A New Tax System (Goods and Services Tax) Act 1999

Chapter 4 - The special rules  

Part 4-1 - Special rules mainly about particular ways entities are organised  


The special rules in this Part mainly modify the operation of Part 2-2 so far as that Part deals with liability for GST and entitlement to input tax credits, but the special rules also affect other aspects of Part 2-2 and the other Parts of Chapter 2 .

Division 58 - Representatives of incapacitated entities  

58-50   Representatives to give GST returns for incapacitated entities  

A *representative of an *incapacitated entity must give to the Commissioner a *GST return for a tax period applying to the incapacitated entity if:

(a) the incapacitated entity has failed to give to the Commissioner a GST return for a tax period; and

(b) the Commissioner, in writing, directs the representative to give to the Commissioner a GST return.


Deciding to direct a representative of an incapacitated entity to give to the Commissioner a GST return is a reviewable GST decision (see Subdivision 110-F in Schedule 1 to the Taxation Administration Act 1953 ).

The tax period may be any tax period applying to the *incapacitated entity , including:

(a) a tax period that ends before the *representative became a representative of the incapacitated entity; and

(b) a tax period that starts after the representative became a representative of the incapacitated entity.

The *GST return by the *representative :

(a) must be in accordance with the requirements of Division 31 as they would apply in relation to the *incapacitated entity except to the extent that the direction under paragraph (1)(b) modifies those requirements; and

(b) must be given to the Commissioner within the period specified in the direction.

Without limiting the matters that the Commissioner may take into account in deciding whether to give a direction under paragraph (1)(b), the Commissioner must take into account:

(a) the likelihood of a dividend to unsecured creditors of the *incapacitated entity being declared, and the likely amounts of any such dividend; and

(b) the likelihood that, if the Commissioner were given the *GST return , it would reveal a liability to pay an amount to the Commissioner under the *GST law ; and

(c) the availability of books and records that would make it possible to prepare the GST return; and

(d) the likelihood that the cost to the *representative of preparing the GST return would be covered by the incapacitated entity ' s assets without resulting in an unreasonable impact on the other creditors of the incapacitated entity.

The *incapacitated entity is taken to have complied with Division 31 in relation to giving a *GST return for a tax period if the *representative gives to the Commissioner a return for the tax period in accordance with this section.

A direction under paragraph (1)(b) is not a legislative instrument.

This section has effect despite section 31-5 (which is about who must give GST returns).


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