Commonwealth Coat of Arms of Australia

Taxation Administration Act 1953

No. 1, 1953

Compilation No. 170

Compilation date:   1 July 2020

Includes amendments up to: Act No. 69, 2020

Registered: 24 August 2020

This compilation is in 3 volumes

Volume 1: sections 1–18

 Schedule 1 (sections 61 to 9735)

Volume 2: Schedule 1 (sections 1051 to 9905)

Volume 3: Endnotes

Each volume has its own contents

This compilation includes commenced amendments made by Act No. 49, 2020, Act No. 61, 2020 and Act No. 64, 2020

About this compilation

This compilation

This is a compilation of the Taxation Administration Act 1953 that shows the text of the law as amended and in force on 1 July 2020 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Selfrepealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

 

 

 

Contents

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

Chapter 3—Collection, recovery and administration of other taxes

Part 310—Indirect taxes

Division 105—General rules for indirect taxes

Guide to Division 105 1

1051 What this Division is about

Subdivision 105D—General interest charge and penalties

10580 General interest charge

10585 Amending Acts cannot impose penalties or general interest charge earlier than 28 days after Royal Assent

Subdivision 105F—Indirect tax refund schemes

105120 Refund scheme—defence related international obligations

105125 Refund scheme—international obligations

Subdivision 105G—Other administrative provisions

105145 Commissioner must give things in writing

Division 110—Goods and services tax

Guide to Division 110 6

1101 What this Division is about

Subdivision 110F—Review of GST decisions

11050 Reviewable GST decisions

Division 111—Wine tax and luxury car tax

Guide to Division 111 11

1111 What this Division is about

Subdivision 111C—Review of wine tax decisions

11150 Reviewable wine tax decisions

Subdivision 111D—Effect on contracts from amendments to laws

11160 Alteration of contracts if cost of complying with agreement is affected by later alteration to wine tax or luxury car tax laws

Division 112—Fuel tax

Guide to Division 112 14

1121 What this Division is about

Subdivision 112E—Review of fuel tax decisions

11250 Reviewable fuel tax decisions

Part 315—Major bank levy

Division 115General provisions relating to the major bank levy

1151 What this Division is about

1155 Returns

11510 When major bank levy is due and payable

Division 117—Antiavoidance

Guide to Division 117 18

1171 What this Division is about

Subdivision 117A—Application of this Division

1175 Object of this Division

11710 Application of this Division

11715 Meaning of MBL benefit

11720 Matters to be considered in determining purpose

Subdivision 117B—Commissioner may negate effects of schemes for MBL benefits

11725 Commissioner may negate entity’s MBL benefits

11730 Determination has effect according to its terms

11735 Commissioner may disregard scheme in making determinations

11740 One determination may cover several quarters etc.

11745 Commissioner must give copy of determination to entity affected

11750 Objections

Part 320—Superannuation

Division 131—Releasing money from superannuation

Subdivision 131A—Releasing money from superannuation

Guide to Subdivision 131A

1311 What this Subdivision is about

Requesting a release authority

1315 Requesting the release of amounts from superannuation interests

13110 Restrictions on the total amount you can request to be released

Issuing a release authority to superannuation provider

13115 Issuing release authorities

13120 Amount to be stated in a release authority

13125 Contents of a release authority

13130 Varying and revoking a release authority

Complying with a release authority

13135 Obligations of superannuation providers

13140 Voluntary compliance with a release authority relating to defined benefit interests

13145 Meaning of maximum available release amount

13150 Notifying Commissioner

13155 Notifying you

13160 Compensation for acquisition of property

Consequences of releasing amounts

13165 Entitlement to credits

13170 Interest for late payments of money received by the Commissioner in accordance with release authority

13175 Income tax treatment of amounts released—proportioning rule does not apply

Division 133—Division 293 tax

Guide to Division 133 34

1331 What this Division is about

Subdivision 133A—Deferral determination

Guide to Subdivision 133A

1335 What this Subdivision is about

Operative provisions

13310 Determination of tax that is deferred to a debt account

13315 Defined benefit tax

13320 How to attribute the defined benefit tax to defined benefit interests

13325 Determination reducing tax deferred to a debt account

13330 General provisions applying to determinations under this Subdivision

Subdivision 133B—Debt account

Guide to Subdivision 133B

13355 What this Subdivision is about

Operative provisions

13360 Debt account to be kept for deferred tax

13365 Interest on debt account balance

13370 Voluntary payments

13375 Commissioner must notify superannuation provider of debt account

Subdivision 133C—Compulsory payment

Guide to Subdivision 133C

133100 What this Subdivision is about

Debt account discharge liability

133105 Liability to pay debt account discharge liability

133110 When debt account discharge liability must be paid

133115 General interest charge

133120 Meaning of debt account discharge liability

133125 Notice of debt account discharge liability

End benefit 

133130 Meaning of end benefit

133135 Superannuation provider may request debt account status

133140 End benefit notice—superannuation provider

133145 End benefit notice—material changes or omissions

Division 135—Releasing money from superannuation

Guide to Division 135 48

1351 What this Division is about

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

Guide to Subdivision 135A

1355 What this Subdivision is about

Operative provisions

13510 Release authorities

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

Guide to Subdivision 135B

13535 What this Subdivision is about

Operative provisions

13540 When you may give release authority to superannuation provider

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

Guide to Subdivision 135C

13570 What this Subdivision is about

Operative provisions

13575 Requirement for superannuation provider to release money

13580 Compensation for acquisition of property

13585 Release amount

13590 How the Commissioner applies amounts received under a release authority

13595 Defined benefit interests—releasing amounts to pay debt account discharge liability

135100 Income tax treatment of amounts released—proportioning rule does not apply

Division 136—Transfer balance cap

Guide to Division 136 55

1361 What this Division is about

Subdivision 136A—Excess transfer balance determinations

Guide to Subdivision 136A

1365 What this Subdivision is about

Operative provisions

13610 Excess transfer balance determination

13615 Review

13620 Electing to commute a different superannuation income stream

13625 Notifying Commissioner of transfer balance debits

Subdivision 136B—Commutation authorities

Guide to Subdivision 136B

13650 What this Subdivision is about

Obligations of Commissioner

13655 Issuing of commutation authorities

13660 Varying and revoking a commutation authority

13665 Issuing further commutation authorities

13670 Notifying of noncommutable excess transfer balance

Obligations of superannuation income stream providers

13680 Obligations on superannuation income stream providers

13685 Notifying the Commissioner

13690 Notifying you

Division 138—First home super saver scheme

Guide to Division 138 65

1381 What this Division is about

Subdivision 138A—First home super saver determination

Guide to Subdivision 138A

1385 What this Subdivision is about

Operative provisions

13810 First home super saver determination

13815 Review

Subdivision 138B—FHSS maximum release amount

Guide to Subdivision 138B

13820 What this Subdivision is about

Operative provisions

13825 FHSS maximum release amount

13830 FHSS releasable contributions amount

13835 Eligible contributions

13840 Associated earnings

Part 330—Diverted profits tax

Division 145—Assessments of diverted profits tax

Guide to Division 145 72

1451 What this Division is about

1455 DPT assessments—modified application of Division 155

14510 When DPT assessments can be made

14515 Period of review of DPT assessments

14520 Review of assessments

14525 Restricted DPT evidence

Chapter 4—Generic assessment, collection and recovery rules

Part 41—Returns and assessments

Division 155—Assessments

Guide to Division 155 78

1551 What this Division is about

Subdivision 155A—Making assessments

1555 Commissioner may make assessment

15510 Commissioner must give notice of assessment

15515 Selfassessment

15520 Assessment of indirect tax on importations and customs dealing

15525 Special assessment

15530 Delays in making assessments

Subdivision 155B—Amending assessments

When Commissioner may amend assessments

15535 Amendment during period of review

15540 Amendment during period of review—certain applications taken to be notices

15545 Amendment on application

15550 Amendment to give effect to private ruling

15555 Amendment to give effect to certain antiavoidance declarations

15560 Amendment because of review, objection or fraud

Special rules about amending amended assessments

15565 Amending amended assessments

15570 Refreshed period of review

General rules 

15575 Refunds of amounts overpaid

15580 Amended assessments are assessments

Subdivision 155C—Validity and review of assessments

15585 Validity of assessment

15590 Review of assessments

Subdivision 155D—Miscellaneous

15595 Entities

Part 415—Collection and recovery of taxrelated liabilities and other amounts

Division 250—Introduction

Subdivision 250A—Guide to Part 415

2501 What this Part is about

2505 Some important concepts about taxrelated liabilities

25010 Summary of taxrelated liabilities

Subdivision 250B—Object of this Part

25025 Object

Division 255—General rules about collection and recovery

Subdivision 255A—Taxrelated liabilities

2551 Meaning of taxrelated liability

2555 Recovering a taxrelated liability that is due and payable

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

25510 To defer the payment time

25515 To permit payments by instalments

25520 To bring forward the payment time in certain cases

Subdivision 255C—Service of documents if person absent from Australia or cannot be found

Guide to Subdivision 255C

25535 What this Subdivision is about

Operative provisions

25540 Service of documents if person absent from Australia or cannot be found

Subdivision 255D—Security deposits

255100 Commissioner may require security deposit

255105 Notice of requirement to give security

255110 Offence

255115 Order to comply with requirement

255120 Offence

Division 260—Special rules about collection and recovery

Guide to Division 260 111

2601 What this Division is about

Subdivision 260A—From third party

2605 Commissioner may collect amounts from third party

26010 Notice to Commonwealth, State or Territory

26015 Indemnity

26020 Offence

Subdivision 260B—From liquidator

26040 Subdivision does not apply to superannuation guarantee charge

26045 Liquidator’s obligation

26050 Offence

26055 Joint liability of 2 or more liquidators

26060 Liquidator’s other obligation or liability

Subdivision 260C—From receiver

26075 Receiver’s obligation

26080 Offence

26085 Joint liability of 2 or more receivers

26090 Receiver’s other obligation or liability

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

260105 Obligation of agent winding up business for foreign resident principal

260110 Offence

260115 Joint liability of 2 or more agents

260120 Agent’s other obligation or liability

Subdivision 260E—From deceased person’s estate

260140 Administered estate

260145 Unadministered estate

260150 Commissioner may authorise amount to be recovered

Division 263—Mutual assistance in the administration of foreign tax laws

Subdivision 263A—Foreign revenue claims

Guide to Subdivision 263A

2635 What this Subdivision is about

Operative provisions

26310 Meaning of foreign revenue claim

26315 Requirements for foreign revenue claims

26320 Foreign Revenue Claims Register

26325 Registering claims

26330 When amount is due and payable

26335 Amending the Register etc.

26340 Payment to competent authority

Subdivision 263B—Service of documents in Australia on behalf of foreign revenue authorities

Guide to Subdivision 263B

26355 What this Subdivision is about

Operative provisions

26360 Meaning of foreign service of document request

26365 Service of document subject to foreign service of document request

Division 265—Other matters

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

Guide to Subdivision 265A

26535 What this Subdivision is about

Operative provisions

26540 Right of recovery if another person is liable

26545 Right of contribution if persons are jointly liable

Subdivision 265B—Application of laws

26565 Nonapplication of certain taxation laws

Subdivision 265C—Direction to pay superannuation guarantee charge

Guide to Subdivision 265C

26585 What this Subdivision is about

26590 Direction to pay superannuation guarantee charge

26595 Offence

265100 Variation or revocation

265105 Effect of liability being reduced or ceasing to exist

265110 Taxation objection

265115 Extension of period to comply if taxation objection made

Division 268—Estimates

Guide to Division 268 139

2681 What this Division is about

Subdivision 268A—Object

2685 Object of Division

Subdivision 268B—Making estimates

26810 Commissioner may make estimate

26815 Notice of estimate

Subdivision 268C—Liability to pay estimates

26820 Nature of liability to pay estimate

26825 Accuracy of estimate irrelevant to liability to pay

26830 Estimate provable in bankruptcy or winding up

Subdivision 268D—Reducing and revoking estimates

26835 How estimate may be reduced or revoked—Commissioner’s powers

26840 How estimate may be reduced or revoked—statutory declaration or affidavit

26845 How estimate may be reduced or revoked—rejection of proof of debt

26850 How estimate may be reduced—amount paid or applied

26855 When reduction or revocation takes effect

26860 Consequences of reduction or revocation—refund

26865 Consequences of reduction or revocation—statutory demand changed or set aside

26870 Consequences of reduction or revocation—underlying liability

Subdivision 268E—Late payment of estimates

26875 Liability to pay the general interest charge

26880 Effect of paying the general interest charge

Subdivision 268F—Miscellaneous

26885 Effect of judgment on liability on which it is based

26890 Requirements for statutory declaration or affidavit

26895 Liquidators, receivers and trustees in bankruptcy

268100 Division not to limit or exclude Corporations or Bankruptcy Act

Division 269—Penalties for directors of noncomplying companies

Guide to Division 269 163

2691 What this Division is about

Subdivision 269A—Object and scope

2695 Object of Division

26910 Scope of Division

Subdivision 269B—Obligations and penalties

26915 Directors’ obligations

26920 Penalty

26925 Notice

26930 Effect on penalty of directors’ obligation ending before end of notice period

26935 Defences

Subdivision 269C—Discharging liabilities

26940 Effect of director paying penalty or company discharging liability

26945 Directors’ rights of indemnity and contribution

Subdivision 269D—Miscellaneous

26950 How notice may be given

26952 Copies of notices

26955 Division not to limit or exclude Corporations Act

Part 425—Charges and penalties

Division 280—Shortfall interest charge

Guide to Division 280 181

2801 Guide to Division 280

Subdivision 280A—Object of Division

28050 Object of Division

Subdivision 280B—Shortfall interest charge

280100 Liability to shortfall interest charge—income tax

280101 Liability to shortfall interest charge—excess exploration credit tax

280102 Liability to shortfall interest charge—petroleum resource rent tax

280102A Liability to shortfall interest charge—excess nonconcessional contributions tax

280102B Liability to shortfall interest charge—Division 293 tax

280102C Liability to shortfall interest charge—diverted profits tax

280103 Liability to shortfall interest charge—general

280105 Amount of shortfall interest charge

280110 Notification by Commissioner

Subdivision 280C—Remitting shortfall interest charge

280160 Remitting shortfall interest charge

280165 Commissioner must give reasons for not remitting in certain cases

280170 Objecting against remission decision

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

Guide to Division 284 192

2845 What this Division is about

Subdivision 284A—General provisions

28410 Object of Division

28415 When a matter is reasonably arguable

28420 Which statements this Division applies to

28425 Statements by agents

28430 Application of Division to trusts

28435 Application of Division to partnerships

Subdivision 284B—Penalties relating to statements

Guide to Subdivision 284B

28470 What this Subdivision is about

Operative provisions

28475 Liability to penalty

28480 Shortfall amounts

28485 Amount of penalty

28490 Base penalty amount

28495 Joint and several liability of directors of corporate trustee that makes a false or misleading statement

Subdivision 284C—Penalties relating to schemes

Guide to Subdivision 284C

284140 What this Subdivision is about

Operative provisions

284145 Liability to penalty

284150 Scheme benefits and scheme shortfall amounts

284155 Amount of penalty

284160 Base penalty amount: schemes

284165 Exception—threshold for penalty arising from crossborder transfer pricing

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

284220 Increase in base penalty amount

284224 Reduction of base penalty amount if law was applied in an accepted way

284225 Reduction of base penalty amount if you voluntarily tell the Commissioner

Subdivision 284E—Special rules about unarguable positions for crossborder transfer pricing

284250 Undocumented transfer pricing treatment not reasonably arguable

284255 Documentation requirements

Division 286—Penalties for failing to lodge documents on time

Subdivision 286A—Guide to Division 286

2861 What this Division is about

Subdivision 286B—Object of Division

28625 Object of Division

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

28675 Liability to penalty

28680 Amount of penalty

Division 288—Miscellaneous administrative penalties

28810 Penalty for nonelectronic notification

28820 Penalty for nonelectronic payment

28825 Penalty for failure to keep or retain records

28830 Penalty for failure to retain or produce declarations

28835 Penalty for preventing access etc.

28840 Penalty for failing to register or cancel registration

28845 Penalty for failing to issue tax invoice etc.

28846 Penalty for failing to ensure tax information about supplies of low value goods is included in customs documents

28850 Penalty for both principal and agent issuing certain documents

28870 Administrative penalties for life insurance companies

28875 Administrative penalty for a copyright or resale royalty collecting society

28880 Administrative penalty for over declaring conduit foreign income

28885 Failure by Reporting Financial Institution to obtain selfcertification

28895 Failing to comply etc. with release authority

288100 Excess money paid under release authority

288105 Superannuation provider to calculate crystallised preJuly 83 amount of superannuation interest by 30 June 2008

288110 Contravention of superannuation data and payment regulation or standard

288115 AMIT under or over resulting from intentional disregard of or recklessness as to taxation law

288120 Prohibited offsets of liabilities using interest etc. accrued on farm management deposits

288125 Producing or supplying electronic sales suppression tools

288130 Possessing electronic sales suppression tools

288135 Incorrectly keeping records using electronic sales suppression tools

Division 290—Promotion and implementation of schemes

Subdivision 290A—Preliminary

2905 Objects of this Division

29010 Extraterritorial application

Subdivision 290B—Civil penalties

29050 Civil penalties

29055 Exceptions

29060 Meaning of promoter

29065 Meaning of tax exploitation scheme

Subdivision 290C—Injunctions

290120 Conduct to which this Subdivision applies

290125 Injunctions

290130 Interim injunctions

290135 Delay in making ruling

290140 Discharge etc. of injunctions

290145 Certain limits on granting injunctions not to apply

290150 Other powers of the Federal Court unaffected

Subdivision 290D—Voluntary undertakings

290200 Voluntary undertakings

Division 295—Miscellaneous civil penalties

Subdivision 295B—Civil penalty for possession of tobacco without relevant documentation

Guide to Subdivision 295B

29570 What this Subdivision is about

29575 Possession of tobacco without relevant documentation etc.

29580 Things treated as tobacco

Division 298—Machinery provisions for penalties

Subdivision 298A—Administrative penalties

2985 Scope of Subdivision

29810 Notification of liability

29815 Due date for penalty

29820 Remission of penalty

29825 General interest charge on unpaid penalty

29830 Assessment of penalties under Division 284 or section 288115

Subdivision 298B—Civil penalties

29880 Application of Subdivision

29885 Civil evidence and procedure rules for civil penalty orders

29890 Civil proceedings after criminal proceedings

29895 Criminal proceedings during civil proceedings

298100 Criminal proceedings after civil proceedings

298105 Evidence given in proceedings for penalty not admissible in criminal proceedings

298110 Civil double jeopardy

Part 430—Offences and prosecutions

Division 308—Offences relating to tobacco

Guide to Division 308 262

3081 What this Division is about

Subdivision 308A—Reasonable suspicion offences relating to tobacco

Guide to Subdivision 308A

3085 What this Subdivision is about

30810 Possession of tobacco (500 kilograms or above)—reasonable suspicion offence

30815 Possession of tobacco (100 kilograms or above)—reasonable suspicion offence

30820 Possession of tobacco (5 kg or above)—reasonable suspicion offence

30825 Sale of tobacco (500 kilograms or above)—reasonable suspicion offence

30830 Sale of tobacco (100 kilograms or above)—reasonable suspicion offence

30835 Sale of tobacco (5 kg or above)—reasonable suspicion offence

30840 Buying of tobacco (500 kilograms or above)—reasonable suspicion offence

30845 Buying of tobacco (100 kilograms or above)—reasonable suspicion offence

30850 Buying of tobacco (5 kg or above)—reasonable suspicion offence

30855 Matters taken to satisfy “reasonable to suspect” requirement

Subdivision 308B—Faultbased offences of possession, production and manufacture

Guide to Subdivision 308B

308105 What this Subdivision is about

308110 Possession of tobacco (500 kg or above)—faultbased offence

308115 Possession of tobacco (100 kg or above)—faultbased offence

308120 Possession of tobacco (5 kg or above)—faultbased offence

308125 Manufacture or production of tobacco (500 kg or above)—faultbased offence

308130 Manufacture or production of tobacco (100 kg or above)—faultbased offence

308135 Manufacture or production of tobacco (5 kg or above)—faultbased offence

Subdivision 308C—Offences relating to equipment relating to the manufacture or production of tobacco

Guide to Subdivision 308C

308200 What this Subdivision is about

308205 Possession of equipment for use in illegal manufacture or production of tobacco

308210 Possession of equipment designed or adapted to manufacture or produce tobacco

Subdivision 308E—Other provisions

Guide to Subdivision 308E

308500 What this Subdivision is about

308505 Things treated as tobacco

308510 Matters treated as possession

308515 Where excise duty or customs duty is treated as not payable for the purpose of the reasonable suspicion offences

308520 Section 8ZD does not apply to this Division

Part 450—Release from particular liabilities

Division 340Commissioner’s power in cases of hardship

Guide to Division 340 309

3401 What this Division is about

Operative provisions

3405 Release from particular liabilities in cases of serious hardship

34010 Liabilities to which this section applies

34015 Commissioner may take action to give effect to a release decision

34020 Extinguishing your liability to pay a fringe benefits tax instalment if you are released

34025 Extinguishing your liability to pay a PAYG instalment if you are released

Division 342Commissioner’s power relating to proceeds of crime proceedings

Guide to Division 342 315

3421 What this Division is about

Subdivision 342A—Power to waive right to payment of taxrelated liabilities

3425 Object of this Subdivision

34210 Power to waive right to payment of taxrelated liability

Part 490—Evidence

Division 350—Evidence

Guide to Division 350 318

3501 What this Division is about

Subdivision 350A—Evidence

3505 Application of Subdivision

35010 Evidence

35012 Prima facie evidence—particulars stated in evidentiary certificate

35015 Judicial notice of signature

35020 Certain statements or averments in proceedings to recover taxrelated liabilities

35025 Evidence by affidavit in proceedings to recover taxrelated liabilities

Chapter 5—Administration

Part 51—The Australian Taxation Office

Division 352—Commissioner’s reporting obligations

Guide to Division 352 324

3521 What this Division is about

Subdivision 352A—Accountability of the Commissioner in respect of indirect tax laws

3525 Commissioner must prepare annual report on indirect tax laws

Subdivision 352C—Reporting on working holiday makers

35225 Commissioner must prepare annual report on working holiday makers

Division 353—Powers to obtain information and evidence

Guide to Division 353 326

3531 What this Division is about

Subdivision 353A—Powers to obtain information and evidence

35310 Commissioner’s power

35315 Access to premises, documents etc.

35320 Checking status of specifically listed deductible gift recipients

Subdivision 353B—Powers to obtain information and evidence from overseas

35325 Offshore information notices

35330 Offshore information notices—consequence of not complying

Division 354—Power to obtain information about rights or interests in property

3545 Power to obtain information about rights or interests in property

Division 355—Confidentiality of taxpayer information

Guide to Division 355 336

3551 What this Division is about

Subdivision 355A—Objects and application of Division

35510 Objects of Division

35515 Application of Division

Subdivision 355B—Disclosure of protected information by taxation officers

Guide to Subdivision 355B

35520 What this Subdivision is about

Operative provisions

35525 Offence—disclosure of protected information by taxation officers

35530 Meaning of protected information and taxation officer

35535 Consent is not a defence

35540 Generality of Subdivision not limited

35545 Exception—disclosure of publicly available information

35547 Exception—disclosure of periodic aggregate tax information

35550 Exception—disclosure in performing duties

35555 Exception—disclosure to Ministers

35560 Limits on disclosure to Ministers

35565 Exception—disclosure for other government purposes

35570 Exception—disclosure for law enforcement and related purposes

35572 Exception—disclosure to credit reporting bureaus

35575 Limits on disclosure to courts and tribunals

Subdivision 355C—Ondisclosure of protected information by other people

Guide to Subdivision 355C

355150 What this Subdivision is about

Operative provisions

355155 Offence—ondisclosure of protected information by other people

355160 Consent is not a defence

355165 Generality of Subdivision not limited

355170 Exception—ondisclosure of publicly available information

355172 Exception—disclosure of periodic aggregate tax information

355175 Exception—ondisclosure for original purpose

355180 Exception—ondisclosure to Ministers in relation to statutory powers or functions

355182 Exception—ondisclosure of certain information to Commonwealth Ombudsman

355185 Exception—ondisclosure in relation to IGIS

355190 Exception—ondisclosure in relation to ASIO

355195 Exception—ondisclosure by Royal Commissions

355200 Exception—records made in compliance with Australian laws

355205 Limits on ondisclosure to courts or tribunals

355210 Limits on ondisclosure to Ministers

355215 Exception—ondisclosure of information disclosed to credit reporting bureaus

Subdivision 355D—Disclosure of protected information that has been unlawfully acquired

Guide to Subdivision 355D

355260 What this Subdivision is about

Operative provisions

355265 Offence—disclosure of protected information acquired in breach of a taxation law

355270 Exception—disclosure of publicly available information

355275 Exception—disclosure in relation to a taxation law

355280 Limits on disclosure to courts and tribunals

Subdivision 355E—Other matters

Guide to Subdivision 355E

355320 What this Subdivision is about

Operative provisions

355325 Oath or affirmation to protect information

355330 Injunctions to prevent contravention of nondisclosure provisions

355335 Procedures for disclosing protected information

Division 356—General administration of tax laws

Guide to Division 356 388

3561 What this Division is about

Subdivision 356A—Indirect tax laws

3565 Commissioner has general administration of indirect tax laws

Subdivision 356B—Major bank levy

35610 Commissioner has general administration of major bank levy

Part 55—Rulings

Division 357—Object and common rules

Guide to Division 357 389

3571 What this Division is about

Subdivision 357A—Object of this Part

3575 Object of this Part

Subdivision 357B—Common rules for rulings

Rules for all rulings

35750 Scope of Division

35755 The provisions that are relevant for rulings

35760 When rulings are binding on the Commissioner

35765 Stopping relying on a ruling

35770 Commissioner may apply the law if more favourable than the ruling

35775 Inconsistent rulings

35780 Contracts for schemes

35785 Effect on ruling if relevant provision reenacted

35790 Validity of ruling not affected by formal defect

Common rules for public and private rulings

35795 Electronic communications

357100 Evidence

Common rules for private and oral rulings

357105 Further information must be sought

357110 Assumptions in making private or oral ruling

357115 Additional information provided by applicant

357120 Commissioner may take into account information from third parties

357125 Applications and objections not to affect obligations and powers

Division 358—Public rulings

Guide to Division 358 402

3581 What this Division is about

Making public rulings

3585 What is a public ruling?

35810 Application of public rulings

35815 When a public ruling ceases to apply

Withdrawing public rulings

35820 Withdrawing public rulings

Division 359—Private rulings

Guide to Division 359 405

3591 What this Division is about

Private rulings 

3595 Private rulings

35910 Applying for a private ruling

35915 Private rulings to be given to applicants

35920 Private rulings must contain certain details

35925 Time of application of private rulings

35930 Ruling for trustee of a trust

35935 Dealing with applications

35940 Valuations

35945 Related rulings

35950 Delays in making private rulings

35955 Revised private rulings

35960 Objections, reviews and appeals relating to private rulings

35965 Commissioner may consider new information on objection

35970 Successful objection decision alters ruling

Division 360—Oral rulings

Guide to Division 360 414

3601 What this Division is about

Oral rulings 

3605 Applying for and making of oral rulings

36010 Withdrawing an application for an oral ruling

36015 Commissioner determinations

Division 361—Nonruling advice and general administrative practice

3615 Nonruling advice and general administrative practice

Division 362—Rulings by Innovation and Science Australia that activities are not ineligible activities

Guide to Division 362 418

3621 What this Division is about

Public rulings by Innovation and Science Australia

3625 Innovation and Science Australia may make public rulings on a specified class of activities

36210 Application of public rulings

36215 When a public ruling ceases to apply

36220 Withdrawing public rulings

Private rulings by Innovation and Science Australia

36225 Innovation and Science Australia may make private rulings on a specified activity

36230 Applying for a private ruling

36235 Innovation and Science Australia must give notice of its decision

36240 Private rulings must contain certain details

36245 Application of private rulings

36250 Delays in making private rulings

36255 When a private ruling ceases to apply

36260 Withdrawing private rulings

General provisions

36265 When rulings are binding on the Commissioner and Innovation and Science Australia

36270 Application of common rules under Subdivision 357B

36275 Application of Divisions 358 and 359

Part 510—Commissioner’s remedial power

Division 370—Commissioner’s remedial power

Guide to Division 370 426

3701 What this Division is about

Subdivision 370A—Commissioner’s remedial power

3705 Commissioner’s remedial power

37010 Intended purpose or object

37015 Repeal of determinations

37020 Commencement of determinations

Part 525—Recordkeeping and other obligations relating to taxpayers

Division 382—Recordkeeping

Guide to Division 382 430

3821 What this Division is about

Subdivision 382A—Keeping records of indirect tax transactions

3825 Keeping records of indirect tax transactions

Subdivision 382B—Record keeping obligations of deductible gift recipients

38215 Deductible gift recipients to keep records

Division 384—Education directions

Guide to Division 384 436

3845 What this Division is about

38410 When an education direction may be given

38415 Education direction

38420 Approval of courses of education

38425 Costs of course of education

38430 Variation or revocation on Commissioner’s own initiative

38435 Variation on request

38440 Taxation objection

Division 388—Requirements about giving material to the Commissioner

Subdivision 388A—Object of Division

3885 Object of Division

Subdivision 388B—General provisions

38850 Approved forms

38852 Saturdays, Sundays and public holidays

38855 Commissioner may defer time for lodgment

38860 Declaration by entity

38865 Declaration by entity where agent gives document

38870 Declaration by agent

38875 Signing declarations

38880 Electronic notification of BAS amounts

38885 Truncating amounts

Division 389—Reporting by employers

Guide to Division 389 446

3891 What this Division is about

3895 Required reporting by employers

38910 Exemptions

38915 Voluntary reporting by employers

38920 Effect on reporting requirements under Subdivision 16C

38925 Grace periods for correcting false or misleading notifications

Division 390Superannuation reporting

Guide to Division 390 453

3901 What this Division is about

Subdivision 390A—Member information statements and rollover superannuation benefit statements

3905 Member information statements

3907 Grace periods for correcting false or misleading member information statements

39010 Statements about rollover superannuation benefits etc.

39012 Statements about benefits paid to KiwiSaver schemes

39015 Superannuation statements to members

39020 Statements relating to holders of certain life insurance policies

Subdivision 390B—Statements relating to release authorities

39065 Statements relating to release authorities

Subdivision 390C—Other statements

390115 Change or omission in information given to the Commissioner

Division 392—Employee share scheme reporting

Guide to Division 392 465

3921 What this Division is about

Subdivision 392A—Statements

3925 Statements by providers

39210 Change or omission in information given to the Commissioner

Subdivision 392B—Miscellaneous

39215 Application of certain provisions of Division 83A of the Income Tax Assessment Act 1997

Division 393—Reports by investment bodies

Guide to Division 393 470

3931 What this Division is about

3935 Reports about quoting tax file numbers and ABNs

39310 Annual investment income reports

39315 Errors in reports

Division 394Reporting about forestry managed investment schemes

Guide to Division 394 473

3941 What this Division is about

3945 Statements about initial contributions to scheme

39410 Statements about failure to establish trees within 18 months

Division 396—Third party reporting

Guide to Division 396 476

3961A What this Division is about

Subdivision 396A—FATCA

Guide to Subdivision 396A

3961 What this Subdivision is about

Operative provisions

3965 Statements about U.S. Reportable Accounts

39610 Statements about payments to Nonparticipating Financial Institutions

39615 Meaning of the FATCA Agreement

39620 Permissions and elections

39625 Record keeping

Subdivision 396B—Information about transactions that could have tax consequences for taxpayers

Guide to Subdivision 396B

39650 What this Subdivision is about

Operative provisions

39655 Reporting taxrelated information about transactions to the Commissioner

39660 Information required

39665 Exemptions—wholesale clients

39670 Exemptions—other cases

39675 Errors in reports

Subdivision 396C—Common Reporting Standard

Guide to Subdivision 396C

396100 What this Subdivision is about

Operative provisions

396105 Statements about Reportable Accounts

396110 Meaning of CRS

396115 Matters Common Reporting Standard leaves to domestic law

396120 Application of Common Reporting Standard

396125 Record keeping

396130 Antiavoidance provisions

396135 Application of penalty to false or misleading selfcertification

396136 Report on Reportable Accounts maintained by Australian Reporting Financial Institutions

Division 398—Miscellaneous reporting obligations

Guide to Division 398 498

3981 What this Division is about

Subdivision 398A—Farm Management Deposit reporting

3985 Reporting to Agriculture Department

Part 530—Payment, ABN and identification verification system

Division 400—Guide to Part 530

4001 What Part 530 is about

4005 The payment, ABN and identification verification system

Division 405—Transaction reporting by purchasers

4055 Payments to which this Division applies

40510 Reporting requirements

40515 Invoices produced by purchasers

Division 410—Transaction reporting by suppliers

4105 Payments to which this Division applies

41010 Reporting requirements

41015 Invoices produced by purchasers

Division 415—Verification of suppliers’ ABNs by purchasers

4155 Payments to which this Division applies

41510 ABN verification requirements

41515 Method of obtaining ABN verification

41520 Verification applies to later payments

Division 417—Verification of suppliers’ identities by purchasers

4175 Payments to which this Division applies

41710 Identity verification requirements

41715 Method of obtaining identity verification

41720 Verification applies to later payments

Division 420—Penalties for not reporting or verifying

4205 Failing to report or verify: administrative penalty

Division 425—Other matters

42520 Constructive payment

42525 Noncash benefits

Part 535—Registration and similar processes for various taxes

Division 426—Process of endorsing charities and other entities

Guide to Division 426 511

4261 What this Division is about

Subdivision 426A—Application of Subdivision 426B to various kinds of endorsement

4265 Application of Subdivision 426B to various kinds of endorsement

42610 How Subdivision 426B applies to government entities in relation to endorsement under section 30120 of the Income Tax Assessment Act 1997

Subdivision 426B—Process of endorsement etc.

42615 Applying for endorsement

42620 Dealing with an application for endorsement

42625 Notifying outcome of application for endorsement

42630 Date of effect of endorsement

42635 Review of refusal of endorsement

42640 Checking entitlement to endorsement

42645 Telling Commissioner of loss of entitlement to endorsement

42650 Partnerships and unincorporated bodies

42655 Revoking endorsement

42660 Review of revocation of endorsement

Subdivision 426C—Entries on Australian Business Register

42665 Entries on Australian Business Register

Subdivision 426D—Public and private ancillary funds

Guide to Subdivision 426D

426100 What this Subdivision is about

Public ancillary funds

426102 Public ancillary funds

426103 Public ancillary fund guidelines

426104 Australian Business Register must show public ancillary fund status

Private ancillary funds

426105 Private ancillary funds

426110 Private ancillary fund guidelines

426115 Australian Business Register must show private ancillary fund status

Administrative penalties

426120 Administrative penalties for trustees of ancillary funds

Suspension and removal of trustees

426125 Suspension or removal of trustees

426130 Commissioner to appoint acting trustee in cases of suspension or removal

426135 Terms and conditions of appointment of acting trustee

426140 Termination of appointment of acting trustee

426145 Resignation of acting trustee

426150 Property vesting orders

426155 Powers of acting trustee

426160 Commissioner may give directions to acting trustee

426165 Property vested in acting trustee—former trustees’ obligations relating to books, identification of property and transfer of property

Transfers between ancillary funds

426170 Ancillary funds must not provide funds to other ancillary funds

Part 545—Application of taxation laws to certain entities

Division 444—Obligations of entities on behalf of other entities

Guide to Division 444 535

4441 What this Division is about

Subdivision 444A—Unincorporated associations and bodies and companies

4445 Unincorporated associations and bodies

44410 Public officers of companies

44415 Notifying and serving companies

Subdivision 444B—Partnerships

44430 Partnerships

Subdivision 444C—Superannuation funds

44450 Superannuation funds

Subdivision 444D—Incapacitated entities

44470 Representatives of incapacitated entities

Subdivision 444E—Indirect tax specific entities

44480 GST joint ventures

44485 Nonprofit subentities

44490 GST groups

Division 446—Local governing bodies

Guide to Division

4461 What this Division is about

Operative provisions

4465 Requirements for unanimous resolutions by local governing bodies

Part 5100—Miscellaneous

Division 850—Transactions exempt from application of taxation laws

Subdivision 850A—Declaration relating to security or intelligence agency

850100 Declaration relating to security or intelligence agency

Division 990—Miscellaneous

Subdivision 990A—Combining notices

9905 Commissioner may combine notices

Schedule 1Collection and recovery of income tax and other liabilities

Chapter 3Collection, recovery and administration of other taxes

Part 310Indirect taxes

Division 105General rules for indirect taxes

Table of Subdivisions

 Guide to Division 105

105D General interest charge and penalties

105F Indirect tax refund schemes

105G Other administrative provisions

Guide to Division 105

1051  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:

 (c) limits on credits, refunds and recovering amounts;

 (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 105DGeneral interest charge and penalties

Table of sections

10580 General interest charge

10585 Amending Acts cannot impose penalties or general interest charge earlier than 28 days after Royal Assent

10580  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).

10585  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 10580;

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 105FIndirect tax refund schemes

Table of sections

105120 Refund scheme—defence related international obligations

105125 Refund scheme—international obligations

105120  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

 (c) the acquisition is made:

 (i) by or on behalf of a *visiting force that is; or

 (ii) by a member (within the meaning of the Defence (Visiting Forces) Act 1963) of the visiting force who is; or

 (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.

105125  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

 (c) you or the entity claims 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;

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 105GOther administrative provisions

Table of sections

105145 Commissioner must give things in writing

105145  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 110Goods and services tax

Table of Subdivisions

 Guide to Division 110

110F Review of GST decisions

Guide to Division 110

1101  What this Division is about

This Division gives you the right to object against reviewable GST decisions that relate to you. Section 11050 sets out the reviewable GST decisions.

Subdivision 110FReview of GST decisions

Table of sections

11050 Reviewable GST decisions

11050  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 255(1)

2

registering you

subsection 255(2)

3

deciding the date of effect of your registration

section 2510

4

refusing to cancel your registration

subsection 2555(1)

5

cancelling your registration

subsection 2555(2)

6

refusing to cancel your registration

section 2557

7

deciding the date on which the cancellation of your registration takes effect

section 2560

8

determining that the *tax periods that apply to you are each individual month

subsection 2715(1)

9

deciding the date of effect of a determination

subsection 2715(2)

10

refusing to revoke your election under section 2710

subsection 2722(1)

11

deciding the date of effect of a revocation

subsection 2722(3)

12

refusing to revoke a determination under section 2715

subsection 2725(1)

13

deciding the date of effect of a revocation

subsection 2725(2)

14

determining that a specified period is a *tax period that applies to you

section 2730

15

refusing a request for a determination

section 2737

16

revoking a determination under section 2737

subsection 2738(1)

17

deciding the date of a revocation

subsection 2738(2)

18

refusing to permit you to account on a cash basis

subsection 2945(1)

19

deciding the date of effect of your permission to account on a cash basis

subsection 2945(2)

20

revoking your permission to account on a cash basis

subsection 2950(3)

21

deciding the date of effect of the revocation of your permission to account on a cash basis

subsection 2950(4)

22

refusing an application for a decision that an event is a *fundraising event

paragraph 40165(1)(c)

23

approving another day of effect

paragraph 4871(1)(b)

24

revoking an approval of a day of effect

subsection 4871(2)

29

refusing an application for approval

section 495

30

refusing an application for approval or revocation

subsection 4970(1)

31

revoking an approval under Division 49

subsection 4970(2)

32

refusing an application for revocation

subsection 4975(1)

33

revoking the approval of a *GST religious group

subsection 4975(2)

34

deciding the date of effect of any approval, or any revocation of an approval, under Division 49

section 4985

35

approving another day of effect

paragraph 5175(1)(b)

36

revoking an approval of a day of effect

subsection 5175(2)

42

refusing an application for registration

section 545

43

deciding the date of effect of registration as a *GST branch

section 5410

44

refusing to cancel the registration of a *GST branch

subsection 5475(1)

45

cancelling the registration of a *GST branch

subsection 5475(2)

46

deciding the date of effect of the cancellation of the registration of a *GST branch

section 5480

47

cancelling the registration of an Australian resident agent

subsection 5725(1)

48

determining that the *tax periods that apply to a resident agent are each individual month

subsection 5735(1)

49

deciding the date of effect of a determination

subsection 5735(2)

49A

cancelling the registration of a *representative of an *incapacitated entity

subsection 5825(1)

49B

deciding to direct a *representative of an *incapacitated entity to give to the Commissioner a *GST return

paragraph 5850(1)(b)

50

cancelling the registration of a *nonprofit subentity

subsection 6335(1)

51

refusing to allow, or allowing, a further period within which to make an agreement that the margin scheme is to apply

paragraph 755(1A)(b)

52

refusing a request to allow an annual apportionment election to take effect from the start of another *tax period

paragraph 13110(2)(b)

53

disallowing an annual apportionment election

subsection 13120(3)

53A

refusing to make requested decision about excess GST

subsection 14215(1)

55

refusing a request to allow an annual *tax period election to take effect from the start of another tax period

paragraph 15110(2)(b)

56

refusing a request to be allowed to make an annual *tax period election on a specified day

subsection 15120(3)

57

disallowing an annual *tax period election

subsection 15125(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 16215(2)(b)

59

refusing a request to be allowed to make an election on a specified day

subsection 16225(3)

60

disallowing an election to pay *GST by instalments

subsection 16230(3)

62

making a declaration to negate or reduce a GST disadvantage

subsection 16545(3)

63

deciding whether to grant a request for a declaration to negate or reduce a GST disadvantage

subsection 16545(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 111Wine tax and luxury car tax

Table of Subdivisions

 Guide to Division 111

111C Review of wine tax decisions

111D Effect on contracts from amendments to laws

Guide to Division 111

1111  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 111CReview of wine tax decisions

Table of sections

11150 Reviewable wine tax decisions

11150  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 1745

2

deciding the date of effect of your approval as a New Zealand participant

section 197

3

refusing to approve you as a New Zealand participant

section 197

4

revoking your approval as a New Zealand participant

section 198

5

deciding the date of effect of revocation of your approval as a New Zealand participant

section 198

Subdivision 111DEffect on contracts from amendments to laws

Table of sections

11160 Alteration of contracts if cost of complying with agreement is affected by later alteration to wine tax or luxury car tax laws

11160  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 112Fuel tax

Table of Subdivisions

 Guide to Division 112

112E Review of fuel tax decisions

Guide to Division 112

1121  What this Division is about

This Division gives you the right to object against reviewable fuel tax decisions that relate to you. Section 11250 sets out the reviewable fuel tax decisions.

Subdivision 112EReview of fuel tax decisions

Table of sections

11250 Reviewable fuel tax decisions

11250  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

2

making a declaration to negate or reduce a *fuel tax disadvantage

subsection 7545(3)

3

deciding whether or not to grant a request to negate or reduce a *fuel tax disadvantage

subsection 7545(5)

Part 315Major bank levy

Division 115General provisions relating to the major bank levy

1151  What this Division is about

An ADI that is liable to pay levy under the Major Bank Levy Act 2017 must give quarterly returns to the Commissioner.

An amount of levy is due and payable when an ADI’s last PAYG instalment within an instalment quarter is due.

Table of sections

1155 Returns

11510 When major bank levy is due and payable

1155  Returns

 (1) An *ADI that is liable to pay levy for a *quarter under the Major Bank Levy Act 2017 must give to the Commissioner a return relating to the levy, in the *approved form.

 (2) The return must be given on or before the *MBL reporting day for the *quarter.

 (3) The MBL reporting day for the *quarter is the day by which the *ADI is required to give to *APRA a report, in accordance with a standard determined by APRA under section 13 of the Financial Sector (Collection of Data) Act 2001, that:

 (a) relates to the *quarter; and

 (b) states the total liabilities amount (within the meaning of the Major Bank Levy Act 2017) for the quarter in relation to the ADI.

11510  When major bank levy is due and payable

 (1) An amount of levy under the Major Bank Levy Act 2017 that an *ADI is liable to pay for a *quarter is due and payable on the first day:

 (a) that occurs on or after the *MBL reporting day for the quarter; and

 (b) on which the last instalment that the ADI is liable to pay within an *instalment quarter is due under Subdivision 45B.

 (2) If that amount remains unpaid after it is due and payable, the *ADI is liable to pay *general interest charge on the unpaid amount for each day in the period that:

 (a) started at the beginning of the day by which the amount was due to be paid; and

 (b) finishes at the end of the last day at the end of which either of the following remains unpaid:

 (i) the amount;

 (ii) general interest charge on any of the amount.

Division 117Antiavoidance

Table of Subdivisions

 Guide to Division 117

117A Application of this Division

117B Commissioner may negate effects of schemes for MBL benefits

Guide to Division 117

1171  What this Division is about

This Division applies to deter schemes that give entities MBL benefits.

If the sole or dominant purpose of entering into a scheme is to give an entity such a benefit, the Commissioner may negate the MBL benefit an entity gets from the scheme by making a determination.

Subdivision 117AApplication of this Division

Table of sections

1175 Object of this Division

11710 Application of this Division

11715 Meaning of MBL benefit

11720 Matters to be considered in determining purpose

1175  Object of this Division

  The object of this Division is to deter *schemes to give entities benefits that reduce or defer liabilities to levy under the Major Bank Levy Act 2017.

11710  Application of this Division

 (1) This Division applies if:

 (a) an entity gets or got an *MBL benefit from a *scheme; and

 (b) taking account of the matters described in section 11720, it is reasonable to conclude that an entity that (whether alone or with others) entered into or carried out the scheme, or part of the scheme, did so for the sole or dominant purpose of that entity or another entity getting an MBL benefit from the scheme; and

 (c) the scheme:

 (i) has been or is entered into at or after 7.30 pm, by legal time in the Australian Capital Territory, on 9 May 2017; or

 (ii) has been or is carried out or commenced at or after that time (other than a scheme that was entered into before that time).

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

11715  Meaning of MBL benefit

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

 (a) an amount of levy under the Major Bank Levy Act 2017 that is payable by the entity under this Act apart from this Division is, or could reasonably be expected to be, smaller than it would be apart from the scheme or a part of the scheme; or

 (b) all or part of an amount of levy under the Major Bank Levy Act 2017 that is payable by the entity under this Act apart from this Division is, or could reasonably be expected to be, payable later than it would have been apart from the scheme or a part of the scheme.

 (2) To avoid doubt, a smaller liability mentioned in paragraph (1)(a) includes a case where the liability is zero, or there is no such liability for a particular *quarter.

11720  Matters to be considered in determining purpose

  The following matters are to be taken into account under section 11710 in considering an entity’s purpose in entering into or carrying out the *scheme, or part of the scheme:

 (a) the manner in which the scheme was entered into or carried out;

 (b) the form and substance of the scheme;

 (c) the time at which the scheme was entered into and the length of the period during which the scheme was carried out;

 (d) the effect that the Major Bank Levy Act 2017, and any other *taxation law to the extent that it applies in relation to that Act, would have in relation to the scheme apart from this Division;

 (e) any change in the financial position of the entity that has resulted, or may reasonably be expected to result, from the scheme;

 (f) any change that has resulted, or may reasonably be expected to result, from the scheme in the financial position of an entity (a connected entity) that has or had a connection or dealing with the entity, whether the connection or dealing is or was of a business or other nature;

 (g) any other consequence for the entity or a connected entity of the scheme having been entered into or carried out;

 (h) the nature of the connection (whether of a business or other nature) between the entity and a connected entity.

Subdivision 117BCommissioner may negate effects of schemes for MBL benefits

Table of sections

11725 Commissioner may negate entity’s MBL benefits

11730 Determination has effect according to its terms

11735 Commissioner may disregard scheme in making determinations

11740 One determination may cover several quarters etc.

11745 Commissioner must give copy of determination to entity affected

11750 Objections

11725  Commissioner may negate entity’s MBL benefits

 (1) For the purpose of negating an *MBL benefit the entity mentioned in paragraph 11710(1)(a) gets or got from the *scheme, the Commissioner may:

 (a) make a determination stating the amount that is (and has been at all times) the entity’s liability for levy under the Major Bank Levy Act 2017, for a specified *quarter that has ended; or

 (b) make a determination stating the amount that is (and has been at all times) a particular amount mentioned in paragraph 5(2)(a) or (b) of that Act, for a specified quarter that has ended.

 (2) A determination under this section is not a legislative instrument.

 (3) The Commissioner may take such action as the Commissioner considers necessary to give effect to the determination.

11730  Determination has effect according to its terms

  For the purpose of making an *assessment, a statement in a determination under this Subdivision has effect according to its terms, despite the provisions of a *taxation law outside of this Division.

11735  Commissioner may disregard scheme in making determinations

  For the purposes of making a determination under this Subdivision, the Commissioner may:

 (a) treat a particular event that actually happened as not having happened; and

 (b) treat a particular event that did not actually happen as having happened and, if appropriate, treat the event as:

 (i) having happened at a particular time; and

 (ii) having involved particular action by a particular entity; and

 (c) treat a particular event that actually happened as:

 (i) having happened at a time different from the time it actually happened; or

 (ii) having involved particular action by a particular entity (whether or not the event actually involved any action by that entity).

11740  One determination may cover several quarters etc.

  To avoid doubt, statements relating to different *quarters and different *MBL benefits may be included in a single determination under this Subdivision.

11745  Commissioner must give copy of determination to entity affected

 (1) The Commissioner must give a copy of a determination under this Subdivision to the entity whose liability for levy under the Major Bank Levy Act 2017 is stated in the determination.

 (2) A failure to comply with subsection (1) does not affect the validity of the determination.

11750  Objections

  If the entity whose liability for levy under the Major Bank Levy Act 2017 is stated in a determination under this Subdivision is dissatisfied with the determination, the entity may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953.

Part 320Superannuation

Division 131Releasing money from superannuation

Table of Subdivisions

131A Releasing money from superannuation

Subdivision 131AReleasing money from superannuation

Guide to Subdivision 131A

1311  What this Subdivision is about

You may request the Commissioner to require the release of an amount from your superannuation interests if you are given:

 (a) an excess concessional contributions determination or excess nonconcessional contributions determination; or

 (b) a notice of assessment of an amount of Division 293 tax; or

 (c) a first home super saver determination.

The Commissioner may also require the release of an amount from your superannuation interests in related circumstances.

Superannuation providers must usually pay the amount required to be released. However, for defined benefit superannuation interests the provider may choose whether or not to pay.

Released amounts are paid to the Commissioner. You get a credit for the released amount. Surplus credits are refunded to you under Division 3A of Part IIB.

Table of sections

Requesting a release authority

1315 Requesting the release of amounts from superannuation interests

13110 Restrictions on the total amount you can request to be released

Issuing a release authority to superannuation provider

13115 Issuing release authorities

13120 Amount to be stated in a release authority

13125 Contents of a release authority

13130 Varying and revoking a release authority

Complying with a release authority

13135 Obligations of superannuation providers

13140 Voluntary compliance with a release authority relating to defined benefit interests

13145 Meaning of maximum available release amount

13150 Notifying Commissioner

13155 Notifying you

13160 Compensation for acquisition of property

Consequences of releasing amounts

13165 Entitlement to credits

13170 Interest for late payments of money received by the Commissioner in accordance with release authority

13175 Income tax treatment of amounts released—proportioning rule does not apply

Requesting a release authority

1315  Requesting the release of amounts from superannuation interests

 (1) You may make a request under this section for a *financial year if you are given any of the following:

 (a) an *excess concessional contributions determination for the financial year;

 (b) an *excess nonconcessional contributions determination for the financial year;

 (c) a notice of assessment of an amount of *Division 293 tax payable for the income year that corresponds to the financial year;

 (d) a *first home super saver determination.

 (2) You make the request by:

 (a) notifying the Commissioner of the total amount to be released; and

 (b) identifying your *superannuation interest or interests from which that total amount is to be released; and

 (c) if you identify more than one superannuation interest—stating the amount to be released from each such interest.

 (3) The request must:

 (a) ensure that the total amount to be released for the determination or assessment complies with section 13110; and

 (b) be in the *approved form; and

 (c) be given to the Commissioner within:

 (i) 60 days after the Commissioner issues the determination or notice referred to in subsection (1); or

 (ii) a further period allowed by the Commissioner.

Unsuccessful requests—making a further request

 (4) If:

 (a) you make a valid request under this section; and

 (b) the Commissioner gives you a notice under subsection 13155(1) stating an amount (the unreleased amount) that a *superannuation provider did not pay in relation to a release authority issued for that request;

you may make a further request to release the unreleased amount from another of your *superannuation interests.

 (5) The further request must comply with subsection (2) and paragraphs (3)(a) and (b), and must be given to the Commissioner within:

 (a) 60 days after the Commissioner issues the notice mentioned in paragraph (4)(b); or

 (b) a further period allowed by the Commissioner.

Request is irrevocable

 (6) A request under this section is irrevocable.

13110  Restrictions on the total amount you can request to be released

 (1) The total amount you can request to be released complies with this section if that amount:

 (a) if item 1, 3 or 4 of the following table applies—does not exceed the relevant amount referred to in that item; or

 (b) if item 2 of the following table applies—is nil or equals the relevant amount referred to in that item.

 

Amount you can request to be released

Item

If the request relates to this kind of determination or assessment (see subsection 1315(1)):

The relevant amount is:

1

an *excess concessional contributions determination

85% of the contributions stated in that determination

2

an *excess nonconcessional contributions determination

the *total release amount stated in that determination

3

an assessment of an amount of *Division 293 tax

that amount of Division 293 tax

4

a *first home super saver determination

the *FHSS maximum release amount stated in that determination

 (2) However, for an amended determination or assessment, reduce the relevant amount referred to in the above table by any amount released under this Subdivision for an earlier determination or assessment of that kind that you are given for the *financial year or corresponding income year.

 (3) An amendment of a determination or assessment does not affect the validity of a request you make under section 1315 before you are given the amended determination or the notice of the amended assessment.

Issuing a release authority to superannuation provider

13115  Issuing release authorities

Issuing in response to a valid request

 (1) If you make a valid request under section 1315, the Commissioner must issue a release authority to each *superannuation provider that holds a *superannuation interest identified in the request.

Issuing if you do not make a valid request in response to an excess nonconcessional contributions determination etc.

 (2) If:

 (a) on a particular day, the Commissioner issues you with:

 (i) an *excess nonconcessional contributions determination for a *financial year; or

 (ii) a notice to which paragraph 1315(4)(b) applies for such a determination; and

 (b) within 60 days after that day, you do not make a valid request under section 1315 for that determination;

the Commissioner may issue a release authority to one or more *superannuation providers that hold *superannuation interests for you.

Issuing if you are liable to pay excess nonconcessional contributions tax

 (3) If you are given a notice of an *excess nonconcessional contributions tax assessment for a *financial year, the Commissioner may issue a release authority to one or more *superannuation providers that hold *superannuation interests for you.

Issuing if you have an unpaid amount of assessed Division 293 tax that is not deferred to a debt account

 (4) If:

 (a) for an income year, you are given a notice of assessment of an amount of *Division 293 tax that is not *deferred to a debt account for a *superannuation interest; and

 (b) on the 60th day after the day the Commissioner issues that notice, the sum of the following falls short of that amount of tax:

 (i) any payments of that tax for the income year that you have already made;

 (ii) any amounts that have already been released under this Subdivision for that assessment;

the Commissioner may issue a release authority to one or more *superannuation providers that hold superannuation interests for you.

13120  Amount to be stated in a release authority

 (1) The amount to be released from one or more *superannuation interests under a release authority issued under section 13115 must be:

 (a) for a release authority issued under subsection 13115(1)—the amount stated in the request; or

 (b) otherwise—worked out so that the total amount stated for all release authorities for the applicable determination or assessment does not exceed:

 (i) for a release authority issued under subsection 13115(2)—the *total release amount stated in the determination referred to in that subsection; or

 (ii) for a release authority issued under subsection 13115(3) or (4)—the amount of tax stated in the assessment referred to in that subsection.

 (2) For the purposes of paragraph (1)(b), disregard an amount stated in another release authority to the extent that a notice given under subsection 13150(2) states that the amount will not be paid.

13125  Contents of a release authority

  Each release authority issued under section 13115 must:

 (a) be issued to a single *superannuation provider; and

 (b) state the amount to be released from each *superannuation interest under the release authority; and

 (c) be dated; and

 (d) contain any other information that the Commissioner considers relevant.

13130  Varying and revoking a release authority

  The Commissioner may vary or revoke a release authority issued under section 13115 at any time before the Commissioner is given a notice under section 13150 relating to the release authority.

Complying with a release authority

13135  Obligations of superannuation providers

 (1) A *superannuation provider issued with a release authority under section 13115 must, within 10 *business days after the release authority is issued (or a further period allowed by the Commissioner), pay to the Commissioner the lesser of:

 (a) the amount stated in the release authority; and

 (b) the sum of the *maximum available release amounts for each *superannuation interest held by the superannuation provider for you in *superannuation plans.

Note 1: Subsection 28895(3) provides for an administrative penalty for failing to comply with this section.

Note 2: For the taxation treatment of the payment, see section 13175.

Exception—defined benefit interests not subject to compulsory release

 (2) However, the *maximum available release amount for a *superannuation interest is not to be included in the sum worked out under paragraph (1)(b) if the interest is a *defined benefit interest.

13140  Voluntary compliance with a release authority relating to defined benefit interests

 (1) A *superannuation provider issued with a release authority under section 13115 may, within 10 *business days after the release authority is issued (or a further period allowed by the Commissioner), pay to the Commissioner the lesser of:

 (a) the amount stated in the release authority; and

 (b) the sum of the *maximum available release amounts for each *defined benefit interest held by the superannuation provider for you in *superannuation plans.

 (2) For the purposes of paragraph (1)(a), reduce the amount mentioned in that paragraph by any amount the provider pays under section 13135 in relation to the release authority.

13145  Meaning of maximum available release amount

  The maximum available release amount for a *superannuation interest at a particular time is the total amount of all the *superannuation lump sums that could be payable from the interest at that time.

13150  Notifying Commissioner

 (1) A *superannuation provider issued with a release authority under section 13115 must notify the Commissioner of a payment made in accordance with this Subdivision.

 (2) A *superannuation provider that:

 (a) has been issued with a release authority under section 13115; and

 (b) is not required to pay an amount under section 13135, or is required under that section to pay an amount less than the amount stated in the release authority;

must notify the Commissioner that the provider is not required to comply with the release authority.

 (3) A notice under this section must be given in the *approved form within the period applying under subsection 13135(1) or 13140(1) for the release authority.

Note: Subsection 28675(1) provides for an administrative penalty for failing to comply with this section.

13155  Notifying you

 (1) The Commissioner must notify you if, in relation to a release authority issued under section 13115 in relation to you, the Commissioner:

 (a) is given a notice from a *superannuation provider under section 13150; or

 (b) does not receive a payment from a superannuation provider of the full amount stated in the release authority within the time mentioned in subsection 13135(1) or 13140(1).

 (2) A notice under subsection (1) must:

 (a) be in writing; and

 (b) identify the *superannuation provider; and

 (c) state how much of the amount stated in the release authority was not paid within the applicable time.

13160  Compensation for acquisition of property

 (1) If the operation of section 13135 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) the Federal Court of Australia; or

 (b) the Supreme Court of a State or Territory;

for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

Consequences of releasing amounts

13165  Entitlement to credits

 (1) If a *superannuation provider pays an amount in relation to a release authority issued under section 13115 in relation to you, you are entitled to a credit equal to that amount.

Note: Division 3 of Part IIB provides for the treatment of credits that you are entitled to under a taxation law.

 (2) The credit arises on the day the Commissioner receives the amount.

Exception for voluntary payments of Division 293 tax debt account

 (3) However, if the amount paid in relation to the release authority relates to an amount of *assessed Division 293 tax that is *deferred to a debt account for a *superannuation interest:

 (a) subsection (1) does not apply in relation to the payment; and

 (b) treat the payment as if it were a voluntary payment under section 13370 in relation to that debt account.

13170  Interest for late payments of money received by the Commissioner in accordance with release authority

 (1) You are entitled to an amount of interest worked out under subsection (2) if:

 (a) the Commissioner is required under Division 3A of Part IIB to refund all or part of a credit you are entitled to under section 13165; and

 (b) the Commissioner does not so refund all or part of that credit within 60 days after receiving the payment that gave rise to the credit.

 (2) The interest is to be calculated:

 (a) on so much of the amount of the credit as the Commissioner fails to refund under that Division; and

 (b) for the period:

 (i) beginning 60 days after the day the Commissioner receives the amount; and

 (ii) ending on the day the Commissioner refunds the amount mentioned in paragraph (1)(a); and

 (c) on a daily basis; and

 (d) at the *base interest rate for the day the interest is calculated.

13175  Income tax treatment of amounts released—proportioning rule does not apply

  Section 307125 of the Income Tax Assessment Act 1997 (the proportioning rule) does not apply to a payment made as required or permitted under this Subdivision.

Note: The income tax treatment of released amounts is also affected by Subdivision 292B, and section 30315, of that Act.

Division 133Division 293 tax

Table of Subdivisions

 Guide to Division 133

133A Deferral determination

133B Debt account

133C Compulsory payment

Guide to Division 133

1331  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 133ADeferral determination

Guide to Subdivision 133A

1335  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

13310 Determination of tax that is deferred to a debt account

13315 Defined benefit tax

13320 How to attribute the defined benefit tax to defined benefit interests

13325 Determination reducing tax deferred to a debt account

13330 General provisions applying to determinations under this Subdivision

Operative provisions

13310  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 13330.

 (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, the *end benefit for the superannuation interest has become payable.

Note: For the meaning of end benefit, see section 133130.

 (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.

13315  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 $250,000 high income threshold: see subsection 29320(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.

13320  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.

13325  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.

13330  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 13310—assessing the amount (whether by way of a first assessment or an amended assessment); or

 (ii) for a determination under section 13325—amending the assessment; and

 (b) give you notice in writing of the determination as soon as practicable after making it.

 (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 13310—the assessment of the amount; or

 (ii) for a determination under section 13325—the amended assessment.

Note: For the period within which objections must be lodged, see section 14ZW.

Subdivision 133BDebt account

Guide to Subdivision 133B

13355  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

13360 Debt account to be kept for deferred tax

13365 Interest on debt account balance

13370 Voluntary payments

13375 Commissioner must notify superannuation provider of debt account

Operative provisions

13360  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.

13365  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 133105(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 13370 because of a *deferral reversal; or

 (ii) because a determination under section 13310 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.

13370  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

 (c) notify you of the revised balance of the debt account.

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

 (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.

13375  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 133CCompulsory payment

Guide to Subdivision 133C

133100  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

133105 Liability to pay debt account discharge liability

133110 When debt account discharge liability must be paid

133115 General interest charge

133120 Meaning of debt account discharge liability

133125 Notice of debt account discharge liability

End benefit

133130 Meaning of end benefit

133135 Superannuation provider may request debt account status

133140 End benefit notice—superannuation provider

133145 End benefit notice—material changes or omissions

Debt account discharge liability

133105  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 13510(1).

Note 2: For paragraph (b), the debt will be recovered from your estate: see Subdivision 260E.

 (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.

133110  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.

133115  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.

133120  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 amount by which the debt account is in debit at the time the *end benefit for the superannuation interest becomes payable.

 (1A) However, if the end benefit cap for the *superannuation interest stated in a notice given to the Commissioner under subsection (2) of this section or section 133140 is less than the amount mentioned in subsection (1) of this section, the debt account discharge liability for the superannuation interest is an amount equal to the end benefit cap.

 (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 employerfinanced component of any part of the *value of the superannuation interest that accrued after 1 July 2012.

Note: If a person is dissatisfied with a notice given to the Commissioner under this subsection, the person may make a complaint under the AFCA scheme (within the meaning of Chapter 7 of the Corporations Act 2001).

 (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.

133125  Notice of debt account discharge liability

 (1) The Commissioner must give you a notice under this section if the *end benefit becomes payable from a *superannuation interest for which the Commissioner keeps a debt account.

 (2) The notice must state that you are liable to pay your *debt account discharge liability for the *superannuation interest and specify:

 (a) the amount of that debt; and

 (b) the day on which that debt is due and payable; and

 (c) whether the amount of that debt is:

 (i) the amount by which the debt account is in debit as mentioned in subsection 133120(1); or

 (ii) the end benefit cap mentioned in subsection 133120(1A).

 (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 133140 (as the case requires).

End benefit

133130  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 *rollover 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(1A) (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.

133135  Superannuation provider may request debt account status

 (1) If:

 (a) a *superannuation provider has been given a notice under section 13375 saying that the Commissioner has started to keep a debt account for a *superannuation interest; and

 (b) the superannuation provider receives a request to pay the *end benefit from the superannuation interest or the end benefit becomes payable from the superannuation interest;

the superannuation provider may, in the *approved form, request the Commissioner to advise as to the status of the debt account.

 (2) If the Commissioner receives a request, the Commissioner must advise the *superannuation provider as soon as practicable whether or not the debt account is in debit.

133140  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) unless subsection (1A) applies—the amount of the end benefit cap mentioned in subsection 133120(2) for the superannuation interest; and

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

Note: If a person is dissatisfied with a notice given to the Commissioner under this subsection, the person may make a complaint under the AFCA scheme (within the meaning of Chapter 7 of the Corporations Act 2001).

 (1A) The notice does not need to state the amount of the end benefit cap if:

 (a) the *superannuation provider has already given the Commissioner notice of the end benefit cap under subsection 133120(2); or

 (b) before the end of the period mentioned in subsection (2), the Commissioner has advised the superannuation provider under subsection 133135(2) that the debt account is not in debit.

 (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 13375 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.

133145  End benefit notice—material changes or omissions

 (1) If an entity that gives the Commissioner a notice under section 133140 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 135Releasing money from superannuation

Table of Subdivisions

 Guide to Division 135

135A When the Commissioner must issue a release authority

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

135C Release of superannuation money under a release authority

Guide to Division 135

1351  What this Division is about

This Division contains rules about release authorities, which allow money to be released from a superannuation plan to pay your debt account discharge liability.

Subdivision 135AWhen the Commissioner must issue a release authority

Guide to Subdivision 135A

1355  What this Subdivision is about

The Commissioner must issue you with a release authority to allow money to be released from a superannuation plan to pay your debt account discharge liability.

Table of sections

Operative provisions

13510 Release authorities

Operative provisions

13510  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:

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 133125

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 13540(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

 (c) contain any other information that the Commissioner considers relevant.

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 135BWhen a release authority can be given to a superannuation provider

Guide to Subdivision 135B

13535  What this Subdivision is about

You may give a release authority to a superannuation provider within 120 days of being issued with it.

Table of sections

Operative provisions

13540 When you may give release authority to superannuation provider

Operative provisions

13540  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 13585.

Note 2: If excess amounts are paid in relation to a release authority:

(a) the excess is assessable income (see section 30420 of the Income Tax Assessment Act 1997); and

(b) you are liable to an administrative penalty (see section 288100 in this Schedule).

 (3) However, a release authority issued under item 3 of the table in subsection 13510(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.

Subdivision 135CRelease of superannuation money under a release authority

Guide to Subdivision 135C

13570  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

13575 Requirement for superannuation provider to release money

13580 Compensation for acquisition of property

13585 Release amount

13590 How the Commissioner applies amounts received under a release authority

13595 Defined benefit interests—releasing amounts to pay debt account discharge liability

135100 Income tax treatment of amounts released—proportioning rule does not apply

Operative provisions

13575  Requirement for superannuation provider to release money

 (1) If:

 (a) a *superannuation provider has been given a release authority in accordance with Subdivision 135B; and

 (b) the amount mentioned in section 13585 (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.

Note 1: Section 28895 provides for an administrative penalty for failing to comply with this section.

Note 2: For the taxation treatment of the payment, see sections 30320 and 30420 of the Income Tax Assessment Act 1997.

Note 3: For reporting obligations on the superannuation provider in these circumstances, see section 39065 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.

13580  Compensation for acquisition of property

 (1) If the operation of section 13575 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.

13585  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 13145.

13590  How the Commissioner applies amounts received under a release authority

  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.

13595  Defined benefit interests—releasing amounts to pay debt account discharge liability

  The exclusion of *defined benefit interests from subsection 13575(4) and paragraph 13585(c) is to be disregarded for a release authority issued under item 3 of the table in subsection 13510(1) (about debt account discharge liability).

135100  Income tax treatment of amounts released—proportioning rule does not apply

  Section 307125 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 30320 and 30420 of that Act.

Division 136Transfer balance cap

Table of Subdivisions

 Guide to Division 136

136A Excess transfer balance determinations

136B Commutation authorities

Guide to Division 136

1361  What this Division is about

If you have excess transfer balance in your transfer balance account, the Commissioner may require you and your superannuation income stream provider to reduce the total amount of your superannuation income streams that are in the retirement phase.

Subdivision 136AExcess transfer balance determinations

Guide to Subdivision 136A

1365  What this Subdivision is about

If your transfer balance account exceeds the transfer balance cap, the excess must be reduced by commuting in full or in part your superannuation income streams that are in the retirement phase.

If you have more than one superannuation income stream, you may choose which one to commute.

Table of sections

Operative provisions

13610 Excess transfer balance determination

13615 Review

13620 Electing to commute a different superannuation income stream

13625 Notifying Commissioner of transfer balance debits

Operative provisions

13610  Excess transfer balance determination

 (1) If you have *excess transfer balance in your *transfer balance account at the end of a day, the Commissioner may make a written determination stating the amount of that excess transfer balance.

Note: It is not necessary for the Commissioner to issue a determination under this subsection if the Commissioner becomes aware that you no longer have an excess transfer balance. You are still liable to pay excess transfer balance tax if no determination is issued: see Subdivision 294F of the Income Tax Assessment Act 1997.

 (2) A determination under this section is an excess transfer balance determination.

 (3) The amount of *excess transfer balance stated in an *excess transfer balance determination is a crystallised reduction amount.

 (4) The Commissioner may amend or revoke an *excess transfer balance determination at any time before a commutation authority relating to the determination is issued under section 13655.

 (5) Notice of a determination given by the Commissioner under this section is prima facie evidence of the matters stated in the notice.

Determination to include default commutation notice

 (6) A determination made under subsection (1) must include a notice:

 (a) stating that, if you do not make an election under section 13620 within the period specified in that section, the Commissioner will issue one or more commutation authorities; and

 (b) specifying:

 (i) the *superannuation income stream provider or providers to whom a commutation authority will be issued; and

 (ii) the *superannuation income stream or streams that the providers will be obliged to commute in full or in part; and

 (iii) if more than one commutation authority will be issued—the amount to be stated in each commutation authority, or the method the Commissioner will use to work out the amount to be stated in each commutation authority.

 (7) A notice included with an *excess transfer balance determination in accordance with subsection (6) is a default commutation notice.

13615  Review

 (1) If you are dissatisfied with an *excess transfer balance determination made in relation to you, you may object against the determination in the manner set out in Part IVC.

 (2) However, for the purposes of Part IVC, the *default commutation notice does not form part of the taxation decision.

13620  Electing to commute a different superannuation income stream

 (1) This section applies to you if:

 (a) you receive an *excess transfer balance determination under section 13610; and

 (b) you are the *retirement phase recipient of 2 or more *superannuation income streams.

 (2) You may elect which of those *superannuation income streams is to be fully or partially commuted for the purpose of reducing the *transfer balance in your *transfer balance account by the *crystallised reduction amount.

Requirements for election

 (3) You make an election under subsection (2) by:

 (a) identifying the *superannuation income stream or streams to be commuted in full or in part and the *superannuation income stream provider for each such stream; and

 (b) if you identify more than one superannuation income stream—stating the amount to be commuted from each such income stream.

 (4) The election must:

 (a) be in the *approved form; and

 (b) be given to the Commissioner within:

 (i) 60 days after the *excess transfer balance determination or amended excess transfer balance determination is issued; or

 (ii) a further period allowed by the Commissioner.

Election is irrevocable

 (5) An election under this section is irrevocable.

13625  Notifying Commissioner of transfer balance debits

 (1) This section applies to you if you have received an *excess transfer balance determination.

 (2) You may notify the Commissioner in the *approved form of the amount of a *transfer balance debit that arises in your *transfer balance account if the debit arises in the period:

 (a) beginning when the determination is made; and

 (b) ending at the earlier of:

 (i) the time you made an election under section 13620; and

 (ii) the end of the period within which an election under section 13620 may be made.

Subdivision 136BCommutation authorities

Guide to Subdivision 136B

13650  What this Subdivision is about

The Commissioner must issue a commutation authority to a superannuation income stream provider, unless you have notified the Commissioner that you have already reduced your excess transfer balance by the crystallised reduction amount.

A superannuation income stream provider will usually be required to commute the superannuation income stream stated in the authority.

Table of sections

Obligations of Commissioner

13655 Issuing of commutation authorities

13660 Varying and revoking a commutation authority

13665 Issuing further commutation authorities

13670 Notifying of noncommutable excess transfer balance

Obligations of superannuation income stream providers

13680 Obligations on superannuation income stream providers

13685 Notifying the Commissioner

13690 Notifying you

Obligations of Commissioner

13655  Issuing of commutation authorities

Commutation authority must be issued if there is a commutable amount

 (1) The Commissioner must issue a commutation authority under this section to one or more *superannuation income stream providers if:

 (a) an *excess transfer balance determination has been issued to you; and

 (b) the excess transfer balance determination has not been revoked; and

 (c) the period mentioned in subsection 13620(4) has ended; and

 (d) an amount (the commutable amount) greater than nil remains after reducing the *crystallised reduction amount by the sum of any *transfer balance debits notified to the Commissioner under section 13625.

Issuing in response to a valid election

 (2) If you have made a valid election under section 13620, the Commissioner must issue a commutation authority under this section to each *superannuation income stream provider identified in your election.

 (3) If the total of the amounts stated in your election under section 13620 falls short of the commutable amount, the Commissioner must also issue a commutation authority to one or more *superannuation income stream providers specified in the *default commutation notice.

Issuing if you do not make a valid election

 (4) If you have not made a valid election under section 13620, the Commissioner must issue a commutation authority to each *superannuation income stream provider specified in the *default commutation notice.

Requirements for commutation authority

 (5) Each commutation authority must:

 (a) specify the *superannuation income stream that the *superannuation income stream provider is to commute, in full or in part; and

 (b) state the amount (the reduction amount) by which the superannuation income stream is to be reduced; and

 (c) be dated; and

 (d) contain any other information that the Commissioner considers relevant.

 (6) The total of all reduction amounts stated in commutation authorities issued under this section relating to an *excess transfer balance determination must not exceed the commutable amount.

13660  Varying and revoking a commutation authority

  The Commissioner may vary or revoke a commutation authority at any time before the Commissioner receives a notice under section 13685 relating to the commutation authority.

13665  Issuing further commutation authorities

 (1) The Commissioner may issue a commutation authority under this section to one or more *superannuation income stream providers under this section if:

 (a) a commutation authority (the original commutation authority) was issued under section 13655; and

 (b) the *superannuation income stream provider to which the original commutation authority was issued:

 (i) paid a *superannuation lump sum that fell short of the reduction amount stated in the original commutation authority; or

 (ii) did not comply with the original commutation authority.

 (2) A commutation authority issued under this section must include the matters set out in subsection 13655(5).

 (3) The Commissioner may issue a commutation authority under this section to any *superannuation income stream provider of a *superannuation income stream of which you are the *retirement phase recipient.

 (4) The total of all reduction amounts stated in commutation authorities issued under this section relating to an *excess transfer balance determination must not exceed the difference between:

 (a) the commutable amount mentioned in subsection 13655(1); and

 (b) the sum of:

 (i) any *superannuation lump sums notified to the Commissioner under section 13685 in respect of the determination; and

 (ii) any *transfer balance debits arising in your *transfer balance account under item 5 of the table in subsection 29480(1) of the Income Tax Assessment Act 1997 because of any original commutation authority.

13670  Notifying of noncommutable excess transfer balance

 (1) The Commissioner must notify you in writing if, at the end of a day after the Commissioner has issued an *excess transfer balance determination to you:

 (a) the sum of all *transfer balance debits arising in your *transfer balance account since the determination was issued falls short of the *crystallised reduction amount; and

 (b) you have *excess transfer balance in your transfer balance account; and

 (c) either:

 (i) the only *superannuation income streams of which you are a *retirement phase recipient are *capped defined benefit income streams; or

 (ii) you are no longer a retirement phase recipient of any superannuation income stream.

Note: A debit arises in your transfer balance account when the Commissioner issues a notice under this section: see item 7 of the table in subsection 29480(1) of the Income Tax Assessment Act 1997.

 (2) A notice under subsection (1) must state the amount of the *excess transfer balance mentioned in paragraph (1)(b).

Obligations of superannuation income stream providers

13680  Obligations on superannuation income stream providers

 (1) A *superannuation income stream provider issued with a commutation authority under this Subdivision must, within 60 days after the commutation authority is issued, pay by way of commutation of the specified *superannuation income stream, a *superannuation lump sum equal to the lesser of:

 (a) the reduction amount stated in the commutation authority; and

 (b) the *maximum available release amount for the *superannuation interest that supports the specified superannuation income stream.

Exception for capped defined benefit income streams

 (2) Despite subsection (1), if the specified *superannuation income stream is a *capped defined benefit income stream, the *superannuation income stream provider may choose not to comply with the commutation authority.

Exception for deceased member

 (3) Despite subsection (1), if the *retirement phase recipient has died, the *superannuation income stream provider may choose not to comply with the commutation authority.

13685  Notifying the Commissioner

 (1) A *superannuation income stream provider issued with a commutation authority under this Subdivision must notify the Commissioner of the amount of a *superannuation lump sum paid in accordance with the commutation authority.

 (2) If a *superannuation income stream provider chooses under subsection 13680(2) or (3) not to comply with the commutation authority, the provider must notify the Commissioner of that choice.

 (3) A notice under this section must be in the *approved form and must be given within 60 days after the commutation authority is issued.

Note: Section 28675 provides an administrative penalty for breach of this subsection.

13690  Notifying you

 (1) A *superannuation income stream provider issued with a commutation authority under this Subdivision must notify you if the superannuation income stream provider:

 (a) pays a *superannuation lump sum in accordance with the commutation authority; or

 (b) chooses under subsection 13680(2) not to comply with the commutation authority.

 (2) A notice under this section must be in the *approved form and must be given within 60 days after the commutation authority is issued.

Note: Section 28675 provides an administrative penalty for breach of this subsection.

Division 138First home super saver scheme

Table of Subdivisions

 Guide to Division 138

138A First home super saver determination

138B FHSS maximum release amount

Guide to Division 138

1381  What this Division is about

If you have had voluntary contributions into superannuation, you may be eligible to have those contributions and their associated earnings released for the purposes of purchasing or constructing your first home.

Subdivision 138AFirst home super saver determination

Guide to Subdivision 138A

1385  What this Subdivision is about

If you satisfy particular criteria, you may request that the Commissioner make a determination stating your FHSS maximum release amount and the components that make up that amount.

Table of sections

Operative provisions

13810 First home super saver determination

13815 Review

Operative provisions

13810  First home super saver determination

 (1) A first home super saver determination is a written determination stating:

 (a) your *FHSS maximum release amount; and

 (b) the amount of each of the following components that make up your FHSS maximum release amount:

 (i) your *concessional contributions;

 (ii) your *nonconcessional contributions;

 (iii) your associated earnings.

 (2) You may request the Commissioner, in the *approved form, to make a *first home super saver determination if:

 (a) you have never held:

 (i) a freehold interest in real property in Australia; or

 (ii) a lease of land in Australia (including a renewal or extension of such a lease) as described in paragraph 104115(1)(b) of the Income Tax Assessment Act 1997; or

 (iii) a company title interest (within the meaning of Part X of the Income Tax Assessment Act 1936) in land in Australia; and

 (b) you are 18 years or older; and

 (c) you have not previously requested a release authority under Division 131 in relation to a first home super saver determination that has been made in relation to you.

 (2A) If the Commissioner determines that you have suffered a financial hardship, you are taken to have satisfied paragraph (2)(a).

 (2B) The regulations may specify the circumstances in which the Commissioner is to determine that a person has suffered a financial hardship for the purposes of subsection (2A).

 (3) If you make a valid request under subsection (2), the Commissioner must make a *first home super saver determination in relation to you.

 (4) The Commissioner may amend or revoke a *first home super saver determination at any time before a release authority relating to the determination is issued under Division 131.

 (5) Notice of a determination given by the Commissioner under this section is prima facie evidence of the matters stated in the notice.

13815  Review

  If you are dissatisfied with:

 (a) a *first home super saver determination in relation to you; or

 (b) a decision the Commissioner makes not to make a determination under subsection 13810(2A);

you may object against the determination, or the decision, as the case requires, in the manner set out in Part IVC.

Subdivision 138BFHSS maximum release amount

Guide to Subdivision 138B

13820  What this Subdivision is about

Your FHSS maximum release amount comprises your eligible nonconcessional contributions, 85% of your eligible concessional contributions, and your associated earnings.

There are limits on the amount of contributions that may be eligible for release.

Table of sections

Operative provisions

13825 FHSS maximum release amount

13830 FHSS releasable contributions amount

13835 Eligible contributions

13840 Associated earnings

Operative provisions

13825  FHSS maximum release amount

  Your FHSS maximum release amount is the sum of:

 (a) your *FHSS releasable contributions amount worked out under section 13830; and

 (b) your associated earnings worked out under section 13840.

13830  FHSS releasable contributions amount

 (1) Your FHSS releasable contributions amount is the sum of the following amounts for each *financial year that starts on 1 July 2017 or a later 1 July:

 (a) your *FHSS eligible nonconcessional contributions for the financial year;

 (b) 85% of your *FHSS eligible concessional contributions for the financial year.

Order of counting contributions

 (2) In determining which contributions are to be counted towards your *FHSS releasable contributions amount, contributions are to be counted in the order in which they were made (from earliest to latest).

 (3) For subsection (2):

 (a) if an *FHSS eligible concessional contribution, and an *FHSS eligible nonconcessional contribution, is made in respect of you at the same time, the FHSS eligible nonconcessional contribution is taken to have been made first; and

 (b) if, for a particular *financial year, you personally made both *FHSS eligible concessional contributions and *FHSS eligible nonconcessional contributions, the FHSS eligible nonconcessional contributions are taken to have been made first.

Example: For paragraph (b), in the 20182019 financial year, you made voluntary contributions of $1,000 each fortnight, up to a total of $25,000. At the end of the financial year, you claim a deduction for $15,000 (leaving $10,000 of the contributions as nonconcessional contributions).

 If all of the nonconcessional contributions are eligible to be released under section 13835, the first 10 contributions made for the financial year are taken to have been the nonconcessional contributions, and the later contributions are taken to be the concessional contributions.

13835  Eligible contributions

Limits on amount of eligible contributions

 (1) For the purposes of this Subdivision:

 (a) the maximum amount of contributions that may be eligible to be released is $30,000; and

 (b) the maximum amount of contributions made in a particular *financial year that may be eligible to be released is $15,000.

Eligible contributions

 (2) A *concessional contribution, or *nonconcessional contribution, for a *financial year is not eligible to be released unless it:

 (a) is made in respect of you in the financial year; and

 (b) is:

 (i) an employer contribution that is not a mandated employer contribution (within the meaning of Part 5 of the Superannuation Industry (Supervision) Regulations 1994); or

 (ii) a member contribution (within the meaning of that Part) that is made by you;

  other than a contribution to the extent it is required to be made because of a law of the Commonwealth or of a State or Territory, or the rules of the relevant *superannuation fund; and

 (c) is not a contribution made in respect of a *defined benefit interest; and

 (d) is not a contribution to a *constitutionally protected fund.

 (3) If:

 (a) you have *excess concessional contributions for a *financial year (your excess amount); and

 (b) your excess amount is greater than your *concessional contributions for the financial year that are not eligible to be released under subsection (2) (your noneligible contributions);

concessional contributions that are equal to the difference between your excess amount and your noneligible contributions are not eligible to be released.

 (4) If:

 (a) you have *nonconcessional contributions for the *financial year that exceed your nonconcessional contributions cap for the financial year (your excess amount); and

 (b) your excess amount is greater than your nonconcessional contributions for the financial year that are not eligible to be released under subsection (2) (your noneligible contributions);

nonconcessional contributions that are equal to the difference between your excess amount and your noneligible contributions are not eligible to be released.

 (5) For the purposes of this section, disregard paragraph 29290(1)(b) of the Income Tax Assessment Act 1997.

Note: Under paragraph 29290(1)(b) of the Income Tax Assessment Act 1997, your nonconcessional contributions for a financial year would include the amount of your excess concessional contributions (if any) for the financial year.

13840  Associated earnings

 (1) You are taken to have associated earnings equal to the sum of the amounts worked out under subsection (2) for each contribution counted in your *FHSS releasable contributions amount.

 (2) The amount for a contribution is equal to the sum (rounded down to the nearest dollar) of the amounts worked out under the following formula for each of the days during the period mentioned in subsection (3).

where:

amount of contribution means the amount of the contribution that is counted in your *FHSS releasable contributions amount.

shortfall interest charge rate means the rate, worked out under subsection 280105(2), for the day.

sum of earlier daily proxy amounts means the sum of the amounts worked out for the contribution under the formula for each of the earlier days (if any) during the period for the contribution.

 (3) The period starts:

 (a) if the contribution is made in the *financial year starting on 1 July 2017—on 1 July 2017; and

 (b) if the contribution is made in the financial year starting on 1 July 2018, or a later financial year—on the first day of the month in which the contribution is made or taken to have been made (see subsection 13830(2));

and ends on the day the Commissioner makes the *first home super saver determination for which the associated earnings are being worked out.

Part 330Diverted profits tax

Division 145Assessments of diverted profits tax

Guide to Division 145

1451  What this Division is about

The Commissioner can make an assessment of diverted profits tax. The entity that is the subject of the assessment can appeal to the Federal Court against the Commissioner’s decision to make the assessment. Such an appeal can be made generally no earlier than 12 months after the day on which the Commissioner first gives notice of the assessment to the entity.

Table of sections

1455 DPT assessments—modified application of Division 155

14510 When DPT assessments can be made

14515 Period of review of DPT assessments

14520 Review of assessments

14525 Restricted DPT evidence

1455  DPT assessments—modified application of Division 155

  In applying Division 155 in relation to an amount of *diverted profits tax:

 (a) apply the provisions of that Division with the modifications set out in sections 14510 to 14525; and

 (b) disregard sections 15515, 15520, 15525, 15530, 15540, 15545, 15550, 15555 and 15570.

14510  When DPT assessments can be made

  Despite subsection 1555(1), the Commissioner can make an assessment (the DPT assessment) of the amount of *diverted profits tax only at a time in the period:

 (a) starting on the day on which the Commissioner first gives the entity that is the subject of the assessment a notice of assessment under Part IV of the Income Tax Assessment Act 1936 for the income year mentioned in paragraph 177J(1)(a) of the Income Tax Assessment Act 1936 (as that paragraph applies in relation to the amount of diverted profits tax); and

 (b) ending on the last day of the period of 7 years starting the day after that day.

14515  Period of review of DPT assessments

 (1) Despite subsection 15535(2), the period of review, for the *DPT assessment, is:

 (a) the period:

 (i) starting on the day on which the Commissioner first gives notice of the assessment to the entity that is the subject of the assessment under section 15510; and

 (ii) ending on the last day of the period of 12 months starting the day after that day; or

 (b) if:

 (i) the entity, by written notice given to the Commissioner, specifies a shorter period in accordance with subsection (2); and

 (ii) the Federal Court of Australia has not made an order under subsection (3) in respect of the written notice;

  that shorter period; or

 (c) if the period of review is extended under subsection 15535(3) or (4)—the period as so extended.

 (2) For the purposes of subparagraph (1)(b)(i), the shorter period must:

 (a) start on the day mentioned in subparagraph (1)(a)(i); and

 (b) end on a day that is at least 30 days after the day on which the entity gives the written notice to the Commissioner.

 (3) For the purposes of subparagraph (1)(b)(ii), the Federal Court of Australia may make an order under this subsection in respect of the written notice if:

 (a) the Commissioner has started to examine the entity’s affairs in relation to the assessment; and

 (b) the Commissioner has not completed the examination within the shorter period specified in the written notice; and

 (c) the Commissioner, within 30 days after the day on which the entity gives the written notice to the Commissioner, applies to the Court for the order; and

 (d) the Court is satisfied that it was not reasonably practicable, or it was inappropriate, for the Commissioner to complete the examination within the shorter period specified in the written notice, because of:

 (i) any action taken by the entity; or

 (ii) any failure by the entity to take action that it would have been reasonable for the entity to take.

 (4) Despite subsection 15535(5), in relation to the *DPT assessment:

 (a) an order may be made under subsection 15535(3) only once; and

 (b) consent may be given under subsection 15535(4) only once.

14520  Review of assessments

 (1) Section 15590 does not apply during the *period of review mentioned in section 14515.

 (2) In applying Part IVC of this Act as a result of section 15590 after the end of that *period of review:

 (a) have regard only to the provisions of that Part mentioned in subsection (3); and

 (b) apply those provisions with the modifications set out in subsection (4); and

 (c) disregard the other provisions of that Part; and

 (d) apply section 14525 (restricted DPT evidence).

 (3) For the purposes of paragraph (2)(a), the provisions of that Part are as follows:

 (a) sections 14ZL and 14ZP;

 (b) subsection 14ZR(1);

 (c) subsection 14ZZ(1);

 (d) Division 5 (apart from section 14ZZS).

 (4) For the purposes of paragraph (2)(b), the modifications are as follows:

 (a) treat the Commissioner’s decision to make the *DPT assessment as an objection decision;

 (b) treat subsection 14ZZ(1) as reading “The entity that is the subject of the DPT assessment may appeal to the Federal Court of Australia against the objection decision.”;

 (c) treat the reference in section 14ZZN to “within 60 days after the person appealing is served with notice of the decision” as being a reference to “within 60 days after the end of the period of review mentioned in section 14515 in Schedule 1”;

 (d) disregard paragraph 14ZZO(a);

 (e) treat paragraph 14ZZO(b) as reading “the appellant has the burden of proving that the DPT assessment is excessive or otherwise incorrect and what the DPT assessment should have been”;

 (f) treat the reference in section 14ZZR to a taxation decision as being a reference to the Commissioner’s decision to make the DPT assessment.

14525  Restricted DPT evidence

 (1) *Restricted DPT evidence is not admissible in evidence in proceedings under Part IVC on an appeal to the Federal Court of Australia related to the *DPT assessment.

 (2) Restricted DPT evidence means information or documents that:

 (a) the entity that is the subject of the *DPT assessment (or an associate (within the meaning of section 318 of the Income Tax Assessment Act 1936) of that entity), had in its custody or under its control at a time before, during or after the *period of review; and

 (b) the Commissioner did not have in his or her custody or under his or her control at any time in the period of review.

 (3) Subsection (1) does not prevent *restricted DPT evidence from being admissible in evidence in the proceedings if:

 (a) the Commissioner consents to the admission of the restricted DPT evidence in accordance with subsection (4); or

 (b) the court in which the proceedings take place considers that the admission of the restricted DPT evidence is necessary in the interests of justice; or

 (c) the restricted DPT evidence is expert evidence that:

 (i) comes into existence after the *period of review; and

 (ii) is based on evidence that the Commissioner had in his or her custody or under his or her control at any time in the period of review.

 (4) For the purposes of paragraph (3)(a), the Commissioner may give the consent if the Commissioner considers that it is reasonable to do so.

 (5) In making a decision under paragraph (3)(a) or (b), the Commissioner or the court must have regard to:

 (a) whether, if the *restricted DPT evidence were not admissible in evidence in the proceedings, the remaining information or documents that are relevant to the proceedings are, or are likely to be, misleading; and

 (b) whether it would have been reasonable for the entity that is the subject of the *DPT assessment (or the associate of that entity mentioned in paragraph (2)(a)) to have given the Commissioner the restricted DPT evidence within the *period of review.

 (6) The Commissioner must give a consent for the purposes of paragraph (3)(a) if failure to do so would have the effect, for the purposes of the Constitution, of making any tax or penalty incontestable.

 (7) A consent for the purposes of paragraph (3)(a) is to be in writing.

 (8) If the Commissioner gives a consent for the purposes of paragraph (3)(a), the Commissioner must give the entity that is the subject of the *DPT assessment a copy of the consent as soon as practicable afterwards.

Chapter 4Generic assessment, collection and recovery rules

Part 41Returns and assessments

Division 155Assessments

Table of Subdivisions

 Guide to Division 155

155A Making assessments

155B Amending assessments

155C Validity and review of assessments

155D Miscellaneous

Guide to Division 155

1551  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 155AMaking assessments

Table of sections

1555 Commissioner may make assessment

15510 Commissioner must give notice of assessment

15515 Selfassessment

15520 Assessment of indirect tax on importations and customs dealing

15525 Special assessment

15530 Delays in making assessments

1555  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 155B.

Note 2: An assessment can be reviewed: see Subdivision 155C.

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

 (a) a *net amount;

 (b) a *net fuel amount;

 (c) an amount of *indirect tax not included in an amount covered by another paragraph of this subsection;

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

 (f) an amount of *Division 293 tax payable for an income year in relation to an individual’s *taxable contributions for the income year;

 (g) an amount of *excess exploration credit tax for an income year;

 (h) an amount of *excess transfer balance tax payable for an *excess transfer balance period;

 (i) an amount of levy under the Major Bank Levy Act 2017 for a *quarter;

 (j) an amount of *diverted profits tax;

Note: This Division has a modified operation in relation to diverted profits tax (see Division 145).

 (k) an amount of *first home super saver tax for an income year.

15510  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 15580.

 (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.

15515  Selfassessment

 (1) The Commissioner is treated as having made an assessment under section 1555 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:

 

Selfassessed 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 418160 for the income year

5

an amount of levy under the Major Bank Levy Act 2017 for a *quarter

the Commissioner

return given under section 1155 for the quarter

Note: There is no selfassessment of Division 293 tax, excess transfer balance tax or first home super saver 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 15510 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).

15520  Assessment of indirect tax on importations and customs dealing

 (1) The Commissioner is treated as having made an assessment under section 1555 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 selfassessed clearance declaration (within the meaning of the Customs Act 1901)

a *selfassessed 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 15510 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).

15525  Special assessment

  For the purposes of making, under section 1555, 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.

15530  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 15510.

 (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 to the following *assessable amounts:

 (a) the *Division 293 tax payable by you in relation to an income year in relation to your *taxable contributions for the income year;

 (b) the *excess transfer balance tax payable by you for an *excess transfer balance period;

 (c) the *first home super saver tax payable by you for an income year.

Subdivision 155BAmending assessments

Table of sections

When Commissioner may amend assessments

15535 Amendment during period of review

15540 Amendment during period of review—certain applications taken to be notices

15545 Amendment on application

15550 Amendment to give effect to private ruling

15555 Amendment to give effect to certain antiavoidance declarations

15560 Amendment because of review, objection or fraud

Special rules about amending amended assessments

15565 Amending amended assessments

15570 Refreshed period of review

General rules

15575 Refunds of amounts overpaid

15580 Amended assessments are assessments

When Commissioner may amend assessments

15535  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 155C.

Note 2: This section also applies to amended assessments: see section 15580. However, there are limits on how amended assessments can be amended: see sections 15565 and 15570.

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 15510; 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

 (c) the Commissioner, during the period of review, requests you to consent to extending the period of review.

 (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.

15540  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 15510, if:

 (a) the application is in the *approved form; and

 (b) the Commissioner makes the amendment:

 (i) to give effect to the decision on the application; and

 (ii) during the *period of review for the assessment; and

 (c) the amendment the Commissioner makes is the entire amendment for which you applied, and nothing else.

 (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 *selfassessed 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.

15545  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 15510: see section 15580.

15550  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.

15555  Amendment to give effect to certain antiavoidance declarations

  The Commissioner may amend an assessment of an *assessable amount at any time, if:

 (a) the Commissioner makes a declaration under subsection 16545(3) of the *GST Act (about compensating adjustments for antiavoidance declarations); or

 (b) the Commissioner makes a declaration under subsection 7545(3) of the Fuel Tax Act 2006 (about compensating adjustments for antiavoidance declarations).

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

15560  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

 (c) if he or she is of the opinion there has been fraud or evasion.

Special rules about amending amended assessments

15565  Amending amended assessments

  The Commissioner cannot amend an amended assessment of an *assessable amount under section 15535 if the *period of review for the assessment has ended.

Note: The Commissioner can amend amended assessments at any time under sections 15545 to 15560.

15570  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 15535 about a particular.

 (2) Despite section 15565, 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 15510; and

 (b) the later amendment is about the particular mentioned in subsection (1) of this section; and

 (c) the Commissioner has not previously amended the assessment under this section about that particular.

General rules

15575  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 *taxrelated 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 *taxrelated 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 *taxrelated 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.

15580  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 15510. Under section 15540, an application for an amendment is treated as being a notice of the amendment in certain circumstances.

Subdivision 155CValidity and review of assessments

Table of sections

15585 Validity of assessment

15590 Review of assessments

15585  Validity of assessment

  The validity of any assessment of an *assessable amount is not affected by noncompliance with the provisions of this Act or of any other *taxation law.

15590  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: If an individual is dissatisfied with a statement given to the Commissioner by a superannuation provider under section 3905 in this Schedule, the individual may make a complaint under the AFCA scheme (within the meaning of Chapter 7 of the Corporations Act 2001).

Subdivision 155DMiscellaneous

Table of sections

15595 Entities

15595  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 415Collection and recovery of taxrelated liabilities and other amounts

Division 250Introduction

Table of Subdivisions

250A Guide to Part 415

250B Object of this Part

Subdivision 250AGuide to Part 415

2501  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 taxrelated 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

2505 Some important concepts about taxrelated liabilities

25010 Summary of taxrelated liabilities

2505  Some important concepts about taxrelated liabilities

 (1) A taxrelated liability may arise for an entity before it becomes due and payable by that entity.

Example: Under Part 25, an entity’s liability to pay a withheld amount may arise before the amount is due and payable.

 (2) For some taxrelated 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 taxrelated liability may become payable by an entity (for example, when the amount has been assessed) before it is due and payable by that entity.

25010  Summary of taxrelated liabilities

 (1) The following table is an index of each taxrelated 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 255B.

Note 2: Members and former members of consolidated groups and MEC groups may be jointly and severally liable to pay certain taxrelated liabilities related to the group’s activities (see Division 721 of the Income Tax Assessment Act 1997).

 

Taxrelated liabilities under the Income Tax Assessment Act 1936

Item

Topic

Provision

5

trustee beneficiary nondisclosure 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

former subsection 163A(3)

70

excessive tax offset refunds

172A(2)

80

diverted profits tax

subsection 177P(3)

85

shortfall interest charge for diverted profits tax

section 177R

90

family trust distribution tax

27175 in Schedule 2F

100

interest payable under section 102AAM (about distributions from nonresident trust estates)

55 of the Income Tax Assessment Act 1997

 (2) The following table is an index of each taxrelated 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 255B.

Note 2: Members and former members of consolidated groups and MEC groups may be jointly and severally liable to pay certain taxrelated liabilities related to the group’s activities (see Division 721 of the Income Tax Assessment Act 1997).

Note 3: Companies that are or were members of the same whollyowned group as an NZ franking company may be jointly and severally liable to pay certain taxrelated 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 Notforprofits Commission Act 2012, and related general interest charge, are treated in the same way as taxrelated liabilities: see subsection 17570(2) of that Act.

Note 5: A liability for a fee that is due and payable under subsection 113(5) of the Foreign Acquisitions and Takeovers Act 1975 is a taxrelated liability if the power of the Treasurer to recover the fee under that subsection is delegated to the Commissioner of Taxation under section 137 of that Act (see subsections 138(1) and (2) of that Act).

Taxrelated liabilities under other legislation

Item

Topic

Provision

Act

5

assessed net amount, including amounts in respect of luxury car tax and wine equalisation tax

333, 335, 355(2)

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

10

amount of assessed GST on importations

3315

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

12A

assessed GST on supplies made in settlement of claims under insurance policies

7890

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

12B

assessed GST on supplies made in satisfaction of debts

10520

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

13

repayments of amounts paid under tourist refund scheme

16810

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

15

amount of assessed luxury car tax on importation

1320

A New Tax System (Luxury Car Tax) Act 1999

16

excess luxury car tax credits

1715

A New Tax System (Luxury Car Tax) Act 1999

18

excess wine tax credits

1725

A New Tax System (Wine Equalisation Tax) Act 1999

20

amount of assessed wine tax on customs dealings

235

A New Tax System (Wine Equalisation Tax) Act 1999

21

repayments of amounts paid under tourist refund scheme

2510

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

24D

fee for an action that does not relate to an application or a notice

113(5)

Foreign Acquisitions and Takeovers Act 1975 (but see note 5 to this subsection)

24E

vacancy fee

115F

Foreign Acquisitions and Takeovers Act 1975

25

fringe benefits tax

90

Fringe Benefits Tax Assessment Act 1986

35

fringe benefits tax instalments

103

Fringe Benefits Tax Assessment Act 1986

36

assessed net fuel amount

615(2), 6110

Fuel Tax Act 2006

36A

compulsory repayment amount under the Higher Education Support Act 2003

55

Income Tax Assessment Act 1997

36AA

compulsory VETSL repayment amount under the VET Student Loans Act 2016

55

Income Tax Assessment Act 1997

36B

compulsory SSL repayment amount under the Social Security Act 1991

55

Income Tax Assessment Act 1997

36C

compulsory ABSTUDY SSL repayment amount under the Student Assistance Act 1973

55

Income Tax Assessment Act 1997

36D

compulsory TSL repayment amount under the Trade Support Loans Act 2014

55

Income Tax Assessment Act 1997

37

income tax

55

Income Tax Assessment Act 1997

37AA

shortfall interest charge on income tax

510

Income Tax Assessment Act 1997

37AB

shortfall interest charge on excess nonconcessional contributions tax

510

Income Tax Assessment Act 1997

37AC

shortfall interest charge on Division 293 tax

510

Income Tax Assessment Act 1997

37AD

shortfall interest charge on excess concessional contributions charge

510

Income Tax Assessment Act 1997

37A

untainting tax

19770

Income Tax Assessment Act 1997

38

franking tax

214150(1), (2), (3) and (4)

Income Tax Assessment Act 1997

38B

excess nonconcessional contributions tax

292385

Income Tax Assessment Act 1997

38BB

Division 293 tax

29365 and 29370

Income Tax Assessment Act 1997

38BC

excess transfer balance tax

294240 and 294245

Income Tax Assessment Act 1997

38BD

first home super saver tax

31365 and 31370

Income Tax Assessment Act 1997

38D

excess exploration credit tax

418155

Income Tax Assessment Act 1997

39

TSA liability

72130

Income Tax Assessment Act 1997

39A

managed investment trust withholding tax

840810(1)

Income Tax Assessment Act 1997

39AA

Seasonal Labour Mobility Program withholding tax

840910

Income Tax Assessment Act 1997

39B

managed investment trust withholding tax

840810(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

28218

Private Health Insurance Act 2007

46

amount of advance to be repaid

13

Product Grants and Benefits Administration Act 2000

47

amount payable as a result of an amended assessment

20

Product Grants and Benefits Administration Act 2000

48

penalty under section 35

36

Product Grants and Benefits Administration Act 2000

50

superannuation contributions surcharge

15(3)

Superannuation Contributions Tax (Assessment and Collection) Act 1997

55

superannuation contributions surcharge

15(8)

Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997

60

superannuation guarantee charge

46

Superannuation Guarantee (Administration) Act 1992

65

additional superannuation guarantee charge

47

Superannuation Guarantee (Administration) Act 1992

67

Superannuation (Self Managed Funds) Levy

15DB

Superannuation (Self Managed Superannuation Funds) Taxation Act 1987

67A

payment of unclaimed money to the Commissioner

17

Superannuation (Unclaimed Money and Lost Members) Act 1999

67B

payment from Commissioner that cannot be credited

18C

Superannuation (Unclaimed Money and Lost Members) Act 1999

68

payment in respect of a superannuation interest to the Commissioner

20F

Superannuation (Unclaimed Money and Lost Members) Act 1999

69

repayment of Commissioner’s payment

20M

Superannuation (Unclaimed Money and Lost Members) Act 1999

69AA

payment of value of inactive lowbalance accounts to the Commissioner

20QD

Superannuation (Unclaimed Money and Lost Members) Act 1999

69AB

payment from Commissioner that cannot be credited

20QL

Superannuation (Unclaimed Money and Lost Members) Act 1999

69A

payment of value of lost member accounts to the Commissioner

24E

Superannuation (Unclaimed Money and Lost Members) Act 1999

69B

payment from Commissioner that cannot be credited

24L

Superannuation (Unclaimed Money and Lost Members) Act 1999

69BA

payment from Commissioner that cannot be credited

24NB

Superannuation (Unclaimed Money and Lost Members) Act 1999

70

general interest charge

8AAE

Taxation Administration Act 1953

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

1455 in Schedule 1

Taxation Administration Act 1953

100

TFN withholding tax (ESS)

14155 in Schedule 1

Taxation Administration Act 1953

101

payment of amount to Commissioner

14200 or 14205 in Schedule 1

Taxation Administration Act 1953

105

payment of withheld amount to Commissioner

1675 in Schedule 1

Taxation Administration Act 1953

110

PAYG withholding noncompliance tax

18145 in Schedule 1

Taxation Administration Act 1953

115

quarterly PAYG instalment

4561 in Schedule 1

Taxation Administration Act 1953

115A

monthly PAYG instalment

4567 in Schedule 1

Taxation Administration Act 1953

120

annual PAYG instalment

4570 in Schedule 1

Taxation Administration Act 1953

125

general interest charge on shortfall in quarterly instalment worked out on basis of varied rate

45230(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

45232 in Schedule 1

Taxation Administration Act 1953

135

general interest charge on shortfall in annual instalment

45235(5) in Schedule 1

Taxation Administration Act 1953

135Q

excess concessional contributions charge

9520 in Schedule 1

Taxation Administration Act 1953

135R

amount in accordance with excess superannuation contributions release authority

13135 in Schedule 1

Taxation Administration Act 1953

136

amount of major bank levy

11510 in Schedule 1

Taxation Administration Act 1953

136A

debt account discharge liability

133105 in Schedule 1

Taxation Administration Act 1953

137

amount to be recovered from a debtor under a registered foreign revenue claim

26330 in Schedule 1

Taxation Administration Act 1953

138

estimate of payable amounts

26820 in Schedule 1

Taxation Administration Act 1953

139

penalty under Subdivision 269B

26920 in Schedule 1

Taxation Administration Act 1953

140

administrative penalties

29815 in Schedule 1

Taxation Administration Act 1953

142

cash flow boost overpayments

subsection 9(3)

Boosting Cash Flow for Employers (Coronavirus Economic Response Package) Act 2020

143

overpayments of Coronavirus economic response payments

subsection 9(3)

Coronavirus Economic Response Package (Payments and Benefits) Act 2020

Subdivision 250BObject of this Part

25025  Object

  The object of this Part is to ensure that unpaid amounts of *taxrelated liabilities and other related amounts are collected or recovered in a timely manner.

Division 255General rules about collection and recovery

Table of Subdivisions

255A Taxrelated liabilities

255B Commissioner’s power to vary payment time

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

255D Security deposits

Subdivision 255ATaxrelated liabilities

Table of sections

2551 Meaning of taxrelated liability

2555 Recovering a taxrelated liability that is due and payable

2551  Meaning of taxrelated liability

 (1) A taxrelated 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 25010 for an index of taxrelated liabilities.

Note 2: A taxation law, or a provision of it, may be excluded from being applied to this Part. See section 26565.

 (2) A civil penalty under Division 290 of this Schedule or Part 5 of the Tax Agent Services Act 2009 is not a taxrelated liability.

2555  Recovering a taxrelated liability that is due and payable

 (1) An amount of a *taxrelated 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 *taxrelated liability that remains unpaid after it has become due and payable.

Note: The tables in section 25010 set out each provision that specifies when an amount of a taxrelated liability becomes due and payable. The Commissioner may vary that time under Subdivision 255B.

Subdivision 255BCommissioner’s power to vary payment time

Table of sections

25510 To defer the payment time

25515 To permit payments by instalments

25520 To bring forward the payment time in certain cases

25510  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 *taxrelated 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 515(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 *taxrelated 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 515(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 38855 allows the Commissioner to defer the time for giving an approved form.

25515  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 *taxrelated 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 25510 or 25520.

25520  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 *taxrelated liability becomes due and payable by you, the Commissioner may bring that time forward. If the Commissioner does so, that time is varied accordingly.

Note: General interest charge or any other relevant penalty, if applicable for any unpaid amount of the liability, will begin to accrue from the time as varied. See, for example, paragraph 515(a) of the Income Tax Assessment Act 1997.

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

Subdivision 255CService of documents if person absent from Australia or cannot be found

Guide to Subdivision 255C

25535  What this Subdivision is about

This Subdivision deals with the service of documents on people who are absent from Australia or cannot be found.

Table of sections

Operative provisions

25540 Service of documents if person absent from Australia or cannot be found

Operative provisions

25540  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 *taxrelated 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) If the Commissioner, after making reasonable inquiries, is satisfied that the person has an address in a foreign country, a constituent part of a foreign country or a foreign territory (an overseas address), the Commissioner may, without the court’s leave, serve the document on the person at that overseas address in accordance with an agreement between Australia and:

 (a) a foreign country or a constituent part of a foreign country; or

 (b) a foreign territory;

that deals with the service of documents on tax matters.

Subdivision 255DSecurity deposits

Table of sections

255100 Commissioner may require security deposit

255105 Notice of requirement to give security

255110 Offence

255115 Order to comply with requirement

255120 Offence

255100  Commissioner may require security deposit

 (1) The Commissioner may require you to give security for the due payment of an existing or future *taxrelated 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 taxrelated 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 taxrelated liability.

255105  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 255100, 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

 (c) set out the amount of the security; and

 (d) describe the means by which you are required to give the security under subsection 255100(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 *taxrelated 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 255100.

255110  Offence

  You commit an offence if:

 (a) the Commissioner requires you to give security under section 255100; and

 (b) you fail to give that security as required.

Penalty: 100 penalty units.

255115  Order to comply with requirement

 (1) The Federal Court of Australia may, on the application of the Commissioner, order you to comply with a requirement to give security under section 255100, if the Commissioner has given you notice of the requirement under subsection 255105(1).

 (2) If the Court makes an order under subsection (1), the Court may also order you to comply with such other requirements made, or that could be made, in relation to you under the taxation law as the Court considers necessary to ensure the effectiveness of the requirement referred to in that subsection.

 (3) An order under subsection (1) or (2) may require you to comply with the requirement on or before a day specified in the order.

 (4) If an order under subsection (1) or (2) is not given to you orally by the court, the proper officer of the court must cause a copy of the order to be served on you in the prescribed manner, or otherwise as may be ordered by the court.

255120  Offence

 (1) You commit an offence if:

 (a) you are subject to an order under subsection 255115(1) or (2); and

 (b) you fail to comply with the order.

Penalty: 50 penalty units or imprisonment for 12 months, or both.

 (2) An offence against subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

 (3) Subsection (1) does not apply to the extent that you are not capable of complying with the order.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

Division 260Special rules about collection and recovery

Table of Subdivisions

 Guide to Division 260

260A From third party

260B From liquidator

260C From receiver

260D From agent winding up business for foreign resident principal

260E From deceased person’s estate

Guide to Division 260

2601  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 260A, which covers a wider range of amounts, this Division primarily deals with amounts of taxrelated liabilities.

Subdivision 260AFrom third party

Table of sections

2605 Commissioner may collect amounts from third party

26010 Notice to Commonwealth, State or Territory

26015 Indemnity

26020 Offence

2605  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 *taxrelated liability;

 (b) a judgment debt for a *taxrelated liability;

 (c) costs for such a judgment debt;

 (d) an amount that a court has ordered the debtor to pay to the Commissioner following the debtor’s conviction for an offence against a *taxation law.

Commissioner may give notice to an entity

 (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

 (c) holds the money on account of some other entity for payment to the debtor; or

 (d) has authority from some other entity to pay the money to the debtor.

The third party is so taken to owe the money to the debtor even if:

 (e) the money is not due, or is not so held, or payable under the authority, unless a condition is fulfilled; and

 (f) the condition has not been fulfilled.

How much is payable under the notice

 (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.

Settingoff 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.

26010  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).

26015  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.

26020  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 260BFrom liquidator

Table of sections

26040 Subdivision does not apply to superannuation guarantee charge

26045 Liquidator’s obligation

26050 Offence

26055 Joint liability of 2 or more liquidators

26060 Liquidator’s other obligation or liability

26040  Subdivision does not apply to superannuation guarantee charge

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

26045  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 taxrelated 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 taxrelated 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 taxrelated liabilities.

 (7) The liquidator must, in his or her capacity as liquidator, discharge the *outstanding taxrelated 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.

26050  Offence

  The liquidator must not fail to comply with subsection 26045(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.

26055  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.

26060  Liquidator’s other obligation or liability

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

Subdivision 260CFrom receiver

Table of sections

26075 Receiver’s obligation

26080 Offence

26085 Joint liability of 2 or more receivers

26090 Receiver’s other obligation or liability

26075  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 taxrelated 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 taxrelated 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 taxrelated liabilities.

 (7) The receiver must, in his or her capacity as receiver, or as receiver and manager, discharge the *outstanding taxrelated 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.

26080  Offence

  The receiver must not fail to comply with subsection 26075(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.

26085  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.

26090  Receiver’s other obligation or liability

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

Subdivision 260DFrom agent winding up business for foreign resident principal

Table of sections

260105 Obligation of agent winding up business for foreign resident principal

260110 Offence

260115 Joint liability of 2 or more agents

260120 Agent’s other obligation or liability

260105  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 taxrelated 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 taxrelated liabilities.

 (5) After receiving the notice, the agent must set aside:

 (a) out of the assets available for discharging the *outstanding taxrelated 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 taxrelated 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.

260110  Offence

  A person must not fail to comply with subsection 260105(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.

260115  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.

260120  Agent’s other obligation or liability

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

Subdivision 260EFrom deceased person’s estate

Table of sections

260140 Administered estate

260145 Unadministered estate

260150 Commissioner may authorise amount to be recovered

260140  Administered estate

 (1) This section applies if:

 (a) a person has an *outstanding taxrelated 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.

260145  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 taxrelated 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 taxrelated 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.

260150  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

 (c) any other person;

to recover:

 (d) the total amount of the *outstanding taxrelated liabilities of a deceased person as determined under section 260145 (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 263Mutual assistance in the administration of foreign tax laws

Table of Subdivisions

263A Foreign revenue claims

263B Service of documents in Australia on behalf of foreign revenue authorities

Subdivision 263AForeign revenue claims

Guide to Subdivision 263A

2635  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

26310 Meaning of foreign revenue claim

26315 Requirements for foreign revenue claims

26320 Foreign Revenue Claims Register

26325 Registering claims

26330 When amount is due and payable

26335 Amending the Register etc.

26340 Payment to competent authority

Operative provisions

26310  Meaning of foreign revenue claim

  A foreign revenue claim is a claim made to the Commissioner:

 (a) in accordance with an agreement (the international agreement) between Australia and:

 (i) a foreign country or a constituent part of a foreign country; or

 (ii) a foreign territory; and

 (b) for one or both of these purposes:

 (i) the recovery by the Commissioner of an amount from an entity (the debtor) in respect of taxes imposed otherwise than by an *Australian law (including any associated amounts);

 (ii) the conserving of assets for the purposes of a recovery of that kind.

26315  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

 (c) be made in the *approved form; and

 (d) specify the amount owed by the debtor in Australian currency (calculated as at the day the claim is made); and

 (e) be accompanied by a declaration by the competent authority stating that the claim fulfils the requirements of that agreement.

26320  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.

26325  Registering claims

  If the Commissioner is satisfied that a *foreign revenue claim has been made in accordance with section 26315, the Commissioner must register the claim by entering particulars of it in the Register within 90 days after receiving the claim.

26330  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 415.

 (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.

26335  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.

26340  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.

Subdivision 263BService of documents in Australia on behalf of foreign revenue authorities

Guide to Subdivision 263B

26355  What this Subdivision is about

This Subdivision can be activated if there is in force an agreement between Australia and a foreign country or foreign territory that deals with service of documents on tax matters.

If a foreign government agency asks the Commissioner to serve a document relating to foreign taxes on an entity in Australia in accordance with the agreement, the Commissioner may serve the document in the same way as a similar document under an Australian taxation law may be served.

Table of sections

Operative provisions

26360 Meaning of foreign service of document request

26365 Service of document subject to foreign service of document request

Operative provisions

26360  Meaning of foreign service of document request

  A foreign service of document request is a request made to the Commissioner:

 (a) in accordance with an agreement (the international agreement) between Australia and:

 (i) a foreign country or a constituent part of a foreign country; or

 (ii) a foreign territory;

  that deals with service of documents on tax matters; and

 (b) by a *foreign government agency; and

 (c) for the service of one or more documents on an entity in Australia in relation to taxes imposed otherwise than by an *Australian law.

26365  Service of document subject to foreign service of document request

 (1) If a *foreign service of document request is made to the Commissioner, the Commissioner may serve a document covered by the request in the same way that a similar document under a *taxation law may be served.

 (2) The Commissioner must also serve a translation of the document into English, or a summary of the document in English, if:

 (a) the document is in a language other than English; and

 (b) the Commissioner is satisfied that the entity being served would not understand the language of the document.

 (3) Before serving a translation of the document into English, or a summary of the document in English, the Commissioner must be satisfied that the translation or summary is accurate.

Division 265Other matters

Table of Subdivisions

265A Right of person to seek recovery or contribution

265B Application of laws

Subdivision 265ARight of person to seek recovery or contribution

Guide to Subdivision 265A

26535  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 taxrelated 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

26540 Right of recovery if another person is liable

26545 Right of contribution if persons are jointly liable

Operative provisions

26540  Right of recovery if another person is liable

  A person who has paid an amount of a *taxrelated 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.

26545  Right of contribution if persons are jointly liable

 (1) If 2 or more persons are jointly liable to pay an amount of a *taxrelated 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 taxrelated 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 265BApplication of laws

Table of sections

26565 Nonapplication of certain taxation laws

26565  Nonapplication 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.

Subdivision 265CDirection to pay superannuation guarantee charge

Guide to Subdivision 265C

26585  What this Subdivision is about

If you are liable to pay an amount of superannuation guarantee charge or certain related liabilities, the Commissioner may direct you to pay the amount.

If the amount is not paid, you may commit an offence.

Table of sections

26590 Direction to pay superannuation guarantee charge

26595 Offence

265100 Variation or revocation

265105 Effect of liability being reduced or ceasing to exist

265110 Taxation objection

265115 Extension of period to comply if taxation objection made

26590  Direction to pay superannuation guarantee charge

 (1) The Commissioner may, by written notice, give you a direction requiring you to pay to the Commissioner:

 (a) an amount of superannuation guarantee charge that is payable by you under the Superannuation Guarantee (Administration) Act 1992; or

 (b) if an estimate under Division 268 in this Schedule of an amount of a liability of yours to pay superannuation guarantee charge for a quarter under section 16 of the Superannuation Guarantee (Administration) Act 1992 is in force as referred to in subsection 26810(5)—the amount of the estimate.

Note: The direction does not create a separate liability to pay the amount. However, it may result in you committing an offence against subsection 26595(1) if the amount is not paid.

 (2) In deciding whether to give a direction under subsection (1), the Commissioner must have regard to the following matters:

 (a) your history of compliance with obligations to pay superannuation guarantee charge, and obligations to pay estimates under Division 268 of superannuation guarantee charge;

 (b) your history of compliance with other obligations under *taxation laws;

 (c) whether the amount mentioned in paragraph (1)(a) or (b) is substantial, having regard to the size and nature of your business;

 (d) any steps that you have taken to discharge the liability to pay the amount or dispute that the liability exists;

 (e) any other matter that the Commissioner considers relevant.

 (3) The direction must:

 (a) set out the amount that you are required to pay to the Commissioner; and

 (b) if the amount referred to in paragraph (1)(a) or (b) relates to a *quarter—set out the quarter; and

 (c) specify the period before the end of which you must comply with the direction (which must end at least 21 days after the day the direction is given); and

 (d) explain the consequences of failing to comply with the direction; and

 (e) explain how you may have the Commissioner’s decision to give the direction reviewed.

 (4) To avoid doubt, a single notice may relate to 2 or more directions, but must comply with subsection (3) in relation to each of them.

 (5) A notice given under subsection (1) is not a legislative instrument.

26595  Offence

 (1) You commit an offence if:

 (a) you are given a direction under subsection 26590(1); and

 (b) the liability to pay the amount set out in the direction is not discharged (whether by you or by another entity) before the end of the period specified in the direction under paragraph 26590(3)(c).

Penalty: 50 penalty units or imprisonment for 12 months, or both.

 (2) An offence against subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

 (3) Subsection (1) does not apply if both of the following apply:

 (a) you took all reasonable steps to comply with the direction before the end of the period specified in the direction under paragraph 26590(3)(c);

 (b) you took all reasonable steps to ensure that the liability was discharged before the direction was given.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

265100  Variation or revocation

 (1) If the Commissioner has given you a direction under subsection 26590(1), the Commissioner may, at any time before the end of the period specified in the direction under paragraph 26590(3)(c), by written notice given to you:

 (a) vary the direction to reduce the amount that you are required to pay to the Commissioner in order to comply with the direction; or

 (b) vary the direction to extend the period specified in the notice of the direction under paragraph 26590(3)(c); or

 (c) revoke the direction.

 (2) To avoid doubt, the variation or revocation of a direction under subsection (1) does not affect any liability that you may have to pay an amount referred to in the direction.

265105  Effect of liability being reduced or ceasing to exist

 (1) If:

 (a) you have been given a direction under subsection 26590(1) requiring you to pay an amount of a liability referred to in that subsection to the Commissioner; and

 (b) the period specified in the direction under paragraph 26590(3)(c) has not expired; and

 (c) the liability is reduced (but not to nil);

the amount set out in the direction is taken to be reduced by the amount of the reduction referred to in paragraph (c).

 (2) If:

 (a) you have been given a direction under subsection 26590(1) requiring you to pay an amount of a liability referred to in that subsection to the Commissioner; and

 (b) the period specified in the direction under paragraph 26590(3)(c) has not expired; and

 (c) either:

 (i) the liability is reduced to nil; or

 (ii) the liability ceases to exist;

the direction is taken to be revoked.

 (3) You may be convicted of an offence against subsection 26595(1) in relation to a direction under subsection 26590(1) requiring you to pay an amount of a liability referred to in subsection 26590(1) to the Commissioner even if:

 (a) the liability is reduced, or ceases to exist, after the end of the period specified in the direction under paragraph 26590(3)(c); or

 (b) the liability is discharged after the end of that period; or

 (c) the liability is, after the end of that period, taken never to have existed, or taken not to have existed at a time on or before the end of that period.

265110  Taxation objection

  If you are dissatisfied with a decision of the Commissioner to give you a direction under subsection 26590(1), you may, at any time before the end of the period specified in the direction under paragraph 26590(3)(c), object against the decision in the manner set out in Part IVC.

265115  Extension of period to comply if taxation objection made

 (1) This section applies if:

 (a) the Commissioner gives you a direction under subsection 26590(1); and

 (b) the period specified in the direction under paragraph 26590(3)(c) has not expired; and

 (c) you:

 (i) make an objection in accordance with section 265110 in relation to the Commissioner’s decision to give you the direction; or

 (ii) make an objection in the manner set out in Part IVC against a taxation decision that relates to your liability to pay an amount referred to in the direction.

 (2) The period specified in the direction under paragraph 26590(3)(c) is extended by one day for each day in the period that begins on the day the objection is made and ends at the end of the later of the following days:

 (a) the day 21 days after the day the Commissioner notifies you of the Commissioner’s decision under section 14ZY in relation to the objection;

 (b) if, before the end of the day referred to in paragraph (a), you:

 (i) apply to the *AAT in accordance with Division 4 of Part IVC for review of the Commissioner’s decision; or

 (ii) lodge an appeal against the Commissioner’s decision with the Federal Court of Australia under Division 5 of that Part;

  the day the review or the appeal is finally determined.

 (3) To avoid doubt, the extension of the period under subsection (2) does not affect any liability that you may have to pay an amount referred to in the direction.

Division 268Estimates

Table of Subdivisions

 Guide to Division 268

268A Object

268B Making estimates

268C Liability to pay estimates

268D Reducing and revoking estimates

268E Late payment of estimates

268F Miscellaneous

Guide to Division 268

2681  What this Division is about

This Division enables the Commissioner to make an estimate of:

 (a) amounts not paid as required by Part 25 of this Act (Pay as you go (PAYG) withholding); or

 (b) unpaid superannuation guarantee charge; or

 (c) net amounts in respect of GST, wine equalisation tax and luxury car tax;

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 25 or the Superannuation Guarantee (Administration) Act 1992. In the case of an estimate of a net amount that has been assessed by the Commissioner, that liability is distinct from your liability to pay the amount of the assessment. However, you can ensure that the Commissioner does not require you to pay more than the relevant unpaid amounts.

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

Subdivision 268AObject

Table of sections

2685 Object of Division

2685  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 25 (Pay as you go (PAYG) withholding); or

 (b) unpaid superannuation guarantee charge that has not been assessed; or

 (c) *net amounts under the *GST Act.

Subdivision 268BMaking estimates

Table of sections

26810 Commissioner may make estimate

26815 Notice of estimate

26810  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 1670 in this Schedule (requirement to pay to the Commissioner amounts you have withheld under the Pay as you go withholding rules); or

 (b) to pay superannuation guarantee charge for a *quarter under section 16 of the Superannuation Guarantee (Administration) Act 1992, to the extent the superannuation guarantee charge has not been assessed before the Commissioner makes the estimate; or

 (c) to pay a *net amount for a *tax period, to the extent that the net amount has not been assessed before the Commissioner makes the estimate.

 (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.

 (1B) For the purposes of this Division, if you have a *net amount for a *tax period:

 (a) you are treated as being liable to pay that net amount; and

 (b) that liability is treated as having arisen on the day by which you must give your *GST return for the tax period to the Commissioner in accordance with Division 31 of the *GST Act; and

 (c) that liability is treated as being payable on that day; and

 (d) the entire amount of that liability is treated as being unpaid.

Amount of estimate

 (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 1670 (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

 (c) your liability to pay the estimate has not been discharged.

26815  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

 (c) set out the amount of the estimate; and

 (d) state that the amount of the estimate is due and payable; and

 (e) explain how you may have the amount of the estimate reduced or the estimate revoked.

 (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 268CLiability to pay estimates

Table of sections

26820 Nature of liability to pay estimate

26825 Accuracy of estimate irrelevant to liability to pay

26830 Estimate provable in bankruptcy or winding up

26820  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 26815. 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 268D.

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: In a case covered by paragraph 26810(1)(a) or (b), the Commissioner may take:

(a) proceedings to recover the unpaid amount of the estimate; or

(b) proceedings to recover the unpaid amount of the underlying liability; or

(c) proceedings of both kinds.

Discharging one liability discharges other liabilities

 (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 26940 (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).

 (4A) In a case covered by paragraph 26810(1)(c) (estimate of liability in relation to net amount under GST Act), treat the reference in paragraph (4)(b) to the underlying liability as being a reference to a liability under Division 33 or 35 of the *GST Act for an *assessed net amount in respect of the underlying liability.

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

26825  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 26840 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 268D provides ways in which you can challenge the estimate or its amount.

26830  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.

 (4A) In a case covered by paragraph 26810(1)(c) (estimate of liability in relation to net amount under GST Act), treat the references in paragraph (3)(a) and subsection (4) to the underlying liability as being references to a liability under Division 33 or 35 of the *GST Act for an *assessed net amount in respect of the underlying liability.

 (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 268DReducing and revoking estimates

Table of sections

26835 How estimate may be reduced or revoked—Commissioner’s powers

26840 How estimate may be reduced or revoked—statutory declaration or affidavit

26845 How estimate may be reduced or revoked—rejection of proof of debt

26850 How estimate may be reduced—amount paid or applied

26855 When reduction or revocation takes effect

26860 Consequences of reduction or revocation—refund

26865 Consequences of reduction or revocation—statutory demand changed or set aside

26870 Consequences of reduction or revocation—underlying liability

26835  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 26855.

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 26855.

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 26820 (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 26855 and 26870 (effect of reduction or revocation on liabilities).

26840  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 26890 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.

26845  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 26895 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

 (c) the underlying liability never existed.

Note: See section 26890 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.

26850  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.

26855  When reduction or revocation takes effect

Scope

 (1) This section applies for the purposes of the following:

 (a) Subdivision 268C (Liability to pay estimates);

 (b) section 26860 (refund of overpayments);

 (c) Subdivision 268E (Late payment of estimates);

 (d) Division 269 (Penalties for directors of noncomplying 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.

26860  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 26850 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.

26865  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

 (c) the amount of the estimate is later reduced, or the estimate is revoked.

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).

26870  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 268ELate payment of estimates

Table of sections

26875 Liability to pay the general interest charge

26880 Effect of paying the general interest charge

26875  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.

26880  Effect of paying the general interest charge

Scope

 (1) If you are liable to pay the *general interest charge under section 26875 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 16B, because the underlying liability remains undischarged;

 (c) liability under a judgment, to the extent that it is based on a liability referred to in paragraph (a) or (b);

 (d) a liability of yours to pay interest carried by a judgment debt, to the extent that the judgment debt is based on:

 (i) the liability to pay the estimate; or

 (ii) the liability to pay the general interest charge under section 26875 on an unpaid amount of the estimate.

 (1A) In a case covered by paragraph 26810(1)(c) (estimate of liability in relation to net amount under GST Act), treat the reference in paragraph (1)(b) to the underlying liability as being a reference to a liability under Division 33 or 35 of the *GST Act for an *assessed net amount in respect of the underlying liability.

Discharging one liability discharges other liabilities

 (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 268FMiscellaneous

Table of sections

26885 Effect of judgment on liability on which it is based

26890 Requirements for statutory declaration or affidavit

26895 Liquidators, receivers and trustees in bankruptcy

268100 Division not to limit or exclude Corporations or Bankruptcy Act

26885  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 26820 (Nature of liability to pay estimate);

 (b) section 26830 (Estimate provable in bankruptcy or winding up);

 (c) section 26845 (rejection of proof of debt).

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.

26890  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 26840 or 26845 in relation to the estimate.

Content

 (2) In a case covered by paragraph 26810(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 (noncash 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 26810(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 26810(1)(b). The lesser amount mentioned in subsection 26840(2) may therefore differ from the amount of that shortfall.

 (2B) In a case covered by paragraph 26810(1)(c) (estimate of liability in relation to net amount under GST Act), the statutory declaration or affidavit must verify the following facts:

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

 (b) what has been done to comply with Division 31 and 33 of the *GST Act (obligation to give GST return and liability in respect of assessed net amounts) in relation to that tax period;

 (c) your *taxable supplies and *creditable acquisitions that are attributable to that tax period;

 (d) your assessable dealings (within the meaning of the *Wine Tax Act) and *wine tax credits that are attributable to that tax period.

Maker or deponent

 (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.

26895  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

 (c) otherwise—the day when the Commissioner gave you the notice.

 (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 26840(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.

268100  Division not to limit or exclude Corporations or Bankruptcy Act

  This Division is not intended to limit or exclude the operation of Chapter 5 (External administration) or Schedule 2 to the Corporations Act 2001, or the Bankruptcy Act 1966, to the extent those provisions or that Act can operate concurrently with this Division.

Note: Section 26830 and Subdivision 268D affect the operation of Chapter 5 of the Corporations Act 2001 and the Bankruptcy Act 1966.

Division 269Penalties for directors of noncomplying companies

Table of Subdivisions

 Guide to Division 269

269A Object and scope

269B Obligations and penalties

269C Discharging liabilities

269D Miscellaneous

Guide to Division 269

2691  What this Division is about

This Division deals with obligations of a company:

 (a) under Subdivision 16B in this Schedule (obligation to pay withheld amounts to the Commissioner); and

 (b) under Division 268 in this Schedule (obligation to pay estimates); and

 (c) under Part 3 of the Superannuation Guarantee (Administration) Act 1992 (obligation to pay superannuation guarantee charge); and

 (d) under Divisions 33 and 35 of the GST Act in respect of assessed net amounts; and

 (e) under Division 162 of the GST Act in respect of GST instalments.

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

 (a) meets those obligations; 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 269AObject and scope

Table of sections

2695 Object of Division

26910 Scope of Division

2695  Object of Division

  The object of this Division is to ensure that a company either:

 (a) meets its obligations under:

 (i) Subdivision 16B (obligation to pay withheld amounts to the Commissioner); and

 (ii) Division 268 (estimates of PAYG withholding liabilities and superannuation guarantee charge); and

 (iii) Part 3 of the Superannuation Guarantee (Administration) Act 1992 (obligation to pay superannuation guarantee charge); and

 (iv) Divisions 33 and 35 of the *GST Act in respect of *assessed net amounts; and

 (v) Division 162 of the GST Act in respect of GST instalments (within the meaning of the GST Act); or

 (b) goes promptly into voluntary administration 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.

26910  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 16B.

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 16B.

3

the company provides a *noncash benefit

an amount in respect of that benefit in accordance with Subdivision 16B.

5

a *quarter ends

superannuation guarantee charge for the quarter in accordance with the Superannuation Guarantee (Administration) Act 1992.

6

a *tax period ends

an *assessed net amount for the tax period in accordance with the *GST Act.

7

a GST instalment quarter (within the meaning of the *GST Act) ends

a GST instalment (within the meaning of the GST Act) for the quarter in accordance with the GST Act.

 (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.

Estimates

 (4) This Division also applies if:

 (a) a company is a company registered under the Corporations Act 2001; and

 (b) the company is given notice of an estimate under Division 268; and

 (c) the company is obliged to pay the amount of the estimate to the Commissioner on or before a particular day (the due day).

 (5) If this Division applies because of subsection (4), then for the purposes of this Division:

 (a) in the case of an estimate of an underlying liability referred to in paragraph 26810(1)(a) (PAYG withholding liabilities)—the initial day is:

 (i) for a company that is a *medium withholder or a *small withholder on the last day of the period identified in the notice of the estimate under section 26815 as the period to which the underlying liability relates—the last day of that period; or

 (ii) for any other company—the day by which the company is obliged to pay the amount of the underlying liability to the Commissioner; and

 (b) in the case of an estimate of an underlying liability referred to in paragraph 26810(1)(b) (superannuation guarantee charge)—the initial day is the last day of the *quarter to which the estimate relates; and

 (ba) in the case of an estimate of an underlying liability referred to in paragraph 26810(1)(c) (net amount under GST Act)—the initial day is the last day of the *tax period to which the estimate relates; and

 (c) the company’s obligation to pay the amount of the estimate is taken to have begun on the day after the initial day identified in paragraph (a) or (b) of this subsection.

 (6) For the purposes of subsection (5), assume that the underlying liability exists as identified in the notice of the estimate under section 26815.

Subdivision 269BObligations and penalties

Table of sections

26915 Directors’ obligations

26920 Penalty

26925 Notice

26930 Effect on penalty of directors’ obligation ending before end of notice period

26935 Defences

26915  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

 (c) the company begins to be wound up (within the meaning of that Act).

 (2A) To avoid doubt, if the obligation of the company is an obligation to pay the amount of an estimate of an underlying liability under Division 268, a director is subject to his or her obligation under subsection (1):

 (a) even if the underlying liability never existed or has been discharged in full; and

 (b) even if the unpaid amount of the underlying liability is less than the unpaid amount of the estimate; and

 (c) at all times on and after the day referred to in paragraph 26910(5)(b) until the director’s obligation ceases under subsection (2) of this section, including at any such times before the Commissioner has made the estimate or given notice of the estimate.

Instalment arrangements

 (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 25515 (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 26925.

26920  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 26915; 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 26915(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 26925.

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 26915; 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 26925.

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 26940 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 26945 for your rights of indemnity and contribution.

26925  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

 (c) explain the main circumstances in which the penalty will be remitted.

 (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 26950 of this Act is also relevant to giving a notice under subsection (1).

26930  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 26915:

 (a) before the Commissioner gives you notice of the penalty under section 26925; 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 
26915(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 …

Column 3

subsection (1) does not apply …