GST issues registers
Representatives of incapacitated entities1 Basic concepts
1.1. Who is a representative under Division 58?
Non-interpretative - straight application of the law
Division 58 applies to representatives of incapacitated entities. A representative is defined in the GST dictionary to be either of the following:
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- a trustee in bankruptcy
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- a liquidator
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- a receiver
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- a controller within the meaning of section 9 of the Corporations Act
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- an administrator appointed under Division 2 of Part 5.3A of the Corporations Act
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- a person appointed or authorised under an Australian law to manage the affairs of an entity because it is unable to pay all of its debts as and when they become due and payable
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- an administrator of a deed of company arrangement executed by the entity.
'Liquidator' has the meaning given by subsection 6(1) of the ITAA 1936. It means the person who, whether or not appointed as liquidator, is the person required by law to carry out the winding-up of a company.
We consider that the term 'receiver' in this definition includes a receiver and manager.
Special rules prevent Division 58 applying to the extent that the representative is a creditor of the incapacitated entity. An example of this is a mortgagee in possession of the entity's property who is not a representative of the entity for any other reason.
In these circumstances, the mortgagee - in its own right - will register for an ABN, TFN and GST, if required. This means the mortgagee - in its own right - will account for GST for the property and any other tax liabilities.
1.2. Who is an incapacitated entity under Division 58?
Non-interpretative - straight application of the law
The GST dictionary defines an 'incapacitated entity' to mean one of the following:
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- an individual who is a bankrupt
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- an entity that is in liquidation or receivership
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- an entity that has a representative.
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