac) does not apply - 60 days after probate of the will, or letters of administration of the estate, of the deceased person concerned has been granted; or (ba) if the taxation objection is an objection under subsection 359-50(3) in Schedule 1 against the Commissioner's failure to make a private ruling - 60 days after the end of the period of 30 days referred to in that subsection; or (bb) if the taxation objection is made under section 66 of the Petroleum Resource Rent Tax Assessment Act 1987 to an assessment under that Act - 4 years after notice of the assessment is given to the person; or
(ii) ending on the day (if any) on which, under subsection 8AAZLGB(3), the Commissioner ceases to be entitled to retain the amount; or
(bc) (Repealed by No 93 of 2011) (bd) if the taxation objection is made under section 20P of the Superannuation (Unclaimed Money and Lost Members) Act 1999 against a notice given to a superannuation provider under section 20C of that Act and the person is not the superannuation provider - 2 years after the notice was given to the superannuation provider; or (be) if the taxation objection is made under section 20P of the Superannuation (Unclaimed Money and Lost Members) Act 1999 against a decision under Division 4 or 5 of Part 3A of that Act and the person is not a superannuation provider (as defined in that Act) - 2 years after the person was given notice of the decision; or (bf) if the taxation objection is made under subsection 155-30(2) in Schedule 1 to this Act - 60 days after the end of the period of 30 days mentioned in that subsection; or (bg) if the taxation objection is made under Subdivision 155-C in Schedule 1 to this Act and neither paragraph (bga) nor paragraph (bgb) applies to the objection - the period mentioned in paragraph 155-35(2)(a) in that Schedule in relation to the assessment concerned; or (bga) if the taxation objection is made under Subdivision 155-C in Schedule 1 to this Act in relation to an assessment of an amount of Laminaria and Corallina decommissioning levy - 60 days after notice of the assessment has been given to the person; or (bgb) if the taxation objection is made under Subdivision 155-C in Schedule 1 to this Act in relation to an assessment of an amount of Australian IIR/UTPR tax or Australian DMT tax - 60 days after notice of the assessment has been given to the person; or
(bh) (Repealed by No 34 of 2014) (bi) if the taxation objection is made under section 265-110 in Schedule 1 to this Act (about directions to pay superannuation guarantee charge) - the period specified for the purposes of paragraph 265-90(3)(c) in the direction given to the person (subject to subsection 265-115(2)); or (bj) if the taxation objection is made under section 384-40 in Schedule 1 to this Act (about education directions) - the period specified for the purposes of subsection 384-15(2) in the direction given to the person (subject to subsection 384-35(7)); or (c) in any other case - 60 days after notice of the taxation decision to which it relates has been served on the person.
14ZW(1AAA)
(Repealed by No 39 of 2012)
14ZW(1AAB)
(Repealed by No 39 of 2012)
14ZW(1AABA)
(Repealed by No 39 of 2012)
14ZW(1AAC)
The person cannot lodge a taxation objection against a private indirect tax ruling after the end of whichever of the following ends last: (a) 60 days after the ruling was made; (b) 4 years after the last day allowed to the person for lodging a return relating to the assessment of the assessable amount to which the ruling relates.
14ZW(1A)
The person cannot lodge a taxation objection against a private ruling (other than a private indirect tax ruling, or a ruling that relates to an excise law) that relates to a year of income after the end of whichever of the following ends last: (a) 60 days after the ruling was made; (b) whichever of the following is applicable:
(i) if item 1, 2, 3 or 3A of the table in subsection 170(1) of the Income Tax Assessment Act 1936 applies to the person's assessment for that income year - 2 years after the last day allowed to the person for lodging a return in relation to the person's income for that year of income;
(ii) otherwise - 4 years after that day.
14ZW(1AB)
(Repealed by No 96 of 2014)
14ZW(1AC)
(Repealed by No 96 of 2014)
14ZW(1AA)
The person cannot lodge a taxation objection against a private ruling that relates to a year of tax and a petroleum project under the Petroleum Resource Rent Tax Assessment Act 1987 after the end of whichever of the following ends last: (a) the 60 days after the ruling was made; (b) the 4 years after the last day allowed to the person for lodging a return in relation to the year of tax and the project.
14ZW(1B)
If: (a) section 14ZV applies to a taxation objection; and (b) apart from this subsection, subparagraph (1)(aa)(ii) or paragraph (1)(aaa), (aab), (ab), (ac), (bb), (bf) or (bg) would apply to the taxation objection;
the person must lodge the taxation objection before the end of whichever of the following ends last:
(c) the 4 years after notice of the assessment or determination that has been amended by the amended assessment or amended determination to which the taxation objection relates has been served on the person; (d) the 60 days after the notice of the amended assessment or amended determination to which the taxation objection relates has been served on the person.14ZW(1BA)
If: (a) section 14ZV applies to a taxation objection; and (b) apart from this subsection, subparagraph (1)(aa)(i) would apply to the taxation objection;
the person must lodge the taxation objection before the end of whichever of the following ends last:
(c) 2 years after notice of the assessment or determination that has been amended by the amended assessment or amended determination to which the taxation objection relates has been served on the person; (d) 60 days after the notice of the amended assessment to which the taxation objection relates has been served on the person.14ZW(1BB)
If: (a) the taxation objection is against an assessment by the Commissioner of the amount of an administrative penalty under Division 284; and (b) that penalty relates to an assessment of the person; and (c) the person has longer than 60 days to lodge a taxation objection against the assessment referred to in paragraph (b);
the person must lodge the taxation objection within that longer period.
14ZW(1C)
For the purposes of paragraph (1B)(c), if an assessment or determination has been amended more than once, the notice is the notice of the first assessment or determination in relation to the year of income, franking year or year of tax, as the case requires.
14ZW(1D)
(Repealed by No 54 of 2003)
14ZW(2)
If the period within which an objection by a person is required to be lodged has passed, the person may nevertheless lodge the objection with the Commissioner together with a written request asking the Commissioner to deal with the objection as if it had been lodged within that period.
14ZW(3)
The request must state fully and in detail the circumstances concerning, and the reasons for, the person's failure to lodge the objection with the Commissioner within the required period.
14ZW(4)
The 60 day period mentioned in subparagraph (1)(aad)(i) (including the period as extended by a previous application of this subsection) is extended by the number of days during that period in relation to which the following paragraphs apply: (a) on or before the day, but during the period, the Commissioner requests information from the entity for the purposes of verifying the notified information mentioned in section 8AAZLGA; (b) the Commissioner does not receive the requested information before the day.
SECTION 14ZX COMMISSIONER TO CONSIDER APPLICATIONS FOR EXTENSION OF TIME 14ZX(1) [Commissioner's decision]
After considering the request, the Commissioner must decide whether to agree to it or refuse it.
14ZX(2) [Notice]The Commissioner must give the person written notice of the Commissioner's decision.
14ZX(3) [Request granted]If the Commissioner decides to agree to the request, then, for the purposes of this Part, the objection is taken to have been lodged with the Commissioner within the required period.
If the Commissioner decides to refuse the request, the person may apply to the Tribunal for review of the decision.
Subject to subsection (1A), if the taxation objection has been lodged with the Commissioner within the required period, the Commissioner must decide whether to:
(a) allow it, wholly or in part; or
(b) disallow it.
14ZY(1A)
If the taxation objection is an objection under subsection 359-50(3) in Schedule 1 against the Commissioner's failure to make a private ruling, the Commissioner must:
(a) make a private ruling in the same terms as the draft ruling lodged with the objection; or
(b) makea different private ruling.
14ZY(1B)
If the taxation objection is an objection under subsection 155-30(2) in Schedule 1 against the Commissioner's failure to make an assessment of an assessable amount, the Commissioner must decide to make an assessment of the assessable amount.
14ZY(2)
A decision of the Commissioner mentioned in subsection (1), (1A) or (1B) is an objection decision .
14ZY(3)
The Commissioner must cause to be served on the person written notice of the Commissioner's objection decision.
This section applies if the taxation objection (other than one under subsection 155-30(2) or 359-50(3) in Schedule 1) has been lodged with the Commissioner within the required period and the Commissioner has not made an objection decision by whichever is the later of the following times:
(a) the end of the period (in this section called the original 60-day period ) of 60 days after whichever is the later of the following days:
(i) the day on which the taxation objection is lodged with the Commissioner;
(ii) if the Commissioner decides under section 14ZX to agree to a request in relation to the taxation objection - the day on which the decision is made;
(b) if the Commissioner, by written notice served on the person within the original 60-day period, requires the person to give information relating to the taxation objection - the end of the period of 60 days after the Commissioner receives that information.
14ZYA(2)
The person may give the Commissioner a written notice requiring the Commissioner to make an objection decision.
14ZYA(3)
If the Commissioner has not made an objection decision by the end of the period of 60 days after being given the notice, then, at the end of that period, the Commissioner is taken to have made a decision under subsection 14ZY(1) to disallow the taxation objection.
This section applies if the taxation objection is an objection under subsection 155-30(2) or 359-50(3) in Schedule 1 and the Commissioner has not made an objection decision by the end of 60 days after the later of these days:
(a) the day on which the taxation objection was lodged with the Commissioner;
(b) if the Commissioner decides under section 14ZX to agree to a request in relation to the taxation objection - the day on which the decision was made.
Note 1:
Subsection 155-30(2) provides for objections against the Commissioner's failure to make an assessment of an assessable amount.
Note 2:
Subsection 359-50(3) provides for objections against the Commissioner's failure to make a private ruling.
14ZYB(2)
The Commissioner is taken, at the end of that 60 day period, to have disallowed the objection.
SECTION 14ZZ PERSON MAY SEEK REVIEW OF, OR APPEAL AGAINST, COMMISSIONER'S DECISION 14ZZ(1)
If the person is dissatisfied with the Commissioner's objection decision (including a decision under paragraph 14ZY(1A)(b) to make a different private ruling), the person may:
(a) if the decision is a reviewable objection decision - either:
(i) apply to the Tribunal for review of the decision; or
(ii) appeal to the Federal Court against the decision; or
(b) otherwise - appeal to the Federal Court against the decision.
(c) (Repealed by No 88 of 2009)
14ZZ(2)
Treat a reference in subsection (1) to appealing to the Federal Court as being a reference to appealing to a designated court (within the meaning of the Australian Charities and Not-for-profits Commission Act 2012) if:
(a) the person may appeal to the designated court against an objection decision under that Act (the ACNC objection decision ); and
(b) the objection decision mentioned in subsection (1) (the taxation objection decision ) and the ACNC objection decision are related, or it would be efficient for the designated court to consider the decisions together.
Note:
In the Australian Charities and Not-for-profits Commission Act 2012, designated court means the Federal Court of Australia or a Supreme Court of a State or Territory that has jurisdiction in relation to matters arising under that Act.
14ZZ(3)
An appeal to the designated court against the taxation objection decision must be made together with the appeal against the ACNC objection decision as mentioned in section 170-30 of the Australian Charities and Not-for-profits Commission Act 2012, if the designated court is not the Federal Court.
Division 4 - ART review of objection decisions and extension of time refusal decisions
The ART Act applies in relation to: (a) the review of reviewable objection decisions; and (b) the review of extension of time refusal decisions; and (c) ART extension applications;
subject to this Division.
14ZZA(2)
Subsection (3) applies if the ART President refers to the guidance and appeals panel under section 128 of the ART Act a decision made by the ART to affirm, vary or set aside either of the following decisions (each of which is an original decision ): (a) a reviewable objection decision; (b) an extension of time refusal decision.
14ZZA(3)
The ART Act, as modified by this Division (other than by the provisions mentioned in subsection (4)), applies in relation to: (a) the application for review that is taken to be made under subsection 130(2) of that Act; and (b) the review of the decision made by the ART;
in the same way as it applies to the review of, and the application for review of, the original decision.
14ZZA(4)
The provisions are: (a) subsections 14ZZB(1) to (4); and (b) section 14ZZC; and (c) subsections 14ZZF(1) and (2).
Section 268 (requesting reasons for reviewable decision from decision-maker) of the ART Act does not apply in relation to a reviewable objection decision that has been taken to have been made under subsection 14ZYA(3) or 14ZYB(2) of this Act.
14ZZB(2)
Sections 17 (who can apply) and 18 (when to apply - general rule) of the ART Act do not apply inrelation to: (a) a reviewable objection decision; or (b) an extension of time refusal decision.
14ZZB(3)
The President of the ART may allow a longer period to make an application to refer a decision of the ART on the review of a reviewable objection decision or an extension of time refusal decision to the guidance and appeals panel under section 125 (when to apply to refer Tribunal decision) of the ART Act only if the request for a longer period is made before the period for making the application has expired.
14ZZB(4)
If the President of the ART decides to allow a longer period under section 125 of the ART Act (as modified by subsection (4) of this section), the President of the ART must notify the Commissioner as soon as practicable after making the decision.
14ZZB(5)
Section 32 (reviewable decision continues to operate unless Tribunal orders otherwise) of the ART Act does not apply in relation to: (a) a reviewable objection decision; or (b) an extension of time refusal decision.
14ZZB(6)
However, despite subsection (5), section 32 (reviewable decision continues to operate unless Tribunal orders otherwise) of the ART Act applies in relation to a reviewable objection decision that relates to a small business taxation assessment decision, subject to the modifications set out in section 14ZZH of this Act.
14ZZB(7)
Section 127 (Tribunal decision continues to operate unless Tribunal orders otherwise) of the ART Act does not apply in relation to a reviewable objection decision or an extension of time refusal decision.
14ZZB(7A)
However, despite subsection (7), section 127 (Tribunal decision continues to operate unless Tribunal orders otherwise) of the ART Act applies in relation to a reviewable objection decision that relates to a small business taxation assessment decision, subject to the modifications set out in section 14ZZH of this Act.
14ZZB(8)
Section 178 (operation and implementation of Tribunal's decision) of the ART Act does not apply in relation to a reviewable objection decision.
Despite section 18 (when to apply - general rule) of the ART Act, an application to the ART for review of a reviewable objection decision must be made within 60 days after the person making the application is served with notice of the decision.
Note:
A person may, under section 19 of the ART Act, apply to the ART to extend the period.
14ZZC(2)
Despite subsection 34(1) of the ART Act, an application to the ART for a review of a decision must be in writing.
14ZZC(3)
An application to the ART for a review of a decision must set out a statement of the reasons for the application.
14ZZC(4)
Subsection (3) of this section applies in addition to subsection 34(2) of the ART Act.
Note:
Subsection 34(2) of the ART Act requires applications to include the information specified for the application in practice directions made by the President of the ART.
14ZZC(5)
A failure to comply with subsection (3) does not affect the validity of the application.
Despite paragraph 22(1)(c) of the ART Act: (a) a person (the affected person ) whose interests are affected by a reviewable objection decision or an extension of time refusal decision may apply to become a party to a proceeding for review of the decision; and (b) the ART may make the affected person a party to the proceeding only if the ART is satisfied that the applicant for review of the decision consents.
Despite section 69 (hearings to be in public unless practice directions or Tribunal order requires otherwise) of the ART Act, the hearing of a proceeding before the ART for: (a) a review of a reviewable objection decision; or (b) a review of an extension of time refusal decision; or (c) an ART extension application;
is to be in private if the party who made the application requests that it be in private.
Section 23 (decision-maker must give Tribunal reasons and documents - general rule) of the ART Act does not apply in relation to an application for review of a reviewable objection decision.
14ZZF(2)
Instead, the decision-maker of a reviewable objection decision must give the ART the following documents within 28 days after the ART notifies the decision-maker of the application for review of the decision: (a) a statement giving the reasons for the decision; (b) the notice of the taxation decision concerned; (c) the taxation objection concerned; (d) the notice of the objection decision; (e) every other document that is:
(i) in the Commissioner's possession or under the Commissioner's control; and
(f) a list of the documents (if any) being given under paragraph (e).
(ii) considered by the Commissioner to be necessary to the review of the objection decision concerned;
14ZZF(3)
Section 25 (decision-maker must give Tribunal additional documents within 28 days - general rule) of the ART Act does not apply in relation to the ART's review of a reviewable objection decision.
14ZZF(4)
Instead, if: (a) at any time during the ART's review of a reviewable objection decision a document that is necessary to the review comes into the possession or under the control of the decision-maker; and (b) the document has not been given to the ART for the purposes of the review;
the decision-maker must give a copy of the document to the ART within 28 days after the day on which the document came into the possession or under the control of the decision-maker.
14ZZF(5)
In addition to subsection (4), if, at any time during the ART's review of a reviewable objection decision, the ART is satisfied that documents that may be relevant to the review are in the possession or under the control of the decision-maker of the reviewable objection decision, the Tribunal may require the decision-maker to give a list of those documents to the Tribunal within a specified period.
14ZZF(6)
To avoid doubt, the ART's power in subsection (5) of this section is in addition to the ART's power in section 26 (decision-maker must give Tribunal additional documents on request - general rule) of the ART Act.
14ZZF(7)
For the purposes of the ART Act: (a) the requirement to give a statement giving the reasons for the decision under paragraph (2)(a) of this section is taken to be the requirement to give a statement of reasons for the decision under paragraph 23(a) of that Act; and (b) the requirement to give other documents under subsection (2), (4) or (5) of this section is taken to be the requirement to give other documents under Subdivision B of Division 4 of Part 3 of that Act; and (c) a statement giving the reasons for a decision, given under subsection (2) of this section, is taken to have been given under paragraph 23(a) of that Act; and (d) any other document, given under subsection (2), (4) or (5) of this section, is taken to have been given under Subdivision B of Division 4 of Part 3 of that Act.
Note:
As a result of this subsection, the decision-maker must, under section 27 of the ART Act, give a copy of the statement or documents to each other party to the proceedings within the relevant period. Also, exceptions under sections 28 and 29 of that Act in relation to giving documents might apply, and under section 24 of that Act the ART may order the decision-maker to give the ART further information.
(Repealed by No 38 of 2024)
This section applies if: (a) a party to a proceeding for review of a reviewable objection decision that relates to a small business taxation assessment decision applies for:
(i) an order staying or otherwise affecting the operation or implementation of the decision; or
(b) the party requesting the order is not the Commissioner of Taxation.
(ii) an order varying or revoking such an order; and
14ZZH(2)
Despite the ART Act, the ART must not make the order unless the party satisfies the ART that, when considered in the context of both the particular circumstances of the decision under review and the overall taxation system, the application for review and the request for making the order are not frivolous, vexatious, misconceived, lacking in substance or otherwise intended to unduly impede, prejudice or restrict the proper administration or operation of a taxation law.
Note 1:
The kind of orders that the ART may make include the following:
Note 2:
However, an order that would materially and permanently alter the decision under review would not be an order staying or otherwise affecting the operation or implementation of such a decision for the purpose of securing the effectiveness of the hearing and determination of the application for review. For example:
This section applies in relation to: (a) a review of a reviewable objection decision; and (b) a review of an extension of time refusal decision; and (c) an ART extension application.
14ZZJ(2)
If: (a) a hearing of a proceeding for the review of the decision or the application is not conducted in public; and (b) a notice of appeal has not been lodged with the Federal Court;
the ART must ensure, as far as practicable, that its decision and the reasons for it are framed so as not to be likely to enable the identification of the person who made the application.
On an application for review of a reviewable objection decision: (a) the applicant is, unless the ART orders otherwise, limited to the grounds stated in the taxation objection to which the decision relates; and (b) the applicant has the burden of proving:
(i) if the taxation decision concerned is an assessment - that the assessment is excessive or otherwise incorrect and what the assessment should have been; or
(ii) in any other case - that the taxation decision concerned should not have been made or should have been made differently.
When the decision of the ART on the review of a reviewable objection decision or an extension of time refusal decision becomes final, the Commissioner must, within 60 days, take such action, including amending any assessment or determination concerned, as is necessary to give effect to the decision.
14ZZL(2)
For the purposes of subsection (1), if: (a) no appeal is lodged against the ART's decision within the period for lodging an appeal; and (b) no application to refer a decision of the ART to the guidance and appeals panel is made within the period for making the application;
the decision becomes final at the end of the period.
14ZZL(3)
For the purposes of paragraph (2)(b), the period for making an application to refer a decision of the ART to the guidance and appeals panel includes any extension of that period under section 125 of the ART Act.
The fact that a review is pending in relation to a taxation decision does not in the meantime interfere with, or affect, the decision and any tax, additional tax or other amount may be recovered as if no review were pending.
14ZZM(2)
However, the application of subsection (1) in relation to a small business taxation assessment decision is subject to any order made under subsection 32(2) of the ART Act.
Note:
An order made under subsection 32(2) of the ART Act is subject to section 14ZZH (limitation on orders staying or affecting reviewable objection decisions relating to small business taxation assessment decisions) of this Act.
An appeal to the Federal Court against an objection decision must be lodged with the Court within 60 days after the person appealing is served with notice of the decision.
In proceedings on an appeal under section 14ZZ to a court against an objection decision:
(a) the appellant is, unless the court orders otherwise, limited to the grounds stated in the taxation objection to which the decision relates; and
(b) the appellant has the burden of proving:
(i) if the taxation decision concerned is an assessment - that the assessment is excessive or otherwise incorrect and what the assessment should have been; or
(ii) in any other case - that the taxation decision should not have been made or should have been made differently.
Where a court hears an appeal against an objection decision under section 14ZZ, the court may make such order in relation to the decision as it thinks fit, including an order confirming or varying the decision.
When the order of the court in relation to the decision becomes final, the Commissioner must, within 60 days, take such action, including amending any assessment or determination concerned, as is necessary to give effect to the decision.
14ZZQ(2)
For the purposes of subsection (1):
(a) if the order is made by the court constituted by a single Judge and no appeal is lodged against the order within the period for lodging an appeal - the order becomes final at the end of the period; and
(b) if the order is made by the court constituted other than as mentioned in paragraph (a) and no application for special leave to appeal to the High Court against the order is made within the period of 30 days after the order is made - the order becomes final at the end of the period.
SECTION 14ZZR 14ZZR PENDING APPEAL NOT TO AFFECT IMPLEMENTATION OF TAXATION DECISIONS
The fact that an appeal is pending in relation to a taxation decision does not in the meantime interfere with, or affect, the decision and any tax, additional tax or other amount may be recovered as if no appeal were pending.
If: (a) a proceeding is pending in the Federal Court on an appeal under section 14ZZ in relation to an objection decision; and (b) the taxation decision to which the objection decision relates was made under the Income Tax Assessment Act 1936;
the Federal Court may, on the application of a party to the proceeding or on its own initiative, transfer the proceeding to the Federal Circuit and Family Court of Australia (Division 1).
14ZZS(2)
Subject to subsection (3), if the proceeding is transferred to the Federal Circuit and Family Court of Australia (Division 1): (a) the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to hear and determine the proceeding; and (b) the Federal Circuit and Family Court of Australia (Division 1) also has jurisdiction to hear and determine matters not otherwise within its jurisdiction (whether because of paragraph (a) or otherwise):
(i) that are associated with matters arising in the proceeding; or
(c) the Federal Circuit and Family Court of Australia (Division 1) may, in and in relation to the proceeding:
(ii) that, apart from subsection 32(1) of the Federal Court of Australia Act 1976, the Federal Court would have had jurisdiction to hear and determine in the proceeding; and
(i) grant such remedies; and
(ii) make orders of such kinds; and
as the Federal Court could have granted, made, issued or directed the issue of, as the case may be, in and in relation to the proceeding; and (d) remedies, orders and writs granted, made or issued by the Federal Circuit and Family Court of Australia (Division 1) in and in relation to the proceeding have effect, and may be enforced by the Federal Circuit and Family Court of Australia (Division 1), as if they had been granted, made or issued by the Federal Court; and (e) appeals lie from judgments of the Federal Circuit and Family Court of Australia (Division 1) given in and in relation to the proceeding as if the judgments were judgments of the Federal Court constituted by a single Judge of that Court, and do not otherwise lie; and (f) subject to paragraphs (a) to (e) (inclusive), this Act, the regulations, the Federal Court of Australia Act 1976, the Rules of the Court made under that Act, and other laws of the Commonwealth, apply in and in relation to the proceeding as if:
(iii) issue, and direct the issue of, writs of such kinds;
(i) a reference to the Federal Court (other than in the expression "the Court or a Judge") included a reference to the Federal Circuit and Family Court of Australia (Division 1); and
(ii) a reference to a Judge of the Federal Court (other than in the expression "the Court or a Judge") included a reference to a Judge of the Federal Circuit and Family Court of Australia (Division 1); and
(iii) a reference to the expression "the Court or a Judge" when used in relation to the Federal Court included a reference to a Judge of the Federal Circuit and Family Court of Australia (Division 1) sitting in Chambers; and
(iv) a reference to a Registrar of the Federal Court included a reference to a Registrar of the Federal Circuit and Family Court of Australia (Division 1); and
(v) any other necessary changes were made.
14ZZS(3)
If any difficulty arises in the application of paragraphs (2)(c), (d) and (f) in or in relation to a particular proceeding, the Federal Circuit and Family Court of Australia (Division 1) may, on the application of a party to the proceeding or on its own initiative, give such directions, and make such orders, as it considers appropriate to resolve the difficulty.
14ZZS(4)
An appeal does not lie from a decision of the Federal Court in relation to the transfer of a proceeding under this Part to the Federal Circuit and Family Court of Australia (Division 1).
A disclosure of information by an individual (the discloser ) qualifies for protection under this Part if: (a) the discloser is an eligible whistleblower in relation to an entity (within the meaning of the Income Tax Assessment Act 1997); and (b) the disclosure is made to the Commissioner; and (c) the discloser considers that the information may assist the Commissioner to perform his or her functions or duties under a taxation law in relation to the entity or an associate (within the meaning of section 318 of the Income Tax Assessment Act 1936) of the entity.
14ZZT(1A)
A disclosure of information by an individual (the discloser ) qualifies for protection under this Part if: (a) the discloser is an eligible whistleblower in relation to an entity (within the meaning of the Income Tax Assessment Act 1997); and (b) the disclosure is made to:
(i) the Tax Practitioners Board; or
(c) the discloser considers that the information may assist the Tax Practitioners Board to perform its functions or duties under the Tax Agent Services Act 2009, or an instrument made under that Act, in relation to the entity or an associate (within the meaning of section 318 of the Income Tax Assessment Act 1936) of the entity.
(ii) the Commissioner; and
14ZZT(2)
A disclosure of information by an individual (the discloser ) qualifies for protection under this Part if: (a) the discloser is an eligible whistleblower in relation to an entity (within the meaning of the Income Tax Assessment Act 1997); and (b) the disclosure is made to an eligible recipient in relation to the entity; and (c) the discloser has reasonable grounds to suspect that the information indicates misconduct, or an improper state of affairs or circumstances, in relation to the tax affairs of the entity or an associate (within the meaning of section 318 of the Income Tax Assessment Act 1936) of the entity; and (d) the discloser considers that the information may assist the eligible recipient to perform functions or duties in relation to the tax affairs of the entity or an associate (within the meaning of section 318 of the Income Tax Assessment Act 1936) of the entity.
14ZZT(3)
A disclosure of information by an individual qualifies for protection under this Part if the disclosure is made to a legal practitioner for the purpose of obtaining legal advice or legal representation in relation to the operation of this Part.
14ZZT(3A)
A disclosure of information by an individual (the discloser ) qualifies for protection under this Part if the disclosure is made: (a) to an entity (within the meaning of the Income Tax Assessment Act 1997) that has one or more members, if:
(i) the entity is prescribed by the regulations; and
(b) for the purpose of obtaining assistance in relation to the operation of this Part.
(ii) the discloser is a member of the entity; and
14ZZT(3B)
A disclosure of information by an individual (the discloser ) qualifies for protection under this Part if the disclosure is made to a medical practitioner or psychologist for the purpose of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling).
14ZZT(4)
In this section:
medical practitioner
means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.
psychologist
means a person registered or licensed as a psychologist under a law of a State or Territory that provides for the registration or licensing of psychologists.
tax affairs
means affairs relating to any tax imposed by or under, or assessed or collected under, a law administered by the Commissioner.
Note:
There is no requirement for a discloser to identify himself or herself in order for a disclosure to qualify for protection under this Part.
If information is disclosed to the Commissioner in accordance with subsection 14ZZT(1A) then, for the purposes of the following provisions: (a) paragraph 355-30(1)(a) in Schedule 1; (b) paragraph (a) of the definition of official information in subsection 90-1(1) of the Tax Agent Services Act 2009;
the information is taken to have been disclosed or obtained under or for the purposes of this Act, and not the Tax Agent Services Act 2009.
14ZZTA(2)
If information is disclosed to the Tax Practitioners Board in accordance with subsection 14ZZT(1A) then, for the purposes of the following provisions: (a) paragraph 355-30(1)(a) in Schedule 1; (b) paragraph (a) of the definition of official information in subsection 90-1(1) of the Tax Agent Services Act 2009;
the information is taken to have been disclosed or obtained under or for the purposes of the Tax Agent Services Act 2009, and not this Act.
An individual is an eligible whistleblower in relation to an entity (within the meaning of the Income Tax Assessment Act 1997) if the individual is, or has been, any of the following:
(a) an officer (within the meaning of the Corporations Act 2001) of the entity;
(b) an employee of the entity;
(c) an individual who supplies services or goods to the entity (whether paid or unpaid);
(d) an employee of a person that supplies services or goods to the entity (whether paid or unpaid);
(e) an individual who is an associate (within the meaning of section 318 of the Income Tax Assessment Act 1936) of the entity;
(f) a spouse or child of an individual referred to in any of paragraphs (a) to (e);
(g) a dependant of an individual referred to in any of paragraphs (a) to (e), or of such an individual's spouse;
(h) an individual prescribed by the regulations for the purposes of this paragraph in relation to the entity.
Each of the following is an eligible recipient in relation to an entity (within the meaning of the Income Tax Assessment Act 1997):
(a) an auditor, or a member of an audit team conducting an audit, of the entity;
(b) a registered tax agent or BAS agent (within the meaning of the Tax Agent Services Act 2009) who provides tax agent services (within the meaning of that Act) or BAS services (within the meaning of that Act) to the entity;
(c) a person authorised by the entity to receive disclosures that may qualify for protection under this Part;
(d) a person or body prescribed for the purposes of this paragraph in relation to the entity.
14ZZV(2)
If the entity is a body corporate, each of the following is an eligible recipient in relation to the entity:
(a) a director, secretary or senior manager (within the meaning of the Corporations Act 2001) of the body corporate;
(b) any other employee or officer (within the meaning of the Corporations Act 2001) of the body corporate who has functions or duties that relate to the tax affairs (within the meaning of section 14ZZT) of the body corporate.
14ZZV(3)
If the entity is a trust, each of the following is an eligible recipient in relation to the entity:
(a) a trustee of the trust;
(b) a person authorised by a trustee of the trust to receive disclosures that may qualify for protection under this Part.
14ZZV(4)
If the entity is a partnership, each of the following is an eligible recipient in relation to the entity:
(a) a partner in the partnership;
(b) a person authorised by a partner in the partnership to receive disclosures that may qualify for protection under this Part.
14ZZV(5)
Subsections (1), (2), (3) and (4) do not limit each other.
A person (the first person ) commits an offence if:
(a) another person (the discloser ) makes a disclosure of information (the qualifying disclosure ) that qualifies for protection under this Part; and
(b) the first person discloses any of the following (the confidential information ):
(i) the identity of the discloser;
(ii) information that is likely to lead to the identification of the discloser; and
(c) the confidential information is information that the first person obtained directly or indirectly because of the qualifying disclosure; and
(d) the disclosure referred to in paragraph (b) is not authorised under subsection (2).
Penalty: Imprisonment for 6 months or 60 penalty units, or both.
14ZZW(2)
A disclosure referred to in paragraph (1)(b) is authorised under this subsection if it:
(a) is made to the Commissioner; or
(b) is made to a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or
(c) is made to a legal practitioner for the purpose of obtaining legal advice or legal representation in relation to the operation of this Part; or
(d) is made to a person or body prescribed by the regulations for the purposes of this paragraph; or
(e) is made with the consent of the discloser.
14ZZW(3)
Subsection (1) does not apply if:
(a) the disclosure referred to in paragraph (1)(b):
(i) is not of the identity of the discloser; and
(ii) is reasonably necessary for the purposes of investigating misconduct, or an improper state of affairs or circumstances, to which the qualifying disclosure relates; and
(b) the first person takes all reasonable steps to reduce the risk that the discloser will be identified as a result of the disclosure referred to in paragraph (1)(b).
Note:
A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.
If a person makes a disclosure that qualifies for protection under this Part: (a) the person is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the disclosure; and (b) no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the disclosure; and (c) if the disclosure was a disclosure of information to the Commissioner or the Tax Practitioners Board - the information is not admissible in evidence against the person in criminal proceedings or in proceedings for the imposition of a penalty, other than proceedings in respect of the falsity of the information.
Note:
Except as provided for by paragraph (c), this subsection does not prevent the person being subject to any civil, criminal or administrative liability for conduct of the person that is revealed by the disclosure.
14ZZX(2)
Without limiting subsection (1): (a) the person has qualified privilege in respect of the disclosure; and (b) a contract to which the person is a party may not be terminated on the basis that the disclosure constitutes a breach of the contract.
If, in civil or criminal proceedings (the primary proceedings ) instituted against an individual in a court, the individual makes a claim (relevant to the proceedings) that, because of section 14ZZX, the individual is not subject to any civil, criminal or administrative liability for making a particular disclosure: (a) the individual bears the onus of adducing or pointing to evidence that suggests a reasonable possibility that the claim is made out; and (b) if the individual discharges that onus - the party instituting the primary proceedings against the individual bears the onus of proving that the claim is not made out; and (c) the court must deal with the claim in separate proceedings; and (d) the court must adjourn the primary proceedings until the claim has been dealt with; and (e) none of the following:
(i) any admission made by the individual in the separate proceedings;
(ii) any information given by the individual in the separate proceedings;
is admissible in evidence against the individual except in proceedings in respect of the falsity of the admission, information or evidence; and (f) if the individual or another person gives evidence in the separate proceedings in support of the claim - giving that evidence does not amount to a waiver of privilege for the purposes of the primary proceedings or any other proceedings.
(iii) any other evidence adduced by the individual in the separate proceedings;
14ZZXA(2)
To avoid doubt, a right under section 126K of the Evidence Act 1995 not to be compelled to give evidence is a privilege for the purposes of paragraph (1)(f) of this section.
Actually causing detriment to another person
14ZZY(1)
A person (the first person ) commits an offence if:
(a) the first person engages in conduct; and
(b) the first person's conduct causes any detriment to another person (the second person ); and
(c) when the first person engages in the conduct, the first person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and
(d) the belief or suspicion referred to in paragraph (c) is the reason, or part of the reason, for the conduct.
Penalty: Imprisonment for 2 years or 240 penalty units, or both.
Threatening to cause detriment to another person
14ZZY(2)
A person (the first person ) commits an offence if:
(a) the first person makes to another person (the second person ) a threat to cause any detriment to the second person or to a third person; and
(b) the first person:
(i) intends the second person to fear that the threat will be carried out; or
(ii) is reckless as to causing the second person to fear that the threat will be carried out; and
(c) the first person makes the threat because a person:
(i) makes a disclosure that qualifies for protection under this Part; or
(ii) may make a disclosure that would qualify for protection under this Part.
Penalty: Imprisonment for 2 years or 240 penalty units, or both.
Threats
14ZZY(3)
For the purposes of subsection (2), a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
14ZZY(4)
In a prosecution for an offence against subsection (2), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.
A court may make an order under section 14ZZZA in relation to a person (the first person ) if:
(a) the first person engages in conduct ( detrimental conduct ) that:
(i) causes any detriment to another person (the second person ); or
(ii) constitutes the making of a threat to cause any such detriment to another person (the second person ); and
(b) when the first person engages in the detrimental conduct, the first person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and
(c) the belief or suspicion referred to in paragraph (b) is the reason, or part of the reason, for the detrimental conduct.
14ZZZ(2)
A court may make an order under section 14ZZZA in relation to a person (the first person ) if:
(a) the first person is or was an officer (within the meaning of the Corporations Act 2001) or employee of a body corporate; and
(b) paragraphs (1)(a), (b) and (c) of this section apply to the body corporate because of detrimental conduct engaged in by the body corporate; and
(c) the first person:
(i) aided, abetted, counselled or procured the detrimental conduct; or
(ii) induced, whether by threats or promises or otherwise, the detrimental conduct; or
(iii) was in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the detrimental conduct; or
(iv) conspired with others to effect the detrimental conduct.
14ZZZ(2A)
A court may make an order under section 14ZZZA in relation to a person (the first person ) that is a body corporate if:
(a) another person (the third person ) engages in conduct ( detrimental conduct ) that:
(i) causes any detriment to a person (the second person ) other than the first person or the third person; or
(ii) constitutes the making of a threat to cause any such detriment to a person (the second person ) other than the first person or the third person; and
(b) when the third person engages in the detrimental conduct, the third person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and
(c) the belief or suspicion referred to in paragraph (b) is the reason, or part of the reason, for the detrimental conduct; and
(d) the first person is under a duty to prevent the third person engaging in the detrimental conduct, or a duty to take reasonable steps to ensure that the third person does not engage in the detrimental conduct; and
(e) the first person fails in part or whole to fulfil that duty.
Burden of proof
14ZZZ(2B)
In proceedings where a person seeks an order under section 14ZZZA in relation to another person:
(a) the person seeking the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters in:
(i) if subsection (1) of this section applies - paragraph (1)(a); or
(ii) if subsection (2) of this section applies - paragraph (1)(a), as mentioned in paragraph (2)(b); or
(iii) if subsection (2A) of this section applies - paragraphs (2A)(a) and (d); and
(b) if that onus is discharged - the other person bears the onus of proving that the claim is not made out.
Threats
14ZZZ(3)
For the purposes of this section, a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
14ZZZ(4)
In proceedings for the purposes of section 14ZZZA, it is not necessary to prove that the person threatened actually feared that the threat would be carried out.
In sections 14ZZY and 14ZZZ, detriment includes (without limitation) any of the following:
(a) dismissal of an employee;
(b) injury of an employee in his or her employment;
(c)alteration of an employee's position or duties to his or her disadvantage;
(d) discrimination between an employee and other employees of the same employer;
(e) harassment or intimidation of a person;
(f) harm or injury to a person, including psychological harm;
(g) damage to a person's property;
(h) damage to a person's reputation;
(i) damage to a person's business or financial position;
(j) any other damage to a person.
For the purposes of subsections 14ZZZ(1), (2) and (2A), a court may make any of the following orders:
(a) an order requiring the first person to compensate the second person, or any other person, for loss, damage or injury suffered as a result of the detrimental conduct;
(b) if the court is satisfied that the first person engaged in the detrimental conduct in connection with the first person's position as an employee:
(i) an order requiring the first person to compensate the second person, or any other person, for a part of loss, damage or injury as a result of the detrimental conduct, and an order requiring the first person's employer to compensate the second person, or any other person, for a part of loss, damage or injury as a result of the detrimental conduct; or
(ii) an order requiring the first person and the first person's employer jointly to compensate the second person, or any other person, for loss, damage or injury suffered as a result of the detrimental conduct; or
(iii) an order requiring the first person's employer to compensate the second person, or any other person, for loss, damage or injury as a result of the detrimental conduct;
(c) an order granting an injunction, on such terms as the court thinks appropriate, to prevent, stop or remedy the effects of the detrimental conduct;
(d) an order requiring the first person to apologise to the second person, or any other person, for engaging in the detrimental conduct;
(e) if the second person is or was employed in a particular position and the detrimental conduct wholly or partly consists, or consisted, of the termination, or purported termination, of the second person's employment - an order that the second person be reinstated in that position or a position at a comparable level;
(f) if the court thinks it is appropriate - an order requiring the first person to pay exemplary damages to the second person, or any other person;
(g) any other order the court thinks appropriate.
14ZZZA(2)
If the detrimental conduct wholly or partly consists, or consisted, of terminating or purporting to terminate a person's employment (including detrimental conduct that forces or forced the person to resign), the court must, in making an order mentioned in paragraph (1)(a) or (b), consider the period, if any, the person is likely to be without employment as a result of the detrimental conduct. This subsection does not limit any other matter thecourt may consider.
14ZZZA(3)
In deciding whether to make an order under paragraph (1)(b) in relation to the first person's employer, the court may have regard to the following:
(a) whether the employer took reasonable precautions, and exercised due diligence, to avoid the detrimental conduct;
(b) if the employer has a policy dealing with any or all of the matters referred to in subsection 1317AI(5) of the Corporations Act 2001 (whether or not section 1317AI of that Act requires the employer to have such a policy) - the extent to which the employer gave effect to that policy;
(c) any duty that the employer was under to prevent the detrimental conduct, or to take reasonable steps to ensure that the detrimental conduct was not engaged in.
14ZZZA(4)
If the court makes an order under subparagraph (1)(b)(ii), the first person and the first person's employer are jointly and severally liable to pay the compensation concerned.
If a person (the discloser ) makes a disclosure of information that qualifies for protection under this Part, the discloser or any other person is not to be required:
(a) to disclose to a court or tribunal:
(i) the identity of the discloser; or
(ii) information that is likely to lead to the identification of the discloser; or
(b) to produce to a court or tribunal a document containing:
(i) the identity of the discloser; or
(ii) information that is likely to lead to the identification of the discloser;
except where:
(c) it is necessary to do so for the purposes of giving effect to this Part; or
(d) the court or tribunal thinks it necessary in the interests of justice to do so.
Note:
A discloser may also be able to apply to the court or tribunal, in accordance with the rules of the court or tribunal, for an order protecting the discloser's identity.
This section applies to a proceeding (including an appeal) in a court in relation to a matter arising under section 14ZZZA in which a person (the claimant ) is seeking an order under subsection 14ZZZA(1).
14ZZZC(2)
The claimant must not be ordered by the court to pay costs incurred by another party to the proceedings, except in accordance with subsection (3) of this section.
14ZZZC(3)
The claimant may be ordered to pay the costs only if:
(a) the court is satisfied that the claimant instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the claimant's unreasonable act or omission caused the other party to incur the costs.
To avoid doubt, a person may bring civil proceedings under section 14ZZZA in relation to conduct even if a prosecution for a criminal offence against section 14ZZY in relation to the conduct has not been brought, or cannot be brought.
If the operation of this Part would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.
14ZZZE(2)
If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or the Supreme Court of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
14ZZZE(3)
Payments under this section are to be made out of money appropriated by the Parliament by another Act.
14ZZZE(4)
To avoid doubt, section 16 does not apply to a payment under this section.
(Repealed by No 95 of 1988)
In any action, prosecution or other proceeding under, or arising out of, a taxation law instituted by or on behalf of the Commissioner, a Second Commissioner or a Deputy Commissioner, to which the Commissioner, a Second Commissioner or a Deputy Commissioner is a party or in which the Commissioner, a Second Commissioner or a Deputy Commissioner intervenes or seeks to intervene, the Commissioner, Second Commissioner or Deputy Commissioner, as the case may be, may appear personally or may be represented by: (a) a person enrolled as a barrister, solicitor, barrister and solicitor or legal practitioner of a federal court or of the Supreme Court of a State or Territory; or (b) a person authorized by the Commissioner, a Second Commissioner or a Deputy Commissioner, by instrument in writing, to appear.
15(2)
The appearance of a person, and the statement of the person that the person appears by authority of the Commissioner, a Second Commissioner or a Deputy Commissioner, is prima facie evidence of that authority.
15(3)
This section applies in relation to the Tax Agent Services Act 2009 as if: (a) references in this section to the Commissioner were references to the Tax Practitioners Board; and (b) references in this section to a Second Commissioner or to a Deputy Commissioner were omitted.
15(4)
(Repealed by No 4 of 2018)
15(5)
(Repealed by No 54 of 2003)
15AA (Repealed) SECTION 15AA VALIDITY OF PRIVATE RULING
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
Where a document is obtained pursuant to a taxation law, the Commissioner may certify a copy of the document to be a true copy.
15A(2)
Where, pursuant to a taxation law, a copy is made of a document, the Commissioner may certify the copy to be a true copy.
15A(3)
Where a document is obtained pursuant to a taxation law, the Commissioner may certify an extract taken from the document to be a true extract.
15A(4)
Where, pursuant to a taxation law, an extract is taken from a document, the Commissioner may certify the extract to be a true extract.
15A(5)
Subject to subsection (6), a document purporting to be a copy or extract certified under subsection (1), (2), (3) or (4) shall be received in all courts and tribunals in proceedings arising out of a taxation law as evidence as if it were the original.
15A(6)
Subsection (5) does not apply in relation to a document if: (a) in the case of proceedings for an offence - evidence is adduced that the document is not a true copy or a true extract; or (b) in any other case - it is proved that the document is not a true copy or a true extract.
15A(7)
Where: (a) pursuant to a taxation law, a copy (in this section referred to as the primary copy ) is made of, or an extract (in this section referred to as the primary extract ) is taken from, a document (in this section referred to as the original document ); and (b) pursuant to subsection (2) or (4), the Commissioner has certified the primary copy to be a true copy of, or the primary extract to be a true extract taken from, the original document;
the Commissioner may:
(c) certify a copy of the primary copy or primary extract to be a true copy; or (d) certify an extract taken from the primary copy or primary extract to be a true extract.15A(8)
Subject to subsection (9), a document purporting to be: (a) a copy, certified under subsection (7), of a primary copy of, or a primary extract taken from, an original document; or (b) an extract, certified under subsection (7), taken from a primary copy of, or a primary extract taken from, an original document;
shall be received in all courts and tribunals in proceedings arising out of a taxation law as evidence as if it were the original document.
15A(9)
Subsection (8) does not apply in relation to a document if: (a) in the case of proceedings for an offence, evidence is adduced that:
(i) the document is not a true copy of, or a true extract taken from, the primary copy or primary extract; or
(b) in any other case, it is proved that:
(ii) the primary copy is not a true copy of, or the primary extract is not a true extract taken from, the original document; or
(i) the document is not a true copy of, or a true extract taken from, the primary copy or primary extract; or
(ii) the primary copy is not a true copy of, or the primary extract is not a true extract taken from, the original document.
15A(10)
(Omitted by No 82 of 1993)
15A(11)
(Repealed by No 4 of 2018)
15A(12)
This section applies in relation to the Tax Agent Services Act 2009 as if references in this section to the Commissioner were references to the Chair of the Tax Practitioners Board.
The Commissioner may make an advance to a person (the recipient ) on account of an amount to which the recipient may become entitled under a taxation law.
15B(2)
The Commissioner must not make an advance under subsection (1) unless:
(a) if the advance is made in conjunction with other advances under that subsection - the Commissioner is satisfied that the total of the costs that would be likely to be incurred by:
(i) the Commonwealth; and
(ii) the recipients; and
if the advance and the other advances were not made is likely to exceed the total of the advance and the other advances; or
(iii) persons other than the Commonwealth or the recipients;
(b) otherwise - the Commissioner is satisfied that the total of the costs that would be likely to be incurred by:
(i) the Commonwealth; and
(ii) the recipient; and
if the advance were not made is likely to exceed the amount of the advance.
(iii) persons other than the Commonwealth or the recipient;
15B(3)
An advance under subsection (1) may:
(a) be recovered under subsection (4); or
(b) be the subject of a determination under subsection (5).
15B(4)
If an advance is made under subsection (1) to a person (the recipient ), the advance:
(a) is a debt due to the Commonwealth by the recipient; and
(b) is payable to the Commissioner; and
(c) may be recovered in a court of competent jurisdiction by the Commissioner, or by a Deputy Commissioner, suing in his or her official name;
whether or not the recipient has become entitled to an amount under a taxation law.
Advance may discharge Commonwealth liability
15B(5)
If:
(a) an advance is made to a person (the recipient ) under subsection (1); and
(b) the advance has not been fully recovered under subsection (4); and
(c) an amount is payable to the recipient by the Commonwealth under a taxation law (the Commonwealth liability );
the Commissioner may, by written notice given to the recipient, determine that the making of the advance is taken to have discharged so much of the Commonwealth liability as equals the whole, or a specified part, of the amount of the advance.
15B(6)
A part of an advance must not be specified in a determination under subsection (5) if it has already been specified in a previous determination under subsection (5).
15B(7)
If the whole, or a part, of an advance is the subject of a determination under subsection (5), the whole, or the part, as the case may be, of the advance is not recoverable under subsection (4).
15B(8)
Subsection (5) does not limit Part IIB.
15B(9)
For the purposes of any rules made for the purposes of paragraph 103(c) of the Public Governance, Performance and Accountability Act 2013, a determination under subsection (5) of this section is taken to be a method of debt recovery.
If, apart from this subsection, the Commissioner does not have power under a taxation law to pay an amount (the relevant amount ) to a person (the recipient ) purportedly as an amount to which the recipient is entitled to under a taxation law, then the Commissioner may pay the relevant amount to the recipient.
Recovery
15C(2)
If a payment is made under subsection (1) to the recipient, the relevant amount:
(a) is a debt due to the Commonwealth by the recipient; and
(b) is payable to the Commissioner; and
(c) may be recovered in a court of competent jurisdiction by the Commissioner, or by a Deputy Commissioner, suing in his or her official name.
15C(3)
If:
(a) a payment is made under subsection (1) to the recipient; and
(b) an amount is payable to the recipient by the Commonwealth under a taxation law (the Commonwealth liability );
then:
(c) the relevant amount; or
(d) such part of the relevant amount as the Commissioner determines;
may, if the Commissioner so directs, be recovered by deduction from the Commonwealth liability.
15C(4)
For the purposes of a designated recovery provision, in determining whether an amount is payable, disregard subsection (1) of this section.
15C(5)
If the relevant amount is recovered under a designated recovery provision, the relevant amount cannot be recovered under subsection (2) or (3) of this section.
15C(6)
If the relevant amount is recovered under subsection (2) or (3) of this section, the relevant amount cannot be recovered under a designated recovery provision.
15C(7)
Except as provided by subsection (6), subsection (3) does not limit Part IIB.
Designated recovery provisions
15C(8)
For the purposes of this section, each of the following provisions is a designated recovery provision :
(a) section 8AAZN of this Act;
(b) section 70 of the Superannuation Guarantee (Administration) Act 1992;
(c) (Repealed by No 70 of 2015)
(d) section 24 of the Superannuation (Government Co-contribution for Low Income Earners) Act 2003;
(e) a similar provision of a taxation law.
15C(9)
For the purposes of a designated recovery provision, in determining:
(a) whether a person is entitled to an amount; or
(b) whether an amount is payable;
disregard subsection (1).
During the applicable publication period for a reporting period, the Commissioner must publish, in such manner as the Commissioner thinks fit, a report that sets out:
(a) both:
(i) the number of advances made under subsection 15B(1) during the reporting period; and
(ii) the total amount of those advances; and
(b) both:
(i) the number of payments made under subsection 15C(1) during the reporting period; and
(ii) the total amount of those payments.
15D(2)
However, a report is not required if:
(a) the number mentioned in subparagraph (1)(a)(i) is zero; and
(b) the number mentioned in subparagraph (1)(b)(i) is zero.
Deferred reporting
15D(3)
Paragraph (1)(b) of this section does not require a report to deal with a payment unless, before the preparation of the report, an Australian Taxation Office official was aware the payment was made under subsection 15C(1).
15D(4)
For the purposes of this section, if:
(a) a payment was made under subsection 15C(1) in a reporting period; and
(b) because of subsection (3) of this section, paragraph (1)(b) of this section did not require a report to deal with the payment; and
(c) during a later reporting period, an Australian Taxation Office official becomes aware that the payment was made under subsection 15C(1);
the payment is subject to a deferred reporting obligation in relation to the later reporting period.
15D(5)
If one or more payments made under subsection 15C(1) during a reporting period are subject to a deferred reporting obligation in relation to a later reporting period, the Commissioner must, during the applicable publication period for the later reporting period:
(a) prepare a report that sets out:
(i) the number of those payments; and
(ii) the total amount of those payments; and
(iii) the reporting period during which the payments were made; and
(b) if a report is required under subsection (1) in relation to the later reporting period - include the paragraph (a) report in the subsection (1) report; and
(c) if paragraph (b) does not apply - publish, in such manner as the Commissioner thinks fit, the paragraph (a) report.
Reporting period
15D(6)
For the purposes of this section, a reporting period is:
(a) a financial year; or
(b) if a shorter recurring period is specified in a legislative instrument made by the Minister - that period.
Applicable publication period
15D(7)
For the purposes of this section, the applicable publication period for a reporting period is the period of:
(a) 4 months; or
(b) if a lesser number of months is specified, in relation to the reporting period, in a legislative instrument made by the Minister - that number of months;
beginning immediately after the end of the reporting period.
Australian Taxation Office official
15D(8)
For the purposes of this section, Australian Taxation Office official means an official (within the meaning of the Public Governance, Performance and Accountability Act 2013) of the Australian Taxation Office.
Where the Commissioner is required or permitted to pay an amount to a person by or under a provision of a taxation law other than:
(a) a general administration provision; or
(b) a provision prescribed for the purposes of this paragraph,
the amount is payable out of the Consolidated Revenue Fund, which is appropriated accordingly.
16(2) [Amounts required or permitted to be paid](a) an amount is required or permitted to be paid to a person:
(i) by or under a provision of a taxation law other than:
(A) a general administration provision; or
(B) a provision prescribed for the purposes of this sub-subparagraph; or
(ii) by way of the repayment, whether in whole or in part, to the person of an amount paid to the Commonwealth;
(b) except as mentioned in paragraph (c), there is no provision of a taxation law by or under which the Commissioner is required or permitted to pay the amount; and
(c) the Commissioner is required or permitted to pay the amount by or under a general administration provision,
the amount shall be taken, for the purposes of subsection (1), to be an amount that the Commissioner is required or permitted to pay to the person by or under a provision of a taxation law of the kind referred to in that subsection.
In this section, ``general administration provision'' means a provision of a taxation law that provides that the Commissioner has the general administration of the taxation law.
This section applies to a liability to or of the Commonwealth arising under, or by virtue of, any of the following laws:
(a) this Act;
(b) any other Act of which the Commissioner has the general administration;
(c) regulations under an Act covered by paragraph (a) or (b). 16A(2) [Method of payment]
The regulations may make provision for and in relation to the methods by which the amount of the liability may be paid.
16A(3) [Examples]Without limiting subsection (2), the regulations may make provision for and in relation to the making of payments using:
(a) collection agents; or
(b) electronic funds transfer systems; or
(c) credit cards; or
(d) debit cards.
If the amount of a tax-related liability that arises by way of penalty or because it is assessed by the Commissioner (other than an RBA deficit or a liability to pay the general interest charge) is not a multiple of 5 cents, the amount is decreased to the nearest multiple of 5 cents.
In this section:
decimal currency
means the currency provided for by the Currency Act 1965;
law of the Commonwealth
has the same meaning as in section 10 of the Currency Act 1965;
officer
includes the Commissioner and a Second Commissioner;
taxation law
means any law of the Commonwealth of which the Commissioner has the general administration;
the previous currency
means the currency provided for by the Coinage Act 1909.
An officer may, in the exercise of, or for the purpose of exercising, any power under a taxation law or in the performance of, or for the purpose of performing, any function under a taxation law:
(a) treat:
(i) a reference in a law of the Commonwealth;
(ii) a reference in a bill of exchange, promissory note, security for money, contract or agreement (whether the contract or agreement is in writing or not), deed or other instrument; or
to an amount of money in the previous currency as a reference to a corresponding amount of money in decimal currency and treat such a reference to an amount of money in decimal currency as a reference to a corresponding amount of money in the previous currency;
(iii) a reference in any other manner;
(b) treat an amount of money in the previous currency as a corresponding amount of money in decimal currency and treat an amount of money in decimal currency as a corresponding amount of money in the previous currency; and
(c) express an amount of money in either decimal currency or the previous currency. 17(3) [Currency Act]
For the purposes of paragraphs (2)(a), (b) and (c):
(a) the amount of money in decimal currency that corresponds with an amount of money in the previous currency; and
(b) the amount of money in the previous currency that corresponds with an amount of money in decimal currency;
shall be calculated on the basis of the equivalents specified in subsection 8(4) of the Currency Act 1965.
The Federal Court of Australia shall not, in relation to a review by the Court of a decision of the Tribunal in connection with proceedings under a taxation law, exercise a power conferred on it by section 15, or paragraph 16(1)(d), (2)(b) or (3)(c) or subsection 16(4), of the Administrative Decisions (Judicial Review) Act 1977 so as to prevent or restrain the recovery, under that law, of tax or duty, further tax or further duty or additional tax or additional duty.
17A(2)
The Federal Circuit and Family Court of Australia (Division 2) must not, in relation to a review by the Court of a decision of the Tribunal in connection with proceedings under a taxation law, exercise a power conferred on it by section 15A, or paragraph 16(1)(d), (2)(b) or (3)(c) or subsection 16(4), of the Administrative Decisions (Judicial Review) Act 1977 so as to prevent or restrain the recovery, under that law, of: (a) tax or duty; or (b) further tax or further duty; or (c) additional tax or additional duty.
(Repealed by No 145 of 2010)
(Repealed by No 145 of 2010)
The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for giving effect to this Act, and, in particular, prescribing penalties not exceeding a fine of 5 penalty units for offences against the regulations.
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 146 of 2001)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 179 of 1999)
(Repealed by No 179 of 1999)
(Repealed by No 179 of 1999)
(Repealed by No 179 of 1999)
(Repealed by No 179 of 1999)
(Repealed by No 179 of 1999)
(Repealed by No 179 of 1999)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 179 of 1999)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 179 of 1999)
(Repealed by No 92 of 2000)
(Repealed by No 92 of 2000)
(Repealed by No 92 of 2000)
(Repealed by No 92 of 2000)
(Repealed by No 92 of 2000)
(Repealed by No 73 of 2006)
(Repealed by No 101 of 2004)
(Repealed by No 101 of 2004)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 179 of 1999)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 179 of 1999)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
(Repealed by No 73 of 2006)
Note: See section 3AA.
Chapter 2 - Collection, recovery and administration of income taxTo help taxpayers meet their annual income tax liability, they are required to pay amounts of their income at regular intervals as it is earned during the year. The system for collecting these amounts is called "Pay as you go".
Amounts collected under this system also go towards meeting liability for Medicare levy and liability to repay debts under certain income-contingent loan schemes.
| 6-5 | The Pay as you go (PAYG) system |
| 6-10 | How the amounts collected are dealt with |
Parts 2-5 and 2-10 establish the PAYG system, which has 2 components:
PAYG withholding
6-5(2)
Under PAYG withholding, amounts are collected in respect of particular kinds of payments or transactions. Usually, someone who makes a payment to you is required to withhold an amount from the payment, and then to pay the amount to the Commissioner.
For a list of the payments and other transactions to which PAYG withholding applies, see Division 10.
PAYG instalments
6-5(3)
You pay PAYG instalments directly to the Commissioner. These are usually based on your GDP-adjusted notional tax or your ordinary income for a past period, but excluding:
An instalment is usually paid after a quarter, but some taxpayers are eligible to pay an annual instalment after the end of the income year.
You are entitled to credits for the amounts of your income that are collected under the PAYG system. The credits are applied under Division 3 of Part IIB against your tax debts, and any excess is refunded to you. PART 2-5 - PAY AS YOU GO (PAYG) WITHHOLDING Division 10 - Guide to Part 2-5 SECTION 10-1 WHAT THIS PART IS ABOUT
Under PAYG withholding, amounts are collected in respect of particular kinds of payments or transactions. Usually, someone who makes a payment to you is required to withhold an amount from the payment, and then to pay the amount to the Commissioner. If the payment is personal services income that is included in the assessable income of someone else under Division 86 of the Income Tax Assessment Act 1997, the payer must pay such an amount to the Commissioner at a later date.
If a non-cash benefit is provided instead of a payment, the provider must first pay to the Commissioner the amount that would have been withheld from the payment.
This Part also contains provisions about the obligations and rights of payers and recipients.
The payments and other transactions covered by PAYG withholding are called withholding payments. They are summarised in the table.
Note:
The obligation to pay an amount to the Commissioner is imposed on the entity making the withholding payment (except for items 17, 19, 22 and 27, and 26 (to the extent that it covers subsection 12-390(4))).
| Summary of withholding payments | ||
| Item | Withholding payment | Section |
| 1 | A payment of salary etc. to an employee | 12-35 |
| 2 | A payment of remuneration to the director of a company | 12-40 |
| 3 | A payment of salary etc. to an office holder (e.g. a member of the Defence Force) | 12-45 |
| 3A | A payment to a *religious practitioner | 12-47 |
| 4 | A return to work payment to an individual | 12-50 |
| 5 | A payment that is covered by a voluntary agreement | 12-55 |
| 6 | A payment under a labour hire arrangement or a payment specified by regulations | 12-60 |
| 7 | A *superannuation income stream or an annuity | 12-80 |
| 8 | A *superannuation lump sum or a payment for termination of employment | 12-85 |
| 9 | An unused leave payment | 12-90 |
| 10 | A social security or similar payment (e.g. old age pension) | 12-110 |
| 11 | A Commonwealth education or training payment | 12-115 |
| 12 | A compensation, sickness or accident payment | 12-120 |
| 13 | A payment arising from an investment where the recipient does not quote its tax file number, or in some cases, its ABN | 12-140 |
| 14 | Investor becoming presently entitled to income of a unit trust | 12-145 |
| 14A | A trustee of a closely held trust distributing an amount from the trust income to a beneficiary, where the beneficiary does not quote its tax file number | 12-175 |
| 14B | A beneficiary of a closely held trust becoming presently entitled to income of the trust, where the beneficiary does not quote its tax file number | 12-180 |
| 15 | A payment for a supply where the recipient of the payment does not quote its ABN | 12-190 |
| 16 | A dividend payment to an overseas person | 12-210 |
| 17 | A dividend payment received for a foreign resident | 12-215 |
| 18 | An interest payment to an overseas person | 12-245 |
| 19 | An interest payment received for a foreign resident | 12-250 |
| 20 | An interest payment derived by a lender in carrying on business through overseas permanent establishment | 12-255 |
| 21 | A royalty payment to an overseas person | 12-280 |
| 22 | A royalty payment received for a foreign resident | 12-285 |
| 22A | A departing Australia superannuation payment | 12-305 |
| 22AA | An *excess untaxed roll-over amount | 12-312 |
| 22B | A payment (of a kind set out in the regulations) to a foreign resident | 12-315 |
| 22C | A payment (of a kind set out in the regulations) received for a foreign resident | 12-317 |
| 22D | A payment of salary, wages etc. to an employee under a labour mobility program | 12-319A |
| 23 | A mining payment | 12-320 |
| 24 | A natural resource payment | 12-325 |
| 25 | A payment by a withholding MIT | 12-385 |
| 26 | A payment by a *custodian or other entity | 12-390 |
| 27 | A payment under the *first home super saver scheme | 12-460 |
10-5(2)
These can also be treated as withholding payments: (aa) a payment that arises because of the operation of section 12A-205 (see Division 12A); (a) alienated personal services payments (see Division 13); (b) non-cash benefits, and capital proceeds involving foreign residents and certain kinds of taxable Australian property (see Division 14).
Note:
The obligation to pay an amount to the Commissioner is imposed on the entity receiving the alienated personal services payment or providing the non-cash benefit or capital proceeds.
Division 11 - Preliminary matters SECTION 11-1 11-1 OBJECT OF THIS PART
The object of this Part is to ensure the efficient collection of: (a) income tax; and (b) *Medicare levy; and
(c) (Repealed by No 56 of 2010) (ca) amounts of liabilities to the Commonwealth under Chapter 4 of the Higher Education Support Act 2003; and (caa) amounts of liabilities to the Commonwealth under Part 3A of the VET Student Loans Act 2016; and (cb) amounts of liabilities to the Commonwealth under Chapter 2AA of the Social Security Act 1991; and (cc) amounts of liabilities to the Commonwealth under Part 2 of the Student Assistance Act 1973; and (cd) amounts of liabilities to the Commonwealth under Chapter 3 of the Australian Apprenticeship Support Loans Act 2014; and (da) amounts of liabilities to the Commonwealth under Part 2B.3 of the Social Security Act 1991; and (db) amounts of liabilities to the Commonwealth under Division 6 of Part 4A of the Student Assistance Act 1973; and (d) *withholding tax; and (e) *mining withholding tax; and (f) *TFN withholding tax; and
(g) (Repealed by No 96 of 2014) (h) *petroleum resource rent tax.
In working out whether an entity has paid an amount to another entity, and when the payment is made, the amount is taken to have been paid to the other entity when the first entity applies or deals with the amount in any way on the other's behalf or as the other directs.
11-5(2)
An amount is taken to be payable by an entity to another entity if the first entity is required to apply or deal with it in any way on the other's behalf or as the other directs.
Division 12 - Payments from which amounts must be withheld
Exempt income of recipient
12-1(1)
An entity need not withhold an amount under section 12-35, 12-40, 12-45, 12-47, 12-50, 12-55, 12-60, 12-80, 12-85, 12-90, 12-120 or 12-190 from a payment if the whole of the payment is *exempt income of the entity receiving the payment.
Non-assessable non-exempt income of recipient
12-1(1A)
An entity need not withhold an amount under Subdivision 12-B, Subdivision 12-C or section 12-120 or 12-190 from a payment if the whole of the payment is not assessable income and is not *exempt income of the entity receiving the payment.
Living-away-from-home allowance benefit
12-1(2)
In working out how much to withhold under section 12-35, 12-40, 12-45, 12-47, 12-115, 12-120, 12-315 or 12-317 from a payment, disregard so much of the payment as is a living-away-from-home allowance benefit as defined by section 136 of the Fringe Benefits Tax Assessment Act 1986.
Expense payment benefit
12-1(3)
In working out how much to withhold under section 12-35, 12-40, 12-45, 12-47, 12-115, 12-120, 12-315 or 12-317 from a payment, disregard so much of the payment as:
(a) is an expense payment benefit as defined by section 136 of the Fringe Benefits Tax Assessment Act 1986; and
(b) is not an exempt benefit under section 22 of that Act (about reimbursement of car expenses on the basis of distance travelled).
Capped defined benefit income stream
12-1(4)
This section does not apply in relation to a payment if the whole of the payment is a *superannuation income stream benefit that is paid from a *capped defined benefit income stream.
Note:
For withholding amounts from a superannuation income stream, see section 12-80.
SECTION 12-5 WHAT TO DO IF MORE THAN ONE PROVISION REQUIRES A WITHHOLDING 12-5(1)
If more than one provision in this Division covers a payment, only one amount is to be withheld from the payment.
12-5(2)
The provision to apply is the one that is most specific to the circumstances of the payment. However, this general rule is subject to the specific rules in the table, and the specific rule in subsection (3).
| Specific rules for determining priority among withholding provisions | |||
| Item | Apply: | Which is about: | In priority to: |
| 1AA | section 12-385 or 12-390 | distributions to foreign residents from *withholding MITs | each other withholding provision |
| 1 | section 12-35, 12-40, 12-45, 12-47 or 12-50 | a payment for work or services | section 12-60 (payment under a labour hire arrangement or specified by regulations); or
section 12-190 (payment for a supply where recipient does not quote its ABN) |
| 1A | section 12-35 or 12-45 | a payment for work or services | section 12-47 (a payment to a *religious practitioner) |
| 2 | section 12-80, 12-85 or 12-90 | a *superannuation benefit, an annuity, a payment for termination of employment or an unused leave payment | section 12-60 (payment under a labour hire arrangement or specified by regulations); or section 12-190 (payment for a supply where recipient does not quote its ABN) |
| 3 | section 12-110, 12-115 or 12-120 | a payment of benefit or compensation | section 12-60 (payment under a labour hire arrangement or specified by regulations); or section 12-190 (payment for a supply where recipient does not quote its ABN) |
| 4 | section 12-60 | a payment under a labour hire arrangement or specified by regulations | section 12-190 (payment for a supply where recipient does not quote its ABN) |
| 5 | section 12-140 or 12-145 | a payment arising from investment where the recipient does not quote tax file number | section 12-175 or 12-180 (Payment of income of closely held trust where TFN not quoted) or section 12-210, 12-215, 12-245, 12-250 or 12-255 (payment of a dividend or interest) |
| 6 | section 12-280 or 12-285 | a payment of royalty | section 12-325 (natural resource payment) |
12-5(3)
Apply a provision in this Division (apart from a provision in Subdivision 12-FB) that covers a payment in priority to a provision in Subdivision 12-FB that also covers the payment.
Note:
Some provisions of this Division clearly do not cover a payment covered by some other provisions. For example:
SECTION 12-7 DIVISION DOES NOT APPLY TO ALIENATED PERSONAL SERVICES PAYMENTS 12-7(1)
This Division (other than the provisions mentioned in subsection (2)) does not apply to a payment in so far as the payment:
(a) is an *alienated personal services payment; or
(b) was received, by the entity making the payment, as an *alienated personal services payment.
Note:
An entity that receives an alienated personal services payment may be obliged to pay an amount to the Commissioner: see Division 13.
12-7(2)
The provisions are:
(a) Subdivision 12-FB; and
(b) any other provisions in this Division to the extent that they apply in relation to that Subdivision.
SECTION 12-10 12-10 DIVISION DOES NOT APPLY TO NON-CASH BENEFITS
This Division does not apply to a payment in so far as it consists of providing a *non-cash benefit.
Note:
If a non-cash benefit is provided in circumstances where a payment would give rise to a withholding obligation, the provider must pay an amount to the Commissioner: see Division 14.
12-15 12-15 (Repealed) SECTION 12-15 AMOUNTS TO BE EXPRESSED IN AUSTRALIAN CURRENCY(Repealed by No 133 of 2003)
This Division and the regulations made for the purposes of this Division:
(a) apply to a non-share equity interest in the same way as it applies to a share; and
(b) apply to an equity holder in the same way as it applies to a shareholder; and
(c) apply to a non-share dividend in the same way as it applies to a dividend.
An entity must withhold an amount from salary, wages, commission, bonuses or allowances it pays to an individual as an employee (whether of that or another entity).
For exceptions, see section 12-1.
SECTION 12-40 12-40 PAYMENT TO COMPANY DIRECTORA company must withhold an amount from a payment of remuneration it makes to an individual:
(a) if the company is incorporated - as a director of the company, or as a person who performs the duties of a director of the company; or
(b) if the company is not incorporated - as a member of the committee of management of the company, or as a person who performs the duties of such a member.
For exceptions, see section 12-1.
SECTION 12-45 PAYMENT TO OFFICE HOLDER 12-45(1)An entity must withhold an amount from salary, wages, commission, bonuses or allowances it pays to an individual as:
(a) a member of an *Australian legislature; or
(b) a person who holds, or performs the duties of, an appointment, office or position under the Constitution or an *Australian law; or
(c) a member of the Defence Force, or of a police force of the Commonwealth, a State or a Territory; or
(d) a person who is otherwise in the service of the Commonwealth, a State or a Territory; or
(e) a member of a *local governing body where there is in effect, in accordance with section 446-5, a unanimous resolution by the body that the remuneration of members of the body be subject to withholding under this Part.
For exceptions, see section 12-1.
12-45(2)
This section does not require an amount to be withheld from a payment to an individual as a member of a *local governing body unless it is one to which paragraph (1)(e) applies.
An entity must withhold an amount from a payment it makes to a *religious practitioner for an activity, or a series of activities, if:
(a) the activity, or series of activities, is done by the religious practitioner in pursuit of his or her vocation as a religious practitioner; and
(b) the activity, or series of activities, is done by the religious practitioner as a member of a religious institution; and
(c) the payment is made by the entity in the course or furtherance of an *enterprise that the entity *carries on.
An entity must withhold an amount from a payment it makes to an individual if the payment is included in the individual's assessable income under section 15-3 of the Income Tax Assessment Act 1997 (return to work payments).
For exceptions, see section 12-1.
SECTION 12-55 VOLUNTARY AGREEMENT TO WITHHOLD 12-55(1)An entity must withhold an amount from a payment it makes to an individual if:
(a) the payment is made under an *arrangement the performance of which, in whole or in part, involves the performance of work or services (whether or not by the individual); and
(b) no other provision of this Division requires the entity to withhold an amount from the payment; and
(c) the entity and the individual are parties to an agreement (the voluntary agreement ) that is in the *approved form and states that this section covers payments under the arrangement mentioned in paragraph (a), or under a series of such arrangements that includes that arrangement; and
(d) the individual has an *ABN that is in force and is *quoted in that agreement.
For exceptions, see section 12-1.
12-55(2)
Each party must keep a copy of the voluntary agreement from when it is made until 5 years after the making of the last payment covered by the agreement.
Penalty: 30 penalty units.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
12-55(2A)
An offence under subsection (2) is an offence of strict liability.
Note:
For strict liability , see section 6.1 of the Criminal Code.
12-55(3)
A party to the voluntary agreement may terminate it at any time by notifying the other party in writing.
SECTION 12-60 PAYMENT UNDER LABOUR HIRE ARRANGEMENT, OR SPECIFIED BY REGULATIONS 12-60(1)
An entity that *carries on an *enterprise must withhold an amount from a payment that it makes to an individual in the course or furtherance of the enterprise if:
(a) the enterprise is a *business of arranging for persons to perform work or services directly for clients of the entity, or the enterprise includes a business of that kind that is not merely incidental to the main activities of the enterprise; and
(b) the payment is made under an *arrangement the performance of which, in whole or in part, involves the performance of work or services by the individual directly for a client of the entity, or directly for a client of another entity.
For exceptions, see section 12-1.
EXAMPLESExample 1:
Staffprovider Ltd keeps a database of skilled persons who are willing for their services to be provided to third parties. Staffprovider arranges with Corporate Pty Ltd to provide to it the services of a computer programmer in return for payment. Staffprovider arranges with Jane for her to do computer programming for Corporate. Staffprovider must withhold amounts under this section from payments it makes to Jane under the arrangement with her.
Example 2:
Ian is a solicitor who regularly briefs barristers to represent his clients. Briefing barristers is merely incidental to Ian's main activities as a solicitor, so he does not have to withhold amounts under this section from payments he makes to barristers.
12-60(2)
An entity that carries on an *enterprise must withhold an amount from a payment that it makes to an individual in the course or furtherance of the enterprise if the payment is, in whole or in part, for work or services and is of a kind prescribed by the regulations.
For exceptions, see section 12-1.
Subdivision 12-C - Payments for retirement or because of termination of employment
An entity must withhold an amount from any of the following payments it makes to an individual:
(a) a *superannuation income stream;
(b) an *annuity.
For exceptions, see section 12-1.
An entity must withhold an amount from any of the following payments it makes to an individual:
(a) a *superannuation lump sum;
(b) a payment that is an *employment termination payment or would be one except that it is received more than 12 months after termination of employment.
For exceptions, see section 12-1.
An entity must withhold an amount from any of the following payments it makes to an individual:
(a) an *unused annual leave payment;
(b) an *unused long service leave payment, to the extent that the payment is included in the individual's assessable income.
For exceptions, see section 12-1.
An entity must withhold an amount from a payment it makes to an individual if the payment is: (a) specified in an item of the table in section 52-10 of the Income Tax Assessment Act 1997 (Social Security payments); or (b) specified in an item of the table in section 52-65 of that Act (Veterans' Affairs payments); or (ba) specified in an item of the table in section 52-114 of that Act (Military Rehabilitation and Compensation Act payments); or (c) specified in section 52-105, 53-10, 55-5 or 55-10 of that Act; or
Note:
Payments specified in those provisions of the Income Tax Assessment Act 1997 are made under various Commonwealth laws.
(ca) *parental leave pay.(cb) (Repealed by No 4 of 2023)
(d) (Repealed by No 67 of 2024)
12-110(2)
In working out the amount to be withheld, disregard so much of the payment as is *exempt income of the individual.
SECTION 12-115 COMMONWEALTH EDUCATION OR TRAINING PAYMENT 12-115(1)
An entity must withhold an amount from a *Commonwealth education or training payment it makes to an individual.
For exceptions, see subsection (2) and section 12-1.
12-115(2)
In working out the amount to be withheld, disregard so much of the payment as is *exempt income of the individual.
SECTION 12-120 12-120 COMPENSATION, SICKNESS OR ACCIDENT PAYMENT
An entity must withhold an amount from a payment of compensation, or of sickness or accident pay, it makes to an individual if the payment:
(a) is made because of that or another individual's incapacity for work; and
(b) is calculated at a periodical rate; and
(c) is not a payment made under an insurance policy to the policy owner.
For exceptions, see section 12-1.
Subdivision 12-E - Payments where TFN or ABN not quoted Payment in respect of investmentSECTION 12-140 RECIPIENT DOES NOT QUOTE TAX FILE NUMBER 12-140(1)
An *investment body must withhold an amount from a payment it makes to another entity in respect of a *Part VA investment if:
(a) all or some of the payment is *ordinary income or *statutory income of the other entity; and
(b) if the investment is non-transferable - the other entity did not *quote its *tax file number in connection with the investment before the time when the payment became payable; and
(c) if the investment is transferable - the other entity did not quote its tax file number in connection with the investment before the time when the other entity had to be registered with the investment body as the *investor to be entitled to the payment.
Note:
If the investment body is an AMIT, under subsection 12A-205(2) amounts may be treated, for the purposes of this Part, as having been paid to the other entity by the investment body.
Payment in respect of units in a trust or investment-related betting chance
12-140(2)
If a *Part VA investment consists of:
(a) units in a unit trust (as defined in section 202A of the Income Tax Assessment Act 1936); or
(b) an investment-related betting chance;
an entity (including the *investment body) must withhold an amount from a payment it makes to another entity in respect of the investment if the conditions in subsection (1) of this section are met.
For exceptions to the rules in this section, see sections 12-150 to 12-170.
12-140(3)
If:
(a) because of subsection 12A-205(2), an entity is treated as having made a payment to another entity; and
(b) under subsection (2) of this section, the entity has withheld an amount from that payment, and paid the amount to the Commissioner;
the entity may recover from the other entity, as a debt, the amount withheld.
12-140(4)
The entity is entitled to set off an amount that the entity can recover from the other entity under subsection (3) against debts due by the entity to the other entity.
This section applies if:
(a) a *Part VA investment consists of units in a unit trust (as defined in section 202A of the Income Tax Assessment Act 1936); and
(b) the *investor becomes presently entitled, for the purposes of Division 6 of Part III of the Income Tax Assessment Act 1936, to a share of income of the trust at a time (the entitlement time ) before any of that share is paid to the investor.
12-145(2)
The entity (including the *investment body) that would have to pay that share to the *investor if the share were due and payable at the entitlement time must withhold from the share, at that time, the amount (if any) that subsection 12-140(2) would have required it to withhold if it had paid the share to the investor at that time.
For exceptions to the rules in this section, see sections 12-155 to 12-170.
12-145(3)
This Part (except section 12-140 and this section) applies as if that entity had paid that share to the *investor at the entitlement time.
12-145(4)
If that entity withholds an amount from that share as required by subsection (2), subsection 12-140(2) does not require an amount to be withheld from a payment of all or part of that share to the *investor.
SECTION 12-150 LIMITED APPLICATION OF SECTION 12-140 TO PAYMENT UNDER FINANCIAL ARRANGEMENT 12-150(1)
This section limits the extent to which section 12-140 applies to a payment in respect of a *Part VA investment if the investment is a qualifying security (within the meaning of Division 16E of Part III of the Income Tax Assessment Act 1936 (about gains accruing on securities)) and:
(a) is of a kind mentioned in item 1 or 2 of the table in subsection 202D(1) of that Act; or
(b) is of a kind mentioned in item 3 of that table and is non-transferable.
Note:
Section 202D of the Income Tax Assessment Act 1936 lists the investments in connection with which tax file numbers are to be quoted.
12-150(2)
Section 12-140 applies to the payment only to the extent that is covered by one or both of these paragraphs:
(a) so much of the payment as consists of periodic interest (within the meaning of Division 16E of Part III of the Income Tax Assessment Act 1936);
(b) if the payment became payable at the end of the term (within the meaning of that Division) of the investment - so much of the payment as does not exceed what section 159GQ of that Act would include in the *investor's assessable income for the income year in which that term ended.
Note:
This limitation ensures that an amount is not withheld from payment of an amount in respect of which TFN withholding tax is payable. See Subdivision 14-B.
12-150(3)
The adoption (under section 18 of the Income Tax Assessment Act 1936) of an accounting period ending on a day other than 30 June is disregarded for the purposes of:
(a) paragraph (2)(b) of this section; and
(b) the application of Division 16E of Part III of that Act for the purposes of that paragraph.
If a payment is treated under section 12A-205 as having been made, section 12-140 does not apply to the payment to the extent that it covers a *pre-AMMA actual payment from which section 12-140 has required an amount to be withheld.
12-152(2)
If a payment is a *post-AMMA actual payment, section 12-140 does not apply to the payment to the extent that it covers either or both of the following:
(a) a *pre-AMMA actual payment from which section 12-140 has required an amount to be withheld;
(b) a payment that is treated under section 12A-205 as having been made from which section 12-140 has required an amount to be withheld.
Section 12-140 or 12-145 does not require an amount to be withheld if:
(a) the other entity made the investment in the course or furtherance of an *enterprise *carried on by it; and
(b) the other entity has an *ABN, and has *quoted it to the investment body, by the time referred to in paragraph 12-140(1)(b) or (c).
Section 12-140 or 12-145 does not require an amount to be withheld if:
(a) a provision of Division 5 of Part VA of the Income Tax Assessment Act 1936 has applied to the other entity in relation to the investment, but no longer applies when the payment is made; and
(b) when the payment is made, the *investment body has not been informed of anything that resulted in the provision no longer applying.
Note:
Division 5 of Part VA of that Act provides, in certain cases, that even though an entity has not quoted its tax file number it is taken to have done so.
SECTION 12-165 12-165 EXCEPTION FOR FULLY FRANKED DIVIDENDSection 12-140 does not require an amount to be withheld if:
(a) the investment consists of *shares in a public company (as defined in section 202A of the Income Tax Assessment Act 1936); and
(b) the payment is a *distribution that has been franked in accordance with section 202-5 of the Income Tax Assessment Act 1997; and
(c) the *franking percentage for the distribution is 100%.
Section 12-140 or 12-145 does not require an amount to be withheld if the payment is less than the amount worked out under the regulations.
12-170(2)
Regulations made for the purposes of this section may deal differently with different payments.
Payment of income of closely held trust where TFN not quoted
SECTION 12-175 TRUSTEE DISTRIBUTES INCOME OF CLOSELY HELD TRUST
Scope
12-175(1)
This section applies if:
(a) the trustee of a trust makes a distribution to a beneficiary of the trust at a time (the distribution time ) during an income year of the trust; and
(b) some or all of the distribution is from the *ordinary income or *statutory income of the trust; and
(c) the trust is:
(i) a resident trust estate (within the meaning of subsection 95(2) of the Income Tax Assessment Act 1936) in relation to the income year; and
(ii) a closely held trust (within the meaning of section 102UC of that Act); and
(iii) not prescribed by the regulations for the purposes of this subparagraph; and
(d) the beneficiary is:
(i) an Australian resident; and
(ii) not an *exempt entity; and
(iii) not under a legal disability for the purposes of section 98 of that Act.
Trustee must withhold
12-175(2)
The trustee must withhold an amount from the distribution, if:
(a) the beneficiary did not *quote the beneficiary's *tax file number to the trustee before the distribution time; and
(b) the trustee is not liable to pay tax under section 98 of the Income Tax Assessment Act 1936 in connection with the distribution; and
(c) the trustee is not required to make a correct TB statement under Division 6D of Part III of that Act (about trustee beneficiary non-disclosure tax) in connection with the distribution; and
(d) family trust distribution tax is not payable under Schedule 2F to that Act in connection with the distribution.
Note 1:
If the trust is a unit trust, the trustee may be required to withhold under section 12-140 in priority to this section: see section 12-5.
Note 2:
The trustee commits an offence if the trustee fails to withhold an amount as required by this section: see section 16-25.
Application of rest of Part
12-175(3)
If the distribution is not a payment, this Part applies as if the trustee paid the amount of the distribution to the beneficiary at the distribution time.
Trust income of earlier income years
12-175(4)
Subsections (2) and (3) do not apply to the distribution, to the extent that:
(a) the beneficiary is presently entitled, for the purposes of Division 6 of Part III of the Income Tax Assessment Act 1936, to a share of the income of the trust of an earlier income year; and
(b) the distribution is a distribution of some or all of that share.
Note:
The trustee may have been required to withhold from that share under section 12-180.
Scope
12-180(1)
This section applies if:
(a) at the end of an income year of a trust, a beneficiary of the trust is presently entitled, for the purposes of Division 6 of Part III of the Income Tax Assessment Act 1936, to a share of the income of the trust of that year; and
(b) paragraph 12-175(1)(c) in this Schedule applies to the trustee of the trust; and
(c) paragraph 12-175(1)(d) applies to the beneficiary.
Trustee must withhold
12-180(2)
The trustee must withhold an amount from that share of the *net income of the trust, if:
(a) the beneficiary did not *quote the beneficiary's *tax file number to the trustee before the end of the year; and
(b) the trustee is not liable to pay tax in respect of that share under section 98 of the Income Tax Assessment Act 1936; and
(c) the trustee is not required to make a correct TB statement about that share under Division 6D of Part III of that Act (about trustee beneficiary non-disclosure tax); and
(d) family trust distribution tax is not payable on that share of the income of the trust under Schedule 2F to that Act.
Note 1:
If the trust is a unit trust, the trustee may be required to withhold under section 12-145 in priority to this section: see section 12-5.
Note 2:
The trustee commits an offence if the trustee fails to withhold an amount as required by this section: see section 16-25.
Application of rest of Part
12-180(3)
This Part (other than section 12-175) applies as if the trustee had paid that share of the *net income of the trust to the beneficiary at the end of the income year.
Entitlements already paid
12-180(4)
Subsections (2) and (3) do not apply to that share of the *net income of the trust to the extent that the trustee distributed any of that share to the beneficiary during the income year.
Note:
The trustee may have been required to withhold from that distribution under section 12-175.
Trusts that end during the year
12-180(5)
This section applies as if each reference to the end of an income year were a reference to the time occurring just before the trust ends, if the trust ends during the income year.
Section 12-175 or 12-180 does not require an amount to be withheld if the payment (including the payment mentioned in subsection 12-180(3)) is less than the amount worked out under the regulations.
12-185(2)
Regulations made for the purposes of this section may deal differently with different payments.
SECTION 12-190 RECIPIENT DOES NOT QUOTE ABN 12-190(1)
An entity (the payer ) must withhold an amount from a payment it makes to another entity if:
(a) the payment is for a *supply that the other entity has made, or proposes to make, to the payer in the course or furtherance of an *enterprise *carried on in Australia by the other entity; and
(b) none of the exceptions in this section applies.
ABN correctly quoted
12-190(2)
The payer need not withhold an amount under this section if, when the payment is made:
(a) the other entity has giventhe payer an *invoice that relates to the *supply and *quotes the other entity's *ABN; or
(b) the payer has some other document relating to the supply on which the other entity's ABN is *quoted.
12-190(2A)
The payer need not withhold an amount under this section if the other entity has made the *supply, or proposes to make the supply, through an agent and, when the payment is made:
(a) the agent has given the payer an *invoice that relates to the supply and *quotes the agent's *ABN; or
(b) the payer has some other document relating to the supply on which the agent's ABN is *quoted.
Payer has no reason to believe that ABN has been incorrectly quoted
12-190(3)
The payer need not withhold an amount under this section if, when the payment is made:
(a) the other entity has given the payer an *invoice that relates to the *supply and purports to *quote the other entity's *ABN, or the payer has some other document that relates to the supply and purports to *quote the other entity's ABN; and
(b) the other entity does not have an ABN, or the invoice or other document does not in fact quote the other entity's ABN; and
(c) the payer has no reasonable grounds to believe that the other entity does not have an ABN, or that the invoice or other document does not quote the other entity's ABN.
12-190(3A)
The payer need not withhold an amount under this section if the other entity has made the *supply, or proposes to make the supply, through an agent and, when the payment is made:
(a) the agent has given the payer an *invoice that relates to the supply and purports to *quote the agent's *ABN, or the payer has some other document that relates to the supply and purports to *quote the agent's ABN; and
(b) the agent does not have an ABN, or the invoice or other document does not in fact quote the agent's ABN; and
(c) the payer has no reasonable grounds to believe that the agent does not have an ABN, or that the invoice or other document does not quote the agent's ABN.
No need to quote ABN
12-190(4)
The payer need not withhold an amount under this section if:
(a) the payment is made otherwise than in the course or furtherance of an *enterprise *carried on in Australia by the payer; or
(b) the payment (disregarding so much of it as relates to *GST payable on the *supply) or, if the payer has also made, or proposes to make, one or more other payments to the other entity for the supply, the total of all the payments (disregarding so much of them as relates to *GST payable on the supply) does not exceed $50 or such higher amount as is specified in regulations in force for the purposes of subsection 29-80(1) of the *GST Act; or
(c) the supply is made in the course or furtherance of an activity, or series of activities, done as a member of a local governing body established by or under a *State law or *Territory law; or
(d) the supply is wholly *input taxed.
12-190(5)
The payer need not withhold an amount under this section if the payment:
(a) is covered by section 12-140 or 12-145 (about not quoting *tax file number in respect of an investment in respect of which the payment is made); or
(b) would be covered by section 12-140 or 12-145 if the other entity had not quoted as mentioned in subsection 12-140(1) or section 12-155; or
(c) would be covered by section 12-140 or 12-145 apart from section 12-160, 12-165 or 12-170 (which are exceptions to sections 12-140 and 12-145); or
(d) is covered by section 12-175 or 12-180 (Payment of income of closely held trust where TFN not quoted); or
(e) would be covered by section 12-175 or 12-180 if the other entity had not quoted as mentioned in paragraph 12-175(2)(a) or 12-180(2)(a); or
(f) would be covered by section 12-175 or 12-180 apart from section 12-185 (which is an exception to sections 12-175 and 12-180).
12-190(6)
The payer need not withhold an amount under this section if, when the payment is made:
(a) the other entity is an individual and has given the payer a written statement to the effect that:
(i) the *supply is made in the course or furtherance of an activity, or series of activities, done as a private recreational pursuit or hobby; or
(ii) the supply is, for the other entity, wholly of a private or domestic nature; and
(b) the payer has no reasonable grounds to believe that the statement is false or misleading in a material particular.
12-190(7)
In working out, for the purposes of this section, whether an enterprise is *carried on in Australia, ignore any part of Australia that is not in the indirect tax zone (within the meaning of the *GST Act).
Note:
The effect of this subsection is to treat an enterprise as carried on in Australia only where it would be treated as carried on in the indirect tax zone under the A New Tax System (Australian Business Number) Act 1999.
SECTION 12-210 12-210 DIVIDEND PAYMENT TO OVERSEAS PERSON
A company that is an Australian resident must withhold an amount from a *dividend it pays if:
(a) according to the register of the company's members, the entity, or any of the entities, holding the *shares on which the dividend is paid has an address outside Australia; or
(b) that entity, or any of those entities, has authorised or directed the company to pay the dividend to an entity or entities at a place outside Australia.
For limits on the amount to be withheld, see section 12-300.
SECTION 12-215 DIVIDEND PAYMENT RECEIVED FOR FOREIGN RESIDENT 12-215(1)An entity that receives a payment of a *dividend of a company that is an Australian resident must withhold an amount from the dividend if:
(a) the entity is a person in Australia or an *Australian government agency; and
(b) a foreign resident is or becomes entitled:
(i) to receive the dividend or part of it from the entity, or to receive the amount of the dividend or of part of it from the entity; or
(ii) to have the entity credit to the foreign resident, or otherwise deal with on the foreign resident's behalf or as the foreign resident directs, the dividend or part of it, or the amount of the dividend or of part of it.For limits on the amount to be withheld, see section 12-300.
12-215(2)
The entity must withhold the amount:
(a) if the foreign resident is so entitled when the entity receives the payment - immediately after the entity receives the payment; or
(b) if the foreign resident becomes so entitled after the entity receives the payment - immediately after the foreign resident becomes so entitled.
SECTION 12-220 12-220 APPLICATION TO PART OF A DIVIDEND
This Part applies to a part of a *dividend in the same way as to a dividend. SECTION 12-225 12-225 APPLICATION TO DISTRIBUTION BY A LIQUIDATOR OR OTHER PERSON
This Part applies to a distribution that section 47 of the Income Tax Assessment Act 1936 treats as a *dividend paid by a company, in the same way as this Part applies to a dividend paid by the company, and as if the liquidator or other person making the distribution were the company. Interest
SECTION 12-245 12-245 INTEREST PAYMENT TO OVERSEAS PERSON
An entity must withhold an amount from interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936) it pays to an entity, or to entities jointly, if:
(a) the recipient or any of the recipients has an address outside Australia according to any record that is in the payer's possession, or is kept or maintained on the payer's behalf, about the transaction to which the interest relates; or
(b) the payer is authorised to pay the interest at a place outside Australia (whether to the recipient or any of the recipients or to anyone else).
For limits on the amount to be withheld, see section 12-300.
SECTION 12-250 INTEREST PAYMENT RECEIVED FOR FOREIGN RESIDENT 12-250(1)An entity that receives a payment of interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936) must withhold an amount from the payment if:
(a) the entity is a person in Australia or an *Australian government agency; and
(b) a foreign resident is or becomes entitled:
(i) to receive the interest or part of it from the entity, or to receive the amount of the interest or of part of it from the entity; or
(ii) to have the entity credit to the foreign resident, or otherwise deal with on the foreign resident's behalf or as the foreign resident directs, the interest or part of it, or the amount of the interest or of part of it.For limits on the amount to be withheld, see section 12-300.
12-250(2)
The entity must withhold the amount:
(a) if the foreign resident is so entitled when the entity receives the payment - immediately after the entity receives the payment; or
(b) if the foreign resident becomes so entitled after the entity receives the payment - immediately after the foreign resident becomes so entitled.
SECTION 12-255 12-255 INTEREST PAYMENT DERIVED BY LENDER IN CARRYING ON BUSINESS THROUGH OVERSEAS PERMANENT ESTABLISHMENT
An entity must withhold an amount from interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936) it pays if it has been notified under section 12-260 of this Act that this section applies to the interest.
Note:
For limits on the amount to be withheld, see section 12-300.
If:
(a) interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936) is payable to:
(i) an entity that is, or entities at least one of whom is, an Australian resident; or
(ii) an *Australian government agency; and
(b) the entity liable to pay the interest is authorised to pay it at a place in Australia (whether to any of those entities or the agency, or to anyone else); and
(c) the interest is or will be *derived by any of those entities or the agency in carrying on business in a country outside Australia at or through a *permanent establishment it has in that country;
those entities, or the agency, must notify the entity liable to pay the interest that section 12-255 applies to the interest.
12-260(2)
The notice must be given in writing, before the entities, or the agency, enter into the transaction in relation to which the interest is payable, or within one month afterwards.
12-260(3)
Immediately after giving the notice, those entities, or the agency, must notify the Commissioner of:
(a) the particulars of the transaction (including the dates on which interest is payable under it); and
(b) the day when the notice was given to the entity liable to pay the interest.
Failure to comply with this section may contravene section 8C of this Act.
Royalties
SECTION 12-280 12-280 ROYALTY PAYMENT TO OVERSEAS PERSON
An entity must withhold an amount from a *royalty it pays to an entity, or to entities jointly, if:
(a) the recipient or any of the recipients has an address outside Australia according to any record that is in the payer's possession, or is kept or maintained on the payer's behalf, about the transaction to which the royalty relates; or
(b) the payer is authorised to pay the royalty at a place outside Australia (whether to the recipient or any of the recipients or to anyone else).
For limits on the amount to be withheld, see section 12-300.
SECTION 12-285 ROYALTY PAYMENT RECEIVED FOR FOREIGN RESIDENT 12-285(1)An entity that receives a payment of a *royalty must withhold an amount from the payment if:
(a) the entity is a person in Australia or an *Australian government agency; and
(b) a foreign resident is or becomes entitled:
(i) to receive the royalty or part of it from the entity, or to receive the amount of the royalty or of part of it from the entity; or
(ii) to have the entity credit to the foreign resident, or otherwise deal with on the foreign resident's behalf or as the foreign resident directs, the royalty or part of it, or the amount of the royalty or of part of it.For limits on the amount to be withheld, see section 12-300.
12-285(2)
The entity must withhold the amount:
(a) if the foreign resident is so entitled when the entity receives the payment - immediately after the entity receives the payment; or
(b) if the foreign resident becomes so entitled after the entity receives the payment - immediately after the foreign resident becomes so entitled.
General
SECTION 12-300 12-300 LIMITS ON AMOUNT WITHHELD UNDER THIS SUBDIVISION
This Subdivision does not require an entity:
(a) to withhold an amount from a *dividend, from interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936) or from a *royalty if no *withholding tax is payable in respect of the dividend, interest or royalty; or
(b) to withhold from a dividend, from interest (within the meaning of that Division) or from a royalty more than the withholding tax payable in respect of the dividend, interest or royalty (reduced by each amount already withheld from it under this Subdivision).
Note:
Section 128B of the Income Tax Assessment Act 1936 deals with withholding tax liability.
Subdivision 12-FA - Departing Australia superannuation paymentsAn entity must withhold an amount from a *departing Australia superannuation payment it pays to an entity.
This Subdivision does not require an entity:
(a) to withhold an amount from a *departing Australia superannuation payment if no *withholding tax is payable in respect of the payment; or
(b) to withhold from a departing Australia superannuation payment more than the withholding tax payable in respect of the payment (reduced by each amount already withheld from it under this Subdivision).
Note:
Section 301-175 of the Income Tax Assessment Act 1997 deals with the withholding tax liability.
An entity must withhold an amount from an *excess untaxed roll-over amount it pays to an entity.
Note:
An excess untaxed roll-over amount is an amount that may form part of a roll-over superannuation benefit that includes an element untaxed in the fund: see section 306-15 of the Income Tax Assessment Act 1997.
This Subdivision does not require an entity:
(a) to withhold an amount from an *excess untaxed roll-over amount if no *withholding tax is payable on the amount; or
(b) to withhold from an excess untaxed roll-over amount more than the withholding tax payable on the amount (reduced by each amount already withheld from the excess untaxed roll-over amount under this Subdivision).
Note:
Section 306-15 of the Income Tax Assessment Act 1997 deals with liability to this form of withholding tax.
An entity (the payer ) that *carries on an *enterprise must withhold an amount from a payment it makes to another entity, or to other entities jointly, in the course or furtherance of the enterprise if:
(a) the entity receiving the payment, or any of the entities receiving the payment, is an entity covered by subsection (2); and
(b) the payment is of a kind set out in the regulations; and
(c) the payment is not:
(i) a *dividend of a company; or
(ii) interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936); or
(iii) a *royalty; or
(iv) a *departing Australia superannuation payment; or
(v) a payment worked out wholly or partly by reference to the value or quantity of *natural resources produced or recovered in Australia; or
(vi) a *mining payment; or
(vii) an amount represented by or reasonably attributable to a *fund payment; and
(d) the entity receiving the payment is not covered by an exemption in force under subsection 12-319(1), or at least one of the entities receiving the payment is not covered by an exemption in force under that subsection.
12-315(2)
An entity is covered by this subsection if any of the following conditions is satisfied:
(a) the entity is a foreign resident;
(b) the payer believes, or has reasonable grounds to believe, that the entity is a foreign resident;
(c) the payer has no reasonable grounds to believe that the entity is an Australian resident, and either:
(i) the entity has an address outside Australia (according to any record that is in the payer's possession, or is kept or maintained on the payer's behalf, about the transaction to which the payment relates); or
(ii) the payer is authorised to make the payment at a place outside Australia (whether to the entity or to anyone else);
(d) the entity has a connection outside Australia of a kind set out in the regulations.
12-315(3)
Before the Governor-General makes a regulation for the purposes of paragraph (1)(b), the Minister must be satisfied that each payment set out in the regulation is a payment of a kind that could reasonably be related to assessable income of foreign residents.
SECTION 12-317 PAYMENT RECEIVED FOR FOREIGN RESIDENT ETC. 12-317(1)
An entity (the intermediary ) that receives a payment meeting the requirements set out in paragraphs 12-315(1)(b) and (c) must withhold an amount from the payment if:
(a) the intermediary is a person in Australia or an *Australian government agency; and
(b) another entity (the likely foreign recipient ) is or becomes entitled:
(i) to receive the payment or part of it from the intermediary, or to receive the amount of the payment or of part of it from the intermediary; or
(ii) to have the intermediary credit to the likely foreign recipient, or otherwise deal with on the likely foreign recipient's behalf or as the likely foreign recipient directs, the payment or part of it, or the amount of the payment or of part of it; and
(c) the likely foreign recipient is covered by subsection (3); and
(d) the likely foreign recipient is not covered by an exemption in force under subsection 12-319(1).
12-317(2)
The intermediary must withhold the amount:
(a) if the likely foreign recipient is so entitled when the intermediary receives the payment - just after the intermediary receives the payment; or
(b) if the likely foreign recipient becomes so entitled after the intermediary receives the payment - just after the likely foreign recipient becomes so entitled.
12-317(3)
The likely foreign recipient is covered by this subsection if any of the following conditions is satisfied:
(a) the likely foreign recipient is a foreign resident;
(b) the intermediary believes, or has reasonable grounds to believe, that the likely foreign recipient is a foreign resident;
(c) the intermediary has no reasonable grounds to believe that the likely foreign recipient is an Australian resident, and either:
(i) the likely foreign recipient has an address outside Australia (according to any record that is in the intermediary's possession, or is kept or maintained on the intermediary's behalf); or
(ii) the intermediary is authorised to forward the payment to a place outside Australia (whether to the likely foreign recipient or to anyone else);
(d) the likely foreign recipient has a connection outside Australia of a kind set out in the regulations.
SECTION 12-319 EXEMPTIONS FROM WITHHOLDING OBLIGATIONS UNDER THIS SUBDIVISION 12-319(1)
The Commissioner may grant an entity an exemption in writing for the purposes of paragraphs 12-315(1)(d) and 12-317(1)(d) if the Commissioner is satisfied that:
(a) the entity has an established history of compliance with its obligations under *taxation laws; and
(b) the entity is likely to continue to comply with those obligations in the future.
12-319(2)
The exemption is in force during the period:
(a) beginning when the Commissioner grants the exemption; and
(b) ending at the time specified in the exemption.
12-319(3)
Without limiting the matters to which the Commissioner may have regard in deciding whether to grant an entity an exemption, the Commissioner may have regard to the following:
(a) whether the entity is or was liable to pay an instalment under Division 45 at any time in:
(i) the income year in which the exemption is proposed to be granted; and
(ii) the previous 2 income years;
(b) the amount (if any) of the entity's *tax-related liabilities that are currently due and payable;
(c) the extent to which the entity and its *associates (if any) have complied with their obligations under *taxation laws during:
(i) the income year in which the exemption is proposed to be granted; and
(ii) the previous 2 income years.
12-319(4)
The Commissioner must give a copy of the exemption to the entity to which it relates.
12-319(5)
A failure to comply with subsection (4) does not affect the validity of the exemption.
Subdivision 12-FC - Labour mobility programs
An entity must withhold an amount from salary, wages, commission, bonuses or allowances it pays to an individual: (a) as an employee of an Approved Employer (whether the entity or another entity) under a program covered by section 840-906 of the Income Tax Assessment Act 1997 (about labour mobility programs); and (b) at a time when the employee is a foreign resident and:
(i) the employee holds a Temporary Work (International Relations) Visa (subclass 403); or
(ii) the employee holds a Temporary Activity Visa (subclass 408) having previously held a Temporary Work (International Relations) Visa (subclass 403); or
(iii) the employee holds a visa of a kind prescribed by regulations made under the Income Tax Assessment Act 1997 for the purposes of subparagraph 840-905(b)(iii) of that Act.
SECTION 12-320 MINING PAYMENT 12-320(1)
An entity must withhold an amount from a *mining payment that:
(a) it makes to another entity; or
(b) it applies for the benefit of another entity.
12-320(2)
Subsection (1) does not require the entity to withhold more than the *mining withholding tax payable in respect of the *mining payment.
Note:
Section 128V of the Income Tax Assessment Act 1936 deals with mining withholding tax liability.
Natural resources
SECTION 12-325 NATURAL RESOURCE PAYMENT 12-325(1)
An entity must withhold an amount from a payment it makes to a foreign resident, or to 2 or more entities at least one of which is a foreign resident, if the payment is worked out wholly or partly by reference to the value or quantity of *natural resources produced or recovered in Australia.
12-325(2)
The amount to be withheld is:
(a) the amount notified by the Commissioner under section 12-330; or
(b) the amount worked out under a certificate in force under section 12-335 that covers the payment;
as appropriate.
Exception
12-325(3)
Subsection (1) does not apply if:
(a) the Commissioner has notified the entity under section 12-330 that the entity does not need to withhold an amount from the payment; or
(b) a certificate in force under section 12-335 covers the payment and does not require the entity to withhold an amount from it.
SECTION 12-330 PAYER MUST ASK COMMISSIONER HOW MUCH TO WITHHOLD 12-330(1)
An entity must not intentionally make a payment from which section 12-325 requires it to withhold an amount, unless:
(a) the entity has notified the Commissioner in writing of the amount of the proposed payment; and
(b) the Commissioner has later notified the entity in writing of the amount (if any) that the entity must withhold from the payment in respect of tax or *petroleum resource rent tax that is or may become payable by a foreign resident to whom the payment is made;
or the payment is covered by a certificate in force under section 12-335.
Penalty: 20 penalty units.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Failure to notify not an offence against section 8C
12-330(2)
An entity that fails to notify the Commissioner as required by subsection (1) does not commit an offence against section 8C.
SECTION 12-335 COMMISSIONER MAY EXEMPT FROM SECTION 12-330, SUBJECT TO CONDITIONS 12-335(1)
The Commissioner may give an entity a written certificate exempting the entity from complying with section 12-330 for specified payments.
12-335(2)
A certificate is subject to:
(a) a condition that the entity must withhold from a payment covered by the certificate the amount (if any) worked out in accordance with the certificate in respect of tax or *petroleum resource rent tax that is or may become payable by a foreign resident to whom the payment is made; and
(b) such other conditions as the certificate specifies.
However, the entity does not contravene subsection 12-330(1) because it contravenes a condition.
12-335(3)
The Commissioner may, by written notice given to the entity:
(a) revoke a certificate, whether or not a condition of it has been contravened; or
(b) vary a certificate by revoking, changing or adding to its conditions.
Note:
A person who is dissatisfied with a decision under this section may object against the decision in the manner set out in Part IVC.
Subdivision 12-H - Distributions of withholding MIT income
SECTION 12-375 WHAT THIS SUBDIVISION IS ABOUT
A withholding MIT may be required to withhold an amount from a payment of its Australian sourced net income (other than dividends, interest and royalties) if the payment is made to an entity whose address, or place for payment, is outside Australia. If the payment is made to another entity, the withholding MIT is required to make information available to the recipient outlining certain details in relation to the payment.
If a custodian receives a payment that is covered by that information, it is required to withhold an amount from any related later payment to an entity whose address, or place for payment, is outside Australia. If the later payment is made to another entity, the custodian is required to make information available in relation to that later payment.
If an entity that is not a custodian receives a payment that is covered by that information, it is required to withhold an amount from that payment if a foreign resident becomes entitled to that payment. If a resident becomes entitled to the payment, the entity must make information available in relation to that payment.
Where there is an obligation to withhold, the applicable withholding rate is determined by the nature of the country or territory in which the recipient's address, place for payment or residency is located and whether the trust is a clean building managed investment trust.
A managed investment trust is a clean building managed investment trust if it is a managed investment trust that holds one or more clean buildings and does not derive assessable income from any other taxable Australian property (other than certain assets that are reasonably incidental to a clean building).
| Operative provisions | |
| 12-383 | Meaning of withholding MIT |
| 12-385 | Withholding by withholding MITs |
| 12-390 | Withholding by custodians and other entities |
| 12-395 | Requirement to give notice or make information available |
| 12-400 | (Repealed by No 53 of 2016) |
| 12-401 | (Repealed by No 53 of 2016) |
| 12-402 | (Repealed by No 53 of 2016) |
| 12-402A | (Repealed by No 53 of 2016) |
| 12-402B | (Repealed by No 53 of 2016) |
| 12-403 | (Repealed by No 53 of 2016) |
| 12-404 | (Repealed by No 53 of 2016) |
| 12-405 | Meaning of fund payment - general case |
| 12-410 | Entity to whom payment is made |
| 12-415 | Failure to give notice or make information available: administrative penalty |
| 12-420 | Agency rules |
| 12-425 | Meaning of clean building managed investment trust |
| 12-430 | Meaning of clean building |
| 12-435 | Meaning of non-concessional MIT income |
| 12-436 | Meaning of asset entity, operating entity, cross staple arrangement and stapled entity |
| 12-437 | Meaning of MIT cross staple arrangement income |
| 12-438 | MIT cross staple arrangement income - de minimis exception |
| 12-439 | MIT cross staple arrangement income - approved economic infrastructure facility exception |
| 12-440 | Transitional - MIT cross staple arrangement income |
| 12-441 | Integrity rule - concessional cross staple rent cap |
| 12-442 | Meaning of excepted MIT CSA income |
| 12-443 | Concessional cross staple rent cap - existing lease with specified rent or rent method |
| 12-444 | Concessional cross staple rent cap - general |
| 12-445 | Asset entity to allocate deductions first against rental income that is not MIT cross staple arrangement income |
| 12-446 | Meaning of MIT trading trust income |
| 12-447 | Transitional - MIT trading trust income |
| 12-448 | Meaning of MIT agricultural income, Australian agricultural land for rent and Division 6C land |
| 12-449 | Transitional - MIT agricultural income |
| 12-450 | Meaning of MIT residential housing income |
| 12-451 | Transitional - MIT residential housing income |
| 12-452 | Meaning of residential dwelling asset |
| 12-453 | MIT agricultural income and MIT residential housing income - capital gains in relation to membership interests |
SECTION 12-383 MEANING OF WITHHOLDING MIT 12-383(1)
A trust is a withholding MIT in relation to an income year if:
(a) it is a *managed investment trust in relation to that income year because of paragraph 275-10(1)(a) or subsection 275-10(2) of the Income Tax Assessment Act 1997; and
(b) a substantial proportion of the investment management activities carried out in relation to the trust in respect of all of the following assets of the trust are carried out in Australia throughout the income year:
(i) assets that are situated in Australia at any time in the income year;
(ii) assets that are *taxable Australian property at any time in the income year;
(iii) assets that are *shares, units or interests listed for quotation in the official list of an *approved stock exchange in Australia at any time in the income year.
12-383(2)
For the purposes of ascertaining whether a trust is a *managed investment trust in relation to that income year for the purposes of paragraph (1)(a), treat as a *fund payment by the trustee of the trust any amount that, under subsection 12A-205(2), would be treated as a payment by the trustee if the trust were an *AMIT.
Note:
The making of a fund payment is a requirement for the trust to be a managed investment trust under paragraph 275-10(1)(a) and subsection 275-10(3) of the Income Tax Assessment Act 1997.
A trustee of a trust that is a *withholding MIT in relation to an income year that makes a *fund payment in relation to that income year to an entity covered by section 12-410 must withhold an amount from the payment.
Note 1:
An entity may be covered by section 12-410 if the entity has an address outside Australia or payment is authorised to be made to a place outside Australia.
Note 2:
If the payment is made to a recipient not covered by section 12-410, the trustee is required to give a notice to the recipient or publish information on a website setting out certain details about the payment: see section 12-395.
12-385(2)
The amount the trustee must withhold is:
| *Fund payment × Rate applicable under subsection (3) |
12-385(3)
The rate is:
(a) if the address or place for payment of the recipient is in an *information exchange country:
(i) 15% for *fund payments (except to the extent mentioned in subparagraph (ii) or (iii)); or
(ii) 10% for fund payments, to the extent that they are, or are attributable to, fund payments from a *clean building managed investment trust (except to the extent mentioned in subparagraph (iii)); or
(iii) 30% for fund payments, to the extent that they are attributable to *non-concessional MIT income (see section 12-435); or
(b) otherwise - 30%.
12-385(4)
An information exchange country is a foreign country or foreign territory specified in the regulations for the purposes of this section.
12-385(5)
This section does not apply to an amount paid by a *withholding MIT to the extent that no *managed investment trust withholding tax is payable in respect of the payment or an amount reasonably attributable to the payment.
Withholding by custodians
12-390(1)
A *custodian must withhold an amount from a payment (the later payment ) it makes if: (a) all or some of the later payment (the covered part ) is reasonably attributable to the part of an earlier payment received by the custodian that was covered by a notice or information under section 12-395; and (b) the later payment is made to an entity covered by section 12-410.
Note 1:
The covered part referred to in paragraph (1)(a) is attributable to a fund payment made by a withholding MIT, or 2 or more fund payments made by one or more withholding MITs. One or more of those withholding MITs may be AMITs.
Note 2:
An entity may be covered by section 12-410 if the entity has an address outside Australia or payment is authorised to be made to a place outside Australia.
Note 3:
If the payment is made to a recipient not covered by section 12-410, the custodian is required to give a notice to the recipient or publish information on a website setting out certain details about the payment: see section 12-395.
12-390(2)
The amount the *custodian must withhold is:
| Covered part × Rate applicable under subsection (3) |
12-390(3)
The rate is: (a) if the address or place for payment of the recipient is in an *information exchange country:
(i) 15% for *fund payments (except to the extent mentioned in subparagraph (ii) or (iii)); or
(ii) 10% for fund payments, to the extent that they are, or are attributable to, fund payments from a *clean building managed investment trust (except to the extent mentioned in subparagraph (iii)); or
(b) otherwise - 30%.
(iii) 30% for fund payments, to the extent that they are attributable to *non-concessional MIT income (see section 12-435); or
Withholding by other entities
12-390(4)
An entity that is not a *withholding MIT or a *custodian must withhold an amount from a payment it receives if: (a) the payment or part of it (the covered part ) was covered by a notice or information under section 12-395; and (b) a foreign resident (the recipient ) is or becomes entitled:
(i) to receive from the entity; or
an amount (the attributable amount ) reasonably attributable to the covered part.
(ii) to have the entity credit to the recipient, or otherwise deal with on the recipient's behalf or as the recipient directs;
Note 1:
The covered part referred to in paragraph (4)(a) is attributable to a fund payment made by a withholding MIT, or 2 or more fund payments made by one or more withholding MITs. One or more of those withholding MITs may be AMITs.
Note 2:
If the recipient is not a foreign resident, the entity is required to give a notice to the recipient or publish information on a website setting out certain details about the payment: see section 12-395.
12-390(5)
The amount the entity must withhold is:
| Attributable amount × Rate applicable under subsection (6) |
12-390(6)
The rate is: (a) if the recipient is a resident of an *information exchange country:
(i) 15% for *fund payments (except to the extent mentioned in subparagraph (ii) or (iii)); or
(ii) 10% for fund payments, to the extent that they are, or are attributable to, fund payments from a *clean building managed investment trust (except to the extent mentioned in subparagraph (iii)); or
(b) otherwise - 30%.
(iii) 30% for fund payments, to the extent that they are attributable to *non-concessional MIT income (see section 12-435); or
12-390(7)
An entity is a resident of an *information exchange country if: (a) the entity is a resident of that country for the purposes of the taxation laws of that country; or (b) if there are no taxation laws of that country applicable to the entity or the entity's residency status cannot be determined under those laws:
(i) for an individual - the individual is ordinarily resident in that country; or
(ii) for another entity - the entity is incorporated or formed in that country and is carrying on a business in that country.
12-390(8)
An amount required to be withheld under subsection (4) must be withheld: (a) if the recipient is so entitled when the entity receives the payment - immediately after receipt; or (b) if the recipient becomes so entitled at a later time - immediately after the later time.
Meaning of custodian
12-390(9)
An entity is a custodian if: (a) the entity is *carrying on a *business that consists predominantly of providing a custodial or depository service (within the meaning of the Corporations Act 2001) pursuant to an *Australian financial services licence; or (b) the entity is acting on behalf of an entity that is carrying on such a business pursuant to such a licence.
Exceptions
12-390(10)
This section does not apply: (a) to a company unless the company would, apart from section 12-420, be acting in the capacity as *agent for the recipient; or (b) to an amount paid or received by an entity to the extent that no *managed investment trust withholding tax is payable in respect of the amount or an amount reasonably attributable to the amount.
Withholding MITs and custodians
12-395(1)
An entity that is a *withholding MIT or a *custodian must comply with subsection (2) if: (a) the entity makes a payment to another entity (the recipient ) from which an amount would have been required to be withheld under section 12-385 or subsection 12-390(1) if the payment had been made to an entity covered by section 12-410; and (b) an amount is not required to be withheld from the payment because the recipient is not an entity covered by section 12-410.
Note:
An entity may be covered by section 12-410 if the entity has an address outside Australia or payment is authorised to be made to a place outside Australia.
12-395(2)
The entity must: (a) give to the recipient a written notice containing the details specified in subsection (3); or (b) make those details available on a website in a way that the details are readily accessible to the recipient for not less than 5 continuous years.
12-395(3)
The notice must be given, or the details must be made available on a website, before or at the time when the payment is made and: (a) must specify the part of the payment from which an amount would have been so required to have been withheld; and (aa) must specify the extent (if any) to which the payment is, or is attributable to, a *fund payment from a *clean building managed investment trust; and (ab) must specify the extent (if any) to which the payment is, or is attributable to, *non-concessional MIT income (see section 12-435); and (ac) must specify the extent (if any) to which the payment is, or is attributable to, an amount that would be non-concessional MIT income if the following provisions were disregarded:
(i) subsection 12-437(5);
(ad) must specify the extent (if any) to which the payment is, or is attributable to, an amount that would be non-concessional MIT income only if subsection 12-450(5) were disregarded; and (b) must specify the income year of the *withholding MIT to which that part relates.
(ii) sections 12-440, 12-447, 12-449 and 12-451; and
Note:
Failure to give the notice or make the details available as required by this section incurs an administrative penalty: see section 12-415.
Other entities
12-395(4)
An entity that is not a *withholding MIT or a *custodian must comply with subsection (5) if: (a) the entity receives a payment; and (b) another entity (also the recipient ) is or becomes entitled:
(i) to receive from the entity; or
an amount attributable to the payment; and (c) the entity would have been required to withhold an amount from the payment under subsection 12-390(4) if the recipient had been a foreign resident; and (d) an amount is not required to be withheld from the payment because the recipient is not a foreign resident.
(ii) to have the entity credit to the recipient, or otherwise deal with on the recipient's behalf or as the recipient directs;
12-395(5)
The entity must: (a) give to the recipient a written notice containing the details specified in subsection (6); or (b) make those details available on a website in a way that the details are readily accessible to the recipient for not less than 5 continuous years.
12-395(6)
The notice must be given, or the details must be made available on a website, before or at the time when the amount is paid or credited to the recipient, or is dealt with on the recipient's behalf or as the recipient directs, and: (a) must specify the part of the payment referred to in paragraph (4)(a) from which an amount would have been so required to have been withheld; and (aa) must specify the extent (if any) to which the payment is, or is attributable to, a *fund payment from a *clean building managed investment trust; and (ab) must specify the extent (if any) to which the payment is, or is attributable to, *non-concessional MIT income (see section 12-435); and (ac) must specify the extent (if any) to which the payment is, or is attributable to, an amount that would be non-concessional MIT income if the following provisions were disregarded:
(i) subsection 12-437(5);
(ad) must specify the extent (if any) to which the payment is, or is attributable to, an amount that would be non-concessional MIT income only if subsection 12-450(5) were disregarded; and (b) must specify the income year of the *withholding MIT to which that part relates.
(ii) sections 12-440, 12-447, 12-449 and 12-451; and
Note:
Failure to give the notice or make the details available as required by this section incurs an administrative penalty: see section 12-415.
(Repealed by No 53 of 2016)
(Repealed by No 53 of 2016)
(Repealed by No 53 of 2016)
(Repealed by No 53 of 2016)
(Repealed by No 53 of 2016)
(Repealed by No 53 of 2016)
(Repealed by No 53 of 2016)
The object of this section is to ensure that the total of the *fund payments that the trustee of a trust makes in relation to an income year equals, as nearly as practicable, the net income of the trust for the income year, disregarding these amounts ( excluded amounts ):
(a) a dividend (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to, or exempted from, a requirement to withhold under Subdivision 12-F;
(b) interest (as so defined) that is subject to, or exempted from, such a requirement;
(c) a *royalty that is subject to, or exempted from, such a requirement;
(d) a *capital gain or *capital loss from a *CGT event that happens in relation to a *CGT asset that is not *taxable Australian property;
(e) amounts that are not from an *Australian source;
and disregarding deductions relating to excluded amounts.
12-405(1A)
This section applies to a trust that is not an *AMIT for an income year.
Note:
For the definition of fund payment in respect of a trust that is an AMIT for an income year, see section 12A-110.
12-405(2)
Work out as follows how much of a payment (the actual payment ) made by the trustee of a trust in relation to an income year is a fund payment in relation to that year: Method statement
Step 1.
Reduce the actual payment by so much of it that is attributable to excluded amounts, and increase it by any amounts to which subsection (2A) or (2B) applies for the income year (except to the extent that capital gains against which those amounts are applied are included in the actual payment made in relation to the income year).
Step 2.
Work out what it is reasonable to expect will be the *net income of the trust for the income year:
Step 3.
The fund payment is so much of the step 2 amount as is reasonable having regard to:
12-405(2A)
If:
(a) during an income year, a *capital loss from a *CGT event happens in relation to a *CGT asset that is not *taxable Australian property; and
(b) in relation to that income year, some or all of the capital loss is applied against a *capital gain from a CGT event that happens in relation to a CGT asset that is taxable Australian property;
this subsection applies, for that income year, to the amount that is so applied.
12-405(2B)
If:
(a) the trust has a *net capital loss for an income year; and
(b) one or more of the *capital losses the trust made during that income year were from *CGT events that happened in relation to *CGT assets that were not *taxable Australian property; and
(c) in relation to a later income year, some or all of the net capital loss is applied against a *capital gain from a CGT event that happens in relation to a CGT asset that is taxable Australian property;
this subsection applies, for the later income year, to an amount equal to so much of the net capital loss that is so applied as related to capital losses mentioned in paragraph (b).
12-405(3)
The expected *net income of the trust and the expected amounts of future *fund payments are to be worked out on the basis of the trustee's knowledge when the actual payment is made.
12-405(4)
However, an amount is not a fund payment in relation to the income year unless it is paid:
(a) during the income year; or
(b) within 3 months after the end of the income year; or
(c) within a longer period (starting at the end of the period referred to in paragraph (b) and not exceeding 3 months) allowed by the Commissioner.
12-405(5)
The Commissioner may allow a longer period as mentioned in paragraph (4)(c) only if the Commissioner is of the opinion that the trustee was unable to make the payment during the income year, or within 3 months after the end of the income year, because of circumstances beyond the influence or control of the trustee.
An entity (the recipient ) is covered by this section for a payment made to it by another entity (the payer ) if:
(a) according to any record that is in the payer's possession, or is kept or maintained on the payer's behalf, the recipient has an address outside Australia; or
(b) the payer is authorised to make the payment to a place outside Australia.
12-410(2)
However, a recipient is not covered by this section for a payment if, at the time the payment was made, a *business the recipient carries on is carried on at or through an *Australian permanent establishment and the payment is attributable to that establishment.
An entity that:
(a) is required to give a notice, or make details available on a website, under section 12-395 in relation to:
(i) a payment made to another entity; or
(ii) an amount paid or credited to, or dealt with on behalf of or as directed by, another entity; and
(b) fails to comply with that section;
is liable to pay to the Commissioner a penalty equal to the amount that would have been required to be withheld under this Subdivision (disregarding subsection 12-385(5) and paragraph 12-390(10)(b)) in relation to amounts attributable to the payment or amount if the notice had been given or the details had been made available.
Note:
Division 298 in this Schedule contains machinery provisions for administrative penalties.
This section applies to:
(a) a payment (the first payment ) made to an entity (the first entity ) in the capacity as *agent for another entity; and
(b) another payment made by the first entity to the extent that it is reasonably attributable to the first payment.
12-420(2)
This Subdivision has effect as if the first entity were not an *agent in relation to the payments.
Note:
As a result of subsection (2), an agent may be required to withhold amounts under this Subdivision.
A trust is a clean building managed investment trust in relation to an income year if during the income year:
(a) it is a *withholding MIT in relation to the income year; and
(b) it holds one or more *clean buildings (including the land on which the buildings are situated); and
(c) it does not derive assessable income from any *taxable Australian property (other than from the clean buildings or assets that are reasonably incidental to those buildings).
5% safe harbour for certain income reasonably incidental to a clean building
12-425(2)
A trust is not a *clean building managed investment trust in relation to an income year if the assessable income of the trust that is derived from assets that are reasonably incidental to *clean buildings is greater than 5% of the assessable income of the trust that is derived from clean buildings.
12-425(3)
The regulations may specify kinds of assets that are, or are not, reasonably incidental to *clean buildings for the purposes of this section.
A building is a clean building if:
(a) the construction of the building commenced on or after 1 July 2012; and
(b) it satisfies the requirements in subsections (3) and (4).
12-430(2)
For the purpose of subsection (1):
(a) the construction of the building is taken to have commenced at the time the works on the lowest level (including any basement level) of the building commence; and
(b) the construction of the building is not taken to have commenced merely because works preparing the site for construction, or works undertaken below the lowest level of the building (including any basement level), have commenced.
12-430(3)
A building satisfies the requirements in this subsection if:
(a) the building is a commercial building that is any of the following (or is a combination of any of the following):
(i) an office building;
(ii) a hotel for use wholly or mainly to provide short-term accommodation for travellers;
(iii) a shopping centre; or
(b) the building satisfies the requirements prescribed by the regulations for the purposes of this paragraph.
12-430(4)
A building satisfies the requirements in this subsection if:
(a) the building:
(i) has, and continues to maintain at all times during the income year, at least a 5 Star Green Star rating as certified by the Green Building Council of Australia; or
(ii) has, and continues to maintain at all times during the income year, at least a 5.5 star energy rating as accredited by the National Australian Built Environment Rating System ( NABERS ); or
(b) the building satisfies the requirements prescribed by the regulations for the purposes of this paragraph.
12-430(5)
For the purposes of subsection (4), if:
(a) a building has previously satisfied the requirements in that subsection; and
(b) the building then fails to satisfy the requirements for a period (the non-compliance period ); and
(c) within 180 days after the first day of that failure, the building again satisfies the requirements;
treat the building as having satisfied the requirements during the non-compliance period.
Non-concessional MIT income
means any of the following:
(a) *MIT cross staple arrangement income;
(b) *MIT trading trust income;
(c) *MIT agricultural income;
(d) *MIT residential housing income.
An asset entity in relation to an income year is a trust or partnership that is not covered by subsection 275-10(4) of the Income Tax Assessment Act 1997 in relation to the income year.
12-436(2)
An operating entity in relation to an income year is a trust, partnership or company that is covered by subsection 275-10(4) of the Income Tax Assessment Act 1997 in relation to the income year.
12-436(3)
For the purposes of this section, in determining whether a partnership or company is covered by subsection 275-10(4) of the Income Tax Assessment Act 1997, treat the partnership or company as a trust.
12-436(4)
A cross staple arrangement is an *arrangement that is entered into by 2 or more entities (the arrangement entities ) if:
(a) at least one of the arrangement entities is an *asset entity; and
(b) at least one of the arrangement entities is an *operating entity; and
(c) the following conditions are satisfied:
(i) one or more other entities (the external entities ) each hold a *total participation interest in each arrangement entity;
(ii) the sum of the total participation interests held by the external entities in each arrangement entity is 80% or more.
12-436(5)
For the purposes of subparagraph (4)(c)(ii), in working out the sum of the *total participation interests held by the external entities in each arrangement entity, take into account:
(a) a particular *direct participation interest; or
(b) a particular *indirect participation interest;
held in the arrangement entity only once if it would otherwise be counted more than once.
12-436(6)
Subsection (7) applies if:
(a) an external entity holds *total participation interests in 2 or more arrangement entities; and
(b) either:
(i) the amount (the lowest participation interest amount )of one of those participation interests falls short of the amount of each of the other participation interests; or
(ii) the amount (the lowest participation interest amount ) of 2 or more of those participation interests is the same but falls short of the amount of each of the other participation interests.
12-436(7)
For the purposes of paragraph (4)(c), treat the amount of the *total participation interest held by the external entity in each of the arrangement entities as being equal to the lowest participation interest amount.
12-436(8)
Each of the entities that entered into the *cross staple arrangement is a stapled entity in relation to the cross staple arrangement.
This section applies if:
(a) an amount is included in the assessable income for an income year of a *managed investment trust in relation to the income year (worked out for the purposes of determining the trust's *net income, or in the case of an *AMIT, the trust's total assessable income, for the income year); and
(b) the amount mentioned in paragraph (a) is, or is attributable to, an amount derived, received or made from another entity (the second entity ); and
(c) the amount mentioned in paragraph (a) is not an amount mentioned in paragraph 12-405(1)(a), (b), (c), (d) or (e).
12-437(2)
The amount is MIT cross staple arrangement income of the *managed investment trust if:
(a) either:
(i) the *managed investment trust is an *asset entity in relation to the income year and is a *stapled entity in relation to a *cross staple arrangement; or
(ii) the second entity is an asset entity in relation to the income year and is a stapled entity in relation to a cross staple arrangement; and
(b) either:
(i) if subparagraph (a)(i) applies - the second entity is an *operating entity in relation to the income year and is a stapled entity in relation to the cross staple arrangement; or
(ii) if subparagraph (a)(ii) applies - another entity (the third entity ) is an operating entity in relation to the income year and is a stapled entity in relation to the cross staple arrangement; and
(c) either:
(i) if subparagraph (a)(i) applies - the amount is derived, received or made by the managed investment trust from the second entity; or
(ii) if subparagraph (a)(ii) applies - the amount is attributable to an amount derived, received or made by the second entity from the third entity.
12-437(3)
The amount is not MIT cross staple arrangement income of the *managed investment trust under subsection (2) to the extent that it is attributable to an amount that satisfies the following requirements:
(a) the amount is derived, received or made by a *stapled entity in relation to the *cross staple arrangement from an entity that is not a stapled entity in relation to the cross staple arrangement;
(b) the amount mentioned in paragraph (a) is *rent from land investment.
12-437(4)
The amount is not MIT cross staple arrangement income of the *managed investment trust under subsection (2) to the extent that it is, or is attributable to, an amount covered by subsection 12-438(1).
Note:
The managed investment trust may be an asset entity in relation to the cross staple arrangement. If so, it may have no MIT cross staple arrangement income for the income year as a result of the operation of this subsection.
12-437(5)
The amount is not MIT cross staple arrangement income of the *managed investment trust under subsection (2) to the extent that it is, or is attributable to, *rent from land investment that is:
(a) attributable to a facility, or an improvement to a facility; and
(b) referable to a time in the income year when the facility, or the improvement to the facility, is covered by section 12-439.
12-437(6)
Subsection (7) applies if:
(a) an *asset entity in relation to the income year mentioned in paragraph (1)(a) makes a *capital gain because an *operating entity in relation to the income year *acquires an asset from the asset entity; and
(b) the asset entity and the operating entity are *stapled entities in relation to the *cross staple arrangement.
12-437(7)
The amount is not MIT cross staple arrangement income of the *managed investment trust under subsection (2) to the extent that it is attributable to the *capital gain.
For the purposes of subsection 12-437(4), this subsection covers an amount if:
(a) the amount is *MIT cross staple arrangement income for the income year of an *asset entity in relation to the *cross staple arrangement; and
(b) the MIT cross staple arrangement income of the asset entity for the previous income year does not exceed 5% of the amount mentioned in subsection (3).
12-438(2)
For the purposes of subsection (1), in working out the *MIT cross staple arrangement income of the *asset entity for the previous income year, disregard subsections 12-437(4) and (5).
12-438(3)
The amount is:
(a) if the *asset entity is not an *AMIT for the income year - the assessable income of the asset entity for the previous income year (worked out for the purposes of determining the *net income of the asset entity for the income year); or
(b) if the asset entity is an AMIT for the income year - the total assessable income (as mentioned in subsection 276-265(2) of the Income Tax Assessment Act 1997) of the asset entity for the previous income year.
12-438(4)
For the purposes of subsection (3), in working out the assessable income, or the total assessable income, of the *asset entity for the previous income year, disregard any *net capital gain of the asset entity for that year.
12-438(5)
If the *asset entity did not exist in the previous income year:
(a) treat references in this section to the previous income year as instead being references to the income year; and
(b) treat references in this section to the *MIT cross staple arrangement income of the asset entity as instead being references to a reasonable estimate of the MIT cross staple arrangement income of the asset entity; and
(c) treat references in this section to the assessable income of the asset entity as instead being references to a reasonable estimate of the assessable income of the asset entity; and
(d) treat references in this section to the total assessable income of the asset entity as instead being references to a reasonable estimate of the total assessable income of the asset entity.
12-438(6)
If the *asset entity exists in an income year, but is not a *managed investment trust in relation to that income year, for the purposes of this section, treat it as a managed investment trust in relation to that income year that is not an *AMIT for that income year.
This section covers a facility at a time if: (a) the facility is covered by an approval of the Treasurer under this section that is in force at that time; and (b) that time is no later than the end of the period of 15 years beginning on the day on which an asset that is part of the facility is first put to use.
12-439(2)
This section covers an improvement to a facility at a time if: (a) the improvement to the facility is covered by an approval of the Treasurer under this section that is in force at that time; and (b) that time is no later than the end of the period of 15 years beginning on the day on which an asset that is part of the facility is first put to use after it has been improved under the improvement.
12-439(3)
An *Australian government agency (other than the Commonwealth) may make an application to the Treasurer in respect of a facility, or an improvement to a facility, specified in the application.
12-439(4)
The Treasurer may approve the facility, or the improvement to the facility, specified in the application under subsection (3) if the Treasurer is satisfied that the following criteria are met: (a) the facility is an *economic infrastructure facility; (b) in the case of an application in respect of a facility:
(i) the estimated capital expenditure on the facility is $500 million or more; and
(ii) the facility is yet to be constructed; and
(iii) the facility will significantly enhance the long-term productive capacity of the economy; and
(c) in the case of an application in respect of an improvement to a facility:
(iv) approving the facility is in the national interest;
(i) the estimated capital expenditure on the improvement is $500 million or more; and
(ii) the improvement is yet to be constructed; and
(iii) the improvement will significantly enhance the long-term productive capacity of the economy; and
(iv) approving the improvement is in the national interest.
12-439(5)
An economic infrastructure facility is a facility that is any of the following: (a) transport infrastructure; (b) energy infrastructure; (c) communications infrastructure; (d) water infrastructure.
12-439(6)
An approval under subsection (4): (a) must be in writing; and (b) must specify the facility, or the improvement, that is approved; and (c) must specify the date on which the approval comes into force; and (d) may contain any other information that the Treasurer considers appropriate.
12-439(7)
The Treasurer may publish an approval under subsection (4) in any way that he or she considers appropriate.
12-439(8)
If the Treasurer decides not to approve the facility, or the improvement to a facility, specified in the application under subsection (3), the Treasurer must notify the applicant of the decision, in writing, as soon as practicable after making the decision.
This section applies if:
(a) before 27 March 2018, an *Australian government agency:
(i) decided to approve the *acquisition, creation or lease of a facility; and
(ii) publicly announced that decision; and
(iii) took significant preparatory steps to implement that decision; and
(b) either:
(i) a *cross staple arrangement was entered into in relation to the facility before 27 March 2018; or
(ii) it was reasonable on 27 March 2018 to conclude that a cross staple arrangement will be entered into in relation to the facility; and
(c) all the entities that are *stapled entities in relation to the cross staple arrangement already existed before 27 March 2018; and
(d) each entity that is a stapled entity in relation to the cross staple arrangement has made a choice in accordance with subsection (5).
12-440(2)
This section also applies if:
(a) any of the following applies:
(i) an entity entered into a contract before 27 March 2018 for the *acquisition, creation or lease of a facility;
(ii) an entity owns, or is the lessee of, a facility at a time before 27 March 2018; and
(b) either:
(i) a *cross staple arrangement was entered into in relation to the facility before 27 March 2018; or
(ii) it was reasonable on 27 March 2018 to conclude that a cross staple arrangement will be entered into in relation to the facility; and
(c) all the entities that are *stapled entities in relation to the cross staple arrangement already existed before 27 March 2018; and
(d) each entity that is a stapled entity in relation to the cross staple arrangement has made a choice in accordance with subsection (5).
12-440(3)
An amount included in the assessable income for an income year of a *managed investment trust is not MIT cross staple arrangement income of the managed investment trust if:
(a) the amount is, or is attributable to, an amount derived, received or made from another entity (the second entity ); and
(b) the amount relates to the facility; and
(c) the second entity is a *stapled entity in relation to the *cross staple arrangement; and
(d) either:
(i) if subparagraph 12-437(2)(a)(i) applies - the amount is *rent from land investment paid from an *operating entity in relation to the cross staple arrangement to the managed investment trust; or
(ii) if subparagraph 12-437(2)(a)(ii) applies - the amount is attributable to rent from land investment paid from an operating entity in relation to the cross staple arrangement to an *asset entity in relation to the cross staple arrangement; and
(e) the time when the amount was derived, received or made by the managed investment trust meets the requirements in subsection (4).
12-440(4)
The time meets the requirements in this subsection if:
(a) where the facility to which the *cross staple arrangement relates is not an *economic infrastructure facility - the time is before 1 July 2031 and before the later of:
(i) 1 July 2026; and
(ii) the end of the period of 7 years beginning on the earliest day on which an asset that is part of that facility is first put to use for the purpose of producing assessable income; or
(b) where the facility to which the cross staple arrangement relates is an economic infrastructure facility - the time is before 1 July 2039 and before the later of:
(i) 1 July 2034; and
(ii) the end of the period of 15 years beginning on the earliest day on which an asset that is part of that facility is first put to use for the purpose of producing assessable income.
12-440(5)
An entity makes a choice in accordance with this subsection if:
(a) the entity makes the choice in the *approved form; and
(b) the entity makes the choice no later than:
(i) 30 June 2019; or
(ii) a later time allowed by the Commissioner; and
(c) the entity gives the choice to the Commissioner within 60 days after the entity makes the choice.
12-440(6)
The choice cannot be revoked.
This section applies if:
(a) a *managed investment trust in relation to an income year derives, receives or makes an amount of *excepted MIT CSA income for the income year; and
(b) if the amount is excepted MIT CSA income because of subsection 12-440(3) - paragraph 12-440(4)(b) applies (15 year concession); and
(c) the amount of excepted MIT CSA income is, or is attributable to, *rent from land investment under a lease (the cross staple lease ) entered into by:
(i) the *asset entity mentioned in paragraph 12-437(2)(a) (the relevant asset entity ); and
(ii) the *operating entity mentioned in paragraph 12-437(2)(b) (the relevant operating entity ).
12-441(2)
To the extent (if any) that the amount of the relevant asset entity's *excepted MIT CSA income exceeds its *concessional cross staple rent cap for the income year, the following provisions do not apply to the amount of the *managed investment trust's excepted MIT CSA income mentioned in paragraph (1)(a):
(a) subsection 12-437(5);
(b) subsection 12-440(3).
12-441(3)
If the relevant asset entity is not a *managed investment trust in relation to the income year, for the purposes of subsection (2), treat it as a managed investment trust in relation to the income year.
An amount is excepted MIT CSA income of a *managed investment trust in relation to an income year if it would be *MIT cross staple arrangement income of the managed investment trust but for any of the following provisions:
(a) subsection 12-437(5);
(b) subsection 12-440(3).
This section applies if:
(a) the amount mentioned in subsection 12-441(1) is *excepted MIT CSA income because of subsection 12-440(3); and
(b) the cross staple lease was entered into before 27 March 2018; and
(c) the cross staple lease, or associated documents, specified any of the following before 27 March 2018:
(i) the amount of annual rent under the lease for the first year of the lease that ends after 27 March 2018;
(ii) an objective method for determining the amount of annual rent under the lease; and
(d) if subparagraph (c)(ii) applies - the method is set out in the cross staple lease, or the associated documents, before 27 March 2018.
12-443(2)
If subparagraph (1)(c)(ii) applies, the concessional cross staple rent cap for an income year of the *managed investment trust is the amount of annual rent determined for the income year under the method mentioned in that subparagraph.
12-443(3)
If subparagraph (1)(c)(ii) does not apply, the concessional cross staple rent cap for an income year of the *managed investment trust is:
(a) for an income year where the lease, or the associated documents, specify the amount of annual rent for the corresponding year of the lease under subsection (4) - that amount; or
(b) for an income year where that amount is not so specified - the amount worked out under paragraph (a) in relation to the most recent year of the lease for which an amount is so specified, indexed annually in accordance with Subdivision 960-M of the Income Tax Assessment Act 1997.
12-443(4)
An income year and a year of the lease correspond to each other under this subsection if both of those years end:
(a) after a particular 27 March; and
(b) on or before the next 27 March.
This section applies if section 12-443 does not apply.
12-444(2)
The concessional cross staple rent cap for an income year of the *managed investment trust is worked out as follows:
(a) first, work out a reasonable estimate of whichever of the following is applicable:
(i) if the relevant asset entity is a trust that is not an *AMIT - the relevant asset entity's *net income, or *tax loss, for the income year;
(ii) if the relevant asset entity is an AMIT - the sum of the relevant asset entity's *trust components with the character of assessable income, or the relevant asset entity's tax loss, for the income year;
(iii) if the relevant asset entity is a partnership - the relevant asset entity's net income, or partnership loss (within the meaning of section 90 of the Income Tax Assessment Act 1936), for the income year;
(b) next, work out a reasonable estimate of whichever of the following is applicable:
(i) if the relevant operating entity is a trust that is not an AMIT - the operating asset entity's net income, or tax loss, for the income year;
(ii) if the relevant operating entity is a partnership - the relevant operating entity's net income, or partnership loss (within the meaning of section 90 of the Income Tax Assessment Act 1936), for the income year;
(iii) otherwise - the relevant operating entity's taxable income or tax loss for the income year;
(c) next, add the results of paragraphs (a) and (b);
(d) next, multiply the result of paragraph (c) by 0.8;
(e) next, subtract the result of paragraph (a) from the result of paragraph (d);
(f) next, add the amount of *excepted MIT CSA income mentioned in subsection 12-441(1) to the result of paragraph (e).
If the result of paragraph (f) is a positive number, the concessional cross staple rent cap is that result. Otherwise, the concessional cross staple rent cap is nil.
12-444(3)
For the purposes of paragraphs (2)(a) and (b):
(a) treat the amount of a *tax loss, or of a partnership loss (within the meaning of section 90 of the Income Tax Assessment Act 1936), as a negative number; and
(b) disregard any *tax loss for a previous income year of the relevant asset entity or relevant operating entity.
This section applies if:
(a) an entity is an *asset entity in relation to an income year and is a *stapled entity in relation to a *cross staple arrangement; and
(b) the entity is entitled to a deduction for the income year against its assessable income that arises from *rent from land investment that it derives or receives in the income year; and
(c) the entity derives, receives or makes an amount of *excepted MIT CSA income in the income year (disregarding this section and subsection 12-441(2)); and
(d) the amount of that excepted MIT CSA income exceeds the entity's *concessional cross staple rent cap for the income year.
12-445(2)
The amount of the deduction can only be deducted against an amount of assessable income of the *asset entity as follows:
(a) first, the amount can only be deducted against an amount of assessable income that is *excepted MIT CSA income, to the extent that the excepted MIT CSA income does not exceed the entity's *concessional cross staple rent cap for the income year;
(b) next, if an amount of the deduction remains after applying the rule in paragraph (a), the amount can only be deducted against an amount of assessable income that is *MIT cross staple arrangement income;
(c) next, if an amount of the deduction remains after applying the rules in paragraphs (a) and (b), the amount can be deducted against an amount of assessable income in accordance with other provisions of this Act.
12-445(3)
If the *asset entity is not a *managed investment trust in relation to the income year, for the purposes of determining whether an amount of its assessable income for the income year is *MIT cross staple arrangement income, treat it as a managed investment trust in relation to the income year.
This section applies if:
(a) an amount is included in the assessable income for an income year of a *managed investment trust in relation to the income year (worked out for the purposes of determining the trust's *net income, or in the case of an *AMIT, the trust's total assessable income, for the income year); and
(b) the amount mentioned in paragraph (a) is, or is attributable to, an amount derived, received or made from another entity (the second entity ); and
(c) the amount mentioned in paragraph (a) is not an amount mentioned in paragraph 12-405(1)(a), (b), (c), (d) or (e).
12-446(2)
The amount is MIT trading trust income of the *managed investment trust if:
(a) the managed investment trust holds a *total participation interest in the second entity of greater than nil; and
(b) the amount arises because of that total participation interest; and
(c) the second entity:
(i) is a trading trust for the purposes of Division 6C of Part III of the Income Tax Assessment Act 1936 in relation to the income year; or
(ii) is a partnership or a trust that is not a unit trust, but would be such a trading trust in relation to the income year if it were a unit trust throughout the income year; and
(d) the second entity is not a *public trading trust in relation to the income year.
12-446(3)
The amount is not MIT trading trust income of the *managed investment trust under subsection (2) to the extent that it is attributable to a *capital gain made from *CGT event E4 or *CGT event E10.
This section applies if:
(a) an amount (the relevant amount ) included in the assessable income for an income year of a *managed investment trust is *MIT trading trust income of the managed investment trust (disregarding this section); and
(b) immediately before 27 March 2018, the managed investment trust held a *total participation interest (the pre-announcement TPI ) of greater than nil in the second entity mentioned in subsection 12-446(1) (the second entity ); and
(c) the relevant amount was derived, received or made by the managed investment trust before 1 July 2026.
12-447(2)
Treat part of the relevant amount as not being *MIT trading trust income of the *managed investment trust.
12-447(3)
That part is equal to the relevant amount multiplied by the fraction worked out under subsections (4) and (5).
12-447(4)
If the *total participation interest (the post-announcement TPI ) held by the *managed investment trust in the second entity at the end of the most recent income year ending before it derived, received or made the relevant amount exceeds the pre-announcement TPI, work out that fraction by dividing:
(a) the pre-announcement TPI;
by:
(b) the post-announcement TPI.
12-447(5)
Otherwise, the fraction is 1.
This section applies if:
(a) an amount is included in the assessable income for an income year of a *managed investment trust in relation to the income year (worked out for the purposes of determining the trust's *net income, or in the case of an *AMIT, the trust's total assessable income, for the income year); and
(b) the amount mentioned in paragraph (a) is not an amount mentioned in paragraph 12-405(1)(a), (b), (c), (d) or (e).
12-448(2)
The amount is MIT agricultural income of the *managed investment trust to the extent that it is attributable to an asset that is *Australian agricultural land for rent (whether or not held by the managed investment trust).
12-448(3)
Australian agricultural land for rent is *Division 6C land situated in Australia that:
(a) is used, or could reasonably be used, for carryingon a *primary production business; and
(b) is held primarily for the purposes of deriving or receiving rent.
12-448(4)
For the purposes of this section, if an *economic infrastructure facility is a fixture on *Australian agricultural land for rent:
(a) treat the economic infrastructure facility as being separate from the Australian agricultural land for rent; and
(b) treat the economic infrastructure facility as not being Australian agricultural land for rent.
12-448(5)
Division 6C land is land (within the meaning of Division 6C of Part III of the Income Tax Assessment Act 1936), and includes a thing if an investment in the thing would be an investment in land under subsection 102MB(1) of that Act.
This section applies if:
(a) an amount (the relevant amount ) is included in the assessable income for an income year of a *managed investment trust in relation to the income year (worked out for the purposes of determining the trust's *net income, or in the case of an *AMIT, the trust's total assessable income, for the income year); and
(b) the relevant amount would be *MIT agricultural income (disregarding this section) of the managed investment trust because it is attributable to an asset that is *Australian agricultural land for rent; and
(c) the managed investment trust derived, received or made the relevant amount before 1 July 2026; and
(d) if the managed investment trust derived, received or made the relevant amount because the managed investment trust held the asset:
(i) the managed investment trust held the asset just before 27 March 2018; or
(ii) before 27 March 2018, the managed investment trust entered into a contract for the *acquisition or lease of the asset; and
(e) if the managed investment trust derived, received or made the relevant amount because another entity (the second entity ) held the asset:
(i) the second entity held the asset just before 27 March 2018; or
(ii) before 27 March 2018, the second entity entered into a contract for the acquisition or lease of the asset; and
(f) if paragraph (e) applies - immediately before 27 March 2018, the managed investment trust held a *total participation interest (the pre-announcement TPI ) of greater than nil in the second entity.
12-449(2)
If paragraph (1)(d) applies, treat the relevant amount as not being *MIT agricultural income of the *managed investment trust.
12-449(3)
If paragraph (1)(e) applies, treat part of the relevant amount as not being *MIT agricultural income of the *managed investment trust.
12-449(4)
That part is equal to the relevant amount multiplied by the fraction worked out under subsections (5) and (6).
12-449(5)
If the *total participation interest (the post-announcement TPI ) held by the *managed investment trust in the second entity at the end of the most recent income year ending before it derived, received or made the relevant amount exceeds the pre-announcement TPI, work out that fraction by dividing:
(a) the pre-announcement TPI;
by:
(b) the post-announcement TPI.
12-449(6)
Otherwise, the fraction is 1.
This section applies if: (a) an amount is included in the assessable income for an income year of a *managed investment trust in relation to the income year (worked out for the purposes of determining the trust's *net income, or in the case of an *AMIT, the trust's total assessable income, for the income year); and (b) the amount mentioned in paragraph (a) is not an amount mentioned in paragraph 12-405(1)(a), (b), (c), (d) or (e).
12-450(2)
The amount is MIT residential housing income of the *managed investment trust to the extent that it is attributable to a *residential dwelling asset (whether or not held by the managed investment trust).
Asset used to provide affordable housing
12-450(3)
The amount is not MIT residential housing income of the *managed investment trust under subsection (2) to the extent that it is referable to the use of the *residential dwelling asset to *provide affordable housing.
12-450(4)
If the amount is, or is attributable to, a *capital gain from a *CGT event, subsection (3) applies only if: (a) the entity that held the *residential dwelling asset just before the time (the CGT event time ) when the CGT event happened had held it for at least 3,650 days (consecutive or not); and (b) each of those days satisfies the following requirements:
(i) the day is on or after 1 July 2017 and before the CGT event time;
(ii) the residential dwelling asset was used on the day to *provide affordable housing.
Income from a build to rent development
12-450(5)
Subject to subsection (7), the amount is not MIT residential housing income of the *managed investment trust under subsection (2) to the extent any of the following paragraphs applies to the amount in relation to a *dwelling of an *active build to rent development: (a) the amount is, or is referable to, a payment of rental income under a lease of the dwelling; (b) the amount is, or is attributable to, a *capital gain from a *CGT event in relation to the dwelling; (c) all of the following subparagraphs apply:
(i) the amount is, or is attributable to, a part of a capital gain from a CGT event in relation to a *membership interest in an entity;
(ii) just before the time of the CGT event, all or part of the *market value of the membership interest is referable to the dwelling;
(iii) subsection (6) applies to the part of the capital gain.
12-450(6)
This subsection applies to the part of a *capital gain mentioned in paragraph (5)(c) worked out as follows:
| Amount of the *capital gain × Value of the interest in the dwelling | |
| Value of the membership interest | |
| where: | |
| value of the interest in the dwelling means so much of the value of the membership interest as is referable to the *dwelling. | |
| value of the membership interest means the *market value of the *membership interest just before the time of the *CGT event. |
12-450(7)
Subsection (5) does not apply to an amount if: (a) the *build to rent compliance period for each of the *dwellings of the *active build to rent development has ended; and (b) assuming that the build to rent compliance period for each of the dwellings had not ended, the active build to rent development would have *ceased to be an active build to rent development.
This section applies if:
(a) an amount (the relevant amount ) is included in the assessable income for an income year of a *managed investment trust in relation to the income year (worked out for the purposes of determining the trust's *net income, or in the case of an *AMIT, the trust's total assessable income, for the income year); and
(b) the relevant amount would be *MIT residential housing income (disregarding this section) of the *managed investment trust because it is attributable to a facility that consists of or contains a *residential dwelling asset; and
(c) the managed investment trust derived, received or made the relevant amount before 1 October 2027; and
(d) if the managed investment trust derived, received or made the relevant amount because the managed investment trust held the facility:
(i) the managed investment trust held the facility just before the time mentioned in subsection (7); or
(ii) before the time mentioned in subsection (7), the managed investment trust entered into a contract for the *acquisition, creation or lease of the facility; and
(e) if the managed investment trust derived, received or made the relevant amount because another entity (the second entity ) held the facility:
(i) the second entity held the facility just before the time mentioned in subsection (7); or
(ii) before the time mentioned in subsection (7), the second entity entered into a contract for the acquisition, creation or lease of the facility; and
(f) if paragraph (e) applies - immediately before the time mentioned in subsection (7), the managed investment trust held a *total participation interest (the pre-announcement TPI ) of greater than nil in the second entity.
12-451(2)
If paragraph (1)(d) applies, treat the relevant amount as not being *MIT residential housing income of the *managed investment trust.
12-451(3)
If paragraph (1)(e) applies, treat part of the relevant amount as notbeing *MIT residential housing income of the *managed investment trust.
12-451(4)
That part is equal to the relevant amount multiplied by the fraction worked out under subsections (5) and (6).
12-451(5)
If the *total participation interest (the post-announcement TPI ) held by the *managed investment trust in the second entity at the end of the most recent income year ending before it derived, received or made the relevant amount exceeds the pre-announcement TPI, work out that fraction by dividing:
(a) the pre-announcement TPI;
by:
(b) the post-announcement TPI.
12-451(6)
Otherwise, the fraction is 1.
12-451(7)
The time is 4.30 pm, by legal time in the Australian Capital Territory, on 14 September 2017.
A residential dwelling asset is an asset that:
(a) is a *dwelling; and
(b) is *taxable Australian real property; and
(c) is *residential premises (other than *commercial residential premises); and
(d) is not a dwelling that:
(i) is used primarily to provide specialist disability accommodation (within the meaning of the National Disability Insurance Scheme (Specialist Disability Accommodation Conditions) Rule 2018); and
(ii) is enrolled in accordance with section 6 of that Rule; and
(e) is not a dwelling that:
(i) is used primarily to provide disability accommodation; and
(ii) is a dwelling of a kind prescribed by the regulations for the purposes of this subparagraph.
12-452(2)
Section 118-120 (Extension to adjacent land) applies in relation to this section in the same way as it applies in relation to Subdivision 118-B.
12-452(3)
To avoid doubt, for the purposes of applying section 118-120 in relation to this section, a *dwelling's *adjacent land may include land used primarily for private or domestic purposes in association with the dwelling and with one or more other dwellings.
Subsection (2) applies if:
(a) any of the following provisions apply in relation to an amount:
(i) section 12-448;
(ii) section 12-450; and
(b) the amount is, or is attributable to, a *capital gain from a *CGT event in relation to an asset that is a *membership interest in an entity; and
(c) just before the CGT event happened, the entity held, directly or indirectly, one or more assets that are any of the following;
(i) *Australian agricultural land for rent;
(ii) a *residential dwelling asset.
12-453(2)
For the purposes of subsections 12-448(2) and 12-450(2):
(a) in a case where the *membership interest mentioned in subsection (1) passes the principal asset test in section 855-30 of the Income Tax Assessment Act 1997 immediately before the time the *CGT event happens:
(i) if the assets mentioned in paragraph (1)(c) are all *Australian agricultural land for rent - treat the *capital gain as being wholly attributable to the Australian agricultural land for rent; or
(ii) if the assets mentioned in paragraph (1)(c) are all *residential dwelling assets - treat the capital gain as being wholly attributable to residential dwelling assets; or
(iii) if all the assets mentioned in paragraph (1)(c) are Australian agricultural land for rent and residential dwelling assets, and the *market value of the membership interest that is attributable to Australian agricultural land for rent equals or exceeds the market value of the membership interest that is attributable to residential dwelling assets - treat the capital gain as being wholly attributable to Australian agricultural land for rent; or
(iv) if all the assets mentioned in paragraph (1)(c) are Australian agricultural land for rent and residential dwelling assets, and the market value of the membership interest that is attributable to Australian agricultural land for rent falls short of the market value of the membership interest that is attributable to residential dwelling assets - treat the capital gain as being wholly attributable to residential dwelling assets; or
(b) in any other case - treat the capital gain:
(i) as not being attributable to Australian agricultural land for rent; and
(ii) as not being attributable to residential dwelling assets.
12-453(3)
For the purposes of subsection (2), in determining whether the *membership interest passes the principal asset test, treat references in section 855-30 of the Income Tax Assessment Act 1997 to *taxable Australian real property as instead being references to an asset that is any of the following:
(a) *Australian agricultural land for rent;
(b) a *residential dwelling asset.
12-453(4)
For the purposes of this section, in working out the *market value of an asset, work out that market value just before the time the *CGT event mentioned in paragraph (1)(b) happens.
The Commissioner must withhold an amount from the *FHSS released amounts paid in respect of a person.
When a withholding MIT that is an AMIT gives a member an AMMA statement, the trustee is deemed to have made a payment to the member.
The deemed payment can flow through one or more custodians, giving rise to subsequent deemed payments.
Withholding liabilities under Subdivisions 12-F and 12-H do not apply in relation to deemed payments (although analogous liabilities may arise under Subdivision 12A-C).
AMIT trustees, custodians and other entities may be required to give notices etc. to recipients of such deemed payments.
SECTION 12A-5 WHAT THIS SUBDIVISION IS ABOUT
Withholding liabilities under Subdivision 12-F do not apply in relation to deemed payments arising under Subdivision 12A-C relating to dividends, interest or royalties (although analogous liabilities may arise under Subdivision 12A-C).
AMIT trustees, custodians and other entities may be required to give notices etc. to recipients of such deemed payments.
| Operative provisions | |
| 12A-10 | Deemed payments - no obligation to withhold under Subdivision 12-F (dividend, interest and royalty payments) |
| 12A-15 | Dividend, interest or royalty payments relating to AMIT - requirement to give notice or make information available |
| 12A-20 | Failure to give notice or make information available under section 12A-15: administrative penalty |
| 12A-25 | Meaning of AMIT DIR payment |
| 12A-30 | Meaning of AMIT dividend payment |
| 12A-35 | Meaning of AMIT interest payment |
| 12A-40 | Meaning of AMIT royalty payment |
SECTION 12A-10 DEEMED PAYMENTS - NO OBLIGATION TO WITHHOLD UNDER SUBDIVISION 12-F (DIVIDEND, INTEREST AND ROYALTY PAYMENTS) 12A-10(1)
If the entity that receives a payment as mentioned in subsection 12-215(1), 12-250(1) or 12-285(1) is the trustee of an *AMIT, the entity need not withhold an amount under that subsection from the payment if the payment arises because of the operation of section 12A-205 (deemed payments).
Note:
The trustee may have to pay the Commissioner an amount in respect of the deemed payment (see Subdivision 12A-C).
12A-10(2)
Subsection (3) applies if:
(a) the entity that receives a payment as mentioned in subsection 12-215(1), 12-250(1) or 12-285(1) is a *custodian; and
(b) it received the payment from an *AMIT.
12A-10(3)
The entity need not withhold an amount under that subsection from the payment mentioned in that subsection if:
(a) the payment arises because of the operation of section 12A-205 (deemed payments); or
(b) the payment is a *post-AMMA actual payment in respect of a payment that so arises.
Note:
Either or both of the trustee of the AMIT concerned and the custodian may have to pay the Commissioner an amount in respect of the deemed payment (see Subdivision 12A-C).
12A-10(4)
Disregard this section for the purposes of section 12A-15.
AMITs and custodians
12A-15(1)
An entity that is an *AMIT or a *custodian must comply with subsection (2) if:
(a) the entity makes a payment to another entity (the recipient ) from which an amount would have been required to be withheld under Subdivision 12-F if:
(i) the entity were a company; and
(ii) the payment had been made to a foreign resident; and
(iii) the condition in either or both of paragraphs 12-210(a) or (b), of paragraphs 12-245(a) or (b) or of paragraphs 12-280(a) or (b) (as the case requires) were satisfied; and
(b) an amount is not required to be withheld from the payment because:
(i) the recipient is not a foreign resident; or
(ii) the recipient is a foreign resident carrying on business in Australia at or through a permanent establishment (within the meaning of subsection 128B(3F) of the Income Tax Assessment Act 1936) of the recipient in Australia, and the payment is attributable to the permanent establishment; and
(c) the payment is any of the following:
(i) a payment that arises because of the operation of section 12A-205 (deemed payments);
(ii) a *pre-AMMA actual payment in respect of a payment that so arises.
12A-15(2)
The entity must:
(a) give to the recipient a written notice containing the details specified in subsection (3); or
(b) make those details available on a website in a way that the details are readily accessible to the recipient for not less than 5 continuous years.
12A-15(3)
The notice must be given, or the details must be made available on a website, before or at the time when the payment is made and:
(a) must specify the part of the payment from which an amount would have been so required to have been withheld; and
(b) must specify the income year of the *AMIT to which that part relates.
Note:
Failure to give the notice or make the details available as required by this section incurs an administrative penalty: see section 12A-20.
Other entities
12A-15(4)
An entity that is not an *AMIT or a *custodian must comply with subsection (5) if:
(a) the entity receives a payment; and
(b) another entity (the subsequent recipient ) is or becomes entitled:
(i) to receive from the entity; or
an amount attributable to the payment; and
(ii) to have the entity credit to the subsequent recipient, or otherwise deal with on the subsequent recipient's behalf or as the subsequent recipient directs;
(c) the entity would have been required to withhold an amount from the payment under subsection 12-215(1), 12-250(1) or 12-285(1) if the subsequent recipient had been a foreign resident; and
(d) an amount is not required to be withheld from the payment because:
(i) the subsequent recipient is not a foreign resident; or
(ii) the subsequent recipient is a foreign resident carrying on business in Australia at or through a permanent establishment (within the meaning of subsection 128B(3F) of the Income Tax Assessment Act 1936) of the subsequent recipient in Australia, and the payment is attributable to the permanent establishment; and
(e) the payment is any of the following:
(i) a payment that arises because of the operation of section 12A-205 (deemed payments);
(ii) a *pre-AMMA actual payment in respect of a payment that so arises.
12A-15(5)
The entity must:
(a) give to the subsequent recipient a written notice containing the details specified in subsection (6); or
(b) make those details available on a website in a way that the details are readily accessible to the subsequent recipient for not less than 5 continuous years.
12A-15(6)
The notice must be given, or the details must be made available on a website, before or at the time when the amount is paid or credited to the subsequent recipient, or is dealt with on the subsequent recipient's behalf or as the subsequent recipient directs, and:
(a) must specify the part of the payment referred to in paragraph (4)(a) from which an amount would have been so required to have been withheld; and
(b) must specify the income year of the *AMIT to which that part relates.
Note:
Failure to give the notice or make the details available as required by this section incurs an administrative penalty: see section 12A-20.
An entity that:
(a) is required to give a notice, or make details available on a website, under section 12A-15 in relation to:
(i) a payment made to another entity; or
(ii) an amount paid or credited to, or dealt with on behalf of or as directed by, another entity; and
(b) fails to comply with that section;
is liable to pay to the Commissioner a penalty equal to the amount that would have been required to be withheld under this Subdivision (disregarding section 12-300) in relation to amounts attributable to the payment or amount if the notice had been given or the details had been made available.
Note:
Division 298 in this Schedule contains machinery provisions for administrative penalties.
An AMIT DIR payment means any of the following:
(a) an *AMIT dividend payment;
(b) an *AMIT interest payment;
(c) an *AMIT royalty payment.
This section applies to a trust that is an *AMIT for an income year.
12A-30(2)
The object of this section is to ensure that the total of the *AMIT dividend payments that the trustee of the *AMIT makes in relation to the income year equals, as nearly as practicable, the amount mentioned in subsection (3).
12A-30(3)
The amount is the total of the *determined member components for the *AMIT for the income year of the character of a dividend (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to a requirement to withhold under Subdivision 12-F.
12A-30(4)
A payment (the actual or deemed payment ) that the trustee of a trust makes in relation to an income year is an AMIT dividend payment in relation to that year. However, the amount of the AMIT dividend payment is worked out under the following method statement, and may be:
(a) the amount of the actual or deemed payment; or
(b) the amount of the actual or deemed payment, increased or reduced as a result of the method statement.
Note:
The payment by the trustee may be an actual payment, or a deemed payment under section 12A-205.
Method statementStep 1.
Work out what it is reasonable to expect will be the amount mentioned in subsection (3).
Step 2.
The AMIT dividend payment is so much of the step 1 amount as is reasonable having regard to:
12A-30(5)
The amount mentioned in subsection (3) and the expected amounts of any later *AMIT dividend payments are to be worked out on the basis of the trustee's knowledge when the payment is made.
12A-30(6)
Subsection (5) does not apply if the payment is a payment arising because of the operation of section 12A-205 (deemed payments).
12A-30(7)
However, the payment is not an AMIT dividend payment in relation to the income year if:
(a) the payment is a *post-AMMA actual payment in respect of another payment; and
(b) the other payment arises because of the operation of section 12A-205; and
(c) the other payment is an AMIT dividend payment.
This section applies to a trust that is an *AMIT for an income year.
12A-35(2)
The object of this section is to ensure that the total of the *AMIT interest payments that the trustee of the *AMIT makes in relation to the income year equals, as nearly as practicable, the amount mentioned in subsection (3).
12A-35(3)
The amount is the total of the *determined member components for the *AMIT for the income year of the character of interest (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to a requirement to withhold under Subdivision12-F.
12A-35(4)
To work out the amount of an AMIT interest payment , apply subsections 12A-30(4), (5), (6) and (7). For this purpose:
(a) treat references in those subsections to AMIT dividend payments as instead being references to AMIT interest payments; and
(b) treat the reference in subsection 12A-30(4) to "the amount mentioned in subsection (3)" as instead being a reference to "the amount mentioned in subsection 12A-35(3)".
This section applies to a trust that is an *AMIT for an income year.
12A-40(2)
The object of this section is to ensure that the total of the *AMIT royalty payments that the trustee of the *AMIT makes in relation to the income year equals, as nearly as practicable, the amount mentioned in subsection (3).
12A-40(3)
The amount is the total of the *determined member components for the *AMIT for the income year of the character of a *royalty that is subject to a requirement to withhold under Subdivision 12-F.
12A-40(4)
To work out the amount of an AMIT royalty payment , apply subsections 12A-30(4), (5), (6) and (7). For this purpose:
(a) treat references in those subsections to AMIT dividend payments as instead being references to AMIT royalty payments; and
(b) treat the reference in subsection 12A-30(4) to "the amount mentioned in subsection (3)" as instead being a reference to "the amount mentioned in subsection 12A-40(3)".
SECTION 12A-100 WHAT THIS SUBDIVISION IS ABOUT
Withholding liabilities under Subdivision 12-H do not apply in relation to deemed payments arising under Subdivision 12A-C analogous to fund payments under Subdivision 12-H (although analogous liabilities may arise under Subdivision 12A-C).
AMIT trustees, custodians and other entities may be required to give notices etc. to recipients of such deemed payments.
| Operative provisions | |
| 12A-105 | Deemed payments - no obligation to withhold under Subdivision 12-H |
| 12A-110 | Meaning of fund payment - AMITs |
SECTION 12A-105 DEEMED PAYMENTS - NO OBLIGATION TO WITHHOLD UNDER SUBDIVISION 12-H 12A-105(1)
The trustee mentioned in subsection 12-385(1) need not withhold an amount under that subsection from the payment mentioned in that subsection if the payment arises because of the operation of section 12A-205 (deemed payments).
Note:
The trustee may have to pay the Commissioner an amount in respect of the deemed payment (see Subdivision 12A-C).
12A-105(2)
The *custodian mentioned in subsection 12-390(1) need not withhold an amount under that subsection from the later payment mentioned in that subsection if:
(a) the later payment arises because of the operation of section 12A-205 (deemed payments); or
(b) the later payment is a *post-AMMA actual payment in respect of a payment of a kind mentioned in paragraph (a).
Note:
Either or both of the trustee of the AMIT concerned and the custodian may have to pay the Commissioner an amount in respect of the deemed payment (see Subdivision 12A-C).
12A-105(3)
The entity mentioned in subsection 12-390(4) need not withhold an amount under that subsection from the payment mentioned in that subsection if:
(a) the payment arises because of the operation of section 12A-205 (deemed payments); or
(b) the payment is a *post-AMMA actual payment in respect of a payment of a kind mentioned in paragraph (a).
Note:
The entity may have to pay the Commissioner an amount in respect of the deemed payment (see Subdivision 12A-C).
12A-105(4)
Disregard this section for the purposes of section 12-395.
This section applies to a trust that is an *AMIT for an income year.
12A-110(2)
The object of this section is to ensure that the total of the *fund payments that the trustee of the *AMIT makes in relation to the income year equals, as nearly as practicable, the amount mentioned in subsection (3).
12A-110(3)
The amount is the sum of the following amounts:
(a) total of the *determined member components for the *AMIT for the income year of a character relating to assessable income, disregarding determined member components (the excluded components ) of any of the following characters:
(i) the character of a *discount capital gain from a *CGT asset that is not *taxable Australian property;
(ii) the character of a *capital gain (other than a discount capital gain) from a CGT asset that is not taxable Australian property;
(iii) the character of a dividend (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to, or exempted from, a requirement to withhold under Subdivision 12-F;
(iv) the character of interest (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to, or exempted from, a requirement to withhold under Subdivision 12-F;
(v) the character of a *royalty that is subject to, or exempted from, a requirement to withhold under Subdivision 12-F;
(vi) the character of *ordinary income, or *statutory income, from a source other than an *Australian source;
(vii) if a legislative instrument under subsection (4) specifies a character - that character;
(b) the total of each *capital loss of the AMIT from a *CGT event that:
(i) happened in the income year to a CGT asset that is not taxable Australian property; and
but only to the extent that each such capital loss has been so applied in the income year;
(ii) has been applied against a capital gain from a CGT event that happened in relation to a CGT asset that is taxable Australian property;
(c) the total of each amount to which subsection (3A) applies in relation to the income year.
12A-110(3A)
If:
(a) the AMIT has a *net capital loss for an earlier income year; and
(b) one or more of the *capital losses the trust made during that earlier income year were from *CGT events that happened in relation to *CGT assets that were not *taxable Australian property; and
(c) in relation to the income year mentioned in paragraph (3)(c), some or all of the net capital loss is applied against a *capital gain from a CGT event that happens in relation to a CGT asset that is taxable Australian property;this subsection applies, for the income year mentioned in paragraph (3)(c), to an amount equal to so much of the net capital loss that is so applied as related to capital losses mentioned in paragraph (b) of this subsection.
12A-110(4)
The Commissioner may, by legislative instrument, specify one or more characters for the purposes of subparagraph (3)(a)(vii).
12A-110(5)
A payment (the actual or deemed payment ) that the trustee of a trust makes in relation to an income year is a fund payment in relation to that year. However, the amount of the fund payment is worked out under the following method statement, and may be:
(a) the amount of the actual or deemed payment; or
(b) the amount of the actual or deemed payment, increased or reduced as a result of the method statement.
Note:
The payment by the trustee may be an actual payment, or a deemed payment under section 12A-205.
Method statementStep 1.
Reduce the actual or deemed payment by so much of it that is attributable to the excluded components.
Step 2.
Work out what it is reasonable to expect will be the amount mentioned in subsection (3).
Do so on the basis that a *capital gain from *taxable Australian property of the trust that was or would be reduced under step 3 of the method statement in subsection 102-5(1) of the Income Tax Assessment Act 1997 were double the amount it actually is.
Step 3.
The fund payment is so much of the step 2 amount as is reasonable having regard to:
12A-110(6)
The amount mentioned in subsection (3) and the expected amounts of any later *fund payments are to be worked out on the basis of the trustee's knowledge when the payment is made.
12A-110(7)
Subsection (6) does not apply if the payment is a payment arising because of the operation of section 12A-205 (deemed payments).
12A-110(8)
However, the payment is not a fund payment in relation to the income year if:
(a) the payment (the actual payment ) is a *post-AMMA actual payment in respect of another payment; and
(b) the other payment arises because of the operation of section 12A-205; and
(c) the other payment is a fund payment.
12A-110(9)
An amount is also not a fund payment in relation to the income year unless it is paid:
(a) during the income year; or
(b) within 3 months after the end of the income year; or
(c) within a longer period (starting at the end of the period referred to in paragraph (b) and not exceeding 3 years) allowed by the Commissioner.
12A-110(10)
The Commissioner may allow a longer period as mentioned in paragraph (9)(c) only if the Commissioner is of the opinion that:
(a) if the other payment arises at a time because of the operation of section 12A-205 (deemed payments) - the *AMIT complied with subsection 276-455(1) of the Income Tax Assessment Act 1997 in respect of the income year (requirement to give AMMA statements within 3 months); or
(b) otherwise - the trustee was unable to make the payment during the income year, or within 3 months after the end of the income year, because of circumstances beyond the influence or control of the trustee.
SECTION 12A-200 WHAT THIS SUBDIVISION IS ABOUT
When a withholding MIT that is an AMIT gives a member an AMMA statement, the trustee is deemed to have made a payment to the member.
The payment is generally the sum of the determined member components reflected in the statement that are of a character relating to assessable income, reduced by any previous actual payments related to those components.
The deemed payment can flow through one or more custodians, giving rise to subsequent deemed payments.
| Operative provisions | |
| 12A-205 | Issue of AMMA statement etc. deemed to be payment |
| 12A-210 | Post-AMMA actual payment and pre-AMMA actual payment in respect of deemed payment |
| 12A-215 | AMIT payment to the Commissioner in respect of deemed payments to offshore entities etc. |
| 12A-220 | Custodian payment to the Commissioner in respect of deemed payments to offshore entities etc. |
SECTION 12A-205 ISSUE OF AMMA STATEMENT ETC. DEEMED TO BE PAYMENT 12A-205(1)
This section applies if:
(a) an entity (the first recipient ) is or was a *member of a *withholding MIT in respect of an income year; and
(b) the withholding MIT is an *AMIT for the income year; and
(c) the AMIT gives the first recipient an *AMMA statement for the income year.
12A-205(2)
For the purposes of this Part, Subdivision 840-M of the Income Tax Assessment Act 1997 and Division 11A of Part III of the Income Tax Assessment Act 1936:
(a) treat the trustee of the *AMIT as having made a payment (the first deemed payment ) of an amount to the first recipient at the time the AMIT gave the first recipient the *AMMA statement; and
(b) treat the amount of the first deemed payment as being the amount worked out as follows:
(i) first, work out the total of all the *determined member components of all the *members of the AMIT of a character relating to assessable income for the income year;
(ii) next, identify each of the *pre-AMMA actual payments (if any) made to those members in respect of all payments by the trustee to those members that arise from the operation of paragraph (a);
(iii) next, identify every *AMIT DIR payment (if any) and each *fund payment (if any) that arises from each such pre-AMMA actual payment;
(iv) next, reduce the result of subparagraph (i) by the sum of each such AMIT DIR payment and fund payment;
(v) next, work out how much of the result of subparagraph (iv) is referable to the first recipient.
12A-205(3)
Also, for the purposes of Division 11A of Part III of the Income Tax Assessment Act 1936, treat the first recipient as having derived the first deemed payment just before the end of the income year to which the *AMMA statement relates.
12A-205(4)
Subsection (5) applies if:
(a) the first recipient is a *custodian; and
(b) another entity (the subsequent recipient ):
(i) starts to have, at a time, an entitlement to an amount that is reasonably attributable to all or part of the first deemed payment; or
(ii) would start to have, at a time, such an entitlement if the first deemed payment were an actual payment of an amount.
12A-205(5)
For the purposes of this Part, Subdivision 840-M of the Income Tax Assessment Act 1997 and Division 11A of Part III of the Income Tax Assessment Act 1936:
(a) treat the first recipient as having made a payment (the subsequent deemed payment ) of an amount to the subsequent recipient at that time; and
(b) treat the amount of the subsequent deemed payment as being the amount of the entitlement mentioned in subparagraph (4)(b)(i) or (ii); and
(c) treat the amount of the subsequent deemed payment as being attributable to the first deemed payment.
12A-205(6)
Also, for the purposes of Division 11A of Part III of the Income Tax Assessment Act 1936, treat the subsequent recipient as having derived the subsequent deemed payment at the time the subsequent deemed payment arises.
12A-205(7)
If:
(a) an entity is a subsequent recipient mentioned in subsection (4) (including as a result of a previous operation of this subsection); and
(b) subsection (5) applies with the result that a payment is treated as having been made to the entity; and
(c) the entity is a *custodian;
apply subsections (4), (5) and (6) again as if the entity were the first recipient mentioned in subsection (4).
Note:
This means that the entity is treated under subsection (5) as having made a payment to another entity if the other entity has (or would have) an entitlement as mentioned in paragraph (4)(b).
A payment that does not arise because of the operation of section 12A-205 is a post-AMMA actual payment in respect of a payment (the deemed payment ) that does arise because of the operation of that section if:
(a) the payment and the deemed payment are both attributable to the same *member component for the *AMIT mentioned in that section; and
(b) the actual payment is made at or after the time the deemed payment arises.
12A-210(2)
A payment that does not arise because of the operation of section 12A-205 is a pre-AMMA actual payment in respect of a payment (the deemed payment ) that does arise because of the operation of that section if:
(a) the payment and the deemed payment are both attributable to the same *member component for the *AMIT mentioned in that section; and
(b) the actual payment is made before the time the deemed payment arises.
A trustee of a trust that is an *AMIT for an income year must pay an amount to the Commissioner if:
(a) (Repealed by No 15 of 2019)
(b) the trustee makes a payment (the deemed payment ) that arises because of the operation of section 12A-205; and
(c) the payment is made to an entity (the recipient ) that is:
(i) if the payment is a *fund payment and the trust is a *withholding MIT in relation to the income year - an entity covered by section 12-410; or
(ii) if the payment is an *AMIT DIR payment made in relation to the income year - an entity that is not an Australian resident.
Note 1:
An entity may be covered by section 12-410 if the entity has an address outside Australia or payment is authorised to be made to a place outside Australia.
Note 2:
If the payment is made to a recipient not covered by subparagraph (c)(i) or (ii), the trustee is required to give a notice to the recipient or publish information on a website setting out certain details about the payment: see sections 12-395 and 12A-15.
12A-215(2)
The amount that the trustee must pay is equal to the amount that the trustee would, if the assumptions in subsection (3) were made, have had to withhold under:
(a) if the deemed payment is a *fund payment - section 12-385; or
(b) if the deemed payment is an *AMIT DIR payment - section 12-210, 12-245 or 12-280.
12A-215(3)
The assumptions are that:
(a) the deemed payment had not arisen because of the operation of section 12A-205; and
(b) the deemed payment had instead been an actual payment; and
(c) if the deemed payment is an *AMIT DIR payment:
(i) where it corresponds to the character of a dividend (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to a requirement to withhold under Subdivision 12-F - the trust had been a company, and it had paid it as a dividend; or
(ii) where it corresponds to the character of interest (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to a requirement to withhold under Subdivision 12-F - it were the payment of interest; or
(iii) where it corresponds to the character of a *royalty that is subject to a requirement to withhold under Subdivision 12-F - it were the payment of a royalty; and
(d) if the deemed payment is an AMIT DIR payment - the condition in either or both of paragraphs 12-210(a) or (b), of paragraphs 12-245(a) or (b) or of paragraphs 12-280(a) or (b) (as the case requires) were satisfied.
12A-215(4)
The trustee may recover from the recipient as a debt an amount that the trustee has paid to the Commissioner under subsection (1).
12A-215(5)
The trustee is entitled to set off an amount that the trustee can recover from the recipient under subsection (4) against debts due by the trustee to the recipient.
A *custodian must pay an amount to the Commissioner if:
(a) the trustee of a trust that was an *AMIT for an income year and was a *withholding MIT in relation to the income year made a payment (the first deemed payment ) that:
(i) arose because of the operation of section 12A-205; and
(ii) was a *fund payment or an *AMIT DIR payment; and
(b) the custodian makes a payment (the subsequent deemed payment ) that arises because of the operation of section 12A-205; and
(c) the first deemed payment gave rise to the subsequent deemed payment, because of one or more operations of section 12A-205; and
(d) the subsequent deemed payment or part of it (the covered part ) was covered by a notice or information under:
(i) if the first deemed payment was a fund payment - section 12-395; or
(ii) if the first deemed payment was an AMIT DIR payment - section 12A-15; and
(e) the subsequent deemed payment is made to an entity (the recipient ) that is:
(i) if the first deemed payment was a fund payment - covered by section 12-410; or
(ii) if the first deemed payment was an AMIT DIR payment - not an Australian resident.
Note 1:
An entity may be covered by section 12-410 if the entity has an address outside Australia or payment is authorised to be made to a place outside Australia.
Note 2:
If the payment is made to a recipient not covered by subparagraph (e)(i) or (ii), the trustee is required to give a notice to the recipient or publish information on a website setting out certain details about the payment: see sections 12-395 and 12A-15.
12A-220(2)
The amount that the *custodian must pay is the amount that the custodian would, if the assumptions in subsection (3) were made, have had to withhold under:
(a) if the first deemed payment was a *fund payment - subsection 12-390(1); or
(b) if the first deemed payment was an *AMIT DIR payment - section 12-210, 12-245 or 12-280.
12A-220(3)
The assumptions are that:
(a) the subsequent deemed payment had not arisen because of the operation of section 12A-205; and
(b) the subsequent deemed payment had instead been an actual payment; and
(c) if the first deemed payment was an *AMIT DIR payment:
(i) where the first deemed payment corresponded to the character of a dividend (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to a requirement to withhold under Subdivision 12-F - the *custodian had been a company, and it had paid the subsequent deemed payment as a dividend; or
(ii) where the first deemed payment corresponded to the character of interest (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936) that is subject to a requirement to withhold under Subdivision 12-F - the subsequent deemed payment were the payment of interest; or
(iii) where the first deemed payment corresponded to the character of a *royalty that is subject to a requirement to withhold under Subdivision 12-F - the subsequent deemed payment were the payment of a royalty; and
(d) if the first deemed payment was an AMIT DIR payment - the condition in either or both of paragraphs 12-210(a) or (b), of paragraphs 12-245(a) or (b) or of paragraphs 12-280(a) or (b) (as the case requires) were satisfied.
12A-220(4)
The *custodian may recover from the recipient as a debt an amount that the custodian has paid to the Commissioner under subsection (1).
12A-220(5)
The *custodian is entitled to set off an amount that the custodian can recover from the recipient under subsection (4) against debts due by the custodian to the recipient.
The object of this Division is to ensure the efficient collection of income tax (and other liabilities) on any *personal services income included in anindividual's assessable income under Division 86 of the Income Tax Assessment Act 1997 by:
(a) putting *personal services entities receiving *alienated personal services payments in a position similar to their position if amounts were withheld from the payments under Division 12; but
(b) doing so in a way that enables them to comply with their obligations without having to withhold amounts separately from each payment.
Note:
Under Division 86 of the Income Tax Assessment Act 1997 (about alienation of personal services income), an individual's personal services income that is gained or produced by another entity is in some cases included in the individual's assessable income. Payments of this income by the entity might not be caught by Division 12.
Obligation to pay amounts
13-5(1)
A *personal services entity must pay an amount of tax to the Commissioner if:
(a) it receives an *alienated personal services payment that relates to an individual's personal services income; and
(b) it receives the payment during a *PAYG payment period for which it is a *personal services payment remitter.
Working out the amounts
13-5(2)
Use this method statement to work out the amount: Method statement
Step 1.
Identify the payments that the *personal services entity makes to the individual during the period mentioned in paragraph (1)(b) that are *withholding payments covered by section 12-35.
Step 2.
Identify the amounts that:
Step 3.
Work out the sum of all the amounts that Division 12 would require the entity to withhold in respect of that period if both of these were taken into account:
Step 4.
Work out the sum of all the amounts withheld under section 12-35 from the payments identified in step 1.
Step 5.
Subtract the sum under step 4 from the sum under step 3.
Example:
For the PAYG payment period of 1 April 2001 to 30 June 2001, NewIT Pty. Ltd. received amounts totalling $18,000 that were Ron's personal services income. NewIT does not conduct a personal services business.
During the period, NewIT paid Ron $3,000 in salary. This is a withholding payment covered by section 12-35 (step 1).
$15,000 of the amount NewIT received is included in Ron's assessable income under section 86-15 of the Income Tax Assessment Act 1997 (step 2).
If NewIT had paid the $15,000 in salary to Ron within 14 days after the end of the PAYG payment period, the amount that NewIT would have had to withhold under Division 12 on the total amount of $18,000 would have been $4,000 (step 3).
NewIT withheld $500 from the salary payment of $3,000, as required by section 12-35 (step 4).
On the basis of these facts, the amount NewIT must pay to the Commissioner (step 5) is:
$4,000 - $500 = $3,500
13-5(3)
Subject to subsections (4) and (5), the *personal services entity must pay the amount to the Commissioner by the end of the 21st day after the end of the *PAYG payment period.
Note:
A different rule applies for alienated personal services payments that large withholders and medium withholders make during the 2000-01 income year. See section 13-20.
13-5(4)
If:
(a) the *personal services entity is a *deferred BAS payer on the 21st day after the end of the *PAYG payment period; and
(b) the personal services entity's PAYG payment period is a *quarter;
the entity must pay that amount to the Commissioner as shown in the table:
| Payments by *deferred BAS payers | ||
| Item | If paragraph (4)(a) applies to the *quarter ending on: | the amount for this quarter must be paid by the end of: |
| 1 | 30 September | the following 28 October |
| 2 | 31 December | the following 28 February |
| 3 | 31 March | the following 28 April |
| 4 | 30 June | the following 28 July |
13-5(5)
If:
(a) the *personal services entity is a *deferred BAS payer on the 21st day after the end of the *PAYG payment period; and
(b) the personal services entity's PAYG payment period is a month;
the entity must pay that amount to the Commissioner:
(c) by the end of the 28th day of the month following that period unless the PAYG payment period is a December; or
(d) by the end of the 28th day of the next February if the PAYG payment period is a December.
An alienated personal services payment is a payment (including a payment in the form of a *non-cash benefit) that a *personal services entity receives and that relates to an amount that:
(a) is included in an individual's assessable income under Division 86 of the Income Tax Assessment Act 1997; or
(b) would be so included but for the fact that the entity received the income in the course of conducting a *personal services business.
For valuation of non-cash benefits, see sections 21 and 21A of the Income Tax Assessment Act 1936.
General
13-15(1)
A *personal services entity is a personal services payment remitter for a *PAYG payment period if, in the income year preceding that period:
(a) the entity's *ordinary income or *statutory income included a person's *personal services income; and
(b) the entity was not conducting a *personal services business.
Businesses not previously receiving personal services income
13-15(2)
A *personal services entity is a personal services payment remitter for a *PAYG payment period if:
(a) the entity's *ordinary income or *statutory income did not include an individual's *personal services income in any income year preceding that period; and
(b) it is reasonable to expect that, in the income year during which the period occurs, the entity's income will include a person's *personal services income that the entity will not have received in the course of conducting a *personal services business.
13-15(3)
It is not reasonable to expect that the *personal services entity will receive a person's *personal services income in the course of conducting a *personal services business if it is reasonable to expect that:
(a) the entity will receive at least 80% of that income from the same entity (or one entity and its *associates); and
(b) the entity will not meet the results test under section 87-18 of the Income Tax Assessment Act 1997.
Personal services business determinations taking effect
13-15(4)
However, a *personal services entity is not a personal services payment remitter for a *PAYG payment period if, during that period or an earlier PAYG payment period in the same income year, a *personal services business determination relating to the entity takes effect.
Subject to subsection (2), if:
(a) a *personal services entity must, under section 13-5, pay an amount for *alienated personal services payments it received during a particular *PAYG payment period; and
(b) the period ends in a *quarter in the *financial year starting on 1 July 2000;
the payment must be paid to the Commissioner by the end of the 21st day after the end of the quarter.
13-20(2)
If:
(a) the *personal services entity is a *deferred BAS payer on the 21st day after the end of the *quarter; and
(b) the quarter ends on 31st March or 30th June of 2001;
the payment must be paid to the Commissioner by the end of the 28th day after the end of that quarter.
The object of this Subdivision is:
(a) to put entities that provide *non-cash benefits, and entities that receive them, in a position similar to their position under Division 12 if payments of money had been made instead of the non-cash benefits being provided; and
(b) in that way, to prevent entities from avoiding their obligations under Division 12 by providing non-cash benefits.
An entity (the payer ) must pay an amount to the Commissioner before providing a *non-cash benefit to another entity (the recipient ) if Division 12 would require the payer to withhold an amount (the notionally withheld amount ) if, instead of providing the benefit to the recipient, the payer made a payment to the recipient in money equal to the *market value of the benefit when the benefit is provided.
14-5(2)
The amount to be paid to the Commissioner is equal to the notionally withheld amount.
Example:
Nick is a building contractor who has entered into a voluntary agreement with Mike for the purposes of section 12-55. Nick proposes to give Mike his old utility van (whose market value is $1,000) as payment for work Mike has done for him over a fortnight.
If Nick were instead to pay Mike $1,000, Nick would have had to withhold $203 under Division 12 (in accordance with withholding rates current at the time).
This section requires Nick to pay $203 to the Commissioner before giving the van to Mike.
14-5(3)
This section does not apply to providing:
(a) a *fringe benefit; or
(b) a benefit that is an exempt benefit under the Fringe Benefits Tax Assessment Act 1986; or
(c) a benefit that would be an exempt benefit under that Act if paragraphs (d) and (e) of the definition of employer in subsection 136(1) of that Act were omitted; or
(d) a benefit constituted by the acquisition of an *ESS interest *under an employee share scheme to which Subdivision 83A-B or 83A-C of the Income Tax Assessment Act 1997 applies.
(e) (Repealed by No 133 of 2009)
SECTION 14-10 14-10 DIVIDEND, INTEREST OR ROYALTY RECEIVED, FOR A FOREIGN RESIDENT, IN THE FORM OF A NON-CASH BENEFIT
If:
(a) an entity (the payer ) receives in the form of a *non-cash benefit:
(i) a *dividend of a company; or
(ii) interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936); or
(iii) a *royalty; and
(b) section 12-215, 12-250 or 12-285 would have required the payer to withhold an amount if the dividend, interest or royalty had been a payment in money;
the payer must pay that amount to the Commissioner before providing the benefit (or part of it) to another entity.
SECTION 14-15 PAYER CAN RECOVER AMOUNT PAID TO THE COMMISSIONER 14-15(1)The payer may recover from the recipient as a debt an amount that the payer has paid to the Commissioner under section 14-5.
14-15(2)
If the payer has paid an amount to the Commissioner under section 14-10, the payer may:
(a) if the payer has provided all of the benefit to another entity - recover the amount from that other entity as a debt; or
(b) if the payer has provided a part of the benefit to another entity - recover from that other entity as a debt the corresponding proportion of the amount paid to the Commissioner.
14-15(3)
If the payer can recover an amount from another entity under this section, the payer is entitled to set the amount off against debts due by the payer to the other entity.
Subdivision14-B - Accruing gains
The object of this Subdivision is to put the parties to a *Part VA investment with an accruing gain in a position similar to what would have been their position under Subdivision 12-E (Payments where TFN or ABN not quoted) if the *investment body had paid the gain in money to the *investor at the end of the income year.
*TFN withholding tax is payable if:
(a) in relation to a *Part VA investment, an amount (the accrued gain ) is included in the *investor's assessable income for an income year under section 159GQ of the Income Tax Assessment Act 1936 (about gains accruing on securities); and
(b) the investment:
(i) is of a kind mentioned in item 1 or 2 of the table in subsection 202D(1) of that Act; or
(ii) is of a kind mentioned in item 3 of that table and is non-transferable; and
(c) the term of the investment does not end during the income year; and
(d) section 12-140 would have required the *investment body to withhold an amount (the TFN withholding amount ) from a payment of the accrued gain to the investor, if the investment body had made the payment at the end of the income year and section 12-150 had not been enacted.
Note:
Section 202D of the Income Tax Assessment Act 1936 lists the investments in connection with which tax file numbers are to be quoted.
14-55(2)
The amount of *TFN withholding tax is equal to the TFN withholding amount.
14-55(3)
The *TFN withholding tax is payable jointly and severally by the *investor and the *investment body.
14-55(4)
However, if the *investment body is the Commonwealth or an *untaxable Commonwealth entity:
(a) the *TFN withholding tax is payable by the *investor; and
(b) the investor is taken to have authorised the investment body to pay the TFN withholding tax on the investor's behalf.
14-55(5)
The *TFN withholding tax is due and payable at the end of 21 days after the end of the income year referred to in paragraph (1)(a).
Note 1:
When it is due and payable, the TFN withholding tax is payable to the Commissioner: see paragraph 255-5(1)(b).
Note 2:
An entity by whom it is payable must pay it to the Commissioner in accordance with Subdivision 16-B: see subsection 16-70(3). If any of it remains unpaid, the entity is liable to pay general interest charge: see section 16-80.
Note 3:
The Commissioner may defer the time at which TFN withholding tax becomes due and payable: see section 255-10.
14-55(6)
The adoption (under section 18 of the Income Tax Assessment Act 1936) of an accounting period ending on a day other than 30 June is disregarded for the purposes of:
(a) this section; and
(b) the application of Division 16E of Part III of that Act for the purposes of this section.
The *investment body may recover from the *investor as a debt any of the *TFN withholding tax that it pays.
14-60(2)
The *investment body is entitled to set off an amount that it can recover from the *investor under this section against:
(a) a debt due by it to the investor; or
(b) an amount that is accruing to the investor, or stands to the investor's credit, in respect of the *Part VA investment, even if the amount is not yet due.
These provisions:
(a) subsection 18-15(1) and sections 18-20 and 18-25 (about credits for amounts withheld from withholding payments); and
(b) section 18-80 (about refunds when exemption declaration not given);
apply as if any of the *TFN withholding tax that has been paid were an amount withheld under subsection 12-140(1) from a *withholding payment covered by that subsection and made to the *investor during:
(c) unless the *investor has adopted (under section 18 of the Income Tax Assessment Act 1936) an accounting period ending on a day other than 30 June - the income year referred to in paragraph 14-55(1)(a); or
(d) if the investor has adopted such an accounting period - the income year in which the TFN withholding tax is paid.
Note:
Unless the investor has adopted such an accounting period, the credit under section 18-15, 18-20 or 18-25 will be in respect of the income year before the one in which the TFN withholding tax is paid.
If *TFN withholding tax has been overpaid:
(a) the Commissioner must refund the amount overpaid; and
(b) the *investor is not entitled to a credit under section 18-15, 18-20 or 18-25 in respect of the amount overpaid.
A provision of a law passed before the commencement of this section that purports to exempt an entity from liability to pay *TFN withholding tax, or to pay taxes that include TFN withholding tax, does not exempt that entity from liability to pay TFN withholding tax.
14-85(2)
A provision of a law passed at or after the commencement of this section that purports to exempt an entity from liability to pay taxes under the laws of the Commonwealth, or to pay certain taxes under those laws that include *TFN withholding tax, is not to be interpreted as exempting the entity from liability to pay TFN withholding tax, unless it specifically mentions TFN withholding tax.
Tax ( TFN withholding tax (ESS) ) imposed by the Income Tax (TFN Withholding Tax (ESS)) Act 2009 is payable if:
(a) a company (the provider ) provides one or more *ESS interests to an individual under an *employee share scheme; and
(b) as a result, an amount is included in the individual'sassessable income under Division 83A of the Income Tax Assessment Act 1997 for an income year (taking into account subsection (2) of this section); and
(c) the individual has quoted neither of the following to the provider before the end of the income year:
(i) if the individual acquired the interests in relation to any services provided to the provider, or to a *subsidiary of the provider, in the course or furtherance of an *enterprise *carried on by the individual - the individual's *ABN;
(ii) in any case - the individual's *tax file number.
14-155(2)
For the purposes of paragraph (1)(b), disregard sections 83A-33 and 83A-35 of the Income Tax Assessment Act 1997 (about reducing the amount included in the individual's assessable income).
Note:
Disregard the 30 day rule in subsections 83A-115(3) and 83A-120(3) of the Income Tax Assessment Act 1997 for the purposes of this Subdivision: see subsection 392-5(6) in this Schedule.
14-155(3)
The *TFN withholding tax (ESS) is payable by the provider.
14-155(4)
The *TFN withholding tax (ESS) is due and payable at the end of 21 days after the end of the income year referred to in paragraph (1)(b).
Note 1:
When it is due and payable, the TFN withholding tax (ESS) is payable to the Commissioner: see paragraph 255-5(1)(b).
Note 2:
The provider must pay the TFN withholding tax (ESS) to the Commissioner in accordance with Subdivision 16-B: see subsection 16-70(4). If any of it remains unpaid, the provider is liable to pay general interest charge: see section 16-80.
Note 3:
The Commissioner may defer the time at which TFN withholding tax (ESS) becomes due and payable: see section 255-10.
The individual is taken to have authorised a *subsidiary (the employer ) of the provider to inform the provider of the individual's *tax file number if:
(a) the individual has made a *TFN declaration in relation to the employer; and
(b) some or all of the *ESS interests mentioned in paragraph 14-155(1)(a) were provided to the individual in relation to the individual's employment by the employer.
14-160(2)
If the employer does so, the individual is taken, for the purposes of this Subdivision and Division 392 (Employee share scheme reporting), to have quoted his or her *tax file number to the provider.
The provider may recover from the individual as a debt any of the *TFN withholding tax (ESS) the provider pays.
14-165(2)
The provider is entitled to set off an amount that the provider can recover from the individual under this section against a debt due by the provider to the individual.
These provisions:
(a) subsection 18-15(1) (about credits for amounts withheld from withholding payments); and
(b) sections 18-65 and 18-70 (about refunds of amounts withheld in error);
apply as if any of the *TFN withholding tax (ESS) that has been paid were an amount withheld under section 12-35 from a *withholding payment made to the individual and covered by that section.
If *TFN withholding tax (ESS) has been overpaid:
(a) the Commissioner must refund the amount overpaid; and
(b) the individual is not entitled to a credit under section 18-15 in respect of the amount overpaid.
The following provisions of the Income Tax Assessment Act 1997 have effect for the purposes of this Subdivision in the same way as they have for the purposes of Division 83A of that Act:
(a) section 83A-130 (about takeovers and restructures);
(b) section 83A-305 (about associates);
(c) section 83A-320 (about trusts);
(d) section 83A-325 (about relationships similar to employment);
(e) section 83A-335 (about stapled securities);
(f) section 83A-340 (about indeterminate rights).
Commissioner's Remedial Power
SECTION 14-200
CERTAIN ACQUISITIONS OF TAXABLE AUSTRALIAN PROPERTY FROM FOREIGN RESIDENTS
14-200(1)
Note: A Commissioner's Remedial Power (CRP 2017/1) is relevant to this part of the tax law. Taxation Administration (Remedial Power - Foreign Resident Capital Gains Withholding) Determination 2017 (F2017L00992) modifies the operation of s 18-15, 18-20 and 18-25 in Sch 1 to the Taxation Administration Act 1953 as follows:
To the extent that an entity's entitlement to a credit referred to in s 18-15, 18-20 or 18-25 in Sch 1 to TAA is in respect of an amount paid to the Commissioner under Subdiv 14-D of Sch 1 to TAA, treat the entitlement as arising in the income year in which the transaction causing that application of Subdiv 14-D is recognised for income tax purposes for the entity. The modification applies in respect of transactions entered into on or after 1 July 2016.
An entity must treat a modification as not applying to it or any other entity if the modification would produce a less favourable result for it. The Commissioner is empowered by s 370-5 of Sch 1 to TAA to make modifications, by legislative instrument, to ensure the law is administered to achieve its intended purpose or object.
You must pay to the Commissioner an amount if: (a) you become the owner of a *CGT asset as a result of *acquiring it from one or more entities under one or more transactions; and (b) subsection 14-210(1) (about foreign residents) applies to at least one of those entities at the time one of those transactions is entered into; and (c) at that time, the CGT asset is:
(i) *taxable Australian real property; or
(ii) an *indirect Australian real property interest; or
(iii) an option or right to acquire such property or such an interest;
unless a transaction referred to in paragraph (a) is excluded under section 14-215.
Note:
You must pay the amount on account of income tax possibly payable by the entities on their capital proceeds resulting from your acquisition of the CGT asset.
14-200(2)
You must pay the amount to the Commissioner on or before the day you became the *CGT asset's owner.
Note:
There are penalties for failing to pay the amount (see Division 16).
14-200(3)
The amount to be paid to the Commissioner is:
(a) unless paragraph (b) applies - an amount equal to 15% of:
(i) the first element of the *CGT asset's *cost base just after the *acquisition, ignoring paragraphs 112-36(1)(b) and (c) of the Income Tax Assessment Act 1997 (about the effect of look-through earnout rights); less
(ii) if the acquisition is the result of you exercising an option - any payment you made, and the *market value of any property you gave, for the option (or to renew or extend it); or
(b) the varied amount applying under section 14-235.
14-200(4)
This section does not apply if the amount that would otherwise be payable is nil.
Acquisitions of taxable Australian property from foreign residents
14-205(1)
You must pay to the Commissioner an amount if: (a) you are required under section 14-200 to pay an amount to the Commissioner in relation to your *acquisition of a *CGT asset; and (b) under a *look-through earnout right relating to the CGT asset and the acquisition, you provide a *financial benefit to one or more entities; and (c) subsection 14-210(1) (about foreign residents) would apply to at least one of those entities at the time you provide the financial benefit if section 14-210 were modified as described in subsection (2) of this section; and (d) an amount is not already required to be withheld from a *withholding payment relating to the financial benefit.
Note 1:
To work out the amount payable, see subsection (4).
Note 2:
You must pay the amount on account of income tax possibly payable by the entities on their increased capital proceeds from receiving the financial benefit.
Modifications of the relevant foreign residents test
14-205(2)
The modifications of section 14-210 are as follows:
| Modifications to section 14-210 for the purposes of this section | ||
| Column 1 | Column 2 | |
| Item | For a reference in that section to: | substitute a reference to: |
| 1 | transaction is entered into | *financial benefit is provided |
| 2 | transaction (other than a reference covered by item 1) | *financial benefit |
| 3 | 14-200 | 14-205 |
When you must pay the amount
14-205(3)
You must pay the amount to the Commissioner on or before the day you provide the *financial benefit.
Note:
There are penalties for failing to pay the amount (see Division 16).
14-205(4)
The amount to be paid to the Commissioner is: (a) unless paragraph (b) applies - an amount equal to 15% of the *market value of the *financial benefit; or (b) the varied amount applying under section 14-235.
SECTION 14-210 WHETHER AN ENTITY IS A RELEVANT FOREIGN RESIDENT
Is the entity a foreign resident at the time of the transaction?
14-210(1)
This subsection applies to an entity at the time a transaction is entered into if, at that time:
(a) you know that the entity is a foreign resident; or
(b) you reasonably believe that the entity is a foreign resident; or
(c) you do not reasonably believe that the entity is an Australian resident, and either:
(i) the entity has an address outside Australia (according to any record that is in your possession, or is kept or maintained on your behalf, about the transaction); or
(ii) you are authorised to provide a related financial benefit to a place outside Australia (whether to the entity or to anyone else); or
(d) the entity has a connection outside Australia of a kind specified in the regulations; or
(e) the *CGT asset to which the transaction relates is:
(i) *taxable Australian real property; or
(ii) an *indirect Australian real property interest, the holding of which causes a company title interest (within the meaning of Part X of the Income Tax Assessment Act 1936) to arise.
Note:
This subsection is relevant to whether you must pay an amount to the Commissioner under section 14-200.
Exception - the entity gives you a clearance certificate
14-210(2)
Despite subsection (1), that subsection does not apply to the entity in relation to the transaction if:
(a) before you pay the Commissioner under section 14-200 in relation to the *CGT asset to which the transaction relates, the entity gives you a certificate about the entity that:
(i) was issued under subsection 14-220(1); and
(ii) is for a period covering the time the transaction is entered into; and
(b) the CGT asset is of a kind described in paragraph (1)(e) of this section.
Exception - the entity gives you a residency or interests declaration
14-210(3)
Despite subsection (1), that subsection does not apply to the entity in relation to the transaction if:
(a) before you pay the Commissioner under section 14-200 in relation to the *CGT asset to which the transaction relates, the entity gives you a declaration that:
(i) is about the entity or the CGT asset; and
(ii) was given under subsection 14-225(1) or (2); and
(iii) is for a period covering the time the transaction is entered into; and
(b) when you are given the declaration, you do not know the declaration to be false; and
(c) for a declaration given under subsection 14-225(1) - the CGT asset is not of a kind described in paragraph (1)(e) of this section.
A transaction that results in the *acquisition of a *CGT asset is excluded under this section if:
(a) (Repealed by No 135 of 2024) (b) the transaction is on an *approved stock exchange; or (c) the transaction is conducted using a crossing system (within the meaning of the *market integrity rules); or (d) an amount is already required to be withheld (other than under Subdivision 14-E) from a *withholding payment relating to the transaction; or (e) subsection 26BC(3) of the Income Tax Assessment Act 1936 (about securities lending arrangements) applies in relation to the transaction as a result of the transaction being covered by subparagraph (a)(ii) of that subsection; or (f) any of the entities to which subsection 14-210(1) (about foreign residents) applies at the time of the transaction:
(i) is a company for which any of the conditions in paragraph 161A(1)(a) of the Corporations Act 2001 (about insolvency and external administration) is satisfied; or
(ii) is, under a *foreign law, in the same or a similar position to a company covered by subparagraph (i); or
(g) the transaction arises from any of the following:
(i) the administration of the estate of a bankrupt;
(ii) a composition or scheme of arrangement accepted under Division 6 of Part IV of the Bankruptcy Act 1966;
(iii) a debt agreement under Part IX of that Act;
(iv) a personal insolvency agreement under Part X of that Act;
(v) circumstances that are, under a foreign law, the same or similar to those in any of the above subparagraphs.
Note:
This section is relevant to whether you must pay an amount to the Commissioner under section 14-200.
The Commissioner may certify that, based on information before the Commissioner, there is nothing to suggest that an entity is or will be a foreign resident during a specified period.
Note:
Such a certificate could result in you not being required to pay an amount under this Subdivision (see subsection 14-210(2)).
14-220(2)
A certificate under subsection (1):
(a) may be issued on application to the Commissioner in the *approved form; and
(b) is to be in writing; and
(c) applies only for the purposes of this Subdivision.
14-220(3)
For the purposes of (but without limiting) paragraph 388-50(1)(c), the Commissioner may require an application for a certificate under subsection (1) to state:
(a) whether the applicant holds or will hold specified *CGT assets on behalf of another entity during any part of the period for which the certificate is sought; and
(b) whether the applicant knows or reasonably believes that the other entity is or will be a foreign resident during that period.
Note:
Section 388-50 sets out when an application is in the approved form.
14-220(4)
A certificate issued under subsection (1) is not a legislative instrument.
Declaration that an entity is an Australian resident
14-225(1)
An entity may, in writing, declare that, for a specified period, the entity is and will be an Australian resident.
Note:
Such a declaration could result in you not being required to pay an amount under this Subdivision (see subsection 14-210(3)).
Declaration that asset not an indirect Australian real property interest
14-225(2)
An entity may, in writing, declare that, for a specified period, specified *CGT assets are *membership interests but not *indirect Australian real property interests.
Note:
Such a declaration could result in you not being required to pay an amount under this Subdivision (see subsection 14-210(3)).
Limit on the periods for which declarations have effect
14-225(3)
A period specified in a declaration under this section is of no effect to the extent that it includes days later than 6 months after the day the declaration is made.
Declarations are not legislative instruments
14-225(4)
A declaration under this section is not a legislative instrument.
Knowingly making false or misleading declarations
14-230(1)
You are liable to pay the Commissioner a penalty of 120 penalty units if:
(a) you make a statement; and
(b) the statement is, or purports to be, a declaration under section 14-225; and
(c) the statement is false or misleading in a material particular, whether because of things in it or omitted from it; and
(d) you know, at the time of making the statement, that it is so false or misleading.
Note:
Division 298 contains machinery provisions for administrative penalties.
Recklessly making false or misleading declarations
14-230(2)
You are liable to pay the Commissioner a penalty of 80 penalty units if:
(a) you make a statement; and
(b) the statement is, or purports to be, a declaration under section 14-225; and
(c) the statement is false or misleading in a material particular, whether because of things in it or omitted from it; and
(d) you were reckless in connection with the making of the statement.
Note:
Division 298 contains machinery provisions for administrative penalties.
Not taking reasonable care in making declarations
14-230(3)
You are liable to pay the Commissioner a penalty of 40 penalty units if:
(a) you make a statement; and
(b) the statement is, or purports to be, a declaration under section 14-225; and
(c) the statement is false or misleading in a material particular, whether because of things in it or omitted from it; and
(d) you did not take reasonable care in connection with the making of the statement.
Note:
Division 298 contains machinery provisions for administrative penalties.
Policies relevant to varying amounts
14-235(1)
In exercising a power under this section to vary an amount, the Commissioner must have regard to the need to protect a creditor's right to recover a debt.
Varying particular amounts
14-235(2)
The Commissioner may, in writing, vary a particular amount payable by you to the Commissioner under this Subdivision. The variation takes effect when you become aware of it.
Note:
Decisions to vary, or not to vary, are reviewable (see section 20-80).
14-235(3)
Any of the following entities may apply to the Commissioner in the *approved form for a variation under subsection (2):
(a) you;
(b) an entity from which you *acquire, or could acquire, the *CGT asset;
(c) an entity that is owed a debt by an entity covered by paragraph (b).
14-235(4)
A variation made under subsection (2) is not a legislative instrument.
Varying classes of amounts
14-235(5)
The Commissioner may, by legislative instrument, vary classes of amounts payable to the Commissioner under this Subdivision.
Amounts may be reduced to nil
14-235(6)
The Commissioner's power under subsection (2) or (5) to vary an amount includes the power to reduce the amount to nil.
Liability to pay an amount
14-250(1)
You must pay to the Commissioner an amount if:
(a) you are the recipient (within the meaning of the *GST Act) of a *taxable supply that is, or includes, a *supply to which subsection (2) applies; and
(b) in a case where the supply is a supply of *potential residential land - either:
(i) you are not registered (within the meaning of that Act); or
(ii) you do not acquire the thing supplied for a *creditable purpose.
14-250(2)
This subsection applies to a *supply, by way of sale or long-term lease (within the meaning of the *GST Act), of:
(a) *new residential premises that:
(i) have not been created through *substantial renovations of a building; and
(ii) are not *commercial residential premises; or
(b) *potential residential land that:
(i) is included in a *property subdivision plan; and
(ii) does not contain any building that is in use for a commercial purpose;
other than a supply that is of a kind determined by the Commissioner under subsection (3).
14-250(3)
The Commissioner may, by legislative instrument, determine that subsection (2) does not apply to a kind of *supply specified in the determination.
When the amount must be paid
14-250(4)
You must pay the amount on or before:
(a) the day on which:
(i) any of the *consideration for the *supply (other than consideration provided as a deposit) is first provided; or
(ii) if the supplier is your *associate, and the supply is without consideration - the supply is made; or
(b) if a determination under subsection (5) applies - the day provided under that determination.
14-250(5)
The Commissioner may determine, by legislative instrument, circumstances in which amounts under this section are to be paid on or before the day provided under the determination. The determination may provide for amounts to be paid in instalments.
The amount to be paid
14-250(6)
The amount to be paid to the Commissioner is an amount equal to:
(a) if the *margin scheme applies to the *supply:
(i) the percentage, of the amount provided under subsection (7), determined by the Minister under subsection (8); or
(ii) if there is no such determination - 7% of the amount provided under subsection (7); or
(b) otherwise - 1/11 of the amount provided under subsection (7).
14-250(7)
For the purposes of paragraphs (6)(a) and (b), the amount is:
(a) if the contract for the *supply specifies an amount (the contract price ) that is the *price for the supply, subject to normal adjustments that apply on completion of transactions of that kind - that contract price; or
(b) otherwise - the *price for the supply.
14-250(8)
The Minister may, by legislative instrument, determine a percentage exceeding 7%, but not exceeding 9%, for the purposes of subparagraph (6)(a)(i).
14-250(9)
Despite subsection (6), if:
(a) the supplier is your *associate; and
(b) the *supply is without *consideration or is for consideration that is less than the *GST inclusive market value;
the amount to be paid to the Commissioner is an amount equal to 10% of the *GST exclusive market value (within the meaning of the *GST Act) of the supply.
14-250(10)
Despite subsections (6) and (9), if:
(a) the *supply does not consist solely of one or more supplies to which subsection (2) applies; and
(b) it is practicable to ascertain, at the time any of the *consideration for the supply (other than consideration provided as a deposit) is first provided, the amount (the reduced amount ) of the amount provided under subsection (6) or (9) that relates to supplies to which subsection (2) applies;
the amount provided under subsection (6) or (9) is taken (other than for the purposes of this subsection) to be the reduced amount.
Multiple recipients
14-250(11)
If there is more than one recipient (within the meaning of the *GST Act) of the *supply (the original supply ):
(a) treat each recipient as being the recipient of a separate supply; and
(b) treat the amount under subsection (6), (9) or (10) (as the case requires) for such a separate supply as being the same proportion of that amount for the original supply, as the proportion of the original supply that is constituted by that separate supply.
Treat recipients who are joint tenants as a single recipient for the purposes of this subsection.
You must not make a *supply, by way of sale or long-term lease (within the meaning of the *GST Act), of *residential premises or of *potential residential land to another entity unless, before making the supply, you have given to the other entity a written notice stating:
(a) whether the other entity will be required to make a payment under section 14-250 in relation to the supply; and
(b) if the other entity will be required to make such a payment in relation to the supply:
(i) the name and *ABN of the entity that is liable to pay the *GST on the supply; and
(ii) the amount that the other entity will be required to pay to the Commissioner under section 14-250 in relation to the supply; and
(iii) when the other entity will be required to pay that amount; and
(iv) if some or all of the *consideration for the supply will not be expressed as an amount of *money - the *GST inclusive market value of so much of the consideration as will not be expressed as an amount of money; and
(v) such other matters as are specified in the regulations.
14-255(2)
However, subsection (1):
(a) does not apply to a supply of *commercial residential premises; and
(b) does not apply to a supply of *potential residential land to another entity if the other entity:
(i) is registered (within the meaning of the *GST Act); and
(ii) acquires the land for a *creditable purpose.
14-255(3)
To avoid doubt, a failure to comply with subsection (1) does not affect the other entity's obligation to make a payment under section 14-250.
Strict liability offence
14-255(4)
You must not fail to give a notice required under this section.
Penalty: 100 penalty units.
14-255(5)
An offence against subsection (4) is a strict liability offence.
Note:
For strict liability, see section 6.1 of the Criminal Code.
Administrative penalty
14-255(6)
You are liable to pay the Commissioner a penalty of 100 penalty units if you fail to give a notice required under this section.
Note:
Division 298 contains machinery provisions for administrative penalties.
14-255(7)
However, you are not liable to a penalty for failing to meet the requirements of paragraph (1)(b) in relation to a supply if, at the time you gave the notice, you reasonably believed that you were not required to meet those requirements in relation to that supply.
This Division is mainly about how to work out how much an entity must withhold under Division 12.
In most cases, the entity will need to use either the Commissioner's withholding schedules or the regulations.
The entity will also need to take into account a TFN declaration or declaration under section 15-50 it has been given because, under the schedules and regulations, the declaration may affect how to calculate the amount to withhold.
This Division also deals with when an individual can make such a declaration (other than a TFN declaration) so as to change the amount that must be withheld from payments to the individual.
The amount that Subdivision 12-B, 12-C or 12-D requires to be withheld from a payment is to be worked out under the withholding schedules made under section 15-25. However, if the regulations prescribe how the amount is to be worked out, then it is to be worked out under the regulations.
Note 1:
A TFN declaration, declaration under section 15-50 or voluntary agreement may affect how much is required to be withheld under the withholding schedules or regulations.
Note 2:
The Commissioner may vary an amount required to be withheld. See section 15-15.
15-10(2)
The amount that Subdivision 12-E, 12-F, 12-FA, 12-FAA, 12-FB, 12-FC, 12-G (except one covered by section 12-325) or 12-J requires to be withheld from a payment is to be worked out under the regulations.
Note 1:
The amount that section 12-325 requires to be withheld is worked out under that section.
Note 2:
The Commissioner may vary an amount required to be withheld. See section 15-15.
15-10(3)
The amount that Subdivision 12-H requires to be withheld from a payment or receipt is worked out under subsection 12-385(2), 12-390(2) or 12-390(5).
SECTION 15-15 VARIATION OF AMOUNTS REQUIRED TO BE WITHHELD 15-15(1)
The Commissioner may, for the purposes of meeting the special circumstances of a particular case or class of cases, vary the *amount required to be withheld by an entity from a *withholding payment (except a withholding payment covered by section 12-140, 12-145, 12-175 or 12-180 or Subdivision 12-FC or 12-H). If the Commissioner does so, the amount is varied accordingly.
Note 1:
Section 12-140 is about a payment arising from an investment where the recipient does not quote its tax file number (or, in some cases, its ABN).
Note 2:
Sections 12-175 and 12-180 are about a payment of the income of a closely held trust to a beneficiary, where the beneficiary does not quote the beneficiary's tax file number.
Note 3:
Section 12-145 is about an investor becoming presently entitled to income of a unit trust.
Note 3A:
Subdivision 12-FC is about certain labour mobility programs.
Note 4:
Subdivision 12-H is about distributions of withholding MIT income.
15-15(2)
The Commissioner's power to vary an amount includes the power to reduce the amount to nil.
15-15(3)
A variation must be made: (a) if it applies to a particular entity - by a written notice given to that entity; or (b) if it applies to a class of entities - by legislative instrument.
For the purposes of collecting income tax and the other liabilities referred to in paragraphs 11-1(b), (ca), (caa), (cb), (cc), (cd), (da) and (db), the Commissioner may, by legislative instrument, make oneor more withholding schedules specifying the amounts, formulas and procedures to be used for working out the *amount required to be withheld by an entity:
(a) from a *withholding payment covered by Subdivision 12-B, 12-C or 12-D; or
(b) an *alienated personal services payment to which Division 13 applies.
15-25(2)
A withholding schedule may deal differently with:
(a) different payments; and
(b) different circumstances of the recipients of those payments; and
(c) different periods in respect of which those payments are made.
This subsection does not limit subsection 33(3A) of the Acts Interpretation Act 1901.
15-25(3)
(Repealed by No 64 of 2020)
15-25(4)
(Repealed by No 64 of 2020)
15-25(5)
(Repealed by No 64 of 2020)
The Commissioner must have regard to the following matters when making a withholding schedule: (a) the rates of income tax as specified in the Income Tax Rates Act 1986; (b) the rates of *Medicare levy as specified in the Medicare Levy Act 1986;
(c) (Repealed by No 56 of 2010) (ca) the percentages specified in section 154-20 (about repayments of accumulated HELP debt) of the Higher Education Support Act 2003 for any financial year starting on or after 1 July 2005; (caa) the percentage referred to in the definition of applicable percentage of repayment income in subsection 23EA(1) (about repayments of accumulated VETSL debts) of the VET Student Loans Act 2016 for any financial year starting on or after 1 July 2019; (cb) the percentage referred to in the definition of applicable percentage of repayment income in subsection 1061ZVHA(1) (about repayments of accumulated SSL debt) of the Social Security Act 1991 for any financial year starting after the commencement of this paragraph; (cc) the percentage referred to in the definition of applicable percentage of HELP repayment income in subsection 10F(1) (about repayments of accumulated ABSTUDY SSL debt) of the Student Assistance Act 1973 for any financial year starting after the commencement of this paragraph; (cd) the percentage referred to in the definition of applicable percentage of repayment income in subsection 46(1) (about repayments of accumulated AASL debt) of the Australian Apprenticeship Support Loans Act 2014 for any financial year starting on or after 1 July 2014; (da) the percentages specified in section 1061ZZFD (about repayments of accumulated FS debts) of the Social Security Act 1991 for any financial year starting on or after 1 July 2006; (db) the percentages specified in section 12ZLC (about repayments of accumulated FS debts) of the Student Assistance Act 1973 for any financial year starting on or after 1 July 2006; (d) any *tax offsets; (e) the family tax benefit (within the meaning of the A New Tax System (Family Assistance) Act 1999); (f) the periods in respect of which *withholding payments are made; (fa) in relation to withholding payments that are *working holiday taxable income - whether an entity is registered under section 16-147; (g) any other prescribed matter.
For the purposes of collecting income tax and the other liabilities referred to in section 11-1, the regulations may specify the amounts, formulas and procedures to be used for working out the *amount required to be withheld by an entity from a *withholding payment covered by Division 12 (except one covered by section 12-325).
15-35(2)
The regulations may deal differently with:
(a) different payments; and
(b) different circumstances of the recipients of those payments; and
(c) different periods in respect of which those payments are made.
This subsection does not limit subsection 33(3A) of the Acts Interpretation Act 1901.
Subdivision 15-C - Declarations SECTION 15-50 DECLARATIONS
Declarations about matters
15-50(1)
An individual who:
(a) expects to receive a *withholding payment covered by Subdivision 12-B, 12-C or 12-D, or an *alienated personal services payment to which Division 13 applies, from an entity; and
(b) wishes to have a matter relating to the individual's income tax or other liability referred to in paragraph 11-1(b), (ca), (caa), (cb), (cc), (cd), (da) or (db) taken into account by the entity in working out the *amount required to be withheld from the payment;
may give the entity a declaration about the matter in the *approved form.
When declarations under subsection (1) can't be given
15-50(2)
The individual cannot give a declaration under subsection (1) unless:
(a) a *TFN declaration is in effect between the individual and the entity, or a *voluntary agreement covers the payment; and
(b) if the individual has given another entity a declaration on any matter - that declaration is not in effect.
Declarations changing information given in TFN declaration
15-50(3)
If:
(a) an individual has given a *TFN declaration to an entity; and
(b) the individual made a statement about a matter in the TFN declaration; and
(c) the individual's circumstances change in relation to the matter;
the individual may give the entity a declaration about the matter in the *approved form.
Regulations
15-50(4)
The regulations may prescribe:
(a) (Repealed by No 110 of 2014)
(b) when a declaration under subsection (1) or (3) starts or ceases to be in effect; and
(c) when a declaration under subsection (1) or (3) is taken to have been given.
15-50(5)
If:
(a) an individual gives an entity a declaration under subsection (1) or (3) about a matter; and
(b) the individual's circumstances change in relation to the matter;
the regulations may also prescribe when the individual must give the entity a new declaration about the matter.
This Division sets out the obligations and rights of an entity required to withhold an amount under Division 12, or to pay an amount to the Commissioner under Division 12A, 13 or 14.
Note:
The entity may also have obligations under other legislation. See, for example, the obligation to keep records under section 262A of the Income Tax Assessment Act 1936.
SECTION 16-5 16-5 WHEN TO WITHHOLD AN AMOUNT
If Division 12 requires an entity to withhold an amount from a payment, the entity must do so when making the payment.
Note 1:
An entity is required to withhold an amount under section 12-145 when an investor becomes presently entitled to income of a unit trust.
Note 1A:
A trustee of a closely held trust is required to withhold an amount under section 12-180 when a beneficiary is presently entitled to unpaid income of the trust.
Note 2:
If section 12-215, 12-250 or 12-285, or subsection 12-390(4), requires an entity to withhold an amount from a payment received by the entity, the entity must do so at the time required by that provision.
For the purposes of this Division:
(a) if an entity must pay an amount to the Commissioner under Subdivision 12A-C, treat the entity as being obliged to withhold the amount under Division 12; and
(b) if an entity has paid an amount to the Commissioner under Subdivision 12A-C, treat the entity as having withheld the amount under Division 12.
(Repealed by No 179 of 1999) 16-15 16-15 (Repealed) SECTION 16-15 VARIATION OF AMOUNTS REQUIRED TO BE WITHHELD
(Repealed by No 179 of 1999) SECTION 16-20 PAYER DISCHARGED FROM LIABILITY TO RECIPIENT FOR AMOUNT WITHHELD 16-20(1)
An entity that:
(a) withholds an amount as required by Division 12; or
(b) pays to the Commissioner an amount as required by Division 12A, 13 or 14;
is discharged from all liability to pay or account for that amount to any entity except the Commissioner.
Note:
The entity may be required to refund the amount in some circumstances. See Subdivision 18-B.
16-20(2)
An entity is discharged from all liability to pay so much of the total amount payable to *acquire a *CGT asset as is equal to any amount the entity pays to the Commissioner under Subdivision 14-D in relation to the acquisition.
SECTION 16-25 FAILURE TO WITHHOLD: OFFENCE 16-25(1)
An entity must not fail to withhold an amount as required by Division 12.
Penalty: 10 penalty units.
Note 1:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Note 2:
See sections 16-30, 16-35, 16-40 and 16-43 for an alternative administrative penalty.
16-25(2)
An entity must not fail to pay to the Commissioner an amount as required by Division 12A or 13 or Subdivision 14-A, 14-B, 14-C or 14-D.
Penalty: 10 penalty units.
Note 1:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Note 2:
See sections 16-30, 16-35, 16-40 and 16-43 for an alternative administrative penalty.
16-25(3)
An offence against subsection (1) or (2) is a strict liability offence.
Note:
For strict liability , see section 6.1 of the Criminal Code.
16-25(4)
If a person is convicted of an offence in relation to:
(a) a failure by that person or someone else to withhold an amount as required by Division 12; or
(b) a failure by that person or someone else to pay to the Commissioner an amount as required by Division 12A or 13 or Subdivision 14-A, 14-B, 14-C or 14-D;
the court may order the convicted person to pay to the Commissioner an amount up to the *amount required to be withheld. The court may so order in addition to imposing a penalty on the convicted person.
SECTION 16-30 FAILURE TO WITHHOLD: ADMINISTRATIVE PENALTY FOR ENTITY OTHER THAN EXEMPT AUSTRALIAN GOVERNMENT AGENCY 16-30(1)
An entity (except an *exempt Australian government agency) that:
(a) fails to withhold an amount as required by Division 12; or
(b) fails to pay an amount to the Commissioner as required by Division 12A, 13 or 14;
is liable to pay to the Commissioner a penalty equal to that amount.
Note 1:
An entity may become liable under this section in respect of a payment it made or received that is taken to have been subject to withholding tax as a result of a Commissioner's determination under subsection 177F(2A) of the Income Tax Assessment Act 1936 (see also subsection 177F(2F) of that Act).
Note 2:
Division 298 in this Schedule contains machinery provisions for administrative penalties.
16-30(2)
Subsection (1) does not apply in relation to a failure to pay an amount to the Commissioner as required by Subdivision 14-E if:
(a) the amount relates to a *taxable supply of *new residential premises (other than *commercial residential premises); and
(b) the entity was given a notice under section 14-255:
(i) stating that the premises are not new residential premises; or
(ii) indicating that the entity will not be required to pay an amount to the Commissioner under section 14-250 in relation to the supply; and
(c) at the time *consideration for the supply (other than consideration provided as a deposit) is first provided, there was nothing in:
(i) the contract for the supply; or
that made it unreasonable for the entity to believe that the statement or indication was correct.
(ii) any other circumstances relating to the supply;
16-30(3)
Subsection (1) does not apply in relation to a failure to pay an amount to the Commissioner in relation to a *taxable supply as required by Subdivision 14-E if:
(a) the entity required to pay the amount in relation to the supply gives the supplier a bank cheque on or before the day *consideration for the supply (other than consideration provided as a deposit) is first provided; and
(b) the bank cheque is for the amount the entity is required to pay to the Commissioner, and is payable to the Commissioner.
SECTION 16-35 FAILURE TO WITHHOLD: ADMINISTRATIVE PENALTY FOR EXEMPT AUSTRALIAN GOVERNMENT AGENCY IN RELATION TO PAYMENT OTHER THAN DIVIDEND, INTEREST OR ROYALTY 16-35(1)
An *exempt Australian government agency that:
(a) fails to withhold an amount as required by Division 12; or
(b) fails to pay to the Commissioner an amount as required by Division 14;
is liable to pay to the Commissioner a penalty of 20 penalty units.
Note 1:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Note 2:
Division 298 in this Schedule contains machinery provisions for administrative and civil penalties.
16-35(2)-(3)
(Repealed by No 179 of 1999)
Exception
16-35(4)
This section does not apply in relation to an *amount required to be withheld from a *withholding payment covered by Subdivision 12-F (about dividend, interest or royalty payment) or by Subdivision 12-FB (about payments to foreign residents).
SECTION 16-40 16-40 FAILURE TO WITHHOLD: ADMINISTRATIVE PENALTY FOR EXEMPT AUSTRALIAN GOVERNMENT AGENCY IN RELATION TO DIVIDEND, INTEREST OR ROYALTY PAYMENT
An *exempt Australian government agency that:
(a) fails to withhold an amount as required by Division 12 from a *withholding payment covered by Subdivision 12-F (about dividend, interest or royalty payment); or
(b) fails to pay to the Commissioner an amount as required by Division 14 in respect of a withholding payment covered by that Subdivision;
is liable to pay to the Commissioner a penalty equal to that amount.
Note 1:
An exempt Australian government agency may become liable under this section in respect of a payment it made or received that is taken to have been subject to withholding tax as a result of a Commissioner's determination under subsection 177F(2A) of the Income Tax Assessment Act 1936 (see also subsection 177F(2F) of that Act).
Note 2:
Division 298 in this Schedule contains machinery provisions for administrative penalties.
An *exempt Australian government agency that:
(a) fails to withhold an amount as required by Division 12 from a *withholding payment covered by Subdivision 12-FB (about payments to foreign residents); or
(b) fails to pay to the Commissioner an amount as required by Division 14 in respect of a withholding payment covered by that Subdivision;
is liable to pay to the Commissioner a penalty equal to that amount.
Note:
Division 298 in this Schedule contains machinery provisions for administrative penalties.
(Repealed by No 58 of 2006)
(Repealed by No 58 of 2006)
SECTION 16-70 ENTITY TO PAY AMOUNTS TO COMMISSIONER 16-70(1)
An entity that withholds an amount under Division 12 must pay the amount to the Commissioner in accordance with this Subdivision.
16-70(2)
An entity that must pay an amount to the Commissioner under Division 13 or Subdivision 14-A must do so in accordance with section 16-85.
16-70(3)
An entity that must pay an amount to the Commissioner under Subdivision 14-B, 14-C, 14-D or 14-E must do so in accordance with sections 16-80 and 16-85.
Note:
For provisions about the collection and recovery of amounts payable to the Commissioner under this Part, see Part 4-15.
16-70(4)
(Repealed by No 10 of 2016)
Note:
For provisions about collection and recovery of amounts payable to the Commissioner under this Part, see Part 4-15.
Large withholder
16-75(1)
A *large withholder must pay to the Commissioner as shown in the table an amount it withholds under Division 12 (other than section 12-175 or 12-180) during a month.
| Payments by large withholders | ||
| Item |
If the amount is
withheld on this day of week: |
It must be paid to the Commissioner on or before: |
| 1 | Saturday or Sunday | The second Monday after that day |
| 2 | Monday or Tuesday | The first Monday after that day |
| 3 | Wednesday | The second Thursday after that day |
| 4 | Thursday orFriday | The first Thursday after that day |
Medium withholders
16-75(2)
Subject to subsection (2A), a *medium withholder must pay to the Commissioner an amount that it withholds during a month under Division 12 (other than section 12-175 or 12-180) by the end of the 21st day of the next month.
16-75(2A)
If a *medium withholder:
(a) withholds an amount during a month under Division 12 (other than section 12-175 or 12-180); and
(b) is a *deferred BAS payer on the 21st day of the month (the next month ) following that month;
the medium withholder must pay that amount to the Commissioner by the end of the 28th day of:
(c) the next month unless the amount is withheld during December; or
(d) the next February if the amount is withheld during December.
Small withholders
16-75(3)
Subject to subsection (4), if a *small withholder withholds an amount under Division 12 (other than section 12-175 or 12-180) during a month in a *quarter, it must pay the amount to the Commissioner by the end of the 21st day of the month after the end of that quarter.
16-75(4)
If a *small withholder:
(a) withholds an amount under Division 12 (other than section 12-175 or 12-180) during a month in a *quarter; and
(b) is a *deferred BAS payer on the 21st day of the month after the end of that quarter;
the small withholder must pay that amount to the Commissioner as shown in the table:
| Payments by *deferred BAS payers | ||
| Item | If the amount is withheld during the *quarter ending on: | the amount must be paid to the Commissioner by the end of: |
| 1 | 30 September | the following 28 October |
| 2 | 31 December | the following 28 February |
| 3 | 31 March | the following 28 April |
| 4 | 30 June | the following 28 July |
Payment of income of closely held trust
16-75(5)
A trustee must pay to the Commissioner an amount the trustee withholds under section 12-175 or 12-180 from a payment made during an income year. The trustee must do so:
(a) by the end of the 28th day of the next month following the day by which the trustee was required to give to the Commissioner a report under subsection 16-152(1) for the income year; or
(b) within a longer period allowed by the Commissioner.
SECTION 16-80 16-80 PENALTY FOR FAILURE TO PAY WITHIN TIME
If an amount that an entity must pay to the Commissioner under subsection 16-70(1) or (3) remains unpaid after the time by which it is due to be paid, the entity is liable to pay *general interest charge on the unpaid amount for each day in the period that:
(a) started at the beginning of the day by which the unpaid amount was due to be paid; and
(b) finishes at the end of the last day, at the end of which, any of the following remains unpaid:
(i) the unpaid amount;
(ii) general interest charge on any of the unpaid amount.
Large withholder
16-85(1)
A *large withholder must pay to the Commissioner by a means of *electronic payment:
(a) an amount that it withholds under Division 12; and
(b) an amount that it pays to the Commissioner under Division 13 or 14.
Note 1:
A different rule applies for some large withholders for July and August 2000. See section 16-130.
Note 2:
A penalty applies if a large withholder fails to pay electronically as required - see section 288-20.
Note 3:
A large withholder must also pay other tax debts electronically - see section 8AAZMA.
Medium or small withholder
16-85(2)
A *medium withholder or *small withholder must pay to the Commissioner:
(a) any amount that it withholds under Division 12; and
(b) any amount that it pays to the Commissioner under Division 13 or 14;
by a means of *electronic payment, or any other means approved in writing by the Commissioner.
Commissioner may vary payment method
16-85(3)
The Commissioner may, with an entity's agreement, vary the means by which the withholder pays amounts to the Commissioner under this Subdivision. The variation must be by written notice given to the entity.
16-90 16-90 (Repealed) SECTION 16-90 LARGE WITHHOLDER: PENALTY FOR NON-ELECTRONIC PAYMENT
(Repealed by No 179 of 1999) Who is a large, medium or small withholder
SECTION 16-95 MEANING OF LARGE WITHHOLDER 16-95(1)
An entity is a large withholder for a particular month (the current month ) in a *financial year starting on or after 1 July 2001 if:
(a) it was a *large withholder for June 2001; or
(b) the *amounts withheld by the entity during a financial year ending at least 2 months before the current month exceeded $1 million; or
(c) both of the following apply:
(i) at the end of a financial year (the threshold year ) ending at least 2 months before the current month, the entity was one of a number of companies that were at that time all members of the same *wholly-owned group;
(ii) the amounts withheld by those companies during the threshold year exceeded $1 million; or
(d) the Commissioner determines under section 16-115 that the entity is a large withholder for the current month.
Note:
Different rules apply for working out who is a large withholder for a month in 2000-01. See section 16-125.
Exception
16-95(2)
However, the entity is not a *large withholder if the Commissioner determines under section 16-110 that it is a *medium withholder or a *small withholder for the current month.
An entity is a medium withholder for a particular month (the current month ) in a *financial year starting on or after 1 July 2001 if it is not a *large withholder for that month and:
(a) it was a *medium withholder for June 2001; or
(b) the *amounts withheld by the entity during a financial year ending before the current month exceeded $25,000; or
(c) the Commissioner determines under section 16-110 or 16-115 that the entity is a medium withholder for the current month.
Note:
Different rules apply for working out who is a large withholder for a month in 2000-01. See section 16-125.
16-100(2)
However, the entity is not a *medium withholder if the Commissioner determines under section 16-110 or 16-115 that the entity is a *large withholder or a *small withholder for the current month.
An entity is a small withholder for a particular month if:
(a) there is at least one *amount withheld by the entity during that month; and
(b) the entity is neither a *large withholder nor a *medium withholder for that month. SECTION 16-110 COMMISSIONER MAY VARY WITHHOLDER'S STATUS DOWNWARDS 16-110(1)
The Commissioner may, by giving written notice to a *withholder:
(a) make the following determinations:
(i) a determination that a *large withholder is a *medium withholder or a *small withholder;
(ii) a determination that a medium withholder is a small withholder; or
(b) revoke or vary any such determination.
16-110(2)
The notice must state that the determination applies:
(a) for specified months; or
(b) for all months from and including a specified month.
16-110(3)
The determination has no effect for a particular month unless the notice is given before that month.
16-110(4)
An entity that would otherwise be a *large withholder or a *medium withholder for a particular month may apply in writing to the Commissioner for a determination under this section.
Note:
A person who is dissatisfied with a decision under this section may object against the decision in the manner set out in Part IVC.
SECTION 16-115 COMMISSIONER MAY VARY WITHHOLDER'S STATUS UPWARDS 16-115(1)
The Commissioner may, by giving written notice to a *withholder:
(a) make the following determinations:
(i) a determination that a *small withholder is a *medium withholder or a *large withholder;
(ii) a determination that a medium withholder is a large withholder; or
(b) revoke or vary any such determination.
16-115(2)
The notice must state that the determination applies:
(a) for specified months; or
(b) for all months from and including a specified month.
16-115(3)
A determination that a *small withholder is a *medium withholder has no effect for a particular month unless the notice is given before that month.
16-115(4)
Any other determination under this section has no effect for a month that is earlier than the second month after the month in which the notice is given.
16-115(5)
The Commissioner may, in making a determination under this section, have regard to the following:
(a) the sum of the amounts that the Commissioner considers to be likely to be the *amounts required to be withheld by the entity in the following 12 months;
(b) the extent (if any) to which the entity makes or receives *withholding payments that were previously made or received by another entity;
(c) any failure by the entity to comply with its obligations under this Part;
(d) any *arrangement that was entered into or carried out for the purpose of lengthening the intervals at which the entity is required to pay to the Commissioner amounts withheld from withholding payments;
(e) such other matters as the Commissioner considers relevant.
Note:
A person who is dissatisfied with a decision under this section may object against the decision in the manner set out in Part IVC.
SECTION 16-140 WITHHOLDERS MUST BE REGISTERED 16-140(1)
An entity that must pay an amount to the Commissioner under:
(a) subsection 16-70(1) (about amounts withheld under Division 12); or
(aaa) Division 12A (about deemed payments by AMITs); or
(aa) Division 13 (about payments in respect of alienated personal services payments); or
(b) Subdivision 14-A, 14-B, 14-C or 14-D (about payments in respect of non-cash benefits or capital proceeds);
must apply to register with the Commissioner.
16-140(2)
The entity must apply in the *approved form by the day on which the entity is first required:
(a) to withhold an amount under Division 12; or
(b) to pay an amount to the Commissioner under Division 12A or 13 or Subdivision 14-A, 14-B, 14-C or 14-D.
However, the Commissioner may allow a longer period for applying.
16-140(3)
An entity that contravenes this section is liable to an administrative penalty of 5 penalty units.
Note 1:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Note 2:
Division 298 contains machinery provisions for administrative and civil penalties.
SECTION 16-141 16-141 REGISTRATION AND CANCELLATION
The Commissioner may register an entity or cancel the registration of an entity at any time.
SECTION 16-142 BRANCHES MAY BE REGISTERED 16-142(1)
The Commissioner may register a branch of a registered entity if:
(a) the entity applies, in the *approved form, for registration of the branch; and
(b) the entity has an *ABN or has applied for one; and
(c) the Commissioner is satisfied that the branch maintains an independent system of accounting, and can be separately identified by reference to:
(i) the nature of the activities carried on through the branch; or
(ii) the location of the branch; and
(d) the Commissioner is satisfied that the entity is *carrying on an enterprise through the branch, or intends to carry on an enterprise through the branch, from a particular date specified in the application.
A branch that is so registered is a PAYG withholding branch .
Note:
A branch may be both a PAYG withholding branch under this Subdivision and a GST branch under the GST Act.
16-142(2)
The Commissioner may register a branch of a *government entity or a *non-profit sub-entity if:
(a) the branch or sub-entity applies, in the *approved form, for registration; and
(b) the branch or sub-entity has an *ABN or has applied for one.
A branch or sub-entity that is so registered is also a PAYG withholding branch .
If an entity has a *PAYG withholding branch, this Part applies to the entity as if the amounts that it must pay to the Commissioner under this Part were separated into the following classes:
(a) for each such branch of the entity, a class of amounts that relate to the branch; and
(b) a class of amounts that do not relate to any of the entity's branches.
Note:
This section does not impose any legal obligations on the branches. The entity remains legally responsible under this Part for all amounts that relate to its branches.
16-143(2)
Those amounts are worked out as if the branch were a separate entity and as if:
(a) all payments made through the branch, from which amounts are required to be withheld under Division 12, were made by that separate entity; and
(aa) all *alienated personal services payments received through the branch, in respect of which Division 13 requires an amount to be paid to the Commissioner, were received by that separate entity; and
(b) all *non-cash benefits or *capital proceeds provided through the branch, in respect of which Division 14 requires an amount to be paid to the Commissioner, were provided by that separate entity.
The Commissioner must cancel the registration of a *PAYG withholding branch of an entity if the Commissioner is satisfied that the branch does not satisfy paragraph 16-142(c) or (d).
If an entity's registration is cancelled, the registration of any *PAYG withholding branches of the entity ceases to have effect.
SECTION 16-146 EMPLOYERS OF WORKING HOLIDAY MAKERS MUST BE REGISTERED 16-146(1)
An entity must apply to the Commissioner to register under section 16-147 if:
(a) the entity must pay an amount to the Commissioner under subsection 16-70(1) from salary, wages, commission, bonuses or allowances it pays to an individual as the individual's *working holiday taxable income; and
(b) in a case where a period has been determined under subsection 16-148(5) during which the entity cannot apply under this section - the period has ended.
16-146(2)
The entity must apply in the *approved form by the day on which the entity is first required to withhold an amount under Division 12 from salary, wages, commission, bonuses or allowances it pays to an individual as the individual's *working holiday taxable income.
16-146(3)
However, the Commissioner may allow a longer period for applying.
16-146(4)
An entity that contravenes this section is liable to an administrative penalty of 20 penalty units.
Note 1:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Note 2:
Division 298 contains machinery provisions for administrative and civil penalties.
16-146(5)
This section does not affect an obligation that an entity has under section 16-140.
The Commissioner must register an entity under this section if, and only if, the entity: (a) has applied under section 16-146 for registration; and (b) has made a declaration to the Commissioner, in the *approved form, that states that the entity:
(i) has a genuine business requirement to employ one or more *working holiday makers; and
(ii) agrees to comply with the Fair Work Act 2009 in relation to its employment of any individual who is a working holiday maker; and
(c) has given to the Commissioner, in the approved form, information relating to its employment, or proposed employment, of working holiday makers.
(iii) agrees to check that any individual it employs as a working holiday maker holds a visa that causes that person to be a working holiday maker; and
16-147(2)
Subparagraph (1)(b)(i) does not apply if the entity is not carrying on a *business.
16-147(3)
The registration takes effect on the day determined by the Commissioner.
Notification of the Commissioner's decision
16-147(4)
The Commissioner must notify the entity of: (a) the Commissioner's decision on the application; and (b) if the Commissioner decides to register the entity - the day on which the registration takes effect;
within 30 days after the making of the application.
Note:
The decision on the application is reviewable (see section 20-80).
16-147(5)
If the Commissioner decides to register the entity, the *Australian Business Registrar must enter in the *Australian Business Register a statement that the entity is registered under this section. The statement must specify the day on which the registration takes effect.
[ CCH Note: S 16-147(5) will be substituted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1433, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading. S 16-147(5) will read:
]
16-147(5)
If the Commissioner decides to register the entity, the *Registrar must maintain a record of information relating to registrations under this section.
16-147(6)
(Repealed by No 125 of 2018)
[ CCH Note: S 16-147(6) will be inserted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1433, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading. S 16-147(6) will read:
]
16-147(6)
A record in relation to the registration of an entity is taken to be a notification of the entity for the purposes of subsection (4).
16-147(7)
A failure to comply with subsection (4) or (5) does not affect the validity of the Commissioner's decision.
[ CCH Note: S 16-147(7) will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1434, by inserting "to register an entity" at the end, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading.]
Basis of registration
16-147(8)
A registration under this section is granted on the basis that: (a) the registration may be cancelled under section 16-148; and (b) the registration may be cancelled, suspended, varied or made subject to conditions by or under later legislation; and (c) no compensation is payable if the registration is cancelled, suspended, varied or made subject to conditions as mentioned in any of the above paragraphs.
The Commissioner may cancel an entity's registration under section 16-147 if: (a) the entity advises the Commissioner, in the *approved form, that the entity does not employ, and does not intend to employ, any individual who is a *working holiday maker; or (b) the Commissioner is satisfied that:
(i) the entity; or
(ii) if the entity is a partnership - any of the partners; or
(iii) if the entity is a company - any director, shareholder or employee of the company who participates in the management or control of the company; or
is not a fit and proper person.
(iv) if the entity is a trustee of a trust - any appointer of trustees of the trust, or any person who participates in the control of the trust;
16-148(2)
The cancellation takes effect on the day determined by the Commissioner. The day must not be earlier than the day on which notice of the cancellation is given under subsection (6).
16-148(3)
If the Commissioner is considering whether the entity, or another person mentioned in subparagraph (1)(b)(ii), (iii) or (iv), is a fit and proper person, the Commissioner must give the entity a notice that: (a) informs the entity accordingly; and (b) invites the entity to make submissions to the Commissioner on the matter within 28 days after the Commissioner gives the notice.
16-148(4)
Without limiting the matters to which the Commissioner may have regard in considering whether the entity, or another person mentioned in subparagraph (1)(b)(ii), (iii) or (iv), is a fit and proper person, the Commissioner must have regard to: (a) whether a court has made a finding, in proceedings commenced by the Fair Work Ombudsman, that the entity has contravened the Fair Work Act 2009; and (b) whether the entity has failed to withhold amounts as required by Division 12; and (c) any relevant information the entity has provided in submissions to the Commissioner within the period specified in paragraph (3)(b).
16-148(5)
The Commissioner must, having regard to the reasons for the cancellation, determine a period, starting when the cancellation takes effect, during which the entity cannot apply under section 16-146 for registration.
Notification of the cancellation
16-148(6)
The Commissioner must notify the entity of: (a) the cancellation; and (b) the day on which the cancellation takes effect; and (c) the period determined under subsection (5) for the cancellation.
Note:
A decision to cancel, including a determination under subsection (5), is reviewable (see section 20-80).
16-148(7)
The *Australian Business Registrar must enter in the *Australian Business Register a statement that the entity's registration under section 16-147 has been cancelled. The statement must specify the day on which the cancellation takes effect.
[ CCH Note: S 16-148(7) will be substituted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1435, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading. S 16-148(7) will read:
]
16-148(7)
The *Registrar must maintain a record of information relating to cancellations of registrations under this section.
16-148(8)
A failure to comply with subsection (6) or (7) does not affect the validity of the Commissioner's decision.
[ CCH Note: S 16-148(8) will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1436, by inserting "to cancel an entity's registration" at the end, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under Subdiv 426-C heading.]
SECTION 16-150 COMMISSIONER MUST BE NOTIFIED OF AMOUNTS 16-150(1)
An entity that must pay an amount (even if it is a nil amount) to the Commissioner, other than an amount to which subsection (4) applies, under: (a) subsection 16-70(1) (about amounts withheld under Division 12); or (aa) Division 13 (about payments in respect of alienated personal services payments); or (b) Subdivision 14-A, 14-B, 14-C or 14-D (about payments in respect of non-cash benefits or capital proceeds);
must notify the Commissioner of the amount on or before the day on which the amount is due to be paid (regardless of whether it is paid). The notification must be in the *approved form and lodged with the Commissioner.
Note:
This section does not apply to amounts that an employer notifies to the Commissioner under Division 389: see section 389-20.
16-150(2)
An entity that must pay an amount (even if it is a nil amount) to the Commissioner under Subdivision 14-E (about payments in respect of taxable supplies of certain real property) must notify the Commissioner of the amount: (a) on or before the day provided in a determination under subsection (3); or (b) if there is no such determination - on or before the day on which the amount is due to be paid (regardless of whether it is paid).
The notification must be in the *approved form and lodged with the Commissioner.
16-150(3)
The Commissioner may, by legislative instrument, determine when the Commissioner must be notified for the purposes of paragraph (2)(a).
16-150(4)
If: (a) an entity must pay an amount (even if it is a nil amount) to the Commissioner under subsection 16-70(1) (about amounts withheld under Division 12); and (b) subsection 12-450(5) (about income from a build to rent development) applies to the amount;
the entity must notify the Commissioner of the amount:
(c) on or before the day provided in a determination under subsection (5) of this section; or (d) if there is no such determination - on or before the day on which the amount is due to be paid (regardless of whether it is paid).The notification must be in the *approved form and lodged with the Commissioner.
16-150(5)
The Commissioner may, by legislative instrument, determine when the Commissioner must be notified for the purposes of paragraph (4)(c).
SECTION 16-152 ANNUAL REPORTS - WITHHOLDING PAYMENTS COVERED BY SECTION 12-175
Reports about withholding payments
16-152(1)
A trustee must give a report to the Commissioner in the *approved form if the trustee made any *withholding payments covered by section 12-175 or 12-180 (about payments from the income of certain closely held trusts) during an income year.
16-152(2)
The trustee must give the report under subsection (1) to the Commissioner:
(a) not later than 3 months after the end of the income year; or
(b) within such further period (if any) as the Commissioner allows.
Reports about trust distributions
16-152(3)
A trustee must give a report to the Commissioner in the *approved form if the trustee would be taken to have made any *withholding payments covered by section 12-175 or 12-180 during an income year if the relevant beneficiary had not *quoted the beneficiary's *tax file number as mentioned in paragraph 12-175(2)(a) or 12-180(2)(a).
Note:
The effect of subsection (3) is that the trustee must report amounts distributed to beneficiaries even if the trustee was not required to withhold from those distributions.
16-152(4)
The trustee must give the report under subsection (3) to the Commissioner:
(a) by the end of the day on which the trustee lodges the trust's *income tax return for the income year; or
(b) within such further period (if any) as the Commissioner allows.
Miscellaneous
16-152(5)
Subsections 16-153(5), (6) and (7) apply to this section in the same way as they apply to section 16-153.
An entity must give a report to the Commissioner in the *approved form, not later than 31 October after the end of a *financial year, if during the financial year:
(a) the entity made any payment from which an amount was required to be withheld under section 12-190, Subdivision 12-F (other than section 12-215, 12-250 or 12-285), Subdivision 12-FA, section 12-315 or Subdivision 12-FC or 12-G; or
(b) the entity provided any *non-cash benefit in respect of which an amount was required to be paid to the Commissioner under Division 14 because of the application of that Division in relation to section 12-190, Subdivision 12-F (other than section 12-215, 12-250 or 12-285), Subdivision 12-FA, section 12-315 or Subdivision 12-G; or
(c) the entity received any payment from which an amount was required to be withheld under section 12-215, 12-250, 12-285 or 12-317; or
(d) the entity received any non-cash benefit in respect of which an amount was required to be paid to the Commissioner under Division 14 because of the application of that Division in relation to section 12-215, 12-250, 12-285 or 12-317.
Note:
A report under this subsection will not cover amounts that an employer notifies to the Commissioner under Division 389: see section 389-20.
16-153(2)
An entity must give a report to the Commissioner in the form required by subsection (3), not later than 14 August after the end of a *financial year, if during the financial year:
(a) the entity made any payment from which an amount was required to be withheld under Subdivision 12-B, 12-C or 12-D; or
(aa) the entity received any *alienated personal services payment in respect of which an amount was required to be paid to the Commissioner under Division 13; or
(b) the entity provided any *non-cash benefit in respect of which an amount was required to be paid to the Commissioner under Division 14 because of the application of that Division in relation to Subdivision 12-B, 12-C or 12-D; or
(c) any person has a *reportable fringe benefits amount for the income year ending at the end of the financial year in respect of the person's employment by the entity; or
(d) the entity made *reportable employer superannuation contributions in respect of a person's employment.
Note:
A report under this subsection will not cover amounts that an employer notifies to the Commissioner under Division 389: see section 389-20.
16-153(3)
The report under subsection (2) must be either:
(a) a report in the *approved form; or
(b) a report consisting of:
(i) copies of all the summaries that the entity gave in relation to the *financial year under section 16-155 in respect of payments, *non-cash benefits, *alienated personal services payments, *reportable fringe-benefit amounts and *reportable employer superannuation contributions covered by subsection (2) of this section; and
(ii) an accompanying statement in the approved form.
16-153(4)
An entity must give a report to the Commissioner in the *approved form if the entity is required to withhold amounts under Subdivision 12-H in relation to *fund payments made by a particular *withholding MIT (the paying trust ) in relation to an income year of that trust.
Note:
The entity may be the withholding MIT itself or a custodian or other entity.
The report under subsection (4) must be given:
(a) not later than 14 days after the end of 6 months after the end of the income year of the *withholding MIT in relation to which the relevant *fund payments were made; or
(b) within a longer period allowed by the Commissioner.
16-153(5)
In applying this section:
(a) a requirement to pay a nil amount to the Commissioner is to be treated as a requirement to pay an amount to the Commissioner; and
(b) a requirement to withhold a nil amount is to be treated as a requirement to withhold an amount.
16-153(6)
The Commissioner may, to meet the special circumstances of a particular case or class of cases, vary the requirements of this section.
16-153(7)
A variation must be made:
(a) if it applies to a particular entity - by a written notice given to that entity; or
(b) if it applies to a class of entities - by legislative instrument.
SECTION 16-155 ANNUAL PAYMENT SUMMARY 16-155(1)
Within 14 days after the end of a *financial year, an entity (the payer ) must give a *payment summary (and a copy of it) to another entity (the recipient ) if: (a) during the year the payer made one or more *withholding payments (other than withholding payments covered by section 12-85, 12-175, 12-180, 12-190, 12-215, 12-250, 12-285, 12-317, 12-385 or 12-390) to the recipient; or (b) during the year the payer received one or more withholding payments covered by section 12-215, 12-250 or 12-285 and, in relation to each of them, the recipient is the foreign resident mentioned in the section; or (baa) during the year the payer received one or more withholding payments covered by section 12-317 and, in relation to each of them, the recipient is the likely foreign recipient mentioned in the section; or (ba) during the year the payer received one or more withholding payments covered by Division 13 and, in relation to each of them, an amount is included in the recipient's assessable income under Division 86 of the Income Tax Assessment Act 1997; or (bb) because of section 86-40 of the Income Tax Assessment Act 1997, the payer is taken to have paid salary to the recipient on the last day of the year; or (c) the recipient is an individual and has a *reportable fringe benefits amount, for the income year ending at the end of that financial year, in respect of his or her employment (within the meaning of the Fringe Benefits Tax Assessment Act 1986) by the payer; or (d) the recipient is an individual and *reportable employer superannuation contributions have been made by the payer, in respect of the individual's employment, during the year.
16-155(2)
The *payment summary must cover: (a) if paragraph (1)(a), (b) or (ba) applies - each of the *withholding payments mentioned in that paragraph, except one covered by a previous payment summary (and a copy of it) given by the payer to the recipient under section 16-160; and (aa) if paragraph (1)(bb) applies - each of the withholding payments constituted by the salary mentioned in that paragraph, except one covered by a previous payment summary (and a copy of it) given by the payer to the recipient under section 16-160; and (b) if paragraph (1)(c) applies - the *reportable fringe benefits amount, except so much of it as is covered by a previous payment summary (and a copy of it) given by the payer to the recipient under this section; and (c) if paragraph (1)(d) applies - the total of the *reportable employer superannuation contributions, except so much of those contributions as are covered by a previous payment summary given by the payer to the recipient under section 16-160.
Note:
A payment summary under this section will not cover amounts that an employer notifies to the Commissioner under Division 389: see section 389-20.
Parental leave pay paid in error
16-155(3)
Despite subsection (2) , the *payment summary must not cover a *withholding payment if: (a) the withholding payment is a payment of an amount purported to have been paid by way of *parental leave pay; and (b) the amount was not lawfully so payable.
16-155(4)
The payer must, within 28 days of becoming aware that the *payment summary covers a *withholding payment to which subsection (3) applies: (a) give the recipient an amended payment summary that does not cover the withholding payment; or (b) give the recipient notice in the *approved form; or (c) give the Secretary (within the meaning of the Paid Parental Leave Act 2010) notice in writing that the payer does not intend to give the recipient an amended payment summary or notice under this subsection.
SECTION 16-156 ANNUAL PAYMENT SUMMARY FOR SECTIONS 12-175 AND 12-180 16-156(1)
A trustee must give a *payment summary to a beneficiary of the trust, if the trustee made any *withholding payments covered by section 12-175 or 12-180 to the beneficiary during the income year.
16-156(2)
The *payment summary:
(a) must cover each of the *withholding payments mentioned in subsection (1); and
(b) may be in electronic form; and
(c) must be given:
(i) not later than 14 days after the day by which the trustee was required to give the Commissioner a report under subsection 16-152(1) for the income year; or
(ii) within a longer period allowed by the Commissioner.
An entity (the payer ) must give a *payment summary to another entity (the recipient ) if the payer made *withholding payments covered by section 12-385 or 12-390 to the recipient in relation to *fund payments made by a particular *withholding MIT (the paying trust ) in relation to an income year of that trust.
Note:
The entity may be the withholding MIT itself or a custodian or other entity.
16-157(2)
The *payment summary:
(a) must cover each of the *withholding payments mentioned in subsection (1); and
(b) may be in electronic form; and
(c) must be given:
(i) not later than 14 days after the end of 6 months after the end of the income year of the *withholding MIT in relation to which the relevant *fund payments were made; or
(ii) within a longer period allowed by the Commissioner.
An entity (the payer ) must give a *payment summary (and a copy of it) to another entity (the recipient ) if, not later than 21 days before the end of a *financial year, the recipient asks in writing for a payment summary covering: (a) one or more *withholding payments (other than withholding payments covered by section 12-85, 12-190, 12-215, 12-250, 12-285, 12-317, 12-385 or 12-390) that the payer made to the recipient during the year; or (b) one or more withholding payments covered by section 12-215, 12-250 or 12-285, or a part of each such payment, that the payer received during the year for the recipient, if the recipient is the foreign resident mentioned in the section; or (ba) one or more withholding payments covered by section 12-317, or a part of each such payment, that the payer received during the year for the recipient, if the recipient is the likely foreign recipient mentioned in that section; or (c) one or more withholding payments covered by Division 13 that the payer received during the year and that are included in the recipient's assessable income for the income year under section 86-15 of the Income Tax Assessment Act 1997; (d) (Repealed by No 55 of 2016)
other than a payment covered by a previous payment summary (and a copy of it) given under this section.
Note:
A payment summary under this section will not cover amounts that an employer notifies to the Commissioner under Division 389: see section 389-20.
16-160(2)
The payer must comply with the request within 14 days after receiving it, unless: (a) the recipient is an individual and has a *reportable fringe benefits amount, for the income year ending at the end of that *financial year, in respect of his or her employment (within the meaning of the Fringe Benefits Tax Assessment Act 1986) by the payer; or (b) the payer has made *reportable employer superannuation contributions, in respect of the recipient's employment, during the financial year.
16-160(3)
Despite subsection (1), the *payment summary must not cover a *withholding payment if: (a) the withholding payment is a payment of an amount purported to have been paid by way of *parental leave pay; and (b) at the time the recipient asks for the payment summary, the payer is aware that the amount was not lawfully so payable.
SECTION 16-165 PAYMENT SUMMARIES FOR SUPERANNUATION LUMP SUMS AND PAYMENTS FOR TERMINATION OF EMPLOYMENT 16-165(1)
Within 14 days after an entity (the payer ) makes a payment covered under subsection (2) to a person (the recipient ), the entity must:
(a) give a *payment summary to the recipient that covers the payment (and no other payments); and
(b) give a copy of the summary to the Commissioner.
16-165(2)
The following payments are covered under this subsection if they are *withholding payments:
(a) a *superannuation lump sum;
(b) a payment that is an *employment termination payment or would be one except that it is received more than 12 months after termination of employment, other than a directed termination payment within the meaning of section 82-10F of the Income Tax (Transitional Provisions) Act 1997.
Note:
A payment summary under this section will not cover amounts that an employer notifies to the Commissioner under Division 389: see section 389-20.
Within 14 days after an entity (the payer ) makes a *departing Australia superannuation payment, thepayer must:
(a) give a *payment summary that covers the payment to the recipient of the payment; and
(b) give a copy of the summary to the Commissioner.
An entity (the payer ) that makes a *withholding payment covered by section 12-190 (about payments to recipients who do not quote their ABN) to another entity (the recipient ) must give the recipient a *payment summary (and a copy of it) that covers that payment, unless the *amount required to be withheld from the payment is nil.
16-167(2)
The summary must cover only that payment.
16-167(3)
The payer must give the summary to the recipient when making the payment, or as soon as practicable afterwards.
A payment summary (except one relating to section 12-175 or 12-180 or Subdivision 12-H) is a written statement that:
(a) names the payer and the recipient; and
(b) if the recipient has given the recipient's *tax file number or *ABN to the payer - states the tax file number or ABN; and
(c) states the total of the *withholding payments (if any) that it covers, and the total of the *amounts withheld by the payer from those withholding payments; and
(d) specifies the *financial year in which the withholding payments were made; and
(e) specifies the *reportable fringe benefits amount (if any) that it covers and the income yearto which that amount relates; and
(f) specifies the *reportable employer superannuation contributions (if any) that it covers and the income year to which those contributions relate; and
(g) is in the *approved form.
16-170(1AAA)
A payment summary relating to section 12-175 or 12-180 is a statement that:
(a) names the trustee and the beneficiary; and
(b) states the total of the *withholding payments (if any) that it covers, and the total of the *amounts withheld by the trustee from those withholding payments; and
(c) specifies the income year of the trust to which it relates; and
(d) is in the *approved form.
16-170(1AA)
A payment summary relating to Subdivision 12-H is a statement that:
(a) names the payer and the recipient; and
(b) if the recipient has given the recipient's *tax file number or *ABN to the payer - states the tax file number or ABN; and
(c) states the total of the *withholding payments (if any) that it covers, and the total of the *amounts withheld by the payer from those withholding payments; and
(d) specifies the income year of the relevant *withholding MIT to which it relates.
16-170(1A)
For any of the *withholding payments to which paragraph 16-155(2)(aa) applies, paragraph (1)(d) is taken to refer to the *financial year preceding the financial year in which the withholding payments were received.
16-170(2)
The Commissioner may, in writing, require particular information to be included in a *payment summary or a class of payment summaries.
16-170(3)
A *payment summary may consist of 2 or more statements that each complies with subsection (1) and together cover what section 16-155, 16-156, 16-160, 16-165, 16-166 or 16-167 (as appropriate) requires the payment summary to cover.
16-170(4)
The Commissioner may vary any requirements under subsection (1), (1AAA), (2) or (3) by written notice given to an entity. The Commissioner may do so in such instances and to such extent as the Commissioner thinks fit.
SECTION 16-175 PENALTY FOR NOT PROVIDING PAYMENT SUMMARY 16-175(1)
An entity must not fail to comply with any requirements under section 16-155, 16-156, 16-157, 16-160, 16-165, 16-166 or 16-167, or subsection 16-170(1), (1AAA), (1AA), (2) or (3) (including any requirements varied by the Commissioner under subsection 16-170(4)).
Penalty: 20 penalty units.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
16-175(2)
An offence under subsection (1) is an offence of strict liability.
Note:
For strict liability , see section 6.1 of the Criminal Code.
SECTION 16-180 COMMISSIONER MAY EXEMPT ENTITY FROM GIVING PAYMENT SUMMARY 16-180(1)
The Commissioner may, having regard to the circumstances of a particular case or class of cases, exempt an entity from specified requirements of any of sections 16-155 to 16-167. If the Commissioner does so, the exemption has effect accordingly.
16-180(2)
An exemption must be made:
(a) if it applies to a particular entity - by a written notice given to that entity; or
(b) if it applies to a class of entities - by legislative instrument.
A reportable employer superannuation contribution , for an individual for an income year, is an amount that has been, is, or will be contributed in respect of the income year:
(a) by an employer of the individual, or an *associate of the employer, for the individual's benefit; and
(b) to a *superannuation fund or an *RSA;
to the extent that either or both of the following paragraphs apply:
(c) the individual has or has had, or might reasonably be expected to have or have had, the capacity to influence the size of the amount;
(d) the individual has or has had, or might reasonably be expected to have or have had, the capacity to influence the way the amount was, is or will be contributed so that his or her assessable income is reduced.
16-182(2)
However, an amount is not a reportable employer superannuation contribution to the extent that it is included in the individual's assessable income for the income year.
16-182(3)
For the purposes of this section, employer has the expanded meaning given by section 12 of the Superannuation Guarantee (Administration) Act 1992 (assuming that subsection 12(11) of that Act had not been enacted).
16-182(4)
For the purposes of this section, disregard whether any *superannuation benefits arising from a contribution are payable to a *SIS dependant of the individual if the individual dies before or after becoming entitled to receive the benefits.
16-182(5)
For the purposes of paragraph (1)(c), treat the individual as neither having, nor being able reasonably to be expected to have, the capacity to influence the size of the amount if:
(a) the employer or *associate is required to contribute the amount by:
(i) an *industrial instrument; or
(ii) the rules of a *superannuation fund; and
(b) the individual does not and did not have, and is not able reasonably to be expected to have or have had, the capacity to influence the content of that instrument or those rules, to the extent that the instrument or rules relate to:
(i) the requirement to contribute the amount; or
(ii) the size of the amount.
An entity that has paid an amount of penalty under section 16-30, 16-35 or 16-40 for a *withholding payment covered by: (a) Subdivision 12-F (about a dividend, interest or royalty payment); or (aa) section 12-305 (about a departing Australia superannuation payment); or (ab) Subdivision 12-FC (about labour mobility programs); or (b) section 12-320 (about a mining payment); or (c) Subdivision 12-H (about distributions of withholding MIT income);
may recover an amount equal to the amount of penalty from the person liable to pay the *withholding tax, or *mining withholding tax, for the withholding payment.
Note:
Sections 16-30, 16-35 and 16-40 provide for an administrative penalty for failing to comply with Division 12 or 14.
16-195(2)
Subsection (3) applies if an entity has paid an amount of penalty under section 12-415 to the Commissioner for a failure to give a notice, or to make details available on a website, as required by section 12-395 in relation to an amount (the relevant amount ).
16-195(3)
The entity may recover from another entity that is liable to pay *managed investment trust withholding tax in relation to an amount attributable to the relevant amount the lesser of: (a) an amount equal to the amount of that tax that the other entity is liable to pay; and (b) the amount of the penalty.
(Repealed by No 91 of 2000) Division 18 - Recipient's entitlements and obligations Subdivision 18-A - Crediting withheld amounts SECTION 18-1 WHAT THIS SUBDIVISION IS ABOUT
In general, an entity:
is entitled to a credit for the amount withheld from the withholding payment.
However, if that entity is a partnership or trust, a partner, beneficiary or trustee may be entitled to the credit.
This Subdivision tells you:
How a credit is applied is set out in Division 3 of Part IIB.
SECTION 18-5 18-5 NO CREDIT FOR REFUNDED AMOUNT
An entity is not entitled to a credit under this Subdivision for an *amount withheld from a *withholding payment to the extent that the amount must be refunded under Subdivision 18-B.
Note:
See also Subdivision 18-D (PAYG withholding non-compliance tax, which can reverse the economic benefit of a credit of a director, or an associate of a director, of a company that does not comply with its obligations under subsection 16-70(1)).
SECTION 18-10 APPLICATION OF SECTIONS 18-15, 18-20 AND 18-25 18-10(1)
The rules set out in sections 18-15, 18-20 and 18-25 do not apply to an *amount withheld from a *withholding payment that is covered by: (a) Subdivision 12-F (Dividend, interest and royalty payments); or (b) Subdivision 12-FA (Departing Australia superannuation payments); or (c) Subdivision 12-FC (Labour Mobility Programs); or (d) section 12-320 (Mining payments); or (e) Subdivision 12-H (Distributions of withholding MIT income); or (f) Division 13 (Alienated personal services payments); or (g) Subdivision 14-E (GST payable on taxable supplies of certain real property).
18-10(2)
If an entity withholds an amount from a *withholding payment as required by section 12-317, apply sections 18-15, 18-20 and 18-25 in relation to the payment as if the payment had been made to the likely foreign recipient mentioned in section 12-317 (instead of to the intermediary mentioned in that section).
18-10(3)
If an entity withholds an amount from a *withholding payment as required by section 12-325 (natural resource payments), apply sections 18-15, 18-20 and 18-25 to the payment as if the entity had withheld only so much of that amount as was withheld in respect of tax.
Note:
Section 18-55 provides a credit for amounts withheld in respect of petroleum resource rent tax.
Commissioner's Remedial Power
18-15(1)
Note: A Commissioner's Remedial Power (CRP 2017/1) is relevant to this part of the tax law. Taxation Administration (Remedial Power - Foreign Resident Capital Gains Withholding) Determination 2017 (F2017L00992) modifies the operation of s 18-15, 18-20 and 18-25 in Sch 1 to the Taxation Administration Act 1953 as follows:
To the extent that an entity's entitlement to a credit referred to in s 18-15, 18-20 or 18-25 in Sch 1 to TAA is in respect of an amount paid to the Commissioner under Subdiv 14-D of Sch 1 to TAA, treat the entitlement as arising in the income year in which the transaction causing that application of Subdiv 14-D is recognised for income tax purposes for the entity. The modification applies in respect of transactions entered into on or after 1 July 2016.
An entity must treat a modification as not applying to it or any other entity if the modification would produce a less favourable result for it. The Commissioner is empowered by s 370-5 of Sch 1 to TAA to make modifications, by legislative instrument, to ensure the law is administered to achieve its intended purpose or object.
An entity is entitled to a credit equal to the total of the *amounts withheld from *withholding payments made to the entity during an income year if an assessment has been made of the income tax payable, or an assessment has been made that no income tax is payable, by the entity for the income year.
18-15(2)
To the extent that the entitlement to a credit is in respect of an *amount withheld from a *withholding payment to which paragraph 16-155(2)(aa) applies, the entitlement is treated as arising for the income year preceding the income year in which the withholding payment is made.
18-15(3)
(Repealed by No 32 of 2008)
SECTION 18-20 TAX CREDIT WHERE RECIPIENT IS A PARTNERSHIP
Commissioner's Remedial Power
18-20(1)
Note: A Commissioner's Remedial Power (CRP 2017/1) is relevant to this part of the tax law. Taxation Administration (Remedial Power - Foreign Resident Capital Gains Withholding) Determination 2017 (F2017L00992) modifies the operation of s 18-15, 18-20 and 18-25 in Sch 1 to the Taxation Administration Act 1953 as follows:
To the extent that an entity's entitlement to a credit referred to in s 18-15, 18-20 or 18-25 in Sch 1 to TAA is in respect of an amount paid to the Commissioner under Subdiv 14-D of Sch 1 to TAA, treat the entitlement as arising in the income year in which the transaction causing that application of Subdiv 14-D is recognised for income tax purposes for the entity. The modification applies in respect of transactions entered into on or after 1 July 2016.
An entity must treat a modification as not applying to it or any other entity if the modification would produce a less favourable result for it. The Commissioner is empowered by s 370-5 of Sch 1 to TAA to make modifications, by legislative instrument, to ensure the law is administered to achieve its intended purpose or object.
An entity is entitled to a credit in respect of *amounts withheld from *withholding payments made to a partnership during an income year if:
(a) the entity has an individual interest in the net income or partnership loss of the partnership for that income year that is wholly or partly attributable to those withholding payments; and
(b) the *income tax return of the partnership for the income year has been lodged with the Commissioner; and
(c) an assessment has been made of the income tax payable, or an assessment has been made that no income tax is payable, by the entity for the income year.
18-20(2)
The amount of the credit is worked out using the formula:
| Amounts withheld × |
Individual interest
Net income/partnership loss |
where:
amounts withheld
means the sum of the *amounts withheld from the *withholding payments.
individual interest
means so much of the individual interest of the partner as is attributable to the *withholding payments.
net income/partnership loss
means so much of the net income or partnership loss for that income year as is attributable to the *withholding payments.
SECTION 18-25 TAX CREDIT WHERERECIPIENT IS A TRUST
Commissioner's Remedial Power
18-25(1)
Note: A Commissioner's Remedial Power (CRP 2017/1) is relevant to this part of the tax law. Taxation Administration (Remedial Power - Foreign Resident Capital Gains Withholding) Determination 2017 (F2017L00992) modifies the operation of s 18-15, 18-20 and 18-25 in Sch 1 to the Taxation Administration Act 1953 as follows:
To the extent that an entity's entitlement to a credit referred to in s 18-15, 18-20 or 18-25 in Sch 1 to TAA is in respect of an amount paid to the Commissioner under Subdiv 14-D of Sch 1 to TAA, treat the entitlement as arising in the income year in which the transaction causing that application of Subdiv 14-D is recognised for income tax purposes for the entity. The modification applies in respect of transactions entered into on or after 1 July 2016.
An entity must treat a modification as not applying to it or any other entity if the modification would produce a less favourable result for it. The Commissioner is empowered by s 370-5 of Sch 1 to TAA to make modifications, by legislative instrument, to ensure the law is administered to achieve its intended purpose or object.
An entity is entitled under subsection (2), (4), (6) or (8) to a credit in respect of *amounts withheld (the amounts withheld ) from *withholding payments made to the trustee of a trust during an income year.
Trust - section 97
18-25(2)
A beneficiary of the trust is entitled to a credit if:
(a) an amount is included in the assessable income of the beneficiary under section 97 of the Income Tax Assessment Act 1936 in respect of a share of the net income of the trust; and
(b) the share is wholly or partly attributable to the *withholding payments; and
(c) an assessment has been made of the income tax payable, or an assessment has been made that no income tax is payable, by the beneficiary for the income year.
18-25(3)
The amount of the credit is worked out using the formula:
| Amounts withheld × | Share of net income
Net income |
where:
net income
means so much of the net income as is attributable to the *withholding payments.
share of net income
means so much of that share of the net income as is attributable to the *withholding payments.
Trust - section 98
18-25(4)
The trustee of the trust is entitled to a credit if:
(a) under section 98 of the Income Tax Assessment Act 1936 the trustee is liable to be assessed, and to pay income tax, on an amount in respect of a share of the net income of the trust to which a beneficiary is presently entitled; and
(b) the share is wholly or partly attributable to the *withholding payments; and
(c) an assessment has been made of that income tax or an assessment has been made that no income tax is payable.
18-25(5)
The amount of the credit is worked out using the formula:
| Amounts withheld × |
Share of net income
Net income |
where:
net income
means so much of the net income as is attributable to the *withholding payments.
share of net income
means so much of that share of the net income as is attributable to the *withholding payments.
Trust - section 99 or 99A
18-25(6)
The trustee of the trust is entitled to a credit under this subsection if:
(a) under section 99 or 99A of the Income Tax Assessment Act 1936, the trustee is liable to be assessed, and to pay income tax, on the net income of the trust, or on part of it; and
(b) the net income or that part of it is wholly or partly attributable to the *withholding payments; and
(c) an assessment has been made of that income tax or an assessment has been made that no income tax is payable.
18-25(7)
The amount of the credit is worked out using the formula:
| Amounts withheld × |
Part of net income
Net income |
where:
net income
means so much of the net income as is attributable to the *withholding payments.
part of net income
means so much of the net income, or of that part of it, as is attributable to the *withholding payments.
Trust - no net income
18-25(8)
If there is no net income of the trust for the income year, the trustee is entitled to a credit equal to the sum of the *amounts withheld from the *withholding payments.
18-25(9)
(Repealed by No 32 of 2008)
SECTION 18-27 18-27 TAX CREDIT FOR ALIENATED PERSONAL SERVICES PAYMENTS
An entity is entitled to a credit equal to the total of the amounts paid under Division 13 in respect of amounts included in the entity's assessable income for an income year under section 86-15 of the Income Tax Assessment Act 1997 if an assessment has been made of the income tax payable, or an assessment has been made that no income tax is payable, by the entity for the income year.
SECTION 18-30 CREDIT: DIVIDEND, INTEREST OR ROYALTY 18-30(1)
An entity is entitled to a credit if:
(a) the entity's *ordinary income, or *statutory income, includes any of the following:
(i) a *dividend (or a part of it), interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936) or a *royalty;
(ii) an amount that is represented by or reasonably attributable to an *AMIT DIR payment; and
(b) if subparagraph (a)(i) applies - if the entity has borne all or part of an *amount withheld from the dividend, interest or royalty; and
(c) if subparagraph (a)(ii) applies - if the entity has borne all or part of an amount paid under Division 12A in respect of the AMIT DIR payment.
18-30(2)
The amount of the credit is that amount or part.
Note:
A taxpayer may also be entitled to a credit in relation to payment of interest under, or in relation to the transfer of, a qualifying security. See section 128NBA of the Income Tax Assessment Act 1936.
SECTION 18-32 CREDIT: AMOUNT ATTRIBUTABLE TO FUND PAYMENT 18-32(1)
An entity is entitled to a credit if:
(a) the entity's *ordinary income or *statutory income includes an amount that is represented by or reasonably attributable to a *fund payment; and
(b) the entity has borne all or part of:
(i) an *amount withheld from the payment under Subdivision 12-H; or
(ii) an amount paid under Division 12A in respect of the fund payment.
18-32(2)
The amount of the credit is that amount or part.
18-32(3)
Subsection (4) applies if:
(a) all or part of an amount (the fund payment part ) is represented by a payment that is a *fund payment; and
(b) under subsection 840-805(4A) of the Income Tax Assessment Act 1997, a *foreign pension fund is taken, in respect of the fund payment part, to be a beneficiary in its own right, and not a beneficiary in the capacity of the trustee of another trust; and
(c) there is an *amount withheld from the fund payment under Subdivision 12-H.
18-32(4)
For the purposes of paragraph (1)(b):
(a) treat the *foreign pension fund as having borne all or part of the amount withheld; and
(b) treat a beneficiary of the foreign pension fund as not having borne all or part of the amount withheld.
An individual is entitled to a credit if: (a) the individual's *ordinary income or *statutory income includes salary, wages, commission, bonuses or allowances; and (b) an amount is withheld from the salary, wages, commission, bonuses or allowances under Subdivision 12-FC (about labour mobility programs).
18-33(2)
The amount of the credit is the *amount withheld.
If an entity has paid: (a) an amount of penalty under section 16-30 or 16-40 to the Commissioner for a *withholding payment covered by Subdivision 12-F or 12-H; or (b) an amount of *general interest charge under section 298-25 for the penalty;
the entity liable to pay the *withholding tax for the withholding payment is entitled to a credit equal to the amount of penalty, or general interest charge, as appropriate.
18-35(1AA)
If an entity has paid: (a) an amount of penalty under section 16-30 or 16-35 to the Commissioner for a *withholding payment covered by Subdivision 12-FC (labour mobility programs); or (b) an amount of *general interest charge under section 298-25 for the penalty;
the entity liable to pay the *labour mobility program withholding tax for the withholding payment is entitled to a credit equal to the lesser of:
(c) the amount of the penalty, or general interest charge, as appropriate; and (d) the amount of labour mobility program withholding tax (and any general interest charge under section 840-910 of the Income Tax Assessment Act 1997) in relation to the withholding payment, reduced by:
(i) any credits from an application of section 18-33 in relation to the withholding payment; and
(ii) any credits from a previous application of this subsection in relation to the withholding payment.
18-35(1A)
If an entity has paid: (a) an amount of penalty under section 12-415 to the Commissioner for a failure to give a notice, or to make details available on a website, as required by section 12-395; or (b) an amount of *general interest charge under section 298-25 for the penalty;
the entity liable to pay the *managed investment trust withholding tax in relation to the amount (the relevant amount ) giving rise to the penalty is entitled to a credit equal to the lesser of:
(d) the amount of penalty, or general interest charge, as appropriate; and (e) the amount of managed investment trust withholding tax (and any general interest charge under section 840-810 of the Income Tax Assessment Act 1997) in relation to the relevant amount.Remission
18-35(2)
If: (a) an entity has paid to the Commissioner an amount of penalty mentioned in paragraph (1)(a), (1AA)(a) or (1A)(a); and (b) the Commissioner remits the whole or a part of the amount of the penalty under section 298-20;
then:
(c) any credit under subsection (1), (1AA) or (1A) relating to the amount paid to the Commissioner is reduced by the amount that is remitted; and (d) the Commissioner must pay to the entity an amount equal to the amount that is remitted.18-35(3)
If: (a) an entity has paid to the Commissioner an amount of *general interest charge mentioned in paragraph (1)(b), (1AA)(b) or (1A)(b); and (b) the Commissioner remits the whole or a part of the amount of the charge under section 8AAG;
then:
(c) any credit under subsection (1), (1AA) or (1A) relating to the amount is reduced by the amount that is remitted; and (d) the Commissioner must pay to the entity an amount equal to the amount that is remitted.SECTION 18-40 CREDIT: LIABILITY UNDER PART 4-25 18-40(1)
If an entity has paid to the Commissioner:
(a) an amount of penalty under Subdivision 284-C in relation to a *scheme to which paragraph 177C(1)(bc) of the Income Tax Assessment Act 1936 applies for a *withholding payment; or
(b) an amount of *general interest charge under section 298-25 in relation to that amount;
the entity liable to pay the *withholding tax for that withholding payment is entitled to a credit equal to the amount paid by the entity.
Remission
18-40(2)
If:
(a) an entity has paid an amount under Subdivision 284-C in relation to a penalty mentioned in paragraph (1)(a); and
(b) the Commissioner remits the whole or a part of the amount of the penalty under section 298-20;
then:
(c) any credit under subsection (1) relating to the amount paid by the entity is reduced by the amount that is remitted; and
(d) the Commissioner must pay to the entity an amount equal to the amount that is remitted.
18-40(3)
If:
(a) an entity has paid to the Commissioner an amount of *general interest charge mentioned in paragraph (1)(b); and
(b) the Commissioner remits the whole or a part of the amount of the charge under section 8AAG;
then:
(c) any credit under subsection (1) relating to the amount is reduced by the amount that is remitted; and
(d) the Commissioner must pay to the entity an amount equal to the amount that is remitted.
Entitlement to credit: departing Australia superannuation payment
SECTION 18-42 CREDIT - DEPARTING AUSTRALIA SUPERANNUATION PAYMENT
Credit - amount withheld
18-42(1)
If there is an *amount withheld from a *withholding payment that is covered by section 12-305 (departing Australia superannuation payment), the entity liable to pay *withholding tax under section 301-175 of the Income Tax Assessment Act 1997 on the payment is entitled to a credit of an amount equal to the amount withheld.
Credit - penalty amount
18-42(2)
If an entity has paid to the Commissioner a penalty amount under section 16-30 or 16-35 in relation to an *amount required to be withheld under section 12-305 (departing Australia superannuation payment), the entity mentioned in subsection (1) is entitled to a credit equal to the penalty amount.
Remission
18-42(3)
If the Commissioner remits the whole or a part of the amount of penalty under section 298-20 that has been paid to the Commissioner by the entity:
(a) any credit that relates to the amount is reduced by the amount that is remitted; and
(b) the Commissioner must pay to the entity an amount equal to the amount that is remitted.
SECTION 18-45 CREDIT - MINING PAYMENT
Credit - amount withheld
18-45(1)
If there is an *amount withheld from a *withholding payment that is covered by section 12-320 (mining payment):
(a) if paragraph (b) does not apply - the entity liable to pay *mining withholding tax under section 128V of the Income Tax Assessment Act 1936 on the payment is entitled to a credit of an amount equal to the amount withheld; or
(b) if, under subsection 128U(4) of that Act, separate mining payments are taken to have been made to, or applied for the benefit of, 2 or more entities because of that payment - each of those entities is entitled to a credit equal to the amount worked out using the formula:
| The amount withheld | × |
1
Number of those entities |
Credit - penalty amount
18-45(2)
If an entity has paid to the Commissioner a penalty amount under section 16-30 or 16-35 in relation to an *amount required to be withheld under section 12-320 (mining payment):
(a) if paragraph (1)(a) applies - the entity mentioned in that paragraph is entitled to a credit equal to the penalty amount; or
(b) if paragraph (1)(b) applies - each of the entities mentioned in that paragraph is entitled to a credit of an amount worked out using the formula:
| The penalty amount | × |
1
Number of those entities |
Remission
18-45(3)
If the Commissioner remits the whole or a part of the amount of penalty under section 298-20 that has been paid to the Commissioner by the entity:
(a) any credit that relates to the amount is reduced by the amount that is remitted; and
(b) the Commissioner must pay to the entity an amount equal to the amount that is remitted.
18-49 18-49 (Repealed) SECTION 18-49 CREDIT - NATURAL RESOURCE PAYMENTS
(Repealed by No 96 of 2014)
(Repealed by No 32 of 2008)
SECTION 18-55 CREDIT - NATURAL RESOURCE PAYMENTS 18-55(1)
An entity is entitled to a credit in a year of tax (within the meaning of the Petroleum Resource Rent Tax Assessment Act 1987) if:
(a) one or more *withholding payments covered by section 12-325 (natural resource payments) from which there are *amounts withheld in respect of *petroleum resource rent tax are made to the entity during the year of tax; and
(b) an assessment has been made of the petroleum resource rent tax payable, or an assessment has been made that no petroleum resource rent tax is payable, by the entity for the year of tax.
18-55(2)
The amount of the credit is so much of the total of the *amounts withheld as is withheld in respect of *petroleum resource rent tax.
SECTION 18-60 CREDIT - PAYMENT RELATING TO TAXABLE SUPPLY OF REAL PROPERTY 18-60(1)
An entity is entitled to a credit if: (a) the entity is liable for *GST on a *taxable supply to which subsection 14-250(2) applies; and (b) another entity made a payment under section 14-250 in relation to the supply.
18-60(2)
The amount of the credit is an amount equal to the amount of the payment.
18-60(3)
The credit arises when an assessment has been made of the entity's *net amount for the *tax period of the entity in which the payment was made.
An entity (the payer ) must refund to another entity (the recipient ) an amount if: (a) the payer:
(i) withheld the amount purportedly under Division 12 from a payment made to, or received for, the recipient (whether the amount has been paid to the Commissioner or not); or
(ia) paid the amount to the Commissioner purportedly under Division 13 for an *alienated personal services payment in relation to which an amount is included in the recipient's assessable income year under section 86-15 of the Income Tax Assessment Act 1997; or
(b) either:
(ii) paid the amount to the Commissioner purportedly under Division 14 (other than Subdivisions 14-D and 14-E) for a *non-cash benefit provided to, or received for, the recipient; and
(i) the amount was so withheld, or paid to the Commissioner, in error; or
(c) either:
(ii) in the case of an amount withheld from a payment of an amount purported to have been paid by way of *parental leave pay - the amount paid was not lawfully so payable; and
(i) the payer becomes aware of the matter mentioned in paragraph (b); or
before the end of the *financial year in which the amount was so withheld or paid to the Commissioner; and (d) any information requested by the payer under subsection (3) has been given to the payer, or the time for making the request (see subsection (4) ) has passed without such a request being made.
(ii) the recipient applies to the payer for the refund;
18-65(1A)
For the purposes of this section, if an entity has paid an amount to the Commissioner purportedly under Subdivision 12A-C (about deemed payments by AMITs), treat the entity as having withheld the amount purportedly under Division 12.
18-65(2)
The amount that must be refunded under subsection (1) is a debt recoverable by the recipient from the payer.
Request for tax file number (or in some cases, ABN)
18-65(3)
The payer may request the recipient to give to the payer: (a) in any case - the recipient's *tax file number; or (b) in any case - evidence of the basis on which the recipient is taken to have quoted its tax file number to the payer; or (c) if the payment or *non-cash benefit was in respect of a *Part VA investment made by the recipient in the course or furtherance of an *enterprise carried on by it - the recipient's *ABN;
if:
(d) the payment, *alienated personal services payment or non-cash benefit was in respect of any of the following provisions:
(i) Subdivision 12-B (payments for work or services);
(ii) Subdivision 12-C (Payments for retirement or because of termination of employment);
(iii) Subdivision 12-D (benefits and compensation payments);
(iv) section 12-140 or 12-145 (recipient does not quote tax file number or ABN);
(e) when the application for the refund is made, or when the payer otherwise becomes aware of the matter mentioned in paragraph (1)(b) of this section, the payer has a record of none of the following:
(v) section 12-175 or 12-180 (Payment of income of closely held trust where TFN not quoted); and
(i) the recipient's tax file number;
(ii) the basis on which the recipient is taken to have quoted the tax file number to the payer;
(iii) if paragraph (c) applies - the recipient's ABN.
When must the request be made
18-65(4)
The requestmust be made within 7 working days (of the payer) after the payer receives the application for the refund or after the payer otherwise becomes aware of the matter mentioned in paragraph (1)(b) (as appropriate).
Recovery of refunded amount
18-65(5)
If a payer refunds an amount under subsection (1), the payer may recover from the Commissioner as a debt due to the payer so much of the amount: (a) which is withheld as mentioned in subparagraph (1)(a)(i) and paid to the Commissioner, or which is paid to the Commissioner as mentioned in subparagraph (1)(a)(ia) or (ii); and (b) which the payer has not recorded as being offset under subsection (6) .
Offsetting a refunded amount
18-65(6)
If: (a) a payer refunds an amount (the refunded amount ) under subsection (1); and (b) the amount withheld as mentioned in subparagraph (1)(a)(i) that the payer has paid to the Commissioner, or the amount paid to the Commissioner as mentioned in subparagraph (1)(a)(ia) or (ii), is equal to all or a part of the refunded amount; and (c) apart from this subsection, the payer would be required to pay to the Commissioner another amount or amounts under Division 13 or 14 (other than Subdivision 14-D) or subsection 16-70(1) (the payment to the Commissioner ); and (d) the payer records in writing that it offsets all or a part of the amount paid to the Commissioner (as mentioned in paragraph (b)) against the payment to the Commissioner;
the payment to the Commissioner is reduced by so much of the amount as the payer so recorded as being offset.
18-65(7)
The payer must not record that it offsets any part of an amount that: (a) the payer has previously recorded under subsection (6); or (b) the payer has sought to recover from the Commissioner under subsection (5).
SECTION 18-70 REFUND OF WITHHELD AMOUNTS BY THE COMMISSIONER TO THE RECIPIENT 18-70(1)
An entity (the recipient ) may apply in writing to the Commissioner for the refund of an amount if: (a) another entity (the payer ):
(i) withheld an amount purportedly under Division 12 from a payment made to, or received for, the recipient; or
(ia) paid the amount to the Commissioner purportedly under Division 13 for an *alienated personal services payment in relation to which an amount is included in the recipient's assessable income year under section 86-15 of the Income Tax Assessment Act 1997; or
(ii) paid to the Commissioner an amount purportedly under Division 14 for a *non-cash benefit provided to, or received for, the recipient; or
(b) either:
(iii) paid to the Commissioner an amount purportedly under Subdivision 14-D for *capital proceeds provided to, or applied on behalf of, the recipient; and
(i) the amount was so withheld, or paid to the Commissioner, in error; or
(c) if subparagraph (a)(i), (ia) or (ii) applies - section 18-65 does not apply because the payer did not become aware of the matter mentioned in paragraph (b), or the recipient did not apply for a refund, as mentioned in subsection 18-65(1); and (d) if subparagraph (a)(i) applies - the payer has already paid the withheld amount to the Commissioner.
(ii) in the case of an amount withheld from a payment of an amount purported to have been paid by way of *parental leave pay - the amount paid was not lawfully so payable; and
18-70(1A)
For the purposes of this section, if an entity has paid an amount to the Commissioner purportedly under Subdivision 12A-C (about deemed payments by AMITs), treat the entity as having withheld the amount purportedly under Division 12.
18-70(2)
The Commissioner must refund the amount if the application sets out: (a) if the recipient has a *tax file number - that tax file number; or (b) if the recipient does not have a tax file number but was taken to have quoted a tax file number to the payer before the amount was withheld or paid to the Commissioner - the basis on which the recipient was taken to have quoted the tax file number; or (c) if the payment or *non-cash benefit was in respect of a *Part VA investment made by the recipient in the course or furtherance of an *enterprise carried on by it - the recipient's *ABN;
and the Commissioner is satisfied that it would be fair and reasonable to refund the amount, having regard to:
(d) the circumstances that gave rise to the withholding obligation (if any); and (e) the nature of the matter mentioned in paragraph (1)(b); and (f) any other matter the Commissioner considers relevant.Note:
A person who is dissatisfied with a decision under this section may object against the decision in the manner set out in Part IVC.
18-75 18-75 (Repealed) SECTION 18-75 REFUND OF WITHHELD AMOUNTS RELATING TO ELIGIBLE TERMINATION PAYMENT
(Repealed by No 15 of 2007)
The Commissioner must refund to an entity all or part of an *amount withheld from a *withholding payment covered by section 12-140 or 12-145 that was made to that entity if:
(a) the entity applies in writing for the refund; and
(b) the Commissioner is satisfied that the entity was entitled to give *the investment body a declaration under Division 5 of Part VA of the Income Tax Assessment Act 1936 in relation to the *Part VA investment in respect of which the withholding payment was made, but did not do so; and
(c) the Commissioner is also satisfied it is fair and reasonable to make the refund, having regard to the purposes of this Part and any other matters that the Commissioner considers appropriate.
Note:
A person who is dissatisfied with a decision under this section may object against the decision in the manner set out in Part IVC.
SECTION 18-85 REFUND BY COMMISSIONER OF AMOUNT WITHHELD FROM PAYMENT IN RESPECT OF SUPPLY OF REAL PROPERTY 18-85(1)An entity (the recipient ) may apply, in the *approved form, to the Commissioner for the refund of an amount if:
(a) another entity (the payer ) has made a payment under section 14-250, or purportedly under that section, in relation to a supply by the recipient; and
(b) the payment, or part of the payment, was made in error.
18-85(2)
The application must be made no later than 14 days before the day on which *GST is payable on the supply.
18-85(3)
The amount of the refund that the recipient may apply for is an amount equal to the amount of the payment, or the part of the payment that was made in error, as the case requires.
18-85(4)
The Commissioner must refund the amount under subsection (3) if the Commissioner is satisfied that paragraphs (1)(a) and (b) apply and that it would be fair and reasonable to refund the amount, having regard to:
(a) the circumstances that gave rise to the obligation (if any) to make the payment under section 14-250; and
(b) the nature of the error; and
(c) any other matter the Commissioner considers relevant.
An entity that is given a *payment summary and a copy of it in any financial year under this Part must retain the copy for:
(a) 5 years after the end of that financial year; or
(b) a shorter period determined by the Commissioner in writing for the entity; or
(c) a shorter period determined by the Commissioner by legislative instrument for a class of entities that includes the entity.
18-100(1AA)
A determination under paragraph (1)(c) may specify different periods for different classes of entities.
18-100(1A)
An offence under subsection (1) is an offence of strict liability.
Note:
For strict liability , see section 6.1 of the Criminal Code.
18-100(2)
(Repealed by No 161 of 2005)
SECTION 18-120 18-120 OBJECT OF SUBDIVISION
The object of this Subdivision is to reverse the economic benefit of a credit under section 18-15 (Tax credit for recipient of withholding payment) of a director, or an *associate of a director, of a company if:
(a) the company does not comply with its obligations under subsection 16-70(1) (obligation to pay amounts withheld to the Commissioner); and
(b) the credit is attributable to *amounts withheld from *withholding payments made by the company to the director or associate;
until the company complies with its obligations.
SECTION 18-125 DIRECTORS OF NON-COMPLYING COMPANIES
Liability to pay PAYG withholding non-compliance tax
18-125(1)
An individual must pay *PAYG withholding non-compliance tax in relation to a company for an income year of the individual if:
(a) the individual is or has been a director (within the meaning of the Corporations Act 2001) of the company; and
(b) the company was required to pay to the Commissioner under subsection 16-70(1) in this Schedule amounts:
(i) the company withheld from *withholding payments the company made to any entities during the income year of the individual; and
(ii) to which subsection (2) applies; and
(c) the company did not pay the total of those amounts to the Commissioner on or before the last day (the non-compliance day ) on or before which the company was required to pay any of those amounts to the Commissioner in accordance with subsection 16-70(1); and
(d) a credit to which the individual is entitled under section 18-15 is attributable to an extent to *amounts withheld by the company under Division 12 from withholding payments made to the individual during the income year of the individual.
Note:
For the purposes of paragraph (1)(d), it does not matter whether the company pays the amounts withheld from the withholding payments made to the individual to the Commissioner under subsection 16-70(1).
18-125(2)
This subsection applies to *amounts withheld that the company was required to pay to the Commissioner on or before a particular day (the payment day ) under subsection 16-70(1), if:
(a) both of the following subparagraphs apply:
(i) the individual was a director (within the meaning of the Corporations Act 2001) of the company on the payment day;
(ii) the company did not pay the total of those amounts to the Commissioner in accordance with subsection 16-70(1) on or before the payment day; or
(b) all of the following subparagraphs apply:
(i) the individual became a director of the company after the payment day;
(ii) the individual was still a director of the company 30 days after becoming a director;
(iii) the company did not pay the total of those amounts to the Commissioner in accordance with subsection 16-70(1) on or before the last of those 30 days.
Amount of tax
18-125(3)
The amount of the *PAYG withholding non-compliance tax the individual must pay is the lesser of:
(a) the extent of the credit mentioned in paragraph (1)(d); and
(b) the total amount the company did not pay to the Commissioner as mentioned in paragraph (1)(c).
The amount of the *PAYG withholding non-compliance tax the individual must pay as mentioned in section 18-125 is reduced if the Commissioner gives a notice to the individual under this section.
Notice
18-130(2)
The Commissioner must give a written notice to the individual on a day (the reduction notice day ) (whether before, on or after the day (if any) the Commissioner gives the individual the relevant notice under section 18-140), if the Commissioner is satisfied that:
(a) because of illness or for some other good reason, it would have been unreasonable to expect the individual to take part, and the individual did not take part, in the management of the company at any time during the period:
(i) starting on a day on or by which the company was required to pay any of the total mentioned in paragraph 18-125(1)(c) to the Commissioner under subsection 16-70(1); and
(ii) ending on the reduction notice day; or
(b) the individual took all reasonable steps to ensure that one of the following happened:
(i) the directors (within the meaning of the Corporations Act 2001) of the company caused the company to pay the total of the amounts mentioned in paragraph 18-125(1)(c) to the Commissioner;
(ii) the directors caused an administrator of the company to be appointed under section 436A, 436B or 436C of the Corporations Act 2001;
(iia) the directors caused a small business restructuring practitioner for the company to be appointed under section 453B of that Act;
(iii) the directors caused the company to begin to be wound up (within the meaning of that Act);
or there were no reasonable steps the individual could have taken to ensure that any of those things happened.
18-130(3)
In determining what are reasonable steps for the purposes of paragraph (2)(b), the Commissioner must have regard to:
(a) when, and for how long, the individual was a director and took part in the management of the company; and
(b) all other relevant circumstances.
Amount of reduction
18-130(4)
The amount of the reduction is the amount stated in the notice.
18-130(5)
In determining the amount to state in the notice, the Commissioner must have regard to:
(a) in a case to which paragraph (2)(a) applies - when, and for how long, the individual could not have been expected to take part, and did not take part, in the management of the company; and
(b) in a case to which paragraph (2)(b) applies - when, and for how long, the individual was a director and took part in the management of the company; and
(c) in either case - what is fair and reasonable in the circumstances.
Effect of reduction
18-130(6)
The amount of the *PAYG withholding non-compliance tax the individual must pay is treated as always having been that amount as reduced under this section.
Liability to pay PAYG withholding non-compliance tax
18-135(1)
An individual must pay *PAYG withholding non-compliance tax in relation to a company for an income year of the individual if:
(a) at a time when another individual (the director ) was a director (within the meaning of the Corporations Act 2001) of the company, the first individual was an *associate of the director; and
(b) the company was required to pay to the Commissioner under subsection 16-70(1) in this Schedule amounts:
(i) the company withheld from *withholding payments the company made to any entities during the income year of the individual; and
(ii) to which subsection (2) of this section applies; and
(c) the company did not pay the total of those amounts to the Commissioner on or before the last day (the non-compliance day ) on or before which the company was required to pay any of those amounts to the Commissioner in accordance with subsection 16-70(1); and
(d) subsection (3) or (6) of this section applies; and
(e) a credit to which the individual is entitled under section 18-15 is attributable to an extent to *amounts withheld by the company under Division 12 from withholding payments made to the individual during the income year of the individual.
Note:
For the purposes of paragraph (1)(e), it does not matter whether the company pays the amounts withheld from the withholding payments made to the individual to the Commissioner under subsection 16-70(1).
18-135(2)
This subsection applies to *amounts withheld that the company was required to pay to the Commissioner on or before a particular day (the payment day ) under subsection 16-70(1), if:
(a) all of the following subparagraphs apply:
(i) the director was a director (within the meaning of the Corporations Act 2001) of the company on the payment day;
(ii) the individual was an *associate of the director on the payment day;
(iii) the company did not pay the total of those amounts to the Commissioner in accordance with subsection 16-70(1) on or before the payment day; or
(b) all of the following subparagraphs apply:
(i) the director became a director of the company after the payment day;
(ii) the director was still a director of the company 30 days after becoming a director;
(iii) the individual was an *associate of the director throughout that 30 day period;
(iv) the company did not pay the total of those amounts to the Commissioner in accordance with subsection 16-70(1) on or before the last of those 30 days.
18-135(3)
This subsection applies if the Commissioner is satisfied that:
(a) because of:
(i) the individual's relationship with the director; or
the individual knew, or could reasonably have been expected to know, of the company's failure to pay the total of the amounts mentioned in paragraph (1)(c) to the Commissioner; and
(ii) a relationship of the individual with the company;
(b) none of the following subparagraphs applies:
(i) the individual took all reasonable steps to influence the director to cause the company to notify the Commissioner under Subdivision 18-C of the relevant *amounts withheld;
(ii) the individual took all reasonable steps to influence the director to cause one of the events mentioned in subsection (4) to happen, or there were no reasonable steps the individual could have taken to influence the director to cause any of those events to happen;
(iii) the individual reported the company's non-payment to the Commissioner or to another authority with responsibilities relevant to the operation of the company.
Example:
Other authorities with responsibilities relevant to the operation of the company could include the Minister, the police, ASIC or the Building and Construction Industry Commissioner.
18-135(4)
The following are the events:
(a) the company pays the total of the amounts mentioned in paragraph (1)(c) to the Commissioner;
(b) an administrator of the company is appointed under section 436A, 436B or 436C of the Corporations Act 2001;
(ba) a small business restructuring practitioner for the company is appointed under section 453B of that Act;
(c) the company begins to be wound up (within the meaning of that Act).
18-135(5)
In determining what are reasonable steps for the purposes of paragraph (3)(b), have regard to:
(a) when, and for how long, the individual was an *associate of the director; and
(b) when, and for how long, the director was a director and took part in the management of the company; and
(c) all other relevant circumstances.
18-135(6)
This subsection applies if:
(a) the individual was an employee of the company; and
(b) the Commissioner is satisfied that the company treated the individual more favourably than it treated other employees of the company.
Amount of tax
18-135(7)
The amount of the *PAYG withholding non-compliance tax the individual must pay is the lesser of:
(a) the extent of the credit mentioned in paragraph (1)(e); and
(b) the total amount the company did not pay to the Commissioner as mentioned in paragraph (1)(c).
Notices
18-140(1)
The Commissioner must not commence proceedings to recover:
(a) the *PAYG withholding non-compliance tax an individual must pay for an income year in relation to a company as mentioned in section 18-125 or 18-135; or
(b) any related *general interest charge payable under section 18-150;
unless, after the non-compliance day mentioned in section 18-125 or 18-135, the Commissioner gives a written notice to the individual under this section.
18-140(2)
The Commissioner may only give the notice if the Commissioner is satisfied, on the basis of information available to the Commissioner, that it is fair and reasonable for the individual to pay *PAYG withholding non-compliance tax in relation to the company for the income year.
18-140(3)
The Commissioner must not give the notice on a day if, on that day:
(a) the individual; or
(b) in a case to which section 18-135 applies - the director mentioned in that section;
is liable to pay to the Commissioner a penalty under Division 269 because the company has not complied with the obligation mentioned in item 1 of the table in subsection 269-10(1) to pay to the Commissioner an *amount withheld to which paragraph 18-125(1)(b) or 18-135(1)(b) applies.
18-140(4)
The notice must specify:
(a) the company; and
(b) the income year; and
(c) the amount of the *PAYG withholding non-compliance tax the individual must pay.
Effect of compliance between non-compliance day and notice day
18-140(5)
Subsections (6) and (7) apply if:
(a) the company's liability to pay the total of the amounts mentioned in paragraph 18-125(1)(c) or 18-135(1)(c) to the Commissioner is discharged to any extent during the period:
(i) starting on the day after the non-compliance day; and
(ii) ending on the day before the day the Commissioner gives the notice under this section to the individual; and
(b) had all discharges of the company's liability occurring during that period occurred before the non-compliance day:
(i) the individual would not have been required to pay the *PAYG withholding non-compliance tax in relation to the company for the income year; or
(ii) the amount of PAYG withholding non-compliance tax the individual would have been required to pay would have been less than the actual amount of PAYG withholding non-compliance tax.
18-140(6)
The amount of the *PAYG withholding non-compliance tax the individual must pay is reduced:
(a) in a case to which subparagraph (5)(b)(i) applies - to nil; or
(b) otherwise - to the amount of PAYG withholding non-compliance tax the individual would have been required to pay as mentioned in subparagraph (5)(b)(ii).
18-140(7)
The amount of the *PAYG withholding non-compliance tax the individual must pay is treated as always having been that amount as reduced under subsection (6).
The *PAYG withholding non-compliance tax an individual must pay for an income year is due and payable at the earliest time any of the income tax the individual must pay for the *financial year to which the income year relates is due and payable.
Note:
Division 5 of the Income Tax Assessment Act 1997 explains how to work out when to pay your income tax.
18-145(2)
For the purposes of subsection (1), if the individual is not required to pay income tax for the *financial year:
(a) treat the individual as being required to pay income tax for the financial year; and
(b) if the Commissioner has made an assessment that the income tax the individual is required to pay is nil - treat that assessment as being for an amount greater than nil.
Note:
See Part 4-15 in this Schedule for collection and recovery provisions.
If an amount of *PAYG withholding non-compliance tax that an individual must pay to the Commissioner remains unpaid after the time by which it is due to be paid, the individual is liable to pay *general interest charge on the unpaid amount of tax for each day in the period that:
(a) started at the beginning of the day by which the unpaid amount of tax was due to be paid; and
(b) finishes at the end of the last day, at the end of which, any of the following remains unpaid:
(i) the unpaid amount of tax;
(ii) general interest charge on any of the unpaid amount of tax.
Section 175 of the Income Tax Assessment Act 1936 (validity) applies to a decision of the Commissioner under section 18-140 in this Schedule in the same way as it applies to an assessment.
(Repealed by No 2 of 2015)
This section applies if an individual must pay *PAYG withholding non-compliance tax as mentioned in section 18-125 or 18-135 because a company did not pay an amount to the Commissioner as mentioned in paragraph 18-125(1)(c) or 18-135(1)(c).
18-160(2)
The individual has the same rights (whether by way of indemnity, subrogation, contribution or otherwise) against the company or anyone else as if:
(a) the individual had made a payment equal to the amount of the *PAYG withholding non-compliance tax under a guarantee of the liability of the company to pay the amount to the Commissioner; and
(b) under the guarantee:
(i) the individual; and
were jointly and severally liable as guarantors (but only, in the case of an individual to whom subparagraph (ii) of this paragraph applies, to the extent to which subsection (3) applies to the individual); and
(ii) every individual to whom subsection (3) applies;
(c) any credit to which the individual mentioned in subsection (1) is entitled under section 18-170 or 18-175 in relation to the amount of PAYG withholding non-compliance tax were a repayment of the payment mentioned in paragraph (a) of this subsection.
18-160(3)
This subsection applies to an individual to the extent that:
(a) the individual was a director (within the meaning of the Corporations Act 2001) of the company on the day (the payment day ) on or by which the company was required to pay the amount mentioned in subsection (1) to the Commissioner; or
(b) both of the following subparagraphs apply:
(i) the individual became a director of the company after the payment day;
(ii) the individual was still a director of the company 30 days after becoming a director.
18-160(4)
However, subsection (3) does not apply to an individual to the extent that the amount of the *PAYG withholding non-compliance tax the individual must pay in relation to the company for the income year as mentioned in section 18-125 is reduced under section 18-130.
SECTION 18-165 18-165 CREDITS FOR LATER COMPLIANCE - SCOPE
Sections 18-170, 18-175 and 18-180 apply if:
(a) an individual must pay *PAYG withholding non-compliance tax in relation to a company for an income year because the company did not pay to the Commissioner the total of the amounts mentioned in paragraph 18-125(1)(c) or 18-135(1)(c); and
(b) the Commissioner gives to the individual a notice under section 18-140 on a particular day (the tax notice day ) in relation to the PAYG withholding non-compliance tax the individual must pay; and
(c) on or after the tax notice day, the company's liability to pay the total of the amounts to the Commissioner is discharged to any extent.
Commissioner must give notice to director or associate in certain circumstances
18-170(1)
The Commissioner must give a written notice to the individual on a particular day (the credit notice day ) if, had the discharge mentioned in paragraph 18-165(c) (and all previous discharges of the company's liability mentioned in that paragraph) occurred before the tax notice day:
(a) the individual would not have been required to pay the *PAYG withholding non-compliance tax in relation to the company for the income year; or
(b) the amount of PAYG withholding non-compliance tax the individual would have been required to pay would have been less than the actual amount of PAYG withholding non-compliance tax.
Note 1:
Subsection 18-180(2) provides that the Commissioner must not give a notice to the individual in certain circumstances.
Note 2:
The amount of PAYG withholding non-compliance tax may be limited by:
Note 3:
In working out the actual amount of the tax for the purposes of paragraph (1)(b), have regard to other credits to which the individual is entitled under this section or section 18-175. See subsection 18-180(1).
Director or associate entitled to credit if Commissioner gives notice
18-170(2)
The individual is entitled to a credit if the Commissioner gives a written notice to the individual under subsection (1).
18-170(3)
The individual becomes entitled to the credit on the day the Commissioner gives the notice to the individual.
Amount of credit
18-170(4)
The amount of the credit is the amount stated in the notice.
18-170(5)
In a case to which paragraph (1)(a) applies, the amount stated must be the amount of the *PAYG withholding non-compliance tax.
18-170(6)
In any other case, the amount stated:
(a) must not exceed the amount of the *PAYG withholding non-compliance tax; and
(b) must not exceed the amount of the discharge mentioned in paragraph 18-165(c); and
(c) must not be less than the amount by which:
(i) the amount of the PAYG withholding non-compliance tax; exceeds
(ii) the amount that would have been the amount of the PAYG withholding non-compliance tax had the discharge mentioned in paragraph 18-165(c) (and all previous discharges of the company's liability mentioned in that paragraph) occurred before the tax notice day.
18-170(7)
In determining the amount to state in the notice in a case to which paragraph (1)(a) does not apply, the Commissioner must have regard to what is fair and reasonable in the circumstances.
Commissioner may give notice to director or associate
18-175(1)
The Commissioner may give a written notice to the individual on a particular day (the credit notice day ).
Note:
Subsection 18-180(2) provides that the Commissioner must not give a notice to the individual in certain circumstances.
Director or associate entitled to credit if Commissioner gives notice
18-175(2)
The individual is entitled to a credit if the Commissioner gives a written notice to the individual under subsection (1).
18-175(3)
The individual becomes entitled to the credit on the day the Commissioner gives the notice to the individual.
Amount of credit
18-175(4)
The amount of the credit is the amount stated in the notice.
18-175(5)
The amount stated:
(a) must not exceed the amount of the *PAYG withholding non-compliance tax; and
Note:
In working out the amount of the tax for the purposes of paragraph (5)(a), have regard to other credits to which the individual is entitled under section 18-170 or this section. See subsection 18-180(1).
(b) must not exceed the amount of the discharge mentioned in paragraph 18-165(c).
Commissioner's discretion
18-175(6)
In determining:
(a) whether to give a notice under this section; or
(b) the amount to state in the notice;
the Commissioner must have regard to what is fair and reasonable in the circumstances.
A reference in section 18-170 or 18-175, or subsection (2) of this section, to the amount of the *PAYG withholding non-compliance tax is treated as being a reference to:
(a) the amount of the PAYG withholding non-compliance tax; less
Note:
The amount of the PAYG withholding non-compliance tax may, in a case to which section 18-125 applies, be affected by reductions under section 18-130.
(b) the total of any credits to which the individual is entitled in relation to the amount of PAYG withholding non-compliance tax because of notices given to the individual under section 18-170 or 18-175 before the credit notice day.
18-180(2)
The Commissioner must not give a written notice to the individual under section 18-170 or 18-175 if, on the day before the credit notice day, the amount of the *PAYG withholding non-compliance tax is nil.
SECTION 18-185 18-185 WHEN COMMISSIONER MAY GIVE NOTICE
The Commissioner may give a notice to the individual on a day (the notice day ) under section 18-130, 18-140, 18-170 or 18-175 if:
(a) on the notice day, the Commissioner has not given a notice of assessment to the individual for the income year mentioned in section 18-125 or 18-135; or
(b) if the notice would:
(i) in the case of a notice under section 18-130 - result in the individual being liable to pay *PAYG withholding non-compliance tax or an increased amount of PAYG withholding non-compliance tax; or
(ii) in the case of a notice under section 18-140 - result in the Commissioner being able to commence proceedings to recover PAYG withholding non-compliance tax, or an increased amount of PAYG withholding non-compliance tax, from the individual; or
(iii) in the case of a notice under section 18-170 or 18-175 - reduce the amount of a credit or disentitle the individual to a credit;
the Commissioner gives the notice no later than 2 years after first giving a notice of assessment to the individual for the income year mentioned in section 18-125 or 18-135; or
(c) if the notice would:
(i) in the case of a notice under section 18-130 - result in the individual being liable to pay no PAYG withholding non-compliance tax, or a reduced amount of PAYG withholding non-compliance tax; or
(ii) in the case of a notice under section 18-140 - result in the Commissioner no longer being able to commence proceedings to recover PAYG withholding non-compliance tax, or result in the Commissioner being able to commence proceedings to recover a reduced amount of PAYG withholding non-compliance tax, from the individual; or
the Commissioner gives the notice no later than 4 years after first giving a notice of assessment to the individual for the income year mentioned in section 18-125 or 18-135; or
(iii) in the case of a notice under section 18-170 or 18-175 - increase the amount of a credit or entitle the individual to a credit;
(d) in any case - the Commissioner gives the notice:
(i) to give effect to a decision on a review or appeal; or
(ii) as a result of an objection made by the individual or pending a review or appeal.
An individual to whom the Commissioner gives a notice under section 18-140 in relation to an amount of *PAYG withholding non-compliance tax may object, under Part IVC of this Act, against a decision of the Commissioner under section 18-130, 18-140, 18-170 or 18-175 in relation to the PAYG withholding non-compliance tax if the individual is dissatisfied with the decision.
20-5
20-5
(Repealed) SECTION 20-5 PARTNERSHIPS
(Repealed by No 179 of 1999) 20-10 20-10 (Repealed) SECTION 20-10 UNINCORPORATED COMPANIES
(Repealed by No 179 of 1999) 20-15 20-15 (Repealed) SECTION 20-15 SUPERANNUATION FUNDS
(Repealed by No 179 of 1999) Subdivision 20-B - Offences SECTION 20-35 OFFENCES 20-35(1)
A person must not:
(a) present a document issued by the Commissioner that specifies a person (the specified person ); and
(b) falsely pretend to be the specified person with the intention of obtaining under this Part a credit for, or a payment of, an *amount withheld from a *withholding payment.
20-35(2)
A person must not attempt to obtain for the person a credit under this Part for an *amount withheld from a *withholding payment if:
(a) the payment is not covered by section 12-215, 12-250, 12-285 or 12-317, or subsection 12-390(4), and was made to another person; or
(b) the payment is covered by section 12-215, 12-250, 12-285 or 12-317, or subsection 12-390(4), and the person is not the foreign resident in respect of which all or a part of the payment is received as mentioned in that provision.
20-35(3)
A person must not, with the intention of obtaining a credit, a payment or any other benefit, present:
(a) a copy of a *payment summary (except one relating to Subdivision12-H); or
(b) a document purporting to be a copy of such a payment summary;
which is not a copy duly given to the person.
Penalty: 60 penalty units, or imprisonment for 12 months, or both.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
20-35(4)
A person must not, with the intention of obtaining a credit, a payment or any other benefit, present:
(a) a *payment summary relating to Subdivision 12-H, or a copy of such a payment summary; or
(b) a document purporting to be such a payment summary or a copy of such a payment summary;
which is not a payment summary, or a copy of a payment summary, duly given to the person.
Penalty: 60 penalty units, or imprisonment for 12 months, or both.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
SECTION 20-40 JOINING OF CHARGES 20-40(1)
Charges against the same person for a number of offences against this Part may be joined in one complaint, information or summons if those charges:
(a) are founded on the same facts; or
(b) form a series of offences of the same or a similar character; or
(c) are part of a series of offences of the same or similar character.
20-40(2)
Particulars of each offence charged must be set out in a separate paragraph if 2 or more of the charges are included in the same complaint, information or summons.
20-40(3)
If the charges are joined, the charges must be tried together unless the court:
(a) considers it just that any of the charges should be tried separately; and
(b) makes an order to that effect.
20-40(4)
If a person is convicted of 2 or more of the offences:
(a) the court may impose one penalty for both or all of those offences; but
(b) the penalty must not exceed the sum of the maximum penalties that could be imposed in respect of each offence separately.
SECTION 20-45 OFFENCES THAT WOULD OTHERWISE BE COMMITTED BY A PARTNERSHIP OR UNINCORPORATED COMPANY 20-45(1)
An offence against this Part that would otherwise be committed by a partnership is taken to have been committed by each partner who:
(a) aided, abetted, counselled or procured the relevant act or omission; or
(b) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly, and whether by any act or omission of the partner).
20-45(2)
An offence against this Part that would otherwise be committed by a company that is not incorporated is taken to have been committed by each member of the company's committee of management who:
(a) aided, abetted, counselled or procured the relevant act or omission; or
(b) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly, and whether by any act or omission of the member).
(Repealed) Subdivision 20-C - Commissioner's power to obtain information and evidence
(Repealed by No 179 of 1999) Subdivision 20-D - Review of decisions SECTION 20-80 20-80 REVIEWABLE DECISIONS
A person who is dissatisfied with any of the following decisions of the Commissioner may object against the decision in the manner set out in Part IVC.
| Reviewable decisions | |
| Item | Description |
| 1A | Decision not to grant an exemption under subsection 12-319(1) from withholding obligations in relation to sections 12-315 and 12-317 |
| 1 | Decision not to give a certificate under subsection 12-335(1) exempting an entity from notifying the Commissioner about a natural resource payment |
| 5 | Decision to revoke a certificate under subsection 12-335(3) |
| 10 | Decision to vary a certificate under subsection 12-335(3) |
| 14 | Decision under subsection 14-220(1) not to issue a certificate on application under subsection 14-220(2) |
| 15 | Decision under subsection 14-220(1) to issue a certificate |
| 16 | Decision under subsection 14-235(2) not to vary an amount on application under subsection 14-235(3) |
| 17 | Decision under subsection 14-235(2) to vary an amount |
| 20 | (Repealed by No 91 of 2000) |
| 25 | Refusal to determine under subsection 16-110(1) that a large withholder is a *medium withholder or a *small withholder for a particular month or particular months |
| 30 | Refusal to determine under subsection 16-110(1) that a medium withholder is a small withholder for a particular month or particular months |
| 35 | Decision to revoke a determination made under subsection 16-110(1) |
| 40 | Decision to vary a determination made under subsection 16-110(1) for a particular month or particular months |
| 45 | Determination under subsection 16-115(1) that a small withholder is a medium withholder or a large withholder for a particular month or particular months |
| 50 | Determination under subsection 16-115(1) that a medium withholder is a large withholder |
| 55 | Decision not to revoke a determination made under subsection 16-115(1) |
| 60 | Decision not to vary a determination made under subsection 16-115(1) for a particular month or particular months |
| 62 | Decision under section 16-147 not to register an entity that has applied to be registered |
| 63 | Decision under section 16-148 to cancel a registration (including making a determination under subsection 16-148(5)) |
| 65 | Decision not to refund an amount under section 18-70 |
| 70 | Decision not to refund an amount under section 18-80 |
Note:
Division 298 also provides review rights about remission of administrative penalties.
This Part applies in relation to a payment by APRA under:
in a way corresponding to the way this Part would have applied if the payment had been made by the ADI or company in connection with the account or policy.
This section applies if:
(a) an entity's entitlement under Division 2AA of Part II of the Banking Act 1959 to be paid an amount by *APRA in connection with the entity's account with an *ADI is met wholly or partly; or
(b) an entity's entitlement under Part VC of the Insurance Act 1973 to be paid an amount in connection with a *general insurance policy issued by a *general insurance company is met wholly or partly.
Note 1:
Division 2AA of Part II of the Banking Act 1959 entitles entities that have certain accounts with certain insolvent ADIs to be paid amounts by APRA worked out by reference to the balance of those accounts.
Note 2:
Part VC of the Insurance Act 1973 entitles entities with valid claims against certain insolvent general insurance companies under certain general insurance policies issued by those companies to be paid amounts by APRA.
21-5(2)
This Part applies in relation to *APRA and the meeting of the entitlement in a way corresponding to the way in which this Part would have applied in relation to the *ADI or *general insurance company doing, in connection with the account or policy, whatever was done in meeting the entitlement.
Example:
APRA (or APRA's agent or delegate) pays an entity an amount of the entity's entitlement relating to an account with an ADI. This Part applies in relation to APRA and the payment in a way corresponding to the way in which this Part would have applied in relation to the ADI had the ADI made a payment at that time of that amount under the arrangements for keeping the account.
If you have business or investment income, you must pay instalments towards your income tax liability. However, you do not have to do so unless the Commissioner has given you an instalment rate. Generally, instalments are payable for each quarter of your income year. Alternatively, instalments could be payable monthly or annually.
Your instalments may be based on your previous year's income tax liability and notified to you by the Commissioner, or on your estimate of your income tax liability for the current income year. (In this case, you are a quarterly payer who pays on the basis of GDP adjusted notional tax). Generally, four quarterly instalments are payable annually on this basis, but you may only be required to pay two.
If you are not eligible to pay instalments on that basis, or if you are so eligible but choose not to do so, you must work out the amount of your quarterly instalment by multiplying your instalment income for an instalment quarter by the rate the Commissioner gave you, or by a rate you choose yourself. (In this case, you are a quarterly payer who pays on the basis of instalment income).
If your business or investment income exceeds a certain limit, you may have to pay an instalment after the end of each month. (In this case, you are a monthly payer).
If you are not required to be registered for GST purposes, you may be able to choose to pay an annual instalment after the end of the income year. (In this case, you are an annual payer).
The amount of annual instalment can be your instalment income for the income year multiplied by the rate the Commissioner gave you, or an amount based on your previous year's income tax liability and notified to you by the Commissioner, or your own estimate of your income tax liability for the income year.
The object of this Part is to ensure the efficient collection of: (a) income tax; and (b) *Medicare levy; and (c) (Repealed by No 56 of 2010) (ca) amounts of liabilities to the Commonwealth under Chapter 4 of the Higher Education Support Act 2003; and (caa) amounts of liabilities to the Commonwealth under Part 3A of the VET Student Loans Act 2016; and (cb) amounts of liabilities to the Commonwealth under Chapter 2AA of the Social Security Act 1991; and (cc) amounts of liabilities to the Commonwealth under Part 2 of the Student Assistance Act 1973; and (cd) amounts of liabilities to the Commonwealth under Chapter 3 of the Australian Apprenticeship Support Loans Act 2014; and (d) amounts of liabilities to the Commonwealth under Part 2B.3 of the Social Security Act 1991; and (e) amounts of liabilities to the Commonwealth under Division 6 of Part 4A of the Student Assistance Act 1973;
through the application of the principles set out in the rest of this section.
45-5(2)
As you earn *instalment income, you pay instalments after the end of each *instalment quarter worked out on the basis of your instalment income for that quarter if you are required or choose to work out your instalment on this basis. However, you may be able to pay an amount notified by the Commissioner. (There are exceptions to this).
45-5(2A)
Alternatively: (a) you may be required to pay instalments after the end of each *instalment month worked out on the basis of your instalment income for that month; or (b) you may be able to choose to pay an annual instalment for the income year.
45-5(3)
The total of your instalments for an income year is as close as possible to the total of your liabilities for the income year that are covered by subsection (1), except so far as the amounts of those liabilities are attributable to a *net capital gain. (The exception does not apply to the entities listed in subsections 45-120(2) and (2A) or the net capital gains specified in subsection 45-120(2B).)
45-5(4)
Consequently, the additional amounts you have to pay to discharge those liabilities, after an assessment of your income tax for the income year is made, are as low as possible.
45-5(5)
If you are a *quarterly payer who pays on the basis of instalment income, the amount of each of your instalments for an income year is the same proportion (as nearly as possible, subject to the principles in subsections (3) and (4)) of the total of those instalments as your *instalment income for that *instalment quarter is of your total instalment income for the income year.
45-5(5A)
If you are a *monthly payer, the amount of each of your instalments for an income year is the same proportion (as nearly as possible, subject to the principles in subsections (3) and (4)) of the total of those instalments as your *instalment income for that *instalment month is of your total instalment income for the income year.
45-5(6)
When instalments are payable, and how their amount is calculated, are the same for different kinds of entities, except as expressly provided.
Note:
Subdivision 45-P penalises an entity whose tax position, so far as it relates to PAYG instalments and related matters, is altered by a scheme that is inconsistent with the object of this Part.
SECTION 45-10 45-10 APPLICATION OF PART
This Part applies to individuals, companies, and the entities listed in items 4 to 10, and 12 and 13, of the table in section 9-1 of the Income Tax Assessment Act 1997 (which lists the entities that must pay income tax).
Note 1:
Section 45-450 provides for how this Part applies to a trustee covered by any of items 4 to 8, and 12 and 13, of the table in section 9-1 of the Income Tax Assessment Act 1997. In most respects, the trust is treated like a company.
Note 2:
This Part also applies to a trustee covered by item 11 of the table in section 9-1 of the Income Tax Assessment Act 1997, but only to the extent set out in section 45-455, and the rest of Subdivision 45-N, in this Schedule.
The Commissioner may give you an instalment rate from time to time, by giving you written notice of the rate.
45-15(2)
You are liable to pay instalments under this Division if the Commissioner has given you an instalment rate.
Note 1:
The instalment rate that the Commissioner gives you is worked out under section 45-320 or 45-775.
Note 2:
If your assessable income has always consisted wholly of withholding payments (other than non-quotation withholding payments), the Commissioner will not give you an instalment rate.
Note 3:
Work out the amount of your instalments under Subdivision 45-C.
Note 4:
If the Commissioner withdraws the rate under section 45-90, you are not liable to pay further instalments.
Note 5:
For provisions about collection and recovery of amounts you are liable to pay under this Part, see Part 4-15.
If you are liable to pay an instalment for a period (even if it is a nil amount), you must notify the Commissioner of the amount of your *instalment income for the period.
45-20(2)
You must notify the Commissioner in the *approved form and on or before the day when the instalment is due (regardless of whether it is paid).
45-20(2A)
If you are a *monthly payer for the period, you must give the notification electronically, unless the Commissioner otherwise approves.
Note:
A penalty applies if you fail to give the notification electronically as required - see section 288-10.
45-20(2B)
The notification is given electronically if it is transmitted to the Commissioner in an electronic format approved by the Commissioner.
Exceptions
45-20(3)
Subsection (1) does not apply to:
(a) a quarterly instalment worked out under section 45-112 (on the basis of GDP-adjusted notional tax or estimated benchmark tax); or
(b) an annual instalment, unless it is worked out under paragraph 45-115(1)(a) (based on the Commissioner's rate and your instalment income for the income year).
SECTION 45-25 PENALTY FOR FAILURE TO NOTIFY COMMISSIONER 45-25(1)
If you fail to notify the Commissioner of an amount as required by section 45-20, or you notify an amount that is less than the correct amount, you are liable to pay the *failure to notify penalty on the amount, or on the shortfall, multiplied by the instalment rate that you are required to use to work out the instalment for the period, for each day in the period that:
(a) started at the beginning of the day by which the amount was due to be paid; and
(b) finishes at the end of the day before you notify the Commissioner of the correct amount, or he or she otherwise becomes aware of it.
45-25(2)
This section does not apply to a notification required to be lodged on or after 1 July 2000.
Note:
See instead Division 286 in Schedule 1 to the Taxation Administration Act 1953.
SECTION 45-30 CREDIT FOR INSTALMENTS PAYABLE 45-30(1)
You are entitled to a credit when the Commissioner makes an assessment of the income tax you are liable to pay for an income year or an assessment that no income tax is payable by you for an income year.
45-30(2)
The credit is equal to:
reduced by:
45-30(3)
The making of the assessment, and the resulting credit entitlement, do not affect the liability to pay an instalment.
Note:
How the credit is applied is set out in Division 3 of Part IIB.
45-30(4)
If:
(a) you are a *subsidiary member of a *consolidated group at any time during a *consolidation transitional year for you; and
(b) an amount of instalment payable by you, or an amount of credit claimed by you under section 45-215 or 45-420, is taken into account in working out a credit to which the *head company of that consolidated group is entitled under section 45-865 for a consolidation transitional year for the head company;
that amount, to the extent to which it is so taken into account under that section, is not to be taken into account in working out any credit to which you are entitled under this section for any year.
Subdivision 45-B - When instalments are due SECTION 45-50 LIABILITY TO PAY INSTALMENTS 45-50(1)
Subject to subsection (4), you are liable to pay an instalment for an *instalment quarter in an income year if, at the end of that instalment quarter, you are:
(a) a *quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax; or
(b) a *quarterly payer who pays on the basis of instalment income.
45-50(2)
Subject to subsection (4), you are liable to pay an instalment for an *instalment quarter that is the third or fourth instalment quarter in an income year if, at the end of that quarter, you are a *quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax.
45-50(2A)
Subject to subsection (4), you are liable to pay an instalment for an *instalment month if, at the end of that month, you are a *monthly payer.
45-50(3)
Subject to subsection (4), you are liable to pay an instalment for an income year if, at the end of the *starting instalment quarter in that year, you are an *annual payer.
45-50(4)
You are only liable to pay an instalment for an *instalment quarter, an *instalment month or an income year if:
(a) the Commissioner has given you an instalment rate; and
(b) the Commissioner has not withdrawn your instalment rate before the end of that quarter, month or year.
45-55 45-55 (Repealed) SECTION 45-55 SUBSEQUENT QUARTERLY INSTALMENTS
(Repealed by No 73 of 2001)
For an income year (whether it ends on 30 June or not), the following are the instalment quarters :
(a) your first instalment quarter consists of the first 3 months of the income year; and
(b) your second instalment quarter consists of the fourth, fifth and sixth months of the income year; and
(c) your third instalment quarter consists of the seventh, eighth and ninth months of the income year; and
(d) your fourth instalment quarter consists of the tenth, 11th and 12th months of the income year.
You are not a deferred BAS payer
45-61(1)
Subject to subsection (2), if you are:
(a) a *quarterly payer who pays on the basis of instalment income; or
(b) a *quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax; or
(c) a *quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax;
the instalment for an *instalment quarter that you are liable to pay is due on or before the 21st day of the month after the end of that quarter.
Note:
You are only liable to pay instalments for the third and fourth instalment quarters in an income year if you are a quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax. See section 45-50.
You are a deferred BAS payer
45-61(2)
If:
(a) subsection (1) would, but for this subsection, have applied to you in relation to an *instalment quarter; but
(b) you are a *deferred BAS payer on the 21st day of the month after the end of that quarter;
the instalment for that quarter is instead due on or before:
(c) the 28th day of the month after the end of that quarter unless all or a part of a December falls within the last month of that quarter; or
(d) if all or a part of a December falls within the last month of that quarter - the next 28 February.
Note 1:
You are only liable to pay instalments for the third and fourth instalment quarters in an income year if you are a quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax. See section 45-50.
Note 2:
If you are the head company of a consolidated group to which Subdivision 45-Q applies, the instalment is due on or before the 21st day of the month after the end of the quarter: see section 45-715.
SECTION 45-65 45-65 MEANING OF INSTALMENT MONTH
For an income year (whether it ends on 30 June or not), the following are instalment months :
(a) the month that starts on the first day of the income year;
(b) each subsequent month.
Note:
For the meaning of month , see section 2G of the Acts Interpretation Act 1901.
You are not a deferred BAS payer
45-67(1)
If you are a *monthly payer, the instalment for an *instalment month that you are liable to pay is due on or before the 21st day of the next instalment month.
45-67(2)
If:
(a) subsection (1) would, but for this subsection, have applied to you in relation to an *instalment month; but
(b) you are a *deferred BAS payer on the 21st day of the next instalment month;
the instalment for the month mentioned in paragraph (a) is instead due on or before:
(c) the 28th day of that next instalment month unless that next instalment month is January; or
(d) if that next instalment month is January - the next 28 February.
Note:
If you are the head company of a consolidated group to which Subdivision 45-Q applies, the instalment is due on or before the 21st day of that next month: see section 45-715 (as it has effect because of section 45-703).
This section applies if you are liable to pay an annual instalment for the 2002-03 income year or a later income year.
45-70(2)
If the income year ends on 30 June, the instalment is due on or before the next 21 October.
45-70(3)
If the income year ends on a day other than 30 June, the instalment is due on or before the 21st day of the fourth month after the end of the income year.
SECTION 45-72 45-72 MEANS OF PAYMENT OF INSTALMENT
You must pay an instalment by *electronic payment, or any other means approved in writing by the Commissioner.
Instalments are to be treated as income tax for the purposes of sections 254 and 255 of the Income Tax Assessment Act 1936.
If you fail to pay some or all of an instalment by the time by which the instalment is due to be paid, you are liable to pay the *general interest charge on the unpaid amount for each day in the period that:
(a) started at the beginning of the day by which the instalment was due to be paid; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) the instalment;
45-85 45-85 (Repealed) SECTION 45-85 COMMISSIONER MAY EXTEND TIME FOR PAYMENT
(ii) general interest charge on any of the instalment.
(Repealed by No 179 of 1999) SECTION 45-90 COMMISSIONER MAY WITHDRAW INSTALMENT RATE 45-90(1)
The Commissioner may:
(a) by giving you written notice, withdraw your instalment rate; or
(b) by legislative instrument, withdraw the instalment rate of a class of entities that includes you.
Note:
If the Commissioner does so, you cease to be liable to pay instalments (even if you have chosen a rate under section 45-205). See subsection 45-50(4).
45-90(2)
If the Commissioner withdraws your instalment rate and later gives you another one:
(a) you are again liable to pay instalments in accordance with section 45-50; and
(b) this Division has effect as if the Commissioner has given you an instalment rate for the first time.
Subdivision 45-C - Working out instalment amounts SECTION 45-110 HOW TO WORK OUT AMOUNT OF QUARTERLY INSTALMENT ON INSTALMENT INCOME BASIS 45-110(1)
Work out the amount of an instalment you are liable to pay for an *instalment quarter as follows if, at the end of that instalment quarter, you are a *quarterly payer who pays on the basis of instalment income:
Applicable instalment rate × Your *instalment income for that quarter
45-110(2)
For the purposes of the formula in subsection (1):
Applicable instalment rate
means:
(a) unless paragraph (b) or (c) applies - the most recent instalment rate given to you by the Commissioner under section 45-15 before the end of that quarter; or
(b) if you have chosen an instalment rate for that quarter under section 45-205 - that rate; or
(c) if you have chosen an instalment rate under section 45-205 for an earlier *instalment quarter in that income year (and paragraph (b) does not apply) - that rate.
Note:
If you believe the Commissioner's rate is not appropriate for the current income year, you may choose a different instalment rate under Subdivision 45-F.
SECTION 45-112 AMOUNT OF INSTALMENT FOR QUARTERLY PAYER WHO PAYS ON BASIS OF GDP-ADJUSTED NOTIONAL TAX 45-112(1)
If, at the end of an *instalment quarter in an income year, you are a *quarterly payer who pays on the basis of GDP-adjusted notional tax who is liable to pay an instalment for that quarter, the amount of your instalment for that quarter is:
(a) unless paragraph (b) or (c) applies - the amount that the Commissioner works out under Subdivision 45-L, and notifies to you, as the amount of the instalment; or
(b) if you choose to work out the amount of the instalment on the basis of your estimate of your *benchmark tax for that income year, and you notify the Commissioner in accordance with subsection (2) - the amount worked out under Subdivision 45-M; or
(c) if paragraph (b) applied to your instalment for an earlier *instalment quarter in that income year - the amount that the Commissioner works out under Subdivision 45-M, and notifies to you, as the amount of the instalment.
45-112(2)
If the amount of the instalment is worked out under paragraph (1)(b) on the basis of your estimate of your *benchmark tax for the income year, you must notify the Commissioner in the *approved form, on or before the day when the instalment is due (disregarding subsection (3)), of the amount of that estimate.
45-112(3)
If:
(a) after the end of an *instalment quarter the Commissioner notifies you of an amount as the amount of your instalment for that quarter; and
(b) the amount of your instalment for that quarter is not worked out under paragraph (1)(b);
the instalment is due on or before the 21st day after the day on which the notice is given.
SECTION 45-114 HOW TO WORK OUT AMOUNT OF MONTHLY INSTALMENT 45-114(1)
Work out the amount of an instalment you are liable to pay for an *instalment month as follows if, at the end of that instalment month, you are a *monthly payer:
| Applicable instalment rate | × | Your *instalment income
for that instalment month |
45-114(2)
For the purposes of the formula in subsection (1):
applicable instalment rate
means:
(a) unless paragraph (b) or (c) applies - the most recent instalment rate given to you by the Commissioner under section 45-15 before the end of that month; or
(b) if you have chosen an instalment rate for that month under section 45-205 - that rate; or
(c) if you have chosen an instalment rate under section 45-205 for an earlier *instalment month in that income year (and paragraph (b) does not apply) - that rate.
Note:
If you believe the Commissioner's rate is not appropriate for the current income year, you may choose a different instalment rate under Subdivision 45-F.
45-114(3)
The Commissioner may, by legislative instrument, determine one or more specified additional methods by which a specified class of entity that is a *monthly payer at the end of an *instalment month may work out, in specified circumstances, the amount of an instalment that it is liable to pay for the instalment month.
Note:
For specification by class, see subsection 13(3) of the Legislation Act 2003.
45-114(4)
You may choose a method specified in the determination:
(a) unless paragraph (b) applies - for any *instalment month; or
(b) if the determination provides that that method can be chosen only for the first instalment month in an *instalment quarter - for the first instalment month in an instalment quarter.
45-114(5)
The determination may provide that an entity that chooses a method in accordance with paragraph (4)(b) for the first *instalment month in an *instalment quarter is taken to have chosen that method under subsection (4) for the other instalment months in that quarter. The determination has effect accordingly.
45-114(6)
Subsection (7) applies if:
(a) the Commissioner has made a determination under subsection (3); and
(b) at the end of an *instalment month, you are a *monthly payer; and
(c) you choose under subsection (4), for that month:
(i) if the determination specifies one additional method to work out that amount - that method; or
(ii) if the determination specifies more than one additional method to work out that amount - one of those methods.
45-114(7)
Despite subsection (1), work out the amount of an instalment you are liable to pay for that *instalment month in accordance with the method that you chose for that month under subsection (4).
The amount of an instalment you are liable to pay for the 2002-03 income year or a later income year is whichever of the following you choose:
(a) the amount worked out using the formula:
| *Commissioner's instalment rate | × | Your *instalment income
for the income year |
(b) your most recent *notional tax notified by the Commissioner before the end of the income year;
(c) the amount that you estimate will be your *benchmark tax for the income year.
Note 1:
You cannot choose a different instalment rate under Subdivision 45-F if you are an annual payer. Instead you can work out the amount of your instalment under paragraph (c).
Note 2:
You may be liable to general interest charge under section 45-235 if working out your instalment under paragraph (c) leads you to pay an instalment that is less than 85% of your benchmark tax for the income year (worked out by the Commissioner under section 45-365).
45-115(2)
Commissioner's instalment rate for an income year means the most recent instalment rate given to you by the Commissioner before the end of the income year.
45-115(3)
If you choose to work out your instalment under paragraph (1)(c), you must notify the Commissioner, in the *approved form, of the amount of the instalment on or before the day when it is due.
SECTION 45-120 MEANING OF INSTALMENT INCOME
General rule
45-120(1)
Your instalment income for a period includes your *ordinary income *derived during that period, but only to the extent that it is assessable income of the income year that is or includes that period.
Note 1:
No other amount is instalment income unless it is covered by another provision of this section or by Subdivision 45-H or 45-I.
Note 1A:
The operation of this section and other provisions relating to instalment income is affected by sections 45-855 and 45-860 (about a member of a consolidated group during a period before the members of the group are treated as a single entity for the purposes of this Part.)
Note 2:
If during that period you are a partner in a partnership, or a beneficiary of a trust, your instalment income also includes some of the partnership's or trust's instalment income for the period (except in some cases). See Subdivision 45-H or 45-I.
Statutory income included for some entities
45-120(2)
The instalment income of:
(a) a *complying approved deposit fund or a *non-complying approved deposit fund; or
(b) a *complying superannuation fund or a *non-complying superannuation fund; or
(c) a *pooled superannuation trust;
(ca) (Repealed by No 70 of 2015)
for a period also includes the entity's *statutory income, to the extent that:
(d) it is reasonably attributable to that period; and
(e) it is assessable income of the income year that is or includes that period.
45-120(2A)
The instalment income of a *life insurance company for a period also includes any part of its *statutory income that:
(a) is reasonably attributable to that period; and
(b) is included in the *complying superannuation class of its taxable income for the income year that is or includes that period.
Net gains under Subdivision 250-E of the Income Tax Assessment Act 1997 included in instalment income
45-120(2B)
Your instalment income for a period also includes the difference between:
(a) a gain (or gains) you make from a *financial arrangement to the extent to which it is (or they are):
(i) assessable under Subdivision 250-E of the Income Tax Assessment Act 1997; and
(ii) reasonably attributable to that period; and
(b) a loss (or losses) you make from a financial arrangement to the extent to which it is (or they are):
(i) allowable to you as a deduction under Subdivision 250-E of the Income Tax Assessment Act 1997; and
(ii) reasonably attributable to that period.
This is so only if the gain (or gains) referred to in paragraph (a) exceeds theloss (or losses) referred to in paragraph (b).
Effect of Division 230 of the Income Tax Assessment Act 1997 on instalment income
45-120(2C)
Your instalment income for a period also includes the difference between:
(a) a gain (or gains) you make from a *financial arrangement to the extent to which it is (or they are):
(i) assessable under Division 230 of the Income Tax Assessment Act 1997; and
(ii) reasonably attributable to that period; and
(b) a loss (or losses) you make from a financial arrangement to the extent to which it is (or they are):
(i) allowable to you as a deduction under Division 230 of the Income Tax Assessment Act 1997; and
(ii) reasonably attributable to that period.
This is so only if the gain (or gains) referred to in paragraph (a) equals or exceeds the loss (or losses) referred to in paragraph (b).
45-120(2D)
However, your instalment income for a period is worked out disregarding subsection (2C) if any of the following apply:
(a) you are an individual;
(b) the only gains and losses that would be taken into account under subsection (2C) for the period are from *financial arrangements that are *qualifying securities.
45-120(2E)
A gain or loss that is taken into account under subsection (2C) in working out an amount (including a nil amount) to be included in your instalment income for a period is not to be, to any extent, taken into account again under another provision of this section in calculating your instalment income for the same or any other period.
Exclusion: amounts in respect of withholding payments
45-120(3)
Your instalment income for a period does not include amounts in respect of:
(a) *withholding payments (except *non-quotation withholding payments) made to you during that period; and
(b) amounts included in your assessable income under section 86-15 of the Income Tax Assessment Act 1997 for which there are amounts required to be paid under Division 13; and
(c) which a penalty is applicable under section 12-415.
Farm management deposits: effect of making and repayment
45-120(4)
Your instalment income for a period is reduced (but not below nil) by a *farm management deposit made during that period, but only to the extent that, at the end of that period, you can reasonably expect to be able to deduct the deposit under section 393-5 of the Income Tax Assessment Act 1997 for the income year that is or includes that period.
45-120(5)
Your instalment income for a period also includes an amount that section 393-10 of the Income Tax Assessment Act 1997 includes in your assessable income, for the income year that is or includes that period, because of a repayment during that period of all or some of a *farm management deposit.
Gross proceeds on disposal of registered emissions units included in instalment income
45-120(5A)
Your instalment income for a period also includes an amount that section 420-25 of the Income Tax Assessment Act 1997 includes in your assessable income, for the income year that is or includes that period, because you cease to *hold a *registered emissions unit during that period.
Instalment income of entity that is not liable for instalments
45-120(6)
An entity can have *instalment income for a period even if the entity is not liable to pay an instalment for that period.
Note:
For example, although a partnership does not pay instalments, it is necessary to work out the partnership's instalment income in order to work out instalments payable by the partners. See Subdivision 45-H.
Subdivision 45-D - Quarterly payers
You are a quarterly payer who pays on the basis of instalment income if:
(a) at the end of the *starting instalment quarter in an income year, you are not a *quarterly payer who pays on the basis of GDP-adjusted notional tax and you are not a *monthly payer or an *annual payer; or
(b) but for this section, you would be a quarterly payer who pays on the basis of GDP-adjusted notional tax at the end of the starting instalment quarter in an income year but you choose to pay quarterly instalments on the basis of your instalment income.
Note:
The entity must make the choice mentioned in paragraph (b) in accordance with subsection (4).
45-125(2)
The starting instalment quarter in an income year (the current year ) is:
(a) if the Commissioner gives you an instalment rate for the first time during an *instalment quarter in the current year - that instalment quarter (even if it is not the first instalment quarter in the current year); or
(b) ifthe Commissioner has given you an instalment rate during a previous income year and your instalment rate has not been withdrawn - the first instalment quarter in the current year.
(c) (Repealed by No 78 of 2005)
How and when you become such a payer
45-125(3)
You become a *quarterly payer who pays on the basis of instalment income just before the end of the *starting instalment quarter if paragraph (1)(a) or (b) is satisfied.
45-125(4)
You must make the choice mentioned in paragraph (1)(b) by notifying the Commissioner in the *approved form on or before the day on which the instalment for that quarter is due (disregarding subsection 45-112(3)).
How and when you stop being such a payer
45-125(5)
If you are a *quarterly payer who pays on the basis of instalment income because of paragraph (1)(a), you stop being such a payer at the start of the first *instalment quarter in the next income year if:
(a) at the end of that quarter, you become:
(i) a quarterly payer who pays on the basis of GDP-adjusted notional tax; or
(ii) an *annual payer; or
(b) at the end of the first *instalment month of that quarter, you become a *monthly payer.
No quarterly payer status in quarter if monthly payer in following month
45-125(5A)
Despite subsections (1) and (3), you cannot be a *quarterly payer who pays on the basis of instalment income at a time in an *instalment quarter if you are a *monthly payer at a time in the first *instalment month that ends after that quarter.
45-125(6)
If you are a *quarterly payer who pays on the basis of instalment income because of paragraph (1)(b), you stop being such a payer at the start of the first *instalment quarter in the next income year if:
(a) you become an *annual payer at the end of that quarter; or
(b) both of the following conditions apply:
(i) you choose not to be a quarterly payer who pays on the basis of instalment income;
(ii) you become a *quarterly payer who pays on the basis of GDP-adjusted notional tax at the end of that quarter.
45-125(7)
You may only make the choice mentioned in paragraph (6)(b) if you would otherwise satisfy paragraph 45-130(1)(a), (b), (c) or (d) at the end of that quarter. You must make that choice by notifying the Commissioner in the *approved form on or before the day on which the instalment for that quarter is due (disregarding subsection 45-112(3)).
You are a quarterly payer who pays on the basis of GDP-adjusted notional tax if, at the end of the *starting instalment quarter in an income year:
(a) you are an individual who is not an *annual payer, a *monthly payer or a *quarterly payer who pays on the basis of instalment income; or
(b) you are a *self-assessment entity:
(i) that is not an *annual payer or a *quarterly payer who pays on the basis of instalment income; and
(ii) your base assessment instalment income (within the meaning of section 45-320) for the *base year is $2 million or less; or
(c) you satisfy all of the following conditions:
(i) you are a self-assessment entity whose base assessment instalment income (within the meaning of section 45-320) for the *base year is more than $2 million;
(ii) you are not an annual payer, but you satisfy the conditions set out in subsection 45-140(1) for an annual payer;
(iia) you are not a *monthly payer;
(iii) you are not a quarterly payer who pays on the basis of instalment income; or
(d) for the 2009-10 income year or a later income year - you are one of the following kinds of entity (an eligible business entity ):
(i) a *small business entity (other than because of subsection 328-110(4) of the Income Tax Assessment Act 1997);
(ii) an entity covered by subsection (1A) of this section.
Note:
Paragraph (a) may apply to you if you are a multi-rate trustee. See section 45-468.
45-130(1A)
An entity is covered by this subsection for an income year if: (a) the entity is not a *small business entity (other than because of subsection 328-110(4) of the Income Tax Assessment Act 1997) for the income year; and (b) the entity would be such a small business entity for the income year if:
(i) each reference in Subdivision 328-C (about what is a small business entity) of that Act to $10 million were instead a reference to $50 million; and
(ii) the reference in paragraph 328-110(5)(b) of that Act to a small business entity were instead a reference to an entity covered by this subsection.
How and when you become such a payer
45-130(2)
You become such a payer just before the end of the *starting instalment quarter if paragraph (1)(a), (b), (c) or (d) is satisfied.
45-130(2A)
For the purposes of subsection (2), you satisfy proposed paragraph (1)(d) at the end of the *starting instalment quarter in an income year if you are an eligible business entity for the income year that includes that instalment quarter.
How and when you stop being such a payer
45-130(3)
You stop being a *quarterly payer who pays on the basis of GDP-adjusted notional tax at the start of the first *instalment quarter in the next income year if you fail to satisfy paragraph (1)(a), (b), (c) or (d) at the end of that quarter.
45-130(3A)
For the purposes of subsection (3), you fail to satisfy proposed paragraph (1)(d) at the end of the first *instalment quarter in an income year if you are not an eligible business entity for the income year that includes that instalment quarter.
45-130(4)
In addition, you stop being such a payer at the start of the first *instalment quarter in the next income year if:
(a) at the end of that quarter, you become:
(i) a *quarterly payer who pays on the basis of instalment income; or
(ii) an *annual payer; or
(b) at the end of the first *instalment month of that quarter, you become a *monthly payer.
No quarterly payer status in quarter if monthly payer in following month
45-130(5)
Despite subsections (1) and (2), you cannot be a *quarterly payer who pays on the basis of GDP-adjusted notional tax at a time in an *instalment quarter if you are a *monthly payer at a time in the first *instalment month that ends after that quarter.
You are a quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax if, at the end of the *starting instalment quarter in an income year:
(a) you satisfy the conditions to be a *quarterly payer who pays on the basis of GDP-adjusted notional tax under section 45-130; and
(b) you do not satisfy the conditions to be a *quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax under section 45-134.
How and when you become such a payer
45-132(2)
You become such a payer just before the end of the *starting instalment quarter if paragraphs (1)(a) and (b) are satisfied.
How and when you stop being such a payer
45-132(3)
You stop being a *quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax at the start of the first *instalment quarter in the next income year if you fail to satisfy paragraphs (1)(a) and (b) at the end of that quarter.
45-132(4)
In addition, you stop being such a payer at the start of the first *instalment quarter in the next income year if:
(a) at the end of that quarter, you become:
(i) a *quarterly payer who pays on the basis of instalment income; or
(ii) an *annual payer; or
(b) at the end of the first *instalment month of that quarter, you become a *monthly payer.
You are a quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax if, at the end of the *starting instalment quarter in an income year, you are an individual that is a *quarterly payer who pays on the basis of GDP-adjusted notional tax and one or more of the following paragraphs apply:
(a) both of the following conditions are satisfied:
(i) you are carrying on a *primary production business in the income year;
(ii) the assessable income that was *derived from, or resulted from, a primary production business that you carried on in the *base year exceeded the amount of so much of your deductions in that year that are reasonably related to that income;
(b) both of the following conditions are satisfied:
(i) you are a *special professional in the income year;
(ii) your *assessable professional income in the base year exceeded the amount of so much of your deductions in that year that are reasonably related to that income.
Note:
This section may apply to you if you are a multi-rate trustee. See section 45-468.
How and when you become such a payer
45-134(2)
You become such a payer just before the end of the *starting instalment quarter if subsection (1) is satisfied.
How and when you stop being such a payer
45-134(3)
You stop being a *quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax at the start of the first *instalment quarter in the next income year if you fail to satisfy subsection (1) at the end of that quarter.
45-134(4)
In addition, you stop being such a payer at the start of the first *instalment quarter in the next income year if:
(a) at the end of that quarter, you become:
(i) a *quarterly payer who pays on the basis of instalment income; or
(ii) an *annual payer; or
(b) at the end of the first *instalment month of that quarter, you become a *monthly payer.
(Repealed by No 179 of 1999) Subdivision 45-DA - Monthly payers
You are a monthly payer at a time if:
(a) you were a monthly payer immediately before that time; or
(b) if paragraph (a) does not apply - you satisfy the requirement in subsection 45-138(1) for the income year in which that time occurs.
Note:
If paragraph (b) applies, see subsection (3) for the time at which you become a monthly payer.
45-136(2)
The starting instalment month in an income year (the current year ) is:
(a) if the Commissioner gives you an instalment rate for the first time during an *instalment month in the current year - the next instalment month in the current year; or
(b) if the Commissioner has given you an instalment rate during a previous income year and your instalment rate has not been withdrawn - the first instalment month in the current year.
How and when you become such a payer
45-136(3)
Despite subsection (1), if paragraph (1)(b) applies, you become a *monthly payer just before the end of the *starting instalment month in the income year.
How and when you stop being such a payer
45-136(4)
Despite subsection (1), you stop being a *monthly payer at the start of the first *instalment month in a later income year if:
(a) you do not satisfy the requirement in subsection 45-138(1) for that later income year; and
(b) you give the Commissioner a notice (the MP stop notice ) in the *approved form for that later income year before the start of that later income year.
You satisfy the requirement in this subsection for an income year if at the start of your *MPR test day for that income year, your base assessment instalment income (within the meaning of section 45-320) for the *base year equals or exceeds:
(a) $20 million; or
(b) if regulations made for the purposes of this paragraph specify a different amount - that amount.
45-138(2)
However, you do not satisfy the requirement in subsection (1) for an income year if, at the start of your *MPR test day for that income year:
(a) you have (or, if you are a *member of a *GST group, the *representative member of the GST group has) an obligation to give the Commissioner a *GST return for a quarterly *tax period; and
(b) you are not the *head company of a *consolidated group nor the *provisional head company of a *MEC group; and
(c) your base assessment instalment income (within the meaning of section 45-320) for the *base year is less than $100 million.
45-138(3)
For the purposes of subsections (1) and (2), at the start of an entity's *MPR test day:
(a) determine the amount of the entity's base assessment instalment income (within the meaning of section 45-320) for the *base year only on the basis of the information provided by the Commissioner to the entity before that start of that day; and
(b) in determining on that day whether an entity has an obligation mentioned in paragraph (2)(a), disregard any creation or removal of such an obligation after that day (even if that change is made retrospective to that day).
45-138(4)
An entity's MPR test day for an income year is:
(a) if the Commissioner gives the entity an instalment rate for the first time during an *instalment month in the income year - the last day of that month; or
(b) otherwise - the first day of the third last month of the previous income year.
45-138(5)
Subsection (6) applies if, disregarding that subsection, an entity does not satisfy the requirement in subsection (1) for an income year.
45-138(6)
For the purposes of this section, in determining the entity's base assessment instalment income (within the meaning of section 45-320) for the *base year:
(a) disregard subsection 45-120(2C); and
(b) disregard paragraph (3)(a) of this section, to the extent that that paragraph relates to the operation of subsection 45-120(2C).
45-138(7)
If, because of subsection (6), the entity satisfies the requirement in subsection (1) for an income year, the entity must give the Commissioner a notice in the *approved form in respect of that income year before:
(a) if the *starting instalment month in the income year is determined under paragraph 45-136(2)(a) - the end of that starting instalment month; or
(b) if the starting instalment month in the income year is determined under paragraph 45-136(2)(b) - the start of that starting instalment month.
SECTION 45-140 CHOOSING TO PAY ANNUAL INSTALMENTS 45-140(1)
You may choose to pay instalments annually instead of quarterly if, at the end of the *starting instalment quarter, you satisfy the following conditions:
(a) you are neither registered, nor *required to be registered, under Part 2-5 of the *GST Act; and
(b) you are not a partner in a partnership that is registered, or required to be registered, under that Part; and
(c) your most recent *notional tax notified by the Commissioner is less than $8,000; and
(d) in the case of a company - the company is not a *participant in a *GST joint venture under Division 51 of that Act; and
(e) in the case of a company - the company is not part of an *instalment group.
Note:
You cannot choose to be an annual payer while you are the head company of a consolidated group to which Subdivision 45-Q applies: see section 45-720.
45-140(1A)
You may also choose at a time (subject to subsection (2)) to pay instalments annually instead of quarterly if at that time either:
(a) an *annual tax period election of yours has effect and, if you are a partner in one or more partnerships that are registered under Part 2-5 of the *GST Act, an annual tax period election of each of those partnerships has effect; or
(b) all of the following subparagraphs apply:
(i) you are neither registered, nor *required to be registered, under Part 2-5 of the GST Act;
(ii) you are a partner in one or more partnerships that are registered under that Part;
(iii) an annual tax period election of each of those partnerships has effect;
and at the end of the *starting instalment quarter, you satisfy the following conditions:
(c) you are not a partner in a partnership that is required to be registered under Part 2-5 of the GST Act;
(d) your most recent *notional tax notified by the Commissioner is less than $8,000;
(e) in the case of a company - the company is not a *participant in a *GST joint venture under Division 51 of that Act;
(f) in the case of a company - the company is not part of an *instalment group.
Note:
You cannot choose to be an annual payer while you are the head company of a consolidated group to which Subdivision 45-Q applies: see section 45-720.
45-140(2)
You must make the choice under subsection (1) or (1A) by notifying the Commissioner, in the *approved form, on or before the day on which that instalment would otherwise be due.
45-140(3)
You become an annual payer just before the end of the *starting instalment quarter if:
(a) you satisfy the conditions in subsection (1) or (1A); and
(b) you choose to pay instalment annually.
SECTION 45-145 MEANING OF INSTALMENT GROUP 45-145(1)
An instalment group consists of:
(a) a company:
(i) that has *majority control of at least one other company; but
(ii) of which no other company has *majority control; and
(b) any other company of which the first-mentioned company has *majority control.
45-145(2)
A company has majority control of another company if, and only if:
(a) the first company is in a position to cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the other company; or
(b) the first company has the power to appoint or remove the majority of the directors of the other company; or
(c) the other company is, or a majority of its directors are, accustomed or under an obligation, whether formal or informal, to act according to the directions, instructions or wishes of the first company.
SECTION 45-150 ENTITY STOPS BEING ANNUAL PAYER IF INVOLVED WITH GST REGISTRATION OR INSTALMENT GROUP 45-150(1)
You stop being an *annual payer if, during an *instalment quarter that is in an income year that starts after the commencement of this section:
(a) you become *required to be registered under Part 2-5 of the *GST Act; or
(b) you become a partner in a partnership that is required to be registered under that Part; or
(c) a partnership in which you are a partner becomes required to be registered under that Part; or
(d) in the case of a company - the company becomes a *participant in a *GST joint venture under Division 51 of that Act; or
(e) in the case of a company - the company becomes part of an *instalment group; or
(f) an *annual tax period election of yours, or of a partnership in which you are a partner, ceases to have effect.
45-150(2)
If you stop being an *annual payer under subsection (1):
(a) you must still pay an annual instalment for the income year mentioned in that subsection; and
(b) you must pay an instalment for each instalment quarter in the next income year for which subsection 45-50(1) or (2) requires you to do so.
45-150(3)
You may again become an *annual payer if:
(a) after you stop being an *annual payer under subsection (1), you satisfy the conditions in subsection 45-140(1) or (1A); and
(b) you again choose under section 45-140 to pay instalments annually.
SECTION 45-155 ENTITY STOPS BEING ANNUAL PAYER IF NOTIONAL TAX IS $8,000 OR MORE, OR ENTITY CHOOSES TO PAY QUARTERLY 45-155(1)
You stop being an *annual payer at the start of the first *instalment quarter in an income year (the current year ) if:
(a) after the end of the first instalment quarter in the previous income year and before the end of the first instalment quarter in the current year, the Commissioner notifies you of your *notional tax, and it is $8,000 or more; or
(b) you choose to pay instalments quarterly instead of annually.
45-155(1A)
You must make the choice by notifying the Commissioner, in the *approved form, on or before the day on which the instalment for the first *instalment quarter for the current year would otherwise be due (disregarding subsection 45-112(3)).
45-155(2)
You must pay an instalment for the first *instalment quarter of the next income year, and later instalment quarters, in accordance with Subdivision 45-B.
45-155(3)
You must still pay an annual instalment for the previous income year referred to in subsection (1).
45-155(4)
You may again become an *annual payer at the end of the first *instalment quarter in a later income year if:
(a) at that time, you satisfy the conditions in subsection 45-140(1) or in paragraphs 45-140(1A)(c), (d), (e) and (f); and
(b) you again choose under section 45-140 to pay annually.
SECTION 45-160 HEAD COMPANY OF A CONSOLIDATED GROUP STOPS BEING ANNUAL PAYER 45-160(1)
You stop being an *annual payer at the start of an *instalment quarter if Subdivision 45-Q starts applying to you as the *head company of a *consolidated group during that quarter.
45-160(2)
You must pay an instalment for that *instalment quarter and later instalment quarters in accordance with Subdivision 45-B.
45-160(3)
You may again become an *annual payer if:
(a) after you stop being an *annual payer under subsection (1), you satisfy the conditions in subsection 45-140(1) or (1A); and
(b) you again choose under section 45-140 to pay instalments annually.
Note:
You cannot choose to be an annual payer while you are the head company of a consolidated group to which Subdivision 45-Q applies: see section 45-720.
This Subdivision applies if you are a *quarterly payer who pays on the basis of instalment income at the end of an *instalment quarter.
45-200(2)
If you are a *monthly payer, this Subdivision has effect in relation to you in respect of an *instalment month in the same way in which it has effect in relation to a *quarterly payer in respect of an *instalment quarter.
SECTION 45-205 CHOOSING A VARIED INSTALMENT RATE 45-205(1)
You may choose an instalment rate for working out under section 45-110 the amount of your instalment for an *instalment quarter in an income year.
45-205(2)
If you do so, you must use that instalment rate to work out the amount of that instalment. (You cannot later choose another instalment rate for working out that amount.)
Note 1:
If choosing a rate leads you to pay an instalment that is too low, you may be liable to general interest charge under section 45-230.
Note 2:
If you choose a rate under this section, you must use it even if the Commissioner later gives you a new instalment rate.
45-205(3)
You must also use that instalment rate to work out the amount of the instalment that you are liable to pay for each later *instalment quarter in that income year, unless you choose another instalment rate under subsection (1) for working out that amount.
Note 1:
If you choose a rate under this section, you must use it even if the Commissioner later gives you a new instalment rate.
Note 2:
If a rate you have chosen for an instalment quarter is not appropriate for a later instalment quarter in the same income year, you should choose another rate under subsection (1) for the later quarter. If the earlier rate is too low, you may be liable to general interest charge under section 45-230.
45-205(4)
However, for working out under section 45-110 the amount of your instalment for an *instalment quarter in a later income year, you must use the most recent instalment rate given to you by the Commissioner before the end of that quarter, unless you again choose another instalment rate under subsection (1).
45-205(5)
Subsection (6) applies if you are a monthly payer.
45-205(6)
Treat the references in subsections (1) and (4) to section 45-110 as instead being references to section 45-114.
SECTION 45-210 45-210 NOTIFYING COMMISSIONER OF VARIED INSTALMENT RATE
If you work out the amount of an instalment using an instalment rate you have chosen under section 45-205, you must specify that rate in the notice about your instalment income that you must give the Commissioner under section 45-20. SECTION 45-215 CREDIT ON USING VARIED RATE IN CERTAIN CASES 45-215(1)
You are entitled to claim a credit if:
(a) the amount of your instalment for an *instalment quarter (the current quarter ) in an income year is to be worked out using an instalment rate you chose under section 45-205; and
(b) that rate is lower than the instalment rate you used to work out the amount of your instalment for the previous instalment quarter (if any) in the same income year; and
(c) the amount worked out using the method statement is greater than nil. Method statement
Step 1.
Add up the instalments you are liable to pay for the earlier *instalment quarters in the income year (even if you have not yet paid all of them).
Step 2.
Subtract from the step 1 amount each earlier credit that you have claimed under this section or section 45-420 in respect of the income year.
Step 3.
Multiply the total of your *instalment income for those earlier *instalment quarters by the instalment rate to be used for the current quarter.
Step 4.
Subtract the step 3 amount from the step 2 amount.
Step 5.
If the result is a positive amount, it is the amount of the credit you can claim.
45-215(2)
A claim for a credit must be made in the *approved form on or before the day on which the instalment for the current quarter is due.
Note:
How the credit is applied is set out in Division 3 of Part IIB.
45-215(3)
The credit entitlement does not affect your liability to pay an instalment.
Subdivision 45-G - General interest charge payable in certain cases if instalments are too low SECTION 45-225 45-225 EFFECT OF SUBDIVISION IN RELATION TO MONTHLY PAYERS
If you are a *monthly payer, this Subdivision has effect in relation to you in respect of an *instalment month in the same way in which it has effect in relation to a *quarterly payer in respect of an *instalment quarter.
You are liable to pay the *general interest charge under this section if:
(a) you use an instalment rate (the varied rate ) under section 45-205 to work out the amount of your instalment for an *instalment quarter (the variation quarter ) in an income year; and
(b) the varied rate is less than 85% of your *benchmark instalment rate for that income year that the Commissioner works out under Subdivision 45-K.
45-230(2)
You are liable to pay the *general interest charge on the amount worked out as follows:
where:
rate discrepancy
means the difference between the varied rate and the lesser of:
(a) the most recent instalment rate given to you by the Commissioner before the end of the variation quarter; and
(b) your *benchmark instalment rate for that income year.
(a) if, as a result of using the varied rate for the variation quarter, you claimed a credit under section 45-215 - the amount worked out as follows:
| Rate
discrepancy |
× | Your *instalment income for the earlier
instalment quarters in that income year |
or the amount of the credit, whichever is less; and
(b) otherwise - nil.
45-230(2A)
If the variation quarter is in a *consolidation transitional year for you as a *subsidiary member of a *consolidated group, a reference in subsection (2) to:
(a) your *instalment income for the variation quarter; or
(b) your instalment income for the earlier instalment quarters in the income year;
is taken to be a reference to so much of that income as is reasonably attributable to the period in that quarter or those quarters (as appropriate) during which you are not a subsidiary member of the group.
45-230(3)
You are liable to pay the charge for each day in the period that:
(a) started at the beginning of the day by which the instalment for the variation quarter was due to be paid; and
(b) finishes at the end of the day on which your assessed tax for the income year is due to be paid.
45-230(4)
The Commissioner must give you written notice of the *general interest charge to which you are liable under subsection (2). You must pay the charge within 14 days after the notice is given to you.
45-230(5)
If any of the *general interest charge to which you are liable under subsection (2) remains unpaid at the end of the 14 days referred to in subsection (4), you are also liable to pay the *general interest charge on the unpaid amount for each day in the period that:
(a) starts at the end of those 14 days; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) the unpaid amount;
(ii) general interest charge on the unpaid amount.
SECTION 45-232 LIABILITY TO GIC ON SHORTFALL IN QUARTERLY INSTALMENT WORKED OUT ON THE BASIS OF ESTIMATED BENCHMARK TAX 45-232(1)
You are liable to pay the *general interest charge under this section if:
(a) the amount of your instalment for an *instalment quarter (the variation quarter ) in an income year is worked out under paragraph 45-112(1)(b) or (c) on the basis of your estimate of your *benchmark tax for that income year; and
(b) the estimate used is less than 85% of your *benchmark tax for the income year (which the Commissioner works out under section 45-365).
Amount on which the charge is payable
45-232(2)
You are liable to pay the *general interest charge on the amount worked out as follows (if it is a positive amount):
*Acceptable amount of the instalment - Actual amount
where:
acceptable amount
, of your instalment for an *instalment quarter in an income year, hasthe meaning given by subsections (3), (3A), (3B), (3C) and (3D).
(a) the amount of your instalment, as worked out on the basis of the estimate; or
(b) if, as a result of using the estimate, you claimed a credit under section 45-420 for the variation quarter - the amount of the credit, expressed as a negative amount.
45-232(3)
If you are a *quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax, the acceptable amount of your instalment for that instalment quarter is:
(a) if the amount of the instalment is worked out under paragraph 45-112(1)(b) or (c) - the amount worked out using the table in this subsection (which can be a negative amount); or
(b) otherwise - the amount notified to you by the Commissioner under paragraph 45-112(1)(a) as the amount of your instalment for that *instalment quarter.
| Acceptable amount of an instalment | |||
| Item | If the *instalment quarter is: | The acceptable amount of your instalment for that instalment quarter is: | |
| 1 | the first in that income year for which you are liable to pay an instalment | the lower of: | |
| (a) | the amount that the Commissioner notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that *instalment quarter; and | ||
| (b) | 25% of your *benchmark tax for the income year (which the Commissioner works out under section 45-365). | ||
| 2 | the second in that income year for which you are liable to pay an instalment | the lower of: | |
| (a) | the amount that the Commissioner would have notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that *instalment quarter if the amounts of all your instalments for that income year had been required to be worked out under Subdivision 45-L; and | ||
| (b) | the amount worked out by subtracting: | ||
| • | the *acceptable amount of your instalment for the earlier instalment quarter in that income year; | ||
| from: | |||
| • | 50% of your *benchmark tax for the income year (which the Commissioner works out under section 45-365). | ||
| 3 | the third in that income year for which you are liable to pay an instalment | the lower of: | |
| (a) | the amount that the Commissioner would have notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that *instalment quarter if the amounts of all your instalments for that income year had been required to be worked out under Subdivision 45-L; and | ||
| (b) | the amount worked out by subtracting: | ||
| • | the total of the *acceptable amounts of your instalments for the earlier instalment quarters in that income year; | ||
| from: | |||
| • | 75% of your *benchmark tax for the income year (which the Commissioner works out under section 45-365). | ||
| 4 | the fourth in that income year for which you are liable to pay an instalment | the lower of: | |
| (a) | the amount that the Commissioner would have notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that *instalment quarter if the amounts of all your instalments for that income year had been required to be worked out under Subdivision 45-L; and | ||
| (b) | the amount worked out by subtracting: | ||
| • | the total of the *acceptable amounts of your instalments for the earlier instalment quarters in that income year; | ||
| from: | |||
| • | 100% of your *benchmark tax for the income year (which the Commissioner works out under section 45-365). |
45-232(3A)
Subject to subsections (3B), (3C) and (3D), if you are a *quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax, the acceptable amount of your instalment for an *instalment quarter in an income year is:
(a) if the amount of the instalment is worked out under paragraph 45-112(1)(b) or (c) - the amount worked out using the table in this subsection (which can be a negative amount); or
(b) otherwise - the amount notified to you by the Commissioner under paragraph 45-112(1)(a) as the amount of your instalment for that instalment quarter.
| Acceptable amount of an instalment | ||||
| Item | If the *instalment quarter is: | The acceptable amount of your instalment for that instalment quarter is: | ||
| 1 | the third *instalment quarter in that income year | the lower of: | ||
| (a) | the amount that the Commissioner notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that *instalment quarter; and | |||
| (b) | 75% of your *benchmark tax for the income year (which the Commissioner works out under section 45-365). | |||
| 2 | the fourth *instalment quarter in that income year | the lower of: | ||
| (a) | the amount that the Commissioner would have notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that *instalment quarter if the amounts of all your instalments for that income year had been required to be worked out under Subdivision 45-L; and | |||
| (b) | the amount worked out by subtracting: | |||
| • | the *acceptable amount of your instalment for the earlier instalment quarter in that income year; | |||
| from: | ||||
| • | 100% of your *benchmark tax for the income year (which the Commissioner works out under section 45-365). |
45-232(3B)
If:
(a) you are a *quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax; and
(b) the Commissioner first gives you an instalment rate during the second *instalment quarter in an income year;
the acceptable amount of your instalment for an instalment quarter in that income year is:
(c) if the amount of the instalment is worked out under paragraph 45-112(1)(b) or (c) - the amount worked out using the table in this subsection (which can be a negative amount); or
(d) otherwise - the amount notified to you by the Commissioner under paragraph 45-112(1)(a) as the amount of your instalment for that instalment quarter.
| Acceptable amount of an instalment | ||||
| Item | If the *instalment quarter is: | The acceptable amount of your instalment for that instalment quarter is: | ||
| 1 | the third *instalment quarter in that income year | the lower of: | ||
| (a) | the amount that the Commissioner notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that *instalment quarter; and | |||
| (b) | 50% of your *benchmark tax for the income year (which the Commissioner works out under section 45-365). | |||
| 2 | the fourth *instalment quarter in that income year | the lower of: | ||
| (a) | the amount that the Commissioner would have notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that *instalment quarter if the amounts of all your instalments for that income year had been required to be worked out under Subdivision 45-L; and | |||
| (b) | the amount worked out by subtracting: | |||
| • | the *acceptable amount of your instalment for the earlier instalment quarter in that income year; | |||
| from: | ||||
| • | 75% of your *benchmark tax for the income year (which the Commissioner works out under section 45-365). |
45-232(3C)
If:
(a) you are a *quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax; and
(b) the Commissioner first gives you an instalment rate during the third *instalment quarter in an income year;
the acceptable amount of your instalment for an instalment quarter in that income year is:
(c) if the amount of the instalment is worked out under paragraph 45-112(1)(b) or (c) - the amount worked out using the table in this subsection (which can be a negative amount); or
(d) otherwise - the amount notified to you by the Commissioner under paragraph 45-112(1)(a) as the amount of your instalment for that instalment quarter.
| Acceptable amount of an instalment | ||||
| Item | If the *instalment quarter is: | The acceptable amount of your instalment for that instalment quarter is: | ||
| 1 | the third *instalment quarter in that income year | the lower of: | ||
| (a) | the amount that the Commissioner notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that *instalment quarter; and | |||
| (b) | 25% of your *benchmark tax for the income year (which the Commissioner works out under section 45-365). | |||
| 2 | the fourth *instalment quarterin that income year | the lower of: | ||
| (a) | the amount that the Commissioner would have notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that *instalment quarter if the amounts of all your instalments for that income year had been required to be worked out under Subdivision 45-L; and | |||
| (b) | the amount worked out by subtracting: | |||
| • | the *acceptable amount of your instalment for the earlier instalment quarter in that income year; | |||
| from: | ||||
| • | 50% of your *benchmark tax for the income year (which the Commissioner works out under section 45-365). |
45-232(3D)
If:
(a) you are a *quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax; and
(b) the Commissioner first gives you an instalment rate during the fourth *instalment quarter in an income year;
the acceptable amount of your instalment for an instalment quarter in that income year is the lower of the following amounts:
(c) the amount that the Commissioner notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that instalment quarter;
(d) 25% of your *benchmark tax for the income year (which the Commissioner works out under section 45-365).
Period for which the charge is payable
45-232(4)
You are liable to pay the charge for each day in the period that:
(a) started at the beginning of the day by which the instalment for the variation quarter was due to be paid; and
(b) finishes at the end of the day on which your assessed tax for the income year is due to be paid.
Commissioner to notify you
45-232(5)
The Commissioner must give you written notice of the *general interest charge to which you are liable under subsection (2). You must pay the charge within 14 days after the notice is given to you.
Further charge if charge under subsection (2) remains unpaid
45-232(6)
If any of the *general interest charge to which you are liable under subsection (2) remains unpaid at the end of the 14 days referred to in subsection (5), you are also liable to pay the *general interest charge on the unpaid amount for each day in the period that:
(a) starts at the end of those 14 days; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) the unpaid amount;
(ii) general interest charge on the unpaid amount.
Modifications for subsidiary member of consolidated group
45-232(7)
Subsections (1) to (6) apply to you with the modifications set out in subsections (8) to (10) if the variation quarter is in a *consolidation transitional year for you as a *subsidiary member of a *consolidated group.
45-232(8)
For the purposes of subsection (7), a reference in subsection (1), (3), (3A), (3B), (3C) and (3D) to your *benchmark tax for that year is taken to be a reference to the amount worked out as follows:
|
Your *benchmark tax for that year |
× 365 | |
| Number of days in that year when you are not a *subsidiary member of the group |
45-232(9)
For the purposes of subsection (7), a reference in this section to:
(a) the acceptable amount of your instalment for an *instalment quarter in an income year; or
(b) the acceptable amount of your instalment for the earlier instalment quarter in an income year; or
(c) the acceptable amounts of your instalments for the earlier instalment quarters in an income year;
is taken to be a reference to so much of the acceptable amount of instalment or acceptable amounts of instalments, worked out under subsection (3), (3A), (3B), (3C) or (3D) for that quarter or those quarters (as appropriate), as is reasonably attributable to the period in that quarter or those quarters (as appropriate) during which you are not a *subsidiary member of the group.
45-232(10)
For the purposes of subsection (7), a reference to the actual amount in subsection (2) is taken to be a reference to so much of the actual amount worked out under that subsection as is reasonably attributable to the period in the variation quarter during which you are not a *subsidiary member of the group.
SECTION 45-233 REDUCTION IN GIC LIABILITY UNDER SECTION 45-232 IF SHORTFALL IS MADE UP IN LATER INSTALMENT 45-233(1)
This section reduces the amount (the shortfall ) on which you are liable to pay the *general interest charge under subsection 45-232(2) if, for a later *instalment quarter (the later quarter ) that is in the same income year as the variation quarter, the amount worked out as follows is a negative amount:
| *Acceptable amount of your instalment
for the later quarter |
- | Actual amount of your instalment
for the later quarter |
That amount (expressed as a positive number) is called the top up .
45-233(2)
For the purposes of the formula in subsection (1):
actual amount of your instalment for the later quarter
means:
(a) the amount of your instalment for the later quarter, as worked out under section 45-112; or
(b) if you claimed a credit under section 45-420 for the later quarter - the amount of the credit, expressed as a negative amount.
Amount of the reduction
45-233(3)
The shortfall is reduced by applying so much of the top up as does not exceed the shortfall.
45-233(4)
However, if some of the top up has already been applied (under any other application or applications of this section) to reduce the amount on which you are liable to pay the *general interest charge under subsection 45-232(2) as it applies to a different *instalment quarter, the shortfall is reduced by applying so much of the top up as has not already been applied, and does not exceed the shortfall.
Period for which reduction has effect
45-233(5)
The reduction has effect for each day in the period that:
(a) started at the beginning of the day by which the instalment for the later quarter was due to be paid; and
(b) finishes at the end of the day on which your assessed tax for the income year is due to be paid.
SECTION 45-235 LIABILITY TO GIC ON SHORTFALL IN ANNUAL INSTALMENT 45-235(1)
You are liable to pay the *general interest charge under this section if:
(a) you choose to estimate the amount of your instalment (the estimated instalment amount ) for an income year under paragraph 45-115(1)(c) or former paragraph 45-175(1)(b); and
(b) that amount is less than 85% of your *benchmark tax for the income year (which the Commissioner works out under section 45-365).
45-235(2)
If you estimated the amount of the instalment under former paragraph 45-175(1)(b), you are liable to pay the *general interest charge on the difference between the estimated instalment amount and the lower of the following amounts:
(a) your most recent *notional tax notified by the Commissioner at least 30 days before the day on which the instalment was due;
(b) your *benchmark tax for the income year.
45-235(3)
If you estimated the amount of the instalment under paragraph 45-115(1)(c), you are liable to pay the *general interest charge on the difference between the estimated instalment amount and the lowest of the following amounts:
(a) the amount of your instalment worked out using the most recent instalment rate given to you by the Commissioner before the end of the income year;
(b) your most recent *notional tax notified by the Commissioner before the end of the income year under subsection 45-320(5);
(c) your *benchmark tax for the income year.
45-235(4)
You are liable to pay the charge for each day in the period that:
(a) started at the beginning of the day by which the instalment for the income year was due to be paid; and
(b) finishes at the end of the day on which your assessed tax for the income year is due to be paid.
45-235(5)
The Commissioner must give you written notice of the *general interest charge to which you are liable under subsection (2) or (3). You must pay the charge within 14 days after the notice is given to you.
45-235(6)
If any of the *general interest charge to which you are liable under subsection (2) or (3) remains unpaid at the end of the 14 days referred to in subsection (5), you are also liable to pay the *general interest charge on the unpaid amount for each day in the period that:
(a) starts at the end of those 14 days; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) the unpaid amount;
(ii) general interest charge on the unpaid amount.
SECTION 45-240 45-240 COMMISSIONER MAY REMIT GENERAL INTEREST CHARGE
The Commissioner may, if he or she is satisfied that because special circumstances exist it would be fair and reasonable to do so, remit the whole or any part of any *general interest charge payable under subsection 45-230(2) or 45-232(2) or subsection 45-235(2) or (3).
Your instalment income for a period (the current period ) includes an amount for each partnership in which you are a partner at any time during the current period. The amount is worked out using the formula:
| Your assessable income from
the partnership for the last income year Partnership's *instalment income for that income year |
× | Partnership's
*instalment income for the current period |
45-260(2)
For the purposes of the formula in subsection (1):
your assessable income from the partnership for the last income year
means so much of your individual interest in the partnership's net income for an income year as was included by section 92 of the Income Tax Assessment Act 1936 in your assessable income for the most recent income year:
(a) that ended before the start of the current period; and
(b) for which you have an assessment, or for which the Commissioner has notified you that you do not have a taxable income.
45-260(3)
However, if for any reason the component defined in subsection (2) does not exist or is a nil amount, or the partnership had no *instalment income for that income year, your instalment income for the current period includes, for that partnership, an amount that is fair and reasonable having regard to:
(a) the extent of your interest in the partnership during the current period; and
(b) the partnership's *instalment income for the current period; and
(c) any other relevant circumstances.
Exception for corporate limited partnerships
45-260(4)
Your instalment income for the current period does not include an amount for a partnership that is a *corporate limited partnership for the income year that is or includes that period.
Note:
Your instalment income will still include a distribution by the partnership that is ordinary income. See section 45-120.
Subdivision 45-I - Trust income included in instalment income of beneficiary
Your instalment income for a period (the current period ) includes an amount for each trust of which you are a beneficiary at any time during the current period. The amount is worked out using the formula:
| Your assessable income from
the trust for the last income year Trust's *instalment income for that income year |
× | Trust's
*instalment income for the current period |
45-280(2)
For the purposes of the formula in subsection (1):
your assessable income from the trust for the last income year
means so much of a share of the trust's net income for an income year as:
(a) Division 6 of Part III of the Income Tax Assessment Act 1936 included in your assessable income for the most recent income year:
(i) that ended before the start of the current period; and
(ii) for which you have an assessment, or for which the Commissioner has notified you that you do not have a taxable income; and
(b) is not attributable to a *capital gain made by the trust.
Note:
For exceptions to paragraph (b), see section 45-290.
45-280(3)
However, if for any reason the component defined in subsection (2) does not exist or is a nil amount, or the trust had no *instalment income for that income year, your instalment income for the current period includes, for that trust, an amount that is fair and reasonable having regard to:
(a) the extent of your interest in the trust, and your interest in the income of the trust, during the current period; and
(b) the trust's *instalment income for the current period; and
(c) any other relevant circumstances.
Exception for corporate unit trusts and public trading trusts
45-280(4)
Your instalment income for the current period does not include an amount for a trust if the trustee is liable to be assessed, and to pay tax, under section 102S of the Income Tax Assessment Act 1936 for the income year that is or includes that period.
Note:
Your instalment income will still include a distribution by the trust that is ordinary income. See section 45-120.
Exception for certain resident unit trusts
45-280(5)
Your instalment income for the current period does not include an amount for a trust under subsection (1) if the conditions in either subsection 45-285(1) or (2) are satisfied for you for that trust for that period.
Note:
Your instalment income will instead include a distribution by the trust: see section 45-285.
Exception for trusts whose beneficiary is absolutely entitled
45-280(6)
Your instalment income for the current period does not include an amount for a trust under subsection (1) if, throughout the current period:
(a) the trustee of the trust did not have any active duties to perform in the management of the trust (other than the duty to deal with the trust income and capital in accordance with any requests made or directions given by the beneficiary or beneficiaries); and
(b) if there was only one beneficiary, the beneficiary:
(i) was absolutely entitled to the trust assets; and
(ii) had a vested and indefeasible interest in any trust income arising from time to time; and
(c) if there was more than one beneficiary, each beneficiary:
(i) was absolutely entitled to that beneficiary's interest in the trust assets; and
(ii) had a vested and indefeasible interest in a proportion of any trust income arising from time to time, being a proportion that corresponded to the beneficiary's proportional interest in the trust capital.
Instead, your instalment income for the current period includes the following amount:
| Your proportion of the vested
and indefeasible interests in the trust income arising from time to time |
× | Trust's *instalment income
for the current period |
SECTION 45-285 INSTALMENT INCOME INCLUDES DISTRIBUTIONS BY CERTAIN RESIDENT UNIT TRUSTS 45-285(1)
Your instalment income for a period includes trust income or trust capital that a unit trust distributes to you, or applies for your benefit, during that period if:
(a) the unit trust is a resident unit trust (within the meaning of section 102Q of the Income Tax Assessment Act 1936) for the income year of the trust that is or includes that period; and
(b) throughout that period:
(i) any of the units in the trust were listed for quotation in the official list of a stock exchange in Australia or elsewhere; or
(ii) any of the units in the trust were offered to the public; or
(iii) the units in the trust were held by at least 50 persons; and
(c) section 45-287 in this Schedule did not apply to the trust at any time during that period; and
(d) throughout that period, the trust's activities consisted only of activities listed in the definition of eligible investment business in section 102M of the Income Tax Assessment Act 1936.
(It does not matter whether the trust income or trust capital is included in your assessable income for the income year that is or includes that period.)
45-285(2)
Your instalment income for a period also includes trust income or trust capital that a unit trust distributes to you, or applies for your benefit, during that period if:
(a) the income or capital is not included in your instalment income under subsection (1); and
(b) the unit trust is a resident unit trust (within the meaning of section 102Q of the Income Tax Assessment Act 1936) for the income year of the trust that is or includes that period; and
(c) throughout that period, the trust's activities consisted only of activities listed in the definition of eligible investment business in section 102M of the Income Tax Assessment Act 1936; and
(d) throughout that period, either:
(i) you are yourself the trustee of a unit trust that satisfies each of paragraphs (1)(a) to (d) of this section; or
(ii) you are yourself the trustee of one or more trusts covered by section 45-288; or
(iii) you are exempt from tax; or
(iv) you are a *complying superannuation entity or a statutory fund of a *life insurance company.
(It does not matter whether the trust income or trust capital is included in your assessable income for the income year that is or includes that period.)
Extension - nominee and bare trust situations
45-285(3)
In determining, for the purposes of subparagraph (1)(b)(iii), how many persons hold units in a unit trust, if:
(a) another trust (the holding trust ) is a unit holder in the unit trust; and
(b) the holding trust is a trust of the kind covered by subsection 45-280(6); and
(c) the beneficiary's or beneficiaries' absolute entitlement exists at all times while the holding trust is in existence;
the beneficiary or beneficiaries count as persons who hold units in the unit trust, and the trustee of the holding trust does not.
SECTION 45-286 45-286 INSTALMENT INCOME INCLUDES DISTRIBUTIONS BY CERTAIN MANAGED INVESTMENT TRUSTS
Your instalment income for a period includes trust income or trust capital that a trust distributes to you, or applies for your benefit, during that period if:
(a) the income or capital is not included in your instalment income under section 45-280 or 45-285; and
(b) the trust satisfies the condition in paragraph 275-10(3)(a) of the Income Tax Assessment Act 1997 in relation to the income year that is or includes that period; and
(c) the trust is a *managed investment trust for that income year; and
(d) the trust meets the requirement in section 275-110 of that Act throughout the income year.
(It does not matter whether the trust income or trust capital is included in your assessable income for the income year that is or includes that period.)
Concentrated ownership
45-287(1)
This section applies to a trust if an individual holds, or up to 20 individuals hold between them directly or indirectly and for their own benefit, interests in the trust:
(a) carrying *fixed entitlements to:
(i) at least 75% of the trust's income; or
(ii) at least 75% of the trust's capital; or
(b) if beneficiaries of the trust have a right to vote in respect of activities of the trust - carrying at least 75% of those voting rights.
Single individual
45-287(2)
Subsection (1) operates as if all of these were a single individual:
(a) an individual, whether or not the individual holds interests in the trust; and
(b) the individual's *associates; and
(c) for any interests in respect of which other individuals are nominees of the individual or of the individual's associates - those other individuals.
Concentrated ownership - potential due to possible variation of rights etc.
45-287(3)
This section also applies to a trust if, because of:
(a) any provision in the trust's constituent document, or in any contract, agreement or instrument:
(i) authorising the variation or abrogation of rights attaching to any of the interests in the trust; or
(ii) relating to the conversion, cancellation, extinguishment or redemption of any of those interests; or
(b) any contract, *arrangement, option or instrument under which a person has power to acquire any of those interests; or
(c) any power, authority or discretion in a person in relation to the rights attaching to any of those interests;
it is reasonable to conclude that the rights attaching to any of the interests are capable of being varied or abrogated in such a way (even if they are not in fact varied or abrogated in that way) that, directly or indirectly, the trust would be disqualified under subsection (1).
Tracing
45-287(4)
In applying this section:
(a) if a *complying superannuation fund, *approved deposit fund or *superannuation fund for foreign residents has more than 50 members and has, directly or indirectly, a *fixed entitlement to any of the trust's income or capital - that entitlement is taken to be held by more than 20 individuals for their own benefit; and
(b) if a complying superannuation fund, approved deposit fund or superannuation fund for foreign residents has 50 or fewer members and has, directly or indirectly, a fixed entitlement to any of the trust's income or capital - each of the members is taken to have a share of that entitlement, in equal proportions, for his or her own benefit.
SECTION 45-288 45-288 RESIDENT INVESTMENT TRUSTS FOR BENEFICIARIES WHO ARE ABSOLUTELY ENTITLED
This section covers a trust if:
(a) the trust is a resident unit trust within the meaning of section 102Q of the Income Tax Assessment Act 1936; and
(b) the trust is of the kind covered by subsection 45-280(6) in this Schedule; and
(c) the requests or directions that beneficiaries may give the trustee are limited to requests or directions as to which of the activities listed in the definition of eligible investment business in section 102M of the Income Tax Assessment Act 1936 the trustee should engage in; and
(d) all of the trust's beneficiaries became beneficiaries as a result of a public offer to invest in the trust; and
(e) either:
(i) the trust has 50 or more beneficiaries; or
(ii) if the trustee of the trust is also the trustee of one or more other trusts that satisfy paragraphs (a), (b), (c) and (d) of this section - all those trusts together have a total of 50 or more beneficiaries.
This section sets out cases where paragraph (b) of the definition of your assessable income from the trust for the last income year in subsection 45-280(2) does not apply.
45-290(2)
It does not apply in the case of:
(a) a *complying approved deposit fund or a *non-complying approved deposit fund for the income year that is or includes the current period; or
(b) a *complying superannuation fund or a *non-complying superannuation fund for that year; or
(c) a *pooled superannuation trust for that year.
(d) (Repealed by No 70 of 2015)
45-290(3)
It does not apply in the case of a *life insurance company to the extent that the share of the trust's net income is included in the *complying superannuation class of its taxable income for the income year that is or includes the current period.
(Repealed by No 44 of 2000) Subdivision 45-J - How Commissioner works out your instalment rate and notional tax SECTION 45-320 WORKING OUT INSTALMENT RATE 45-320(1)
Except as provided by section 45-775, an instalment rate that the Commissioner gives you must be the percentage worked out to 2 decimal places (rounding up if the third decimal place is 5 or more) using the formula:
| Your *notional tax | × 100 | |
| Base assessment instalment income |
However, the instalment rate must be a nil rate if either component of the formula is nil.
45-320(2)
For the purposes of the formula in subsection (1):
base assessment instalment income
means so much of your assessable income, as worked out for the purposes of the *base assessment, as the Commissioner determines is *instalment income for the *base year.
45-320(3)
The base assessment is the latest assessment for your most recent income year for which an assessment has been made. However, if the Commissioner is satisfied that there is a later income year for which you do not have a taxable income, the base assessment is the latest return or other information from which an assessment for that income year would have been made.
45-320(4)
The base year is the income year to which the *base assessment relates.
45-320(5)
When the Commissioner gives you the instalment rate, he or she must also notify you of the amount of your *notional tax, as worked out for the purposes of working out the instalment rate.
45-320(6)
(Repealed by No 81 of 2016)
SECTION 45-325 WORKING OUT YOUR NOTIONAL TAX
Notional tax if you have no withholding income
45-325(1)
Your notional tax is your *adjusted tax (worked out under section 45-340) on your *adjusted taxable income (worked out under section 45-330) for the *base year.
Notional tax if you have no-TFN contributions income
45-325(1A)
In working out the notional tax of a *complying superannuation fund, *non-complying superannuation fund or *RSA provider for the *base year, assume that the entity had no *no-TFN contributions income for the base year and that the entity was not entitled to a *tax offset for the base year under Subdivision 295-J of the Income Tax Assessment Act 1997.
Notional tax if you have withholding income
45-325(2)
However, your notional tax (as worked out under subsection (1)) is reduced if your assessable income for the *base assessment includes amounts in respect of *withholding payments (except *non-quotation withholding payments).
45-325(3)
It is reduced (but not below nil) by your *adjusted tax (worked out under section 45-340) on your *adjusted withholding income (worked out under section 45-335) for the *base year.
Commissioner may take into account effect of the law, as applying to income years after base year
45-325(4)
For the purposes of working out your *notional tax, the Commissioner may work out an amount as if provisions of an Act or regulations, as they may reasonably be expected to apply for the purposes of your assessment for a later income year, had applied for the purposes of the *base assessment.
Commissioner may take into account proposed changes to the law so as to reduce instalment rate
45-325(5)
For the purposes of working out your *notional tax, the Commissioner may work out an amount as if provisions of an Act or regulations that, in the Commissioner's opinion, are likely to be enacted or made had applied for the purposes of the *base assessment. But the Commissioner may do so only if, as a result, the instalment rate given to you is reduced.
45-325(6)
If the *base year is the income year immediately preceding the income year in which 1 July 2000 occurred, subsections (4) and (5) apply for the purpose of working out the *base assessment instalment income of a *life insurance company in the same way as they apply for the purpose of working out such a company's *notional tax.
SECTION45-330 WORKING OUT YOUR ADJUSTED TAXABLE INCOME 45-330(1)
Your adjusted taxable income for the *base year is your total assessable income for the *base assessment, reduced by:
(a) any *net capital gain included in that assessable income; and
(b) your deductions for the base year (except *tax losses), as used in making that assessment; and
(c) the amount of any tax loss, to the extent that it is *unutilised at the end of the base year.
Exception: superannuation entities and net capital gains
45-330(2)
Paragraph (1)(a) does not apply in the case of:
(a) a *complying approved deposit fund or a *non-complying approved deposit fund for the *base year; or
(b) a *complying superannuation fund or a *non-complying superannuation fund for that year; or
(c) a *pooled superannuation trust for that year.
(d) (Repealed by No 70 of 2015)
Special rule for some entities
45-330(2A)
If an entity:
(a) has *tax losses transferred to it under Subdivision 707-A of the Income Tax Assessment Act 1997; or
(b) is a *corporate tax entity at any time during the *base year;
the adjusted taxable income of the entity for the base year is worked out under subsection (1) as if paragraph (1)(c) were replaced by the following provision:
(c) the lesser of the following amounts:
(i) the amount of any tax loss, to the extent that it is *unutilised at the end of the base year;
(ii) the amount of the deductions for tax losses used in making your *base assessment.
Amounts assessable under Subdivision 250-E of the Income Tax Assessment Act 1997
45-330(2AA)
To avoid doubt, paragraph (1)(a) does not apply to a *net capital gain that is included in your assessable income under Subdivision 250-E of the Income Tax Assessment Act 1997.
Special rule for life insurance companies
45-330(3)
The adjusted taxable income of a *life insurance company for the *base year is worked out as follows: Method statement
Step 1.
Recalculate the taxable income of the *ordinary class for the *base assessment on the basis that it did not include any *net capital gain.
Step 2.
Add to the step 1 result the deductions for *tax losses of the *ordinary class that were used in making the *base assessment.
Step 3.
Reduce the step 2 result by the lesser of the following amounts:
Step 4.
Add to the step 3 result the taxable income of the *complying superannuation class for the *base assessment.
Step 5.
Add to the step 4 result the deductions for *tax losses of the *complying superannuation class that were used in making the *base assessment.
Step 6.
Reduce the step 5 result by the lesser of the following amounts:
The result of this step is the adjusted taxable income of the company for the *base year.
45-330(4)
(Repealed by No 142 of 2003)
45-330(5)
(Repealed by No 142 of 2003)
SECTION 45-335 45-335 WORKING OUT YOUR ADJUSTED WITHHOLDING INCOME
Your adjusted withholding income for the *base year is:
reduced by:
Your adjusted tax on your *adjusted taxable income, or on your *adjusted withholding income, for the *base year is worked out as follows: Method statement
Step 1.
The income tax payable on your *adjusted taxable income, or on your *adjusted withholding income, for the *base year is worked out disregarding any *tax offset under:
Step 2.
The *Medicare levy payable on your *adjusted taxable income, or on your *adjusted withholding income, for the *base year is worked out disregarding sections 8B, 8C, 8D, 8E, 8F and 8G of the Medicare Levy Act 1986 (which increase Medicare levy in certain cases).
Step 3.
The amount (if any) that you would have been liable to pay for the *base year in respect of an *accumulated HELP debt if your taxable income for the base year had been your *adjusted taxable income, or your *adjusted withholding income, for that year is worked out.
Step 3AAA.
The amount (if any) that you would have been liable to pay for the *base year in respect of an *accumulated VETSL debt if your taxable income for the base year had been your *adjusted taxable income, or your *adjusted withholding income, for that year is worked out.
Step 3AA.
The amount (if any) that you would have been liable to pay for the *base year in respect of an *accumulated SSL debt if your taxable income for the base year had been your *adjusted taxable income, or your *adjusted withholding income, for that year is worked out.
Step 3AB.
The amount (if any) that you would have been liable to pay for the *base year in respect of an *accumulated ABSTUDY SSL debt if your taxable income for the base year had been your *adjusted taxable income, or your *adjusted withholding income, for that year is worked out.
Step 3AC.
The amount (if any) that you would have been liable to pay for the *base year in respect of an *accumulated AASL debt if your taxable income for the base year had been your *adjusted taxable income, or your *adjusted withholding income, for that year is worked out.
Step 3A.
The amount (if any) that you would have been liable to pay for the *base year by way of an *FS assessment debt if your taxable income for the base year had been your *adjusted taxable income, or your *adjusted withholding income, for that year is worked out.
Step 4.
The results of steps 1, 2, 3, 3AAA, 3AA, 3AB, 3AC and 3A are added together. The result is your adjusted tax on your *adjusted taxable income, or on your *adjusted withholding income.
The Commissioner may work out your *benchmark instalment rate for an income year (the variation year ) if, under section 45-205, you choose an instalment rate to work out the amount of your instalment for an *instalment quarter in that year.
45-355(1A)
The Commissioner may work out your *benchmark tax for an income year (the variation year ) if, under paragraph 45-112(1)(b) or (c), the amount of your instalment for an *instalment quarter in an income year is worked out on the basis of your estimate of your *benchmark tax for that income year.
45-355(2)
The Commissioner may work out your *benchmark tax for an income year (the variation year ) if, under paragraph 45-115(1)(c), you estimate the amount of your annual instalment for that year.
SECTION 45-360 HOW COMMISSIONER WORKS OUT BENCHMARK INSTALMENT RATE 45-360(1)
Your benchmark instalment rate for the variation year is the percentage worked out to 2 decimal places (rounding up if the third decimal place is 5 or more) using the formula:
| Your *benchmark tax | × 100 | |
| Variation year instalment income |
However, your benchmark instalment rate is a nil rate if either component of the formula is nil.
45-360(2)
For the purposes of the formula in subsection (1):
variation year instalment income
means so much of your assessable income for the variation year as the Commissioner determines is *instalment income for that year.
SECTION 45-365 WORKING OUT YOUR BENCHMARK TAX
Benchmark tax if you had no withholding income
45-365(1)
Your benchmark tax is your *adjusted assessed tax (worked out under section 45-375) on your *adjusted assessed taxable income (worked out under section 45-370) for the variation year.
Benchmark tax if you have no-TFN contributions income
45-365(1A)
In working out the benchmark tax of a *complying superannuation fund, *non-complying superannuation fund or *RSA provider for the variation year, assume that the entity had no *no-TFN contributions income for the variation year and that the entity was not entitled to a *tax offset for the variation year under Subdivision 295-J of the Income Tax Assessment Act 1997.
Benchmark tax if you had withholding income
45-365(2)
However, your benchmark tax (as worked out under subsection (1)) is reduced if your assessable income for the variation year includes amounts in respect of *withholding payments.
45-365(3)
It is reduced (but not below nil) by the sum of:
(a) the total amount of the credits to which you are entitled for the variation year under section 18-15 (for amounts withheld from withholding payments made to you during the variation year); and
(b) the total amount of the credits to which you are entitled for the variation year under section 18-27 (for amounts paid under Division 13 in respect of amounts included in your assessable income under section 86-15 of the Income Tax Assessment Act 1997).
SECTION 45-370 WORKING OUT YOUR ADJUSTED ASSESSED TAXABLE INCOME FOR THE VARIATION YEAR 45-370(1)
Your adjusted assessed taxable income for the variation year is your taxable income for the year, reduced by any *net capital gain included in your assessable income for the year.
Exception: superannuation entities and net capital gains
45-370(2)
In working out the adjusted assessed taxable income , taxable income is not reduced by any *net capital gain in the case of:
(a) a *complying approved deposit fund or a *non-complying approved deposit fund for the variation year; or
(b) a *complying superannuation fund or a *non-complying superannuation fund for the variation year; or
(c) a *pooled superannuation trust for the variation year.
(d) (Repealed by No 70 of 2015)
Special rule for life insurance companies
45-370(3)
The adjusted assessed taxable income of a *life insurance company for the variation year is worked out as follows: Method statement
Step 1.
Recalculate the *ordinary class of the taxable income for the variation year on the basis that the assessable income that relates to the class did not include any *net capital gain.
Step 2.
Add to the step 1 result the *complying superannuation class of the taxable income for the variation year.
SECTION 45-375 45-375 ADJUSTED ASSESSED TAX ON ADJUSTED ASSESSED TAXABLE INCOME
Your adjusted assessed tax on your *adjusted assessed taxable income for the variation year is worked out as follows: Method statement
Step 1.
The income tax payable on your *adjusted assessed taxable income for the variation year is worked out disregarding any *tax offset under:
Step 2.
The *Medicare levy payable on your *adjusted assessed taxable income for the variation year is worked out disregarding sections 8B, 8C, 8D, 8E, 8F and 8G of the Medicare Levy Act 1986 (which increase Medicare levy in certain cases).
Step 3.
The amount (if any) that you would have been liable to pay for the variation year in respect of an *accumulated HELP debt if your taxable income for that year had been your *adjusted assessed taxable income for that year is worked out.
Step 3AAA.
The amount (if any) that you would have been liable to pay for the variation year in respect of an *accumulated VETSL debt if your taxable income for that year had been your *adjusted assessed taxable income for that year is worked out.
Step 3AA.
The amount (if any) that you would have been liable to pay for the variation year in respect of an *accumulated SSL debt if your taxable income for that year had been your *adjusted assessed taxable income for that year is worked out.
Step 3AB.
The amount (if any) that you would have been liable to pay for the variation year in respect of an *accumulated ABSTUDY SSL debt if your taxable income for that year had been your *adjusted assessed taxable income for that year is worked out.
Step 3AC.
The amount (if any) that you would have been liable to pay for the variation year in respect of an *accumulated AASL debt if your taxable income for that year had been your *adjusted assessed taxable income for that year is worked out.
Step 3A.
The amount (if any) that you would have been liable to pay for the variation year by way of an *FS assessment debt if your taxable income for that year had been your *adjusted assessed taxable income for that year is worked out.
Step 4.
The results of steps 1, 2, 3, 3AAA, 3AA, 3AB, 3AC and 3A are added together. The result is your adjusted assessed tax on your *adjusted assessed taxable income for the variation year.
Scope
45-400(1)
This section applies if you are a *quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax at the end of an *instalment quarter in an income year (the current year ).
Working out amount of instalment
45-400(2)
The amount of your instalment for that *instalment quarter which the Commissioner must work out and notify to you under paragraph 45-112(1)(a) is:
(a) the amount worked out in accordance with the table if it is positive; or
(b) otherwise - nil.
| Amount of quarterly instalment worked out on basis of GDP-adjusted notional tax | ||
| Item | If the instalment quarter is: | The amount of the instalment is: |
| 1 | the first in that income year for which you are liable to pay an instalment | 25% of your *GDP-adjusted notional tax |
| 2 | the second in that income year for which you are liable to pay an instalment | 50% of your *GDP-adjusted notional tax, reduced by the amount of your instalment for the earlier *instalment quarter in that income year |
| 3 | the third in that income year for which you are liable to pay an instalment | 75% of your *GDP-adjusted notional tax, reduced by the total of your instalments for earlier *instalment quarters in that income year |
| 4 | the fourth in that income year for which you are liable to pay an instalment | 100% of your *GDP-adjusted notional tax, reduced by the total of your instalments for earlier *instalment quarters in that income year |
Note:
Your instalments for earlier instalment quarters may have been worked out on a basis other than GDP-adjusted notional tax.
Amount reduced in circumstances specified by regulations
45-400(3)
In the circumstances (if any) specified by the regulations, the amount worked out in accordance with the table in subsection (2) is reduced by the amount worked out under the regulations.
45-400(4)
Without limiting subsection (3), the regulations may specify circumstances by:
(a) specifying the particular *instalment quarter to which the reduction applies; or
(b) specifying the kind of payers to whom the reduction applies.
45-400(5)
In working out, under subsection (2), the amount of your instalment for an *instalment quarter in an income year, assume that there had not been any reductions under subsection (3) for earlier instalment quarters in that year.
45-400(6)
(Repealed by No 27 of 2009)
45-400(7)
(Repealed by No 27 of 2009)
SECTION 45-402 WORKING OUT AMOUNT OF INSTALMENT - PAYERS OF 2 QUARTERLY INSTALMENTS 45-402(1)
This section applies if you are a *quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax at the end of an *instalment quarter in an income year (the current year ).
45-402(2)
If you are liable to pay an instalment for that *instalment quarter, the amount of that instalment which the Commissioner must work out and notify to you under paragraph 45-112(1)(a) is:
(a) the amount worked out in accordance with this section if it is positive; or
(b) otherwise - nil.
Amount of instalment
45-402(3)
Subject to subsections (4) to (6), the amount of that instalment is worked out in accordance with the following table:
| Amount of quarterly instalment | ||
| Item | If the *instalment quarter is: | the amount of the instalment is: |
| 1 | the third *instalment quarter in the income year | 75% of your *GDP-adjusted notional tax |
| 2 | the fourth *instalment quarter in the income year | 100% of your *GDP-adjusted notional tax, reduced by your instalment for earlier instalment quarter in that income year |
You receive instalment rate for the first time in second quarter
45-402(4)
If the Commissioner gives you an instalment rate for the first time during the second *instalment quarter in that income year, the amount of the instalment is worked out in accordance with the following table:
| Amount of quarterly instalment | ||
| Item | If the *instalment quarter is: | the amount of the instalment is: |
| 1 | the third *instalment quarter in the income year | 50% of your *GDP-adjusted notional tax |
| 2 | the fourth *instalment quarter in the income year | 75% of your *GDP-adjusted notional tax, reduced by your instalment for the earlier instalment quarter in that income year |
You receive instalment rate for the first time in third quarter
45-402(5)
If the Commissioner first gives you an instalment rate during the third *instalment quarter in that income year, the amount of the instalment is worked out in accordance with the following table:
| Amount of quarterly instalment | ||
| Item | If the *instalment quarter is: | the amount of the instalment is: |
| 1 | the third *instalment quarter in the income year | 25% of your *GDP-adjusted notional tax |
| 2 | the fourth *instalment quarter in the income year | 50% of your *GDP-adjusted notional tax, reduced by your instalment for the earlier instalment quarter in that income year |
You receive instalment rate for the first time in fourth quarter
45-402(6)
If the Commissioner first gives you an instalment rate during the fourth *instalment quarter in that income year, the amount of the instalment must be equal to 25% of your *GDP-adjusted notional tax.
SECTION 45-405 WORKING OUT YOUR GDP-ADJUSTED NOTIONAL TAX 45-405(1)
Except as provided by section 45-775, your GDP-adjusted notional tax is worked out in the same way as your *notional tax would be worked out for the purposes of working out an instalment rate if that instalment rate were to be given to you at the same time as notice of the amount of the instalment referred to in section 45-400 or 45-402 (as appropriate).
45-405(2)
However, for the purposes of subsection (1): (a) your *adjusted taxable income for the *base year; and (b) your *adjusted withholding income (if any) for the *base year;
are each increased in accordance with the formula:
| Original amount × (1 + GDP adjustment) |
45-405(3)
For the purposes of the formula in subsection (2):
original amount
means the amount that, apart from subsection (2), would be your *adjusted taxable income for the *base year, or your *adjusted withholding income for the *base year, as appropriate.
(a) the percentage (rounded to the nearest whole number, rounding down a number ending in .5) worked out using the following formula; or
(b) if the percentage worked out using the formula is negative - 0%:
45-405(4)
For the purposes of the formula in subsection (3):
sum of GDP amounts (current year)
means the sum of the *GDP amounts, for the *quarters in the last calendar year (the
later calendar year
) ending at least 3 months before the start of the current year, specified in the document referred to in subsection (6).
sum of GDP amounts (previous year)
means the sum of the *GDP amounts, for the *quarters in the calendar year (the
earlier calendar year
) before the later calendar year, specified in the document referred to in subsection (6).
45-405(5)
The GDP amount for a *quarter is the amount published by the Australian Statistician as the original gross domestic product at current prices for that quarter.
45-405(6)
The GDP adjustment must be worked out on the basis of the first document that: (a) is published by the Australian Statistician after the end of the later calendar year; and (b) sets out the *GDP amounts for all the *quarters in both the later calendar year and the earlier calendar year.
45-405(7)
To avoid doubt, subsections 45-325(4) and (5) also have effect for the purposes of working out your *GDP-adjusted notional tax.
45-405(8)
(Repealed by No 61 of 2020)
Reduced GDP adjustment for 2022-23 income year
45-405(9)
Despite subsections (3) and (6), if the current year is the 2022-23 income year, then for the purposes of the formula in subsection (2) the GDP adjustment is 2%.
Note:
This subsection will be repealed on 1 July 2027: see Part 2 of Schedule 5 to the Treasury Laws Amendment (Cost of Living Support and Other Measures) Act 2022.
[ CCH Note: S 45-405(9) will be repealed by No 14 of 2022, s 3 and Sch 5 item 3, effective 1 July 2027.]
Reduced GDP adjustment for 2023-24 income year
45-405(10)
Despite subsections (3) and (6), if the current year is the 2023-24 income year, then for the purposes of the formula in subsection (2) the GDP adjustment is 6%.
Note:
This subsection will be repealed on 1 July 2028: see Part 2 of Schedule 4 to the Treasury Laws Amendment (2023 Measures No. 2) Act 2023.
[ CCH Note: S 45-405(10) will be repealed by No 28 of 2023, s 3 and Sch 4 item 3, effective 1 July 2028.]
Subdivision 45-M - How amount of quarterly instalment is worked out on basis of your estimate of your benchmark tax SECTION 45-410 WORKING OUT AMOUNT OF INSTALMENT - PAYERS OF 4 QUARTERLY INSTALMENTS 45-410(1A)
This section applies if you are a *quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax at the end of an *instalment quarter in an income year (the current year ).
45-410(1)
For the purposes of paragraph 45-112(1)(b) or (c), the amount of your instalment for that *instalment quarter in an income year is:
(a) the amount worked out, in accordance with this section, on the basis of the estimate of your *benchmark tax for that income year that section 45-415 requires to be used, if that amount is positive; or
(b) otherwise - nil.
Note:
If the amount is negative, you can claim a credit under section 45-420.
First instalment quarter
45-410(2)
If the *instalment quarter is the first in that income year for which you are liable to pay an instalment, the amount is 25% of the estimate of your *benchmark tax.
Second instalment quarter
45-410(3)
If the *instalment quarter is the second in that income year for which you are liable to pay an instalment, the amount is worked out by subtracting:
from:
Third instalment quarter
45-410(4)
If the *instalment quarter is the third in that income year for which you are liable to pay an instalment, the amount is worked out using this method statement. Method statement
Step 1.
The total of your instalments under section 45-112 for earlier *instalment quarters in that income year is subtracted from 75% of the estimate of your *benchmark tax.
Step 2.
If you were entitled to claim a credit under section 45-420 for the second of those earlier *instalment quarters, the amount of the credit is added to the step 1 amount.
Fourth instalment quarter
45-410(5)
If the *instalment quarter is the fourth in that income year for which you are liable to pay an instalment, the amount is worked out using this method statement. Method statement
Step 1.
The total of your instalments under section 45-112 for earlier *instalment quarters in that income year is subtracted from the estimate of your *benchmark tax.
Step 2.
For each credit that you were entitled to claim under section 45-420 for any of those earlier *instalment quarters, the amount of the credit is added to the step 1 amount.
This section applies if you are a *quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax at the end of an *instalment quarter in an income year.
45-412(2)
If you are liable to pay an instalment for that quarter, the amount of that instalment for the purposes of paragraph 45-112(1)(b) or (c) is:
(a) the amount worked out, in accordance with this section, on the basis of the estimate of your *benchmark tax for that income year that section 45-415 requires to be used, if that amount is positive; or
(b) otherwise - nil.
Note:
If the amount is negative, you can claim a credit under section 45-420.
Instalment for third quarter
45-412(3)
Subject to subsections (5) to (9), the amount of the instalment for the third *instalment quarter in that year is 75% of the estimate of your *benchmark tax.
Instalment for fourth quarter
45-412(4)
Subject to subsections (5) to (9), the amount of the instalment for the fourth *instalment quarter in that year is worked out by subtracting:
(a) the amount of your instalment for the earlier instalment quarter in that year;
from:
(b) the estimate of your *benchmark tax.
You receive instalment rate for the first time in second quarter
45-412(5)
If the Commissioner gives you an instalment rate for the first time during the second *instalment quarter in the income year, the amount of the instalment for the third *instalment quarter in that year is 50% of the estimate of your *benchmark tax.
45-412(6)
If the Commissioner gives you an instalment rate for the first time during the second *instalment quarter in the income year, the amount of the instalment for the fourth instalment quarter in that year is worked out by subtracting:
(a) the amount of your instalment for the earlier instalment quarter in that year;
from:
(b) 75% of the estimate of your *benchmark tax.
You receive instalment rate for the first time in third quarter
45-412(7)
If the Commissioner gives you an instalment rate for the first time during the third *instalment quarter in the income year, the amount of the instalment for the third instalment quarter in that year is 25% of the estimate of your *benchmark tax.
45-412(8)
If the Commissioner gives you an instalment rate for the first time during the third *instalment quarter in the income year, the amount of the instalment for the fourth instalment quarter in that year is worked out by subtracting:
(a) the amount of your instalment for the earlier instalment quarter in that year;
from:
(b) 50% of the estimate of your *benchmark tax.
You receive instalment rate for the first time in fourth quarter
45-412(9)
If the Commissioner gives you an instalment rate for the first time during the fourth *instalment quarter in the income year, the amount of the instalment for that quarter is 25% of the estimate of your *benchmark tax.
SECTION 45-415 ESTIMATING YOUR BENCHMARK TAX 45-415(1)
If you choose under paragraph 45-112(1)(b) to work out the amount of your instalment for an *instalment quarter in an income year on the basis of your estimate of your *benchmark tax for that income year, you must make the estimate on or before the day on which the instalment is due (disregarding subsection 45-112(3)).
45-415(2)
Having done so, you must use that estimate to work out the amount of that instalment. (You cannot later make another estimate for working out that amount.)
Note:
If your estimate leads you to pay an instalment that is too low, you may be liable to general interest charge under section 45-232.
45-415(3)
The Commissioner must also use that estimate to work out under this Subdivision the amount of each instalment:
(a) that you are liable to pay for a later *instalment quarter in that income year; and
(b) whose amount he or she must notify to you under paragraph 45-112(1)(c);
unless a later application of this subsection requires him or her to use a later estimate you make under subsection (1) of this section.
Note:
This means that if an estimate you have made is not appropriate for a later instalment quarter in the same income year, you should choose under paragraph 45-112(1)(b) to work out the amount of your instalment for that later quarter on the basis of a new estimate under this section. If the instalment that the Commissioner works out on the basis of the earlier estimate is too low, you may be liable to general interest charge under section 45-232.
SECTION 45-420 CREDIT IN CERTAIN CASES WHERE AMOUNT OF INSTALMENT IS NIL 45-420(1)
You are entitled to claim a credit if the amount of your instalment for an *instalment quarter (the current quarter ) in an income year is nil because the amount worked out for the current quarter in accordance with section 45-410 or 45-412 (as appropriate) is negative. The amount of the credit is equal to that amount, expressed as a positive amount.
45-420(2)
A claim for a credit must be made in the *approved form on or before the day on which the instalment for the current quarter is due.
Note:
How the credit is applied is set out in Division 3 of Part IIB.
Subdivision 45-N - How this Part applies to the trustee of a trust
SECTION 45-450 TRUSTEES TO WHOM A SINGLE INSTALMENT RATE IS GIVEN 45-450(1)
This Part applies to a trustee covered by any of items 4 to 8, and 12 and 13, of the table in section 9-1 of the Income Tax Assessment Act 1997.
45-450(2)
Such a trustee is called a single-rate trustee .
45-450(3)
This Part applies to the trustee of a trust that is a *public trading trust, for an income year as if the trustee had a taxable income for the income year equal to the net income of the trust for the income year.
Trustee previously assessed in respect of beneficiary
45-455(1)
This Part also applies for an income year (the current year ), to the trustee of a trust, in respect of a beneficiary of the trust, if for a previous income year the trustee of the trust was liable to be assessed, and to pay tax, under subsection 98(1) or (2) of the Income Tax Assessment Act 1936 in respect of that beneficiary.
45-455(2)
However, this Part does not apply for the current year to the trustee in respect of that beneficiary if:
(a) for that previous income year the trustee was liable to be assessed, and to pay tax, under subsection 98(1) of the Income Tax Assessment Act 1936 in respect of that beneficiary; and
(b) that beneficiary will no longer be under a legal disability, or it is reasonable to expect that he or she will no longer be under a legal disability, at the end of the current year.
Trustee previously assessed under section 99 or 99A
45-455(3)
This Part also applies for an income year to the trustee of a trust if for a previous income year the trustee was liable to be assessed, and to pay tax, under section 99 or 99A of the Income Tax Assessment Act 1936.
Multiple applications of this Part to the same trustee for the same income year
45-455(4)
The application of this Part for an income year, to the trustee of a trust, in respect of a beneficiary of the trust, because of subsection (1), is distinct from, and additional to, each of the following:
(a) the application of this Part for that income year, to the trustee of the trust, in respect of another beneficiary;
(b) the application of this Part for that income year, to the trustee of the trust, because of subsection (3);
(c) the application of this Part for that income year to a beneficiary of the trust.
45-455(5)
The application of this Part for an income year, to the trustee of a trust, because of subsection (3), is distinct from, and additional to, each of the following:
(a) the application of this Part for that income year, to the trustee of the trust, in respect of a beneficiary of the trust, because of subsection (1);
(b) the application of this Part for that income year to a beneficiary of the trust.
45-455(6)
A multi-rate trustee is a trustee to whom this Part applies because of this section.
The rest of this Subdivision applies to you if, and only if, you are a *multi-rate trustee. (It applies instead of Subdivisions 45-J and 45-K.)
Note:
Except as provided in the rest of this Subdivision or elsewhere, this Part applies according to its terms to a multi-rate trustee. For example, a multi-rate trustee can become an annual payer under Subdivision 45-E.
Your instalment income for a period is the whole of the trust's *instalment income for that period.
Subdivision 45-D (about quarterly payers) applies to you in the same way as it applies to an individual.
Note:
This means that a multi-rate trustee may pay instalments on the basis of GDP-adjusted notional tax if the trustee otherwise satisfies the relevant test that applies to an individual.
SECTION 45-470 WORKING OUT INSTALMENT RATE 45-470(1)
An instalment rate that the Commissioner gives you must be the percentage worked out to 2 decimal places (rounding up if the third decimal place is 5 or more) using the formula:
|
Your *notional tax
Base assessment instalment income |
× | 100 |
However, the instalment rate must be a nil rate if either component of the formula is nil.
45-470(2)
For the purposes of the formula in subsection (1):
base assessment instalment income
means so much of the assessable income of the trust, as worked out for the purposes of the *base assessment, as the Commissioner determines is *instalment income of the trust for the *base year.
45-470(3)
The base assessment is the latest assessment for the most recent income year for which an assessment has been made of the tax payable by you:
(a) under subsection 98(1) or (2) of the Income Tax Assessment Act 1936 in respect of the same beneficiary; or
(b) under section 99 or 99A of the Income Tax Assessment Act 1936;
as appropriate.
45-470(4)
However, if the Commissioner is satisfied that there is a later income year for which no tax is payable as mentioned in subsection (3), the base assessment is the latest return or other information from which an assessment of tax so payable for that income year would have been made.
45-470(5)
The base year is the income year to which the *base assessment relates.
SECTION 45-473 45-473 COMMISSIONER MUST NOTIFY YOU OF NOTIONAL TAX
When the Commissioner gives you the instalment rate, he or she must also notify you of the amount of your *notional tax, as worked out for the purposes of working out the instalment rate.
(Repealed by No 81 of 2016)
SECTION 45-475 WORKING OUT YOUR NOTIONAL TAX
Notional tax if no withholding income
45-475(1)
Your notional tax is your *adjusted tax (worked out under section 45-340) on your *adjusted taxable income (worked out under section 45-480) for the *base year.
Notional tax if trust has withholding income
45-475(2)
However, your notional tax (as worked out under subsection (1)) is reduced if the trust's assessable income for the *base assessment includes amounts in respect of *withholding payments (except *non-quotation withholding payments).
45-475(3)
It is reduced (but not below nil) by your *adjusted tax (worked out under section 45-340) on your *adjusted withholding income (worked out under section 45-485) for the *base year.
Commissioner may take into account actual and proposed changes to the law
45-475(4)
Subsections 45-325(4) and (5) apply for the purposes of working out your *notional tax under this section.
Your adjusted taxable income for the *base year is worked out using the formula:
| Adjusted net income
of the trust |
× | Relevant share | |
| Reduced net income of the trust |
45-480(2)
For the purposes of the formula in subsection (1):
adjusted net income of the trust
means the net income of the trust, as worked out for the purposes of the *base assessment and:
(a) reduced by any *net capital gain included in the trust's assessable income as so worked out; and
(b) increased by any deductions for *tax losses that were made in so working out that net income; and
(c) reduced by the amount of any tax loss, to the extent that it is *unutilised at the end of the *base year.
reduced net income of the trust
means the net income of the trust, as worked out for the purposes of the *base assessment and reduced by any *net capital gain included in the trust's assessable income as so worked out.
relevant share
means the *reduced beneficiary's share, or the *reduced no beneficiary's share, as appropriate, of the net income of the trust, as worked out for the purposes of the *base assessment.
SECTION 45-483 MEANING OF REDUCED BENEFICIARY'S SHARE AND REDUCED NO BENEFICIARY'S SHARE 45-483(1)
If the trustee of a trust is liable to be assessed, and to pay tax, for an income year under subsection 98(1) or (2) of the Income Tax Assessment Act 1936 in respect of a particular beneficiary, the reduced beneficiary's share of the net income is the amount on which the trustee is so liable to be assessed and to pay tax, except so much of that amount as is attributable to a *net capital gain included in the trust's assessable income for that income year.
45-483(2)
If the trustee of a trust is liable to be assessed, and to pay tax, for an income year under section 99 or 99A of the Income Tax Assessment Act 1936, the reduced no beneficiary's share of the net income is the amount on which the trustee is so liable to be assessed and to pay tax, except so much of that amount as is attributable to a *capital gain made by the trust during that income year.
SECTION 45-485 WORKING OUT YOUR ADJUSTED WITHHOLDING INCOME 45-485(1)
Your adjusted withholding income for the *base year is worked out using the formula:
| Net withholding income
of the trust |
× | Relevant share | |
| Reduced net income of the trust |
45-485(2)
For the purposes of the formula in subsection (1):
net withholding income of the trust
means:
reduced by:
reduced net income of the trust
has the meaning given by subsection 45-480(2).
relevant share
has the meaning given by subsection 45-480(2).
How Commissioner works out benchmark instalment rate and benchmark tax for a multi-rate trustee
SECTION 45-525 WHEN COMMISSIONER WORKS OUT BENCHMARK INSTALMENT RATE AND BENCHMARK TAX 45-525(1)
The Commissioner may work out your *benchmark instalment rate for an income year (the variation year ) if, under section 45-205, you choose an instalment rate to work out the amount of your instalment for an *instalment quarter in that year.
45-525(2)
The Commissioner may work out your *benchmark tax for an income year (the variation year ) if, under paragraph 45-112(1)(b) or (c), the amount of your instalment for an *instalment quarter in an income year is worked out on the basis of your estimate of your *benchmark tax for that income year.
45-525(3)
The Commissioner may work out your *benchmark tax for an income year (the variation year ) if, under paragraph 45-115(1)(c), you estimate the amount of your annual instalment for that year.
SECTION 45-530 HOW COMMISSIONER WORKS OUT BENCHMARK INSTALMENT RATE 45-530(1)
Your benchmark instalment rate for the variation year is the percentage worked out to 2 decimal places (rounding up if the third decimal place is 5 or more) using the formula:
| Your *benchmark tax | × | 100 | |
| Variation year instalment income |
However, your benchmark instalment rate is a nil rate if either component of the formula is nil.
45-530(2)
For the purposes of the formula in subsection (1):
variation year instalment income
means so much of the trust's assessable income for the variation year as the Commissioner determines is *instalment income for that year.
Benchmark tax if no withholding income
45-535(1)
Your benchmark tax is your *adjusted assessed tax (worked out under section 45-375) on the *reduced beneficiary's share, or the *reduced no beneficiary's share, as appropriate, of the net income of the trust for the variation year.
Benchmark tax if you had withholding income
45-535(2)
However, your benchmark tax (as worked out under subsection (1)) is reduced if the trust's assessable income for the variation year includes amounts in respect of *withholding payments.
45-535(3)
It is reduced (but not below nil) by the total amount of the credits to which you are entitled for the variation year under section 18-25 (for amounts withheld from the withholding payments).
The object of this Subdivision is to penalise an entity whose *tax position, so far as it relates to *PAYG instalments (and related credits and *general interest charge), is altered by a *scheme that is inconsistent with:
(a) the purposes and objects of this Part; or
(b) the purposes and objects of any relevant provisions of this Part;
(whether those purposes and objects are stated expressly or not).
45-595(2)
This Subdivision is not intended to apply to a straightforward use of structural features of this Part if that use is consistent with the purposes and objects mentioned in subsection (1).
45-595(3)
This Subdivision is to be interpreted and applied accordingly.
SECTION 45-597 45-597 EFFECT OF SUBDIVISION IN RELATION TO INSTALMENT MONTHS
This Subdivision has effect in relation to an *instalment month in the same way in which it has effect in relation to an *instalment quarter.
You are liable to pay the *general interest charge under section 45-620 if:
(a) you get a *tax benefit from a *scheme; and
(b) the tax benefit relates to a *component of your *tax position for an income year, and that component is covered by section 45-610; and
(c) having regard to the matters referred to in subsection (3), it would be concluded that an entity that entered into or carried out the scheme (or part of it) did so for the sole or dominant purpose of:
(i) an entity (whether you, that entity or another entity) getting one or more tax benefits from the scheme; or
(ii) 2 or more entities (whether or not including you or that entity) each getting one or more tax benefits from the scheme.
45-600(2)
It does not matter:
(a) whether or not you entered into or carried out the *scheme (or part of it); or
(b) whether the entity that entered into or carried out the scheme (or part of it) did so alone or together with one or more others; or
(c) whether the scheme (or any part of it) was entered into or carried out inside or outside Australia; or
(d) whether or not the *tax benefit you got is of the same kind as a tax benefit mentioned in paragraph (1)(c).
Matters to be considered in determining purpose of scheme
45-600(3)
In considering an entity's purpose in entering into or carrying out a *scheme (or part of one), have regard to these matters:
(a) the manner in which the scheme or part was entered into or carried out;
(b) the form and substance of the scheme, including:
(i) the legal rights and obligations involved in the scheme; and
(ii) the economic and commercial substance of the scheme;
(c) the purposes and objects of this Part and of any relevant provisions of this Part (whether those purposes and objects are stated expressly or not);
(d) the timing of the scheme;
(e) the period over which the scheme was entered into and carried out;
(f) the effect that this Act would have in relation to the scheme apart from this Subdivision;
(g) any change in your financial position that has resulted from the scheme, or may reasonably be expected to result from it;
(h) any change that has resulted from the scheme, or may reasonably be expected to result from it, in the financial position of an entity that has or had a connection or dealing with you, whether the connection or dealing is or was of a family, business or other nature;
(i) any other consequence for you, or for such an entity, of the scheme having been entered into or carried out;
(j) the nature of the connection between you and such an entity, including the question whether the dealing is or was at *arm's length.
GIC is payable on each of 2 or more tax benefits
45-600(4)
If you get 2 or more *tax benefits from the *scheme, this section has a separate application to each of them.
This section describes how to work out whether you get a tax benefit from a *scheme and, if so, the amount of the tax benefit.
45-605(2)
First, determine your actual *tax position for an income year (apart from this Subdivision).
45-605(3)
Next, determine your *hypothetical tax position for the same income year (apart from this Subdivision).
45-605(4)
Then compare each *component of the 2 positions. If the amount of that component of the actual *tax position is lower than the amount of that component of the *hypothetical tax position, the difference between the 2 amounts is a tax benefit that you get from the *scheme.
Note 1:
The difference between the 2 amounts is not a tax benefit to the extent that it is attributable to certain things for which the income tax law expressly provides. See section 45-635.
Note 2:
An entity may get 2 or more tax benefits from the same scheme. One reason is that the scheme may affect 2 or more components of the entity's tax position for an income year. Another reason is that the scheme may affect the tax position for 2 or more income years.
SECTION 45-610 45-610 WHAT IS YOUR TAX POSITION FOR AN INCOME YEAR?
Your tax position for an income year consists of a number of components . The table sets out each component, and how to work out the amount of the component.
| Components of your tax position that relate to PAYG instalments and credits | ||||
| Item | Each of these is a component : | The amount of that component is: | ||
| 1 | Your instalment for each *instalment quarter in the income year is a quarterly instalment component . | The amount worked out as follows: | ||
| (a) | if you are liable to pay an instalment for that instalment quarter - the amount of the instalment; or | |||
| (b) | if for any reason you are not liable to pay an instalment for that instalment quarter - nil (even if you are an *annual payer or a *quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax); or | |||
| (c) | if you are entitled to claim a credit for that instalment quarter under section 45-420 (because the instalment for that quarter is to be worked out on the basis of your estimated benchmark tax) - the amount of the credit (expressed as a negative amount). | |||
| 2 | Your annual instalment for the income year is the annual instalment component . | The amount worked out as follows: | ||
| (a) | if you are liable to pay an annual instalment for the income year - the amount of the instalment; or | |||
| (b) | if for any reason you are not liable to pay an annual instalment for the income year - nil (even if you are a *quarterly payer). | |||
| 3 | A variation credit component is a credit arising under section 45-215 because the amount of your instalment for an *instalment quarter in the income year is to be worked out using an instalment rate you chose under section 45-205. | The amount worked out as follows: | ||
| (a) | if you are entitled to the credit - the amount of the credit (expressed as a negative amount); or | |||
| (b) | otherwise - nil. | |||
| 4 | A variation GIC component is the *general interest charge you are liable to pay under: | The amount worked out as follows: | ||
| (a) | subsection 45-230(2) (varied instalment rate); or | (a) | if you are liable to pay the charge - the amount of the charge; or | |
| (b) | subsection 45-232(2) (estimated benchmark tax); or | (b) | otherwise - nil. | |
| (c) | subsection 45-235(2) or (3) (annual instalment); | |||
| because of how your instalment for an *instalment quarter in the income year, or for the income year, was worked out. |
Example:
A scheme results in X Pty Ltd being able to choose to be an annual payer for the 2000-01 income year.
The following table shows the actual tax position of X Pty Ltd for that year, and also its hypothetical tax position as defined in section 45-615. X Pty Ltd has got 4 tax benefits from the scheme: one for each of the 4 instalment quarters.
| 2000-01 income year | ||
| For this component: | The amount of that component of the actual tax position is: | The amount of that component of the hypothetical tax position is: |
| Quarterly instalment component for first instalment quarter | nil | $3,000 |
| Quarterly instalment component for second instalment quarter | nil | $4,000 |
| Quarterly instalment component for third instalment quarter | nil | $3,000 |
| Quarterly instalment component for fourth instalment quarter | nil | $2,000 |
| Annual instalment component | $12,000 | nil |
Your hypothetical tax position for an income year is what would have been, or what could reasonably be expected to have been, your *tax position for the income year if the *scheme had not been entered into or carried out.
You are liable to pay the *general interest charge on twice the *tax benefit mentioned in paragraph 45-600(1)(a).
Note 1:
To the extent that you also got a tax detriment from the scheme, you get a credit: see section 45-625.
Note 2:
In special circumstances the Commissioner can remit some or all of the general interest charge: see section 45-640.
45-620(2)
You are liable to pay the charge for each day in the period that:
(a) started at the beginning of the day by which your instalment for the period mentioned in the applicable item of the table in section 45-610 was due to be paid, or would have been due to be paid if you had been liable to pay an instalment for that period; and
(b) finishes at the end of the day on which your assessed tax for the income year is due to be paid.
45-620(3)
The Commissioner must give you written notice of the *general interest charge to which you are liable under subsection (1). You must pay the charge within 14 days after the notice is given to you.
45-620(4)
If any of the *general interest charge to which you are liable under subsection (1) remains unpaid at the end of the 14 days referred to in subsection (3), you are also liable to pay the general interest charge on the unpaid amount for each day in the period that:
(a) starts at the end of those 14 days; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) the unpaid amount;
(ii) general interest charge on the unpaid amount.
SECTION 45-625 CREDIT IF YOU ALSO GOT A TAX DETRIMENT FROM THE SCHEME 45-625(1)
You are entitled to a credit if:
(a) you are liable to pay *general interest charge under section 45-620 because you got one or more *tax benefits from the *scheme; and
(b) the Commissioner is satisfied that:
(i) you got a *tax detriment from the scheme; and
(ii) the tax detriment relates to a *component of your *tax position for an income year, and that component is covered by section 45-610.
(It does not matter whether that income year is the same as the one referred to in section 45-600.)
Note:
How the credit is applied is set out in Division 3 of Part IIB.
45-625(2)
The credit is equal to the *general interest charge on twice the amount of the *tax detriment for each day in the period that:
(a) started at the beginning of the day by which your instalment for the period mentioned in the item of the table in section 45-610 that applies for the purposes of working out the amount of the tax detriment:
(i) was due to be paid; or
(ii) would have been due to be paid if you had been liable to pay an instalment for that period; and
(b) finishes at the end of the day on which your assessed tax for the income year is due to be paid.
45-625(3)
However, the credit cannot exceed the total *general interest charge you are liable to pay under section 45-620 because you got one or more *tax benefits from the *scheme.
Credit for each of 2 or more tax detriments
45-625(4)
If you get 2 or more *tax detriments from the scheme, subsections (1) and (2) have a separate application to each of them. However, the total of the credits cannot exceed the total *general interest charge referred to in subsection (3).
This section describes how to work out whether you get a tax detriment from a *scheme and, if so, the amount of the tax detriment.
45-630(2)
First, determine your actual *tax position for an income year (apart from this Subdivision).
45-630(3)
Next, determine your *hypothetical tax position for the same income year (apart from this Subdivision).
45-630(4)
Then compare each *component of the 2 positions. If the amount of that component of the actual *tax position is higher than the amount of that component of the *hypothetical tax position, the difference between the 2 amounts is a tax detriment that you get from the *scheme.
Example:
In the fact situation in the example in section 45-610, X Pty Ltd gets a tax detriment from the scheme for the annual instalment component of its tax position for the income year.
Note 1:
The difference between the 2 amounts is not a tax detriment to the extent that it is attributable to certain things for which the income tax law expressly provides. See section 45-635.
Note 2:
An entity may get 2 or more tax detriments from the same scheme. One reason is that the scheme may affect 2 or more components of the entity's tax position for an income year. Another reason is that the scheme may affect the tax position for 2 or more income years.
SECTION 45-635 NO TAX BENEFIT OR DETRIMENT RESULTS FROM CHOICE FOR WHICH INCOME TAX LAW EXPRESSLY PROVIDES
Choice under the income tax law generally
45-635(1)
The difference between the 2 amounts referred to in subsection 45-605(4) or 45-630(4) is not a *tax benefit or *tax detriment if there would have been no difference between the 2 amounts but for one or more matters covered by subsection (3).
45-635(2)
The difference between the 2 amounts is not a *tax benefit or *tax detriment to the extent that the difference between the 2 amounts would have been less but for one or more matters covered by subsection (3).
45-635(3)
This subsection covers:
(a) an entity making an agreement, choice, declaration, election or selection; or
(b) an entity giving a notice or exercising an option;
for which this Act expressly provides. However, this subsection does not cover an entity doing such a thing under:
(c) Subdivision 126-B (about CGT roll-overs involving certain companies in the same wholly-owned group) of the Income Tax Assessment Act 1997; or
(d) Subdivision 170-B of that Act (about transferring a net capital loss between certain companies in the same wholly-owned group).
Matters excluded in applying subsection (1) or (2)
45-635(4)
Subsection (1) or (2) does not apply to a matter covered by subsection (3) if an entity entered into or carried out the *scheme (or part of it) for the sole or dominant purpose of creating a circumstance or state of affairs whose existence is necessary for the entity referred to in subsection (3):
(a) to make the agreement, choice, declaration, election or selection; or
(b) to give the notice or exercise the option.
Choice under some CGT provisions
45-635(5)
The difference between the 2 amounts is not a *tax benefit or *tax detriment if:
(a) there would have been no difference between the 2 amounts but for one or more matters covered by subsection (7); and
(b) the *scheme consisted wholly of that matter or those matters.
45-635(6)
Also, the difference between the 2 amounts is not a *tax benefit or *tax detriment to the extent that the difference between the 2 amounts would have been less but for one or more matters covered by subsection (7), but only if the *scheme consisted wholly of that matter or those matters.
45-635(7)
This subsection covers:
(a) a choice made under Subdivision 126-B (about CGT roll-overs involving certain companies in the same wholly-owned group) of the Income Tax Assessment Act 1997; or
(b) an agreement made under Subdivision 170-B of that Act (about transferring a net capital loss between certain companies in the same wholly-owned group);
The Commissioner may, if he or she is satisfied that because special circumstances exist it would be fair and reasonable to do so, remit the whole or any part of any *general interest charge payable under section 45-620.
45-640(2)
If the Commissioner does so, section 45-625 (about credits for tax detriments from schemes) applies, and is taken always to have applied, as if the remitted amount had never been payable.
This Subdivision allows the members of a consolidated group to be treated as a single entity for the purposes of Pay as you go (PAYG) instalments. Generally, the head company of the group is the entity liable to pay PAYG instalments.
The PAYG instalments provisions in this Part apply to the head company in much the same way as they apply to any other company. However, the operation of some of these provisions is modified by this Subdivision.
This Subdivision also contains special rules to deal with changes in the membership of the group.
Note 1:
Subdivision 45-R contains special rules that apply to members of a consolidated group before they are treated as a single entity for the purposes of this Part. It also contains special rules that affect the operation of this Subdivision (see sections 45-880 and 45-885).
Note 2:
Subdivision 45-S extends the operation of this Subdivision so that it can apply to members of a MEC group. It contains modifications of this Subdivision for the purposes of that extended operation.
SECTION 45-703 EFFECT OF THIS SUBDIVISION AND SUBDIVISION 45-R IN RELATION TO MONTHLY PAYERS 45-703(1)
If:
(a) a company is the *head company of a *consolidated group; and
(b) the company is a *monthly payer;
this Subdivision and Subdivision 45-R have effect in relation to the company as the head company of the group in respect of an *instalment month in the same way in which they have effect in relation to a company that is a *quarterly payer as the head company of a consolidated group in respect of an *instalment quarter.
45-703(2)
If:
(a) an entity is a *subsidiary member of a *consolidated group; and
(b) the entity is a *monthly payer;
this Subdivision and Subdivision 45-R have effect in relation to the entity in respect of an *instalment month in the same way in which they have effect in relation to an entity that is a *quarterly payer in respect of an *instalment quarter.
45-703(3)
However, those effects are subject to any modifications set out in those Subdivisions.
Note:
Subdivision 45-S can also have effect in relation to a monthly payer because of the operation of this section and section 45-910.
Period during which Subdivision applies to head company
45-705(1)
Subject to sections 45-880 and 45-885, this Subdivision applies to a company as the *head company of a *consolidated group during the period:
(a) starting at the start of the *instalment quarter of the company determined under subsection (2), (3) or (4); and
(b) ending:
(i) at the end of the instalment quarter of the company determined under paragraph (5)(a) or (b); or
(ii) just before the instalment quarter of the company determined under paragraph (5)(c) or (d).
When the period begins - initial head company instalment rate
45-705(2)
This Subdivision starts to apply to a company as the *head company of a *consolidated group at the start of an *instalment quarter under this subsection if, during that quarter, the Commissioner gives the company (as that head company) the *initial head company instalment rate.
Note:
The operation of this subsection may be affected by section 45-885.
When the period begins - group created from MEC group
45-705(3)
This Subdivision starts to apply to a company as the *head company of a *consolidated group at the start of an *instalment quarter (the starting quarter ) under this subsection if all of the following conditions are satisfied:
(a) the consolidated group is *created from a *MEC group during the starting quarter;
(b) the company is the head company of the consolidated group when the consolidated group is created from the MEC group;
(c) either of the following applies:
(i) this Subdivision applied, in accordance with Subdivision 45-S, to the *provisional head company of the MEC group at the end of the previous instalment quarter;
(ii) the Commissioner gives the *initial head company instalment rate to the provisional head company of the MEC group during the starting quarter.
Note:
For the application of this Subdivision to a provisional head company of a MEC group: see section 45-915.
When the period begins - new head company
45-705(4)
This Subdivision starts to apply to a company as the *head company of a *consolidated group at the start of an *instalment quarter (the starting quarter ) under this subsection if all of the following conditions are satisfied:
(a) the company is an interposed company mentioned in subsection 615-30(2) of the Income Tax Assessment Act 1997;
(b) the company chooses under that subsection that the consolidated group is to continue in existence at and after the completion time mentioned in that subsection;
(c) the completion time occurs during the starting quarter;
(d) one of the following subparagraphs applies:
(i) this Subdivision applied to the original entity mentioned in that subsection (as the head company of the consolidated group) at the end of the previous instalment quarter;
(ii) the Commissioner gives the *initial head company instalment rate to the original entity mentioned in that subsection (as the head company of the consolidated group) during the starting quarter;
(iii) the consolidated group is *created from a *MEC group during the starting quarter and this Subdivision applied to the *provisional head company of the MEC group at the end of the previous instalment quarter;
(iv) the consolidated group is created from a MEC group during the starting quarter and the Commissioner gives the initial head company instalment rate to the provisional head company of the MEC group during the starting quarter.
When the period begins - modified timing for head company that is monthly payer
45-705(4A)
Subsection (4B) applies if:
(a) apart from subsection (4B), this Subdivision starts to apply to a company as the *head company of a *consolidated group at a particular time because of the operation of subsection (2), (3) or (4); and
(b) the company is a *monthly payer; and
(c) the Commissioner gave the *initial head company instalment rate as mentioned in subsection (2), subparagraph (3)(c)(ii), subparagraph (4)(d)(ii) or subparagraph (4)(d)(iv) in an *instalment month.
45-705(4B)
Treat subsection (2), (3) or (4) (as the case requires) as providing that this Subdivision starts to apply to the company as the *head company of the group at the start of the next *instalment month.
Note:
For the application of this Subdivision to a monthly payer, see section 45-703.
When the period ends
45-705(5)
This Subdivision stops applying to a company as the *head company of a *consolidated group at the earliest of the following times after the company becomes the head company:
(a) the end of the *instalment quarter during which the consolidated group ceases to exist (other than because a *MEC group is *created from the consolidated group);
(b) the end of the instalment quarter during which the Commissioner is notified of the creation of a MEC group from the consolidated group if the MEC group is created during that instalment quarter;
(c) just before the instalment quarter during which the Commissioner is notified of the creation of a MEC group from the consolidated group if the MEC group was created before that instalment quarter;
(d) just before the instalment quarter that includes the completion time mentioned in subsection 615-30(2) of the Income Tax Assessment Act 1997 where an interposed company mentioned in that subsection chooses under that subsection that the consolidated group is to continue in existence.
Note:
The operation of this subsection because of paragraph (a) may be affected by section 45-880.
45-705(6)
For the purposes of subsection (5), the Commissioner is notified of the creation of a *MEC group from a *consolidated group when the Commissioner receives a notice of the consolidation of the MEC group under subsection 719-40(1) of the Income Tax Assessment Act 1997.
45-705(7)
If this Subdivision stops applying to a company as the *head company of a *consolidated group just before an *instalment quarter under paragraph (5)(c), then, for the purposes of this Part, this Act has effect for the company and other *members of the group as if:
(a) the consolidated group had continued to exist until just before the start of that quarter; and
(b) the company were the head company of the group until just before the start of that quarter.
45-705(8)
To avoid doubt, this Subdivision does not apply to a company as the *head company of a *consolidated group for any time at all if:
(a) subsection (2), (3) or (4), and subsection (5), would, apart from this subsection, apply to the company; but
(b) the time at which this Subdivision would stop applying to the company under subsection (5) is before the time at which this Subdivision would start to apply to the company under subsection (2), (3) or (4).
45-705(9)
To avoid doubt, and apart from the operation of subsection (7), this Subdivision may apply to a company as the *head company of a *consolidated group at a time when the company is not in fact the head company of the group.
Note:
An example of this is when an interposed company becomes the new head company of a consolidated group. Under this section and section 45-740, this Subdivision may start applying to the company as if it had already become the head company when it is not yet such a company.
SECTION 45-710 45-710 SINGLE ENTITY RULE
If an entity is a *subsidiary member of a *consolidated group for any period during which this Subdivision applies to the *head company of the group:
(a) that entity; and
(b) any other subsidiary member of the group;
are taken for the purposes of this Part to be parts of that head company (rather than separate entities) during that period.
Note:
That means, amongst other things, the head company would be liable to pay instalments for that period as if the subsidiary members were parts of the head company.
If:
(a) the *head company of a *consolidated group is liable to pay an instalment for an *instalment quarter; and
(b) this Subdivision applies to the head company during that quarter;
then, despite subsection 45-61(2), the instalment is due on or before the 21st day of the month after the end of that quarter whether or not the head company is a *deferred BAS payer on that day.
45-715(2)
Subsection (3) applies if section 45-703 applies to the *head company of the *consolidated group (because it is a *monthly payer).
45-715(3)
Treat the reference in subsection (1) to subsection 45-61(2) as instead being a reference to subsection 45-67(2).
SECTION 45-720 45-720 HEAD COMPANY CANNOT BE AN ANNUAL PAYER - MODIFICATION OF SECTION 45-140
Despite any other provisions in this Part, the *head company of a *consolidated group cannot choose to be an *annual payer under section 45-140 while this Subdivision applies to the head company.
Note:
You stop being an annual payer when this Subdivision starts applying to you as the head company of a consolidated group: see section 45-160.
SECTION 45-740 CHANGE OF HEAD COMPANY
Object
45-740(1)
The object of this section (except subsection (8)) is to ensure that, for the purposes of this Part, when a company becomes the new *head company of a *consolidated group:
(a) the company inherits the history of the former head company of the group; and
(b) the history of the new head company is effectively ignored.
45-740(2)
This section applies to a *head company of a *consolidated group if:
(a) the company is an interposed company mentioned in subsection 45-705(4) (an interposed company that chooses under subsection 615-30(2) of the Income Tax Assessment Act 1997 that the consolidated group is to continue in existence at and after the completion time mentioned in that subsection); and
(b) the conditions in subsection 45-705(4) are satisfied in relation to the interposed company (whether or not this Subdivision applies to the company as the head company of the group for any period of time).
45-740(3)
Everything that happened before the completion time in relation to the company (the original company ) that was the *head company of the *consolidated group immediately before the completion time:
(a) is taken to have happened in relation to the interposed company instead of in relation to the original company; and
(b) is taken to have happened in relation to the interposed company instead of what would (apart from this section) be taken to have happened in relation to the interposed company before the completion time;
just as if, at all times before the completion time:
(c) the interposed company had been the original company; and
(d) the original company had been the interposed company.
45-740(4)
To avoid doubt, subsection (3) also covers everything that, immediately before the completion time, was taken to have happened in relation to the original company because of:
(a) section 701-1 of the Income Tax Assessment Act 1997 (single entity rule); or
(b) section 701-5 of that Act (entry history rule); or
(c) section 703-75 of that Act (effects of an interposed company becoming the *head company of a *consolidated group); or
(d) section 719-90 of that Act (effects of a change of head company of a *MEC group); or
(e) section 45-710 in this Schedule (single entity rule for the purposes of this Part), including an application of that section under Subdivision 45-S in this Schedule; or
(f) this section; or
(g) section 45-920 in this Schedule (effects of a change of *provisional head company of a MEC group for the purposes of this Part); or
(h) one or more previous applications of any of the provisions covered by paragraphs (a) to (g).
45-740(5)
In addition, and without affecting subsection (3):
(a) an assessment of the original company for an income year that ends before the income year that includes the completion time; or
(b) an amendment of the assessment;
is taken to be something that had happened to the interposed company, whether or not the assessment or amendment is made before the completion time.
45-740(6)
This section has effect for the purposes of applying this Part to *members of the *consolidated group in relation to an *instalment quarter of the interposed company that ends after the completion time.
Note:
An assessment mentioned in subsection (5) may therefore be taken to be the base assessment of the interposed company for the purposes of this Part.
45-740(7)
Subsections (1) to (6) are to be disregarded in applying section 45-705 (about the application of this Subdivision to a company as the *head company of a *consolidated group).
Note:
For example, if the Commissioner has given an initial head company instalment rate to the original company during an earlier instalment quarter, the rate is not, despite this section, treated as if it had been given to the interposed company for the purposes of section 45-705. Subject to the other provisions in that section, this Subdivision therefore starts applying to the interposed company under subsection 45-705(4).
Special rule for the original company
45-740(8)
A provision of this Part that applies on an entity becoming a *subsidiary member of a *consolidated group does not apply to the original company when it is taken to have become such a member at the completion time as a result of section 703-70 of the Income Tax Assessment Act 1997.
Note:
Section 45-755 (the entry rule) therefore does not apply to the original company on the company becoming a subsidiary member of the consolidated group.
Despite any other provisions in this Part, an entity is liable to pay an instalment for an *instalment quarter or income year (as appropriate) during which the entity becomes a *subsidiary member of a *consolidated group if:
(a) this Subdivision applies to the *head company of the group at any time during that quarter or year (as appropriate); and
(b) the entity would otherwise be liable to pay an instalment for that quarter or year (as appropriate) if it had not become a subsidiary member of the group; and
(c) the entity becomes a subsidiary member of the group on a day other than the first day of that quarter or the first day of that year (as appropriate).
Note:
Under paragraph (b), this section could apply to an entity that, at the time of becoming a subsidiary member of the group, was not a subsidiary member of another consolidated group, or was a member of another consolidated group but this Subdivision did not apply to the head company of that other group at that time.
Modifications for a quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax
45-755(2)
Subsections (3) and (4) apply to the entity if:
(a) the entity would have been a *quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax at the end of the *instalment quarter mentioned in subsection (1) if it had not become a *subsidiary member of the group; and
(b) the amount of the instalment payable by the entity for that quarter would have been worked out under paragraph 45-112(1)(b); and
(c) that quarter is not the fourth instalment quarter in an income year.
45-755(3)
For the purposes of working out the amount of the instalment payable by the entity for that *instalment quarter, subsection 45-410(5) applies to the entity as if that quarter were the fourth instalment quarter in the income year for which the entity is liable to pay an instalment.
45-755(4)
For the purposes of working out the *acceptable amount of the entity's instalment for that instalment quarter, subsection 45-232(3) applies to the entity as if that quarter were the fourth instalment quarter in the income year for which the entity is liable to pay an instalment.
SECTION 45-760 EXIT RULE (FOR AN ENTITY THAT CEASES TO BE A SUBSIDIARY MEMBER OF A CONSOLIDATED GROUP) 45-760(1)
This section applies to an entity if all of the following conditions are satisfied:
(a) the entity ceases to be a *subsidiary member of a *consolidated group during an *instalment quarter of the *head company of the group;
(b) this Subdivision applies to the head company of the group during that instalment quarter;
(c) the entity does not, at the time it ceases to be a subsidiary member of the group, become:
(i) a subsidiary member of another consolidated group the head company of which is one to which this Subdivision applies at that time; or
(ii) a member (other than the *provisional head company) of a *MEC group the provisional head company of which is one to which this Subdivision applies, in accordance with Subdivision 45-S, at that time;
(d) this Part applies to the entity under section 45-10.
45-760(2)
This Part applies to the entity as if:
(a) the Commissioner had given the entity an instalment rate equal to the most recent instalment rate given to the *head company mentioned in paragraph (1)(a) before the end of the *instalment quarter mentioned in that paragraph; and
(b) the entity were a *quarterly payer who pays on the basis of instalment income at the end of that instalment quarter, and of each subsequent instalment quarter, until:
(i) if the Commissioner first gives the entity an instalment rate worked out on the basis of the *base assessment covered by subsection (3) during the first instalment quarter of an income year - immediately before the end of that first instalment quarter; or
(ii) if that rate is given to the entity during any other instalment quarter of an income year - immediately after the end of the last instalment quarter of that year.
45-760(3)
This section only covers the first *base assessment of the entity for an income year that is, or includes, a period after the entity ceases to be a *subsidiary member of the group.
This section applies if any of the following changes (the membership change ) occurs in relation to a *consolidated group while this Subdivision applies to the *head company of the group:
(a) an entity becomes a *subsidiary member of the group or a number of entities become subsidiary members of the group;
(b)an entity ceases to be a subsidiary member of the group or a number of entities cease to be subsidiary members of the group.
45-775(2)
If the Commissioner, having regard to the object of this Part and the membership change, is of the opinion that it would be reasonable to do so, the Commissioner may work out:
(a) an instalment rate that is higher, or lower, than the most recent instalment rate given by the Commissioner to the *head company under section 45-15; or
(b) an amount of *GDP-adjusted notional tax that is higher, or lower, than the amount of GDP-adjusted notional tax worked out for the purposes of the most recent amount of instalment notified by the Commissioner to the head company under paragraph 45-112(1)(a).
45-775(3)
The new instalment rate or amount of *GDP-adjusted notional tax must be a rate or amount that, in the opinion of the Commissioner, is reasonable having regard to the object of this Part and the membership change.
Note 1:
Subdivision 45-J does not apply for the purpose of working out an instalment rate under this section.
Note 2:
Section 45-405 does not apply for the purpose of working out an amount of GDP-adjusted notional tax under this section.
Additional applications of subsection (2)
45-775(4)
If, after exercising the power in relation to the membership change under subsection (2) for the first time, and on the basis of an assessment (including an amendment) of the *head company for the income year in which the change occurs, or for an earlier year, the Commissioner has worked out:
(a) another instalment rate under section 45-320 for the company (whether or not the Commissioner has given that rate to the company); or
(b) another amount of *GDP-adjusted notional tax under section 45-405 for the company (whether or not the Commissioner has notified the company an amount of instalment based on that other amount);
the Commissioner may again exercise the power under subsection (2) in relation to the membership change, as if:
(c) the rate mentioned in paragraph (a) were the most recent instalment rate mentioned in paragraph (2)(a); and
(d) the amount of GDP-adjusted notional tax mentioned in paragraph (b) were the amount of GDP-adjusted notional tax worked out for the purposes of the most recent amount of instalment that is mentioned in paragraph (2)(b).
45-775(5)
To avoid doubt, in relation to the membership change, the Commissioner:
(a) may exercise the power under subsection (2) by applying subsection (4) more than once; but
(b) must not exercise that power more than once in relation to a particular instalment rate mentioned in paragraph (4)(a) or a particular amount of *GDP-adjusted notional tax mentioned in paragraph (4)(b).
This Subdivision deals with the application of this Part to members of a consolidated group after the group has come into existence but before the members are treated as a single entity for the purposes of this Part.
This Subdivision also contains special rules in relation to the application of Subdivision 45-Q to members of a consolidated group in these circumstances:
Note:
Subdivision 45-S extends the operation of this Subdivision so that it can apply to members of a MEC group. It contains modifications of this Subdivision for the purposes of that extended operation.
SECTION 45-855 45-855 SECTION 701-1 DISREGARDED FOR CERTAIN PURPOSES
If:
(a) an amount is required to be worked out for the purpose of determining the *instalment income of an entity that is a *member of a *consolidated group for a period that is all or a part of a *consolidation transitional year for the entity; and
(b) the period ends before Subdivision 45-Q starts to apply, because of subsection 45-705(2) or subparagraph 45-705(3)(c)(ii), (4)(d)(ii) or (iv), to the *head company of the group;
that amount must be worked out without regard to any application of section 701-1 of the Income Tax Assessment Act 1997 to the entity in relation to the period.
Different instalment period - instalment quarter
45-860(1)
If:
(a) but for Subdivision 45-Q, a *subsidiary member of a *consolidated group would be liable to pay an instalment for an *instalment quarter of the subsidiary member that includes the starting time; and
(b) that quarter starts before the start of the instalment quarter of the *head company of the group that includes the starting time;
then, despite section 45-710, the subsidiary member is liable to pay an instalment for that quarter.
Different instalment period - income year
45-860(2)
If:
(a) but for Subdivision 45-Q, a *subsidiary member of a *consolidated group would be liable to pay an annual instalment for an income year of the subsidiary member that includes the starting time; and
(b) that year ends before the end of the income year of the *head company of the group that includes the starting time;
then, despite section 45-710, the subsidiary member is liable to pay an instalment for that year.
Assumptions for working out amount of instalment
45-860(3)
The amount of the instalment must be worked out on the following assumptions:
(a) that the *instalment quarter or income year of the *subsidiary member (as appropriate) consists only of the period that is the part of the quarter or year occurring before the starting time;
(b) that an amount required to be worked out for the purpose of determining the *instalment income of the subsidiary member for that period is worked out under section 45-855.
45-860(4)
For the purposes of this section, the starting time is the time at which Subdivision 45-Q starts to apply to the *head company of the group because of subsection 45-705(2) or subparagraph 45-705(3)(c)(ii), (4)(d)(ii) or (iv).
When the Commissioner makes an assessment:
(a) of the income tax that the *head company of a *consolidated group is liable to pay for a *consolidation transitional year for the head company; or
(b) that no income tax is payable by the head company for that year;
the head company is, in addition to any credit to which it is entitled under section 45-30 for that year, entitled to a credit in relation to instalments payable by an entity that is a *subsidiary member of the group at any time during that year.
45-865(2)
The credit is equal to:
(a) the sum of so much of each instalment payable by the entity (even if it has not paid it) for an *instalment quarter of a *consolidation transitional year for the entity, or for that year, as is reasonably attributable to so much of that quarter or year:
(i) which is, or is included in, the consolidation transitional year for the *head company; and
minus
(ii) during which the entity is a *subsidiary member of the group;
(b) the sum of so much of each credit that the entity has claimed under section 45-215 or 45-420 for each instalment quarter covered by paragraph (a) as is reasonably attributable to:
(i) for a credit under section 45-215 - so much of the preceding instalment quarters of that consolidation transitional year for the entity which is covered by subparagraphs (a)(i) and (ii); or
(ii) for a credit under section 45-420 - so much of that instalment quarter and the preceding instalment quarters of that consolidation transitional year for the entity which is covered by subparagraphs (a)(i) and (ii).
45-865(3)
To avoid doubt, if:
(a) during the *instalment quarter or the *consolidation transitional year mentioned in paragraph (2)(a), the entity is a *subsidiary member of:
(i) 2 or more *consolidated groups; or
(ii) one or more consolidated groups and one or more *MEC groups; and
(b) an amount is taken into account under that paragraph or paragraph (2)(b) in working out the credit to which the *head company of one of the groups is entitled under subsection (1);
that amount is not to be taken into account in working out the credit to which the head company of another of those groups is entitled under that subsection.
45-865(4)
A reference in subsection (3) to subsection (1) or paragraph (2)(a) or (b) includes a reference to that provision in its extended operation in relation to a *MEC group under Subdivision 45-S.
Note:
This section applies to members of a MEC group with the modifications set out in section 45-930.
Liability for the general interest charge
45-870(1)
Subject to subsections (3) and (4), the *head company of a *consolidated group is liable to pay the *general interest charge under this section for an *instalment quarter in a *consolidation transitional year for the head company if:
(a) the instalment payable by at least one *member of the group for that quarter is worked out:
(i) under paragraph 45-112(1)(b) or (c); or
(ii) by using an instalment rate under section 45-205; and
(b) the sum of instalments payable by the members of the group for that quarter, reduced by credits claimed by those members under section 45-215 or 45-420 for that quarter, is less than 17/80 of the head company's *benchmark tax for that consolidation transitional year.
Note:
17/80 of the head company's benchmark tax represents an amount that is 85% of one quarter of that benchmark tax.
Amount on which the charge is payable
45-870(2)
Subject to subsections (3) and (4), the *general interest charge is payable on the amount worked out in accordance with the following method statement (if the amount is a positive amount). Method statement
Step 1.
Work out the amount that is 1/4 of the *benchmark tax of the *head company for that *consolidation transitional year of that head company.
Step 2.
Work out the sum of instalments that would have been payable by all the *members of the group for that *instalment quarter of that *head company if none of the members had worked out its instalment for that quarter under paragraph 45-112(1)(b) or (c) or by using an instalment rate under section 45-205.
Step 3.
Work out the sum of instalments payable by all the *members of the group for that *instalment quarter, reduced by credits claimed by the members under section 45-215 or 45-420 for that quarter.
Step 4.
Reduce the lesser of the results of steps 1 and 2 by the result of step 3. The result of this step is the amount on which the *general interest charge is payable if it is a positive amount. No general interest charge is payable if the result of this step is nil or a negative amount.
Amounts of instalments or credits that are taken into account
45-870(3)
In working out an amount of instalment or credit for a *subsidiary member of the group for the purposes of any of the following provisions:
(a) paragraph (1)(b);
(b) step 2 or 3 of the method statement;
take into account only an amount of instalment or credit covered by that provision that is reasonably attributable to a period in that *consolidation transitional year of the *head company during which it is a subsidiary member of the group.
Members having different instalment quarters
45-870(4)
In working out an amount of instalment or credit for a *subsidiary member whose *instalment quarters differ from those of the *head company for the purposes of any of the following provisions:
(a) paragraph (1)(a) or (b);
(b) step 2 or 3 of the method statement;
a reference to an instalment quarter in a *consolidation transitional year of the head company in any of those provisions includes a reference to the last instalment quarter of that subsidiary member ending before the end of that instalment quarter of the head company.
45-870(5)
Subsections (6) and (7) apply if:
(a) the *head company of the *consolidated group is a *monthly payer at a time in an *instalment month (the current month ); and
(b) any of the other *members of the group (the subsidiary quarterly payers ) are *quarterly payers at a time in the *instalment quarter (the current quarter ) in which the current month starts.
45-870(6)
Apply the following rules:
(a) treat the reference in subsection (1) to an *instalment quarter as being a reference to the current month;
(b) treat the references in this section to that quarter (or that instalment quarter) as being references to the current month.
45-870(7)
Also apply the following rules, for the purposes of subsections (1) to (5):
(a) treat the subsidiary quarterly payers as *monthly payers for each *instalment month (a notional instalment month ) that starts (disregarding paragraph (6)(a)) in the current quarter;
(b) apply this section separately in relation to each of those notional instalment months;
(c) treat the amount of instalment or credit for a subsidiary quarterly payer in respect of a notional instalment month as being the extent to which the amount of instalment or credit for the subsidiary quarterly payer for the current quarter is attributable to that notional instalment month.
The *general interest charge under section 45-870 for an *instalment quarter in an income year is payable by the *head company for each day in the period that:
(a) started at the beginning of the day by which the instalment for that quarter was due to be paid; and
(b) finishes at the end of the day on which the head company's assessed tax for that income year is due to be paid.
45-875(2)
The Commissioner must give the *head company written notice of the *general interest charge. The head company must pay the charge within 14 days after the notice is given to the head company.
45-875(3)
If any of the *general interest charge remains unpaid at the end of the 14 days, the *head company is also liable to pay the general interest charge on the unpaid amount for each day in the period that:
(a) starts at the end of those 14 days; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) the unpaid amount;
(ii) general interest charge on the unpaid amount.
45-875(4)
The Commissioner may, if he or she is satisfied that because special circumstances exist it would be fair and reasonable to do so, remit the whole or any part of any *general interest charge payable under section 45-870.
This section applies to a company for which all of the following conditions are satisfied in relation to a particular time (the takeover time ):
(a) just before the takeover time, Subdivision 45-Q applied to the company as the *head company of a *consolidated group;
(b) at the takeover time, the company becomes a *wholly-owned subsidiary of a *member of another consolidated group or *MEC group;
(c) that other group is consolidated at or before the takeover time under section 703-50 or 719-50 of the Income Tax Assessment Act 1997;
(d) the Commissioner receives the choice (or notice) under that section for the consolidation of that other group not later than 28 days after the takeover time, or within such further period (if any) as the Commissioner allows;
(e) at the takeover time, Subdivision 45-Q (including that Subdivision as applied under Subdivision 45-S) does not apply to the head company or the *provisional head company of that other group.
45-880(2)
For the purposes of this Part only, this Act has effect in relation to the company and the other *members of the *consolidated group mentioned in paragraph (1)(a) (the preserved group ) as if, during the period covered by subsection (5):
(a) the preserved group had continued to exist as a consolidated group; and
(b) the company were still the *head company of the preserved group; and
(c) Subdivision 45-Q had continued to apply to the company as the head company of the preserved group; and
(d) an entity, while being a *subsidiary member of the preserved group, were not treated as a member of the group mentioned in paragraph (1)(b) (the new group ).
45-880(3)
Subsection (2) does not stop the company from being a member of the new group for the purposes of this Part during the period covered by subsection (5).
Note:
This means, for example, sections 45-855 and 45-860 apply to the head company as a member of the new group.
45-880(4)
However, for the purposes of applying section 45-855 to the company, a reference in that section to an application of section 701-1 of the Income Tax Assessment Act 1997 to the company in relation to the period mentioned in section 45-855 is taken to be:
(a) a reference only to an application of section 701-1 of that Act to thecompany as a member of the new group during that period; and
(b) not a reference to an application (because of subsection (2) of this section) of section 701-1 of that Act to the company as the *head company of the preserved group during that period.
45-880(5)
This subsection covers the period that starts from the start of the *instalment quarter of the company that includes the takeover time and ends at the earlier of the following times:
(a) the end of the instalment quarter of the company during which the company ceases to be a member of the new group;
(b) just before the instalment quarter of the company during which the Commissioner gives the *initial head company instalment rate to the *head company, or the *provisional head company, of the new group.
45-880(6)
The Commissioner may, on the application of the company made not later than 28 days after the takeover time, allow such extension of time for the purposes of paragraph (1)(d) as he or she considers appropriate.
45-880(7)
To avoid doubt, nothing in this section prevents the operation of section 45-755 or 45-760 to *members of the preserved group while it continues to exist under subsection (2).
This section applies to a company for which all of the following conditions are satisfied in relation to a particular time (the starting time ):
(a) just before the starting time, the company was a *subsidiary member of a *consolidated group, or a member of a *MEC group;
(b) just before the starting time, the consolidated group or MEC group was a mature group (see subsection (4));
(c) at the starting time, either of the following applies:
(i) the company ceases to be a subsidiary member of the consolidated group, or a member of the MEC group;
(ii) the group ceases to exist (otherwise than because a MEC group or consolidated group is *created from the group, or because its *head company or *provisional head company becomes a *wholly-owned subsidiary of a member of another mature group);
(d) at the starting time, the company is the head company of another consolidated group;
(e) within 28 days after the starting time, or within such further period (if any) as the Commissioner allows, the Commissioner receives the notice under section 703-58 of the Income Tax Assessment Act 1997 in relation to the choice to consolidate, at and after the starting time, that other consolidated group under section 703-50 of the Income Tax Assessment Act 1997.
45-885(2)
For the purposes of this Part:
(a) the instalment rate that the Commissioner is taken to have given to the company under paragraph 45-760(2)(a) has effect as if it were the *initial head company instalment rate for the company as the *head company of the *consolidated group mentioned in paragraph (1)(d); and
(b) an instalment rate that would otherwise be the initial head company instalment rate for the company as the head company of that consolidated group is not to be treated as that initial head company instalment rate.
Note:
This means, subject to the provisions in section 45-705, Subdivision 45-Q starts applying to the company as the head company of the consolidated group at the start of the instalment quarter that includes the starting time: see subsection (2) of that section and paragraph 45-760(2)(a).
45-885(3)
The Commissioner may, on the application of the company made within 28 days after the starting time, allow such extension of time for the purposes of paragraph (1)(e) as he or she considers appropriate.
Mature group
45-885(4)
For the purposes of this section, a *consolidated group or a *MEC group is a mature group at a particular time if:
(a) for a consolidated group - Subdivision 45-Q applies to its *head company at that time; or
(b) for a MEC group - Subdivision 45-Q, as applied under Subdivision 45-S, applies to its *provisional head company at that time.
This Subdivision sets out how this Part applies in relation to MEC groups and their members.
SECTION 45-905 45-905 OBJECTS OF SUBDIVISION
The objects of this Subdivision are to:
(a) extend the operation of this Part (except sections 45-705 and 45-740 and this Subdivision) so that it can apply in relation to *MEC groups and their members; and
(b) modify the rules in this Part for that extended operation so that they take account of the special characteristics of MEC groups.
SECTION 45-910 EXTENDED OPERATION OF PART TO COVER MEC GROUPS 45-910(1)
This Part (except sections 45-705 and 45-740 and this Subdivision) has effect in relation to members of a *MEC group in the same way in which it has effect in relation to *members of a *consolidated group.
45-910(2)
However, that effect is subject to the modifications set out in the following table and elsewhere in this Subdivision.
| Modifications of this Part | ||
| Item | A reference in this Part to: | Is taken to be a reference to: |
| 1 | a *consolidated group | a *MEC group |
| 2 | the *head company of a *consolidated group | the *provisional head company of a *MEC group |
| 3 | a *subsidiary member of a *consolidated group | a member (other than the *provisional head company) of a *MEC group |
Exceptions
45-910(3)
The modifications set out in the table do not apply to the following provisions:
(a) this Subdivision;
(b) subsection 45-30(4) (see section 45-930);
(c) (Repealed by No 12 of 2012)
(d) note 2 at the end of section 45-700;
(e) sections 45-705 and 45-740 (see sections 45-913, 45-915 and 45-920);
(f) subparagraphs 45-760(1)(c)(i) and (ii);
(g) the note at the end of section 45-850;
(h) sections 45-865 and 45-870 (see section 45-930);
(i) paragraphs (1)(b), (c), (d) and (e), and subsection (5), of section 45-880;
(j) paragraphs (1)(a), (b) and (c), and subsection (4), of section 45-885.
Note:
The provisions covered by paragraphs (d), (f), (g), (i) and (j) apply to members of a MEC group without any modifications.
SECTION 45-913 45-913 SECTIONS 45-705 AND 45-740 DO NOT APPLY TO MEMBERS OF MEC GROUPS
In applying Subdivision 45-Q to members of a *MEC group, the Subdivision has effect as if:
(a) section 45-705 had no effect and section 45-915 had effect instead; and
(b) section 45-740 had no effect and section 45-920 had effect instead.
Period during which Subdivision applies to provisional head company
45-915(1)
Subject to sections 45-880 and 45-885 (as applied under this Subdivision), Subdivision 45-Q applies to a company as the *provisional head company of a *MEC group during the period:
(a) starting at the start of the *instalment quarter of the company determined under subsection (2), (3) or (4); and
(b) ending:
(i) at the end of the instalment quarter of the company determined under paragraph (6)(a) or (b); or
(ii) just before the instalment quarter of the company determined under paragraph (6)(c).
Note:
The application of Subdivision 45-Q to the provisional head company is subject to the modifications set out in this section and elsewhere in this Subdivision.
When the period begins - initial head company instalment rate
45-915(2)
Subdivision 45-Q starts to apply to a company as the *provisional head company of a *MEC group at the start of an *instalment quarter under this subsection if, during that quarter, the Commissioner gives the company (as that provisional head company) the *initial head company instalment rate.
Note:
The operation of this subsection may be affected by section 45-885 (as applied under this Subdivision).
When the period begins - group created from consolidated group
45-915(3)
Subdivision 45-Q starts to apply to a company as the *provisional head company of a *MEC group at the start of an *instalment quarter (the starting quarter ) under this subsection if all of the following conditions are satisfied:
(a) during the starting quarter, the Commissioner is notified of the creation of the MEC group from a *consolidated group (see subsection (5));
(b) the company is the provisional head company of the MEC group when the Commissioner is so notified;
(c) either of the following applies:
(i) Subdivision 45-Q applied to the *head company of the consolidated group at the end of the previous instalment quarter;
(ii) the Commissioner gives the *initial head company instalment rate to the head company of the consolidated group during the starting quarter.
Note:
For the application of Subdivision 45-Q to a head company of a consolidated group: see section 45-705.
When the period begins - new provisional head company
45-915(4)
Subdivision 45-Q starts to apply to a company as the *provisional head company of a *MEC group at the start of an *instalment quarter (the starting quarter ) under this subsection if both of the following conditions are satisfied:
(a) the company is appointed as the provisional head company of the MEC group under subsection 719-60(3) of the Income Tax Assessment Act 1997 during the starting quarter;
(b) one of the following applies:
(i) Subdivision 45-Q applied to the former provisional head company of the MEC group at the end of the previous instalment quarter;
(ii) the Commissioner gives the *initial head company instalment rate to the former provisional head company of the MEC group during the starting quarter;
(iii) the Commissioner is notified during the starting quarter of the creation of the MEC group from a *consolidated group and Subdivision 45-Q applied to the *head company of the consolidated group at the end of the previous instalment quarter;
(iv) the Commissioner is notified during the starting quarter of the creation of the MEC group from a consolidated group and the Commissioner gives the initial head company instalment rate to the head company of the consolidated group during the starting quarter.
When the period begins - modified timing for provisional head company that is monthly payer
45-915(4A)
Subsection (4B) applies if:
(a) apart from subsection (4B), Subdivision 45-Q starts to apply to a company as the *provisional head company of a *MEC group at a particular time because of the operation of subsection (2), (3) or (4); and
(b) the company is a *monthly payer; and
(c) the Commissioner gave the *initial head company instalment rate as mentioned in subsection (2), subparagraph (3)(c)(ii), subparagraph (4)(b)(ii) or subparagraph (4)(b)(iv) in an *instalment month.
45-915(4B)
Treat subsection (2), (3) or (4) (as the case requires) as providing that Subdivision 45-Q starts to apply to the company as the *provisional head company of the *MEC group at the start of the next *instalment month.
Note:
For the application of this Subdivision to a monthly payer, see sections 45-703 and 45-910.
Notification of creation of MEC group from consolidated group
45-915(5)
For the purposes of subsections (3) and (4), the Commissioner is notified of the creation of a *MEC group from a *consolidated group when the Commissioner receives a notice of the consolidation of the MEC group under subsection 719-40(1) of the Income Tax Assessment Act 1997.
When the period ends
45-915(6)
Subdivision 45-Q stops applying to a company as the *provisional head company of a *MEC group at the earliest of the following times after the company becomes the provisional head company:
(a) the end of the *instalment quarter during which the MEC group ceases to exist (other than because a *consolidated group is *created from the MEC group);
(b) the end of the instalment quarter during which a consolidated group is created from the MEC group;
(c) just before the instalment quarter during which another company is appointed as the provisional head company of the MEC group under subsection 719-60(3) of the Income Tax Assessment Act 1997.
Note:
The operation of this subsection because of paragraph (a) may be affected by section 45-880 (as applied under this Subdivision).
45-915(7)
To avoid doubt, Subdivision 45-Q does not apply to a company as the *provisional head company of a *MEC group for any time at all if:
(a) subsection (2), (3) or (4), and subsection (6), would, apart from this subsection, apply to the company; but
(b) the time at which Subdivision 45-Q would stop applying to the company under subsection (6) is before the time at which that Subdivision would start to apply to the company under subsection (2), (3) or (4).
45-915(8)
To avoid doubt, Subdivision 45-Q may apply to a company as the *provisional head company of a *MEC group at a time when the company is not in fact the provisional head company of the group.
Note:
An example of this is when a company replaces another company as the provisional head company of a MEC group. Under this section and section 45-920, Subdivision 45-Q may start applying to the company as if it had already become the provisional head company when it is not yet such a company.
In applying section 45-710 to members of a *MEC group at a particular time, the company that is the *provisional head company of the group at that time must be assumed to be the *head company of the group at all times during the period:
(a) throughout which the group is in existence; and
(b) that is all or a part of the income year of the company that includes that particular time.
Object
45-920(1)
The object of this section (except subsection (9)) is to ensure that, for the purposes of this Part, when a company becomes the new *provisional head company of a *MEC group:
(a) the company inherits the history of the former provisional head company; and
(b) the history of the new provisional head company is effectively ignored.
45-920(2)
This section applies to a *provisional head company of a *MEC group (the new provisional head company ) that is appointed under subsection 719-60(3) of the Income Tax Assessment Act 1997 if one of the following conditions is satisfied:
(a) the conditions in subsection 45-915(4) are satisfied in relation to the new provisional head company (whether or not Subdivision 45-Q applies to the company as the provisional head company of the group for any period of time);
(b) the new provisional head company is so appointed during the *instalment quarter of the company in which the MEC group is *created from a *consolidated group and either:
(i) the Commissioner gives the *initial head company instalment rate to the *head company of the consolidated group during that instalment quarter; or
(ii) Subdivision 45-Q applied to the head company of the consolidated group at the end of the previous instalment quarter.
45-920(3)
Everything that happened before the starting time in relation to the company (the former company ) that was the *provisional head company of the *MEC group immediately before the starting time:
(a) is taken to have happened in relation to the new provisional head company instead of in relation to the former company; and
(b) is taken to have happened in relation to the new provisional head company instead of what would (apart from this section) be taken to have happened in relation to the new provisional head company before the starting time;
just as if, at all times before the starting time:
(c) the new provisional head company had been the former company; and
(d) the former company had been the new provisional head company.
45-920(4)
For the purposes of this section, the starting time is the time at which the *cessation event happened to the former company (the event that results in the appointment of the new provisional head company).
45-920(5)
To avoid doubt, subsection (3) also covers everything that, immediately before the starting time, was taken to have happened in relation to the former company because of:
(a)section 701-1 of the Income Tax Assessment Act 1997 (single entity rule); or
(b) section 701-5 of that Act (entry history rule); or
(c) section 703-75 of that Act (effects of an interposed company becoming the *head company of a *consolidated group); or
(d) section 719-90 of that Act (effects of a change of head company of a *MEC group); or
(e) section 45-710 in this Schedule (single entity rule for the purposes of this Part), including an application of that section under this Subdivision; or
(f) section 45-740 in this Schedule (effects of an interposed company becoming the head company of a consolidated group for the purposes of this Part); or
(g) this section; or
(h) one or more previous applications of any of the provisions covered by paragraphs (a) to (g).
45-920(6)
In addition, and without affecting subsection (3):
(a) an assessment of the former company for an income year that ends before the income year that includes the starting time; or
(b) an amendment of the assessment;
is taken to be something that had happened to the new provisional head company, whether or not the assessment or amendment is made before the starting time.
45-920(7)
This section has effect for the purposes of applying this Part to members of the *MEC group in relation to an *instalment quarter of the new provisional head company that ends after the starting time.
Note:
An assessment mentioned in subsection (6) may therefore be taken to be the base assessment of the new provisional head company for the purposes of this Part.
45-920(8)
Subsections (1) to (7) are to be disregarded in applying section 45-915 (about the application of Subdivision 45-Q to a company as the *provisional head company of a *MEC group).
Note:
For example, if the Commissioner has given an initial head company instalment rate to the former company during an earlier instalment quarter, the rate is not, despite this section, treated as if it had been given to the new provisional head company for the purposes of section 45-915. Subject to the other provisions in that section, Subdivision 45-Q therefore starts applying to the new provisional head company under subsection 45-915(4).
Special rule for the former company
45-920(9)
A provision of this Part that applies on an entity becoming a member (other than the *provisional head company) of a *MEC group does not apply to the former company when it becomes such a member at the starting time.
Note:
Section 45-755 (the entry rule, as applied under this Subdivision) therefore does not apply to the former company on the company becoming such a member of the MEC group.
In applying Subdivision 45-Q to members of a *MEC group for an *instalment quarter of the *provisional head company of the group in an income year of the provisional head company, the company is taken to be a *life insurance company for that quarter if:
(a) one or more life insurance companies are members of the group at any time during that quarter; or
(b) one or more life insurance companies were members of the group at any time during a previous instalment quarter of the company in that year.
SECTION 45-925 45-925 ADDITIONAL MODIFICATIONS OF SECTIONS 45-855 AND 45-860
In applying sections 45-855 and 45-860 to members of a *MEC group, those sections have effect as if, in addition to the modifications set out in the table in section 45-910:
(a) a reference in those sections to subsection 45-705(2) were a reference to subsection 45-915(2); and
(b) a reference in those sections to subparagraph 45-705(3)(c)(ii), (4)(d)(ii) or (iv) were a reference to subparagraph 45-915(3)(c)(ii), (4)(b)(ii) or (iv).
In applying sections 45-865 and 45-870, and subsection 45-30(4) (which is related to section 45-865), to members of a *MEC group, those provisions have effect as if:
(a) a reference in those provisions to a *consolidated group were a reference to a *MEC group; and
(b) a reference in those provisions to a MEC group were a reference to a consolidated group.
Note:
This means a reference in those provisions to the head company of a consolidated group has effect as if it were a reference to the head company of a MEC group. Similarly, a reference in those provisions to a subsidiary member of a consolidated group has effect as if it were a reference to a subsidiary member of a MEC group.
45-930(2)
However, the modifications in subsection (1) do not apply to subsection 45-865(4) and the note at the end of section 45-865.
Note:
This means subsection 45-865(4) and the note apply to members of a MEC group without any modifications.
SECTION 45-935 45-935 ADDITIONAL MODIFICATIONS OF SECTION 45-885
In applying section 45-885 to members of a *MEC group, that section has effect as if, in addition to the modifications set out in the table in section 45-910, it had been modified as set out in the following table:
| Modifications of section 45-885 | |||
| Item | Provision: | Modification: | |
| 1 | Paragraph 45-885(1)(e) | The paragraph is taken to have been replaced by the following paragraph: | |
| (e) | within 28 days after the starting time, or within such further period (if any) as the Commissioner allows, the Commissioner receives a notice under section 719-76 of the Income Tax Assessment Act 1997 in relation the consolidation of that other MEC group, at and after the starting time, under section 719-50 of the Income Tax Assessment Act 1997. | ||
| 2 | Subsection 45-885(2) (including the note at the end of the subsection) | A reference to paragraph 45-760(2)(a) is taken to be a reference to that paragraph as applied under this Subdivision | |
| 3 | The note at the end of subsection 45-885(2) | The reference to section 45-705 is taken to be a reference to section 45-915 |
The Commissioner must provide you with a tax receipt for an income year if you are an individual taxpayer and the total tax assessed to you for the income year is $100 or more (or such other amount as determined by the Commissioner from time to time).
The tax receipt must include information about how the total tax assessed to you for the income year is notionally used to finance different categories of Commonwealth government expenditure.
The tax receipt must also include information about the total amount of Commonwealth government debt, for the current and previous financial years, and the expected total amount of interest to be paid on that debt during the current financial year.
The Commissioner must give you a *tax receipt in respect of an income year if:
(a) the Commissioner is required to give you a notice of assessment in respect of the income year and has not previously given you a notice in respect of the income year; and
(b) you are an individual; and
(c) the amount of income tax you owe (asworked out under step 4 of subsection 4-10(3) of the Income Tax Assessment Act 1997) for the *financial year that corresponds to the income year is equal to or greater than:
(i) if subparagraph (ii) does not apply - $100; or
(ii) if the Commissioner has made a determination under subsection (2) - the amount specified in the determination; and
(d) the notice is given to you within the period of 18 months after the end of the income year.
70-5(2)
The Commissioner may, by legislative instrument, make a determination that specifies an amount for the purposes of subparagraph (1)(c)(ii).
70-5(3)
The *tax receipt must include the following information:
(a) your name;
(b) the amount mentioned in paragraph (1)(c);
(c) how the amount mentioned in paragraph (1)(c) is notionally used to finance different categories of Commonwealth government expenditure (other than expenditure that relates to amounts collected under the *GST law that are paid to the States and Territories);
(d) an estimate of the total face value of Commonwealth stock and securities on issue at the end of the previous *financial year;
(e) an estimate of the expected total face value of Commonwealth stock and securities on issue at the end of the financial year;
(f) the expected total interest to be paid during the financial year in respect of the Commonwealth stock and securities referred to in paragraph (e).
Note:
The allocation of how the total tax assessed to you is spent is a notional calculation and may not represent how the tax assessed to you is actually spent.
70-5(4)
For the purposes of determining the amounts in paragraphs (2)(d) to (f), the Commissioner must use the information in the budget economic and fiscal outlook report prepared for the purpose of section 10 of the Charter of Budget Honesty Act 1998 in respect of the *financial year referred to in paragraph (1)(c).
70-5(5)
For the purposes of determining the form of the information to be included in the *tax receipt, the Commissioner must seek the advice of the Minister and take that advice into account.
70-5(6)
The Commissioner must give you the *tax receipt as soon as practicable.
Except so far as the contrary intention appears, this Schedule and the Income Tax Assessment Act 1997 apply, and are taken always to have applied, in relation to the following in the same way as they apply in relation to income tax and *tax:
(a) *Medicare levy;
(b) *Medicare levy (fringe benefits) surcharge.
SECTION 97-1 WHAT THIS SUBDIVISION IS ABOUT
The Commissioner must give you a determination stating the amount of your excess concessional contributions.
| Operative provisions | |
| 97-5 | Determination of excess concessional contributions |
| 97-10 | Review |
SECTION 97-5 DETERMINATION OF EXCESS CONCESSIONAL CONTRIBUTIONS 97-5(1)
If you have *excess concessional contributions for a *financial year, the Commissioner must make a written determination stating the amount of those excess concessional contributions.
97-5(2)
A determination under this section is an excess concessional contributions determination .
97-5(3)
The Commissioner may amend a determination at any time.
97-5(4)
(Repealed by No 81 of 2016)
97-5(5)
Notice of a determination given by the Commissioner under this section is prima facie evidence of the matters stated in the notice.
If you are dissatisfied with an *excess concessional contributions determination made in relation to you, you may object against the determination in the manner set out in Part IVC.
SECTION 97-20 WHAT THIS SUBDIVISION IS ABOUT
The Commissioner must give you a determination stating:
| Operative provisions | |
| 97-25 | Excess non-concessional contributions determinations |
| 97-30 | Associated earnings |
| 97-35 | Review |
SECTION 97-25 EXCESS NON-CONCESSIONAL CONTRIBUTIONS DETERMINATIONS 97-25(1)
If your *non-concessional contributions for a *financial year (the contributions year ) exceed your *non-concessional contributions cap for the contributions year, the Commissioner must make a written determination stating:
(a) the amount of the excess; and
(b) the amount of your associated earnings worked out under section 97-30; and
(c) the following amount (the total release amount ):
97-25(2)
A determination under this section is an excess non-concessional contributions determination .
97-25(3)
The Commissioner may amend a determination at any time.
97-25(4)
(Repealed by No 81 of 2016)
97-25(5)
Notice of a determination given by the Commissioner under this section is prima facie evidence of the matters stated in the notice.
You are taken to have associated earnings equal to the sum (rounded down to the nearest dollar) of the amounts worked out under the following formula for each of the days during the period:
(a) starting on the first day of the contributions year; and
(b) ending on the day the Commissioner makes the first *excess non-concessional contributions determination you receive for the contributions year.
where:
excess
means the amount of the excess referred to in paragraph 97-25(1)(a).
means the lower of:
(a)
the rate worked out under subsection 8AAD(1) for the first day of that period as if the base interest rate (within the meaning of subsection 8AAD(2)) for that day were the average of the base interest rates for each of the days of the contributions year; and
(b)
a rate determined under subsection (2) for the contributions year.
sum of earlier daily proxy amounts
means the sum of the amounts worked out under the formula for each of the earlier days (if any) during that period.
Note:
Any excess non-concessional contributions determination you receive after the first one for the contributions year is an amended determination.
97-30(2)
The Minister may, by legislative instrument, determine a rate for a specified *financial year.
If you are dissatisfied with an *excess non-concessional contributions determination made in relation to you, you may object against the determination in the manner set out in Part IVC.
This Division contains rules relating to the administration of the indirect tax laws.
Note 1:
Administration rules relevant to particular indirect tax laws are in Divisions 110, 111 and 112.
Note 2:
For assessment of assessable amounts under indirect tax laws, see Division 155.
The rules in this Division deal with the following:
(Repealed by No 39 of 2012)
(Repealed by No 39 of 2012)
(Repealed by No 39 of 2012)
(Repealed by No 39 of 2012)
(Repealed by No 39 of 2012)
(Repealed by No 39 of 2012)
(Repealed by No 39 of 2012)
(Repealed by No 39 of 2012)
(Repealed by No 39 of 2012)
(Repealed by No 39 of 2012)
(Repealed by No 74 of 2010)
(Repealed by No 34 of 2014)
If any of an amount (the liability ) to which this section applies remains unpaid after the time by which it is due to be paid, you are liable to pay the *general interest charge on the unpaid amount of the liability for each day in the period that:
(a) started at the beginning of the day by which the liability was due to be paid; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) the liability;
(ii) general interest charge on any of the liability.
Note:
The general interest charge is worked out under Division 1 of Part IIA.
105-80(2)
This section applies to either of the following amounts that you are liable to pay:
(a) an *assessed net fuel amount;
(b) an assessed amount of *indirect tax (including an *assessed net amount).
An Act that amends an *indirect tax law does not have the effect of making you liable to:
(a) a penalty for an offence against an indirect tax law; or
(b) *general interest charge under section 105-80;
for any act or omission that happens before the 28th day (the postponed day ) after the day on which the amending Act receives the Royal Assent.
105-85(2)
If the amending Act would (apart from this section) have the effect of making you liable to such a penalty or charge because you contravened a requirement to do something:
(a) within a specified period ending before the postponed day; or
(b) before a specified time happening before the postponed day;
the requirement has effect instead by reference to a period ending at the start of the postponed day, or by reference to the start of the postponed day, as the case requires.
105-85(3)
This section does not relieve you from liability to such a penalty or charge to the extent to which the liability would have existed if the amending Act had not been enacted.
The Commissioner must, on behalf of the Commonwealth, pay you an amount equal to the amount of *indirect tax borne by you in respect of an acquisition (within the meaning of the *GST Act) if:
(a) you are in a class of entities determined by the *Defence Minister; and
(b) the acquisition is covered by a determination of the Defence Minister; and
(c) the acquisition is made:
(i) by or on behalf of a *visiting force that is; or
(ii) by a member (within the meaning of the Defence (Visiting Forces) Act 1963) of the visiting force who is; or
covered by a determination of the Defence Minister; and
(iii) by any other entity that is;
(d) at the time of the acquisition, it was intended for:
(i) the official use of the visiting force; or
(ii) the use of a member (within the meaning of the Defence (Visiting Forces) Act 1963) of the visiting force; or
and that use is covered by a determination of the Defence Minister; and
(iii) any other use;
(e) you claim the amount in the *approved form.
105-120(2)
The amount is payable:
(a) in accordance with the conditions and limitations; and
(b) within the period and manner;
determined by the *Defence Minister.
105-120(3)
The *Defence Minister may only determine an entity under subparagraph (1)(c)(iii) or a use under subparagraph (1)(d)(iii) if the Commonwealth is under an international obligation to grant *indirect tax concessions in relation to the kind of entity or the kind of use.
105-120(4)
A determination under this section is a legislative instrument.
The Commissioner must, on behalf of the Commonwealth, pay you, or an entity in a class of entities determined bythe Commissioner, an amount equal to the amount of *indirect tax borne by you in respect of an acquisition (within the meaning of the *GST Act) made by you if:
(a) you are a kind of entity specified in the regulations; and
(b) the acquisition is of a kind specified in the regulations; and
(c) you or the entity claims the amount in the *approved form.
105-125(2)
The amount is payable:
(a) in accordance with the conditions and limitations; and
(b) within the period and manner;
set out in the regulations.
105-125(3)
The regulations may only specify a kind of entity for the purposes of paragraph (1)(a) or a kind of acquisition for the purposes of paragraph (1)(b) if the Commonwealth is under an international obligation to grant *indirect tax concessions in relation to the kind of entity or the kind of acquisition.
105-125(4)
A determination by the Commissioner under subsection (1) is not a legislative instrument.
(Repealed by No 70 of 2015)
Any notice, approval, direction, authority or declaration that the Commissioner may give, or must give, to you under an *indirect tax law must be in writing.
105-145(2)
However, this does not prevent the Commissioner giving any of those things to you by electronic transmission if a provision of an *indirect tax law allows the Commissioner to do so.
This Division gives you the right to object against reviewable GST decisions that relate to you. Section 110-50 sets out the reviewable GST decisions.
You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that is:
(a) a *reviewable GST decision relating to you; or
(b) a *reviewable GST transitional decision relating to you.
110-50(2)
Each of the following decisions is a reviewable GST decision :
| Reviewable GST decisions under GST Act | ||
| Item | Decision | Provision of GST Act under which decision is made |
| 1 | refusing to register you | subsection 25-5(1) |
| 2 | registering you | subsection 25-5(2) |
| 3 | deciding the date of effect of your registration | section 25-10 |
| 4 | refusing to cancel your registration | subsection 25-55(1) |
| 5 | cancelling your registration | subsection 25-55(2) |
| 6 | refusing to cancel your registration | section 25-57 |
| 7 | deciding the date on which the cancellation of your registration takes effect | section 25-60 |
| 8 | determining that the *tax periods that apply to you are each individual month | subsection 27-15(1) |
| 9 | deciding the date of effect of a determination | subsection 27-15(2) |
| 10 | refusing to revoke your election under section 27-10 | subsection 27-22(1) |
| 11 | deciding the date of effect of a revocation | subsection 27-22(3) |
| 12 | refusing to revoke a determination under section 27-15 | subsection 27-25(1) |
| 13 | deciding the date of effect of a revocation | subsection 27-25(2) |
| 14 | determining that a specified period is a *tax period that applies to you | section 27-30 |
| 15 | refusing a request for a determination | section 27-37 |
| 16 | revoking a determination under section 27-37 | subsection 27-38(1) |
| 17 | deciding the date of a revocation | subsection 27-38(2) |
| 18 | refusing to permit you to account on a cash basis | subsection 29-45(1) |
| 19 | deciding the date of effect of your permission to account on a cash basis | subsection 29-45(2) |
| 20 | revoking your permission to account on a cash basis | subsection 29-50(3) |
| 21 | deciding the date of effect of the revocation of your permission to account on a cash basis | subsection 29-50(4) |
| 22 | refusing an application for a decision that an event is a *fund-raising event | paragraph 40-165(1)(c) |
| 23 | approving another day of effect | paragraph 48-71(1)(b) |
| 24 | revoking an approval of a day of effect | subsection 48-71(2) |
| 25-28 | (Repealed by No 74 of 2010) | |
| 29 | refusing an application for approval | section 49-5 |
| 30 | refusing an application for approval or revocation | subsection 49-70(1) |
| 31 | revoking an approval under Division 49 | subsection 49-70(2) |
| 32 | refusing an application for revocation | subsection 49-75(1) |
| 33 | revoking the approval of a *GST religious group | subsection 49-75(2) |
| 34 | deciding the date of effect of any approval, or any revocation of an approval, under Division 49 | section 49-85 |
| 35 | approving another day of effect | paragraph 51-75(1)(b) |
| 36 | revoking an approval of a day of effect | subsection 51-75(2) |
| 37-41 | (Repealed by No 74 of 2010) | |
| 42 | refusing an application for registration | section 54-5 |
| 43 | deciding the date of effect of registration as a *GST branch | section 54-10 |
| 44 | refusing to cancel the registration of a *GST branch | subsection 54-75(1) |
| 45 | cancelling the registration of a *GST branch | subsection 54-75(2) |
| 46 | deciding the date of effect of the cancellation of the registration of a *GST branch | section 54-80 |
| 47 | cancelling the registration of an Australian resident agent | subsection 57-25(1) |
| 48 | determining that the *tax periods that apply to a resident agent are each individual month | subsection 57-35(1) |
| 49 | deciding the date of effect of a determination | subsection 57-35(2) |
| 49A | cancelling the registration of a *representative of an *incapacitated entity | subsection 58-25(1) |
| 49B | deciding to direct a *representative of an *incapacitated entity to give to the Commissioner a *GST return | paragraph 58-50(1)(b) |
| 50 | cancelling the registration of a *non-profit sub-entity | subsection 63-35(1) |
| 51 | refusing to allow, or allowing, a further period within which to make an agreement that the margin scheme is to apply | paragraph 75-5(1A)(b) |
| 52 | refusing a request to allow an annual apportionment election to take effect from the start of another *tax period | paragraph 131-10(2)(b) |
| 53 | disallowing an annual apportionment election | subsection 131-20(3) |
| 53A | refusing to make requested decision about excess GST | subsection 142-15(1) |
| 54 | (Repealed by No 118 of 2009) | |
| 55 | refusing a request to allow an annual *tax period election to take effect from the start of another tax period | paragraph 151-10(2)(b) |
| 56 | refusing a request to be allowed to make an annual *tax period election on a specified day | subsection 151-20(3) |
| 57 | disallowing an annual *tax period election | subsection 151-25(3) |
| 58 | refusing a request to allow an election to pay *GST by instalments to take effect from the start of another *tax period | paragraph 162-15(2)(b) |
| 59 | refusing a request to be allowed to make an election on a specified day | subsection 162-25(3) |
| 60 | disallowing an election to pay *GST by instalments | subsection 162-30(3) |
| 61 | (Repealed by No 39 of 2012) | |
| 62 | making a declaration to negate or reduce a GST disadvantage | subsection 165-45(3) |
| 63 | deciding whether to grant a request for a declaration to negate or reduce a GST disadvantage | subsection 165-45(5) |
110-50(3)
A decision under section 24B of the A New Tax System (Goods and Services Tax Transition) Act 1999 refusing an application for a determination under that section, or making a determination under that section, is a reviewable GST transitional decision .
Division 111 - Wine tax and luxury car tax
This Division gives you the right to object against decisions that relate to you disallowing the whole or part of a claim for a wine tax credit.
It also explains how contracts to supply wine or a luxury car are affected if a wine tax law or luxury car tax law changes.
You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that is a *reviewable wine tax decision relating to you.
111-50(2)
Each of the following decisions is a reviewable wine tax decision :
| Reviewable wine tax decisions | ||
| Item | Decision | Provision of Wine Tax Act under which decision is made |
| 1 | disallowing the whole or a part of your claim for a *wine tax credit | section 17-45 |
| 2 | deciding the date of effect of your approval as a New Zealand participant | section 19-7 |
| 3 | refusing to approve you as a New Zealand participant | section 19-7 |
| 4 | revoking your approval as a New Zealand participant | section 19-8 |
| 5 | deciding the date of effect of revocation of your approval as a New Zealand participant | section 19-8 |
If, after a contract involving a *supply, or a *taxable dealing in relation to *wine, has been made, an alteration to the *wine tax law or the *luxury car tax law happens and the alteration directly causes an increase or decrease in the cost to a party to the agreement of complying with the agreement, then the contract is altered as follows:
(a) if the cost is increased - by allowing the party to add the increase to the contract price;
(b) if the cost is decreased - by allowing the other party to deduct the decrease from thecontract price.
111-60(2)
The contract is not altered if:
(a) the contract has express written provision to the contrary; or
(b) it is clear from the terms of the contract that the alteration of the *wine tax law or the *luxury car tax law has been taken into account in the agreed contract price.
This Division gives you the right to object against reviewable fuel tax decisions that relate to you. Section 112-50 sets out the reviewable fuel tax decisions.
You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that is a *reviewable fuel tax decision relating to you.
112-50(2)
Each of the following decisions is a reviewable fuel tax decision :
| Reviewable fuel tax decisions | ||
| Item | Decision | Provision of the Fuel Tax Act 2006 under which decision is made |
| 1 | (Repealed by No 39 of 2012) | |
| 2 | making a declaration to negate or reduce a *fuel tax disadvantage | subsection 75-45(3) |
| 3 | deciding whether or not to grant a request to negate or reduce a *fuel tax disadvantage | subsection 75-45(5) |
An ADI that is liable to pay levy under the Major Bank Levy Act 2017 must give quarterly returns to the Commissioner.
An amount of levy is due and payable when an ADI's last PAYG instalment within an instalment quarter is due.
| 115-5 | Returns |
| 115-10 | When major bank levy is due and payable |
An *ADI that is liable to pay levy for a *quarter under the Major Bank Levy Act 2017 must give to the Commissioner a return relating to the levy, in the *approved form.
115-5(2)
The return must be given on or before the * MBL reporting day for the *quarter.
115-5(3)
The MBL reporting day for the *quarter is the day by which the *ADI is required to give to *APRA a report, in accordance with a standard determined by APRA under section 13 of the Financial Sector (Collection of Data) Act 2001, that:
(a) relates to the *quarter; and
(b) states the total liabilities amount (within the meaning of the Major Bank Levy Act 2017) for the quarter in relation to the ADI.
An amount of levy under the Major Bank Levy Act 2017 that an *ADI is liable to pay for a *quarter is due and payable on the first day:
(a) that occurs on or after the *MBL reporting day for the quarter; and
(b) on which the last instalment that the ADI is liable to pay within an *instalment quarter is due under Subdivision 45-B.
115-10(2)
If that amount remains unpaid after it is due and payable, the *ADI is liable to pay *general interest charge on the unpaid amount for each day in the period that:
(a) started at the beginning of the day by which the amount was due to be paid; and
(b) finishes at the end of the last day at the end of which either of the following remains unpaid:
(i) the amount;
(ii) general interest charge on any of the amount.
This Division applies to deter schemes that give entities MBL benefits.
If the sole or dominant purpose of entering into a scheme is to give an entity such a benefit, the Commissioner may negate the MBL benefit an entity gets from the scheme by making a determination.
The object of this Division is to deter *schemes to give entities benefits that reduce or defer liabilities to levy under the Major Bank Levy Act 2017.
This Division applies if:
(a) an entity gets or got an *MBL benefit from a *scheme; and
(b) taking account of the matters described in section 117-20, it is reasonable to conclude that an entity that (whether alone or with others) entered into or carried out the scheme, or part of the scheme, did so for the sole or dominant purpose of that entity or another entity getting an MBL benefit from the scheme; and
(c) the scheme:
(i) has been or is entered into at or after 7.30 pm, by legal time in the Australian Capital Territory, on 9 May 2017; or
(ii) has been or is carried out or commenced at or after that time (other than a scheme that was entered into before that time).
117-10(2)
It does not matter whether the *scheme, or any part of the scheme, was entered into orcarried out inside or outside Australia.
An entity gets an MBL benefit from a *scheme, if:
(a) an amount of levy under the Major Bank Levy Act 2017 that is payable by the entity under this Act apart from this Division is, or could reasonably be expected to be, smaller than it would be apart from the scheme or a part of the scheme; or
(b) all or part of an amount of levy under the Major Bank Levy Act 2017 that is payable by the entity under this Act apart from this Division is, or could reasonably be expected to be, payable later than it would have been apart from the scheme or a part of the scheme.
117-15(2)
To avoid doubt, a smaller liability mentioned in paragraph (1)(a) includes a case where the liability is zero, or there is no such liability for a particular *quarter.
The following matters are to be taken into account under section 117-10 in considering an entity's purpose in entering into or carrying out the *scheme, or part of the scheme:
(a) the manner in which the scheme was entered into or carried out;
(b) the form and substance of the scheme;
(c) the time at which the scheme was entered into and the length of the period during which the scheme was carried out;
(d) the effect that the Major Bank Levy Act 2017, and any other *taxation law to the extent that it applies in relation to that Act, would have in relation to the scheme apart from this Division;
(e) any change in the financial position of the entity that has resulted, or may reasonably be expected to result, from the scheme;
(f) any change that has resulted, or may reasonably be expected to result, from the scheme in the financial position of an entity (a connected entity ) that has or had a connection or dealing with the entity, whether the connection or dealing is or was of a business or other nature;
(g) any other consequence for the entity or a connected entity of the scheme having been entered into or carried out;
(h) the nature of the connection (whether of a business or other nature) between the entity and a connected entity.
For the purpose of negating an *MBL benefit the entity mentioned in paragraph 117-10(1)(a) gets or got from the *scheme, the Commissioner may:
(a) make a determination stating the amount that is (and has been at all times) the entity's liability for levy under the Major Bank Levy Act 2017, for a specified *quarter that has ended; or
(b) make a determination stating the amount that is (and has been at all times) a particular amount mentioned in paragraph 5(2)(a) or (b) of that Act, for a specified quarter that has ended.
117-25(2)
A determination under this section is not a legislative instrument.
117-25(3)
The Commissioner may take such action as the Commissioner considers necessary to give effect to the determination.
For the purpose of making an *assessment, a statement in a determination under this Subdivision has effect according to its terms, despite the provisions of a *taxation law outside of this Division.
For the purposes of making a determination under this Subdivision, the Commissioner may:
(a) treat a particular event that actually happened as not having happened; and
(b) treat a particular event that did not actually happen as having happened and, if appropriate, treat the event as:
(i) having happened at a particular time; and
(ii) having involved particular action by a particular entity; and
(c) treat a particular event that actually happened as:
(i) having happened at a time different from the time it actually happened; or
(ii) having involved particular action by a particular entity (whether or not the event actually involved any action by that entity).
To avoid doubt, statements relating to different *quarters and different *MBL benefits may be included in a single determination under this Subdivision.
The Commissioner must give a copy of a determination under this Subdivision to the entity whose liability for levy under the Major Bank Levy Act 2017 is stated in the determination.
117-45(2)
A failure to comply with subsection (1) does not affect the validity of the determination.
If the entity whose liability for levy under the Major Bank Levy Act 2017 is stated in a determination under this Subdivision is dissatisfied with the determination, the entity may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953.
You must give the Commissioner a return relating to Laminaria and Corallina decommissioning levy if you are a leviable entity for a financial year.
An amount of levy is due and payable 21 days after the day the Commissioner gives you a notice of assessment.
This Division contains other rules relating to the administration of the levy, including rules dealing with charges and assessments.
| 125-5 | Returns |
| 125-10 | When Laminaria and Corallina decommissioning levy and related charges are due and payable |
| 125-15 | Assessments of Laminaria and Corallina decommissioning levy |
You must give the Commissioner a return relating to *Laminaria and Corallina decommissioning levy in the *approved form if you are a leviable entity (within the meaning of the Offshore Petroleum (Laminaria and Corallina Decommissioning Cost Recovery Levy) Act 2022) for a financial year that is a levy year (within the meaning of that Act).
Note:
You are required to give the Commissioner a return in accordance with this subsection even if the amount of that levy you are liable to pay is nil.
125-5(2)
The return must be given within 6 months after the end of the financial year.
Original assessments
125-10(1)
If you are liable to pay an amount of *Laminaria and Corallina decommissioning levy for a financial year, the amount is due and payable 21 days after the day the Commissioner gives you a notice of assessment for the financial year.
Amended assessments
125-10(2)
If the Commissioner amends your assessment of an amount of *Laminaria and Corallina decommissioning levy, any extra levy resulting from the amendment is due and payable 21 days after the day the Commissioner gives you notice of the amended assessment.
Shortfall interest charge
125-10(3)
If you are liable to pay an amount of *shortfall interest charge under section 280-102D, the amount is due and payable 21 days after the day the Commissioner gives you notice of the charge.
General interest charge
125-10(4)
If an amount of levy or *shortfall interest charge payable under this section remains unpaid after it is due and payable, you are liable to pay *general interest charge on the unpaid amount for each day in the period that: (a) started at the beginning of the day by which the amount was due to be paid; and (b) finishes at the end of the last day at the end of which any of the following remains unpaid:
(i) the amount of levy or shortfall interest charge;
(ii) general interest charge on any of the amount of levy or shortfall interest charge.
In applying Division 155 in relation to an amount of *Laminaria and Corallina decommissioning levy: (a) apply the provisions of that Division with the modification set out in subsection (2) of this section; and (b) disregard section 155-70.
125-15(2)
Despite subsection 155-35(2), the period of review , for an assessment of an amount of *Laminaria and Corallina decommissioning levy, is: (a) the period:
(i) starting on the day on which the Commissioner first gives notice of the assessment to you under section 155-10; and
(b) if the period of review is extended under subsection 155-35(3) or (4) - the period as so extended.
(ii) ending on the last day of the period of 6 months starting the day after that day; or
Certain Group Entities of an Applicable MNE Group must give the Commissioner a GloBE Information Return, Australian IIR/UTPR tax return and Australian DMT tax return.
An amount of Australian IIR/UTPR tax and Australian DMT tax for a Fiscal Year is usually due and payable on the last day of the 15th month after the end of the Fiscal Year.
This Division contains other rules relating to the administration of the taxes, including rules dealing with charges and assessments.
SECTION 127-5 GloBE INFORMATION RETURNS
Giving GloBE Information Returns
127-5(1)
A *Group Entity of an *Applicable MNE Group for a *Fiscal Year must give the Commissioner a *GloBE Information Return in respect of the Applicable MNE Group for the Fiscal Year if the Group Entity is *GloBE located in Australia for the Fiscal Year.
Note:
The Group Entity is required to give the Commissioner a GloBE Information Return even if the amount of Australian IIR/UTPR tax and Australian DMT tax the Group Entity is liable to pay in relation to the Fiscal Year is nil.
127-5(2)
The *GloBE Information Return given under subsection (1) must: (a) be *lodged electronically; and (b) be in the *approved form.
127-5(3)
A GloBE Information Return , in respect of an *Applicable MNE Group for a *Fiscal Year, is a return that: (a) if a determination under subsection (4) specifies requirements - is in accordance with those requirements; and (b) if paragraph (a) does not apply - is in accordance with the standardised return developed in accordance with the *GloBE Implementation Framework, as amended from time to time; and (c) contains the following information concerning the Applicable MNE Group:
(i) identification of the *Constituent Entities of the Applicable MNE Group, including the jurisdiction in which they are *GloBE located for the Fiscal Year and their status under the *GloBE Rules;
(ii) information on the overall corporate structure of the Applicable MNE group in the Fiscal Year;
(iii) information relevant to the determination of Effective Tax Rates (within the meaning of the GloBE Rules), Top-up Tax (within the meaning of the GloBE Rules) and allocation of Top-up Tax for the Fiscal Year;
(iv) elections made, for the Fiscal Year, in accordance with the relevant provisions of the GloBE Rules;
(v) other information that is agreed as part of the GloBE Implementation Framework and is necessary to carry out the administration of the GloBE Rules.
127-5(4)
For the purposes of paragraph (3)(a), the Commissioner may, by legislative instrument, make a determination specifying requirements for a return.
This section applies if a *Designated Local Entity in relation to a *GloBE Information Return in respect of an *Applicable MNE Group for a *Fiscal Year gives the GloBE Information Return to the Commissioner in accordance with subsection 127-5(2).
127-10(2)
Each other *Group Entity of the *Applicable MNE Group that is *GloBE located in Australia for the *Fiscal year is taken to give the *GloBE Information Return to the Commissioner at the time the *Designated Local Entity gives the GloBE Information Return to the Commissioner.
A Designated Local Entity , of an *Applicable MNE Group for a *Fiscal Year, is a *Group Entity of the Applicable MNE Group that: (a) is *GloBE located in Australia for the Fiscal Year; and (b) has been appointed by every other Group Entity of the Applicable MNE Group that is GloBE located in Australia for the Fiscal Year to give to the Commissioner:
(i) the *GloBE Information Return in respect of the Applicable MNE Group for the Fiscal Year; or
(ii) a notice mentioned in paragraph 127-20(2)(b) in respect of the Applicable MNE Group for the Fiscal Year.
This section applies in relation to an *Applicable MNE Group for a *Fiscal Year if: (a) either:
(i) the *GloBE Ultimate Parent Entity of the Applicable MNE Group is *GloBE located in a foreign country or part of a foreign country that has a *Qualifying Competent Authority Agreement in effect with Australia for the Fiscal Year; or
(b) the GloBE Ultimate Parent Entity or Designated Filing Entity gives a GloBE Information Return in respect of the Applicable MNE Group for the Fiscal Year to a *foreign government agency of the foreign country or part of the foreign country no later than the time specified in section 127-60 in relation to the Fiscal Year.
(ii) a *Designated Filing Entity in relation to the *GloBE Information Return in respect of the Applicable MNE Group for the Fiscal Year is GloBE located in a foreign country or part of a foreign country that has a Qualifying Competent Authority Agreement in effect with Australia for the Fiscal Year; and
127-20(2)
Each *Group Entity of the *Applicable MNE Group that is required to give a *GloBE Information Return in respect of the Applicable MNE Group for the *Fiscal Year to the Commissioner: (a) is taken to give the GloBE Information Return to the Commissioner, in accordance with subsection 127-5(2), at the time the *GloBE Ultimate Parent Entity or *Designated Filing Entity gives the GloBE Information Return to the *foreign government agency; and (b) must give the Commissioner a notice in accordance with subsection 127-30(1) in respect of the Applicable MNE Group for the Fiscal Year.
127-20(3)
A foreign country or part of a foreign country has a Qualifying Competent Authority Agreement in effect with Australia for a *Fiscal Year if an agreement or arrangement that: (a) is between 2 or more competent authorities:
(i) at least one of which is a competent authority of Australia; and
(b) provides for the automatic exchange of annual *GloBE Information Returns for the Fiscal Year;
(ii) at least one of which is a competent authority of that foreign country or part of a foreign country; and
is in effect.
Commissioner may require Group Entity to give GloBE Information Return
127-20(4)
If: (a) under subsection (2), a *Group Entity of the *Applicable MNE Group is taken to give a *GloBE Information Return in respect of the Applicable MNE Group for the *Fiscal Year to the Commissioner because the GloBE Information Return is given to a *foreign government agency; and (b) the relevant *Qualifying Competent Authority Agreement provides for the GloBE Information Return to be given to the Commissioner by a specified time; and (c) that time has passed, but the GloBE Information Return has not been given to the Commissioner under the Qualifying Competent Authority Agreement;
the Commissioner may, by written notice given to the Group Entity, request the Group Entity to give to the Commissioner a GloBE Information Return in respect of the Applicable MNE Group for the Fiscal Year in accordance with subsection 127-5(2).
127-20(5)
The *Group Entity must comply with the request in accordance with subsection (6).
127-20(6)
The *GloBE Information Return given under subsection (5) must be *lodged electronically.
A Designated Filing Entity , in relation to a *GloBE Information Return in respect of an *Applicable MNE Group for a *Fiscal Year, is a *Group Entity of the Applicable MNE Group that has been appointed by the Applicable MNE Group to file the GloBE Information Return on behalf of the Applicable MNE Group.
For the purposes of paragraph 127-20(2)(b), the notice mentioned in that paragraph: (a) must be given to the Commissioner no later than the time specified in section 127-60 in relation to the *Fiscal Year; and (b) must state:
(i) the identity of the *GloBE Ultimate Parent Entity or *Designated Filing Entity that gives the *GloBE Information Return to the *foreign government agency; and
(c) must be in the *approved form; and (d) must be *lodged electronically.
(ii) the jurisdiction in which that GloBE Ultimate Parent Entity or Designated Filing Entity is *GloBE located; and
127-30(2)
Subsection (3) applies if a *Designated Local Entity of the *Applicable MNE Group gives the notice mentioned in subsection (1) in accordance with that subsection.
127-30(3)
Each other *Group Entity of the *Applicable MNE Group that is *GloBE located in Australia for the *Fiscal year is taken to give the notice to the Commissioner at the time the *Designated Local Entity gives the notice to the Commissioner.
SECTION 127-35 AUSTRALIAN IIR/UTPR TAX RETURNS 127-35(1)
The purpose of this section is to provide, for the purposes of administering the *Australian IIR/UTPR tax, for a return that supplements the *GloBE Information Return.
127-35(2)
Subject to subsection (4), a *Group Entity of an *Applicable MNE Group for a *Fiscal Year must give the Commissioner a return under this subsection (an Australian IIR/UTPR tax return ) for the Fiscal Year if the Group Entity has an *Australian IIR/UTPR tax amount for the Fiscal Year (including a nil amount).
127-35(3)
The return must: (a) be *lodged electronically; and (b) be in the *approved form.
127-35(4)
However, the return need not be lodged in circumstances set out in a determination under subsection (5).
127-35(5)
The Commissioner may, by legislative instrument, make a determination specifying circumstances in which a *Group Entity need not lodge a return under subsection (2).
This section applies if: (a) a *Designated Local Entity of an *Applicable MNE Group for a *Fiscal Year has been appointed, by each *Group Entity of the Applicable MNE Group that is required to give the Commissioner an *Australian IIR/UTPR tax return for the Fiscal Year, to give an Australian IIR/UTPR tax return for the Fiscal Year to the Commissioner on behalf of the Group Entity; and (b) the Designated Local Entity gives an Australian IIR/UTPR tax return for the Fiscal Year to the Commissioner on behalf of those Group Entities in accordance with subsection 127-35(3).
127-40(2)
Each of those *Group Entities is taken to give the *Australian IIR/UTPR tax return to the Commissioner at the time at which the *Designated Local Entity gives the Australian IIR/UTPR tax return to the Commissioner.
SECTION 127-45 AUSTRALIAN DMT TAX RETURNS 127-45(1)
The purpose of this section is to provide, for the purposes of administering the *Australian DMT tax, for a return that supplements the *GloBE Information Return.
127-45(2)
Subject to subsection (5), a *Group Entity of an *Applicable MNE Group for a *Fiscal Year must give the Commissioner a return under this subsection (an Australian DMT tax return ) for the Fiscal Year if the Group Entity has a *Australian DMT tax amount for the Fiscal Year (including a nil amount).
Note:
The Group Entity is required to give the Commissioner a DMT return if the Group Entity has an Australian DMT tax amount for the Fiscal Year, even if the amount of Australian DMT tax the Group Entity is liable to pay in relation to the Fiscal Year is nil.
127-45(3)
The return must: (a) be *lodged electronically; and (b) be in the *approved form.
127-45(4)
However, the return need not be lodged in circumstances set out in a determination under subsection (5).
127-45(5)
The Commissioner may, by legislative instrument, make a determination specifying circumstances in which a *Group Entity need not lodge a return under subsection (2).
This section applies if: (a) a *Designated Local Entity of an *Applicable MNE Group for a *Fiscal Year has been appointed, by each *Group Entity of the Applicable MNE Group that is required to give the Commissioner an *Australian DMT tax return for the Fiscal Year, to give an Australian DMT tax return for the Fiscal Year to the Commissioner on behalf of the Group Entity; and (b) the Designated Local Entity gives an Australian DMT tax return for the Fiscal Year to the Commissioner on behalf of those Group Entities in accordance with subsection 127-45(3).
127-50(2)
Each of those *Group Entities is taken to give the *Australian DMT tax return to the Commissioner at the time at which the *Designated Local Entity gives the Australian DMT tax return to the Commissioner.
This section applies if, in relation to an *Applicable MNE Group, any of the following has an *Australian DMT tax amount for a Fiscal Year (including a nil amount): (a) a *GloBE Joint Venture of the Applicable MNE Group; (b) a *GloBE JV Subsidiary of a GloBE Joint Venture of the *Applicable MNE Group.
127-55(2)
In addition to the application that they have under this subsection, sections 127-45 and 127-50 apply, for the Fiscal Year, in relation to the *GloBE Joint Venture or the *GloBE JV Subsidiary in the same way they apply in relation to a *Group Entity of an Applicable MNE Group.
127-55(3)
For the purposes of subsection (2), treat: (a) the *GloBE Joint Venture and its *GloBE JV Subsidiaries as *Group Entities of a separate *Applicable MNE Group for the *Fiscal Year; and (b) the GloBE Joint Venture as the *GloBE Ultimate Parent Entity of that separate Applicable MNE Group.
127-55(4)
Subsection (5) applies if: (a) a *Designated Local Entity of the *Applicable MNE Group mentioned in subsection (1) for a *Fiscal Year has been appointed, by each Entity mentioned in paragraphs (1)(a) and (b) that is required to give the Commissioner an *Australian DMT tax return for the Fiscal Year (each of which is a reporting Entity ), to give an Australian DMT tax return for the Fiscal Year to the Commissioner on behalf of the reporting Entity; and (b) the Designated Local Entity gives an Australian DMT tax return for the Fiscal Year to the Commissioner on behalf of those reporting Entities in accordance with subsection 127-45(3).
127-55(5)
Each of the reporting Entities is taken to give the *Australian DMT tax return to the Commissioner at the time at which the *Designated Local Entity gives the Australian DMT tax return to the Commissioner.
127-55(6)
However, subsection (5) does not apply to the reporting Entities if any reporting Entity appoints more than one *Designated Local Entity under paragraph (4)(a) for the Fiscal Year.
Note:
In these circumstances, section 127-50 may still apply.
SECTION 127-60 WHEN RETURNS MUST BE GIVEN 127-60(1)
A *GloBE Information Return, *Australian IIR/UTPR tax return or *Australian DMT tax return for a *Fiscal Year must be given to the Commissioner no later than 15 months after the end of the Fiscal Year.
127-60(2)
However: (a) if the *Fiscal Year is the relevant *Applicable MNE Group's *GloBE Transition Year, the *GloBE Information Return, *Australian IIR/UTPR tax return or *Australian DMT tax return must be given to the Commissioner no later than 18 months after the end of the Fiscal Year; and (b) a GloBE Information Return that a *Group Entity is required to give to the Commissioner under subsection 127-20(5) must be given no later than the later of:
(i) the day by which the Group Entity would, apart from section 127-20, be required to give the GloBE Information Return to the Commissioner under section 127-5; and
(ii) 21 days after the Commissioner gives the request under subsection 127-20(4) to the Group Entity.
127-60(3)
Section 388-55 (Commissioner may defer time for lodgment) does not apply to the requirement to give a *GloBE Information Return or a notice under paragraph 127-20(2)(b).
This section applies if a *Group Entity of an *Applicable MNE Group for a *Fiscal year is a *GloBE Main Entity in respect of a *GloBE Permanent Establishment.
27-65(2)
This Subdivision: (a) applies to the *Group Entity in its own capacity; and (b) also applies to the Group Entity in its capacity as the *GloBE Main Entity in respect of the *GloBE Permanent *Establishment.
27-65(3)
If the *Group Entity is not *GloBE located in Australia and the *GloBE Permanent *Establishment is GloBE located in Australia, sections 127-5 to 127-30 apply in relation to the Group Entity in the same way that they apply in relation to a Group Entity that is GloBE located in Australia.
SECTION 127-70 WHEN AUSTRALIAN IIR/UTPR TAX AND AUSTRALIAN DMT TAX AND RELATED CHARGES ARE DUE AND PAYABLE
Original assessments
127-70(1)
If a *Group Entity of an *Applicable MNE Group is liable to pay an amount of *Australian IIR/UTPR tax or *Australian DMT tax for a *Fiscal Year, the amount is due and payable on the last day of the 15th month after the end of the Fiscal Year.
127-70(2)
However, if the *Fiscal Year is the *Applicable MNE Group's *GloBE Transition Year, the amount is due and payable on the last day of the 18th month after the end of the Fiscal Year.
Amended assessments
127-70(3)
If the Commissioner amends a *Group Entity's assessment of an amount of *Australian IIR/UTPR tax or *Australian DMT tax, any extra such tax resulting from the amendment is due and payable 21 days after the day the Commissioner gives the Group Entity notice of the amended assessment.
Shortfall interest charge
127-70(4)
If a *Group Entity is liable to pay an amount of *shortfall interest charge under section 280-102E, the amount is due and payable 21 days after the day the Commissioner gives the Group Entity notice of the charge.
General interest charge
127-70(5)
If an amount of *Australian IIR/UTPR tax or *Australian DMT tax or *shortfall interest charge payable under this section remains unpaid after it is due and payable, the *Group Entity is liable to pay *general interest charge on the unpaid amount for each day in the period that: (a) started at the beginning of the day by which the amount was due to be paid; and (b) finishes at the end of the last day at the end of which any of the following remains unpaid:
(i) the amount of such tax or shortfall interest charge;
(ii) general interest charge on any of the amount of such tax or shortfall interest charge.
In applying Division 155 in relation to an amount of *Australian IIR/UTPR tax or *Australian DMT tax, apply the provisions of that Division with the modification set out in subsection (2) of this section.
127-75(2)
Despite subsection 155-35(2), the period of review , for an assessment of an amount of *Australian IIR/UTPR tax for a *Fiscal Year, is: (a) the period of 4 years starting on the later of:
(i) the day on which the *GloBE Information Return for the relevant *Applicable MNE Group for the Fiscal Year is given to the Commissioner; and
(b) if the period of review is extended under subsection 155-35(3) or (4) - the period as so extended.
(ii) the day on which the *Australian IIR/UTPR tax return for the relevant *Group Entity for the Fiscal Year is given to the Commissioner; or
127-75(3)
Despite subsection 155-35(2), the period of review , for an assessment of an amount of *Australian DMT tax for a *Fiscal Year, is: (a) the period of 4 years starting on the later of:
(i) the day on which the *GloBE Information Return for the relevant *Applicable MNE Group for the Fiscal Year is given to the Commissioner; and
(b) if the period of review is extended under subsection 155-35(3) or (4) - the period as so extended.
(ii) the day on which the *Australian DMT tax return for the relevant *Group Entity for the Fiscal Year is given to the Commissioner; or
SECTION 127-80 127-80 PROVISIONS DO NOT APPLY TO GloBE EXCLUDED ENTITIES
A reference in this Division to a *Group Entity does not include a reference to a *GloBE Excluded Entity.
This Division extends onto other entities the obligations and liabilities of various entities under the Minimum Tax law.
If an amount is payable under the *Minimum Tax law by a *Group Entity of an *Applicable MNE Group for a *Fiscal Year: (a) that Group Entity; and (b) each other Group Entity of the Applicable MNE Group (other than a Group Entity excluded by subsection (2));
are jointly and severally liable to pay the amount.
128-5(2)
For the purposes of subsection (1), a *Group Entity is excluded by this subsection if it is, at the time the amount becomes due and payable, prohibited according to the effect of an *Australian law from entering into any arrangement under which the Group Entity becomes subject to a liability referred to in that subsection.
Subsection (2) applies if an amount is payable under the *Minimum Tax law by any of the following: (a) a *GloBE Joint Venture of an *Applicable MNE Group; (b) a *GloBE JV Subsidiary of a GloBE Joint Venture of an Applicable MNE Group.
128-10(2)
Each of the following Entities (other than an Entity excluded by subsection (3)) is jointly and severally liable to pay the amount: (a) the *GloBE Joint Venture; (b) a *GloBE JV Subsidiary of the GloBE Joint Venture; (c) a *Group Entity of the *Applicable MNE Group that holds a Direct Ownership Interest (within the meaning of the *Minimum Tax Act) in the GloBE Joint Venture.
128-10(3)
For the purposes of subsection (2), an Entity is excluded by this subsection if it is, at the time the amount becomes due and payable, prohibited according to the effect of an *Australian law from entering into any arrangement under which the Entity becomes subject to a liability referred to in subsection (2).
Obligations
128-15(1)
Subject to subsection (2), if an obligation is imposed under the *Minimum Tax law on a trust, the obligation is imposed on each of the following entities, but may be discharged by any such entity: (a) an entity that is the trustee of the trust at the time the obligation arises; (b) an entity that is the trustee of the trust at a time that is:
(i) after the obligation arises; and
(ii) before the obligation has been discharged.
Liabilities to pay an amount
128-15(2)
If an amount is payable under the *Minimum Tax law by a trust, joint and several liability to pay the amount is imposed as set out in the table:
| Amounts payable by trusts | ||||
| Item |
Column 1
If the amount is: |
Column 2
then the following entities are jointly and severally liable to pay the amount: |
||
| 1 | *Australian IIR/UTPR tax or *Australian DMT tax for a *Fiscal Year | each of the following entities: | ||
| (a) | an entity that is the trustee of the trust at the end of the Fiscal Year; | |||
| (b) | an entity that is the trustee of the trust at a time that is: | |||
| (i) | after the end of the Fiscal Year; and | |||
| (ii) | before the tax has been paid. | |||
| 2 | *general interest charge on the unpaid amount of *Australian IIR/UTPR tax or *Australian DMT tax for a *Fiscal Year | each of the following entities: | ||
| (a) | an entity that is the trustee of the trust at the end of the Fiscal Year; | |||
| (b) | an entity that is the trustee of the trust at a time that is: | |||
| (i) | after the end of the Fiscal Year; and | |||
| (ii) | before the general interest charge has been paid. | |||
| 3 | *shortfall interest charge in relation to a *Fiscal Year | each of the following entities: | ||
| (a) | an entity that is the trustee of the trust at the end of the Fiscal Year; | |||
| (b) | an entity that is the trustee of the trust at a time that is: | |||
| (i) | after the end of the Fiscal Year; and | |||
| (ii) | before the shortfall interest charge has been paid. |
Commissioner has direct access to trust assets
128-15(3)
For the purpose of ensuring the payment of an amount payable by an entity under this section in relation to a liability of a trust, the Commissioner has the same remedies against the property of the trust as the Commissioner would have against the property of the entity.
Right of indemnity
128-15(4)
An entity that pays an amount of a liability it has under this section is entitled to be indemnified out of the assets of the trust for the liability.
Offences
128-15(5)
Any offence against the *Minimum Tax law that is committed by a trust is taken to have been committed by the trustee of the trust, or, if the trust has more than one trustee, by each of the trustees.
128-15(6)
In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (5), it is a defence if the entity proves that the entity: (a) did not aid, abet, counsel or procure the relevant act or omission; and (b) was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).
Note 1:
The defence in subsection (6) does not apply in relation to offences under Part 2.4 of the Criminal Code.
Note 2:
A defendant bears a legal burden in relation to the matters in subsection (6): see section 13.4 of the Criminal Code.
Application
128-20(1)
This section applies in relation to a *GloBE partnership that is not: (a) a *GloBE Joint Venture of an *Applicable MNE Group; or (b) a *GloBE JV Subsidiary of a GloBE Joint Venture of an Applicable MNE Group.
Obligations
128-20(2)
Subject to subsection (3), if an obligation is imposed under the *Minimum Tax law on the *GloBE partnership, the obligation is imposed on each partner of the GloBE partnership, but may be discharged by any such partner.
Liabilities to pay an amount
128-20(3)
If an amount is payable under the *Minimum Tax law by the *GloBE partnership, the partners of the GloBE partnership are jointly and severally liable to pay the amount.
Offences
128-20(4)
Any offence against the *Minimum Tax law that is committed by the *GloBE partnership is taken to have been committed by each partner of the GloBE partnership.
128-20(5)
In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (4), it is a defence if the entity proves that the entity: (a) did not aid, abet, counsel or procure the relevant act or omission; and (b) was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).
Note 1:
The defence in subsection (5) does not apply in relation to offences under Part 2.4 of the Criminal Code.
Note 2:
A defendant bears a legal burden in relation to the matters in subsection (5): see section 13.4 of the Criminal Code.
Meaning of GloBE partnership
128-20(6)
A GloBE partnership is a partnership (within the meaning of paragraph 13(1)(b) of the *Minimum Tax Act).
128-20(7)
To avoid doubt, section 94K of the Income Tax Assessment Act 1936 (about corporate limited partnerships) does not apply in relation to this section.
Obligations
128-25(1)
Subject to subsection (2), if an obligation is imposed under the *Minimum Tax law on a *GloBE Entity of a kind specified in an item in the table in subsection (5), the obligation is imposed on each liable entity specified in the item, but may be discharged by any such entity.
Liabilities to pay an amount
128-25(2)
If an amount is payable under the *Minimum Tax law by a *GloBE Entity of a kind specified in an item in the table in subsection (5), the liable entities specified in the item are jointly and severally liable to pay the amount.
Offences
128-25(3)
Any offence against the *Minimum Tax law that is committed by a *GloBE Entity of a kind specified in an item in the table in subsection (5) is taken to have been committed by each liable entity specified in the item.
128-25(4)
In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (3), it is a defence if the entity proves that the entity: (a) did not aid, abet, counsel or procure the relevant act or omission; and (b) was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).
Note 1:
The defence in subsection (4) does not apply in relation to offences under Part 2.4 of the Criminal Code.
Note 2:
A defendant bears a legal burden in relation to the matters in subsection (4): see section 13.4 of the Criminal Code.
Liable entities
128-25(5)
For the purposes of subsections (1) to (3), the following kinds of *GloBE Entity and liable entities are specified:
| Liable Entities | |||
| Item | Kind of *GloBE Entity | Liable entity | |
| 1 | unincorporated *GloBE Joint Venture of an *Applicable MNE Group that is a *GloBE partnership | each partner of the unincorporated GloBE Joint Venture that is a *Group Entity of the Applicable MNE Group | |
| 2 | unincorporated *GloBE Joint Venture of an *Applicable MNE Group, that is not a trust or a *GloBE partnership | each *Group Entity of the ApplicableMNE Group that holds a Direct Ownership Interest (within the meaning of the *Minimum Tax Act) in the GloBE Joint Venture | |
| 3 | unincorporated *GloBE JV Subsidiary of a *GloBE Joint Venture of an *Applicable MNE Group, where the GloBE JV Subsidiary is a *GloBE partnership | each partner of the unincorporated GloBE JV Subsidiary that is: | |
| (a) | the GloBE Joint Venture; or | ||
| (b) | another GloBE JV Subsidiary of the GloBE Joint Venture; or | ||
| (c) | a *Group Entity of the Applicable MNE Group | ||
| 4 | unincorporated *GloBE JV Subsidiary of a *GloBE Joint Venture of an *Applicable MNE Group, where the GloBE JV Subsidiary is not a trust or a *GloBE partnership | each of the following: | |
| (a) | the GloBE Joint Venture; | ||
| (b) | a *Group Entity of the Applicable MNE Group that holds a Direct Ownership Interest (within the meaning of the *Minimum Tax Act) in the GloBE Joint Venture | ||
| 5 | unincorporated *Group Entity of an *Applicable MNE Group that is not a trust or a *GloBE partnership | each Group Entity of the Applicable MNE Group: | |
| (a) | to which a portion of the unincorporated Group Entity's assets, income, expenses, cash flows and liabilities belong; or | ||
| (b) | that is a member of the committee of management of the unincorporated Group Entity |
SECTION 128-30 128-30 PROVISIONS DO NOT APPLY TO GloBE EXCLUDED ENTITIES
A reference in this Division to a *Group Entity does not include a reference to a *GloBE Excluded Entity.
For the purposes of paragraph 128-5(1)(b), treat a *Group Entity that is a *GloBE Securitisation Entity as being a Group Entity excluded by subsection 128-5(2).
128-35(2)
For the purposes of subsection 128-10(2), treat a *Group Entity that is a *GloBE Securitisation Entity as being an Entity excluded by subsection 128-10(3).
SECTION 131-1 WHAT THIS SUBDIVISION IS ABOUT
You may request the Commissioner to require the release of an amount from your superannuation interests if you are given:
The Commissioner may also require the release of an amount from your superannuation interests in related circumstances.
Superannuation providers must usually pay the amount required to be released. However, for defined benefit superannuation interests the provider may choose whether or not to pay.
Released amounts are paid to the Commissioner. You get a credit for the released amount. Surplus credits are refunded to you under Division 3A of Part IIB.
| Requesting a release authority | |
| 131-5 | Requesting the release of amounts from superannuation interests |
| 131-10 | Restrictions on the total amount you can request to be released |
| 131-12 | Withdrawing or amending your request for a release authority relating to an FHSS determination |
| Issuing a release authority to superannuation provider | |
| 131-15 | Issuing release authorities |
| 131-20 | Amount to be stated in a release authority |
| 131-25 | Contents of a release authority |
| 131-30 | Varying or revoking a release authority |
| Complying with a release authority | |
| 131-35 | Obligations of superannuation providers |
| 131-40 | Voluntary compliance with a release authority relating to defined benefit interests |
| 131-45 | Meaning of maximum available release amount |
| 131-50 | Notifying Commissioner |
| 131-55 | Notifying you |
| 131-60 | Compensation for acquisition of property |
| Consequences of releasing amounts | |
| 131-65 | Entitlement to credits |
| 131-70 | Interest for late payments of money received by the Commissioner in accordance with release authority |
| 131-75 | Income tax treatment of amounts released - proportioning rule does not apply |
| Repayments if your entitlement to a credit ceases for a release authority relating to an FHSS determination | |
| 131-80 | Repayments if your entitlement to a credit ceases for a release authority relating to an FHSS determination |
SECTION 131-5 REQUESTING THE RELEASE OF AMOUNTS FROM SUPERANNUATION INTERESTS 131-5(1)
You may make a request under this section for a *financial year if you are given any of the following: (a) an *excess concessional contributions determination for the financial year; (b) an *excess non-concessional contributions determination for the financial year; (c) a notice of assessment of an amount of *Division 293 tax payable for the income year that corresponds to the financial year; (d) a *first home super saver determination.
131-5(2)
You make the request by: (a) notifying the Commissioner of the total amount to be released; and (b) identifying your *superannuation interest or interests from which that total amount is to be released; and (c) if you identify more than one superannuation interest - stating the amount to be released from each such interest.
131-5(3)
The request must: (a) ensure that the total amount to be released for the determination or assessment complies with section 131-10; and (b) be in the *approved form; and (c) be given to the Commissioner within:
(i) 60 days after the Commissioner issues the determination or notice referred to in subsection (1); or
(ii) a further period allowed by the Commissioner.
Unsuccessful requests - making a further request
131-5(4)
If: (a) you make a valid request under this section; and (b) the Commissioner gives you a notice under subsection 131-55(1) stating an amount (the unreleased amount ) that a *superannuation provider did not pay in relation to a release authority issued for that request;
you may make a further request to release the unreleased amount from another of your *superannuation interests.
131-5(5)
The further request must comply with subsection (2) and paragraphs (3)(a) and (b), and must be given to the Commissioner within: (a) 60 days after the Commissioner issues the notice mentioned in paragraph (4)(b); or (b) a further period allowed by the Commissioner.
Most requests are irrevocable
131-5(6)
Subject to section 131-12 (about requests relating to FHSS determinations), a request under this section is irrevocable.
The total amount you can request to be released complies with this section if that amount: (a) if item 1, 3 or 4 of the following table applies - does not exceed the relevant amount referred to in that item; or (b) if item 2 of the following table applies - is nil or equals the relevant amount referred to in that item.
| Amount you can request to be released | ||
| Item | If the request relates to this kind of determination or assessment (see subsection 131-5(1)): | The relevant amount is: |
| 1 | an *excess concessional contributions determination | 85% of the contributions stated in that determination |
| 2 | an *excess non-concessional contributions determination | the *total release amount stated in that determination |
| 3 | an assessment of an amount of *Division 293 tax | that amount of Division 293 tax |
| 4 | a *first home super saver determination | the *FHSS maximum release amount stated in that determination |
131-10(2)
However, for an amended determination or assessment, reduce the relevant amount referred to in the above table by any amount released under this Subdivision for an earlier determination or assessment of that kind that you are given for the *financial year or corresponding income year.
131-10(3)
An amendment of a determination or assessment does not affect the validity of a request you make under section 131-5 before you are given the amended determination or the notice of the amended assessment.
You may, by notifying the Commissioner in the *approved form, withdraw or amend your valid request made under section 131-5 if: (a) your request relates to a *first home super saver determination given to you; and (b) in the case of amending your request - you satisfy paragraphs 138-10(2)(a) and (b); and (c) the Commissioner has not already issued a release authority in relation to your request.
131-12(2)
Your amended request is treated as a valid request under section 131-5 if it complies with subsection 131-5(2) and paragraphs 131-5(3)(a) and (c).
131-12(3)
Withdrawing your request does not prevent you from making a later request under section 131-5 in relation to the *first home super saver determination.
SECTION 131-15 ISSUING RELEASE AUTHORITIES
Issuing in response to a valid request
131-15(1)
If you make a valid request under section 131-5, the Commissioner must issue a release authority to each *superannuation provider that holds a *superannuation interest identified in the request.
Issuing if you do not make a valid request in response to an excess non-concessional contributions determination etc.
131-15(2)
If:
(a) on a particular day, the Commissioner issues you with:
(i) an *excess non-concessional contributions determination for a *financial year; or
(ii) a notice to which paragraph 131-5(4)(b) applies for such a determination; and
(b) within 60 days after that day, you do not make a valid request under section 131-5 for that determination;
the Commissioner may issue a release authority to one or more *superannuation providers that hold *superannuation interests for you.
Issuing if you are liable to pay excess non-concessional contributions tax
131-15(3)
If you are given a notice of an *excess non-concessional contributions tax assessment for a *financial year, the Commissioner may issue a release authority to one or more *superannuation providers that hold *superannuation interests for you.
Issuing if you have an unpaid amount of assessed Division 293 tax that is not deferred to a debt account
131-15(4)
If:
(a) for an income year, you are given a notice of assessment of an amount of *Division 293 tax that is not *deferred to a debt account for a *superannuation interest; and
(b) on the 60th day after the day the Commissioner issues that notice, the sum of the following falls short of that amount of tax:
(i) any payments of that tax for the income year that you have already made;
(ii) any amounts that have already been released under this Subdivision for that assessment;
the Commissioner may issue a release authority to one or more *superannuation providers that hold superannuation interests for you.
The amount to be released from one or more *superannuation interests under a release authority issued under section 131-15 must be:
(a) for a release authority issued undersubsection 131-15(1) - the amount stated in the request; or
(b) otherwise - worked out so that the total amount stated for all release authorities for the applicable determination or assessment does not exceed:
(i) for a release authority issued under subsection 131-15(2) - the *total release amount stated in the determination referred to in that subsection; or
(ii) for a release authority issued under subsection 131-15(3) or (4) - the amount of tax stated in the assessment referred to in that subsection.
131-20(2)
For the purposes of paragraph (1)(b), disregard an amount stated in another release authority to the extent that a notice given under subsection 131-50(2) states that the amount will not be paid.
Each release authority issued under section 131-15 must:
(a) be issued to a single *superannuation provider; and
(b) state the amount to be released from each *superannuation interest under the release authority; and
(c) be dated; and
(d) contain any other information that the Commissioner considers relevant.
Release authority not relating to an FHSS determination
131-30(1)
The Commissioner may decide to vary or revoke a release authority issued: (a) under section 131-15; and (b) in relation to a determination, or assessment, mentioned in paragraph 131-5(1)(a), (b) or (c) and given to you;
at any time before the Commissioner is given a notice under section 131-50relating to the release authority.
Release authority relating to an FHSS determination
131-30(2)
For a release authority issued under section 131-15 in relation to a *first home super saver determination given to you, the Commissioner may decide to: (a) vary the release authority if:
(i) the varied release authority would be consistent with paragraph 131-5(3)(a); and
(b) revoke the release authority;
(ii) you satisfy paragraphs 138-10(2)(a) and (b); or
at any time before the Commissioner begins treating, under Division 3 of Part IIB, any credit to which you have become entitled under section 131-65 in relation to the release authority.
131-30(3)
The Commissioner may make a decision under subsection (2): (a) on the Commissioner's own initiative; or (b) on application by you to the Commissioner in the *approved form.
131-30(4)
If a release authority is varied or revoked under subsection (2) at a particular time, then any entitlement under section 131-65 you had to a credit relating to the release authority ceases at that time.
131-30(5)
The revocation of a release authority under subsection (2) does not prevent you from making a later request under section 131-5 in relation to the same *first home super saver determination.
Reissuing varied release authorities
131-30(6)
If the Commissioner varies a release authority under this section at a particular time, then: (a) at that time, the release authority (as issued before the variation) ceases to be in force; and (b) the Commissioner must reissue the release authority (as varied) under section 131-15.
Review
131-30(7)
If you are dissatisfied with a decision under subsection (2) by the Commissioner in relation to you: (a) to vary or revoke a release authority; or (b) not to vary or revoke a release authority;
you may object against it in the manner set out in Part IVC of this Act.
SECTION 131-35 OBLIGATIONS OF SUPERANNUATION PROVIDERS 131-35(1)
A *superannuation provider issued with a release authority under section 131-15 must, within 10 *business days after the release authority is issued (or a further period allowed by the Commissioner), pay to the Commissioner the lesser of:
(a) the amount stated in the release authority; and
(b) the sum of the *maximum available release amounts for each *superannuation interest held by the superannuation provider for you in *superannuation plans.
Note 1:
Subsection 288-95(3) provides for an administrative penalty for failing to comply with this section.
Note 2:
For the taxation treatment of the payment, see section 131-75.
Exception - defined benefit interests not subject to compulsory release
131-35(2)
However, the *maximum available release amount for a *superannuation interest is not to be included in the sum worked out under paragraph (1)(b) if the interest is a *defined benefit interest.
A *superannuation provider issued with a release authority under section 131-15 may, within 10 *business days after the release authority is issued (or a further period allowed by the Commissioner), pay to the Commissioner the lesser of:
(a) the amount stated in the release authority; and
(b) the sum of the *maximum available release amounts for each *defined benefit interest held by the superannuation provider for you in *superannuation plans.
131-40(2)
For the purposes of paragraph (1)(a), reduce the amount mentioned in that paragraph by any amount the provider pays under section 131-35 in relation to the release authority.
The maximum available release amount for a *superannuation interest at a particular time is the total amount of all the *superannuation lump sums that could be payable from the interest at that time.
A *superannuation provider issued with a release authority under section 131-15 must notify the Commissioner of a payment made in accordance with this Subdivision.
131-50(2)
A *superannuation provider that:
(a) has been issued with a release authority under section 131-15; and
(b) is not required to pay an amount under section 131-35, or is required under that section to pay an amount less than the amount stated in the release authority;
must notify the Commissioner that the provider is not required to comply with the release authority.
131-50(3)
A notice under this section must be given in the *approved form within the period applying under subsection 131-35(1) or 131-40(1) for the release authority.
Note:
Subsection 286-75(1) provides for an administrative penalty for failing to comply with this section.
The Commissioner must notify you if, in relation to a release authority issued under section 131-15 in relation to you, the Commissioner:
(a) is given a notice from a *superannuation provider under section 131-50; or
(b) does not receive a payment from a superannuation provider of the full amount stated in the release authority within the time mentioned in subsection 131-35(1) or 131-40(1).
131-55(2)
A notice under subsection (1) must:
(a) be in writing; and
(b) identify the *superannuation provider; and
(c) state how much of the amount stated in the release authority was not paid within the applicable time.
If the operation of section 131-35 would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from an entity otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the entity.
131-60(2)
If the Commonwealth and the entity do not agree on the amount of the compensation, the entity may institute proceedings in:
(a) the Federal Court of Australia; or
(b) the Supreme Court of a State or Territory;
for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
SECTION 131-65 ENTITLEMENT TO CREDITS 131-65(1)
If a *superannuation provider pays an amount in relation to a release authority issued under section 131-15 in relation to you, you are entitled to a credit equal to that amount.
Note:
Division 3 of Part IIB provides for the treatment of credits that you are entitled to under a taxation law.
131-65(2)
The credit arises on the day the Commissioner receives the amount.
Exception for voluntary payments of Division 293 tax debt account
131-65(3)
However, if the amount paid in relation to the release authority relates to an amount of *assessed Division 293 tax that is *deferred to a debt account for a *superannuation interest:
(a) subsection (1) does not apply in relation to the payment; and
(b) treat the payment as if it were a voluntary payment under section 133-70 in relation to that debt account.
You are entitled to an amount of interest worked out under subsection (2) if:
(a) the Commissioner is required under Division 3A of Part IIB to refund all or part of a credit you are entitled to under section 131-65; and
(b) the Commissioner does not so refund all or part of that credit within 60 days after receiving the payment that gave rise to the credit.
131-70(2)
The interest is to be calculated:
(a) on so much of the amount of the credit as the Commissioner fails to refund under that Division; and
(b) for the period:
(i) beginning 60 days after the day the Commissioner receives the amount; and
(ii) ending on theday the Commissioner refunds the amount mentioned in paragraph (1)(a); and
(c) on a daily basis; and
(d) at the *base interest rate for the day the interest is calculated.
Section 307-125 of the Income Tax Assessment Act 1997 (the proportioning rule) does not apply to a payment made as required or permitted under this Subdivision.
Note:
The income tax treatment of released amounts is also affected by Subdivision 292-B, and section 303-15, of that Act.
SECTION 131-80 REPAYMENTS IF YOUR ENTITLEMENT TO A CREDIT CEASES FOR A RELEASE AUTHORITY RELATING TO AN FHSS DETERMINATION
Repaying the superannuation provider if it still holds a superannuation interest for you
131-80(1)
If: (a) a *superannuation provider pays an amount (the released amount ) to the Commissioner under section 131-35 or 131-40 in relation to you; and (b) your entitlement under section 131-65 to a credit relating to the released amount ceases under subsection 131-30(4) or 138-13(3); and (c) the Commissioner reasonably believes that the provider still holds a *superannuation interest for you; and (d) the Commissioner reasonably believes that, were the released amount to be repaid to the provider, the provider:
(i) could allocate the repayment (the repaid amount ) to that superannuation interest; and
(ii) could later pay an amount equal to the repaid amount in response to a release authority issued under this Division in relation to a later *first home super saver determination given to you;
the Commissioner must repay the released amount to the provider.
131-80(2)
The Commissioner must make the repayment within 30 *business days after the day the Commissioner starts holding the reasonable belief necessary to satisfy both paragraphs (1)(c) and (d).
What happens if the original provider cannot be repaid
131-80(3)
However, if the Commissioner cannot repay the released amount under subsection (1), the Commissioner must only pay an equivalent amount to the released amount if an item of the following table applies.
| When the Commissioner must pay the equivalent amount | ||||
| Item | If the Commissioner reasonably believes that: | then the Commissioner must pay the equivalent amount to: | ||
| 1 | (a) | another release authority has been issued under section 131-15: | the other *superannuation provider. | |
| (i) | to another *superannuation provider in relation to you; and | |||
| (ii) | in relation to a *first home super saver determination (an FHSS determination ) given to you; and | |||
| (b) | the other provider still holds a *superannuation interest for you; and | |||
| (c) | were the equivalent amount to be paid to the other provider, the other provider: | |||
| (i) | could allocate the equivalent amount to that superannuation interest; and | |||
| (ii) | could later pay an amount equal to the equivalent amount in response to a release authority issued under this Division in relation to a later FHSS determination given to you | |||
| 2 | (a) | another *superannuation provider holds a *superannuation interest for you; and | the other *superannuation provider. | |
| (b) | you or your *legal personal representative has notified the Commissioner of this in the *approved form | |||
| 3 | (a) | you satisfy a condition of release, with a nil cashing restriction, of benefits specified in a standard referred to in paragraph 31(2)(h) of the Superannuation Industry (Supervision) Act 1993; and | you or your *legal personal representative (as applicable). | |
| (b) | you or your *legal personal representative has notified the Commissioner of this in the *approved form |
131-80(4)
The Commissioner must pay the equivalent amount: (a) in accordance with the item of the table that is the first to so apply; and (b) within 30 *business days after the day that item starts to so apply.
Payment of Division 293 tax is deferred to the extent to which the tax is attributable to defined benefit interests from which no superannuation benefit has yet become payable.
This reflects the fact that money generally cannot be released from defined benefit interests until a superannuation benefit is paid, usually upon retirement.
SECTION 133-5 WHAT THIS SUBDIVISION IS ABOUT
The Commissioner determines the amount of your tax that is deferred to a debt account by working out the extent to which your assessed tax is attributable to defined benefit interests.
| Operative provisions | |
| 133-10 | Determination of tax that is deferred to a debt account |
| 133-15 | Defined benefit tax |
| 133-20 | How to attribute the defined benefit tax to defined benefit interests |
| 133-25 | Determination reducing tax deferred to a debt account |
| 133-30 | General provisions applying to determinations under this Subdivision |
SECTION 133-10 DETERMINATION OF TAX THAT IS DEFERRED TO A DEBT ACCOUNT 133-10(1)
The Commissioner must make a determination specifying the amount the Commissioner has ascertained as being the extent to which your *assessed Division 293 tax for an income year is *defined benefit tax attributable to a *superannuation interest.
Note 1:
For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
Note 2:
For general provisions, including review, see section 133-30.
133-10(2)
The amount of *assessed Division 293 tax specified in the determination is deferred to a debt account for the *superannuation interest.
133-10(3)
However, the Commissioner must not make a determination under this section in relation to a *superannuation interest if, at the time the determination is to be made, the *end benefit for the superannuation interest has become payable.
133-10(4)
Subsection (1) does not apply if the Commissioner ascertains that no part of your *assessed Division 293 tax for an income year is *defined benefit tax attributable to a *superannuation interest.
Your defined benefit tax for an income year is the amount worked out using the formula:
| *Division 293 tax for the income year | × |
Defined benefit contribution component
*Taxable contributions for the income year |
where:
defined benefit contribution component
means the amount worked out as follows:
(a) work out the lesser of the following for the corresponding *financial year:
(i) your *low tax contributions;
(ii) the total amount of your *defined benefit contributions in respect of all *defined benefit interests you have in the financial year;
(b) subtract from the result of paragraph (a) the difference (if any) between:
(i) your *taxable contributions for the income year; and
(ii) your low tax contributions for the corresponding financial year.
Note:
A difference may exist for paragraph (b) because of the $250,000 high income threshold: see subsection 293-20(1) of the Income Tax Assessment Act 1997.
Exception - defined benefit contribution component is nil or less
133-15(2)
However, if the defined benefit contribution component mentioned in subsection (1) is nil, or a negative amount, no part of the *Division 293 tax for the income year is defined benefit tax .
If you have one *defined benefit interest in a *financial year, your *defined benefit tax for the corresponding income year is attributable to that interest.
133-20(2)
If you have more than one *defined benefit interest in a *financial year, your *defined benefit tax for the corresponding income year is attributable to each such interest in proportion to the *defined benefit contributions for the interest for the financial year.
If an amount of *assessed Division 293 tax that is *deferred to a debt account for a *superannuation interest is reduced as a result of an amended assessment, the Commissioner must make a determination under this section in respect of the reduced amount.
133-25(2)
The amount so determined is a deferral reversal for the *superannuation interest.
Note:
For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
The Commissioner must:
(a) make a determination as soon as practicable after:
(i) for a determination under section 133-10 - assessing the amount (whether by way of a first assessment or an amended assessment); or
(ii) for a determination under section 133-25 - amending the assessment; and
(b) give you notice in writing of the determination as soon as practicable after making it.
133-30(2)
(Repealed by No 81 of 2016)
133-30(3)
The validity of the determination is not affected because any of the provisions of this Act have not been complied with.
Review
133-30(4)
If you are dissatisfied with a determination made under this Subdivision in relation to you, you may object against the determination in the manner set out in Part IVC.
133-30(5)
If you are dissatisfied with a decision the Commissioner makes not to make a determination under this Subdivision:
(a) you may object against the decision in the manner set out in Part IVC; and
(b) for the purpose of working out the period within which the objection must be lodged, notice of the decision is taken to have been served on you on the day notice is given to you of:
(i) for a determination under section 133-10 - the assessment of the amount; or
(ii) for a determination under section 133-25 - the amended assessment.
Note:
For the period within which objections must be lodged, see section 14ZW.
SECTION 133-55 WHAT THIS SUBDIVISION IS ABOUT
The Commissioner keeps debt accounts for tax that is deferred to a debt account for a superannuation interest.
You can make voluntary payments of the debt account.
| Operative provisions | |
| 133-60 | Debt account to be kept for deferred tax |
| 133-65 | Interest on debt account balance |
| 133-70 | Voluntary payments |
| 133-75 | Commissioner must notify superannuation provider of debt account |
SECTION 133-60 DEBT ACCOUNT TO BE KEPT FOR DEFERRED TAX
Accounts to be kept
133-60(1)
The Commissioner is to keep a debt account for *Division 293 tax for you for a *superannuation interest, if an amount of your *assessed Division 293 tax is *deferred to a debt account for the superannuation interest.
Account to be debited for Division 293 tax
133-60(2)
The Commissioner must debit the debt account for the amount of *assessed Division 293 tax that is *deferred to a debt account for the *superannuation interest.
Interest to be debited at end of financial year
133-65(1)
If a debt account for a *superannuation interest is in debit at the end of a *financial year, the Commissioner is to debit the account for interest on the amount by which the account is in debit, calculated at the *long term bond rate for that financial year.
Note:
Interest would not be debited to a debt account that is no longer being kept by the Commissioner because the assessedDivision 293 tax liability being tracked in the account has been finally discharged as mentioned in subsection 133-105(3).
Remission of interest - deferral reversal
133-65(2)
The Commissioner may remit the whole or any part of an amount of interest debited, or to be debited, from a debt account under subsection (1) if:
(a) the debt account is credited:
(i) under section 133-70 because of a *deferral reversal; or
(ii) because a determination under section 133-10 is varied or revoked; and
(b) the Commissioner is satisfied that, because of that credit, it would be fair and reasonable to do so.
Remission of interest - special circumstances
133-65(3)
The Commissioner may remit the whole or any part of an amount of interest debited, or to be debited, to a debt account under subsection (1) if the Commissioner is satisfied that, because special circumstances exist, it would be fair and reasonable to do so.
You may make payments to the Commissioner for the purpose of reducing the amount by which a debt account for a *superannuation interest is in debit.
133-70(2)
The Commissioner is to:
(a) acknowledge receipt of the payment to you; and
(b) credit the payment to the debt account; and
(c) notify you of the revised balance of the debt account.
The credit mentioned in paragraph (b) is to be made when the payment is received.
133-70(3)
The amount of a *deferral reversal for the *superannuation interest is to be treated as if it were a voluntary payment under this section in relation to the debt account for that interest. However, paragraphs (2)(a) and (c) do not apply in relation to that amount.
Ifthe Commissioner starts to keep a debt account for *Division 293 tax for you for a *superannuation interest, the Commissioner must give the *superannuation provider in relation to the superannuation interest a notice saying so.
SECTION 133-100 WHAT THIS SUBDIVISION IS ABOUT
The deferred tax liability must be paid when a superannuation benefit becomes payable from the superannuation interest.
In some cases, the amount that must be paid is capped.
| Debt account discharge liability | |
| 133-105 | Liability to pay debt account discharge liability |
| 133-110 | When debt account discharge liability must be paid |
| 133-115 | General interest charge |
| 133-120 | Meaning of debt account discharge liability |
| 133-125 | Notice of debt account discharge liability |
| End benefit | |
| 133-130 | Meaning of end benefit |
| 133-135 | Superannuation provider may request debt account status |
| 133-140 | End benefit notice - superannuation provider |
| 133-145 | End benefit notice - material changes or omissions |
SECTION 133-105 LIABILITY TO PAY DEBT ACCOUNT DISCHARGE LIABILITY 133-105(1)
You are liable to pay the amount of your *debt account discharge liability for a *superannuation interest if the *end benefit for the interest becomes payable.
133-105(2)
The liability arises:
(a) unless paragraph (b) applies - at the time the *end benefit becomes payable; or
(b) if the end benefit is a *superannuation death benefit - just before you die.
Note 1:
For paragraph (a), a release authority allows money to be released from the superannuation plan to pay this amount: see subsection 135-10(1).
Note 2:
For paragraph (b), the debt will be recovered from your estate: see Subdivision 260-E.
133-105(3)
Payment of your *debt account discharge liability for a *superannuation interest discharges your liability for so much of your total *assessed Division 293 tax for all income years as is *deferred to a debt account for the superannuation interest.
The amount of your *debt account discharge liability for a *superannuation interest is due and payable at the end of 21 days after the day on which the *end benefit for the superannuation interest is paid.
If your *debt account discharge liability remains unpaid after the time by which it is due and payable, you are liable to pay the *general interest charge on the unpaid amount for eachday in the period that:
(a) begins on the day on which the debt account discharge liability was due to be paid; and
(b) ends on the last day on which, at the end of the day, any of the following remains unpaid:
(i) the debt account discharge liability;
(ii) general interest charge on any of the debt account discharge liability.
Note:
The general interest charge is worked out under Part IIA.
The debt account discharge liability for a *superannuation interest for which the Commissioner keeps a debt account is the amount by which the debt account is in debit at the time the *end benefit for the superannuation interest becomes payable.
133-120(1A)
However, if the end benefit cap for the *superannuation interest stated in a notice given to the Commissioner under subsection (2) of this section or section 133-140 is less than the amount mentioned in subsection (1) of this section, the debt account discharge liability for the superannuation interest is an amount equal to the end benefit cap.
133-120(2)
If requested by the Commissioner, the *superannuation provider in relation to a *superannuation interest must give the Commissioner notice of the amount (the end benefit cap ) that is 15% of the employer-financed component of any part of the *value of the superannuation interest that accrued after 1 July 2012.
Note:
If a person is dissatisfied with a notice given to the Commissioner under this subsection, the person may make a complaint under the AFCA scheme (within the meaning of the Corporations Act 2001).
133-120(3)
For the purposes of subsection (2), the *value of the *superannuation interest is to be worked out at the end of the *financial year before the financial year in which the *end benefit becomes payable.
133-120(4)
A notice under subsection (2) must be given: (a) in the *approved form; and (b) within 14 days of the Commissioner making the request.
The Commissioner must give you a notice under this section if the *end benefit becomes payable from a *superannuation interest for which the Commissioner keeps a debt account.
133-125(2)
The notice must state that you are liable to pay your *debt account discharge liability for the *superannuation interest and specify:
(a) the amount of that debt; and
(b) the day on which that debt is due and payable; and
(c) whether the amount of that debt is:
(i) the amount by which the debt account is in debit as mentioned in subsection 133-120(1); or
(ii) the end benefit cap mentioned in subsection 133-120(1A).
133-125(3)
If you are dissatisfied with a notice given under this section in relation to you, you may object against it in the manner set out in Part IVC of this Act.
133-125(4)
However, you cannot object against a notice stating that the amount you are liable to pay is the amount by which the debt account is in debit, unless you are seeking to be liable to pay the end benefit cap specified in a notice given to the Commissioner by the *superannuation provider under subsection (2) or section 133-140 (as the case requires).
SECTION 133-130 MEANING OF END BENEFIT 133-130(1)
A *superannuation benefit is the end benefit for a *superannuation interest if it is the first superannuation benefit to become payable from the interest, disregarding a benefit that is any of the following: (a) a *roll-over superannuation benefit paid to a *complying superannuation plan that is a *successor fund; (b) a benefit that becomes payable under the condition of release specified in item 105 of the table in Schedule 1 to the Superannuation Industry (Supervision) Regulations 1994 (about severe financial hardship); (c) a benefit that becomes payable under the condition of release specified in item 107 of that table (about compassionate ground); (d) a benefit specified in an instrument under subsection (2).
133-130(2)
The Minister may, by legislative instrument, specify a *superannuation benefit for the purposes of paragraph (1)(d).
[ CCH Note: Legislative Instrument F2013L02050, effective from 1 July 2012, provides that, for subsection 133-130(2), the superannuation benefits specified in the following table are excluded from being an end benefit for the purposes of the taxation law.
| Table of superannuation benefits that are not end benefits | |
| Item | A superannuation benefit that is a: |
| 1 | Family law superannuation payment.] |
133-130(3)
(Repealed by No 127 of 2021)
133-130(4)
(Repealed by No 127 of 2021)
If:
(a) a *superannuation provider has been given a notice under section 133-75 saying that the Commissioner has started to keep a debt account for a *superannuation interest; and
(b) the superannuation provider receives a request to pay the *end benefit from the superannuation interest or the end benefit becomes payable from the superannuation interest;
the superannuation provider may, in the *approved form, request the Commissioner to advise as to the status of the debt account.
133-135(2)
If the Commissioner receives a request, the Commissioner must advise the *superannuation provider as soon as practicable whether or not the debt account is in debit.
If the *end benefit becomes payable from a *superannuation interest for which the Commissioner keeps a debt account, the *superannuation provider in relation to the interest must give the Commissioner a notice stating: (a) unless subsection (1A) applies - the amount of the end benefit cap mentioned in subsection 133-120(2) for the superannuation interest; and (b) the expected date of payment of the benefit.
Note:
If a person is dissatisfied with a notice given to the Commissioner under this subsection, the person may make a complaint under the AFCA scheme (within the meaning of the Corporations Act 2001).
133-140(1A)
The notice does not need to state the amount of the end benefit cap if: (a) the *superannuation provider has already given the Commissioner notice of the end benefit cap under subsection 133-120(2); or (b) before the end of the period mentioned in subsection (2), the Commissioner has advised the superannuation provider under subsection 133-135(2) that the debt account is not in debit.
133-140(2)
The notice must be given within 14 days after the earlier of: (a) the *superannuation provider receiving a request (if any) to pay the *superannuation benefit; and (b) the superannuation benefit becoming payable.
133-140(3)
However, this section does not apply if the *superannuation provider has not been given a notice under section 133-75 saying that the Commissioner has started to keep a debt account for the *superannuation interest.
133-140(4)
A notice under this section must be given in the *approved form.
If an entity that gives the Commissioner a notice under section 133-140 becomes aware of a material change or material omission in any information given to the Commissioner in the notice, the entity must:
(a) tell the Commissioner of the change in the *approved form; or
(b) give the omitted information to the Commissioner in the approved form.
133-145(2)
Information required by this section must be given no later than 7 days after the entity becomes aware of the change or omission.
This Division contains rules about release authorities, which allow money to be released from a superannuation plan to pay your debt account discharge liability.
SECTION 135-5 WHAT THIS SUBDIVISION IS ABOUT
The Commissioner must issue you with a release authority to allow money to be released from a superannuation plan to pay your debt account discharge liability.
| Operative provisions | |
| 135-10 | Release authorities |
SECTION 135-10 RELEASE AUTHORITIES 135-10(1)
If the condition mentioned in column 1 of an item in the following table is satisfied:
(a) the Commissioner must issue you with a release authority under that item; and
(b) you have a release entitlement :
(i) equal to the amount mentioned in column 2 of that item; and
(ii) arising at the time mentioned in column 3 of that item.
| Release entitlement | |||
| Item |
Column 1
Condition: |
Column 2
Amount of the release entitlement: |
Column 3
Time at which the release entitlement arises: |
| 1-2 | (Repealed by No 81 of 2016) | ||
| 3 | You become liable to pay your *debt account discharge liability for a *superannuation interest | The amount of your debt account discharge liability | On the giving of the notice under section 133-125 |
Note:
A release authority issued under item 3 of the table can only be given to the superannuation provider that holds the superannuation interest to which the debt account relates: see subsection 135-40(3).
Requirements for release authority
135-10(2)
A release authority must:
(a) state the amount of the *release entitlement in respect of which it is given; and
(b) be dated; and
(c) contain any other information that the Commissioner considers relevant.
Commissioner may issue a further release authority
135-10(3)
The Commissioner may at any time issue you with a further release authority in respect of a *release entitlement if:
(a) the Commissioner is satisfied that it is reasonable in the circumstances to do so; and
(b) the Commissioner has issued you with an earlier release authority in respect of that release entitlement.
Despite paragraph (2)(a), the further release authority must state the amount the Commissioner considers reasonable in the circumstances, but not exceeding the amount of the release entitlement.
Note:
For variation and revocation of release authorities, see subsection 33(3) of the Acts Interpretation Act 1901.
Release authority not to be issued to trustee of deceased estate
135-10(4)
To avoid doubt, this section does not require or permit the Commissioner to issue a release authority to the trustee of a deceased estate.
SECTION 135-35 WHAT THIS SUBDIVISION IS ABOUT
You may give a release authority to a superannuation provider within 120 days of being issued with it.
| Operative provisions | |
| 135-40 | When you may give release authority to superannuation provider |
| 135-45 | (Repealed by No 81 of 2016) |
SECTION 135-40 WHEN YOU MAY GIVE RELEASE AUTHORITY TO SUPERANNUATION PROVIDER 135-40(1)
You may give the release authority to a *superannuation provider that holds a *superannuation interest for you within 120 days after the date of the release authority.
135-40(2)
You may request the *superannuation provider, in writing, to pay a specified amount in relation to the release authority.
Note 1:
For the amount that the provider pays under a release authority, see section 135-85.
Note 2:
If excess amounts are paid in relation to a release authority:
135-40(3)
However, a release authority issued under item 3 of the table in subsection 135-10(1) (for debt account discharge liability) may only be given to the *superannuation provider that holds the *superannuation interest to which the debt account relates.
(Repealed by No 81 of 2016)
SECTION 135-70 WHAT THIS SUBDIVISION IS ABOUT
This Subdivision sets out a general requirement for a superannuation provider to comply with a release authority.
The Subdivision also includes provisions about how much must be paid, who it must be paid to, which interest it is to be paid from, and how the payments are treated by the Commissioner.
| Operative provisions | |
| 135-75 | Requirement for superannuation provider to release money |
| 135-80 | Compensation for acquisition of property |
| 135-85 | Release amount |
| 135-90 | How the Commissioner applies amounts received under a release authority |
| 135-95 | Defined benefit interests - releasing amounts to pay debt account discharge liability |
| 135-100 | Income tax treatment of amounts released - proportioning rule does not apply |
SECTION 135-75 REQUIREMENT FOR SUPERANNUATION PROVIDER TO RELEASE MONEY 135-75(1)
If:
(a) a *superannuation provider has been given a release authority in accordance with Subdivision 135-B; and
(b) the amount mentioned in section 135-85 (the release amount ) is greater than nil;
the superannuation provider must pay the release amount within 30 days after receiving the release authority.
Who superannuation provider pays the amount to
135-75(2)
The release amount must be paid to the Commissioner.
135-75(3)
(Repealed by No 81 of 2016)
Note 1:
Section 288-95 provides for an administrative penalty for failing to comply with this section.
Note 2:
For the taxation treatment of the payment, see sections 303-20 and 304-20 of the Income Tax Assessment Act 1997.
Note 3:
For reporting obligations on the superannuation provider in these circumstances, see section 390-65 in this Schedule.
Which superannuation interest the amount is to be paid from
135-75(4)
The payment must be made out of one or more *superannuation interests (other than a *defined benefit interest) held by the *superannuation provider for the individual.
If the operation of section 135-75 would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from an entity otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the entity.
135-80(2)
If the Commonwealth and the entity do not agree on the amount of the compensation, the entity may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
The amount is the least of the following amounts:
(a) the amount stated in the release authority, as issued by the Commissioner;
(b) if the individual or Commissioner requests the *superannuation provider, in writing, to pay a specified amount in relation to the release authority - that amount;
(c) the sum of the *maximum available release amounts for each *superannuation interest (other than a *defined benefit interest) held by the superannuation provider for the individual in *superannuation plans.
Note:
For the maximum available release amount , see section 131-45.
If the Commissioner receives a payment under a release authority, it is taken for the purposes of Part IIB to have been received in respect of a current or anticipated tax debt of the individual.
Note:
Part IIB is about running balance accounts and the application of payments and credits.
(Repealed by No 81 of 2016)
135-90(3)
(Repealed by No 81 of 2016)
The exclusion of *defined benefit interests from subsection 135-75(4) and paragraph 135-85(c) is to be disregarded for a release authority issued under item 3 of the table in subsection 135-10(1) (about debt account discharge liability).
Section 307-125 of the Income Tax Assessment Act 1997 (the proportioning rule) does not apply to a payment made as required or permitted under this Division.
Note:
Further provisions about the income tax treatment of amounts released are in sections 303-20 and 304-20 of that Act.
If you have excess transfer balance in your transfer balance account, the Commissioner may require you and your superannuation income stream provider to reduce the total amount of your superannuation income streams that are in the retirement phase.
SECTION 136-5 WHAT THIS SUBDIVISION IS ABOUT
If your transfer balance account exceeds the transfer balance cap, the excess must be reduced by commuting in full or in part your superannuation income streams that are in the retirement phase.
If you have more than one superannuation income stream, you may choose which one to commute.
| Operative provisions | |
| 136-10 | Excess transfer balance determination |
| 136-15 | Review |
| 136-20 | Electing to commute a different superannuation income stream |
| 136-25 | Notifying Commissioner of transfer balance debits |
SECTION 136-10 EXCESS TRANSFER BALANCE DETERMINATION 136-10(1)
If you have *excess transfer balance in your *transfer balance account at the end of a day, the Commissioner may make a written determination stating the amount of that excess transfer balance.
Note:
It is not necessary for the Commissioner to issue a determination under this subsection if the Commissioner becomes aware that you no longer have an excess transfer balance. You are still liable to pay excess transfer balance tax if no determination is issued: see Subdivision 294-F of the Income Tax Assessment Act 1997.
136-10(2)
A determination under this section is an excess transfer balance determination .
136-10(3)
The amount of *excess transfer balance stated in an *excess transfer balance determination is a crystallised reduction amount .
136-10(4)
The Commissioner may amend or revoke an *excess transfer balance determination at any time before a commutation authority relating to the determination is issued under section 136-55.
136-10(5)
Notice of a determination given by the Commissioner under this section is prima facie evidence of the matters stated in the notice.
Determination to include default commutation notice
136-10(6)
A determination made under subsection (1) must include a notice:
(a) stating that, if you do not make an election under section 136-20 within the period specified in that section, the Commissioner will issue one or more commutation authorities; and
(b) specifying:
(i) the *superannuation income stream provider or providers to whom a commutation authority will be issued; and
(ii) the *superannuation income stream or streams that the providers will be obliged to commute in full or in part; and
(iii) if more than one commutation authority will be issued - the amount to be stated in each commutation authority, or the method the Commissioner will use to work out the amount to be stated in each commutation authority.
136-10(7)
A notice included with an *excess transfer balance determination in accordance with subsection (6) is a default commutation notice .
If you are dissatisfied with an *excess transfer balance determination made in relation to you, you may object against the determination in the manner set out in Part IVC.
136-15(2)
However, for the purposes of Part IVC, the *default commutation notice does not form part of the taxation decision.
This section applies to you if:
(a) you receive an *excess transfer balance determination under section 136-10; and
(b) you are the *retirement phase recipient of 2 or more *superannuation income streams.
136-20(2)
You may elect which of those *superannuation income streams is to be fully or partially commuted for the purpose of reducing the *transfer balance in your *transfer balance account by the *crystallised reduction amount.
Requirements for election
136-20(3)
You make an election under subsection (2) by:
(a) identifying the *superannuation income stream or streams to be commuted in full or in part and the *superannuation income stream provider for each such stream; and
(b) if you identify more than one superannuation income stream - stating the amount to be commuted from each such income stream.
136-20(4)
The election must:
(a) be in the *approved form; and
(b) be given to the Commissioner within:
(i) 60 days after the *excess transfer balance determination or amended excess transfer balance determination is issued; or
(ii) a further period allowed by the Commissioner.
Election is irrevocable
136-20(5)
An election under this section is irrevocable.
This section applies to you if you have received an *excess transfer balance determination.
136-25(2)
You may notify the Commissioner in the *approved form of the amount of a *transfer balance debit that arises in your *transfer balance account if the debit arises in the period:
(a) beginning when the determination is made; and
(b) ending at the earlier of:
(i) the time you made an election under section 136-20; and
(ii) the end of the period within which an election under section 136-20 may be made.
SECTION 136-50 WHAT THIS SUBDIVISION IS ABOUT
The Commissioner must issue a commutation authority to a superannuation income stream provider, unless you have notified the Commissioner that you have already reduced your excess transfer balance by the crystallised reduction amount.
A superannuation income stream provider will usually be required to commute the superannuation income stream stated in the authority.
| Obligations of Commissioner | |
| 136-55 | Issuing of commutation authorities |
| 136-60 | Varying and revoking a commutation authority |
| 136-65 | Issuing further commutation authorities |
| 136-70 | Notifying of non-commutable excess transfer balance |
| Obligations of superannuation income stream providers | |
| 136-80 | Obligations on superannuation income stream providers |
| 136-85 | Notifying the Commissioner |
| 136-90 | Notifying you |
SECTION 136-55 ISSUING OF COMMUTATION AUTHORITIES
Commutation authority must be issued if there is a commutable amount
136-55(1)
The Commissioner must issue a commutation authority under this section to one or more *superannuation income stream providers if:
(a) an *excess transfer balance determination has been issued to you; and
(b) the excess transfer balance determination has not been revoked; and
(c) the period mentioned in subsection 136-20(4) has ended; and
(d) an amount (the commutable amount )greater than nil remains after reducing the *crystallised reduction amount by the sum of any *transfer balance debits notified to the Commissioner under section 136-25.
Issuing in response to a valid election
136-55(2)
If you have made a valid election under section 136-20, the Commissioner must issue a commutation authority under this section to each *superannuation income stream provider identified in your election.
136-55(3)
If the total of the amounts stated in your election under section 136-20 falls short of the commutable amount, the Commissioner must also issue a commutation authority to one or more *superannuation income stream providers specified in the *default commutation notice.
Issuing if you do not make a valid election
136-55(4)
If you have not made a valid election under section 136-20, the Commissioner must issue a commutation authority to each *superannuation income stream provider specified in the *default commutation notice.
Requirements for commutation authority
136-55(5)
Each commutation authority must:
(a) specify the *superannuation income stream that the *superannuation income stream provider is to commute, in full or in part; and
(b) state the amount (the reduction amount ) by which the superannuation income stream is to be reduced; and
(c) be dated; and
(d) contain any other information that the Commissioner considers relevant.
136-55(6)
The total of all reduction amounts stated in commutation authorities issued under this section relating to an *excess transfer balance determination must not exceed the commutable amount.
The Commissioner may vary or revoke a commutation authority at any time before the Commissioner receives a notice under section 136-85 relating to the commutation authority.
The Commissioner may issue a commutation authority under this section to one or more *superannuation income stream providers under this section if:
(a) a commutation authority (the original commutation authority ) was issued under section 136-55; and
(b) the *superannuation income stream provider to which the original commutation authority was issued:
(i) paid a *superannuation lump sum that fell short of the reduction amount stated in the original commutation authority; or
(ii) did not comply with the original commutation authority.
136-65(2)
A commutation authority issued under this section must include the matters set out in subsection 136-55(5).
136-65(3)
The Commissioner may issue a commutation authority under this section to any *superannuation income stream provider of a *superannuation income stream of which you are the *retirement phase recipient.
136-65(4)
The total of all reduction amounts stated in commutation authorities issued under this section relating to an *excess transfer balance determination must not exceed the difference between:
(a) the commutable amount mentioned in subsection 136-55(1); and
(b) the sum of:
(i) any *superannuation lump sums notified to the Commissioner under section 136-85 in respect of the determination; and
(ii) any *transfer balance debits arising in your *transfer balance account under item 5 of the table in subsection 294-80(1) of the Income Tax Assessment Act 1997 because of any original commutation authority.
The Commissioner must notify you in writing if, at the end of a day after the Commissioner has issued an *excess transfer balance determination to you:
(a) the sum of all *transfer balance debits arising in your *transfer balance account since the determination was issued falls short of the *crystallised reduction amount; and
(b) you have *excess transfer balance in your transfer balance account; and
(c) either:
(i) the only *superannuation income streams of which you are a *retirement phase recipient are *capped defined benefit income streams; or
(ii) you are no longer a retirement phase recipient of any superannuation income stream.
Note:
A debit arises in your transfer balance account when the Commissioner issues a notice under this section: see item 7 of the table in subsection 294-80(1) of the Income Tax Assessment Act 1997.
136-70(2)
A notice under subsection (1) must state the amount of the *excess transfer balance mentioned in paragraph (1)(b).
SECTION 136-80 OBLIGATIONS ON SUPERANNUATION INCOME STREAM PROVIDERS 136-80(1)
A *superannuation income stream provider issued with a commutation authority under this Subdivision must, within 60 days after the commutation authority is issued, pay by way of commutation of the specified *superannuation income stream, a *superannuation lump sum equal to the lesser of:
(a) the reduction amount stated in the commutation authority; and
(b) the *maximum available release amount for the *superannuation interest that supports the specified superannuation income stream.
Exception for capped defined benefit income streams
136-80(2)
Despite subsection (1), if the specified *superannuation income stream is a *capped defined benefit income stream, the *superannuation income stream provider may choose not to comply with the commutation authority.
Exception for deceased member
136-80(3)
Despite subsection (1), if the *retirement phase recipient has died, the *superannuation income stream provider may choose not to comply with the commutation authority.
A *superannuation income stream provider issued with a commutation authority under this Subdivision must notify the Commissioner of the amount of a *superannuation lump sum paid in accordance with the commutation authority.
136-85(2)
If a *superannuation income stream provider chooses under subsection 136-80(2) or (3) not to comply with the commutation authority, the provider must notify the Commissioner of that choice.
136-85(3)
A notice under this section must be in the *approved form and must be given within 60 days after the commutation authority is issued.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
A *superannuation income stream provider issued with a commutation authority under this Subdivision must notify you if the superannuation income stream provider:
(a) pays a *superannuation lump sum in accordance with the commutation authority; or
(b) chooses under subsection 136-80(2) not to comply with the commutation authority.
136-90(2)
A notice under this section must be in the *approved form and must be given within 60 days after the commutation authority is issued.
Note:
Section 286-75 provides an administrative penalty for breach of this subsection.
If you have had voluntary contributions into superannuation, you may be eligible to have those contributions and their associated earnings released for the purposes of purchasing or constructing your first home.
SECTION 138-5 WHAT THIS SUBDIVISION IS ABOUT
If you satisfy particular criteria, you may request that the Commissioner make a determination stating your FHSS maximum release amount and the components that make up that amount.
| Operative provisions | |
| 138-10 | First home super saver determination |
| 138-12 | Withdrawing or amending your request |
| 138-13 | Amending or revoking a first home super saver determination |
| 138-15 | Review |
SECTION 138-10 FIRST HOME SUPER SAVER DETERMINATION
First home super saver determination
138-10(1)
A first home super saver determination is a written determination stating: (a) your *FHSS maximum release amount; and (b) the amount of each of the following components that make up your FHSS maximum release amount:
(i) your *concessional contributions;
(ii) your *non-concessional contributions;
(iii) your associated earnings.
Requesting a first home super saver determination
138-10(2)
You may request the Commissioner, in the *approved form, to make a *first home super saver determination if: (a) you have never held:
(i) a legal interest in an estate in fee simple in real property in Australia; or
(ii) a legal interest in a lease of land in Australia (including a renewal or extension of such a lease) as described in paragraph 104-115(1)(b) of the Income Tax Assessment Act 1997; or
(b) you are 18 years or older; and (c) subsection (2C) applies for you.
(iii) a company title interest (within the meaning of Part X of the Income Tax Assessment Act 1936) in land in Australia; and
138-10(2A)
If the Commissioner determines that you have suffered a financial hardship, you are taken to have satisfied paragraph (2)(a).
138-10(2B)
The regulations may specify the circumstances in which the Commissioner is to determine that a person has suffered a financial hardship for the purposes of subsection (2A).
138-10(2C)
This subsection applies for you if: (a) you have not previously made a valid request for a release authority under Division 131 in relation to a *first home super saver determination made in relation to you; or (b) one of the following subparagraphs applies for each of your previous valid requests for such a release authority:
(i) you have withdrawn the request;
(ii) the Commissioner has revoked the release authority issued in relation to the request (whether or not the release authority had previously been varied);
(iii) after one or more amendments of the request, you have withdrawn the latest of those amended requests;
(iv) the Commissioner has revoked the release authority issued in relation to the latest of one or more amendments of the request (whether or not the release authority had previously been varied).
Making a first home super saver determination etc.
138-10(3)
If you make a valid request under subsection (2), the Commissioner must make a *first home super saver determination in relation to you.
138-10(4)
(Repealed by No 75 of 2023)
138-10(5)
Notice of a determination given by the Commissioner under this section is prima facie evidence of the matters stated in the notice.
You may, by notifying the Commissioner in the *approved form, withdraw or amend your valid request made under section 138-10 if: (a) in the case of amending your request - you satisfy paragraphs 138-10(2)(a) to (c); and (b) the Commissioner has not already made a *first home super saver determination in relation to your request.
138-12(2)
Your amended request is treated as a valid request under section 138-10.
138-12(3)
Withdrawing your request does not prevent you from making a later request under section 138-10.
The Commissioner may decide to: (a) amend a *first home super saver determination made in relation to you if you satisfy paragraphs 138-10(2)(a) to (c); or (b) revoke a first home super saver determination made in relation to you;
at any time before the Commissioner begins treating, under Division 3 of Part IIB, any credit to which you have become entitled under section 131-65 in relation to a release authority relating to the determination.
Note:
Like other first home super saver determinations, an amended determination will need to comply with Subdivision 138-B.
138-13(2)
The Commissioner may make a decision under subsection (1): (a) on the Commissioner's own initiative; or (b) on application by you to the Commissioner in the *approved form.
138-13(3)
If a *first home super saver determination is amended or revoked under subsection (1) at a particular time, then at that time: (a) each of the following ceases to be valid or in force:
(i) any request under section 131-5 for a release authority in relation to that determination;
(b) any entitlement under section 131-65 you had to a credit relating to such a request ceases.
(ii) any release authority issued in relation to such a request; and
Note:
Paragraphs (a) and (b) apply to a request or release authority whether or not it has been amended or varied.
138-13(4)
Notice of an amended determination given by the Commissioner under this section is prima facie evidence of the matters stated in the notice. For the purposes of paragraph 131-5(3)(c), the Commissioner is treated as issuing the amended determination at the time this notice is given.
If you are dissatisfied with: (a) a *first home super saver determination in relation to you; or (b) a decision the Commissioner makes not to make a determination under subsection 138-10(2A); or (c) a decision the Commissioner makes under subsection 138-13(1):
(i) to amend or revoke a determination; or
(ii) not to amend or revoke a determination;
you may object against the determination, or the decision, as the case requires, in the manner set out in Part IVC.
SECTION 138-20 WHAT THIS SUBDIVISION IS ABOUT
Your FHSS maximum release amount comprises your eligible non-concessional contributions, 85% of your eligible concessional contributions, and your associated earnings.
There are limits on the amount of contributions that may be eligible for release.
| Operative provisions | |
| 138-25 | FHSS maximum release amount |
| 138-30 | FHSS releasable contributions amount |
| 138-35 | Eligible contributions |
| 138-40 | Associated earnings |
SECTION 138-25 138-25 FHSS MAXIMUM RELEASE AMOUNT
Your FHSS maximum release amount is the sum of:
(a) your *FHSS releasable contributions amount worked out under section 138-30; and
(b) your associated earnings worked out under section 138-40.
Your FHSS releasable contributions amount is the sum of the following amounts for each *financial year that starts on 1 July 2017 or a later 1 July:
(a) your *FHSS eligible non-concessional contributions for the financial year;
(b) 85% of your *FHSS eligible concessional contributions for the financial year.
Order of counting contributions
138-30(2)
In determining which contributions are to be counted towards your *FHSS releasable contributions amount, contributions are to be counted in the order in which they were made (from earliest to latest).
138-30(3)
For subsection (2):
(a) if an *FHSS eligible concessional contribution, and an *FHSS eligible non-concessional contribution, is made in respect of you at the same time, the FHSS eligible non-concessional contribution is taken to have been made first; and
(b) if, for a particular *financial year, you personally made both *FHSS eligible concessional contributions and *FHSS eligible non-concessional contributions, the FHSS eligible non-concessional contributions are taken to have been made first.
Example:
For paragraph (b), in the 2018-2019 financial year, you made voluntary contributions of $1,000 each fortnight, up to a total of $25,000. At the end of the financial year, you claim a deduction for $15,000 (leaving $10,000 of the contributions as non-concessional contributions).
If all of the non-concessional contributions are eligible to be released under section 138-35, the first 10 contributions made for the financial year are taken to have been the non-concessional contributions, and the later contributions are taken to be the concessional contributions.
Limits on amount of eligible contributions
138-35(1)
For the purposes of this Subdivision: (a) the maximum amount of contributions that may be eligible to be released is $50,000; and (b) the maximum amount of contributions made in a particular *financial year that may be eligible to be released is $15,000.
Eligible contributions
138-35(2)
A *concessional contribution, or *non-concessional contribution, for a *financial year is not eligible to be released unless it: (a) is made in respect of you in the financial year; and (b) is:
(i) an employer contribution that is not a mandated employer contribution (within the meaning of Part 5 of the Superannuation Industry (Supervision) Regulations 1994); or
other than a contribution to the extent it is required to be made because of a law of the Commonwealth or of a State or Territory, or the rules of the relevant *superannuation fund; and (c) is not a contribution made in respect of a *defined benefit interest; and (d) is not a contribution to a *constitutionally protected fund.
(ii) a member contribution (within the meaning of that Part) that is made by you;
138-35(3)
If: (a) you have *excess concessional contributions for a *financial year ( your excess amount ); and (b) your excess amount is greater than your *concessional contributions for the financial year that are not eligible to be released under subsection (2) ( your non-eligible contributions );
concessional contributions that are equal to the difference between your excess amount and your non-eligible contributions are not eligible to be released.
138-35(4)
If: (a) you have *non-concessional contributions for the *financial year that exceed your non-concessional contributions cap for the financial year ( your excess amount ); and (b) your excess amount is greater than your non-concessional contributions for the financial year that are not eligible to be released under subsection (2) ( your non-eligible contributions );
non-concessional contributions that are equal to the difference between your excess amount and your non-eligible contributions are not eligible to be released.
138-35(5)
For the purposes of this section, disregard paragraph 292-90(1)(b) of the Income Tax Assessment Act 1997.
Note:
Under paragraph 292-90(1)(b) of the Income Tax Assessment Act 1997, your non-concessional contributions for a financial year would include the amount of your excess concessional contributions (if any) for the financial year.
You are taken to have associated earnings equal to the sum of the amounts worked out under subsection (2) for each contribution counted in your *FHSS releasable contributions amount.
138-40(2)
The amount for a contribution is equal to the sum (rounded down to the nearest dollar) of the amounts worked out under the following formula for each of the days during the period mentioned in subsection (3).
| Shortfall interest charge rate | × | ( | Amount of contribution | + | Sum of earlier daily proxy amounts | ) |
where:
amount of contribution
means the amount of the contribution that is counted in your *FHSS releasable contributions amount.
shortfall interest charge rate
means the rate, worked out under subsection 280-105(2), for the day.
sum of earlier daily proxy amounts
means the sum of the amounts worked out for the contribution under the formula for each of the earlier days (if any) during the period for the contribution.
138-40(3)
The period starts:
(a) if the contribution is made in the *financial year starting on 1 July 2017 - on 1 July 2017; and
(b) if the contribution is made in the financial year starting on 1 July 2018, or a later financial year - on the first day of the month in which the contribution is made or taken to have been made (see subsection 138-30(2));
and ends on the day the Commissioner makes the *first home super saver determination for which the associated earnings are being worked out.
The Commissioner can make an assessment of diverted profits tax. The entity that is the subject of the assessment can appeal to the Federal Court against the Commissioner's decision to make the assessment. Such an appeal can be made generally no earlier than 12 months after the day on which the Commissioner first gives notice of the assessment to the entity.
| 145-5 | DPT assessments - modified application of Division 155 |
| 145-10 | When DPT assessments can be made |
| 145-15 | Period of review of DPT assessments |
| 145-20 | Review of assessments |
| 145-25 | Restricted DPT evidence |
In applying Division 155 in relation to an amount of *diverted profits tax:
(a) apply the provisions of that Division with the modifications set out in sections 145-10 to 145-25; and
(b) disregard sections 155-15, 155-20, 155-25, 155-30, 155-40, 155-45, 155-50, 155-55 and 155-70.
Despite subsection 155-5(1), the Commissioner can make an assessment (the DPT assessment ) of the amount of *diverted profits tax only at a time in the period:
(a) starting on the day on which the Commissioner first gives the entity that is the subject of the assessment a notice of assessment under Part IV of the Income Tax Assessment Act 1936 for the income year mentioned in paragraph 177J(1)(a) of the Income Tax Assessment Act 1936 (as that paragraph applies in relation to the amount of diverted profits tax); and
(b) ending on the last day of the period of 7 years starting the day after that day.
Despite subsection 155-35(2), the period of review , for the *DPT assessment, is:
(a) the period:
(i) starting on the day on which the Commissioner first gives notice of the assessment to the entity that is the subject of the assessment under section 155-10; and
(ii) ending on the last day of the period of 12 months starting the day after that day; or
(b) if:
(i) the entity, by written notice given to the Commissioner, specifies a shorter period in accordance with subsection (2); and
(ii) the Federal Court of Australia has not made an order under subsection (3) in respect of the written notice;
that shorter period; or
(c) if the period of review is extended under subsection 155-35(3) or (4) - the period as so extended.
145-15(2)
For the purposes of subparagraph (1)(b)(i), the shorter period must:
(a) start on the day mentioned in subparagraph (1)(a)(i); and
(b) end on a day that is at least 30 days after the day on which the entity gives the written notice to the Commissioner.
145-15(3)
For the purposes of subparagraph (1)(b)(ii), the Federal Court of Australia may make an order under this subsection in respect of the written notice if:
(a) the Commissioner has started to examine the entity's affairs in relation to the assessment; and
(b) the Commissioner has not completed the examination within the shorter period specified in the written notice; and
(c) the Commissioner, within 30 days after the day on which the entity gives the written notice to the Commissioner, applies to the Court for the order; and
(d) the Court is satisfied that it was not reasonably practicable, or it was inappropriate, for the Commissioner to complete the examination within the shorter period specified in the written notice, because of:
(i) any action taken by the entity; or
(ii) any failure by the entity to take action that it would have been reasonable for the entity to take.
145-15(4)
Despite subsection 155-35(5), in relation to the *DPT assessment:
(a) an order may be made under subsection 155-35(3) only once; and
(b) consent may be given under subsection 155-35(4) only once.
Section 155-90 does not apply during the *period of review mentioned in section 145-15.
145-20(2)
In applying Part IVC of this Act as a result of section 155-90 after the end of that *period of review:
(a) have regard only to the provisions of that Part mentioned in subsection (3); and
(b) apply those provisions with the modifications set out in subsection (4); and
(c) disregard the other provisions of that Part; and
(d) apply section 145-25 (restricted DPT evidence).
145-20(3)
For the purposes of paragraph (2)(a), the provisions of that Part are as follows:
(a) sections 14ZL and 14ZP;
(b) subsection 14ZR(1);
(c) subsection 14ZZ(1);
(d) Division 5 (apart from section 14ZZS).
145-20(4)
For the purposes of paragraph (2)(b), the modifications are as follows:
(a) treat the Commissioner's decision to make the *DPT assessment as an objection decision;
(b) treat subsection 14ZZ(1) as reading "The entity that is the subject of the DPT assessment may appeal to the Federal Court of Australia against the objection decision.";
(c) treat the reference in section 14ZZN to "within 60 days after the person appealing is served with notice of the decision" as being a reference to "within 60 days after the end of the period of review mentioned in section 145-15 in Schedule 1";
(d) disregard paragraph 14ZZO(a);
(e) treat paragraph 14ZZO(b) as reading "the appellant has the burden of proving that the DPT assessment is excessive or otherwise incorrect and what the DPT assessment should have been";
(f) treat the reference in section 14ZZR to a taxation decision as being a reference to the Commissioner's decision to make the DPT assessment.
*Restricted DPT evidence is not admissible in evidence in proceedings under Part IVC on an appeal to the Federal Court of Australia related to the *DPT assessment.
145-25(2)
Restricted DPT evidence means information or documents that:
(a) the entity that is the subject of the *DPT assessment (or an associate (within the meaning of section 318 of the Income Tax Assessment Act 1936) of that entity), had in its custody or under its control at a time before, during or after the *period of review; and
(b) the Commissioner did not have in his or her custody or under his or her control at any time in the period of review.
145-25(3)
Subsection (1) does not prevent *restricted DPT evidence from being admissible in evidence in the proceedings if:
(a) the Commissioner consents to the admission of the restricted DPT evidence in accordance with subsection (4); or
(b) the court in which the proceedings take place considers that the admission of the restricted DPT evidence is necessary in the interests of justice; or
(c) the restricted DPT evidence is expert evidence that:
(i) comes into existence after the *period of review; and
(ii) is based on evidence that the Commissioner had in his or her custody or under his or her control at any time in the period of review.
145-25(4)
For the purposes of paragraph (3)(a), the Commissioner may give the consent if the Commissioner considers that it is reasonable to do so.
145-25(5)
In making a decision under paragraph (3)(a) or (b), the Commissioner or the court must have regard to:
(a) whether, if the *restricted DPT evidence were not admissible in evidence in the proceedings, the remaining information or documents that are relevant to the proceedings are, or are likely to be, misleading; and
(b) whether it would have been reasonable for the entity that is the subject of the *DPT assessment (or the associate of that entity mentioned in paragraph (2)(a)) to have given the Commissioner the restricted DPT evidence within the *period of review.
145-25(6)
The Commissioner must give a consent for the purposes of paragraph (3)(a) if failure to do so would have the effect, for the purposes of the Constitution, of making any tax or penalty incontestable.
145-25(7)
A consent for the purposes of paragraph (3)(a) is to be in writing.
145-25(8)
If the Commissioner gives a consent for the purposes of paragraph (3)(a), the Commissioner must give the entity that is the subject of the *DPT assessment a copy of the consent as soon as practicable afterwards.
This Division contains rules relating to assessments.
The rules in this Division deal with the following:
The Commissioner may at any time make an assessment of an *assessable amount (including an assessment that the amount is nil).
Note 1:
For amendment of assessments, see Subdivision 155-B.
Note 2:
An assessment can be reviewed: see Subdivision 155-C.
155-5(2)
Each of the following is an assessable amount: (a) a *net amount; (b) a *net fuel amount; (c) an amount of *indirect tax not included in an amount covered by another paragraph of this subsection; (d) a credit under an *indirect tax law not included in an amount covered by another paragraph of this subsection;
(e) (Repealed by No 96 of 2014) (f) an amount of *Division 293 tax payable for an income year in relation to an individual's *taxable contributions for the income year; (g) an amount of *excess exploration credit tax for an income year; (h) an amount of *excess transfer balance tax payable for an *excess transfer balance period; (i) an amount of levy under the Major Bank Levy Act 2017 for a *quarter; (ia) an amount of *Australian IIR/UTPR tax; (ib) an amount of *Australian DMT tax; (j) an amount of *diverted profits tax; (k) an amount of *first home super saver tax for an income year; (l) an amount of *Laminaria and Corallina decommissioning levy for a financial year; (m) an amount of *build to rent development misuse tax.
Note:
This Division has a modified operation in relation to diverted profits tax (see Division 145).
The Commissioner must give you notice of an assessment of an *assessable amount of yours as soon as practicable after the assessment is made.
Note:
This section also applies to an amended assessment: see section 155-80.
155-10(2)
The Commissioner may give you the notice electronically if you are required to lodge, or have lodged, the return (if any) that relates to the *assessable amount electronically.
The Commissioner is treated as having made an assessment under section 155-5 of an *assessable amount mentioned in an item of the following table, if the document mentioned in the item is given to the recipient mentioned in the item:
| Self-assessed amounts | |||
| Item |
Column 1
Assessable amount |
Column 2
Recipient |
Column 3
Document |
| 1 | your *net amount for a *tax period | the Commissioner | your *GST return for the tax period |
| 2 | your *net fuel amount for a *tax period | the Commissioner | your *fuel tax return for the tax period |
| 3 | the *GST payable by you on a *taxable importation | the Collector (within the meaning of the Customs Act 1901) or the Department administered by the Minister administering Part XII of that Act | return, given as described in one of the following provisions, in relation to the importation: |
| (a) paragraph 69(8)(a), (b), (c) or (da), or 70(7)(a), of the Customs Act 1901; | |||
| (b) regulations prescribed for the purposes of paragraph 69(8)(d) of that Act | |||
| 4 | an amount of *excess exploration credit tax for an income year | the Commissioner | return given under section 418-160 for the income year |
| 5 | an amount of levy under the Major Bank Levy Act 2017 for a *quarter | the Commissioner | return given under section 115-5 for the quarter |
| 6 | an amount of *Australian IIR/UTPR tax for a *Fiscal Year | the Commissioner | *Australian IIR/UTPR tax return given under section 127-35 for the Fiscal Year |
| 7 | an amount of *Australian DMT tax for a *Fiscal Year | the Commissioner | *Australian DMT tax return given under section 127-45 for the Fiscal Year |
Note:
There is no self-assessment of Division 293 tax, excess transfer balance tax or first home super saver tax.
155-15(2)
The assessment is treated as having been made on the day the document is given to the recipient mentioned in column 2.
155-15(3)
The amount assessed is: (a) if the documentis required to state the *assessable amount - the amount (including a nil amount) stated; or (b) otherwise - the amount (including a nil amount) worked out in accordance with the information stated in the document.
155-15(4)
The document is treated as being a notice of the assessment: (a) signed by the Commissioner; and (b) given to you under section 155-10 on the day the document is given to the recipient.
155-15(5)
This section does not apply to an *assessable amount if the Commissioner has already assessed the assessable amount on or before the day mentioned in paragraph (4)(b).
The Commissioner is treated as having made an assessment under section 155-5 of the *GST, *luxury car tax or *wine tax (whichever is applicable) payable by you on a *taxable importation, *taxable importation of a luxury car or *customs dealing, if:
(a) the document mentioned in column 1 of an item of the following table is communicated to the Department administered by the Minister administering Part XII of the Customs Act 1901, in respect of the importation or dealing; and
(b) a Collector (within the meaning of the Customs Act 1901) gives the document mentioned in column 2 of the item to an entity in respect of the importation or dealing.
| Customs documents | ||
| Item |
Column 1
Document communicated |
Column 2
Document given to an entity |
| 1 | an *import declaration | an *import declaration advice |
| 2 | a self-assessed clearance declaration (within the meaning of the Customs Act 1901) | a *self-assessed clearance declaration advice |
155-20(2)
The assessment is treated as having been made on the day a Collector (within the meaning of the Customs Act 1901) gives the document mentioned in paragraph (1)(b) to the entity.
155-20(3)
The amount assessed is the amount (including a nil amount) worked out in accordance with the information stated in the 2 documents.
155-20(4)
The 2 documents are treated as together being a notice of the assessment:
(a) signed by the Commissioner; and
(b) given to you under section 155-10 on the day a Collector (within the meaning of the Customs Act 1901) gives the document mentioned in paragraph (1)(b) of this section to the entity.
155-20(5)
This section does not apply if the Commissioner has already assessed the *GST, *luxury car tax or *wine tax on or before the day mentioned in paragraph (4)(b).
For the purposes of making, under section 155-5, an assessment of an *assessable amount that relates to a period (e.g. a tax period), the Commissioner may treat part of the period as being the whole period.
You may give the Commissioner a written notice requiring the Commissioner to make an assessment of an *assessable amount of yours, if, 6 months after the day on which the relevant return (if any) for the assessable amount is given to the Commissioner, the Commissioner has not given to you notice of an assessment of the assessable amount under section 155-10.
155-30(2)
You may object, in the manner set out in Part IVC of this Act, against the Commissioner's failure to make the assessment if the Commissioner does not make the assessment within 30 days after the day the notice is given under subsection (1).
155-30(3)
This section does not apply to the following *assessable amounts: (a) the *Division 293 tax payable by you in relation to an income yearin relation to your *taxable contributions for the income year; (b) the *excess transfer balance tax payable by you for an *excess transfer balance period; (c) the *first home super saver tax payable by you for an income year; (d) the *Laminaria and Corallina decommissioning levy payable by you for a financial year; (e) the *build to rent development misuse tax payable by you for an income year.
SECTION 155-35 AMENDMENT DURING PERIOD OF REVIEW
Amendment
155-35(1)
The Commissioner may amend an assessment of an *assessable amount within the *period of review for the assessment.
Note 1:
An amendment of an assessment can be reviewed: see Subdivision 155-C.
Note 2:
This section also applies to amended assessments: see section 155-80. However, there are limits on how amended assessments can be amended: see sections 155-65 and 155-70.
Meaning of period of review
155-35(2)
The period of review , for an assessment of an *assessable amount of yours, is:
(a) the period:
(i) starting on the day on which the Commissioner first gives notice of the assessment to you under section 155-10; and
(ii) ending on the last day of the period of 4 years starting the day after that day; or
(b) if the period of review is extended under subsection (3) or (4) of this section - the period as so extended.
Extensions
155-35(3)
The Federal Court of Australia may order an extension of the *period of review for an assessment of an *assessable amount of yours for a specified period, if:
(a) the Commissioner has started to examine your affairs in relation to the assessment; and
(b) the Commissioner has not completed the examination within the period of review for the assessment; and
(c) the Commissioner, during the period of review, applies to the Federal Court of Australia for an order extending the period; and
(d) the Court is satisfied that it was not reasonably practicable, or it was inappropriate, for the Commissioner to complete the examination within the period of review, because of:
(i) any action taken by you; or
(ii) any failure by you to take action that it would have been reasonable for you to take.
155-35(4)
You may, by written notice given to the Commissioner, consent to the extension of the *period of review for an assessment of an *assessable amount of yours for a specified period, if:
(a) the Commissioner has started to examine your affairs in relation to the assessment; and
(b) the Commissioner has not completed the examination within the period of review for the assessment; and
(c) the Commissioner, during the period of review, requests you to consent to extending the period of review.
155-35(5)
An order may be made under subsection (3), or consent given under subsection (4), in relation to an assessment of an *assessable amount more than once.
An application made by you for an amendment of an assessment of an *assessable amount of yours is treated as being a notice of the amended assessment given to you by the Commissioner under section 155-10, if:
(a) the application is in the *approved form; and
(b) the Commissioner makes the amendment:
(i) to give effect to the decision on the application; and
(ii) during the *period of review for the assessment; and
(c) the amendment the Commissioner makes is the entire amendment for which you applied, and nothing else.
155-40(2)
The notice is treated as having been given to you on whichever of the following is applicable:
(a) the first day the Commissioner adjusts the balance of an *RBA of yours as a result of the amendment;
(b) the day a Collector (within the meaning of the Customs Act 1901) gives an *import declaration advice, or a *self-assessed clearance declaration advice, to an entity in respect of the relevant *taxable importation, *taxable importation of a luxury car or *customs dealing as a result of the amendment.
The Commissioner may amend an assessment of an *assessable amount of yours at any time, if you apply for an amendment in the *approved form during the *period of review for the assessment. The Commissioner may amend the assessment to give effect to his or her decision on the application.
Note:
The Commissioner must give you notice of the amended assessment under section 155-10: see section 155-80.
The Commissioner may amend an assessment of an *assessable amount of yours at any time, if:
(a) you apply for a *private ruling during the *period of review for the assessment; and
(b) the Commissioner makes a private ruling because of the application.
The Commissioner may amend the assessment to give effect to the ruling.
The Commissioner may amend an assessment of an *assessable amount at any time, if:
(a) the Commissioner makes a declaration under subsection 165-45(3) of the *GST Act (about compensating adjustments for anti-avoidance declarations); or
(b) the Commissioner makes a declaration under subsection 75-45(3) of the Fuel Tax Act 2006 (about compensating adjustments for anti-avoidance declarations).
(c) (Repealed by No 96 of 2014)
The Commissioner may amend the assessment to give effect to the declaration.
(Repealed by No 96 of 2014)
Despite anything in this Subdivision, the Commissioner may amend an assessment of an *assessable amount of yours at any time:
(a) to give effect to a decision on a review or appeal; or
(b) as a result of an objection made by you, or pending a review or appeal; or
(c) if he or she is of the opinion there has been fraud or evasion.
SECTION 155-65 155-65 AMENDING AMENDED ASSESSMENTS
The Commissioner cannot amend an amended assessment of an *assessable amount under section 155-35 if the *period of review for the assessment has ended.
Note:
The Commissioner can amend amended assessments at any time under sections 155-45 to 155-60.
This section applies if the Commissioner has made one or more amendments of an assessment of an *assessable amount of yours under section 155-35 about a particular.
155-70(2)
Despite section 155-65, the Commissioner may amend (the later amendment ) the amended assessment after the end of the *period of review for the assessment, if:
(a) the Commissioner makes the later amendment before the end of the period of 4 years starting on the day after the day on which the Commissioner gave notice of the last of the amendments mentioned in subsection (1) to you under section 155-10; and
(b) the later amendment is about the particular mentioned in subsection (1) of this section; and
(c) the Commissioner has not previously amended the assessment under this section about that particular.
SECTION 155-75 REFUNDS OF AMOUNTS OVERPAID 155-75(1)
This section applies if:
(a) an assessment of an *assessable amount of yours is amended; and
(b) as a result of the amendment, a *tax-related liability (the earlier liability ) of yours is reduced.
155-75(2)
For the purposes of any *taxation law that applies the *general interest charge, the amount by which the *tax-related liability is reduced is taken never to have been payable.
Note 1:
The general interest charge is worked out under Part IIA of this Act.
Note 2:
Subsection 8AAB(4) of this Act lists the provisions that apply the charge.
155-75(3)
The Commissioner must apply the amount of any *tax-related liability overpaid in accordance with Divisions 3 and 3A of Part IIB of this Act (about running balance accounts and the application of payments and credits).
155-75(4)
However, if:
(a) a later amendment of an assessment of an *assessable amount is made; and
(b) all or some of your earlier liability in relation to a particular is reinstated;
this section is taken not to have applied to the extent that the earlier liability is reinstated.
An amended assessment of an *assessable amount is an assessment for all purposes of any *taxation law.
Note:
The Commissioner must give notice of the amended assessment under section 155-10. Under section 155-40, an application for an amendment is treated as being a notice of the amendment in certain circumstances.
The validity of any assessment of an *assessable amount is not affected by non-compliance with the provisions of this Act or of any other *taxation law.
You may object, in the manner set out in Part IVC of this Act, against an assessment of an *assessable amount of yours if you are dissatisfied with the assessment.
Note:
If an individual is dissatisfied with a statement given to the Commissioner by a superannuation provider under section 390-5 in this Schedule, the individual may make a complaint under the AFCA scheme (within the meaning of the Corporations Act 2001).
(Repealed by No 96 of 2014)
Subdivision 155-D - Miscellaneous
This Division applies, in relation to an *assessable amount under a *taxation law, to an entity under that taxation law in the same way as the Division applies to an entity under the Income Tax Assessment Act 1997.
This Part deals with the methods by which the Commissioner may collect and recover amounts of taxes and other liabilities.
These rules may affect you if you are liable to pay an amount of a tax-related liability (see, for example, Division 255). Some of the rules may also affect you because of your relationship with someone else who is liable for such an amount (see Division 260).
| 250-5 | Some important concepts about tax-related liabilities |
| 250-10 | Summary of tax-related liabilities |
A tax-related liability may arise for an entity before it becomes due and payable by that entity.
Example:
Under Part 2-5, an entity's liability to pay a withheld amount may arise before the amount is due and payable.
250-5(2)
For some tax-related liabilities, an assessment needs to be made before the amount of the relevant liability becomes due and payable.
Example:
Under Division 5 of the Income Tax Assessment Act 1997, an amount of income tax needs to be assessed before it becomes due and payable.
250-5(3)
An amount of a tax-related liability may become payable by an entity (for example, when the amount has been assessed) before it is due and payable by that entity.
The following table is an index of each tax-related liability under the Income Tax Assessment Act 1936. The key provision for the liability, as set out in the table, specifies when the liability becomes due and payable.
Note 1:
The Commissioner may vary the time at which the amount becomes due and payable. See Subdivision 255-B.
Note 2:
Members and former members of consolidated groups and MEC groups may be jointly and severally liable to pay certain tax-related liabilities related to the group's activities (see Division 721 of the Income Tax Assessment Act 1997).
| Tax-related liabilities under the Income Tax Assessment Act 1936 | ||
| Item | Topic | Provision |
| 5 | trustee beneficiary non-disclosure tax | 102UO |
| 10 | withholding tax on dividend, interest or royalty | 128C(1) |
| 15 | special tax payable on dealings by offshore banking units | 128NB(3) |
| 20 | mining withholding tax | 128W(1) |
| 25 | (Repealed by No 80 of 2006) | |
| 30-45 | (Repealed by No 16 of 2003) | |
| 50 | late lodgment penalty | former subsection 163A(3) |
| 55 | (Repealed by No 79 of 2010) | |
| 60 | (Repealed by No 101 of 2006) | |
| 65 | (Repealed by No 79 of 2010) | |
| 70 | excessive tax offset refunds | 172A(2) |
| 75 | shortfall interest charge for excessive tax offset refunds | 172A(2A) |
| 80 | diverted profits tax | subsection 177P(3) |
| 85 | shortfall interest charge for diverted profits tax | section 177R |
| 90 | family trust distribution tax | 271-75 in Schedule 2F |
| 100 | interest payable under section 102AAM (about distributions from non resident trust estates) | 5-5 of the Income Tax Assessment Act 1997 |
| 105 | (Repealed by No 4 of 2018) |
250-10(2)
The following table isan index of each tax-related liability under other Acts. The key provision for the liability, as set out in the table, specifies when the liability becomes due and payable.
Note 1:
The Commissioner may vary the time at which the amount becomes due and payable. See Subdivision 255-B.
Note 2:
Members and former members of consolidated groups and MEC groups may be jointly and severally liable to pay certain tax-related liabilities related to the group's activities (see Division 721 of the Income Tax Assessment Act 1997).
Note 3:
Companies that are or were members of the same wholly-owned group as an NZ franking company may be jointly and severally liable to pay certain tax-related liabilities of the NZ franking company (see Division 220 of the Income Tax Assessment Act 1997).
Note 4:
Penalties under Division 175 of the Australian Charities and Not-for-profits Commission Act 2012, and related general interest charge, are treated in the same way as tax-related liabilities: see subsection 175-70(2) of that Act.
Note 5:
A liability for a fee that is due and payable under subsection 113(5) of the Foreign Acquisitions and Takeovers Act 1975 is a tax-related liability if the power of the Treasurer to recover the fee under that subsection is delegated to the Commissioner of Taxation under section 137 of that Act (see subsections 138(1) and (2) of that Act).
| Tax-related liabilities under other legislation | |||
| Item | Topic | Provision | Act |
| 5 | assessed net amount, including amounts in respect of luxury car tax and wine equalisation tax | 33-3, 33-5, 35-5(2) | A New Tax System (Goods and Services Tax) Act 1999 |
| 10 | amount of assessed GST on importations | 33-15 | A New Tax System (Goods and Services Tax) Act 1999 |
| 12 | (Repealed by No 39 of 2012) | ||
| 12A | assessed GST on supplies made in settlement of claims under insurance policies | 78-90 | A New Tax System (Goods and Services Tax) Act 1999 |
| 12B | assessed GST on supplies made in satisfaction of debts | 105-20 | A New Tax System (Goods and Services Tax) Act 1999 |
| 13 | repayments of amounts paid under tourist refund scheme | 168-10 | A New Tax System (Goods and Services Tax) Act 1999 |
| 15 | amount of assessed luxury car tax on importation | 13-20 | A New Tax System (Luxury Car Tax) Act 1999 |
| 16 | excess luxury car tax credits | 17-15 | A New Tax System (Luxury Car Tax) Act 1999 |
| 18 | excess wine tax credits | 17-25 | A New Tax System (Wine Equalisation Tax) Act 1999 |
| 20 | amount of assessed wine tax on customs dealings | 23-5 | A New Tax System (Wine Equalisation Tax) Act 1999 |
| 21 | repayments of amounts paid under tourist refund scheme | 25-10 | A New Tax System (Wine Equalisation Tax) Act 1999 |
| 22 | (Repealed by No 54 of 2003) | ||
| 22A | amount of advance to be repaid | 14A | Diesel and Alternative Fuels Grants Scheme Act 1999 |
| 22B | amount payable as a result of an amended assessment | 15E | Diesel and Alternative Fuels Grants Scheme Act 1999 |
| 23 | (Repealed by No 74 of 2006) | ||
| 24 | excise duty | 54 | Excise Act 1901 |
| 24A | accounting for excisable goods | 60(1), (1A), (1B) and (1C) | Excise Act 1901 |
| 24B | tobacco leaf stock deficiency | 77AA | Excise Act 1901 |
| 24C | accounting for spirit | 77FH | Excise Act 1901 |
| 24CA | penalty for using LPG for excisable LPG use | 77M | Excise Act 1901 |
| 24D | fee for an action that does not relate to an application or a notice | 113(5) | Foreign Acquisitions and Takeovers Act 1975 (but see note 5 to this subsection) |
| 24E | vacancy fee | 115F | Foreign Acquisitions and Takeovers Act 1975 |
| 25 | fringe benefits tax | 90 | Fringe Benefits Tax Assessment Act 1986 |
| 30 | (Repealed by No 2 of 2015) | ||
| 35 | fringe benefits tax instalments | 103 | Fringe Benefits Tax Assessment Act 1986 |
| 36 | assessed net fuel amount | 61-5(2), 61-10 | Fuel Tax Act 2006 |
| 36A | compulsory repayment amount under the Higher Education Support Act 2003 | 5-5 | Income Tax Assessment Act 1997 |
| 36AA | compulsory VETSL repayment amount under the VET Student Loans Act 2016 | 5-5 | Income Tax Assessment Act 1997 |
| 36B | compulsory SSL repayment amount under the Social Security Act 1991 | 5-5 | Income Tax Assessment Act 1997 |
| 36C | compulsory ABSTUDY SSL repayment amount under the Student Assistance Act 1973 | 5-5 | Income Tax Assessment Act 1997 |
| 36D | compulsory AASL repayment amount under the Australian Apprenticeship Support Loans Act 2014 | 5-5 | Income Tax Assessment Act 1997 |
| 37 | income tax | 5-5 | Income Tax Assessment Act 1997 |
| 37AA | shortfall interest charge on income tax | 5-10 | Income Tax Assessment Act 1997 |
| 37AB | shortfall interest charge on excess non-concessional contributions tax | 5-10 | Income Tax Assessment Act 1997 |
| 37AC | shortfall interest charge on Division 293 tax | 5-10 | Income Tax Assessment Act 1997 |
| 37AD | build to rent development misuse tax | 44-40 and 44-45 | Income Tax Assessment Act 1997 |
| 37A | untainting tax | 197-70 | Income Tax Assessment Act 1997 |
| 38 | franking tax | 214-150(1), (2), (3) and (4) | Income Tax Assessment Act 1997 |
| 38A | (Repealed by No 118 of 2013) | ||
| 38B | excess non-concessional contributions tax | 292-385 | Income Tax Assessment Act 1997 |
| 38BA | (Repealed by No 118 of 2013) | ||
| 38BB | Division 293 tax | 293-65 and 293-70 | Income Tax Assessment Act 1997 |
| 38BC | excess transfer balance tax | 294-240 and 294-245 | Income Tax Assessment Act 1997 |
| 38BD | first home super saver tax | 313-65 and 313-70 | Income Tax Assessment Act 1997 |
| 38C | (Repealed by No 70 of 2015) | ||
| 38D | excess exploration credit tax | 418-155 | Income Tax Assessment Act 1997 |
| 39 | TSA liability | 721-30 | Income Tax Assessment Act 1997 |
| 39A | managed investment trust withholding tax | 840-810(1) | Income Tax Assessment Act 1997 |
| 39AA | labour mobility program withholding tax | 840-910 | Income Tax Assessment Act 1997 |
| 39B | managed investment trust withholding tax | 840-810(1) | Income Tax (Transitional Provisions) Act 1997 |
| 39C | return of PPL superannuation contribution | 115G(2) | Paid Parental Leave Act 2010 |
| 39D | return of underpaid amount of PPL superannuation contribution | 115L(2) | Paid Parental Leave Act 2010 |
| 39E | Overpayments of PPL superannuation contribution | 115P(3) | Paid Parental Leave Act 2010 |
| 39F | general interest charge relating to PPL superannuation contribution | 115Q | Paid Parental Leave Act 2010 |
| 40 | petroleum resource rent tax | 82 | Petroleum Resource Rent Tax Assessment Act 1987 |
| 41 | shortfall interest charge on petroleum resource rent tax | 82 | Petroleum Resource Rent Tax Assessment Act 1987 |
| 45 | petroleum resource rent tax instalments | 95 | Petroleum Resource Rent Tax Assessment Act 1987 |
| 45A | instalment transfer interest charge | 98C(4) | Petroleum Resource Rent Tax Assessment Act 1987 |
| 45B | liability for excess private health insurance premium reduction or refund | 282-18 | Private Health Insurance Act 2007 |
| 46 | amount of advance to be repaid | 13 | Product Grants and Benefits Administration Act 2000 |
| 47 | amount payable as a result of an amended assessment | 20 | Product Grants and Benefits Administration Act 2000 |
| 48 | penalty under section 35 | 36 | Product Grants and Benefits Administration Act 2000 |
| 50 | superannuation contributions surcharge | 15(3) | Superannuation Contributions Tax (Assessment and Collection) Act 1997 |
| 55 | superannuation contributions surcharge | 15(8) | Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 |
| 60 | superannuation guarantee charge | 46 | Superannuation Guarantee (Administration) Act 1992 |
| 65 | additional superannuation guarantee charge | 47 | Superannuation Guarantee (Administration) Act 1992 |
| 67 | Superannuation (Self Managed Funds) Levy | 15DB | Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 |
| 67A | payment of unclaimed money to the Commissioner | 17 | Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 67B | payment from Commissioner that cannot be credited | 18C | Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 68 | payment in respect of a superannuation interest to the Commissioner | 20F | Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 69 | repayment of Commissioner's payment | 20M | Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 69AA | payment of value of inactive low-balance accounts to the Commissioner | 20QD | Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 69AB | payment from Commissioner that cannot be credited | 20QL | Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 69AC | payment of value of eligible rollover fund accounts to the Commissioner | 21C | Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 69AD | payment from Commissioner that cannot be credited | 21H | Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 69AE | payment of amounts to the Commissioner | 22 | Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 69AF | payment from Commissioner that cannot be credited | 22F | Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 69A | payment of value of lost member accounts to the Commissioner | 24E | Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 69B | payment from Commissioner that cannot be credited | 24L | Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 69BA | payment from Commissioner that cannot be credited | 24NB | Superannuation (Unclaimed Money and Lost Members) Act 1999 |
| 70 | general interest charge | 8AAE | Taxation Administration Act 1953 |
| 73 | (Repealed by No 82 of 2013) | ||
| 75-80 | (Repealed by No 101 of 2006) | ||
| 85 | RBA deficit debt | 8AAZH(1) | Taxation Administration Act 1953 |
| 90 | administrative overpayment made by Commissioner | 8AAZN | Taxation Administration Act 1953 |
| 95 | TFN withholding tax | 14-55 in Schedule 1 | Taxation Administration Act 1953 |
| 100 | TFN withholding tax (ESS) | 14-55 in Schedule 1 | Taxation Administration Act 1953 |
| 101 | payment of amount to Commissioner | 14-200 or 14-205 in Schedule 1 | Taxation Administration Act 1953 |
| 105 | payment of withheld amount to Commissioner | 16-75 in Schedule 1 | Taxation Administration Act 1953 |
| 110 | PAYG withholding non-compliance tax | 18-145 in Schedule 1 | Taxation Administration Act 1953 |
| 115 | quarterly PAYG instalment | 45-61 in Schedule 1 | Taxation Administration Act 1953 |
| 115A | monthly PAYG instalment | 45-67 in Schedule 1 | Taxation Administration Act 1953 |
| 120 | annual PAYG instalment | 45-70 in Schedule 1 | Taxation Administration Act 1953 |
| 125 | general interest charge on shortfall in quarterly instalment worked out on basis of varied rate | 45-230(4) in Schedule 1 | Taxation Administration Act 1953 |
| 130 | general interest charge on shortfall in quarterly instalment worked out on basis of estimated benchmark tax | 45-232 in Schedule 1 | Taxation Administration Act 1953 |
| 135 | general interest charge on shortfall in annual instalment | 45-235(5) in Schedule 1 | Taxation Administration Act 1953 |
| 135Q | (Repealed by No 45 of 2021) | ||
| 135R | amount in accordance with excess superannuation contributions release authority | 131-35 in Schedule 1 | Taxation Administration Act 1953 |
| 136 | amount of major bank levy | 115-10 in Schedule 1 | Taxation Administration Act 1953 |
| 136AA | amount of Laminaria and Corallina decommissioning levy | 125-10 in Schedule 1 | Taxation Administration Act 1953 |
| 136AB | shortfall interest charge on Laminaria and Corallina decommissioning levy | 125-10 in Schedule 1 | Taxation Administration Act 1953 |
| 136AC | Australian IIR/UTPR tax | 127-70 in Schedule 11 | Taxation Administration Act 1953 |
| 136AD | Australian DMT tax | 127-70 in Schedule 11 | Taxation Administration Act 1953 |
| 136AE | shortfall interest charge on Australian IIR/UTPR tax | 127-70 in Schedule 11 | Taxation Administration Act 1953 |
| 136AF | shortfall interest charge on Australian DMT tax | 127-70 in Schedule 11 | Taxation Administration Act 1953 |
| 136A | debt account discharge liability | 133-105 in Schedule 1 | Taxation Administration Act 1953 |
| 137 | amount to be recovered from a debtor under a registered foreign revenue claim | 263-30 in Schedule 1 | Taxation Administration Act 1953 |
| 138 | estimate of payable amounts | 268-20 in Schedule 1 | Taxation Administration Act 1953 |
| 139 | penalty under Subdivision 269-B | 269-20 in Schedule 1 | Taxation Administration Act 1953 |
| 140 | administrative penalties | 298-15 in Schedule 1 | Taxation Administration Act 1953 |
| 142 | cash flow boost overpayments | subsection 9(3) | Boosting Cash Flow for Employers (Coronavirus Economic Response Package) Act 2020 |
| 143 | overpayments of Coronavirus economic response payments | subsection 9(3) | Coronavirus Economic Response Package (Payments and Benefits) Act 2020 |
| 145 | (Repealed by No 23 of 2018) | ||
| 150 to 165 | (Repealed by No 101 of 2006) |
The object of this Part is to ensure that unpaid amounts of *tax-related liabilities and other related amounts are collected or recovered in a timely manner.
A tax-related liability is a pecuniary liability to the Commonwealth arising directly under a *taxation law (including a liability the amount of which is not yet due and payable).
Note 1:
See section 250-10 for an index of tax-related liabilities.
Note 2:
A taxation law, or a provision of it, may be excluded from being applied to this Part. See section 265-65.
255-1(2)
A civil penalty under Division 290 of this Schedule or Part 5 of the Tax Agent Services Act 2009 is not a tax-related liability .
An amount of a *tax-related liability that is due and payable:
(a) is a debt due to the Commonwealth; and
(b) is payable to the Commissioner.
255-5(2)
The Commissioner, a *Second Commissioner or a *Deputy Commissioner may sue in his or her official name in a court of competent jurisdiction to recover an amount of a *tax-related liability that remains unpaid after it has become due and payable.
Note:
The tables in section 250-10 set out each provision that specifies when an amount of a tax-related liability becomes due and payable. The Commissioner may vary that time under Subdivision 255-B.
Deferrals for particular taxpayers
255-10(1)
The Commissioner may, having regard to the circumstances of your particular case, defer the time at which an amount of a *tax-related liability is, or would become, due and payable by you (whether or not the liability has already arisen). If the Commissioner does so, that time is varied accordingly.
Note:
General interest charge or any other relevant penalty, if applicable for any unpaid amount of the liability, will begin to accrue from the time as varied. See, for example, paragraph 5-15(a) of the Income Tax Assessment Act 1997.
255-10(2)
The Commissioner must do so by written notice given to you.
Deferrals for classes of taxpayers
255-10(2A)
The Commissioner, having regard to the circumstances of the case, may, by notice published on the Australian Taxation Office website, defer the time at which amounts of *tax-related liabilities are, or would become, due and payable by a class of taxpayers (whether or not the liabilities have already arisen).
255-10(2B)
If the Commissioner does so, that time is varied accordingly.
Note:
General interest charge and any other relevant penalties, if applicable for any unpaid amounts of the liabilities, will begin to accrue from the time as varied. See, for example, paragraph 5-15(a) of the Income Tax Assessment Act 1997.
255-10(2C)
A notice published under subsection (2A) is not a legislative instrument.
Deferral does not affect time for giving form
255-10(3)
A deferral under this section does not defer the time for giving an *approved form to the Commissioner.
Note:
Section 388-55 allows the Commissioner to defer the time for giving an approved form.
The Commissioner may, having regard to the circumstances of your particular case, permit you to pay an amount of a *tax-related liability by instalments under an *arrangement between you and the Commissioner (whether or not the liability has already arisen).
255-15(2)
The *arrangement does not vary the time at which the amount is due and payable.
Note:
Despite an arrangement under this section, any general interest charge or other relevant penalty, if applicable for any unpaid amount of the liability, begins to accrue when the liability is due and payable under the relevant taxation law, or at that time as varied under section 255-10 or 255-20.
If the Commissioner reasonably believes that you may leave Australia before the time at which an amount of a *tax-related liability becomes due and payable by you, the Commissioner may bring that time forward. If the Commissioner does so, that time is varied accordingly.
Note:
General interest charge or any other relevant penalty, if applicable for any unpaid amount of the liability, will begin to accrue from the time as varied. See, for example, paragraph 5-15(a) of the Income Tax Assessment Act 1997.
255-20(2)
The Commissioner must do so by written notice given to you.
SECTION 255-35 WHAT THIS SUBDIVISION IS ABOUT
This Subdivision deals with the service of documents on people who are absent from Australia or cannot be found.
| Operative provisions | |
| 255-40 | Service of documents if person absent from Australia or cannot be found |
| 255-45 | (Repealed by No 64 of 2020) |
| 255-50 | (Repealed by No 64 of 2020) |
| 255-55 | (Repealed by No 64 of 2020) |
SECTION 255-40 SERVICE OF DOCUMENTS IF PERSON ABSENT FROM AUSTRALIA OR CANNOT BE FOUND 255-40(1)
This section applies if a document needs to be served on a person in respect of a proceeding to recover an amount of a *tax-related liability, and the Commissioner, after making reasonable inquiries, is satisfied that:
(a) the person is absent from Australia and does not have any agent in Australia on whom the document can be served; or
(b) the person cannot be found.
255-40(2)
The Commissioner may, without the court's leave, serve the document by posting it, or a sealed copy of it, in a letter addressed to the person at any Australian address of the person (including the person's Australian place of business or residence) that is last known to the Commissioner.
255-40(3)
If the Commissioner, after making reasonable inquiries, is satisfied that the person has an address in a foreign country, a constituent part of a foreign country or a foreign territory (an overseas address ), the Commissioner may, without the court's leave, serve the document on the person at that overseas address in accordance with an agreement between Australia and:
(a) a foreign country or a constituent part of a foreign country; or
(b) a foreign territory;
that deals with the service of documents on tax matters.
(Repealed by No 64 of 2020)
(Repealed by No 64 of 2020)
(Repealed by No 64 of 2020)
The Commissioner may require you to give security for the due payment of an existing or future *tax-related liability of yours if:
(a) the Commissioner has reason to believe that:
(i) you are establishing or *carrying on an *enterprise in Australia; and
(ii) you intend to carry on that enterprise for a limited time only; or
(b) the Commissioner reasonably believes that the requirement is otherwise appropriate, having regard to all relevant circumstances.
Note:
A requirement to give security under this section is not a tax-related liability. As such, the collection and recovery provisions in this Part do not apply to it.
255-100(2)
The Commissioner may require you to give the security:
(a) by way of a bond or deposit (including by way of payments in instalments); or
(b) by any other means that the Commissioner reasonably believes is appropriate.
255-100(3)
The Commissioner may require you to give security under this section:
(a) at any time the Commissioner reasonably believes is appropriate; and
(b) as often as the Commissioner reasonably believes is appropriate.
Example:
The Commissioner may require additional security if he or she reasonably believes that the original security requirement underestimated the amount of the likely tax-related liability.
Commissioner must give notice of requirement to give security
255-105(1)
If the Commissioner requires you to give security under section 255-100, he or she must give you written notice of the requirement.
Content of notice
255-105(2)
The notice must:
(a) state that you are required to give the security to the Commissioner; and
(b) explain why the Commissioner requires the security; and
(c) set out the amount of the security; and
(d) describe the means by which you are required to give the security under subsection 255-100(2); and
(e) specify the time by which you are required to give the security; and
(f) explain how you may have the Commissioner's decision to require you to give the security reviewed.
255-105(3)
To avoid doubt, a single notice may relate to security for the payment of 2 or more existing or future *tax-related liabilities, but must comply with subsection (2) in relation to each of them.
When notice is given
255-105(4)
Despite section 29 of the Acts Interpretation Act 1901, a notice under subsection (1) is taken to be given at the time the Commissioner leaves or posts it.
Note:
Section 28A of the Acts Interpretation Act 1901 may be relevant to giving a notice under subsection (1).
Miscellaneous
255-105(5)
A failure to comply with this section does not affect the validity of the requirement to give the security under section 255-100.
You commit an offence if:
(a) the Commissioner requires you to give security under section 255-100; and
(b) you fail to give that security as required.
Penalty: 100 penalty units.
The Federal Court of Australia may, on the application of the Commissioner, order you to comply with a requirement to give security under section 255-100, if the Commissioner has given you notice of the requirement under subsection 255-105(1).
255-115(2)
If the Court makes an order under subsection (1), the Court may also order you to comply with such other requirements made, or that could be made, in relation to you under the taxation law as the Court considers necessary to ensure the effectiveness of the requirement referred to in that subsection.
255-115(3)
An order under subsection (1) or (2) may require you to comply with the requirement on or before a day specified in the order.
255-115(4)
If an order under subsection (1) or (2) is not given to you orally by the court, the proper officer of the court must cause a copy of the order to be served on you in the prescribed manner, or otherwise as may be ordered by the court.
You commit an offence if:
(a) you are subject to an order under subsection 255-115(1) or (2); and
(b) you fail to comply with the order.
Penalty: 50 penalty units or imprisonment for 12 months, or both.
255-120(2)
An offence against subsection (1) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
255-120(3)
Subsection (1) does not apply to the extent that you are not capable of complying with the order.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.
This Division deals with the collection and recovery of an amount from a person who is not personally liable to pay that amount. Apart from Subdivision 260-A, which covers a wider range of amounts, this Division primarily deals with amounts of tax-related liabilities.
Amount recoverable under this Subdivision
260-5(1)
This Subdivision applies if any of the following amounts (the debt ) is payable to the Commonwealth by an entity (the debtor ) (whether or not the debt has become due and payable):
(a) an amount of a *tax-related liability;
(b) a judgment debt for a *tax-related liability;
(c) costs for such a judgment debt;
(d) an amount that a court has ordered the debtor to pay to the Commissioner following the debtor's conviction for an offence against a *taxation law.
Commissioner may give notice to an entity
260-5(2)
The Commissioner may give a written notice to an entity (the third party ) under this section if the third party owes or may later owe money to the debtor.
Third party regarded as owing money in these circumstances
260-5(3)
The third party is taken to owe money (the available money ) to the debtor if the third party:
(a) is an entity by whom the money is due or accruing to the debtor; or
(b) holds the money for or on account of the debtor; or
(c) holds the money on account of some other entity for payment to the debtor; or
(d) has authority from some other entity to pay the money to the debtor.
The third party is so taken to owe the money to the debtor even if:
(e) the money is not due, or is not so held, or payable under the authority, unless a condition is fulfilled; and
(f) the condition has not been fulfilled.
How much is payable under the notice
260-5(4)
A notice under this section must:
(a) require the third party to pay to the Commissioner the lesser of, or a specified amount not exceeding the lesser of:
(i) the debt; or
(ii) the available money; or
(b) if there will be amounts of the available money from time to time - require the third party to pay to the Commissioner a specified amount, or a specified percentage, of each amount of the available money, until the debt is satisfied.
When amount must be paid
260-5(5)
The notice must require the third party to pay an amount under paragraph (4)(a), or each amount under paragraph (4)(b):
(a) immediately after; or
(b) at or within a specified time after;
the amount of the available money concerned becomes an amount owing to the debtor.
Debtor must be notified
260-5(6)
The Commissioner must send a copy of the notice to the debtor.
Setting-off amounts
260-5(7)
If an entity other than the third party has paid an amount to the Commissioner that satisfies all or part of the debt:
(a) the Commissioner must notify the third party of that fact; and
(b) any amount that the third party is required to pay under the notice is reduced by the amount so paid.
If the third party is the Commonwealth, a State or a Territory, the Commissioner may give the notice to a person who:
(a) is employed by the Commonwealth, or by the State or Territory (as appropriate); and
(b) has the duty of disbursing public money under a law of the Commonwealth, or of the State or Territory (as appropriate).
An amount that the third party pays to the Commissioner under this Subdivision is taken to have been authorised by:
(a) the debtor; and
(b) any other person who is entitled to all or a part of the amount;
and the third party is indemnified for the payment.
The third party must not fail to comply with the Commissioner's notice.
Penalty: 20 penalty units
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
260-20(2)
The court may, in addition to imposing a penalty on a person convicted of an offence against subsection (1) in relation to failing to pay an amount under the notice, order the person to pay to the Commissioner an amount not exceeding that amount.
This Subdivision does not apply to a *tax-related liability that is superannuation guarantee charge imposed by the Superannuation Guarantee Charge Act 1992.
This Subdivision applies to a person who becomes a liquidator of a company.
260-45(2)
Within 14 days after becoming liquidator, the liquidator must give written notice of that fact to the Commissioner.
260-45(3)
The Commissioner must, as soon as practicable, notify the liquidator of the amount (the notified amount ) that the Commissioner considers is enough to discharge any *outstanding tax-related liabilities that the company has when the notice is given.
260-45(4)
The liquidator must not, without the Commissioner's permission, part with any of the company's assets before receiving the Commissioner's notice.
260-45(5)
However, subsection (4) does not prevent the liquidator from parting with the company's assets to pay debts of the company not covered by either of the following paragraphs:
(a) the *outstanding tax-related liabilities;
(b) any debts of the company which:
(i) are unsecured; and
(ii) are not required, by an *Australian law, to be paid in priority to some or all of the other debts of the company.
260-45(6)
After receiving the Commissioner's notice, the liquidator must set aside, out of the assets available for paying amounts covered by paragraph (5)(a) or (b) (the ordinary debts ), assets with a value calculated using the following formula:
where:
amount of remaining ordinary debts
means the sum of the company's ordinary debts other than the *outstanding tax-related liabilities.
260-45(7)
The liquidator must, in his or her capacity as liquidator, discharge the *outstanding tax-related liabilities, to the extent of the value of the assets that the liquidator is required to set aside.
260-45(8)
The liquidator is personally liable to discharge the liabilities, to the extent of that value, if the liquidator contravenes this section.
The liquidator must not fail to comply with subsection 260-45(2), (4), (5), (6) or (7).
Penalty: 10 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
If there are 2 or more persons who become liquidators of the company, the obligations and liabilities under this Subdivision:
(a) apply to all the liquidators; but
(b) may be discharged by any of them.
This Subdivision does not reduce any obligation or liability of a liquidator arising elsewhere.
This Subdivision applies to a person (the receiver ) who, in the capacity of receiver, or of receiver and manager, takes possession of a company's assets for the company's debenture holders.
260-75(2)
Within 14 days after taking possession of the assets, the receiver must give written notice of that fact to the Commissioner.
260-75(3)
The Commissioner must, as soon as practicable, notify the receiver of the amount (the notified amount ) that the Commissioner considers is enough to discharge any *outstanding tax-related liabilities that the company has when the notice is given.
260-75(4)
The receiver must not, without the Commissioner's permission, part with any of the company's assets before receivingthe Commissioner's notice.
260-75(5)
However, subsection (4) does not prevent the receiver from parting with the company's assets to pay debts of the company not covered by either of the following paragraphs:
(a) the *outstanding tax-related liabilities;
(b) any debts of the company which:
(i) are unsecured; and
(ii) are not required, by an *Australian law, to be paid in priority to some or all of the other debts of the company.
260-75(6)
After receiving the Commissioner's notice, the receiver must set aside, out of the assets available for paying amounts covered by paragraph (5)(a) or (b) (the ordinary debts ), assets with a value calculated using the following formula:
where:
amount of remaining ordinary debts
means the sum of the company's ordinary debts other than the *outstanding tax-related liabilities.
260-75(7)
The receiver must, in his or her capacity as receiver, or as receiver and manager, discharge the *outstanding tax-related liabilities, to the extent of the value of the assets that the receiver is required to set aside.
260-75(8)
The receiver is personally liable to discharge the liabilities, to the extent of that value, if the receiver contravenes this section.
SECTION 260-80 260-80 OFFENCE
The receiver must not fail to comply with subsection 260-75(2), (4), (5), (6) or (7).
Penalty: 10 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
If 2 or more persons (the receivers ) take possession of a company's assets, for the company's debenture holders, in the capacity of receiver, or of receiver and manager, the obligations and liabilities under this Subdivision apply to:
(a) all the receivers; but
(b) may be discharged by any of them.
This Subdivision does not reduce any obligation or liability of the receiver or receivers arising elsewhere.
This Subdivision applies to an agent whose principal:
(a) is a foreign resident; and
(b) has instructed the agent to wind up so much of the principal's business as is carried on in Australia.
260-105(2)
Within 14 days after receiving the instructions, the agent must give written notice of that fact to the Commissioner.
260-105(3)
The Commissioner must, as soon as practicable after receiving the notice, notify the agent of the amount (the notified amount ) that the Commissioner considers is enough to discharge any *outstanding tax-related liabilities that the principal has when the notice is given.
260-105(4)
Before receiving the Commissioner's notice, the agent must not, without the Commissioner's permission, part with any of the principal's assets that are available for discharging the *outstanding tax-related liabilities.
260-105(5)
After receiving the notice, the agent must set aside:
(a) out of the assets available for discharging the *outstanding tax-related liabilities, assets to the value of the notified amount; or
(b) all of the assets so available, if their value is less than the notified amount.
260-105(6)
The agent must, in that capacity, discharge the *outstanding tax-related liabilities, to the extent of the value of the assets that the agent is required to set aside.
260-105(7)
The agent is personally liable to discharge the liabilities, to the extent of that value, if the agent contravenes this section.
A person must not fail to comply with subsection 260-105(2), (4), (5) or (6).
Penalty: 10 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
See section 4AA of the Crimes Act 1914 for the current value of penalty units.
If 2 or more agents are jointly instructed by the principal to wind up the business, the obligations and liabilities under this Subdivision:
(a) apply to all the agents; but
(b) may be discharged by any of them.
This Subdivision does not reduce any obligation or liability of the agent or agents arising elsewhere.
This section applies if:
(a) a person has an *outstanding tax-related liability when the person dies; and
(b) either of the following is granted after the death:
(i) probate of the person's will;
(ii) letters of administration of the person's estate.
260-140(2)
The Commissioner may, in respect of the liability, deal with the trustee of the deceased person's estate as if:
(a) the deceased person were still alive; and
(b) the trustee were the deceased person.
260-140(3)
Without limiting subsection (2), the trustee must:
(a) provide any returns and other information that the deceased person was liable to provide, or would have been liable to provide if he or she were still alive; and
(b) provide any additional returns or other information relating to the liability that the Commissioner requires; and
(c) in the trustee's representative capacity, discharge the liability and any penalty imposed in respect of the liability under a *taxation law (including any *general interest charge) for which the deceased person would be liable if he or she were still alive.
260-140(4)
If:
(a) the amount of the liability requires an *assessment under a *taxation law but the assessment has not been made; and
(b) the trustee fails to provide a return or other information in relation to assessing that amount as required by the Commissioner;
the Commissioner may assess that amount. If the Commissioner does so, the assessment has the same effect as if it were made under that taxation law.
260-140(5)
A trustee who is dissatisfied with an *assessment under subsection (4) may object in the manner set out in Part IVC.
260-140(6)
Part IVC applies in relation to the objection as if the trustee were the deceased person.
This section applies if neither of the following is granted within 6 months after a person's death: (a) probate of the person's will; (b) letters of administration of the person's estate.
260-145(2)
The Commissioner may determine the total amount of *outstanding tax-related liabilities that the person had at the time of death.
260-145(3)
The Commissioner must publish notice of the determination in a manner that results in the notice being accessible to the public and reasonably prominent.
260-145(4)
A notice of the determination is conclusive evidence of the *outstanding tax-related liabilities, unless the determination is amended.
260-145(5)
A person who is dissatisfied with the determination may object in the manner set out in Part IVC if the person: (a) claims an interest in the estate; or (b) is granted probate of the deceased person's will or letters of administration of the estate.
260-145(6)
Part IVC applies in relation to the objection as if the person making it were the deceased person.
The Commissioner may, in writing, authorise a person (the authorised person ) who is:
(a) a member or a special member of the Australian Federal Police; or
(b) a member of the police force of a State or Territory; or
(c) any other person;
to recover:
(d) the total amount of the *outstanding tax-related liabilities of a deceased person as determined under section 260-145 (about unadministered estates); and
(e) any reasonable costs incurred by the authorised person in recovering that amount;
by seizing and disposing of any property of the deceased person.
260-150(2)
The authorised person may seize and dispose of the property as prescribed by the regulations.
SECTION 263-5 WHAT THIS SUBDIVISION IS ABOUT
This Subdivision can be activated if there is in force an agreement between Australia and a foreign country or territory that contains an article relating to assistance in collection of foreign tax debts.
The Commissioner can collect from an entity an amount in respect of a tax debt that the person owes to such a country or territory or take action to conserve assets of the entity.
The Commissioner is required to remit amounts collected to the foreign country or territory concerned.
| Operative provisions | |
| 263-10 | Meaning of foreign revenue claim |
| 263-15 | Requirements for foreign revenue claims |
| 263-20 | Foreign Revenue Claims Register |
| 263-25 | Registering claims |
| 263-30 | When amount is due and payable |
| 263-35 | Amending the Register etc. |
| 263-40 | Payment to competent authority |
SECTION 263-10 263-10 MEANING OF FOREIGN REVENUE CLAIM
A foreign revenue claim is a claim made to the Commissioner:
(a) in accordance with an agreement (the international agreement ) between Australia and:
(i) a foreign country or a constituent part of a foreign country; or
(ii) a foreign territory; and
(b) for one or both of these purposes:
(i) the recovery by the Commissioner of an amount from an entity (the debtor ) in respect of taxes imposed otherwise than by an *Australian law (including any associated amounts);
(ii) the conserving of assets for the purposes of a recovery of that kind.
A *foreign revenue claim must:
(a) be made by or on behalf of an entity that is, under the relevant international agreement, the competent authority; and
(b) be consistent with the provisions of that agreement; and
(c) be made in the *approved form; and
(d) specify the amount owed by the debtor in Australian currency (calculated as at the day the claim is made); and
(e) be accompanied by a declaration by the competent authority stating that the claim fulfils the requirements of that agreement.
The Commissioner must keep a register called the Foreign Revenue Claims Register (the Register ).
263-20(2)
The regulations may make provision in relation to the form in which the Register may be kept.
263-20(3)
The register is not a legislative instrument.
If the Commissioner is satisfied that a *foreign revenue claim has been made in accordance with section 263-15, the Commissioner must register the claim by entering particulars of it in the Register within 90 days after receiving the claim.
When particulars of a *foreign revenue claim are entered in the Register, the amount owed by the debtor becomes a pecuniary liability to the Commonwealth by the debtor.
Note 1:
The amount to be recovered from the debtor will be a primary tax debt for the purposes of Part IIB and the Commissioner may allocate the debt to a running balance account under that Part.
Note 2:
For provisions about collection and recovery of the debt, see Part 4-15.
263-30(1A)
To avoid doubt, the amount owed by the debtor may not be the same as the amount (if any) entered in the Register.
263-30(2)
The amount owed by the debtor becomes due and payable 30 days after notice of the particulars of the *foreign revenue claim is given to the debtor or on a later day specified in the notice.
263-30(3)
If that amount remains unpaid after it is due and payable, the debtor is liable to pay *general interest charge on the unpaid amount for each day in the period that:
(a) started at the beginning of the day by which the amount was due to be paid; and
(b) finishes at the end of the last day at the end of which either of the following remains unpaid:
(i) the amount;
(ii) general interest charge on any of the amount.
The Commissioner may, with the agreement of the relevant competent authority, amend the Register to correct an error.
263-35(2)
The Commissioner may, with the agreement of the relevant competent authority:
(a) remove from the Register the particulars of a *foreign revenue claim; or
(b) reduce an amount to be recovered from a debtor under the claim.
263-35(2A)
To avoid doubt, the Commissioner may reduce an amount to be recovered from a debtor under paragraph (2)(b) without amending the Register.
263-35(3)
A debtor may, after receiving a copy of the particulars of a *foreign revenue claim entered in the Register, apply to the Commissioner in the *approved form to have those particulars removed from the Register.
263-35(4)
The Commissioner may, after considering the application, remove those particulars from the Register.
263-35(5)
If the Commissioner removes particulars of a *foreign revenue claim relating to the recovery of an amount from the Register under paragraph (2)(a) or subsection (4), the debtor is entitled to a credit for the purposes of Part IIB equal to the sum of:
(a) the amount (as reduced by any previous application of subsection (6)); and
(b) any *general interest charge for which the debtor is liable as a result of the foreign revenue claim.
Note:
How the credit is applied is set out in Part IIB.
263-35(6)
If the Commissioner reduces the amount to be recovered from a debtor under a *foreign revenue claim under paragraph (2)(b), the debtor is entitled to a credit for the purposes of Part IIB equal to the amount of the reduction.
Note:
How the credit is applied is set out in Part IIB.
SECTION 263-40 PAYMENT TO COMPETENT AUTHORITY 263-40(1)
The Commissioner must, if the Commissioner recovers all or part of an amount to be recovered from a debtor under a registered *foreign revenue claim, pay that amount to the competent authority concerned or to another entity on behalf of that competent authority.
263-40(2)
The Commissioner may also pay to the competent authority all or part of an amount that the Commissioner has received and that is attributable to *general interest charge in relation to the claim.
263-40(3)
The Commissioner may also pay to the competent authority all or part of an amount that the Commissioner has received and that is attributable to any of the following in relation to the claim:
(a) judgment interest;
(b) costs that:
(i) have been recovered in the course of legal proceedings; and
(ii) represent an amount that has previously been paid by the competent authority to the Commonwealth in relation to the recovery of the claim.
Subdivision 263-B - Service of documents in Australia on behalf of foreign revenue authorities
SECTION 263-55 WHAT THIS SUBDIVISION IS ABOUT
This Subdivision can be activated if there is in force an agreement between Australia and a foreign country or foreign territory that deals with service of documents on tax matters.
If a foreign government agency asks the Commissioner to serve a document relating to foreign taxes on an entity in Australia in accordance with the agreement, the Commissioner may serve the document in the same way as a similar document under an Australian taxation law may be served.
| Operative provisions | |
| 263-60 | Meaning of foreign service of document request |
| 263-65 | Service of document subject to foreign service of document request |
SECTION 263-60 263-60 MEANING OF FOREIGN SERVICE OF DOCUMENT REQUEST
A foreign service of document request is a request made to the Commissioner:
(a) in accordance with an agreement (the international agreement ) between Australia and:
(i) a foreign country or a constituent part of a foreign country; or
that deals with service of documents on tax matters; and
(ii) a foreign territory;
(b) by a *foreign government agency; and
(c) for the service of one or more documents on an entity in Australia in relation to taxes imposed otherwise than by an *Australian law.
If a *foreign service of document request is made to the Commissioner, the Commissioner may serve a document covered by the request in the same way that a similar document under a *taxation law may be served.
263-65(2)
The Commissioner must also serve a translation of the document into English, or a summary of the document in English, if:
(a) the document is in a language other than English; and
(b) the Commissioner is satisfied that the entity being served would not understand the language of the document.
263-65(3)
Before serving a translation of the document into English, or a summary of the document in English, the Commissioner must be satisfied that the translation or summary is accurate.
SECTION 265-35 WHAT THIS SUBDIVISION IS ABOUT
This Division deals with a person's right to recover from another person an amount paid in discharge of a tax-related liability if:
| Operative provisions | |
| 265-40 | Right of recovery if another person is liable |
| 265-45 | Right of contribution if persons are jointly liable |
SECTION 265-40 265-40 RIGHT OF RECOVERY IF ANOTHER PERSON IS LIABLE
A person who has paid an amount of a *tax-related liability for or on behalf of another person may:
(a) recover that amount from the other person as a debt (together with the costs of recovery) in a court of competent jurisdiction; or
(b) retain or deduct the amount out of money held by the person that belongs to, or is payable to, the other person.
If 2 or more persons are jointly liable to pay an amount of a *tax-related liability, they are each liable for the whole of the amount.
265-45(2)
If one of the persons has paid an amount of the liability, the person may recover in a court of competent jurisdiction, as a debt, from another of those persons:
(a) an amount equal to so much of the amount paid; and
(b) an amount equal to so much of the costs of recovery under this section;
as the court considers just and equitable.
Note:
Item 15 of Schedule 6 to the Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006 has the effect that, in addition to its normal application in relation to tax-related liabilities arising on or after 1 July 2000, subsection (2) also applies to such liabilities arising before that date, where amounts of the liabilities are paid after the commencement of that item.
Subdivision 265-B - Application of laws SECTION 265-65 265-65 NON-APPLICATION OF CERTAIN TAXATION LAWS
This Part does not apply in relation to a *taxation law, or a provision of a taxation law, that is prescribed by the regulations.
(Repealed by No 146 of 2001)
SECTION 265-85 WHAT THIS SUBDIVISION IS ABOUT
If you are liable to pay an amount of superannuation guarantee charge or certain related liabilities, the Commissioner may direct you to pay the amount.
If the amount is not paid, you may commit an offence.
| 265-90 | Direction to pay superannuation guarantee charge |
| 265-95 | Offence |
| 265-100 | Variation or revocation |
| 265-105 | Effect of liability being reduced or ceasing to exist |
| 265-110 | Taxation objection |
| 265-115 | Extension of period to comply if taxation objection made |
The Commissioner may, by written notice, give you a direction requiring you to pay to the Commissioner:
(a) an amount of superannuation guarantee charge that is payable by you under the Superannuation Guarantee (Administration) Act 1992; or
(b) if an estimate under Division 268 in this Schedule of an amount of a liability of yours to pay superannuation guarantee charge for a quarter under section 16 of the Superannuation Guarantee (Administration) Act 1992 is in force as referred to in subsection 268-10(5) - the amount of the estimate.
Note:
The direction does not create a separate liability to pay the amount. However, it may result in you committing an offence against subsection 265-95(1) if the amount is not paid.
265-90(2)
In deciding whether to give a direction under subsection (1), the Commissioner must have regard to the following matters:
(a) your history of compliance with obligations to pay superannuation guarantee charge, and obligations to pay estimates under Division 268 of superannuation guarantee charge;
(b) your history of compliance with other obligations under *taxation laws;
(c) whether the amount mentioned in paragraph (1)(a) or (b) is substantial, having regard to the size and nature of your business;
(d) any steps that you have taken to discharge the liability to pay the amount or dispute that the liability exists;
(e) any other matter that the Commissioner considers relevant.
265-90(3)
The direction must:
(a) set out the amount that you are required to pay to the Commissioner; and
(b) if the amount referred to in paragraph (1)(a) or (b) relates to a *quarter - set out the quarter; and
(c) specify the period before the end of which you must comply with the direction (which must end at least 21 days after the day the direction is given); and
(d) explain the consequences of failing to comply with the direction; and
(e) explain how you may have the Commissioner's decision to give the direction reviewed.
265-90(4)
To avoid doubt, a single notice may relate to 2 or more directions, but must comply with subsection (3) in relation to each of them.
265-90(5)
A notice given under subsection (1) is not a legislative instrument.
You commit an offence if:
(a) you are given a direction under subsection 265-90(1); and
(b) the liability to pay the amount set out in the direction is not discharged (whether by you or by another entity) before the end of the period specified in the direction under paragraph 265-90(3)(c).
Penalty: 50 penalty units or imprisonment for 12 months, or both.
265-95(2)
An offence against subsection (1) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
265-95(3)
Subsection (1) does not apply if both of the following apply:
(a) you took all reasonable steps to comply with the direction before the end of the period specified in the direction under paragraph 265-90(3)(c);
(b) you took all reasonable steps to ensure that the liability was discharged before the direction was given.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.
If the Commissioner has given you a direction under subsection 265-90(1), the Commissioner may, at any time before the end of the period specified in the direction under paragraph 265-90(3)(c), by written notice given to you:
(a) vary the direction to reduce the amount that you are required to pay to the Commissioner in order to comply with the direction; or
(b) vary the direction to extend the period specified in the notice of the direction under paragraph 265-90(3)(c); or
(c) revoke the direction.
265-100(2)
To avoid doubt, the variation or revocation of a direction under subsection (1) does not affect any liability that you may have to pay an amount referred to in the direction.
If:
(a) you have been given a direction under subsection 265-90(1) requiring you to pay an amount of a liability referred to in that subsection to the Commissioner; and
(b) the period specified in the direction under paragraph 265-90(3)(c) has not expired; and
(c) the liability is reduced (but not to nil);
the amount set out in the direction is taken to be reduced by the amount of the reduction referred to in paragraph (c).
265-105(2)
If:
(a) you have been given a direction under subsection 265-90(1) requiring you to pay an amount of a liability referred to in that subsection to the Commissioner; and
(b) the period specified in the direction under paragraph 265-90(3)(c) has not expired; and
(c) either:
(i) the liability is reduced to nil; or
(ii) the liability ceases to exist;
the direction is taken to be revoked.
265-105(3)
You may be convicted of an offence against subsection 265-95(1) in relation to a direction under subsection 265-90(1) requiring you to pay an amount of a liability referred to in subsection 265-90(1) to the Commissioner even if:
(a) the liability is reduced, or ceases to exist, after the end of the period specified in the direction under paragraph 265-90(3)(c); or
(b) the liability is discharged after the end of that period; or
(c) the liability is, after the end of that period, taken never to have existed, or taken not to have existed at a time on or before the end of that period.
If you are dissatisfied with a decision of the Commissioner to give you a direction under subsection 265-90(1), you may, at any time before the end of the period specified in the direction under paragraph 265-90(3)(c), object against the decision in the manner set out in Part IVC.
This section applies if: (a) the Commissioner gives you a direction under subsection 265-90(1); and (b) the period specified in the direction under paragraph 265-90(3)(c) has not expired; and (c) you:
(i) make an objection in accordance with section 265-110 in relation to the Commissioner's decision to give you the direction; or
(ii) make an objection in the manner set out in Part IVC against a taxation decision that relates to your liability to pay an amount referred to in the direction.
265-115(2)
The period specified in the direction under paragraph 265-90(3)(c) is extended by one day for each day in the period that begins on the day the objection is made and ends at the end of the later of the following days: (a) the day 21 days after the day the Commissioner notifies you of the Commissioner's decision under section 14ZY in relation to the objection; (b) if, before the end of the day referred to in paragraph (a), you:
(i) apply to the *ART in accordance with Division 4 of Part IVC for review of the Commissioner's decision; or
the day the review or the appeal is finally determined.
(ii) lodge an appeal against the Commissioner's decision with the Federal Court of Australia under Division 5 of that Part;
265-115(3)
To avoid doubt, the extension of the period under subsection (2) does not affect any liability that you may have to pay an amount referred to in the direction.
This Division enables the Commissioner to make an estimate of:
and to recover the amount of the estimate.
If you are given an estimate, you are liable to pay the amount of the estimate. That liability is distinct from your liability to pay the amounts required by Part 2-5 or the Superannuation Guarantee (Administration) Act 1992. In the case of an estimate of a net amount that has been assessed by the Commissioner, that liability is distinct from your liability to pay the amount of the assessment. However, you can ensure that the Commissioner does not require you to pay more than the relevant unpaid amounts.
Other Divisions of this Part provide for the recovery of amounts payable under this Division.
The object of this Division is to enable the Commissioner to take prompt and effective action to recover:
(a) amounts not paid as required by Part 2-5 (Pay as you go (PAYG) withholding); or
(b) unpaid superannuation guarantee charge that has not been assessed; or
(c) *net amounts under the *GST Act.
Estimate
268-10(1)
The Commissioner may estimate the unpaid and overdue amount of a liability (the underlying liability ) of yours:
(a) under section 16-70 in this Schedule (requirement to pay to the Commissioner amounts you have withheld under the Pay as you go withholding rules); or
(b) to pay superannuation guarantee charge for a *quarter under section 16 of the Superannuation Guarantee (Administration) Act 1992, to the extent the superannuation guarantee charge has not been assessed before the Commissioner makes the estimate; or
(c) to pay a *net amount for a *tax period, to the extent that the net amount has not been assessed before the Commissioner makes the estimate.
268-10(1A)
For the purposes of this Division, your superannuation guarantee charge for a *quarter is treated as being payable on the day by which you must lodge a superannuation guarantee statement for the quarter under section 33 of the Superannuation Guarantee (Administration) Act 1992, even if, on that day, the charge has not been assessed under that Act.
268-10(1B)
For the purposes of this Division, if you have a *net amount for a *tax period:
(a) you are treated as being liable to pay that net amount; and
(b) that liability is treated as having arisen on the day by which you must give your *GST return for the tax period to the Commissioner in accordance with Division 31 of the *GST Act; and
(c) that liability is treated as being payable on that day; and
(d) the entire amount of that liability is treated as being unpaid.
Amount of estimate
268-10(2)
The amount of the estimate must be what the Commissioner thinks is reasonable.
268-10(3)
In making the estimate, the Commissioner may have regard to anything he or she thinks relevant.
Example 1:
In the case of an underlying liability under section 16-70 (requirement to pay to the Commissioner amounts you have withheld under the Pay as you go withholding rules), the Commissioner may have regard to information about amounts you withheld under the Pay as you go rules before the period in relation to which the underlying liability arose.
Example 2:
In the case of an underlying liability to pay superannuation guarantee charge for a quarter, the Commissioner may have regard to information about your contributions to RSAs and complying superannuation funds for earlier quarters.
Only one estimate for each liability
268-10(4)
While the estimate is in force, the Commissioner cannot make another estimate relating to the underlying liability.
268-10(5)
For the purposes of subsection (4), the estimate is in force if:
(a) the Commissioner has given you notice of the estimate; and
(b) the estimate has not been revoked; and
(c) your liability to pay the estimate has not been discharged.
[
CCH Note:
No 99 of 2012, s 3 and Sch 1 item 46 contains the following saving provisions:
has effect, from that commencement, as if it had been made under that section as amended by this Schedule.
46 Saving provision - estimates
]
46
An estimate:
(a)
made under section 268-10 in Schedule 1 to the Taxation Administration Act 1953; and
(b)
in force just before the commencement of this item [ie 30 June 2012];
Commissioner must give notice of estimate
268-15(1)
The Commissioner must give you written notice of the estimate.
Content of notice
268-15(2)
The notice must:
(a) identify the underlying liability; and
(b) specify the date of the estimate; and
(c) set out the amount of the estimate; and
(d) state that the amount of the estimate is due and payable; and
(e) explain how you may have the amount of the estimate reduced or the estimate revoked.
268-15(3)
To avoid doubt, a single notice may relate to 2 or more estimates, but must comply with subsection (2) in relation to each of them.
When notice is given
268-15(4)
Despite section 29 of the Acts Interpretation Act 1901, a notice under subsection (1) is taken to be given at the time the Commissioner leaves or posts it.
Note:
Section 28A of the Acts Interpretation Act 1901 may be relevant to giving a notice under subsection (1).
Liability to pay amount of estimate
268-20(1)
You must pay to the Commissioner the amount of the estimate if the Commissioner gives you notice of the estimate in accordance with section 268-15. The amount is due and payable when the Commissioner gives you the notice.
Note:
The amount of the estimate may be reduced, or the estimate revoked, under Subdivision 268-D.
Liability to pay amount of estimate is distinct from underlying liability
268-20(2)
Your liability to pay the amount of the estimate is separate and distinct from the underlying liability. It is separate and distinct for all purposes.
Example:
In a case covered by paragraph 268-10(1)(a) or (b), the Commissioner may take:
(a) proceedings to recover the unpaid amount of the estimate; or (b) proceedings to recover the unpaid amount of the underlying liability; or (c) proceedings of both kinds.
Discharging one liability discharges other liabilities
268-20(3)
Despite subsection (2), if, at a particular time, one of the liabilities to which this subsection applies is discharged, to the extent of an amount, for either of the following reasons, each of the other liabilities to which this subsection applies is discharged to the extent of the same amount:
(a) an amount is paid or applied towards discharging the liability;
(b) the liability is discharged because of section 269-40 (Effect of director paying penalty or company discharging liability).
268-20(4)
Subsection (3) applies to whichever of the following liabilities are in existence at the particular time:
(a) your liability to pay the amount of the estimate;
(b) the underlying liability;
(c) a liability of yours under a judgment, to the extent that it is based on a liability referred to in paragraph (a) or (b).
268-20(4A)
In a case covered by paragraph 268-10(1)(c) (estimate of liability in relation to net amount under GST Act), treat the reference in paragraph (4)(b) to the underlying liability as being a reference to a liability under Division 33 or 35 of the *GST Act for an *assessed net amount in respect of the underlying liability.
268-20(5)
Subsection (3) does not discharge a liability to a greater extent than the amount of the liability.
You are liable to pay the unpaid amount of the estimate even if:
(a) the underlying liability never existed or has been discharged in full; or
(b) the unpaid amount of the underlying liability is less than the unpaid amount of the estimate.
Note 1:
Section 268-40 revokes the estimate if you give the Commissioner a statutory declaration, or file an affidavit, to the effect that the underlying liability never existed.
Note 2:
Subdivision 268-D provides ways in which you can challenge the estimate or its amount.
Your liability (the estimate liability ) to pay the unpaid amount of the estimate is provable in a bankruptcy or winding up, even if the estimate was made after:
(a) the date of the bankruptcy; or
(b) the relevant date (within the meaning of the Corporations Act 2001).
268-30(2)
However, the estimate liability is provable only to the extent that the underlying liability would be provable if the unpaid amount of the underlying liability were the same as the unpaid amount of the estimate.
Example:
Subsection (2) prevents proof of the estimate liability if the underlying liability could not be proved because, for example, of when it arose.
268-30(3)
Subsections (1) and (2) do not apply if:
(a) the underlying liability has already been admitted to proof; and
(b) the proof has not been set aside.
268-30(4)
If the estimate liability has been admitted to proof at a particular amount, the underlying liability is provable only to the extent the unpaid amount of the underlying liability exceeds that particular amount.
268-30(4A)
In a case covered by paragraph 268-10(1)(c) (estimate of liability in relation to net amount under GST Act), treat the references in paragraph (3)(a) and subsection (4) to the underlying liability as being references to a liability under Division 33 or 35 of the *GST Act for an *assessed net amount in respect of the underlying liability.
268-30(5)
To the extent that a liability is provable because of this section, it is taken, for the purposes of the Bankruptcy Act 1966, to be provable in bankruptcy under that Act.
Reduction
268-35(1)
The Commissioner may at any time reduce the amount of the estimate, but is not obliged to consider whether or not to do so.
268-35(2)
If the Commissioner reduces the amount of the estimate under subsection (1), he or she must give you a written notice that:
(a) identifies the underlying liability; and
(b) sets out the reduced amount of the estimate.
Note:
The estimate is taken always to have had effect as reduced: see section 268-55.
Revocation
268-35(3)
The Commissioner may at any time revoke the estimate, but is not obliged to consider whether or not to do so.
268-35(4)
If the Commissioner revokes the estimate under subsection (3), he or she must give you a written notice that:
(a) identifies the underlying liability; and
(b) states that the estimate has been revoked.
Note:
The estimate is taken never to have been made: see section 268-55.
Matters for Commissioner to consider
268-35(5)
In exercising his or her power under this section to reduce the amount of the estimate, or to revoke the estimate, the Commissioner must have regard to:
(a) the following principles:
(i) the estimate is of the unpaid amount of the underlying liability as at a particular time;
(ii) the purpose of reducing the amount of the estimate is to bring it closer to the unpaid amount of the underlying liability as at the time the estimate was made;
(iii) reductions of the unpaid amount of the underlying liability that happen after the time the estimate was made are dealt with by section 268-20 (Nature of liability to pay estimate) and so should not be taken into account in exercising such a power; and
(b) the effects of sections 268-55 and 268-70 (effect of reduction or revocation on liabilities).
Scope
268-40(1)
This section applies as set out in the following table:
| Statutory declaration or affidavit | |||
| Item | This section applies if … | and … | within … |
| 1 | the Commissioner gives you notice of the estimate | you give the Commissioner a statutory declaration for the purposes of this section | (a) 7 days after the Commissioner gives you the notice; or
(b) a longer period allowed by the Commissioner. |
| 2 | you are a party to proceedings before a court that relate to the recovery of the unpaid amount of the estimate | you:
(a) file an affidavit for the purposes of this section; and (b) serve a copy on the Commissioner |
(a) 14 days after you first take a procedural step as a party to the proceedings; or
(b) a longer period allowed by the court. |
| 3 | (a) the estimate is of the unpaid amount of a liability of a company; and
(b) the Commissioner serves on the company a *statutory demand relating to the company's liability to pay the unpaid amount of the estimate; and (c) an application is made to a court under section 234, 459P, 462 or 464 of the Corporations Act 2001 for the company to be wound up |
the company:
(a) files an affidavit for the purposes of this section; and (b) serves a copy on the applicant |
(a) 14 days after notice of the application was served on the company; or
(b) a longer period allowed by the court. |
Example:
For the purposes of item 2 of the table, taking a procedural step as a party to proceedings includes entering an appearance, filing a notice of intention to defend, or applying to set aside judgment entered in default of appearance.
Note 1:
Section 459C of the Corporations Act 2001 creates a presumption that a company is insolvent, and may be wound up, if the company fails to comply with a statutory demand.
Note 2:
See section 268-90 for what the statutory declaration or affidavit must contain and who must make, swear or affirm it.
Reduction
268-40(2)
The amount of the estimate is reduced if the statutory declaration is to the effect, or the affidavit verifies facts sufficient to prove, that a specified lesser amount is the unpaid amount of the underlying liability.
Example:
Subsection (2) will apply if the statutory declaration etc. is to the effect that the underlying liability has been discharged in full (and therefore the unpaid amount of the liability is nil).
268-40(3)
The amount of the reduction is the amount by which the unpaid amount of the estimate (just before the reduction) exceeds the amount specified.
Note:
The effect of subsection (3) is to reduce the unpaid amount of the estimate to the amount specified.
Revocation
268-40(4)
The estimate is revoked if the statutory declaration is to the effect, or the affidavit verifies facts sufficient to prove, that the underlying liability never existed.
Scope
268-45(1)
This section applies if:
(a) the Commissioner lodges a proof of debt relating to the unpaid amount of the estimate; and
(b) section 268-95 applies to an entity (your supervising entity ) in relation to you.
Rejection of proof of debt
268-45(2)
Your supervising entity may give the Commissioner a statutory declaration to the effect that:
(a) the underlying liability has been discharged in full; or
(b) the unpaid amount of the underlying liability is a specified, lesser amount; or
(c) the underlying liability never existed.
Note:
See section 268-90 for what the statutory declaration must contain and who must make it.
268-45(3)
If your supervising entity does so, he or she may reject the proof of debt (in whole or in part) on the ground made out in the statutory declaration.
268-45(4)
If the Commissioner appeals, or applies for review of, your supervising entity's decision to reject the proof of debt, nothing in subsection (2) or (3) prevents evidence being adduced to contradict statements in the declaration.
Note:
Such evidence might also be relevant to a prosecution for an offence, such as an offence against section 11 of the Statutory Declarations Act 1959 (False declarations).
Revocation or reduction of estimate
268-45(5)
The following table applies in relation to the outcome following all (if any) appeals from, and applications for review of, your supervising entity's decision to reject the proof of debt. (If there are no appeals or applications for review, the outcome is your supervising entity's decision as originally made.)
| Rejecting proof of debt | ||
| Item | If the outcome is that … | then … |
| 1 | the proof is rejected in whole on the ground that the estimate has been discharged in full | the amount of the estimate is reduced by the unpaid amount of the estimate (just before the reduction). |
| 2 | the proof is rejected in part | the amount of the estimate is reduced by so much of the unpaid amount of the estimate (just before the reduction) as is rejected. |
| 3 | the proof is rejected in whole on the ground that the underlying liability never existed | the estimate is revoked. |
Note 1:
The effect of item 1 of the table is to reduce the unpaid amount of the estimate to nil.
Note 2:
The effect of item 2 of the table is to reduce the unpaid amount of the estimate to the amount admitted to proof.
This section applies if:
(a) an amount is paid or applied towards discharging your liability to pay the amount of the estimate; and
(b) the amount paid or applied exceeds the unpaid amount of the underlying liability as at the time just before the payment or application.
268-50(2)
The amount of the estimate is reduced so that it does not exceed the unpaid amount, at the time mentioned in paragraph (1)(b), of the underlying liability.
Scope
268-55(1)
This section applies for the purposes of the following:
(a) Subdivision 268-C (Liability to pay estimates);
(b) section 268-60 (refund of overpayments);
(c) Subdivision 268-E (Late payment of estimates);
(d) Division 269 (Penalties for directors of non-complying companies).
When reduction or revocation takes effect
268-55(2)
If the amount of the estimate is reduced, the estimate has effect, and is taken always to have had effect, as if the original amount of the estimate had been the reduced amount.
268-55(3)
If the estimate is revoked, the estimate is taken never to have been made.
This section applies if:
(a) an amount is paid or applied towards discharging your liability to pay the amount of the estimate; and
(b) the amount paid or applied exceeds the unpaid amount of the estimate as at the time just before the payment or application.
Example:
You pay an amount towards discharging the estimate and the estimate is later reduced to a lesser amount.
Note:
Section 268-50 provides for the reduction of the amount of the estimate in the case of overpayment.
268-60(2)
The Commissioner must pay you the excess.
Note:
See Division 3A of Part IIB of this Act for the rules about how the Commissioner must pay you. Division 3 of that Part allows the Commissioner to apply the amount owing as a credit against tax debts that you owe the Commonwealth.
Scope
268-65(1)
This section applies if:
(a) the estimate is of the unpaid amount of a liability of a company; and
(b) the Commissioner has served a *statutory demand on the company relating to the company's liability to pay the unpaid amount of the estimate; and
(c) the amount of the estimate is later reduced, or the estimate is revoked.
Statutory demand changed
268-65(2)
The *statutory demand is changed accordingly.
268-65(3)
The *statutory demand is taken to have had effect (as so changed) from the time the Commissioner served it on the company.
Statutory demand set aside
268-65(4)
The *statutory demand is set aside if subsection (2) reduces the amount of the debt (or the total of the amounts of the debts) below the statutory minimum (within the meaning of the Corporations Act 2001).
Reduction of the amount of the estimate, or revocation of the estimate, does not affect the Commissioner's rights or remedies in relation to the underlying liability (except to the extent that this Division expressly provides otherwise).
This section applies if:
(a) your liability to pay the amount of the estimate remains undischarged at the end of 7 days after the Commissioner gives you notice of the estimate; and
(b) the underlying liability is not a liability to pay superannuation guarantee charge.
268-75(2)
You are liable to pay the *general interest charge on the unpaid amount of the estimate for each day in the period that:
(a) started at the beginning of the day by which the underlying liability was due to be paid; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) the amount of the estimate;
(ii) general interest charge on any of the amount of the estimate.
Note:
The general interest charge is worked out under Part IIA of this Act.
Scope
268-80(1)
If you are liable to pay the *general interest charge under section 268-75 in relation to the estimate, this section applies to the following liabilities:
(a) your liability to pay the general interest charge;
(b) a liability of yours to pay a general interest charge, under a corresponding provision of Subdivision 16-B, because the underlying liability remains undischarged;
(c) liability under a judgment, to the extent that it is based on a liability referred to in paragraph (a) or (b);
(d) a liability of yours to pay interest carried by a judgment debt, to the extent that the judgment debt is based on:
(i) the liability to pay the estimate; or
(ii) the liability to pay the general interest charge under section 268-75 on an unpaid amount of the estimate.
268-80(1A)
In a case covered by paragraph 268-10(1)(c) (estimate of liability in relation to net amount under GST Act), treat the reference in paragraph (1)(b) to the underlying liability as being a reference to a liability under Division 33 or 35 of the*GST Act for an *assessed net amount in respect of the underlying liability.
Discharging one liability discharges other liabilities
268-80(2)
If, at a particular time, an amount is paid or applied towards discharging one of the liabilities, each of the other liabilities that is in existence at that time is discharged to the extent of the same amount.
268-80(3)
However, this section does not discharge a liability to a greater extent than the amount of the liability.
268-80(4)
If, because a judgment debt carries interest, section 8AAH of this Act reduces the amount of a *general interest charge payable as mentioned in paragraph (1)(b) of this section, the amount of the reduction is taken, for the purposes of subsection (2) of this section, to have been applied towards discharging your liability to the charge.
Estimate payable despite judgment
268-85(1)
The unpaid amount of the estimate, or of the underlying liability, does not stop being payable merely because a judgment has been given by, or entered in, a court.
Division applies to liability under judgment
268-85(2)
This Division applies in relation to liability under a judgment, to the extent that it is based on your liability to pay the amount of the estimate, in the same way as this Division applies to that estimate liability.
268-85(3)
This Division applies in relation to liability under a judgment, to the extent that it is based on the underlying liability, in the same way as this Division applies to the underlying liability.
268-85(4)
Subsections (2) and (3) do not apply for the purposes of the following:
(a) section 268-20 (Nature of liability to pay estimate);
(b) section 268-30 (Estimate provable in bankruptcy or winding up);
(c) section 268-45 (rejection of proof of debt).
Judgment conclusive as to amount of liability
268-85(5)
Nothing in this Division affects the conclusiveness of a judgment as to the amount of a liability on which it is based.
Scope
268-90(1)
This section applies to a statutory declaration given, or an affidavit filed, for the purposes of section 268-40 or 268-45 in relation to the estimate.
Content
268-90(2)
In a case covered by paragraph 268-10(1)(a) (estimate of liability under requirement to pay to the Commissioner amounts you have withheld under the Pay as you go withholding rules), the statutory declaration or affidavit must verify the following facts:
(a) whichever of the following are applicable:
(i) the sum of all amounts you withheld under Division 12 during the relevant period, or the fact that you did not withhold any such amounts during the period;
(ii) the sum of all amounts you were required to pay under Division 13 (Alienated personal services payments) during the relevant period, or the fact that you were not required to pay any such amounts during the period;
(iii) the sum of all amounts you were required to pay under Division 14 (non-cash benefits and accruing gains) during the relevant period, or the fact that you were not required to pay any such amounts during the period;
(b) what has been done to comply with Division 16 (Payer's obligations and rights) in relation to the amounts referred to in paragraph (a).
268-90(2A)
In a case covered by paragraph 268-10(1)(b) (estimate of liability to pay superannuation guarantee charge), the statutory declaration or affidavit must verify the following facts:
(a) your name and address;
(b) for each employee for whom you have an *individual superannuation guarantee shortfall for the relevant *quarter:
(i) the employee's name and postal address and, if the employee has *quoted the employee's *tax file number to you, the employee's tax file number; and
(ii) the amount of the shortfall;
(c) what has been done to comply with your obligation to pay the relevant superannuation guarantee charge to the Commissioner.
Note:
The amount of the individual superannuation guarantee shortfall mentioned in paragraph (b) is a factor in determining the amount of the superannuation guarantee charge mentioned in paragraph 268-10(1)(b). The lesser amount mentioned in subsection 268-40(2) may therefore differ from the amount of that shortfall.
268-90(2B)
In a case covered by paragraph 268-10(1)(c) (estimate of liability in relation to net amount under GST Act), the statutory declaration or affidavit must verify the following facts:
(a) your *net amount for the *tax period;
(b) what has been done to comply with Division 31 and 33 of the *GST Act (obligation to give GST return and liability in respect of assessed net amounts) in relation to that tax period;
(c) your *taxable supplies and *creditable acquisitions that are attributable to that tax period;
(d) your assessable dealings (within the meaning of the *Wine Tax Act) and *wine tax credits that are attributable to that tax period.
Maker or deponent
268-90(3)
The statutory declaration or affidavit must be made, sworn or affirmed by:
(a) an individual specified in the following table; or
(b) your liquidator, receiver or trustee in bankruptcy (if and as applicable).
| Who must make the statutory declaration or swear or affirm the affidavit | ||
| Item | A statutory declaration or affidavit in relation to an estimate of a liability of … | must be made, sworn or affirmed by … |
| 1 | an individual | that individual. |
| 2 | a body corporate | (a) in the case of a company that has a director or a company secretary (within the meaning of the Corporations Act 2001) - a director of the company or the company secretary; or
(b) in the case of an *Australian government agency - an individual prescribed by the regulations; or (c) in any case - the public officer of the body corporate (for the purposes of the Income Tax Assessment Act 1936). |
| 3 | a body politic | an individual prescribed by the regulations. |
| 4 | a partnership | a partner of the partnership. |
| 5 | any other unincorporated association or body of persons | (a) a member of the association's or body's committee of management; or
(b) the public officer of the association or body (for the purposes of the Income Tax Assessment Act 1936). |
| 6 | a trust | (a) the trustee of the trust; or
(b) the public officer of the trust (for the purposes of the Income Tax Assessment Act 1936). |
| 7 | a *superannuation fund or an *approved deposit fund | (a) the trustee of the fund; or
(b) if the fund does not have a trustee - the entity managing the fund. |
268-90(4)
If the entity specified in the table in subsection (3) is not an individual, the table is taken to specify the individual who, under that subsection, would be eligible to make a statutory declaration in relation to an estimate of a liability of that entity.
Scope
268-95(1)
This section applies to an entity (your supervising entity ), in relation to you, if:
(a) the entity is your liquidator, receiver, trustee in bankruptcy or administrator, or the administrator of a deed of company arrangement executed by you; or
(b) your property is vested in the entity, or the entity has control of your property.
268-95(2)
For the purposes of this Division, this section applies to an entity in relation to a partnership if it applies to the entity in relation to a partner of the partnership.
Notices from the Commissioner
268-95(3)
For the purposes of this Division, a notice given by the Commissioner to your supervising entity is taken to have been given to you.
268-95(4)
You must give your supervising entity a copy of any notice given to you by the Commissioner under this Division. You must do so as soon as practicable, and in any event within 7 days, after:
(a) if the Commissioner gave you the notice before the day when your property vested in, or control of your property passed to, the supervising entity - that day; or
(b) if subsection (2) applies and the Commissioner gave you the notice before the day when the relevant partner's property vested in, or control of the relevant partner's property passed to, the supervising entity - that day; or
(c) otherwise - the day when the Commissioner gave you the notice.
268-95(5)
If the Commissioner gives you and your supervising entity a notice at different times, each notice is taken to have been given at the later of those times.
Action taken by your supervising entity
268-95(6)
For the purposes of this Division, a statutory declaration given to the Commissioner by your supervising entity is taken to have been given by you.
268-95(7)
For the purposes of this Division, an affidavit filed by your supervising entity is taken to have been filed by you.
268-95(8)
For the purposes of item 2 in the table in subsection 268-40(1) (recovery proceedings), a procedural step taken by your supervising entity is taken to have been taken by you.
Multiple supervising entities
268-95(9)
If you have 2 or more supervising entities, anything this Division provides for to be done by or in relation to your supervising entity may be done by or in relation to any of them.
This Division is not intended to limit or exclude the operation of Chapter 5 (External administration) or Schedule 2 to the Corporations Act 2001, or the Bankruptcy Act 1966, to the extent those provisions or that Act can operate concurrently with this Division.
Note:
Section 268-30 and Subdivision 268-D affect the operation of Chapter 5 of the Corporations Act 2001 and the Bankruptcy Act 1966.
This Division deals with obligations of a company:
The directors of a company have a duty toensure that the company either:
The directors' duties are enforced by penalties.
Note:
The duties this Division imposes on the directors of the company are in addition to the similar duties imposed on the public officer of the company. See subsection 252(1) of the Income Tax Assessment Act 1936.
The object of this Division is to ensure that a company either:
(a) meets its obligations under:
(i) Subdivision 16-B (obligation to pay withheld amounts to the Commissioner); and
(ii) Division 268 (estimates of PAYG withholding liabilities and superannuation guarantee charge); and
(iii) Part 3 of the Superannuation Guarantee (Administration) Act 1992 (obligation to pay superannuation guarantee charge); and
(iv) Divisions 33 and 35 of the *GST Act in respect of *assessed net amounts; and
(v) Division 162 of the GST Act in respect of GST instalments (within the meaning of the GST Act); or
(b) goes promptly into voluntary administration or restructuring under the Corporations Act 2001 or into liquidation.
Note:
The directors' duties are enforced by penalties on the directors. A penalty recovered under this Division is applied towards meeting the company's obligation.
This Division applies as set out in the following table:
| Obligations that directors must cause company to comply with | ||
| Item | Column 1 | Column 2 |
| This Division applies if, on a particular day (the initial day ) , a company is a company registered under the Corporations Act 2001 , and on the initial day… | and the company is obliged to pay to the Commissioner on or before a particular day (the due day) … | |
| 1 | the company withholds an amount under Division 12 | that amount in accordance with Subdivision 16-B. |
| 2 | the company receives an *alienated personal services payment | an amount in respect of that alienated personal services payment in accordance with Division 13 and Subdivision 16-B. |
| 3 | the company provides a *non-cash benefit | an amount in respect of that benefit in accordance with Subdivision 16-B. |
| 4 | (Repealed by No 8 of 2019) | |
| 5 | a *quarter ends | superannuation guarantee charge for the quarter in accordance with the Superannuation Guarantee (Administration) Act 1992. |
| 6 | a *tax period ends | an *assessed net amount for the tax period in accordance with the *GST Act. |
| 7 | a GST instalment quarter (within the meaning of the *GST Act) ends | a GST instalment (within the meaning of the GST Act) for the quarter in accordance with the GST Act. |
269-10(2)
This Division applies in relation to an amount that the company purports to withhold under Division 12, but is not required to withhold, as if the company were required to withhold the amount.
Superannuation guarantee charge
269-10(3)
For the purposes of this Division, the company's superannuation guarantee charge for a *quarter under the Superannuation Guarantee (Administration) Act 1992 is treated as being payable on the day by which the company must lodge a superannuation guarantee statement for the quarter under section 33 of that Act, even if the charge is not assessed under that Act on or before that day.
Estimates
269-10(4)
This Division also applies if:
(a) a company is a company registered under the Corporations Act 2001; and
(b) the company is given notice of an estimate under Division 268; and
(c) the company is obliged to pay the amount of the estimate to the Commissioner on or before a particular day (the due day ).
269-10(5)
If this Division applies because of subsection (4), then for the purposes of this Division:
(a) in the case of an estimate of an underlying liability referred to in paragraph 268-10(1)(a) (PAYG withholding liabilities) - the initial day is:
(i) for a company that is a *medium withholder or a *small withholder on the last day of the period identified in the notice of the estimate under section 268-15 as the period to which the underlying liability relates - the last day of that period; or
(ii) for any other company - the day by which the company is obliged to pay the amount of the underlying liability to the Commissioner; and
(b) in the case of an estimate of an underlying liability referred to in paragraph 268-10(1)(b) (superannuation guarantee charge) - the initial day is the last day of the *quarter to which the estimate relates; and
(ba) in the case of an estimate of an underlying liability referred to in paragraph 268-10(1)(c) (net amount under GST Act) - the initial day is the last day of the *tax period to which the estimate relates; and
(c) the company's obligation to pay the amount of the estimate is taken to have begun on the day after the initial day identified in paragraph (a) or (b) of this subsection.
269-10(6)
For the purposes of subsection (5), assume that the underlying liability exists as identified in the notice of the estimate under section 268-15.
Directors' obligations
269-15(1)
The directors (within the meaning of the Corporations Act 2001) of the company (from time to time) on or after the initial day must cause the company to comply with its obligation.
269-15(2)
The directors of the company (from time to time) continue to be under their obligation until:
(a) the company complies with its obligation; or
(b) an administrator of the company is appointed under section 436A, 436B or 436C of the Corporations Act 2001; or
(ba) a small business restructuring practitioner for the company is appointed under section 453B of that Act; or
(c) the company begins to be wound up (within the meaning of that Act).
269-15(2A)
To avoid doubt, if the obligation of the company is an obligation to pay the amount of an estimate of an underlying liability under Division 268, a director is subject to his or her obligation under subsection (1):
(a) even if the underlying liability never existed or has been discharged in full; and
(b) even if the unpaid amount of the underlying liability is less than the unpaid amount of the estimate; and
(c) at all times on and after the day referred to in paragraph 269-10(5)(b) until the director's obligation ceases under subsection (2) of this section, including at any such times before the Commissioner has made the estimate or given notice of the estimate.
Instalment arrangements
269-15(3)
The Commissioner must not commence, or take a procedural step as a party to, proceedings to enforce an obligation, or to recover a penalty, of a director under this Division if an *arrangement that covers the company's obligation is in force under section 255-15 (Commissioner's power to permit payments by instalments).
Note 1:
The arrangement may also cover other obligations of the company.
Note 2:
Subsection (3) does not prevent the Commissioner from giving a director a notice about a penalty under section 269-25.
Penalty for director on or before due day
269-20(1)
You are liable to pay to the Commissioner a penalty if:
(a) at the end of the due day, the directors of the company are still under an obligation under section 269-15; and
(b) you were under that obligation at or before that time (because you were a director).
Note:
Paragraph (1)(b) applies even if you stopped being a director before the end of the due day: see subsection 269-15(2).
269-20(2)
The penalty is due and payable at the end of the due day.
Note:
The Commissioner must not commence proceedings to recover the penalty until the end of 21 days after the Commissioner gives you notice of the penalty under section 269-25.
Penalty for new director
269-20(3)
You are also liable to pay to the Commissioner a penalty if:
(a) after the due day, you became a director of the company and began to be under an obligation under section 269-15; and
(b) 30 days later, you are still under that obligation.
269-20(4)
The penalty is due and payable at the end of that 30th day.
Note:
The Commissioner must not commence proceedings to recover the penalty until the end of 21 days after the Commissioner gives you notice of the penalty under section 269-25.
Amount of penalty
269-20(5)
The amount of a penalty under this section is equal to the unpaid amount of the company's liability under its obligation.
Note 1:
See section 269-40 for the effect on your penalty of the company discharging its obligation, or of another director paying his or her penalty.
Note 2:
See section 269-45 for your rights of indemnity and contribution.
Commissioner must give notice of penalty
269-25(1)
The Commissioner must not commence proceedings to recover from you a penalty payable under this Subdivision until the end of 21 days after the Commissioner gives you a written notice under this section.
Content of notice
269-25(2)
The notice must:
(a) set out what the Commissioner thinks is the unpaid amount of the company's liability under its obligation; and
(b) state that you are liable to pay to the Commissioner, by way of penalty, an amount equal to that unpaid amount because of an obligation you have or had under this Division; and
(c) explain the main circumstances in which the penalty will be remitted.
269-25(3)
To avoid doubt, a single notice may relate to 2 or more penalties, but must comply with subsection (2) in relation to each of them.
When notice is given
269-25(4)
Despite section
Note 1:
Section 28A of the Acts Interpretation Act 1901 may be relevant to giving a notice under subsection (1).
Note 2:
Section 269-50 of this Act is also relevant to giving a notice under subsection (1).
Subject to subsection (2), a penalty of yours under this Division is remitted if the directors of the company stop being under the relevant obligation under section 269-15:
(a) before the Commissioner gives you notice of the penalty under section 269-25; or
(b) within 21 days after the Commissioner gives you notice of the penalty under that section.
269-30(2)
The following table has effect:
| When appointing administrator or restructuring practitioner or winding up company does not affect penalty | |||
| Item | Column 1 | Column 2 | Column 3 |
| If the company's obligation is to pay to the Commissioner, on or before the due day… | and, because of paragraph 269-15(2)(b), (ba) or (c) (an administrator or a restructuring practitioner is appointed, or the company begins to be wound up), the directors stop being under the relevant obligation after … | subsection (1) does not apply… | |
| 1 | an amount in accordance with Subdivision 16-B (obligation to pay withheld amounts to the Commissioner), | the last day of the 3 months after the due day, | to the extent the company does not, on or before the last day mentioned in column 2, notify the Commissioner:
(a) under section 16-150 of the amount the company is obliged to pay; or (b) under section 389-5 of the amount the company is obliged to withhold. |
| 2 | the amount of an estimate under Division 268 of a liability referred to in paragraph 268-10(1)(a) (PAYG withholding liabilities), | the last day of the 3 months after the day by which the company was obliged to pay the underlying liability to which the estimate relates, | to any extent. |
| 3 | superannuation guarantee charge for a *quarter, | the due day, | (a) if the company, on or before the last day mentioned in column 2, lodges under section 33 of the Superannuation Guarantee (Administration) Act 1992 a superannuation guarantee statement for the quarter - the extent (if any) to which the sum mentioned in paragraph 35(1)(e) of that Act is less than the amount of the superannuation guarantee charge the company is obliged to pay for the quarter; or
(b) otherwise - to any extent. |
| 4 | the amount of an estimate under Division 268 of a liability referred to in paragraph 268-10(1)(b) (superannuation guarantee charge), | the day by which the company was obliged to pay the underlying liability to which the estimate relates, | to any extent. |
| 5 | an *assessed net amount for a *tax period | the last day of the 3 months after the due day, | (a) if the company, on or before the last day mentioned in column 2, lodges its *GST return, for the tax period for the relevant *net amount - the extent (if any) to which the net amount (worked out from the information in the GST return and any other information that the company gives the Commissioner on or before that last day) is less than the company's assessed net amount for the tax period; or
(b) otherwise - to any extent. |
| 6 | the amount of an estimate under Division 268 of a liability referred to in paragraph 268-10(1)(c) (net amount under GST Act), | the last day of the 3 months after the day by which the company was obliged to give its *GST return, for the tax period for the relevant *net amount, to the Commissioner in accordance with Division 31 of the *GST Act, | to any extent. |
Note 1:
An administrator or a small business restructuring practitioner of the company being appointed, or the company beginning to be wound up, after the last day mentioned in column 2 will, to the extent mentioned in column 3, have no effect on the penalty.
Note 2:
The sum mentioned in paragraph 35(1)(e) of the Superannuation Guarantee (Administration) Act 1992 is the sum of:
specified in the superannuation guarantee statement.
Note 3:
This subsection will not affect the operation of subsection (1) in respect of penalties that relate to GST instalments.
269-30(3)
If you become a director of the company during or after the 3 months mentioned in item 1, 2, 5 or 6, treat the reference in the item to the 3 months as being a reference to the 3 months after the day you become a director of the company.
Illness
269-35(1)
You are not liable to a penalty under this Division if, because of illness or for some other good reason, it would have been unreasonable to expect you to take part, and you did not take part, in the management of the company at any time when:
(a) you were a director of the company; and
(b) the directors were under the relevant obligations under subsection 269-15(1).
All reasonable steps
269-35(2)
You are not liable to a penalty under this Division if:
(a) you took all reasonable steps to ensure that one of the following happened:
(i) the directors caused the company to comply with its obligation;
(ii) the directors caused an administrator of the company to be appointed under section 436A, 436B or 436C of the Corporations Act 2001;
(iia) the directors caused a small business restructuring practitioner for the company to be appointed under section 453B of that Act;
(iii) the directors caused the company to begin to be wound up (within the meaning of that Act); or
(b) there were no reasonable steps you could have taken to ensure that any of those things happened.
269-35(3)
In determining what are reasonable steps for the purposes of subsection (2), have regard to:
(a) when, and for how long, you were a director and took part in the management of the company; and
(b) all other relevant circumstances.
269-35(3AA)
If the obligation referred to in subparagraph (2)(a)(i) is an obligation to pay an amount of an estimate of an underlying liability under Division 268, that reference to an obligation includes a reference to the obligation to pay the underlying liability.
269-35(3AB)
For the purposes of subsection (3AA), assume that the underlying liability exists as identified in the notice of the estimate under section 268-15.
Superannuation guarantee charge and assessed net amounts - reasonably arguable position
269-35(3A)
You are not liable to a penalty under this Division to the extent that the penalty resulted from the company treating the Superannuation Guarantee (Administration) Act 1992 or the *GST Act as applying to a matter or identical matters in a particular way that was *reasonably arguable, if the company took reasonable care in connection with applying that Act to the matter or matters.
When you can rely on this section
269-35(4)
For the purposes of:
(a) proceedings in a court to recover from you a penalty payable under this Division; or
(b) proceedings in a court against you in relation to a right referred to in paragraph 269-45(2)(b) (directors jointly and severally liable as guarantors);
subsection (1) or (2) of this section does not apply unless you prove the matters mentioned in that subsection.
269-35(4A)
For the purpose of the Commissioner recovering from you a penalty payable under this Division (other than as mentioned in subsection (4)), subsection (1) or (2) does not apply unless:
(a) you provide information to the Commissioner during the period of 60 days starting on the day the Commissioner:
(i) in the case of the Commissioner recovering the penalty under section 260-5 (Commissioner may collect amounts from third party) - gives you a notice under subsection 260-5(6) in relation to the penalty; or
(ii) otherwise - notifies you in writing that he or she has recovered any of the penalty; and
(b) the Commissioner is satisfied of the matters mentioned in subsection (1) or (2) of this section on the basis of that information.
Power of courts to grant relief
269-35(5)
Section 1318 of the Corporations Act 2001 does not apply to an obligation or liability of a director under this Division.
Liabilities
269-40(1)
This section applies to the following liabilities:
(a) the liability of the company under its obligation referred to in section 269-10;
(b) the liability of each director (or former director) to pay a penalty under this Division in relation to the liability of the company referred to in paragraph (a);
(c) a liability under a judgment, to the extent that it is based on a liability referred to in paragraph (a) or (b).
Discharging one liability discharges other liabilities
269-40(2)
If an amount is paid or applied at a particular time towards discharging one of the liabilities, each of the other liabilities in existence at that time is discharged to the extent of the same amount.
269-40(3)
If, because of section 268-20 (Nature of liability to pay estimate), one of the liabilities is discharged at a particular time to the extent of a particular amount, each of the other liabilities in existence at that time is discharged to the extent of the same amount.
269-40(4)
This section does not discharge a liability to a greater extent than the amount of the liability.
This section applies if you pay a penalty under this Division in relation to a liability of the company under an obligation referred to in section 269-10.
269-45(2)
You have the same rights (whether by way of indemnity, subrogation, contribution or otherwise) against the company or anyone else as if:
(a) you made the payment under a guarantee of the liability of the company; and
(b) under the guarantee you and every other person who has paid, or from whom the Commissioner is entitled to recover, a penalty under this Division in relation to the company's obligation were jointly and severally liable as guarantors.
The Commissioner may give you a notice under section 269-25 by leaving it at, or posting it to, an address that appears, from information held by the *Registrar, to be, or to have been within the last 7 days, your place of residence or *business.
If:
(a) the Commissioner gives you a notice under section 269-25 in accordance with section 269-50; and
(b) you have given the address of a *registered tax agent to the Commissioner as your address for service for the purposes of any *taxation law;
the Commissioner may also give you a copy of the notice.
269-52(2)
The Commissioner may do so by leaving the copy at, or posting the copy to, the address of the *registered tax agent.
269-52(3)
To avoid doubt, this section does not affect:
(a) whether the Commissioner has given you the actual notice; or
(b) how the Commissioner may give you the actual notice.
To avoid doubt, this Division is not intended to limit or exclude the operation of Chapter 5 (External administration) or Schedule 2 to the Corporations Act 2001, to the extent those provisions can operate concurrently with this Division.
The shortfall interest charge applies to shortfalls of income tax, petroleum resource rent tax, excess non-concessional contributions tax, Division 293 tax, diverted profits tax, Laminaria and Corallina decommissioning levy, Australian IIR/UTPR tax or Australian DMT tax that are revealed when the Commissioner amends your assessment.
The shortfall interest charge also applies if an amendment of your assessment by the Commissioner reveals that excessive tax offset refunds have been credited to you and you are liable to pay the amount of the excess.
The charge is applied at a uniform rate that is lower than the general interest charge rate.
The Commissioner has a discretion to remit shortfall interest charge.
The object of this Division is to neutralise benefits that taxpayers could otherwise receive from: (a) shortfalls of income tax, *petroleum resource rent tax, *excess non-concessional contributions tax, *Division 293 tax, *diverted profits tax, *Laminaria and Corallina decommissioning levy, *Australian IIR/UTPR tax or *Australian DMT tax; or (b) excessive tax offset refunds;
so that they do not receive an advantage in the form of a free loan over those who assess correctly.
You are liable to pay *shortfall interest charge on an additional amount of income tax that you are liable to pay because the Commissioner amends your assessment for an income year.
280-100(2)
The liability is for each day in the period: (a) beginning at the start of the day on which income tax under your first assessment for that income year was due to be paid, or would have been due to be paid if there had been any; and (b) ending at the end of the day before the day on which the Commissioner gave you notice of the amended assessment.
280-100(3)
However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which income tax under the earlier amended assessment was due to be paid, or would have been due to be paid if there had been any.
Note:
See Division 5 of the Income Tax Assessment Act 1997 for when the amount of income tax and shortfall interest charge becomes due and payable. That Division also provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.
280-100(4)
(Repealed by No 45 of 2021)
Liability arising because of a financial benefit under a look-through earnout right
280-100(5)
Subsection (1) does not apply if: (a) you provide or receive a *financial benefit under a *look-through earnout right; and (b) you request the Commissioner to amend your assessment for an income year (the taxing year ) to take account of the financial benefit; and (c) you make that request at or before the time:
(i) you are required to lodge your *income tax return for the income year in which the financial benefit is provided or received; or
(d) as a result of paragraph (a), you are liable to pay an additional amount of income tax for the taxing year.
(ii) you would be so required if you were required to lodge an income tax return for that income year; and
You are liable to pay *shortfall interest charge on an additional amount of *excess exploration credit tax that you are liable to pay because the Commissioner amends your assessment for an income year.
280-101(2)
The liability is for each day in the period: (a) beginning at the start of the day on which *excess exploration credit tax under your first assessment for that income year was due to be paid, or would have been due to be paid if there had been any; and (b) ending at the end of the day before the day on which the Commissioner gave you notice of the amended assessment.
280-101(3)
However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which *excess exploration credit tax under the earlier amended assessment was due to be paid, or would have been due to be paid if there had been any.
Note:
See Subdivision 418-F of the Income Tax Assessment Act 1997 for when the amount of excess exploration credit tax and shortfall interest charge becomes due and payable. That Subdivision also provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.
You are liable to pay *shortfall interest charge on an additional amount of *petroleum resource rent tax that you are liable to pay because the Commissioner amends your assessment under the Petroleum Resource Rent Tax Assessment Act 1987 for a year of tax (within the meaning of that Act).
280-102(2)
The liability is for each day in the period:
(a) beginning at the start of the day on which *petroleum resource rent tax under your first assessment for that year of tax was due to be paid, or would have been due to be paid if there had been any; and
(b) ending at the end of the day before the day on which the Commissioner gave you notice of the amended assessment.
280-102(3)
However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which *petroleum resource rent tax under the earlier amended assessment was due to be paid, or would have been due to be paid if there had been any.
Note:
See section 82 of the Petroleum Resource Rent Tax Assessment Act 1987 for when the amount of petroleum resource rent tax and shortfall interest charge becomes due and payable. Section 85 of that Act provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.
You are liable to pay *shortfall interest charge on an additional amount of *excess non-concessional contributions tax that you are liable to pay because the Commissioner amends your *excess non-concessional contributions tax assessment for a financial year.
280-102A(2)
The liability is for each day in the period:
(a) beginning at the start of the day on which *excess non-concessional contributions tax under your first *excess non-concessional contributions tax assessment for that year was due to be paid; and
(b) ending at the end of the day before the day on which the Commissioner gave you notice of the amended assessment.
280-102A(3)
However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which *excess non-concessional contributions tax under the earlier amended assessment was due to be paid.
Note:
See section 292-385 of the Income Tax Assessment Act 1997 for when the amount of excess non-concessional contributions tax becomes due and payable. See section 5-10 of that Act for when the amount of shortfall interest charge becomes due and payable. Section 292-390 of that Act provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.
Liability arising because of a financial benefit under a look-through earnout right
280-102A(4)
Subsection (1) does not apply if:
(a) you provide or receive a *financial benefit under a *look-through earnout right; and
(b) you request the Commissioner to amend your *excess non-concessional contributions tax assessment for a *financial year to take account of the financial benefit; and
(c) you make that request at or before the time:
(i) you are required to lodge your *income tax return for the income year in which the financial benefit is provided or received; or
(ii) you would be so required if you were required to lodge an income tax return for that income year; and
(d) as a result of paragraph (a), you are liable to pay an additional amount of *excess non-concessional contributions tax for the financial year.
You are liable to pay *shortfall interest charge on an additional amount of *Division 293 tax that you are liable to pay because the Commissioner amends your assessment of an amount of Division 293 tax payable in relation to an income year.
280-102B(2)
However, subsection (1) does not apply to the extent the additional amount of *Division 293 tax is *deferred to a debt account for a *superannuation interest.
280-102B(3)
The liability is for each day in the period:
(a) beginning on the day on which *Division 293 tax under your first assessment of Division 293 tax for that income year was due to be paid; and
(b) ending on the day before the day on which the Commissioner gave you notice of the amended assessment.
280-102B(4)
However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which *Division 293 tax under the earlier amended assessment was due to be paid.
Note 1:
See section 5-10 of the Income Tax Assessment Act 1997 for when the amount of shortfall interest charge becomes due and payable.
Note 2:
See Subdivision 293-C of that Act for when the amount of assessed Division 293 tax becomes due and payable. That Subdivision also provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.
Liability arising because of a financial benefit under a look-through earnout right
280-102B(5)
Subsection (1) does not apply if:
(a) you provide or receive a *financial benefit under a *look-through earnout right; and
(b) you request the Commissioner to amend your assessment of *Division 293 tax payable in relation to an income year (the taxing year ) to take account of the financial benefit; and
(c) you make that request at or before the time:
(i) you are required to lodge your *income tax return for the income year in which the financial benefit is provided or received; or
(ii) you would be so required if you were required to lodge an income tax return for that income year; and
(d) as a result of paragraph (a), you are liable to pay an additional amount of Division 293 tax for the taxing year.
Subsection (2) applies if:
(a) the Commissioner has given an entity an assessment of income tax for an income year; and
(b) the Commissioner subsequently gives the entity a *DPT assessment for that income year.
280-102C(2)
The entity is liable to pay *shortfall interest charge equal to the amount of shortfall interest charge that the entity would be liable to pay under section 280-100 if:
(a) the Commissioner amended the assessment of income tax mentioned in paragraph (1)(a) on the day that the Commissioner gave the entity the *DPT assessment mentioned in paragraph (1)(b); and
(b) the entity were liable to pay an additional amount of income tax because of that amendment; and
(c) the Commissioner made that amendment on the basis that the *tax benefit or tax benefits to which the DPT assessment related were cancelled.
280-102C(3)
An entity is also liable to pay *shortfall interest charge on an additional amount of *diverted profits tax that the entity is liable to pay because the Commissioner amends the entity's *DPT assessment in respect of an income year.
280-102C(4)
The liability is for each day in the period:
(a) beginning at the start of the day on which *diverted profits tax under the entity's first *DPT assessment for that income year was due to be paid, or would have been due to be paid if there had been any; and
(b) ending at the end of the day before the day on which the Commissioner gave the entity notice of the amended *DPT assessment.
280-102C(5)
However, if an amended *DPT assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended DPT assessment, the period for the reinstated liability begins at the start of the day on which *diverted profits tax under the earlier amended DPT assessment was due to be paid.
Note 1:
See subsection 177P(3) of the Income Tax Assessment Act 1936 for when the amount of diverted profits tax becomes due and payable.
Note 2:
Section 177Q of the Income Tax Assessment Act 1936 provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.
Note 3:
See section 177R of the Income Tax Assessment Act 1936 for when the amount of shortfall interest charge becomes due and payable.
You are liable to pay *shortfall interest charge on an additional amount of *Laminaria and Corallina decommissioning levy that you are liable to pay because the Commissioner amends your assessment of an amount of levy payable for a financial year.
280-102D(2)
The liability is for each day in the period: (a) beginning at the start of the day on which levy under your first assessment for that financial year was due to be paid, or would have been due to be paid if there had been any; and (b) ending at the end of the day before the day on which the Commissioner gave you the notice of the amended assessment.
280-102D(3)
However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which levy under the earlier amended assessment was due to be paid, or would have been due to be paid if there had been any.
Note:
See section 125-10 for when the amount of levy and shortfall interest charge becomes due and payable. That section also provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.
A *Group Entity is liable to pay *shortfall interest charge on an additional amount of *Australian GloBE tax that the Group Entity is liable to pay because the Commissioner amends the Group Entity's assessment of an amount of such tax payable for a *Fiscal Year.
280-102E(2)
The liability is for each day in the period: (a) beginning at the start of the day on which such tax under the *Group Entity's first assessment for such tax for that *Fiscal Year was due to be paid, or would have been due to be paid if there had been any; and (b) ending at the end of the day before the day on which the Commissioner gave the Group Entity notice of the amended assessment.
280-102E(3)
However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which such tax under the earlier amended assessment was due to be paid, or would have been due to be paid if there had been any.
Note:
See section 127-70 for when the amount of such tax and shortfall interest charge becomes due and payable. That section also provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.
Joint Ventures
280-102E(4)
A reference in this section to a *Group Entity is taken to include a reference to a *GloBE Joint Venture or *GloBE JV Subsidiary that, under the *Minimum Tax Rules, is treated as a *Constituent Entity of a separate *Applicable MNE Group for a *Fiscal Year for the purposes of computing its *Australian GloBE tax for the Fiscal Year.
You are liable to pay *shortfall interest charge on an amount (an amount of excess ) that you are liable to pay under subsection 172A(2) of the Income Tax Assessment Act 1936 because the Commissioner amends your assessment for an income year.
280-12F(2)
The liability is for each day in the period: (a) beginning at the start of the day on which the amount of excess was applied in accordance with Divisions 3 and 3A of Part IIB of this Act; and (b) ending at the end of the day before the day on which the Commissioner gave you notice of the amended assessment.
Note:
See section 172A of the Income Tax Assessment Act 1936 for when the amount of excess, and the shortfall interest charge, become due and payable. That section also provides for general interest charge on any part of the amount of excess (plus any shortfall interest charge) that remains unpaid after it is due and payable.
Your liability to pay *shortfall interest charge exists whether or not you are liable to any penalty under this Act.
280-103(2)
Neither the Commonwealth nor an authority of the Commonwealth is liable to pay *shortfall interest charge.
The *shortfall interest charge for a day is worked out by multiplying the rate worked out under subsection (2) for that day by the sum of these amounts: (a) the additional amount of income tax, *excess exploration credit tax, *petroleum resource rent tax, *excess non-concessional contributions tax or *Division 293 tax, or the amount that you are liable to pay shortfall interest charge on under subsection 280-102F(1); and (b) the shortfall interest charge on that amount from previous days.
280-105(2)
The rate is:
| *Base interest rate 3 percentage
for the day + points Number of days in the calendar year |
SECTION 280-110 NOTIFICATION BY COMMISSIONER 280-110(1)
The Commissioner must give you a notice stating the amount of the *shortfall interest charge you are liable to pay for the period applicable under section 280-100, 280-101, 280-102, 280-102A, 280-102B, 280-102D, 280-102E or 280-102F.
280-110(2)
(Repealed by No 81 of 2016)
280-110(3)
A notice given by the Commissioner under this section is prima facie evidence of the matters stated in the notice.
The Commissioner may remit all or a part of an amount of *shortfall interest charge you are liable to pay if the Commissioner considers it fair and reasonable to do so.
Commissioner's Remedial Power
(a) in relation to:
(i) an entity; or
(ii) one or more entities in a relevant class; and
(b) whether or not the charge or penalty:
(i) has become due and payable; or
(ii) may become due and payable in the future.
Note: A Commissioner's Remedial Power modification is relevant to this part of the tax law. Taxation Administration (Remedial Power - Remission of Charges and Penalties) Determination 2023 (F2023L00956) modifies the operation of s 280-160(1) in Sch 1 to the Taxation Administration Act 1953 and any other provisions of a taxation law whose operation is affected by the modified operation of s 280-160(1) in Sch 1.
The operation of the relevant provision is modified as follows:
For the purposes of s 370-5 in Sch 1 to the Taxation Administration Act 1953, s 280-160(1) in Sch 1 to the Taxation Administration Act 1953 is modified to permit the Commissioner to remit the general interest charge, shortfall interest charge or an administrative penalty, as applicable:
An entity must treat a modification as not applying to it or any other entity if the modification would produce a less favourable result for it. The Commissioner is empowered by s 370-5 in Sch 1 to the Taxation Administration Act 1953 to make modifications, by legislative instrument, to ensure the law is administered to achieve its intended purpose or object.
280-160(2)
Without limiting subsection (1), in deciding whether to remit, the Commissioner must have regard to: (a) the principle that remission should not occur just because the benefit you received from the temporary use of the shortfall amount is less than the *shortfall interest charge; and (b) the principle that remission should occur where the circumstances justify the Commonwealth bearing part or all of the cost of delayed payments.
The Commissioner must give you a written statement of the reasons for a decision not to remit an amount of *shortfall interest charge you are liable to pay if you requested the Commissioner, in the *approved form, to remit the amount.
Note:
Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons.
You may object, in the manner set out in Part IVC, against a decision of the Commissioner not to remit an amount of *shortfall interest charge you are liable to pay on an additional amount of income tax, *petroleum resource rent tax, *excess non-concessional contributions tax or *Division 293 tax, if the amount of the charge that was not remitted is more than 20% of the additional amount.
This Division sets out the circumstances in which administrative penalties apply for:
It also sets out the amounts of those penalties.
The object of this Division is to provide a uniform administrative penalty regime for all *taxation laws to enable administrative penalties to apply to entities that fail to meet their obligations under those laws in relation to:
(a) making false or misleading statements; and
(b) taking a position that is not reasonably arguable; and
(c) entering into *schemes; and
(d) refusing to provide documents to the Commissioner.
(e) (Repealed by No 75 of 2005)
A matter is reasonably arguable if it would be concluded in the circumstances, having regard to relevant authorities, that what is argued for is about as likely to be correct as incorrect, or is more likely to be correct than incorrect.
Note:
For the effect of transfer pricing documentation on when a matter is reasonably arguable, see Subdivision 284-E.
284-15(2)
To the extent that a matter involves an assumption about the way in which the Commissioner will exercise a discretion, the matter is only reasonably arguable if, had the Commissioner exercised the discretion in the way assumed, a court would be about as likely as not to decide that the exercise of the discretion was in accordance with law.
284-15(3)
Without limiting subsection (1), these authorities are relevant: (a) a *taxation law; (b) material for the purposes of subsection 15AB(1) of the Acts Interpretation Act 1901; (c) a decision of a court (whether or not an Australian court), the Administrative Appeals Tribunal, the *ART or a Board of Review; (d) a *public ruling.
This Division applies to a statement made orally, in a document or in any other way (including electronically) for a purpose connected with a *taxation law.
This Division applies to a statement made by your agent as if it had been made by you.
Subsection (2) applies if, under section 127-10, 127-20, 127-40 or 127-50, you are taken to give a *GloBE Information Return, *Australian IIR/UTPR tax return or *Australian DMT tax return (the return ) to the Commissioner because an entity gives the return to the Commissioner or a *foreign government agency.
284-27(2)
This Division applies in relation to a statement in the return, as if the return, or a statement made by you in relation to the return, were given to the Commissioner: (a) by the entity, acting as your *agent; and (b) for a purpose connected with a *taxation law.
If you are a trustee of a trust and:
(a) you make a statement to the Commissioner or to an officer who is exercising powers or performing functions under a *taxation law about the trust; and
(b) the statement:
(i) is false or misleading in a material particular, whether because of things in it or omitted from it; or
(ii) treated an *income tax law as applying to a matter or identical matters in a particular way that was not *reasonably arguable; or
(iii) treated a taxation law as applying in a particular way to a *scheme;
this Division applies to you as if any *shortfall amount or *scheme shortfall amount of a beneficiary of the trust as a result of the statement were your shortfall amount or scheme shortfall amount.
If you are a partner in a partnership and:
(a) a statement about the partnership net income or partnership loss is made by a partner or the partnership's agent to the Commissioner or to an entity who is exercising powers or performing functions under a *taxation law about the partnership; and
(b) the statement:
(i) is false or misleading in a material particular, whether because of things in it or omitted from it; or
(ii) treated an *income tax law as applying to a matter or identical matters in a particular way that was not *reasonably arguable;
this Division applies to you as if you had made the statement.
284-35(2)
If you are a partner in a partnership and:
(a) the partnership participated in a *scheme; and
(b) the partnership net income would have been greater, or the partnership loss would have been smaller, apart from the scheme;
this Division applies to you as if the proportion of the *scheme benefit that is the same as your share of the partnership net income or partnership loss were your scheme benefit.
SECTION 284-70 WHAT THIS SUBDIVISION IS ABOUT
You are liable to an administrative penalty if:
This Subdivision sets out when the penalties apply and how the amounts of the penalties are calculated.
| Operative provisions | |
| 284-75 | Liability to penalty |
| 284-80 | Shortfall amounts |
| 284-85 | Amount of penalty |
| 284-90 | Base penalty amount |
| 284-95 | Joint and several liability of directors of corporate trustee that makes a false or misleading statement |
SECTION 284-75 LIABILITY TO PENALTY 284-75(1)
You are liable to an administrative penalty if: (a) you make a statement to the Commissioner or to an entity that is exercising powers or performing functions under a *taxation law (other than the *Excise Acts); and (b) the statement is false or misleading in a material particular, whether because of things in it or omitted from it. (c) (Repealed by No 56 of 2010)
Note:
This section applies to a statement made by your agent as if it had been made by you: see section 284-25.
284-75(1A)
(Repealed by No 56 of 2010)
284-75(1B)
(Repealed by No 56 of 2010)
284-75(2)
You are liable to an administrative penalty if: (a) you make a statement to the Commissioner or to an entity that is exercising powers or performing functions under an *income tax law, the *Minimum Tax law or the *petroleum resource rent tax law; and (b) in the statement, you treated an income tax law, the Minimum Tax law, or the petroleum resource rent tax law, as applying to a matter or identical matters in a particular way that was not *reasonably arguable; and
(c) (Repealed by No 56 of 2010) (d) item 4, 5, 6 or 6A of the table in subsection 284-90(1) applies to you.
284-75(3)
You are liable to an administrative penalty if: (a) you fail to give a return, notice or other document to the Commissioner by the day it is required to be given; and (b) that document is necessary for the Commissioner to determine a *tax-related liability (other than one arising under the *Excise Acts) of yours accurately; and (c) the Commissioner determines the tax-related liability without the assistance of that document.
Note:
You are also liable to an administrative penalty for failing to give the document on time: see Subdivision 286-C.
284-75(4)
You are liable to an administrative penalty if: (a) you make a statement to an entity other than:
(i) the Commissioner; and
(b) the statement is, or purports to be one that:
(ii) an entity exercising powers or performing functions under a *taxation law (other than the *Excise Acts); and
(i) is required or permitted by a taxation law (other than the Excise Acts); or
(ii) might reasonably be expected to be used, by an entity in determining, for the purposes of the *GST law, whether you are an Australian consumer (within the meaning of the *GST Act); or
(c) the statement is false or misleading in a material particular, whether because of things in it or omitted from it.
(iii) might reasonably be expected to be used, by an entity in determining, for the purposes of the GST law, whether a supply made to you is connected with the indirect tax zone (within the meaning of that Act) because of Subdivision 84-C of that Act; and
Exceptions to subsections (1) and (4)
284-75(5)
You are not liable to an administrative penalty under subsection (1) or (4) for a statement that is false or misleading in a material particular if you, and your *agent (if relevant), took reasonable care in connection with the making of the statement.
284-75(6)
