Taxation Administration Act 1953
Note: See section 3AA .Chapter 2 - Collection, recovery and administration of income tax
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 (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
(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
(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 or *dad and partner 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
(ii) the recipient applies to the payer for the refund;
(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.
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 .
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;
(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);
(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:
(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.
The request must 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).
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).
(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.
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).
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