An Act relating to the Imposition, Assessment and Collection of a Tax upon the Sale Value of Certain Goods imported into Australia, purchased by a Taxpayer, and applied to his own use, and for other purposes
Part I—Preliminary
1 Short title [see Note 1]
This Act may be cited as the Sales Tax Assessment Act (No. 8) 1930.
Part II—Liability to Taxation
3 Sales Tax
Subject to, and in accordance with, the provisions of this Act, the sales tax imposed by the Sales Tax Act (No. 8) 1930 shall be levied and paid upon the sale value of goods which have been imported into Australia and sold to a taxpayer who has applied those goods to his own use.
4 Sale value of goods
(1) Subject to subsection (3) of this section, to section 4A and to subsections (5B) and (5C) of section 18 of the Sales Tax Assessment Act (No. 1) 1930 in their application in accordance with section 12 of this Act, for the purposes of this Act, the sale value of goods purchased by a registered person who has quoted his certificate in respect of those goods, and has applied the goods to his own use shall be the amount for which the goods were so purchased.
(2) Where:
(a) goods (in this subsection referred to as the relevant goods) imported into Australia that have been purchased after 20 September 1978 by a registered person who has quoted his certificate in respect of those goods have been applied by the purchaser to his own use;
(b) the Commissioner is satisfied that, having regard to any connection between the vendor and the purchaser of the relevant goods or to any other relevant circumstances (including circumstances arising out of any agreement entered into between the vendor and the purchaser, or out of any other agreement, that was related, directly or indirectly, to the sale of the goods), the vendor and the purchaser were not dealing with each other at arm’s length in relation to the transaction; and
(c) the Commissioner is also satisfied:
(i) that the amount for which the relevant goods were purchased is less than the amount (in this subsection referred to as the arm’s length price) for which, in the opinion of the Commissioner, the relevant goods could reasonably be expected to have been purchased if the vendor and the purchaser had been dealing with each other at arm’s length in relation to the transaction; or
(ii) that:
(A) the purchaser could have purchased identical goods from another person by wholesale and obtained delivery of the identical goods at or about the time when the purchaser obtained delivery of the relevant goods; and
(B) the amount for which the relevant goods were purchased is less than the amount (in this subsection referred to as the alternative price) for which, in the opinion of the Commissioner, the identical goods could reasonably be expected to have been purchased by the purchaser;
the Commissioner shall alter the sale value of the relevant goods to the amount ascertained in accordance with the following paragraphs:
(d) if the Commissioner is satisfied as to the matter mentioned in subparagraph (i) of paragraph (c) but not as to the matters mentioned in subparagraph (ii) of that paragraph—an amount equal to the arm’s length price;
(e) if the Commissioner is satisfied as to the matters mentioned in subparagraph (ii) of paragraph (c) but not as to the matter mentioned in subparagraph (i) of that paragraph—an amount equal to the alternative price;
(f) if the Commissioner is satisfied as to the matter mentioned in subparagraph (i) of paragraph (c) and also as to the matters mentioned in subparagraph (ii) of that paragraph—an amount equal to the lesser of:
(i) the arm’s length price; and
(ii) the alternative price.
(3) Where the Commissioner alters the sale value of goods in pursuance of subsection (2), the sale value so altered shall be the sale value of the goods for the purposes of this Act.
(4) In subsection (2):
(a) agreement means any agreement, arrangement or understanding:
(i) whether formal or informal;
(ii) whether express or implied; or
(iii) whether or not enforceable, or intended to be enforceable, by legal proceedings; and
(b) a reference to identical goods shall be read as a reference to goods identical in all material respects with the goods in relation to which the expression is used.
4A Sale value of goods in special cases
(1) Where:
(a) goods (in this subsection referred to as the relevant goods) imported into Australia that have been purchased by a registered person who has quoted his certificate in respect of those goods have been applied by the purchaser to his own use;
(b) under an agreement entered into for the purpose, or for purposes that included the purpose, of securing that the amount of the sale value of the relevant goods would be less than the amount that could reasonably be expected to be the amount of the sale value of the relevant goods if the agreement had not been entered into, valuable consideration (in this section referred to as the relevant consideration) has been given, directly or indirectly, by the purchaser, or by another person, to the vendor or another person for, or in connection with, any of, or any 2 or more of, the following acts:
(i) the grant of a right or option to purchase goods;
(ii) the exercise, in whole or in part, of a right or option to purchase goods;
(iii) the surrender or other termination, in whole or in part, of a right or option to purchase goods;
(iv) allowing a right or option to purchase goods to lapse in whole or in part;
(v) the assignment, in whole or in part, of a right or option to purchase goods;
(vi) the provision of, or procuring the provision of, services in connection with the relevant goods; and
(c) the relevant goods were purchased:
(i) in a case where the relevant consideration has been so given, in whole or in part, for, or in connection with, any of, or any 2 or more of, any acts referred to in subparagraphs (i) to (v) (inclusive) of paragraph (b)—after 20 September 1978; or
(ii) if subparagraph (i) does not apply but the relevant consideration has been given for, or in connection with, any acts referred to in subparagraph (vi) of paragraph (b)—after 16 November 1978;
the sale value of the relevant goods shall, for the purposes of this Act, be determined in accordance with the provisions of this section and not in accordance with the provisions of subsection (1) or (2) of section 4.
(2) In subsection (1):
(a) a reference to a right or option to purchase goods shall be read as a reference to a right or option (including a contingent right or option) to purchase:
(i) goods, as defined in subsection (1) of section 3 of the Sales Tax Assessment Act (No. 1) 1930 in its application in accordance with section 12 of this Act;
(ii) excluded goods; or
(iii) goods as so defined and excluded goods;
whether ascertained or not and whether they comprise or include the relevant goods or not; and
(b) a reference to services in connection with the relevant goods shall be read as a reference to services in connection with the relevant goods or with the relevant goods and other goods (including excluded goods) and, without limiting the generality of the foregoing, shall be read as including a reference to:
(i) the doing of any act or thing in relation to the importation or marketing of the relevant goods or the relevant goods and other goods (including excluded goods);
(ii) the giving of a guarantee or warranty in respect of the relevant goods or the relevant goods and other goods (including excluded goods); or
(iii) the doing of any act or thing in relation to the relevant goods or the relevant goods and other goods (including excluded goods) after their purchase.
(3) For the purposes of subsection (1), where any valuable consideration given under an agreement entered into for the purpose, or for purposes that included the purpose, of securing that the amount of the sale value of the relevant goods would be less than the amount that could reasonably be expected to be the amount of the sale value of the relevant goods if the agreement had not been entered into is required to be calculated by reference to the value or quantity of goods (which may include excluded goods) purchased by the purchaser of the relevant goods, the valuable consideration shall be deemed to have been given under an agreement for or in connection with the doing of acts by way of the provision of services in connection with the relevant goods.
(4) Subject to subsection (5), for the purposes of this Act, the sale value of goods the sale value of which is required to be determined in accordance with the provisions of this section is:
(a) if the relevant goods are of a class which the person from whom the goods were purchased himself sells by wholesale—the amount for which the goods could reasonably be expected to have been purchased by the purchaser from that person by wholesale if no agreement of a kind referred to in paragraph (b) of subsection (1) had been entered into in relation to the purchase of the goods; or
(b) in any other case—the amount for which the purchaser could reasonably be expected to have purchased identical goods from another person if the other person had, in the ordinary course of his business, sold them to the purchaser by wholesale and no agreement of a kind referred to in paragraph (b) of subsection (1) had been entered into in relation to the purchase of the identical goods.
(5) Where:
(a) the sale value of the relevant goods is required to be determined, for the purposes of this Act, in accordance with the provisions of this section;
(b) the Commissioner is satisfied that, having regard to any connection between the vendor and the purchaser of the relevant goods or to any other relevant circumstances (including circumstances arising out of any agreement entered into between the vendor and the purchaser, or out of any other agreement, that is related, directly or indirectly, to the sale of the relevant goods), the vendor and the purchaser were not dealing with each other at arm’s length in relation to the transaction; and
(c) the Commissioner is also satisfied:
(i) that the amount for which the relevant goods were purchased is less than the amount (in this section referred to as the arm’s length price) for which, in the opinion of the Commissioner, the relevant goods could reasonably be expected to have been purchased if the vendor and the purchaser had been dealing with each other at arm’s length in relation to the transaction and no agreement of a kind referred to in paragraph (b) of subsection (1) had been entered into in relation to the purchase of the relevant goods; or
(ii) that:
(A) the purchaser could have purchased identical goods from another person and obtained delivery of the identical goods at or about the time when the purchaser obtained delivery of the relevant goods; and
(B) the amount for which the relevant goods were purchased is less than the amount (in this section referred to as the alternative price) for which, in the opinion of the Commissioner, the identical goods could reasonably be expected to have been purchased by the purchaser if no agreement of a kind referred to in paragraph (b) of subsection (1) had been entered into in relation to the purchase of the identical goods;
the Commissioner shall alter the sale value of the relevant goods to the amount ascertained in accordance with subsection (6), and the sale value so altered shall be the sale value of the relevant goods for the purposes of this Act.
(6) The amount ascertained in relation to the relevant goods for the purposes of subsection (5) is:
(a) if the Commissioner is satisfied as to the matter mentioned in subparagraph (i) of paragraph (c) of subsection (5) but not as to the matters mentioned in subparagraph (ii) of that paragraph—an amount equal to the arm’s length price;
(b) if the Commissioner is satisfied as to the matters mentioned in subparagraph (ii) of paragraph (c) of subsection (5) but not as to the matter mentioned in subparagraph (i) of that paragraph—an amount equal to the alternative price; or
(c) if the Commissioner is satisfied as to the matter mentioned in subparagraph (i) of paragraph (c) of subsection (5) and also to the matters mentioned in subparagraph (ii) of that paragraph—an amount equal to the lesser of:
(i) the arm’s length price; and
(ii) the alternative price.
(7) For the purposes of this section, an agreement shall be taken to have been entered into for a particular purpose, or for purposes that include a particular purpose, if any of the parties to the agreement entered into the agreement for that purpose or for purposes that included that purpose.
(8) In this section:
(a) a reference to excluded goods shall be read as a reference to goods, including commodities, of a kind referred to in paragraph (a) or (b) of the definition of goods in subsection (1) of section 3 of the Sales Tax Assessment Act (No. 1) 1930 in its application in accordance with section 12 of this Act; and
(b) a reference to identical goods shall be read as a reference to goods identical in all material respects with the goods in relation to which the expression is used.
(9) In this section, agreement means any agreement, arrangement or understanding:
(a) whether formal or informal;
(b) whether express or implied; or
(c) whether or not enforceable, or intended to be enforceable, by legal proceedings.
4B Sale value of goods embodying certain information
(1) Where:
(a) imported goods in which visual images or sounds, or visual images and sounds (any of which are, in this section, referred to as the embodied material) have, or a computer program (in this section also referred to as the embodied material) has, been embodied, that have, after 19 August 1986, been purchased by a registered person who has quoted the person’s certificate in respect of those goods have been applied to the person’s own use;
(b) valuable consideration (in this section referred to as the licence fee) has been given by the purchaser or another person to the vendor or another person in connection with, or as consideration for, the supply of, or the right to use, the embodied material in the goods; and
(c) the sale value of the goods for the purposes of this Act would not, but for this section, include the value of the licence fee;
the sale value of the goods, for the purposes of this Act, shall, subject to subsection 18(5B) of the Sales Tax Assessment Act (No. 1) 1930 as that subsection is applied by section 12 of this Act, but notwithstanding section 4 or 4A, be an amount equal to the sum of:
(d) the amount that would be the sale value of the goods for the purposes of this Act under whichever provision of section 4 or 4A the sale value of the goods would be determined if this section had not been enacted; and
(e) an amount equal to the value of the licence fee.
(2) A reference in subsection (1) to the right to use embodied material does not include a reference to a right to:
(a) broadcast a work, sound recording or cinematograph film;
(b) cause a cinematograph film, a work, or a television program that includes a work, to be transmitted to subscribers to a diffusion service;
(c) cause a sound recording to be heard in public;
(d) cause a cinematograph film to be seen in public; or
(e) exhibit an article in public.
(3) For the purposes of this section, an expression used in subsection (2) has the same meaning in that subsection as in the Copyright Act 1968, but cinematograph film, in addition to the meaning given by that Act, includes a video tape or video disc.
4C Sale value of goods embodying computer programs
Where imported goods have, after 22 December 1988, been purchased by a registered person who has quoted the person’s certificate in respect of those goods and who has applied those goods to the person’s own use, being goods in which, or in part of which, a computer program has been embodied, then, for the purposes of this Act, subject to subsection 18(5B) of the Sales Tax Assessment Act (No. 1) 1930 as that subsection is applied by section 12 of this Act, but notwithstanding section 4 or 4A, the amount that would be the sale value of the goods apart from this section is to be reduced by so much of that amount as is attributable to:
(a) the computer program (not being a computer program embodied in a microchip); or
(b) except where the only computer programs embodied in the goods are embodied in microchips—any other part of the goods the sale value of which would, if sold separately, be exempt from sales tax under item 51 of the First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935.
5 Liability for tax
Where goods imported into Australia are purchased by a registered person who has quoted his certificate in respect of the goods and are applied by the purchaser to his own use, sales tax shall be paid by the purchaser of the goods.
6 Exemptions
Notwithstanding anything contained in section 5, sales tax shall not be payable under this Act by the person specified in that section upon the sale value of goods the sale value of which is, by virtue of the Sales Tax (Exemptions and Classifications) Act 1935‑1973, exempt from sales tax under this Act.
Part III—Returns
7 Monthly remitter’s returns etc
Every person who is a monthly remitter in relation to a month and who, during that month, applies to his own use any goods purchased by him in respect of the purchase of which he has quoted his certificate shall, within twenty‑one days after the close of that month, furnish to the Commissioner a return in a form approved by the Commissioner containing such information as the form requires and such other information as is required.
7A Quarterly remitter’s returns etc
Where a person:
(a) is a quarterly remitter in relation to a sales tax quarter; and
(b) during the quarter, applies to his or her own use any goods purchased by the person in respect of the purchase of which the person has quoted his or her certificate;
the person must, within 21 days after the end of the quarter, give to the Commissioner either:
(c) a return for the quarter; or
(d) a separate monthly return for each month in the quarter;
in a form approved by the Commissioner containing such information as the form requires and such other information as is required.
8 Further returns
In addition to any return that may have been required under section 7 or 7A, the Commissioner may by notice in writing call upon any person to furnish to him, within the time specified in the notice, such return or such further or fuller return as the Commissioner requires, whether in that person’s own behalf or as an agent or a trustee.
Part IV—Collection and recovery of tax
9 Time for payment of tax by monthly remitters
(1) A person who is a monthly remitter in relation to a month and who is liable to pay tax under section 5 upon the sale value of any goods applied by him to his own use during that month shall, within twenty‑one days after the close of that month, pay sales tax on that sale value.
(2) Subject to this Act, sales tax is due and payable by a monthly remitter, at the end of the period of 21 days referred to in subsection (1).
9A Time for payment of tax by quarterly remitters
(1) A person who is a quarterly remitter in relation to a sales tax quarter and who is liable to pay tax under section 5 upon the sale value of any goods applied by the person to his or her own use during the quarter must, within 21 days after the end of the quarter, pay sales tax on that sale value.
(2) Subject to this Act, sales tax is due and payable by a quarterly remitter at the end of the period of 21 days referred to in subsection (1).
10 Further tax
(1) Where the Commissioner finds in any case that tax or further tax is payable by a person, the Commissioner may make an assessment in relation to the person.
(2) Where, under subsection 4(2) or 4A(5), the sale value of any goods has been altered, the Commissioner shall make an assessment in relation to those goods.
(2A) Where:
(a) a person makes default in furnishing a return;
(b) the Commissioner is not satisfied with a return furnished by a person; or
(c) the Commissioner has reason to believe or suspect that a person (although not having furnished a return) is liable to pay sales tax;
the Commissioner may determine an amount to be the amount upon which, in the opinion of the Commissioner, sales tax should be paid and may make an assessment in relation to the person.
(2B) As soon as conveniently may be after an assessment has been made, the Commissioner shall cause notice in writing of the assessment to be served on the person liable to pay the tax or further tax.
(4) The omission to give any such notice shall not invalidate the assessment made by the Commissioner.
10A Special assessments
(1) A taxpayer may request the Commissioner, in accordance with this section, to make an assessment in respect of specified imported goods that are applied by the taxpayer to the taxpayer’s own use in a month in a sales tax quarter.
(2) A request under subsection (1) must be in writing and must be lodged with the Commissioner:
(a) if the taxpayer is a monthly remitter in relation to the month—not later than 21 days after the end of the month or within such further time as the Commissioner allows; or
(b) if the taxpayer is a quarterly remitter in relation to the quarter—not later than 21 days after the end of the quarter or within such further time as the Commissioner allows.
(3) The Commissioner shall comply with each request made under subsection (1).
(4) As soon as practicable after the assessment is made, the Commissioner shall cause notice in writing of the assessment to be served on the taxpayer who made the request under subsection (1).
10B Amended assessments
Except as otherwise provided, where an assessment has been amended, the amended assessment is an assessment for all the purposes of this Act.
11 Refunds of tax
(1) Where the Commissioner finds in any case that tax has been overpaid by a person, the Commissioner shall:
(a) refund the amount of any tax overpaid; or
(b) apply the amount of any tax overpaid against any liability of the person to the Commonwealth, being a liability arising under, or virtue of, an Act of which the Commissioner has the general administration, and refund any part of the amount that is not so applied.
(2) Notwithstanding anything contained in this section, if, any alteration is made in the rate of sales tax payable in respect of any goods, no refund, repayment or reduction shall, by reason of that alteration, be made of any amount paid or payable by any person as sales tax in respect of goods applied by a taxpayer to his own use before the date of assent to the law making the alteration.
(3) In this section, unless the contrary intention appears, tax includes:
(a) further tax; and
(b) additional tax under section 29 or Part VIII of the Sales Tax Assessment Act (No. 1) 1930 as applied by this Act.
Part V—Application of Sales Tax Assessment Act (No. 1) 1930
12 Application of provisions of Sales Tax Assessment Act (No. 1) 1930
(1) The following Parts, sections and subsections of the Sales Tax Assessment Act (No. 1) 1930‑1936, namely, sections 3, 3A, 3B, 3C and 3D, Parts II and III, subsections (5B) and (5C) of section 18, sections 20A, 23 and 25A, subsection 26(3A), sections 27 to 38A (inclusive), and Parts VIII and X, and the Schedules shall mutatis mutandis apply in relation to the imposition, assessment and collection of the tax chargeable under this Act in like manner as they apply in relation to the imposition, assessment and collection of the tax chargeable under that Act, but, for the purposes of this Act:
(aa) a reference in subsection 3(3A) of the Sales Tax Assessment Act (No. 1) 1930 as so applied to section 18B shall be read as a reference to section 4B;
(a) a reference in subsection 32(2A) of the Sales Tax Assessment Act (No. 1) 1930 as so applied to prescribed tax shall be read as including a reference to tax within the meaning of subsection 32(2) of that Act otherwise than in its application by virtue of this Act or any other Act;
(b) the reference in paragraph (c) of the definition of prescribed tax in subsection 32(2D) of the Sales Tax Assessment Act (No. 1) 1930 as so applied to this Act shall be taken to be omitted;
(c) the reference in subsection 35(2) of the Sales Tax Assessment Act (No. 1) 1930 as so applied to Part V shall be read as a reference to Part III;
(ca) the reference in section 38A and subsection 67(6) of that Act as so applied to section 26 shall be read as a reference to section 11 of this Act or subsection 26(3A) of that Act as so applied;
(d) the reference in section 46 of the Sales Tax Assessment Act (No. 1) 1930 as so applied to subsection 25(2) shall be read as a reference to subsection 10(2); and
(e) the words in parenthesis in section 46 of the Sales Tax Assessment Act (No. 1) 1930 as so applied shall be taken to be omitted.
(2) The power to make regulations, conferred by the application, by subsection (1) of this section, of section 73 of the Sales Tax Assessment Act (No. 1) 1930, shall include the power to make regulations for enabling registrations, certificates and securities made, issued or given for the purposes of that Act, to be treated as, or to be deemed to be, made, issued or given for the purposes also of this Act, and shall include the power generally to make regulations for treating acts, matters and things done, for the purposes of the Sales Tax Assessment Act (No. 1) 1930, under the sections and Parts of that Act made applicable to this Act, as done or deemed to be done under this Act.