Taxation Administration Act 1953

Schedule 1—Collection and recovery of income tax and other liabilities

Chapter 3—Collection, recovery and administration of other taxes

Part 3‑10—Indirect taxes

Division 105—General rules for indirect taxes

Table of Subdivisions

Guide to Division 105

105‑A Assessments

105‑B Review of indirect tax decisions

105‑C Limits on credits, refunds and recovering amounts

105‑D General interest charge and penalties

105‑F Indirect tax refund schemes

105‑G Other administrative provisions

Guide to Division 105

105‑1 What this Division is about

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:

(a) how assessments are made or amended and their effect;

(b) review of assessments;

(e) the effect of not passing on refunds of overpaid amounts;

(f) charges and penalties;

(h) refunding indirect tax because of Australia’s international obligations;

(i) requirements for notifications.

Subdivision 105‑A—Assessments

Table of sections

105‑3 Application of Subdivision

105‑5 Commissioner may make assessment of indirect tax

105‑10 Request for assessment

105‑15 Indirect tax liabilities do not depend on assessment

105‑20 Commissioner must give notice of the assessment

105‑25 Amendment of assessment

105‑30 Later assessment prevails in case of inconsistency

105‑3 Application of Subdivision

This Subdivision applies to:

(a) *tax periods, and *fuel tax return periods, starting before 1 July 2012; and

(b) *indirect tax payable by you on an importation of goods, if:

(i) the indirect tax does not relate to any tax periods; and

(ii) the liability to pay the indirect tax arose before 1 July 2012.

Note: This Subdivision will be repealed on 1 January 2017: see Part 2 of Schedule 1 to the Indirect Tax Laws Amendment (Assessment) Act 2012.

105‑5 Commissioner may make assessment of indirect tax

(1) The Commissioner may at any time make an assessment of:

(a) your *net amount, or any part of your net amount, for a *tax period; or

(b) your *net fuel amount, or any part of your net fuel amount, for a tax period or *fuel tax return period.

(2) The Commissioner may at any time make an assessment of the amount of *indirect tax payable by you on an importation of goods.

(3) The Commissioner may make an assessment under this section even if he or she has already made an assessment for the *tax period, *fuel tax return period or importation concerned.

Note: An assessment made under this section is a reviewable indirect tax decision: see Subdivision 105‑B.

105‑10 Request for assessment

(1) You may request the Commissioner in the *approved form to make an assessment of:

(a) your *net amount for a *tax period; or

(b) your *net fuel amount for a tax period or *fuel tax return period; or

(2) The Commissioner must comply with the request if it is made within:

(a) 4 years after:

(i) the end of the *tax period or *fuel tax return period; or

(ii) the importation; or

(b) such further period as the Commissioner allows.

105‑15 Indirect tax liabilities do not depend on assessment

(1) Your liability to pay *indirect tax or a *net fuel amount, and the time by which a *net amount, a net fuel amount or an amount of indirect tax must be paid, do not depend on, and are not in any way affected by, the making of an assessment under this Subdivision.

(2) The Commissioner’s obligation to pay:

(a) a *net amount under section 35‑5 of the *GST Act; or

(b) a *net fuel amount under section 61‑5 of the Fuel Tax Act 2006;

and the time by which it must be paid, do not depend on, and are not in any way affected by, the making of an assessment under this Subdivision.

Note: However, a notice of assessment can be used as evidence of liability: see section 105‑100.

105‑20 Commissioner must give notice of the assessment

(1) The Commissioner must give you notice of an assessment as soon as practicable after the assessment is made. However, failing to do so does not affect the validity of the assessment.

(2) The Commissioner may give you the notice electronically if you are required to lodge or have lodged your *GST returns electronically.

105‑25 Amendment of assessment

The Commissioner may amend an assessment at any time. An amended assessment is an assessment for all purposes of any *indirect tax law.

Note 1: However, there is a time limit on the recovery of overpaid or underpaid net amounts, net fuel amounts and indirect tax: see sections 105‑50 and 105‑55.

Note 2: An amendment under this section is a reviewable indirect tax decision: see Subdivision 105‑B.

105‑30 Later assessment prevails in case of inconsistency

If there is an inconsistency between assessments that relate to the same *tax period, *fuel tax return period or importation of goods, the later assessment prevails to the extent of the inconsistency.

Subdivision 105‑B—Review of indirect tax decisions

Table of sections

105‑40 Reviewable indirect tax decisions

(1) You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that is a *reviewable indirect tax decision relating to you.

(2) A decision under section 105‑5 or 105‑25 involving an assessment of a *net amount, a *net fuel amount or an amount of *indirect tax is a reviewable indirect tax decision.

Note: This Subdivision will be repealed on 1 January 2017: see Part 2 of Schedule 1 to the Indirect Tax Laws Amendment (Assessment) Act 2012.

Subdivision 105‑C—Limits on credits, refunds and recovering amounts

Table of sections

105‑50 Time limit on recovery by the Commissioner

105‑55 Time limit on refunds etc. from the Commissioner

105‑65 Restriction on GST refunds

105‑50 Time limit on recovery by the Commissioner

(1) Any unpaid *net amount, *net fuel amount or amount of *indirect tax (together with any relevant *general interest charge under this Act) ceases to be payable 4 years after it became payable by you.

(2) If:

(a) an amount was paid to you, or applied under Division 3 of Part IIB of this Act, as:

(i) a refund in relation to a *net amount, *net fuel amount or amount of *indirect tax; or

(ii) an amount of indirect tax that was overpaid or wrongly paid; and

(b) that amount exceeded the amount (if any) that you were entitled to be paid, or to have applied under Division 3 of Part IIB of this Act;

the amount of the excess (together with any relevant *general interest charge under this Act) ceases to be payable 4 years after it became payable by you.

(3) However, subsection (1) does not apply to an amount, and subsection (2) does not apply to an amount of an excess, if:

(a) within those 4 years the Commissioner has required payment of the amount or the amount of excess by giving a notice to you; or

(b) the Commissioner is satisfied that:

(i) the payment of the amount was avoided by fraud or evaded; or

(ii) the payment of the amount of excess, or its application under Division 3 of Part IIB of this Act, was brought about by fraud or evasion.

Sunsetting provision

(4) This section applies in relation to payments and refunds that:

(a) relate to *tax periods, and *fuel tax return periods, that start before 1 July 2012; or

(b) do not relate to any tax periods or fuel tax return periods, but relate to liabilities or entitlements that arose before 1 July 2012.

Note: This section will be repealed on 1 January 2017: see Part 2 of Schedule 1 to the Indirect Tax Laws Amendment (Assessment) Act 2012.

105‑55 Time limit on refunds etc. from the Commissioner

(1) You are not entitled to a refund, other payment or credit to which this subsection applies in respect of a *tax period or importation unless:

(a) within 4 years after:

(i) the end of the tax period; or

(ii) the importation;

as the case requires, you notify the Commissioner (in a *GST return or otherwise) that you are entitled to the refund, other payment or credit; or

(b) within that period the Commissioner notifies you (in a notice of assessment or otherwise) that you are entitled to the refund, other payment or credit; or

(i) a *net amount or *net fuel amount that the Commissioner may recover from you only because of subparagraph 105‑50(3)(b)(i); or

(ii) an amount of excess referred to in subsection 105‑50(2) that the Commissioner may recover from you only because of subparagraph 105‑50(3)(b)(ii).

Note: Division 93 of the GST Act puts a time limit on your entitlement to an input tax credit. Division 47 of the Fuel Tax Act 2006 puts a time limit on your entitlement to a fuel tax credit.

(2) Subsection (1) applies to:

(a) a refund in relation to a *net amount or *net fuel amount in respect of a particular *tax period; or

(aa) another payment that represents some or all of an amount:

(i) that you paid as an amount of *indirect tax payable by you in respect of a particular tax period; and

(ii) that exceeded the amount (if any) of such tax that you were liable to pay in respect of that tax period; or

(b) an *input tax credit or *fuel tax credit that is attributable to a particular tax period; or

(c) a *wine tax credit the amount of which could have been included in a reduction of your *net amount for a tax period under section 21‑15 of the *Wine Tax Act; or

(d) a refund of an amount of *indirect tax relating to an importation.

(2A) A request by you to the Commissioner to treat a document as a *tax invoice for the purposes of attributing a credit to a *tax period is taken to be a notification, for the purposes of paragraph (1)(a), of your entitlement to the credit if:

(a) you made the request within the 4 year period referred to in that paragraph in relation to the credit; and

(b) the Commissioner agrees to the request (whether or not within that period).

Fuel tax—non‑business taxpayers

(3) If you are neither *registered for GST nor *required to be registered for GST, you are not entitled to a refund, other payment or *fuel tax credit to which this subsection applies in respect of a *fuel tax return period, acquisition, manufacture or importation unless:

(a) within 4 years after:

(i) the end of the fuel tax return period; or

(ii) the acquisition, manufacture or importation;

(as the case requires) you notify the Commissioner that you are entitled to the refund, other payment or credit; or

(b) within that period the Commissioner notifies you (in a notice of assessment or otherwise) that you are entitled to the refund, other payment or credit; or

(i) a *net fuel amount that the Commissioner may recover from you only because of subparagraph 105‑50(3)(b)(i); or

(ii) an amount of excess referred to in subsection 105‑50(2) that the Commissioner may recover from you only because of subparagraph 105‑50(3)(b)(ii).

Note: Division 47 of the Fuel Tax Act 2006 puts a time limit on your entitlement to a fuel tax credit.

(4) Subsection (3) applies to:

(a) a refund in relation to a *net fuel amount attributable to a *fuel tax return period; or

(b) a *fuel tax credit for *taxable fuel that you acquire, manufacture or import.

(5) To avoid doubt, if, under subsection (3), you are not entitled to a *fuel tax credit, then you are not entitled to a refund or other payment in relation to the credit.

Sunsetting provision

(6) This section applies in relation to payments and refunds that:

(a) relate to *tax periods, and *fuel tax return periods, that start before 1 July 2012; or

(b) do not relate to any tax periods, or fuel tax return periods, but relate to liabilities or entitlements that arose before 1 July 2012.

Note: This section will be repealed on 1 January 2017: see Part 2 of Schedule 1 to the Indirect Tax Laws Amendment (Assessment) Act 2012.

105‑65 Restriction on GST refunds

(1) The Commissioner need not give you a refund of an amount to which this section applies, or apply (under Division 3 or 3A of Part IIB) an amount to which this section applies, if:

(a) you overpaid the amount, or the amount was not refunded to you, because a *supply was treated as a *taxable supply, or an *arrangement was treated as giving rise to a taxable supply, to any extent; and

(b) the supply is not a taxable supply, or the arrangement does not give rise to a taxable supply, to that extent (for example, because it is *GST‑free); and

(i) the Commissioner is not satisfied that you have reimbursed a corresponding amount to the recipient of the supply or (in the case of an arrangement treated as giving rise to a taxable supply) to an entity treated as the recipient;

(ii) the recipient of the supply, or (in the case of an arrangement treated as giving rise to a taxable supply) the entity treated as the recipient, is *registered or *required to be registered.

Note: Divisions 3 and 3A of Part IIB deal with payments, credits and RBA surpluses.

(2) This section applies to the following amounts that relate to a *tax period starting on or before the day the Tax Laws Amendment (2014 Measures No. 1) Act 2014 receives the Royal Assent:

(a) in the case of a *supply:

(i) so much of any *assessed net amount or amount of *GST as you have overpaid (as mentioned in paragraph (1)(a)); or

(ii) so much of any assessed net amount that is payable to you under section 35‑5 of the *GST Act as the Commissioner has not refunded to you (as mentioned in paragraph (1)(a)), either by paying it to you or by applying it under Division 3 of Part IIB of this Act;

(b) in the case of an *arrangement:

(i) so much of any assessed net amount or amount of GST to which subparagraph (a)(i) would apply if the arrangement were a supply; or

(ii) so much of any assessed net amount to which subparagraph (a)(ii) would apply if the arrangement were a supply.

Note: Division 3 of Part IIB deals with payments, credits and RBA surpluses.

(3) The Commissioner must notify you in writing of any decision relating to you made under subsection (1) after the day mentioned in subsection (2).

(4) You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that was made under subsection (1).

Note: This section will be repealed on 1 July 2018: see Part 3 of Schedule 2 to the Tax Laws Amendment (2014 Measures No. 1) Act 2014.

Subdivision 105‑D—General interest charge and penalties

Table of sections

105‑80 General interest charge

105‑85 Amending Acts cannot impose penalties or general interest charge earlier than 28 days after Royal Assent

105‑80 General interest charge

(1) 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.

(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).

105‑85 Amending Acts cannot impose penalties or general interest charge earlier than 28 days after Royal Assent

(1) 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.

(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.

(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.

Subdivision 105‑F—Indirect tax refund schemes

Table of sections

105‑120 Refund scheme—defence related international obligations

105‑125 Refund scheme—international obligations

105‑120 Refund scheme—defence related international obligations

(1) 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

(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

(iii) by any other entity that is;

covered by a determination of the Defence Minister; and

(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

(iii) any other use;

and that use is covered by a determination of the Defence Minister; and

(e) you claim the amount in the *approved form.

(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.

(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.

(4) A determination under this section is a legislative instrument.

105‑125 Refund scheme—international obligations

(1) The Commissioner must, on behalf of the Commonwealth, pay you, or an entity in a class of entities determined by the 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

(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.

(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.

(4) A determination by the Commissioner under subsection (1) is not a legislative instrument.

Subdivision 105‑G—Other administrative provisions

Table of sections

105‑145 Commissioner must give things in writing

(1) 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.

(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.

Division 110—Goods and services tax

Table of Subdivisions

Guide to Division 110

110‑F Review of GST decisions

Guide to Division 110

110‑1 What this Division is about

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.

Subdivision 110‑F—Review of GST decisions

Table of sections

110‑50 Reviewable GST decisions

(1) 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.

(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)
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)
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)
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	making a declaration that states: (a) the amount that is (and has been at all times) a net amount for a tax period that ended before 1 July 2012; or (b) the amount that is (and has been at all times) the amount of GST on a taxable importation, if the GST was payable before 1 July 2012	subsection 165‑40(1)
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)

(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

Table of Subdivisions

Guide to Division 111

111‑C Review of wine tax decisions

111‑D Effect on contracts from amendments to laws

Guide to Division 111

111‑1 What this Division is about

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.

Subdivision 111‑C—Review of wine tax decisions

Table of sections

111‑50 Reviewable wine tax decisions

(1) 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.

(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

Subdivision 111‑D—Effect on contracts from amendments to laws

Table of sections

111‑60 Alteration of contracts if cost of complying with agreement is affected by later alteration to wine tax or luxury car tax laws

(1) 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 the contract price.

(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.

Division 112—Fuel tax

Table of Subdivisions

Guide to Division 112

112‑E Review of fuel tax decisions

Guide to Division 112

112‑1 What this Division is about

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.

Subdivision 112‑E—Review of fuel tax decisions

Table of sections

112‑50 Reviewable fuel tax decisions

(1) 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.

(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	making a declaration that states the amount that is (and has been at all times) the net fuel amount for a tax period, or *fuel tax return period, that ended before 1 July 2012	subsection 75‑40(1)
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)

Part 3‑20—Sustaining the superannuation contribution concession

Division 133—Deferred payment

Table of Subdivisions

Guide to Division 133

133‑A Deferral determination

133‑B Debt account

133‑C Compulsory payment

Guide to Division 133

133‑1 What this Division is about

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.

Subdivision 133‑A—Deferral determination

Guide to Subdivision 133‑A

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.

Table of sections

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

Operative provisions

133‑10 Determination of tax that is deferred to a debt account

(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.

(2) The amount of *assessed Division 293 tax specified in the determination is deferred to a debt account for the *superannuation interest.

(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:

(a) the *end benefit for the superannuation interest has become payable; or

(b) a notice under section 133‑125 has been made in relation to the superannuation interest.

Note: For the meaning of end benefit, see section 133‑130.

(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.

133‑15 Defined benefit tax

(1) Your defined benefit tax for an income year is the amount worked out using the formula:

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 $300,000 high income threshold: see subsection 293‑20(1) of the Income Tax Assessment Act 1997.

Exception—defined benefit contribution component is nil or less

(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.

133‑20 How to attribute the defined benefit tax to defined benefit interests

(1) 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.

(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.

133‑25 Determination reducing tax deferred to a debt account

(1) 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.

(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.

133‑30 General provisions applying to determinations under this Subdivision

(1) 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.

(2) The Commissioner:

(a) may include 2 or more determinations under this Subdivision in the same notice; and

(b) may include a notice under this Subdivision in a notice of an assessment under this Act.

(3) The validity of the determination is not affected because any of the provisions of this Act have not been complied with.

Review

(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.

(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.

Subdivision 133‑B—Debt account

Guide to Subdivision 133‑B

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.

Table of sections

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

Operative provisions

133‑60 Debt account to be kept for deferred tax

Accounts to be kept

(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

(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.

133‑65 Interest on debt account balance

Interest to be debited at end of financial year

(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 assessed Division 293 tax liability being tracked in the account has been finally discharged as mentioned in subsection 133‑105(3).

Remission of interest—deferral reversal

(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

(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.

133‑70 Voluntary payments

(1) 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.

(2) The Commissioner is to:

(a) acknowledge receipt of the payment to you; and

(b) credit the payment to the debt account; and

The credit mentioned in paragraph (b) is to be made when the payment is received.

(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.

133‑75 Commissioner must notify superannuation provider of debt account

If the 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.

Subdivision 133‑C—Compulsory payment

Guide to Subdivision 133‑C

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.

Table of sections

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 End benefit notice—individual

133‑140 End benefit notice—superannuation provider

133‑145 End benefit notice—material changes or omissions

Debt account discharge liability

133‑105 Liability to pay debt account discharge liability

(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.

(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.

(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.

133‑110 When debt account discharge liability must be paid

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.

133‑115 General interest charge

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 each day 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.

133‑120 Meaning of debt account discharge liability

(1) The debt account discharge liability for a *superannuation interest for which the Commissioner keeps a debt account is the lesser of:

(a) the amount by which the debt account is in debit at the earlier of:

(i) the time the *end benefit for the superannuation interest becomes payable; and

(ii) the time a notice under section 133‑125 is made; and

(b) 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).

(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: A person may make a complaint to the Superannuation Complaints Tribunal under section 15CA of the Superannuation (Resolution of Complaints) Act 1993 if the person is dissatisfied with notice given to the Commissioner under this subsection.

(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.

(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.

133‑125 Notice of debt account discharge liability

(1) The Commissioner must give you a notice under this section if:

(a) the *end benefit becomes payable from a *superannuation interest for which the Commissioner keeps a debt account; or

(b) the Commissioner receives a notice from you under section 133‑135 in relation to such a superannuation interest.

(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

(i) the amount by which the debt account is in debit as mentioned in paragraph 133‑120(1)(a); or

(ii) the end benefit cap mentioned in paragraph 133‑120(1)(b).

(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.

(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).

End benefit

133‑130 Meaning of end benefit

(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).

(2) The Minister may, by legislative instrument, specify a *superannuation benefit for the purposes of paragraph (1)(d).

(3) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply in relation to an instrument made under subsection (2).

(4) Despite subsection 12(3) (retrospective commencement of legislative instruments) of the Legislation Act 2003, an instrument made under subsection (2) of this section must not commence before 1 July 2012.

133‑135 End benefit notice—individual

(1) If an individual requests a *superannuation provider to pay the *end benefit from a *superannuation interest for which the Commissioner keeps a debt account, the individual must notify the Commissioner of the request.

(2) The notice must be given within 21 days after making the request.

(3) A notice under this section must be given in the *approved form.

133‑140 End benefit notice—superannuation provider

(1) 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) the amount of the end benefit cap mentioned in subsection 133‑120(2) for the superannuation interest (unless the provider has already given the Commissioner notice of the end benefit cap under that subsection); and

(b) the expected date of payment of the benefit.

(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.

(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.

(4) A notice under this section must be given in the *approved form.

133‑145 End benefit notice—material changes or omissions

(1) If an entity that gives the Commissioner a notice under section 133‑135 or 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.

(2) Information required by this section must be given no later than 7 days after the entity becomes aware of the change or omission.

Division 135—Releasing money from superannuation

Table of Subdivisions

Guide to Division 135

135‑A When the Commissioner must issue a release authority

135‑B When a release authority can be given to a superannuation provider

135‑C Release of superannuation money under a release authority

Guide to Division 135

135‑1 What this Division is about

This Division contains rules about release authorities, which allow money to be released from a superannuation plan to pay amounts relating to the Division 293 tax.

Subdivision 135‑A—When the Commissioner must issue a release authority

Guide to Subdivision 135‑A

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 assessed Division 293 tax that is due and payable, make voluntary payments in reduction of a debt account, or pay your debt account discharge liability.

Table of sections

Operative provisions

135‑10 Release authorities

Operative provisions

135‑10 Release authorities

(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	An amount of your *assessed Division 293 tax for an income year is due and payable in accordance with subsection 293‑65(1) or 293‑70(1)	The amount of tax that is due and payable as mentioned in column 1	On assessing the amount
2	An amount of your assessed Division 293 tax for an income year is deferred to a debt account for a *superannuation interest	The amount so deferred	On the making of the determination under section 133‑10
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

(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

Commissioner may issue a further release authority

(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

(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.

Subdivision 135‑B—When a release authority can be given to a superannuation provider

Guide to Subdivision 135‑B

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.

The Commissioner may give the release authority to a superannuation provider if you fail to pay assessed Division 293 tax that is due and payable within 120 days after the release authority being issued.

Table of sections

Operative provisions

135‑40 When you may give release authority to superannuation provider

135‑45 When Commissioner may give release authority to superannuation provider

Operative provisions

135‑40 When you may give release authority to superannuation provider

(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.

(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:

(a) the excess is assessable income (see section 304‑20 of the Income Tax Assessment Act 1997); and

(b) you are liable to an administrative penalty (see section 288‑100 in this Schedule).

(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.

135‑45 When Commissioner may give release authority to superannuation provider

(1) The Commissioner may, at any time, give a release authority issued under item 1 of the table in subsection 135‑10(1) to one or more *superannuation providers that hold a *superannuation interest for you, if, at the end of 120 days after the date of the release authority:

(a) some or all of the *assessed Division 293 tax that is due and payable in accordance with subsection 293‑65(1) or 293‑70(1) (as the case requires) is unpaid; and

(b) the Commissioner reasonably believes any of the following:

(i) that you have not given the release authority to a superannuation provider that holds a superannuation interest for you in accordance with section 135‑40;

(ii) that you have given the release authority to one or more superannuation providers in accordance with that section, but that the sum of the amounts to be paid by the providers under those release authorities falls short of the amount of your assessed Division 293 tax;

(iii) that the total of the *values of every superannuation interest (other than a *defined benefit interest) held for you by superannuation providers to which the release authority has been given falls short of the amount of your assessed Division 293 tax.

Note: No payment may be made from a defined benefit interest: see subsection 135‑75(4).

(2) The Commissioner may request the *superannuation provider, in writing, to pay a specified amount in relation to the release authority.

Note: For the amount that the provider pays under a release authority, see section 135‑85.

Subdivision 135‑C—Release of superannuation money under a release authority

Guide to Subdivision 135‑C

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.

Table of sections

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

Operative provisions

135‑75 Requirement for superannuation provider to release money

(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

(2) The release amount must be paid to the Commissioner.

(3) However, if the release authority was:

(a) issued under item 1 of the table in subsection 135‑10(1) (which is about Division 293 tax that is due and payable within 21 days); and

(b) given to the *superannuation provider by the individual under section 135‑40;

the release amount may be paid to the individual.

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

(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.

135‑80 Compensation for acquisition of property

(1) 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.

(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.

135‑85 Release amount

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 96‑30.

135‑90 How the Commissioner applies amounts received under a release authority

(1) 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.

Exception for voluntary payments of Division 293 tax debt account

(2) However, if the Commissioner receives the payment under a release authority issued under item 2 of the table in subsection 135‑10(1) in respect of a *superannuation interest, the payment is to be treated as if it were a voluntary payment under section 133‑70 in relation to the debt account for that interest.

Commissioner to notify individual if payment received

(3) If:

(a) the release authority was given by the Commissioner in accordance with section 135‑45; and

(b) the payment is made to the Commissioner;

the Commissioner must, as soon as possible, give the individual written notice that the payment has been made.

135‑95 Defined benefit interests—releasing amounts to pay debt account discharge liability

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).

135‑100 Income tax treatment of amounts released—proportioning rule does not apply

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.

Chapter 4—Generic assessment, collection and recovery rules

Part 4‑1—Returns and assessments

Division 155—Assessments

Table of Subdivisions

Guide to Division 155

155‑A Making assessments

155‑B Amending assessments

155‑C Validity and review of assessments

155‑D Miscellaneous

Guide to Division 155

155‑1 What this Division is about

This Division contains rules relating to assessments.

The rules in this Division deal with the following:

(a) how assessments are made or amended and their effect;

(b) review of assessments.

Subdivision 155‑A—Making assessments

Table of sections

155‑5 Commissioner may make assessment

155‑10 Commissioner must give notice of assessment

155‑15 Self‑assessment

155‑20 Assessment of indirect tax on importations and customs dealing

155‑25 Special assessment

155‑30 Delays in making assessments

155‑5 Commissioner may make assessment

(1) 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.

(2) Each of the following is an assessable amount:

(a) a *net amount;

(b) a *net fuel amount;

(d) a credit under an *indirect tax law not included in an amount covered by another paragraph of this subsection;

(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.

155‑10 Commissioner must give notice of assessment

(1) 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.

(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.

155‑15 Self‑assessment

(1) 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) or (c), 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

Note: There is no self‑assessment of Division 293 tax.

(2) The assessment is treated as having been made on the day the document is given to the recipient mentioned in column 2.

(3) The amount assessed is:

(a) if the document is 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.

(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.

(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).

155‑20 Assessment of indirect tax on importations and customs dealing

(1) 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

(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.

(3) The amount assessed is the amount (including a nil amount) worked out in accordance with the information stated in the 2 documents.

(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.

(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).

155‑25 Special assessment

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.

155‑30 Delays in making assessments

(1) 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.

(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).

(3) This section does not apply if the *assessable amount is the *Division 293 tax payable by you in relation to an income year in relation to your *taxable contributions for the income year.

Subdivision 155‑B—Amending assessments

Table of sections

When Commissioner may amend assessments

155‑35 Amendment during period of review

155‑40 Amendment during period of review—certain applications taken to be notices

155‑45 Amendment on application

155‑50 Amendment to give effect to private ruling

155‑55 Amendment to give effect to certain anti‑avoidance declarations

155‑60 Amendment because of review, objection or fraud

Special rules about amending amended assessments

155‑65 Amending amended assessments

155‑70 Refreshed period of review

General rules

155‑75 Refunds of amounts overpaid

155‑80 Amended assessments are assessments

When Commissioner may amend assessments

155‑35 Amendment during period of review

Amendment

(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

(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

(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.

(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

(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.

155‑40 Amendment during period of review—certain applications taken to be notices

(1) 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

(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.

155‑45 Amendment on application

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.

155‑50 Amendment to give effect to private ruling

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.

155‑55 Amendment to give effect to certain anti‑avoidance declarations

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).

The Commissioner may amend the assessment to give effect to the declaration.

155‑60 Amendment because of review, objection or fraud

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

Special rules about amending amended assessments

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.

155‑70 Refreshed period of review

(1) 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.

(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

General rules

155‑75 Refunds of amounts overpaid

(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.

(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.

(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).

(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.

155‑80 Amended assessments are assessments

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.

Subdivision 155‑C—Validity and review of assessments

Table of sections

155‑85 Validity of assessment

155‑90 Review of assessments

155‑85 Validity of assessment

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.

155‑90 Review of assessments

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: An individual may make a complaint to the Superannuation Complaints Tribunal under section 15CA of the Superannuation (Resolution of Complaints) Act 1993 if the individual is dissatisfied with a statement given to the Commissioner by a superannuation provider under section 390‑5 in this Schedule.

Subdivision 155‑D—Miscellaneous

Table of sections

155‑95 Entities

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.

Part 4‑15—Collection and recovery of tax‑related liabilities and other amounts

Division 250—Introduction

Table of Subdivisions

250‑A Guide to Part 4‑15

250‑B Object of this Part

Subdivision 250‑A—Guide to Part 4‑15

250‑1 What this Part is about

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).

Table of sections

250‑5 Some important concepts about tax‑related liabilities

250‑10 Summary of tax‑related liabilities

250‑5 Some important concepts about tax‑related liabilities

(1) 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.

(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.

(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.

250‑10 Summary of tax‑related liabilities

(1) 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)
50	late lodgment penalty	163A(3)
70	excessive tax offset refunds	172A(2)
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	tax payable under section 159GZZZZH (Tax payable where infrastructure borrowing certificate cancelled)	5‑5 of the Income Tax Assessment Act 1997

(2) The following table is an 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 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.

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
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
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
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
25	fringe benefits tax	90	Fringe Benefits Tax Assessment Act 1986
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
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 TSL repayment amount under the Trade 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	shortfall interest charge on excess concessional contributions charge	5‑10	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
38B	excess non‑concessional contributions tax	292‑385	Income Tax Assessment Act 1997
38BB	Division 293 tax	293‑65 and 293‑70	Income Tax Assessment Act 1997
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	Seasonal 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
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
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
70	general interest charge	8AAE	Taxation Administration Act 1953
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)	14‑155 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	excess concessional contributions charge	95‑20 in Schedule 1	Taxation Administration Act 1953
135R	amount in accordance with excess superannuation contributions release authority	96‑20 in Schedule 1	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
145	termination payment surcharge	11(2)	Termination Payments Tax (Assessment and Collection) Act 1997

Subdivision 250‑B—Object of this Part

250‑25 Object

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.

Division 255—General rules about collection and recovery

Table of Subdivisions

255‑A Tax‑related liabilities

255‑B Commissioner’s power to vary payment time

255‑C Recovery proceedings

255‑D Security deposits

Subdivision 255‑A—Tax‑related liabilities

Table of sections

255‑1 Meaning of tax‑related liability

255‑5 Recovering a tax‑related liability that is due and payable

255‑1 Meaning of tax‑related liability

(1) 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.

(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.

255‑5 Recovering a tax‑related liability that is due and payable

(1) 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.

(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.

Subdivision 255‑B—Commissioner’s power to vary payment time

Table of sections

255‑10 To defer the payment time

255‑15 To permit payments by instalments

255‑20 To bring forward the payment time in certain cases

255‑10 To defer the payment time

Deferrals for particular taxpayers

(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.

(2) The Commissioner must do so by written notice given to you.

Deferrals for classes of taxpayers

(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).

(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.

(2C) A notice published under subsection (2A) is not a legislative instrument.

Deferral does not affect time for giving form

(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.

255‑15 To permit payments by instalments

(1) 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).

(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.

255‑20 To bring forward the payment time in certain cases

(1) 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.

(2) The Commissioner must do so by written notice given to you.

Subdivision 255‑C—Recovery proceedings

Guide to Subdivision 255‑C

255‑35 What this Subdivision is about

This Subdivision deals with procedural and evidentiary matters relating to proceedings to recover an amount of a tax‑related liability.

Table of sections

Operative provisions

255‑40 Service of documents if person absent from Australia or cannot be found

255‑45 Evidentiary certificate

255‑50 Certain statements or averments

255‑55 Evidence by affidavit

Operative provisions

255‑40 Service of documents if person absent from Australia or cannot be found

(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.

(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.

(3) For the purposes of giving effect to a provision of an international agreement of a kind referred to in Subdivision 263‑A (about foreign revenue claims), if a document needs to be served on a person and the Commissioner, after making reasonable inquiries, is satisfied that:

(a) the person is absent from Australia and does not have an agent in Australia on whom the document can be served; and

(b) the person has an address in a foreign country, a constituent part of a foreign country or a foreign territory;

the Commissioner may serve the document on the person at the address mentioned in paragraph (b).

255‑45 Evidentiary certificate

(1) A certificate:

(a) stating one or more of the matters covered by subsection (2) or (3); and

(b) signed by the Commissioner, a *Second Commissioner or a *Deputy Commissioner;

is prima facie evidence of the matter or matters in a proceeding to recover an amount of a *tax‑related liability.

(2) A certificate may state:

(a) that a person named in the certificate has a *tax‑related liability; or

(b) that an *assessment relating to a tax‑related liability has been made, or is taken to have been made, under a *taxation law; or

(c) that notice of an assessment, or any other notice required to be served on a person in respect of an amount of a tax‑related liability, was, or is taken to have been, served on the person under a *taxation law; or

(d) that the particulars of a notice covered by paragraph (c) are as stated in the certificate; or

(e) that a sum specified in the certificate is, as at the date specified in the certificate, a debt due and payable by a person to the Commonwealth.

(3) A certificate may state:

(a) that a *foreign revenue claim for an amount specified in the certificate has been made by the competent authority under the relevant international agreement; or

(b) that the relevant requirements of the relevant international agreement have been complied with in relation to the foreign revenue claim; or

(d) that, as at the date of the certificate, the Commissioner has or has not received advice from the competent authority under the relevant international agreement about the reduction or discharge of an amount to be recovered under the claim; or

(e) that the particulars of any reduction or discharge of an amount to be recovered under the claim are as specified in the certificate.

255‑50 Certain statements or averments

(1) In a proceeding to recover an amount of a *tax‑related liability, a statement or averment about a matter in the plaintiff’s complaint, claim or declaration is prima facie evidence of the matter.

(2) This section applies even if the matter is a mixed question of law and fact. However, the statement or averment is prima facie evidence of the fact only.

(3) This section applies even if evidence is given in support or rebuttal of the matter or of any other matter.

(4) Any evidence given in support or rebuttal of the matter stated or averred must be considered on its merits. This section does not increase or diminish the credibility or probative value of the evidence.

(5) This section does not lessen or affect any onus of proof otherwise falling on a defendant.

255‑55 Evidence by affidavit

In a proceeding to recover an amount of a *tax‑related liability:

(a) a person may give evidence by affidavit; and

(b) the court may require the person to attend before it:

(i) to be cross‑examined on that evidence; or

(ii) to give other evidence relating to the proceedings.

Subdivision 255‑D—Security deposits

Table of sections

255‑100 Commissioner may require security deposit

255‑105 Notice of requirement to give security

255‑110 Offence

255‑100 Commissioner may require security deposit

(1) 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.

(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.

(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.

255‑105 Notice of requirement to give security

Commissioner must give notice of requirement to give security

(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

(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

(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.

(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

(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

(5) A failure to comply with this section does not affect the validity of the requirement to give the security under section 255‑100.

255‑110 Offence

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.

Division 260—Special rules about collection and recovery

Table of Subdivisions

Guide to Division 260

260‑A From third party

260‑B From liquidator

260‑C From receiver

260‑D From agent winding up business for foreign resident principal

260‑E From deceased person’s estate

Guide to Division 260

260‑1 What this Division is about

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.

Subdivision 260‑A—From third party

Table of sections

260‑5 Commissioner may collect amounts from third party

260‑10 Notice to Commonwealth, State or Territory

260‑15 Indemnity

260‑20 Offence

260‑5 Commissioner may collect amounts from third party

Amount recoverable under this Subdivision

(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;

(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

(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

(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

(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

(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

(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

(6) The Commissioner must send a copy of the notice to the debtor.

Setting‑off amounts

(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.

260‑10 Notice to Commonwealth, State or Territory

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).

260‑15 Indemnity

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.

260‑20 Offence

(1) 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.

(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.

Subdivision 260‑B—From liquidator

Table of sections

260‑40 Subdivision does not apply to superannuation guarantee charge

260‑45 Liquidator’s obligation

260‑50 Offence

260‑55 Joint liability of 2 or more liquidators

260‑60 Liquidator’s other obligation or liability

260‑40 Subdivision does not apply to superannuation guarantee charge

This Subdivision does not apply to a *tax‑related liability that is superannuation guarantee charge imposed by the Superannuation Guarantee Charge Act 1992.

260‑45 Liquidator’s obligation

(1) This Subdivision applies to a person who becomes a liquidator of a company.

(2) Within 14 days after becoming liquidator, the liquidator must give written notice of that fact to the Commissioner.

(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.

(4) The liquidator must not, without the Commissioner’s permission, part with any of the company’s assets before receiving the Commissioner’s notice.

(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.

(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.

(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.

(8) The liquidator is personally liable to discharge the liabilities, to the extent of that value, if the liquidator contravenes this section.

260‑50 Offence

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.

260‑55 Joint liability of 2 or more liquidators

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.

260‑60 Liquidator’s other obligation or liability

This Subdivision does not reduce any obligation or liability of a liquidator arising elsewhere.

Subdivision 260‑C—From receiver

Table of sections

260‑75 Receiver’s obligation

260‑80 Offence

260‑85 Joint liability of 2 or more receivers

260‑90 Receiver’s other obligation or liability

260‑75 Receiver’s obligation

(1) 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.

(2) Within 14 days after taking possession of the assets, the receiver must give written notice of that fact to the Commissioner.

(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.

(4) The receiver must not, without the Commissioner’s permission, part with any of the company’s assets before receiving the Commissioner’s notice.

(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.

(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.

(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.

(8) The receiver is personally liable to discharge the liabilities, to the extent of that value, if the receiver contravenes this section.

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.

260‑85 Joint liability of 2 or more receivers

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.

260‑90 Receiver’s other obligation or liability

This Subdivision does not reduce any obligation or liability of the receiver or receivers arising elsewhere.

Subdivision 260‑D—From agent winding up business for foreign resident principal

Table of sections

260‑105 Obligation of agent winding up business for foreign resident principal

260‑110 Offence

260‑115 Joint liability of 2 or more agents

260‑120 Agent’s other obligation or liability

260‑105 Obligation of agent winding up business for foreign resident principal

(1) 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.

(2) Within 14 days after receiving the instructions, the agent must give written notice of that fact to the Commissioner.

(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.

(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.

(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.

(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.

(7) The agent is personally liable to discharge the liabilities, to the extent of that value, if the agent contravenes this section.

260‑110 Offence

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.

260‑115 Joint liability of 2 or more agents

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.

260‑120 Agent’s other obligation or liability

This Subdivision does not reduce any obligation or liability of the agent or agents arising elsewhere.

Subdivision 260‑E—From deceased person’s estate

Table of sections

260‑140 Administered estate

260‑145 Unadministered estate

260‑150 Commissioner may authorise amount to be recovered

260‑140 Administered estate

(1) 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.

(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.

(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.

(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.

(5) A trustee who is dissatisfied with an *assessment under subsection (4) may object in the manner set out in Part IVC.

(6) Part IVC applies in relation to the objection as if the trustee were the deceased person.

260‑145 Unadministered estate

(1) 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.

(2) The Commissioner may determine the total amount of *outstanding tax‑related liabilities that the person had at the time of death.

(3) The Commissioner must publish notice of the determination twice in a daily newspaper circulating in the State or Territory in which the person resided at the time of death.

(4) A notice of the determination is conclusive evidence of the *outstanding tax‑related liabilities, unless the determination is amended.

(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.

(6) Part IVC applies in relation to the objection as if the person making it were the deceased person.

260‑150 Commissioner may authorise amount to be recovered

(1) 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

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.

(2) The authorised person may seize and dispose of the property as prescribed by the regulations.

Division 263—Mutual assistance in collection of foreign tax debts

Table of Subdivisions

263‑A Foreign revenue claims

Subdivision 263‑A—Foreign revenue claims

Guide to Subdivision 263‑A

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.

Table of sections

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

Operative provisions

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) an overseas territory;

(the overseas entity); 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.

263‑15 Requirements for foreign revenue claims

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

(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.

263‑20 Foreign Revenue Claims Register

(1) The Commissioner must keep a register called the Foreign Revenue Claims Register (the Register).

(2) The regulations may make provision in relation to the form in which the Register may be kept.

(3) The register is not a legislative instrument.

263‑25 Registering claims

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.

263‑30 When amount is due and payable

(1) 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.

(1A) To avoid doubt, the amount owed by the debtor may not be the same as the amount (if any) entered in the Register.

(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.

(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.

263‑35 Amending the Register etc.

(1) The Commissioner may, with the agreement of the relevant competent authority, amend the Register to correct an error.

(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.

(2A) To avoid doubt, the Commissioner may reduce an amount to be recovered from a debtor under paragraph (2)(b) without amending the Register.

(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.

(4) The Commissioner may, after considering the application, remove those particulars from the Register.

(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.

(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.

263‑40 Payment to competent authority

(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.

(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.

(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.

Division 265—Other matters

Table of Subdivisions

265‑A Right of person to seek recovery or contribution

265‑B Application of laws

Subdivision 265‑A—Right of person to seek recovery or contribution

Guide to Subdivision 265‑A

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:

• the person has paid the amount for or on behalf of the other person;

• the persons are jointly liable to pay the amount.

Table of sections

Operative provisions

265‑40 Right of recovery if another person is liable

265‑45 Right of contribution if persons are jointly liable

Operative provisions

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.

265‑45 Right of contribution if persons are jointly liable

(1) 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.

(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

Table of sections

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.

Division 268—Estimates and recovery of PAYG withholding liabilities and superannuation guarantee charge

Table of Subdivisions

Guide to Division 268

268‑A Object

268‑B Making estimates

268‑C Liability to pay estimates

268‑D Reducing and revoking estimates

268‑E Late payment of estimates

268‑F Miscellaneous

Guide to Division 268

268‑1 What this Division is about

This Division enables the Commissioner to make an estimate of:

(a) amounts not paid as required by Part 2‑5 of this Act (Pay as you go (PAYG) withholding); or

(b) unpaid superannuation guarantee charge;

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. However, you can ensure that the Commissioner does not require you to pay more than the amounts not paid under that Part or Act.

Other Divisions of this Part provide for the recovery of amounts payable under this Division.

Subdivision 268‑A—Object

Table of sections

268‑5 Object of 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.

Subdivision 268‑B—Making estimates

Table of sections

268‑10 Commissioner may make estimate

268‑15 Notice of estimate

268‑10 Commissioner may make estimate

Estimate

(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.

(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.

Amount of estimate

(2) The amount of the estimate must be what the Commissioner thinks is reasonable.

(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

(4) While the estimate is in force, the Commissioner cannot make another estimate relating to the underlying liability.

(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

268‑15 Notice of estimate

Commissioner must give notice of estimate

(1) The Commissioner must give you written notice of the estimate.

Content of notice

(2) The notice must:

(a) identify the underlying liability; and

(b) specify the date 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.

(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

(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).

Subdivision 268‑C—Liability to pay estimates

Table of sections

268‑20 Nature of liability to pay estimate

268‑25 Accuracy of estimate irrelevant to liability to pay

268‑30 Estimate provable in bankruptcy or winding up

268‑20 Nature of liability to pay estimate

Liability to pay amount of estimate

(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

(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: 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

Discharging one liability discharges other liabilities

(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).

(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).

(5) Subsection (3) does not discharge a liability to a greater extent than the amount of the liability.

268‑25 Accuracy of estimate irrelevant to liability to pay

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.

268‑30 Estimate provable in bankruptcy or winding up

(1) 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).

(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.

(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.

(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.

(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.

Subdivision 268‑D—Reducing and revoking estimates

Table of sections

268‑35 How estimate may be reduced or revoked—Commissioner’s powers

268‑40 How estimate may be reduced or revoked—statutory declaration or affidavit

268‑45 How estimate may be reduced or revoked—rejection of proof of debt

268‑50 How estimate may be reduced—amount paid or applied

268‑55 When reduction or revocation takes effect

268‑60 Consequences of reduction or revocation—refund

268‑65 Consequences of reduction or revocation—statutory demand changed or set aside

268‑70 Consequences of reduction or revocation—underlying liability

268‑35 How estimate may be reduced or revoked—Commissioner’s powers

Reduction

(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.

(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

(3) The Commissioner may at any time revoke the estimate, but is not obliged to consider whether or not to do so.

(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

(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).

268‑40 How estimate may be reduced or revoked—statutory declaration or affidavit

Scope

(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

(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).

(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

(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.

268‑45 How estimate may be reduced or revoked—rejection of proof of debt

Scope

(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

(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

Note: See section 268‑90 for what the statutory declaration must contain and who must make it.

(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.

(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

(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.

268‑50 How estimate may be reduced—amount paid or applied

(1) 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.

(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.

268‑55 When reduction or revocation takes effect

Scope

(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);

(d) Division 269 (Penalties for directors of non‑complying companies).

When reduction or revocation takes effect

(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.

(3) If the estimate is revoked, the estimate is taken never to have been made.

268‑60 Consequences of reduction or revocation—refund

(1) 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.

(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.

268‑65 Consequences of reduction or revocation—statutory demand changed or set aside

Scope

(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

Statutory demand changed

(2) The *statutory demand is changed accordingly.

(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

(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).

268‑70 Consequences of reduction or revocation—underlying liability

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).

Subdivision 268‑E—Late payment of estimates

Table of sections

268‑75 Liability to pay the general interest charge

268‑80 Effect of paying the general interest charge

268‑75 Liability to pay the general interest charge

(1) 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.

(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.

268‑80 Effect of paying the general interest charge

Scope

(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;

(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.

Discharging one liability discharges other liabilities

(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.

(3) However, this section does not discharge a liability to a greater extent than the amount of the liability.

(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.

Subdivision 268‑F—Miscellaneous

Table of sections

268‑85 Effect of judgment on liability on which it is based

268‑90 Requirements for statutory declaration or affidavit

268‑95 Liquidators, receivers and trustees in bankruptcy

268‑100 Division not to limit or exclude Corporations or Bankruptcy Act

268‑85 Effect of judgment on liability on which it is based

Estimate payable despite judgment

(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

(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.

(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.

(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);

Judgment conclusive as to amount of liability

(5) Nothing in this Division affects the conclusiveness of a judgment as to the amount of a liability on which it is based.

268‑90 Requirements for statutory declaration or affidavit

Scope

(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

(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).

(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.

Maker or deponent

(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.

(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.

268‑95 Liquidators, receivers and trustees in bankruptcy

Scope

(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.

(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

(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.

(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

(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

(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.

(7) For the purposes of this Division, an affidavit filed by your supervising entity is taken to have been filed by you.

(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

(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.

268‑100 Division not to limit or exclude Corporations or Bankruptcy Act

This Division is not intended to limit or exclude the operation of Chapter 5 of the Corporations Act 2001 (External administration), or the Bankruptcy Act 1966, to the extent that Chapter or 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.

Division 269—Penalties for directors of non‑complying companies

Table of Subdivisions

Guide to Division 269

269‑A Object and scope

269‑B Obligations and penalties

269‑C Discharging liabilities

269‑D Miscellaneous

Guide to Division 269

269‑1 What this Division is about

The directors of a company have a duty to ensure that the company either:

(a) meets its obligations under Subdivision 16‑B (obligation to pay withheld amounts to the Commissioner) and Division 268 in this Schedule and Part 3 of the Superannuation Guarantee (Administration) Act 1992 (obligation to pay superannuation guarantee charge); or

(b) goes promptly into voluntary administration under the Corporations Act 2001 or into liquidation.

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.

Subdivision 269‑A—Object and scope

Table of sections

269‑5 Object of Division

269‑10 Scope of Division

269‑5 Object of Division

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); or

(b) goes promptly into voluntary administration 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.

269‑10 Scope of Division

(1) This Division applies as set out in the following table:

Obligations that directors must cause company to comply with
Item	Column 1 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 …	Column 2 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	the company is given notice of an estimate under Division 268	the amount of the estimate.
5	a *quarter ends	superannuation guarantee charge for the quarter in accordance with the Superannuation Guarantee (Administration) Act 1992.

Note: In a case covered by item 2, 3 or 4 of the table, the due day is the same as the initial day.

(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

(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.

Subdivision 269‑B—Obligations and penalties

Table of sections

269‑15 Directors’ obligations

269‑20 Penalty

269‑25 Notice

269‑30 Effect on penalty of directors’ obligation ending before end of notice period

269‑35 Defences

269‑15 Directors’ obligations

Directors’ obligations

(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.

(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

Instalment arrangements

(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.

269‑20 Penalty

Penalty for director on or before due day

(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).

(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

(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.

(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

(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.

269‑25 Notice

Commissioner must give notice of penalty

(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

(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

(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

(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 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).

269‑30 Effect on penalty of directors’ obligation ending before end of notice period

(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.

(2) The following table has effect:

When appointing administrator or winding up company does not affect penalty
Item	Column 1 If the company’s obligation is to pay to the Commissioner, on or before the due day …	Column 2 and, because of paragraph 269‑15(2)(b) or (c) (an administrator is appointed or the company begins to be wound up), the directors stop being under the relevant obligation after the last day of the 3 months after …	Column 3 subsection (1) does not apply …
1	an amount in accordance with Subdivision 16‑B (obligation to pay withheld amounts to the Commissioner),	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 (estimates of PAYG withholding liabilities and superannuation guarantee charge),	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.

Note 1: An administrator 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:

(a) the total of the company’s individual superannuation guarantee shortfalls; and

(b) the company’s nominal interest component; and

specified in the superannuation guarantee statement.

(3) If you become a director of the company during or after the 3 months mentioned in column 2, treat the reference in the column to the 3 months as being a reference to the 3 months after the day you become a director of the company.

269‑35 Defences

Illness

(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

(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;

(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.

(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.

Superannuation guarantee charge—reasonably arguable position

(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 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

(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.

(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

(5) Section 1318 of the Corporations Act 2001 does not apply to an obligation or liability of a director under this Division.

Subdivision 269‑C—Discharging liabilities

Table of sections

269‑40 Effect of director paying penalty or company discharging liability

269‑45 Directors’ rights of indemnity and contribution

269‑40 Effect of director paying penalty or company discharging liability

Liabilities

(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);

Discharging one liability discharges other liabilities

(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.

(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.

(4) This section does not discharge a liability to a greater extent than the amount of the liability.

269‑45 Directors’ rights of indemnity and contribution

(1) 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.

(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.

Subdivision 269‑D—Miscellaneous

Table of sections

269‑50 How notice may be given

269‑52 Copies of notices

269‑55 Division not to limit or exclude Corporations Act

269‑50 How notice may be given

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 *ASIC, to be, or to have been within the last 7 days, your place of residence or *business.

269‑52 Copies of notices

(1) 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.

(2) The Commissioner may do so by leaving the copy at, or posting the copy to, the address of the *registered tax agent.

(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.

269‑55 Division not to limit or exclude Corporations Act

To avoid doubt, this Division is not intended to limit or exclude the operation of Chapter 5 of the Corporations Act 2001 (External administration), to the extent that Chapter can operate concurrently with this Division.

Part 4‑25—Charges and penalties

Division 280—Shortfall interest charge

Table of Subdivisions

Guide to Division 280

280‑A Object of Division

280‑B Shortfall interest charge

280‑C Remitting shortfall interest charge

Guide to Division 280

280‑1 Guide to Division 280

The shortfall interest charge applies to shortfalls of income tax, petroleum resource rent tax, excess non‑concessional contributions tax or Division 293 tax that are revealed when the Commissioner amends your assessment.

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.

Subdivision 280‑A—Object of Division

Table of sections

280‑50 Object of Division

The object of this Division is to neutralise benefits that taxpayers could otherwise receive from shortfalls of income tax, *petroleum resource rent tax, *excess non‑concessional contributions tax or *Division 293 tax, so that they do not receive an advantage in the form of a free loan over those who assess correctly.

Subdivision 280‑B—Shortfall interest charge

Table of sections

280‑100 Liability to shortfall interest charge—income tax

280‑101 Liability to shortfall interest charge—excess exploration credit tax

280‑102 Liability to shortfall interest charge—petroleum resource rent tax

280‑102A Liability to shortfall interest charge—excess non‑concessional contributions tax

280‑102B Liability to shortfall interest charge—Division 293 tax

280‑103 Liability to shortfall interest charge—general

280‑105 Amount of shortfall interest charge

280‑110 Notification by Commissioner

280‑100 Liability to shortfall interest charge—income tax

(1) 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.

(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.

(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.

Liability to shortfall interest charge—excess concessional contributions charge

(4) Despite subsection (1), if:

(a) you are liable under that subsection to pay *shortfall interest charge on an additional amount of income tax; and

(b) that additional amount includes an amount of income tax on which you are liable to pay an amount of *excess concessional contributions charge;

the additional amount of income tax on which you are liable to pay shortfall interest charge is taken to be increased by the amount of excess concessional contributions charge mentioned in paragraph (b).

Liability arising because of a financial benefit under a look‑through earnout right

(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

(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 income tax for the taxing year.

280‑101 Liability to shortfall interest charge—excess exploration credit tax

(1) 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.

(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.

(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.

280‑102 Liability to shortfall interest charge—petroleum resource rent tax

(1) 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).

(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.

(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.

280‑102A Liability to shortfall interest charge—excess non‑concessional contributions tax

(1) 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.

(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.

(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

(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

(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.

280‑102B Liability to shortfall interest charge—Division 293 tax

(1) 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.

(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.

(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.

(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

(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

(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.

280‑103 Liability to shortfall interest charge—general

(1) Your liability to pay *shortfall interest charge exists whether or not you are liable to any penalty under this Act.

(2) Neither the Commonwealth nor an authority of the Commonwealth is liable to pay *shortfall interest charge.

280‑105 Amount of shortfall interest charge

(1) 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,; and

(b) the shortfall interest charge on that amount from previous days.

(2) The rate is:

280‑110 Notification by Commissioner

(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 or 280‑102B.

(2) The notice may be included in any other notice given to you by the Commissioner.

(3) A notice given by the Commissioner under this section is prima facie evidence of the matters stated in the notice.

Subdivision 280‑C—Remitting shortfall interest charge

Table of sections

280‑160 Remitting shortfall interest charge

280‑165 Commissioner must give reasons for not remitting in certain cases

280‑170 Objecting against remission decision

280‑160 Remitting shortfall interest charge

(1) 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.

(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.

280‑165 Commissioner must give reasons for not remitting in certain cases

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.

280‑170 Objecting against remission decision

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.

Division 284—Administrative penalties for statements, unarguable positions and schemes

Table of Subdivisions

Guide to Division 284

284‑A General provisions

284‑B Penalties relating to statements

284‑C Penalties relating to schemes

284‑D Provisions common to Subdivisions 284‑B and 284‑C

Guide to Division 284

284‑5 What this Division is about

This Division sets out the circumstances in which administrative penalties apply for:

(a) making false or misleading statements; and

(b) taking a position that is not reasonably arguable; and

It also sets out the amounts of those penalties.

Subdivision 284‑A—General provisions

Table of sections

284‑10 Object of Division

284‑15 When a matter is reasonably arguable

284‑20 Which statements this Division applies to

284‑25 Statements by agents

284‑30 Application of Division to trusts

284‑35 Application of Division to partnerships

284‑10 Object of Division

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

(d) refusing to provide documents to the Commissioner.

284‑15 When a matter is reasonably arguable

(1) 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.

(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.

(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;

(d) a *public ruling.

284‑20 Which statements this Division applies to

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.

284‑25 Statements by agents

This Division applies to a statement made by your agent as if it had been made by you.

284‑30 Application of Division to trusts

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.

284‑35 Application of Division to partnerships

(1) 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.

(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.

Subdivision 284‑B—Penalties relating to statements

Guide to Subdivision 284‑B

284‑70 What this Subdivision is about

You are liable to an administrative penalty if:

(a) you make a false or misleading statement about a tax‑related matter; or

(b) you take a position that is not reasonably arguable about a tax‑related matter; or

This Subdivision sets out when the penalties apply and how the amounts of the penalties are calculated.

Table of sections

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

Operative provisions

284‑75 Liability to penalty

(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.

Note: This section applies to a statement made by your agent as if it had been made by you: see section 284‑25.

(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 or the *petroleum resource rent tax law; and

(b) in the statement, you treated an income 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

(d) item 4, 5 or 6 of the table in subsection 284‑90(1) applies to you.

(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

Note: You are also liable to an administrative penalty for failing to give the document on time: see Subdivision 286‑C.

(4) You are liable to an administrative penalty if:

(a) you make a statement to an entity other than:

(i) the Commissioner; and

(ii) an entity exercising powers or performing functions under a *taxation law (other than the *Excise Acts); and

(b) the statement is, or purports to be one that:

(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); and

Exceptions to subsections (1) and (4)

(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.

(6) You are not liable to an administrative penalty under subsection (1) or (4) if:

(a) you engage a *registered tax agent or BAS agent; and

(b) you give the registered tax agent or BAS agent all relevant taxation information; and

(d) the false or misleading nature of the statement did not result from:

(i) intentional disregard by the registered tax agent or BAS agent of a *taxation law (other than the *Excise Acts); or

(ii) recklessness by the agent as to the operation of a taxation law (other than the Excise Acts).

(7) If you wish to rely on subsection (6), you bear an evidential burden in relation to paragraph (6)(b).

Further exception to subsection (1)

(8) You are not liable to an administrative penalty under subsection (1) if:

(a) you made the statement (the original statement) under section 389‑5 notifying an amount under item 1 or 2 of the table in subsection 389‑5(1) (and no other item in that table); and

(b) the original statement related to the *financial year in which you made it; and

(c) you make 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.

284‑80 Shortfall amounts

(1) You have a shortfall amount if an item in this table applies to you. That amount is the amount by which the relevant liability, or the payment or credit, is less than or more than it would otherwise have been.

Shortfall amounts
Item	You have a shortfall amount in this situation:
1	A tax‑related liability of yours for an accounting period, or for a taxable importation, or under the Superannuation (Unclaimed Money and Lost Members) Act 1999, worked out on the basis of the statement is less than it would be if the statement were not false or misleading
2	An amount that the Commissioner must pay or credit to you under a taxation law (other than the Excise Acts) for an accounting period, or under a tourist refund scheme under Division 168 of the *GST Act or Division 25 of the A New Tax System (Wine Equalisation Tax) Act 1999, worked out on the basis of the statement is more than it would be if the statement were not false or misleading
3	A tax‑related liability of yours for an accounting period worked out on the basis of the statement is less than it would be if the statement did not treat an income tax law or the petroleum resource rent tax law as applying in a way that was not reasonably arguable
4	An amount that the Commissioner must pay or credit to you under an income tax law or the petroleum resource rent tax law for an accounting period worked out on the basis of the statement is more than it would be if the statement did not treat an income tax law or the petroleum resource rent tax law as applying in a way that was not *reasonably arguable
5	You are liable to pay to the Commissioner an amount of *excess exploration credit tax

(2) However, if:

(a) your shortfall amount arises in the situation covered by both item 1 in the table and item 1, 2 or 3 in the table in subsection 284‑90(1); and

(b) the statement is false or misleading because of errors mentioned in section 705‑315 of the Income Tax Assessment Act 1997 that were made in it and it was made before the Commissioner became aware of the errors, your shortfall amount is instead 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 income year in which the Commissioner became aware of the errors.

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 that the *head company makes as a result of *CGT event L6 happening as mentioned in section 104‑525 of the Income Tax Assessment Act 1997; and

(b) the *corporate tax rate in respect of taxable income for the income year in which that CGT event happens.

284‑85 Amount of penalty

(1) Work out the *base penalty amount under section 284‑90. If the base penalty amount is not increased under section 284‑220 or reduced under section 284‑225, this is the amount of the penalty.

(2) Otherwise, use this formula:

where:

BPA is the *base penalty amount.

increase % is the percentage increase (if any) under section 284‑220.

reduction % is the percentage reduction (if any) under section 284‑225.

284‑90 Base penalty amount

(1) The base penalty amount under this Subdivision is worked out using this table and section 284‑224 if relevant:

Base penalty amount
Item	In this situation:	The base penalty amount is:
1	You have a shortfall amount as a result of a statement described in subsection 284‑75(1) or (4) and the amount, or part of the amount, resulted from intentional disregard of a taxation law (other than the *Excise Acts) by you or your agent	75% of your *shortfall amount or part
2	You have a shortfall amount as a result of a statement described in subsection 284‑75(1) or (4) and the amount, or part of the amount, resulted from recklessness by you or your agent as to the operation of a taxation law (other than the *Excise Acts)	50% of your *shortfall amount or part
3	You have a shortfall amount as a result of a statement described in subsection 284‑75(1) or (4) and the amount, or part of the amount, resulted from a failure by you or your agent to take reasonable care to comply with a taxation law (other than the *Excise Acts)	25% of your *shortfall amount or part
3A	A statement described in subsection 284‑75(1) or (4) was false or misleading because of intentional disregard of a taxation law (other than the Excise Acts) by you or your agent but did not result in you having a shortfall amount	60 penalty units
3B	A statement described in subsection 284‑75(1) or (4) was false or misleading because of recklessness by you or your agent as to the operation of a taxation law (other than the Excise Acts) but did not result in you having a shortfall amount	40 penalty units
3C	A statement described in subsection 284‑75(1) or (4) was false or misleading because of a failure by you or your agent to take reasonable care to comply with a taxation law (other than the Excise Acts) but did not result in you having a shortfall amount	20 penalty units
4	You have a shortfall amount, all or part of which resulted from you or your agent treating an income 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 that amount is more than your *reasonably arguable threshold.	25% of your *shortfall amount or part
5	You have a shortfall amount because of section 284‑30 (about trusts) and: (a) your shortfall amount or part of it resulted from you or your agent treating an income tax law as applying to a matter or identical matters in a particular way that was not reasonably arguable; and (b) because of that treatment, the trust’s net income would have been reduced, or the trust’s tax loss would have been increased, for the income year by more than the trust’s *reasonably arguable threshold	25% of your *shortfall amount or part
6	You have a shortfall amount because of section 284‑35 (about partnerships) and: (a) your shortfall amount or part of it resulted from you or your agent treating an income tax law as applying to a matter or identical matters in a particular way that was not reasonably arguable; and (b) because of that treatment, the partnership net income would have been reduced, or the partnership loss would have been increased, for the income year by more than the partnership’s reasonably arguable threshold	25% of your *shortfall amount or part
7	You are liable to an administrative penalty under subsection 284‑75(3)	75% of the tax‑related liability concerned

(2) If 2 or more items in that table apply and one of them produces a greater *base penalty amount than any of the others, use that item.

(3) An entity’s reasonably arguable threshold for an income year is:

(a) unless paragraph (b) applies—the greater of $10,000 or 1% of whichever of the following applies:

(i) the income tax payable by the entity for the income year, worked out on the basis of the entity’s *income tax return;

(ii) the *petroleum resource rent tax payable by the entity for the year of tax (within the meaning of the Petroleum Resource Rent Tax Assessment Act 1987) most closely corresponding to the income year, worked out on the basis of the entity’s return under Division 1 of Part VI of that Act; or

(b) if the entity is a trust or partnership—the greater of the following amounts:

(i) $20,000;

(ii) 2% of the entity’s *net income (if any) for the income year worked out on the basis of the entity’s *income tax return.

284‑95 Joint and several liability of directors of corporate trustee that makes a false or misleading statement

(1) This section applies if a trustee of a *self managed superannuation fund, or of a fund that is treated as a self managed superannuation fund under subsection 10(4) of the Superannuation Industry (Supervision) Act 1993:

(a) is liable to an administrative penalty under subsection 284‑75(1) or (4); and

(b) is a body corporate.

(2) The directors of the body corporate at the time it becomes liable to the penalty are jointly and severally liable to pay the amount of the *tax‑related liability in respect of the penalty.

Note: See section 265‑45 for rules on joint liability.

Subdivision 284‑C—Penalties relating to schemes

Guide to Subdivision 284‑C

284‑140 What this Subdivision is about

You are liable to an administrative penalty if you attempt to reduce your tax‑related liabilities or increase your credits through a scheme.

This Subdivision sets out when the penalties apply and how the amounts of the penalties are calculated.

Table of sections

Operative provisions

284‑145 Liability to penalty

284‑150 Scheme benefits and scheme shortfall amounts

284‑155 Amount of penalty

284‑160 Base penalty amount: schemes

Operative provisions

284‑145 Liability to penalty

(1) You are liable to an administrative penalty if:

(a) you would, apart from a provision of a *taxation law or action taken under such a provision (the adjustment provision), get a *scheme benefit from a *scheme; and

(b) having regard to any relevant matters, it is reasonable to conclude that:

(i) an entity that (alone or with others) entered into or carried out the scheme, or part of it, did so with the sole or dominant purpose of that entity or another entity getting a scheme benefit from the scheme; or

(ia) for a scheme to which Part IVA of the Income Tax Assessment Act 1936 applies because of section 177DA of that Act—an entity that (alone or with others) entered into or carried out the scheme, or part of it, did so for a principal purpose of, or for more than one principal purpose that includes a purpose of, that entity or another entity getting a scheme benefit from the scheme; or

(ii) for a scheme referred to in Division 165 of the *GST Act or Division 75 of the Fuel Tax Act 2006—the principal effect of the scheme, or of part of the scheme, is that you would, apart from the adjustment provision, get the scheme benefit from the scheme directly or indirectly.

(2A) You are also liable to an administrative penalty if:

(a) you would, apart from a determination under section 815‑30 of the Income Tax Assessment Act 1997 (also the adjustment provision), get a *scheme benefit from a *scheme; and

(b) neither subparagraph (1)(b)(i) nor subparagraph (1)(b)(ia) is satisfied for the scheme.

(2B) You are also liable to an administrative penalty if:

(a) to give effect to Subdivision 815‑B or 815‑C of the Income Tax Assessment Act 1997 (also the adjustment provision) in relation to a *scheme, the Commissioner:

(i) amends your assessment for an income year; or

(ii) serves you with one or more notices under subsection 128C(7) of the Income Tax Assessment Act 1936 in respect of income that is taken because of the application of the adjustment provision to have been derived in the income year; and

(b) as a result, you are liable to pay an additional amount of income tax or *withholding tax (as the case requires).

Note: Subdivisions 815‑B and 815‑C of the Income Tax Assessment Act 1997 apply the arm’s length principle (about transfer pricing) to entities and permanent establishments respectively.

(2C) You are also liable to an administrative penalty if:

(a) you are the trustee of a *managed investment trust in relation to an income year; and

(b) to give effect to Subdivision 275‑L of the Income Tax Assessment Act 1997 (also the adjustment provision) in relation to a *scheme, the Commissioner amends your assessment for the income year; and

Note: Subdivision 275‑L of the Income Tax Assessment Act 1997 applies to non‑arm’s length income of managed investment trusts.

(3) It does not matter whether the *scheme, or any part of the scheme, was entered into or carried out inside or outside Australia.

284‑150 Scheme benefits and scheme shortfall amounts

(1) An entity gets a scheme benefit from a *scheme if:

(a) a *tax‑related liability of the entity for an accounting period is, or could reasonably be expected to be, less than it would be apart from the scheme or a part of the scheme; or

(b) an amount that the Commissioner must pay or credit to the entity under a *taxation law for an accounting period is, or could reasonably be expected to be, more than it would be apart from the scheme or a part of the scheme.

(2) The amount of the *scheme benefit that you would, apart from the adjustment provision, have got from the *scheme is called your scheme shortfall amount.

(3) However, to the extent that your scheme shortfall amount is due to errors mentioned in section 705‑315 of the Income Tax Assessment Act 1997 that were made in a statement that was made before the Commissioner became aware of the errors, your scheme shortfall amount is instead the amount worked out using the formula:

where:

adjusted reset cost base asset setting amount means:

less:

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 joining time, 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 that the *head company makes as a result of *CGT event L6 happening as mentioned in section 104‑525 of the Income Tax Assessment Act 1997; and

(b) the *corporate tax rate in respect of taxable income for the income year in which that CGT event happens.

Scheme shortfall amount for cross‑border transfer pricing

(4) Despite subsection (2), your scheme shortfall amount for a *scheme to which subsection 284‑145(2B) applies is the total amount of additional income tax and *withholding tax you are liable to pay as mentioned in that subsection.

(5) Disregard your *scheme shortfall amount for a *scheme to which subsection 284‑145(1) applies to the extent that scheme shortfall amount is attributable to additional tax that is, or is part of, your scheme shortfall amount for a scheme to which subsection 284‑145(2B) applies.

Scheme shortfall amount for managed investment trust non‑arm’s length income

(6) Despite subsection (2), your scheme shortfall amount for a *scheme to which subsection 284‑145(2C) applies is the total amount of additional income tax you are liable to pay as mentioned in that subsection.

(7) Disregard your *scheme shortfall amount for a *scheme to which subsection 284‑145(1) applies to the extent that scheme shortfall amount is attributable to additional tax that is, or is part of, your scheme shortfall amount for a scheme to which subsection 284‑145(2C) applies.

284‑155 Amount of penalty

(1) Work out the *base penalty amount under section 284‑160. If the base penalty amount is not increased under section 284‑220 or reduced under section 284‑225, this is the amount of the penalty.

(2) Otherwise, use this formula:

where:

BPA is the *base penalty amount.

increase % is the percentage increase (if any) under section 284‑220.

reduction % is the percentage reduction (if any) under section 284‑225.

(3) However, the amount of the penalty is twice the amount worked out under subsection (1) or (2) of this section if:

(a) you are a *significant global entity during an income year that consists of, or includes all or part of, the accounting period to which your *scheme shortfall amount relates; and

(b) it is not *reasonably arguable that the adjustment provision does not apply.

284‑160 Base penalty amount: schemes

(1) The base penalty amount for a *scheme to which subsection 284‑145(1) or (2C) applies is, subject to section 284‑224:

(a) 50% of your *scheme shortfall amount; or

(b) 25% of your scheme shortfall amount if it is *reasonably arguable that the adjustment provision does not apply.

(2) The base penalty amount for a *scheme to which subsection 284‑145(2A) applies is, subject to section 284‑224:

(a) 25% of your *scheme shortfall amount; or

(b) 10% of your scheme shortfall amount if it is *reasonably arguable that the adjustment provision does not apply.

(3) The base penalty amount for a *scheme to which subsection 284‑145(2B) applies is worked out using this table and section 284‑224 if relevant:

Base penalty amount
Item	Column 1 In this situation:	Column 2 The base penalty amount is:
1	having regard to any relevant matters, it is reasonable to conclude that an entity that (alone or with others) entered into or carried out the scheme, or part of it, did so with the sole or dominant purpose of that entity or another entity getting a transfer pricing benefit from the scheme	the sum of: (a) 50% of your scheme shortfall amount, to the extent that it is not attributable as mentioned in paragraph (b); and (b) 25% of your scheme shortfall amount, to the extent (if any) that it is attributable to the entity, or the entity’s agent, treating the adjustment provision as applying (including not applying) to a matter (or identical matters) in a particular way that is reasonably arguable
2	item 1 does not apply	the sum of: (a) 25% of your *scheme shortfall amount, to the extent that it is not attributable as mentioned in paragraph (b); and
		(b) 10% of your scheme shortfall amount, to the extent (if any) that it is attributable to the entity, or the entity’s agent, treating the adjustment provision as applying (including not applying) to a matter (or identical matters) in a particular way that is *reasonably arguable

Note: For special rules about when transfer pricing treatment is not reasonably arguable, see Subdivision 284‑E.

284‑165 Exception—threshold for penalty arising from cross‑border transfer pricing

(1) You are not liable to an administrative penalty under subsection 284‑145(2B) if your *scheme shortfall amount is equal to or less than your *reasonably arguable threshold.

(2) You are also not liable to an administrative penalty under that subsection if:

(a) you have the *scheme shortfall amount because of section 284‑30 (about trusts); and

(b) the amount by which the trust would, apart from the application of Subdivision 815‑B or 815‑C of the Income Tax Assessment Act 1997, have had a greater *net income, or a lesser *tax loss, is equal to or less than the trust’s *reasonably arguable threshold.

(3) You are also not liable to an administrative penalty under that subsection if:

(a) you have the *scheme shortfall amount because you are a partner in a partnership that participated in the *scheme; and

(b) the amount by which the partnership would, apart from the application of Subdivision 815‑B or 815‑C of that Act, have had a greater *net income, or a lesser *partnership loss, is equal to or less than the partnership’s *reasonably arguable threshold.

Nil amounts

(4) For the purposes of this section:

(a) treat a trust or a partnership that has no *net income for an income year as having a net income for the year of a nil amount; and

(b) treat a trust that has no *tax loss for an income year as having a tax loss for the year of a nil amount; and

(c) treat a partnership that has no *partnership loss for an income year as having a partnership loss for the year of a nil amount.

Subdivision 284‑D—Provisions common to Subdivisions 284‑B and 284‑C

Table of sections

284‑220 Increase in base penalty amount

284‑224 Reduction of base penalty amount if law was applied in an accepted way

284‑225 Reduction of base penalty amount if you voluntarily tell the Commissioner

284‑220 Increase in base penalty amount

(1) The *base penalty amount is increased by 20% if:

(a) you took steps to prevent or obstruct the Commissioner from finding out about a *shortfall amount, or the false or misleading nature of a statement, in relation to which the base penalty amount was calculated; or

(b) you:

(i) became aware of such a shortfall amount after a statement had been made to the Commissioner about the relevant *tax‑related liability; or

(ii) became aware of the false or misleading nature of a statement made to the Commissioner or another entity after the statement had been made;

and you did not tell the Commissioner or other entity about it within a reasonable time; or

(c) the base penalty amount was worked out using item 1, 2 or 3 of the table in subsection 284‑90(1) and a base penalty amount for you was worked out under one of those items previously; or

(ca) the base penalty amount was worked out using item 3A, 3B or 3C of the table in subsection 284‑90(1) and a base penalty amount for you was worked out under one of those items previously; or

(d) the base penalty amount was worked out using item 4, 5 or 6 of that table and a base penalty amount for you was worked out under that item previously; or

(e) your liability to a penalty arises under subsection 284‑75(3) and you were previously liable to a penalty under that subsection.

(2) The *base penalty amount for your *scheme shortfall amount, or for part of it, for an accounting period is increased by 20% if:

(a) you took steps to prevent or obstruct the Commissioner from finding out about the scheme shortfall amount or the part; or

(b) a base penalty amount for you was worked out under section 284‑160 for a previous accounting period.

284‑224 Reduction of base penalty amount if law was applied in an accepted way

(1) If, apart from this section, you would have a *base penalty amount because you or your *agent treated a *taxation law as applying in a particular way, and that way agreed with:

(a) advice given to you or your agent by or on behalf of the Commissioner; or

(b) general administrative practice under that law; or

your base penalty amount is reduced to the extent that it was caused by that treatment.

(2) For the purposes of subsection (1) it does not matter whether the *base penalty amount also relates to:

(a) a statement; or

(b) a failure to give the Commissioner a return, notice or other document when required; or

284‑225 Reduction of base penalty amount if you voluntarily tell the Commissioner

(1) The *base penalty amount for your *shortfall amount or *scheme shortfall amount, for part of it or for your false or misleading statement is reduced by 20% if:

(a) the Commissioner tells you that an examination is to be made of your affairs relating to a *taxation law for a relevant period; and

(b) after that time, you voluntarily tell the Commissioner, in the *approved form, about the shortfall, the part of it or the false or misleading nature of the statement; and

(c) telling the Commissioner can reasonably be estimated to have saved the Commissioner a significant amount of time or significant resources in the examination.

(2) The *base penalty amount for your *shortfall amount or *scheme shortfall amount, for part of it or for your false or misleading statement is reduced under subsection (3), (4) or (4A) if you voluntarily tell the Commissioner, in the *approved form, about the shortfall amount, the part of it or the false or misleading nature of the statement before:

(a) the day the Commissioner tells you that an examination is to be made of your affairs relating to a *taxation law for a relevant period; or

(b) if the Commissioner makes a public statement requesting entities to make a voluntary disclosure by a particular earlier day about a *scheme or transaction that applies to your affairs—that earlier day.

(3) The *base penalty amount for your *shortfall amount, or for part of it, is:

(a) reduced by 80% if the shortfall amount, or the part of it, is $1,000 or more; or

(b) reduced to nil if the shortfall amount, or the part of it, is less than $1,000.

(4) The *base penalty amount for your *scheme shortfall amount, or for part of it, is reduced by 80%.

(4A) The *base penalty amount for your false or misleading statement that does not result in you having a *shortfall amount is reduced to nil.

(5) If you voluntarily tell the Commissioner, in the *approved form, about your *shortfall amount or *scheme shortfall amount, part of it or the false or misleading nature of the statement after the Commissioner tells you that an examination is to be conducted of your affairs relating to a *taxation law for a relevant period, the Commissioner may treat you as having done so before being told about the examination if the Commissioner considers it appropriate to do so in the circumstances.

Subdivision 284‑E—Special rules about unarguable positions for cross‑border transfer pricing

Table of sections

284‑250 Undocumented transfer pricing treatment not reasonably arguable

284‑255 Documentation requirements

284‑250 Undocumented transfer pricing treatment not reasonably arguable

This Division has effect in relation to an entity as if a matter was not *reasonably arguable if:

(a) the matter is a particular way of applying (including not applying) Subdivision 815‑B or 815‑C of the Income Tax Assessment Act 1997 to a matter (or identical matters); and

(b) the entity does not have records that meet the requirements in this Subdivision for the application of the Subdivision mentioned in paragraph (a) to that matter (or those matters) in that way.

Note: For the Commissioner’s power to remit an administrative penalty imposed by this Part, see section 298‑20.

284‑255 Documentation requirements

(1) Records kept by an entity meet the requirements in this Subdivision for the application (or non‑application) of Subdivision 815‑B or 815‑C of the Income Tax Assessment Act 1997 to a matter (or identical matters) in a particular way if the records:

(a) are prepared before the time by which the entity lodges its *income tax return for the income year relevant to the matter (or matters); and

(b) are in English, or readily accessible and convertible into English; and

(d) explain why the application of the Subdivision to the matter (or matters) in that way best achieves the consistency mentioned in section 815‑135 or 815‑235 of that Act (as the case requires) (about guidance material).

(2) Without limiting subsection (1), the records must allow each of the following to be readily ascertained:

(a) the *arm’s length conditions relevant to the matter (or matters);

(b) the particulars of the method used and comparable circumstances relevant to identifying those arm’s length conditions;

(c) unless the records are for the non‑application of the Subdivision to a matter (or matters)—the result that the application of the Subdivision in that particular way, as compared to the non‑application of the Subdivision, has for the operation of this Act in relation to the entity;

(d) for Subdivision 815‑B—the actual conditions relevant to the matter (or matters);

(e) for Subdivision 815‑C:

(i) the actual profits mentioned in paragraph 815‑220(1)(a) of that Act and the *arm’s length profits, to the extent that they are relevant to the matter (or matters); and

(ii) the particulars of the activities and circumstances mentioned in subsection 815‑225(1) of that Act, to the extent they are relevant to the matter (or matters).

Division 286—Penalties for failing to lodge documents on time

Table of Subdivisions

286‑A Guide to Division 286

286‑B Object of Division

286‑C Penalties for failing to lodge documents on time

Subdivision 286‑A—Guide to Division 286

286‑1 What this Division is about

You are liable to an administrative penalty if you are required to give a return, statement, notice or other document by a particular time and you do not do so.

This Division sets out when the penalty applies and how the amounts of the penalty are calculated.

Subdivision 286‑B—Object of Division

Table of sections

286‑25 Object of Division

The object of this Division is to provide a uniform administrative penalty regime for all *taxation laws to enable administrative penalties to apply for failure to give returns, notices, statements or other documents on time.

Subdivision 286‑C—Penalties for failing to lodge documents on time

Table of sections

286‑75 Liability to penalty

286‑80 Amount of penalty

286‑75 Liability to penalty

(1) You are liable to an administrative penalty if:

(a) you are required under a *taxation law to give a return, notice, statement or other document to the Commissioner in the *approved form by a particular day; and

(b) you do not give the return, notice, statement or document to the Commissioner in the approved form by that day.

Note: You may not be liable to a penalty in relation to a failure to notify an amount referred to in item 1 or 2 of the table in section 389‑5 during the period provided for by subitem 22(2) of Schedule 23 to the Budget Savings (Omnibus) Act 2016.

(1A) However, you are not liable to an administrative penalty under subsection (1) if:

(a) you engage a *registered tax agent or BAS agent; and

(b) you give the registered tax agent or BAS agent all relevant taxation information to enable the agent to give a return, notice, statement or other document to the Commissioner in the *approved form by a particular day; and

(c) the registered tax agent or BAS agent does not give the return, notice, statement or other document to the Commissioner in the approved form by that day; and

(d)