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Taxation Administration Act 1953

  • - C2006C00189
  • In force - Superseded Version
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Act No. 1 of 1953 as amended, taking into account amendments up to Act No. 32 of 2006
An Act to provide for the administration of certain Acts relating to Taxation, and for purposes connected therewith
Administered by: Treasury
General Comments: This compilation is affected by a retrospective amendment, please see Tax Laws Amendment (2011 Measures No. 9) Act 2012 [Act No. 12 of 2012], for details.
Registered 20 Apr 2006
Start Date 06 Apr 2006
End Date 05 Jun 2006

Taxation Administration Act 1953

Act No. 1 of 1953 as amended

This compilation was prepared on 11 April 2006
taking into account amendments up to Act No. 32 of 2006

Volume 1 includes:       Table of Contents
                                    Sections 1–70

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section

Volume 2 includes:       First and Second Schedules
                                    Schedule 1
                                    Note 1
                                    Table of Acts
                                    Act Notes
                                    Table of Amendments
                                    Note 2
                                    Tables A and B

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra

  

  

  


Contents

Part I—Preliminary                                                                                                                1

1............ Short title [see Note 1]....................................................................... 1

2............ Interpretation...................................................................................... 1

2A......... Application of the Criminal Code...................................................... 3

3............ Extension of Act to external Territories............................................. 3

3AA...... Schedule 1........................................................................................... 3

Part IA—Administration                                                                                                     3

3A......... General administration of Act............................................................ 3

3B......... Annual report..................................................................................... 3

3C......... Secrecy................................................................................................ 3

3D......... Provision of taxation information to Australian Crime Commission. 3

3E.......... Use of tax information by law enforcement agencies and eligible Royal Commissions etc.    3

3EA....... Use by ASIO officers of tax information........................................... 3

3EB....... Use by legal practitioners of tax information provided by ASIO...... 3

3EC....... Use by IGIS officers of tax information provided by ASIO.............. 3

3F.......... Provision of taxation information to Chief Executive Officer of Customs              3

Part II—Commissioner of Taxation, Second Commissioner of Taxation and Deputy Commissioner of Taxation                                                                                                                    3

4............ Commissioner and Second Commissioners of Taxation..................... 3

4A......... Statutory Agency etc. for purposes of Public Service Act................ 3

5............ Tenure of Commissioner and Second Commissioners........................ 3

5A......... Remuneration and allowances of Commissioner and Second Commissioners         3

6............ Leave of absence................................................................................. 3

6A......... Resignation......................................................................................... 3

6B......... Acting appointments.......................................................................... 3

6C......... Suspension and removal from office of Commissioner or Second Commissioner   3

6D......... Powers of Second Commissioner....................................................... 3

7............ Deputy Commissioners of Taxation.................................................. 3

8............ Delegation........................................................................................... 3

Part IIA—Charges and penalties for failing to meet obligations                 3

Division 1—The general interest charge                                                           3

8AAA... Overview............................................................................................ 3

8AAB... When the general interest charge applies............................................ 3

8AAC... Amount of the general interest charge................................................ 3

8AAD... What is the general interest charge rate?........................................... 3

8AAE.... When the charge is due and payable................................................... 3

8AAF.... Notification by Commissioner........................................................... 3

8AAG... Remission of the charge...................................................................... 3

8AAGA Rounding of the charge....................................................................... 3

8AAH... Judgment for payment of an unpaid amount...................................... 3

Division 2—The failure to notify penalty                                                            3

8AAHA Division to stop applying.................................................................. 3

8AAI..... Overview............................................................................................ 3

8AAJ.... When the failure to notify penalty applies........................................ 3

8AAK... Amount of the failure to notify penalty............................................. 3

8AAL.... Notification by Commissioner........................................................... 3

8AAM.. Remission of the penalty.................................................................... 3

8AAN... Failure to pay the penalty.................................................................. 3

Division 3—The late reconciliation statement penalty                               3

8AANA Division to stop applying.................................................................. 3

8AAO... Overview............................................................................................ 3

8AAP.... When the late reconciliation statement penalty applies..................... 3

8AAQ... Amount of the late reconciliation statement penalty......................... 3

8AAR... Notification by Commissioner........................................................... 3

8AAS.... Remission of the penalty.................................................................... 3

8AAT... Failure to pay the penalty.................................................................. 3

Part IIB—Running balance accounts, application of payments and credits, and related matters                3

Division 1—Preliminary                                                                                              3

8AAZA Definitions.......................................................................................... 3

8AAZB. Trustee to be treated as separate entity for each capacity................. 3

Division 2—Running Balance Accounts (or RBAs)                                     3

8AAZC. Establishment of RBAs...................................................................... 3

8AAZD Allocation of tax debts to RBAs........................................................ 3

8AAZF. General interest charge on RBA deficit debt...................................... 3

8AAZG RBA statements................................................................................. 3

8AAZH Liability for RBA deficit debt............................................................ 3

8AAZI.. RBA statement to be evidence........................................................... 3

8AAZJ.. Evidentiary certificate about RBA transactions etc........................... 3

Division 3—Treatment of payments, credits and RBA surpluses        3

8AAZL. Amounts covered by this Division..................................................... 3

8AAZLAMethod 1—allocating the amount first to an RBA........................... 3

8AAZLBMethod 2—applying the amount first against a non-RBA
tax debt............................................................................................... 3

8AAZLCRBA surplus and related credits must remain equivalent if one or the other is applied         3

8AAZLDSpecial priority credits: HEC and FS assessment debts and
compulsory repayment amounts........................................................ 3

8AAZLE........................................... Instructions to Commissioner not binding  3

Division 3A—Refunds of RBA surpluses and credits                                3

8AAZLF...................... Commissioner must refund RBA surpluses and credits  3

8AAZLGRetaining refunds until information or notification given.................. 3

8AAZLHHow refunds are made....................................................................... 3

Division 4—Miscellaneous provisions about tax debts                             3

8AAZM................................................ When payments are treated as received  3

8AAZMAElectronic payment of tax debts...................................................... 3

8AAZMBSaturdays, Sundays and public holidays.......................................... 3

8AAZN Overpayments made by the Commissioner under taxation laws....... 3

Part III—Prosecutions and offences                                                                            3

Division 1—Preliminary                                                                                              3

8A......... Interpretation...................................................................................... 3

8AB...... Application of Part to the Development Allowance Authority Act 1992  3

Division 2—Offences                                                                                                    3

Subdivision A—Failure to comply with taxation requirements                          3

8B......... Interpretation...................................................................................... 3

8C......... Failure to comply with requirements under taxation law................... 3

8D......... Failure to answer questions when attending before the Commissioner etc.            3

8E.......... Penalties for failure to comply with requirements under taxation law 3

8F.......... Election to treat offence otherwise than as prescribed taxation offence  3

8G......... Order to comply with requirement..................................................... 3

8H......... Penalty for failure to comply with order to comply.......................... 3

8HA...... Court may order payment of amount in addition to penalty............. 3

Subdivision B—Offences relating to statements, records and certain other Acts             3

8J.......... Interpretation...................................................................................... 3

8K......... False or misleading statements........................................................... 3

8L.......... Incorrectly keeping records etc........................................................... 3

8M........ Penalties for offences against subsections 8K(1) and (1B) and 8L(1) and (1A)      3

8N......... Recklessly making false or misleading statements.............................. 3

8Q......... Recklessly incorrectly keeping records etc......................................... 3

8R......... Penalties for offences against sections 8N and 8Q............................. 3

8S.......... Election to treat offence otherwise than as prescribed taxation offence  3

8T......... Incorrectly keeping records with intention of deceiving or misleading etc.             3

8U......... Falsifying or concealing identity with intention of deceiving or misleading etc.      3

8V......... Penalties for offences against sections 8T and 8U............................. 3

8W........ Court may order payment of amount in addition to penalty............. 3

Subdivision BA—Offences relating to tax file numbers                                      3

8WA..... Unauthorised requirement etc. that tax file number be quoted........... 3

8WB...... Unauthorised recording etc. of tax file number................................... 3

8WC...... Conducting affairs so as to avoid tax file number requirements......... 3

Subdivision C—Miscellaneous                                                                                 3

8XA...... Unauthorised access to taxation records............................................. 3

8XB...... Secrecy................................................................................................ 3

8Y......... Liability of officers etc. of corporations............................................. 3

8Z......... Evidentiary certificate relating to previous convictions..................... 3

Division 3—Prosecution of taxation offences                                                  3

8ZA...... Prosecution of taxation offences......................................................... 3

8ZB....... Prosecution may be commenced at any time...................................... 3

8ZC....... Place where offence committed.......................................................... 3

8ZD...... Conduct by servants or agents of corporations.................................. 3

8ZE....... Civil penalty not payable if prosecution instituted........................... 3

8ZF....... Penalties for corporations................................................................... 3

8ZG...... Enforcement of orders for payment................................................... 3

8ZH...... Penalties not to relieve from tax......................................................... 3

Division 4—Prescribed taxation offences                                                          3

8ZJ........ Prosecution of prescribed taxation offences....................................... 3

8ZK...... Protection of witnesses...................................................................... 3

8ZL....... Averment............................................................................................ 3

8ZM..... Evidence of authority to institute proceedings................................... 3

8ZN...... Costs................................................................................................... 3

Division 5—Service of summons for prescribed taxation offences      3

9............ lnterpretation...................................................................................... 3

10.......... Service of summons by post.............................................................. 3

11.......... Notice of conviction in absentia......................................................... 3

12.......... Notice of intention to issue warrant in default of payment............... 3

13.......... Limitation of action to enforce payment of fine................................. 3

13A....... Setting aside of conviction or order.................................................... 3

13B....... Proof of service of summons or notice............................................... 3

13C....... Application of other laws................................................................... 3

Division 6—Setting aside etc. of conviction or order on application of Commissioner                3

13CA.... Setting aside etc. of conviction or order on application of Commissioner               3

Part IIIA—Co-operation between Commonwealth and State taxation authorities                3

Division 1—Interpretation                                                                                         3

13D....... Interpretation...................................................................................... 3

Division 2—Trans-border investigations                                                           3

13E........ State taxation officers may refer matters to Commissioner for investigation          3

13F........ Access to documents etc.................................................................... 3

13G....... Commissioner may obtain information and evidence......................... 3

13H....... State taxation officers to observe secrecy in relation to trans-border investigations               3

Division 3—Provision of Commonwealth taxation information to State taxation authorities     3

13J........ Provision of Commonwealth taxation information to State taxation authorities     3

Division 4—Certification by State taxation officer of copies of, and extracts from, documents               3

13K....... Certification by State taxation officer of copies of, and extracts from, documents 3

Division 5—Australian Taxation Office may perform functions under State/Territory debits tax laws                                                                                                                        3

13L........ Australian Taxation Office may perform functions under State/Territory debits tax laws     3

Part IV—Exchange control—taxation certificates                                              3

14A....... Interpretation...................................................................................... 3

14B....... Applications for issue of certificates.................................................. 3

14C....... Issue of certificates............................................................................. 3

14D....... Grounds on which issue of certificates may be refused..................... 3

14E........ Objections........................................................................................... 3

14I......... Commissioner may obtain information and evidence......................... 3

14J........ Access to books etc............................................................................ 3

14L........ Application of Part outside Australia................................................ 3

14N....... Notices................................................................................................ 3

Part IVA—Departure from Australia of certain tax debtors                         3

Division 1—Interpretation                                                                                         3

14Q....... Interpretation...................................................................................... 3

Division 2—Prohibition and authorisation of departure of certain tax debtors 3

14R....... Departure from Australia of certain tax debtors prohibited............... 3

14S........ Departure prohibition orders.............................................................. 3

14T....... Revocation and variation of departure prohibition orders.................. 3

14U....... Departure authorisation certificates................................................... 3

Division 3—Appeals from, and review of, decisions of the Commissioner         3

14V....... Appeals to courts against making of departure prohibition orders.... 3

14W...... Jurisdiction of courts.......................................................................... 3

14X....... Orders of court on appeal................................................................... 3

14Y....... Applications for review of certain decisions...................................... 3

Division 4—Enforcement                                                                                           3

14Z....... Powers of authorised officers............................................................. 3

14ZA.... Certain tax debtors to produce authority to depart etc...................... 3

Part IVC—Taxation objections, reviews and appeals                                        3

Division 1—Introduction                                                                                            3

14ZL..... Part applies to taxation objections..................................................... 3

14ZM... Division 2—Interpretive.................................................................... 3

14ZN.... Division 3—Taxation objections........................................................ 3

14ZO.... Division 4—Tribunal review.............................................................. 3

14ZP..... Division 5—Federal Court appeals.................................................... 3

Division 2—Interpretive provisions                                                                     3

14ZQ.... General interpretation provisions....................................................... 3

14ZR..... Taxation decisions covered by single notice to be treated as single decision           3

14ZS..... Ineligible income tax remission decisions............................................ 3

14ZT..... Ineligible sales tax remission decisions............................................... 3

Division 3—Taxation objections                                                                             3

14ZU.... How taxation objections are to be made............................................. 3

14ZV..... Limited objection rights in the case of certain amended taxation decisions             3

14ZVA.. Limited objection rights because of objection against private ruling.. 3

14ZW.... When taxation objections are to be made............................................ 3

14ZX.... Commissioner to consider applications for extension of time............ 3

14ZY..... Commissioner to decide taxation objections....................................... 3

14ZYA.. Person may require Commissioner to make an objection decision..... 3

14ZYB.. Requiring Commissioner to make a private ruling.............................. 3

14ZZ..... Person may seek review of, or appeal against, Commissioner’s decision               3

Division 4—AAT review of objection decisions and extension of time refusal decisions           3

14ZZA.. Modified AAT Act to apply............................................................. 3

14ZZB.. Sections 27, 28, 41 and 44A of the AAT Act not to apply to certain decisions    3

14ZZC.. Modification of section 29 of the AAT Act...................................... 3

14ZZD.. Modification of section 30 of the AAT Act...................................... 3

14ZZE.. Hearings before Tribunal other than Small Taxation Claims Tribunal to be held in private if applicant so requests............................................................................................................ 3

14ZZF.. Modification of section 37 of the AAT Act...................................... 3

14ZZG.. Modification of section 38 of the AAT Act...................................... 3

14ZZH.. Modification of section 41 of the AAT Act...................................... 3

14ZZJ... Modification of section 43 of the AAT Act...................................... 3

14ZZK.. Grounds of objection and burden of proof......................................... 3

14ZZL.. Implementation of Tribunal decisions................................................ 3

14ZZM. Pending review not to affect implementation of taxation decisions... 3

Division 5—Federal Court appeals against objection decisions           3

14ZZN.. Time limit for appeals........................................................................ 3

14ZZO.. Grounds of objection and burden of proof......................................... 3

14ZZP.. Order of Federal Court on appealable objection decision................... 3

14ZZQ.. Implementation of Federal Court order in respect of appealable objection decision               3

14ZZR.. Pending appeal not to affect implementation of taxation decisions... 3

14ZZS... Transfer of certain proceedings to Family Court............................... 3

Part V—Miscellaneous                                                                                                        3

15.......... Appearance by Commissioner etc...................................................... 3

15A....... Certification by Commissioner of copies of, and extracts from, documents           3

16.......... Payments out of Consolidated Revenue Fund................................... 3

16A....... Regulations may provide for methods of payment of tax liabilities etc. 3

16B....... Certain liabilities to be reduced to nearest multiple of 5 cents........... 3

17.......... Powers of taxation officers in relation to references to currency etc.. 3

17A....... Powers of Federal Court and Federal Magistrates Court in respect of taxation matters         3

17B....... Injunctions to prevent contravention of secrecy provisions.............. 3

17C....... Requests to be prescribed as an eligible Royal Commission.............. 3

18.......... Regulations......................................................................................... 3

Part VI—Administration of the GST, wine equalisation tax and luxury car tax      3

Division 1—Introduction                                                                                            3

19.......... Overview............................................................................................ 3

20.......... Meaning of expressions...................................................................... 3

Division 2—Assessments                                                                                          3

22.......... Commissioner may make assessment of indirect tax.......................... 3

23.......... Request for assessment...................................................................... 3

24.......... Indirect tax liabilities do not depend on assessment........................... 3

25.......... Commissioner must give notice of the assessment............................. 3

26.......... Amendment of assessment................................................................. 3

27.......... Later assessment prevails in case of inconsistency............................ 3

Division 3—Recovery                                                                                                  3

35.......... Time limit on recovering unpaid indirect tax...................................... 3

36.......... Time limit on credits and refunds....................................................... 3

37.......... Reliance on Commissioner’s interpretation of an indirect tax law..... 3

39.......... Restriction on refunds........................................................................ 3

Division 4—Penalties                                                                                                   3

40.......... Unpaid tax.......................................................................................... 3

46A....... Indirect tax amending Acts cannot impose penalties etc. earlier than 28 days after Royal Assent         3

49.......... Relationship with offence provisions................................................. 3

Division 5—Special rules for certain entities                                                  3

50.......... Liability of partners............................................................................ 3

51.......... Liability of participants in GST joint ventures.................................. 3

52.......... Liability related to unincorporated associations or bodies of persons 3

52A....... Liability related to non-profit sub-entities......................................... 3

53.......... Liability of members of GST groups.................................................. 3

54.......... Liability of representatives of incapacitated entities.......................... 3

56.......... Public officer of a company................................................................ 3

57.......... Liability of directors etc. of a company............................................. 3

Division 6—Evidence                                                                                                   3

59.......... Production of assessment or declaration is conclusive evidence........ 3

60.......... Certificate of amount payable is prima facie evidence....................... 3

61.......... Signed copies are evidence.................................................................. 3

Division 7—Review                                                                                                       3

62.......... Reviewable GST decisions, reviewable wine tax decisions and reviewable indirect tax decisions           3

Division 7A—Effect of alterations to wine tax or luxury car tax laws 3

62A....... Alteration of contracts if cost of supplies etc. is affected by later alteration to wine tax or luxury car tax laws    3

Division 7B—Indirect tax refund schemes                                                       3

62B....... Refund scheme—defence related international obligations................. 3

62C....... Refund scheme—international obligations......................................... 3

Division 8—Other administrative provisions                                                  3

63.......... Commissioner has general administration of indirect tax laws........... 3

64.......... Commissioner must prepare annual report........................................ 3

65.......... Commissioner may direct a person to provide information............... 3

66.......... Access to premises etc....................................................................... 3

67.......... Address for service............................................................................. 3

68.......... Protection of confidentiality of information....................................... 3

69.......... Notices etc. by Commissioner must be in writing.............................. 3

70.......... Keeping records of indirect tax transactions....................................... 3


An Act to provide for the administration of certain Acts relating to Taxation, and for purposes connected therewith

Part IPreliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Taxation Administration Act 1953.

2  Interpretation

             (1)  In this Act (except Schedule 1), unless the contrary intention appears:

ASIO means the Australian Security Intelligence Organisation.

ASIO officer means:

                     (a)  the Director-General of Security; or

                     (b)  a person employed under paragraph 84(1)(a) or (b) of the Australian Security Intelligence Organisation Act 1979.

authorised ASIO officer means:

                     (a)  the Director-General of Security; or

                     (b)  any other ASIO officer who has been authorised in writing by the Director-General of Security to receive particular tax information.

authorised law enforcement agency officer means:

                     (a)  the head of a law enforcement agency; or

                     (b)  an officer of a law enforcement agency authorised in writing by the head of the agency to perform the functions of an authorised law enforcement agency officer under this Act.

authorised Royal Commission officer means:

                     (a)  the person, or each of the persons, constituting an eligible Royal Commission; or

                     (b)  an official of an eligible Royal Commission authorised in writing by the Chairperson of the eligible Royal Commission to perform the functions of an authorised Royal Commission officer under this Act.

Chairperson, in relation to an eligible Royal Commission, means:

                     (a)  if the eligible Royal Commission is constituted by a single person—that person; or

                     (b)  if:

                              (i)  the eligible Royal Commission is constituted by 2 or more members; and

                             (ii)  one of those members is appointed to be the Chairperson (however described) of the eligible Royal Commission;

                            that member; or

                     (c)  if:

                              (i)  the eligible Royal Commission is constituted by 2 or more members; and

                             (ii)  paragraph (b) does not apply;

                            whichever of those members is designated as the Chairperson of the eligible Royal Commission for the purposes of this Act in accordance with a written notice that is:

                            (iii)  signed by all of those members; and

                            (iv)  given to the Commissioner.

Commissioner means the Commissioner of Taxation.

Deputy Commissioner means any Deputy Commissioner of Taxation.

Director-General of Security means the Director-General of Security holding office under the Australian Security Intelligence Organisation Act 1979.

eligible Royal Commission means:

                     (a)  the Royal Commission of Western Australia referred to in a notice published in the Western Australian Government Gazette (No. 4 Special Issue) on 8 January 1991; or

                     (b)  a prescribed Royal Commission of the Commonwealth, a State or a Territory; or

                     (c)  a prescribed commission of inquiry of a State or a Territory; or

                     (d)  a prescribed board of inquiry of a State or a Territory.

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

exempt Australian government agency has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.

failure to notify penalty means the penalty worked out under Division 2 of Part IIA.

general interest charge means the charge worked out under Division 1 of Part IIA.

head, in relation to a law enforcement agency, means:

                     (a)  in the case of the Australian Federal Police—the Commissioner of that police force;

                     (b)  in the case of a police force of a State or the Northern Territory—the commanding officer of the police force;

                     (c)  in the case of the Office of the Director of Public Prosecutions—the Director of Public Prosecutions;

                     (d)  in the case of the Australian Crime Commission—the Chief Executive Officer of the Commission;

                  (dab)  in the case of the Independent Commission Against Corruption—the Commissioner of the Commission;

                  (dac)  in the case of the New South Wales Crimes Commission—the Chairperson of the Commission;

                  (dad)  in the case of the Crime and Misconduct Commission—the Chairperson of that Commission;

                  (dae)  in the case of the New South Wales Police Integrity Commission—the Commissioner for the New South Wales Police Integrity Commission;

                  (dag)  in the case of the Corruption and Crime Commission of Western Australia—the Commissioner for that Commission;

                    (da)  in the case of the Australian Securities Commission—the Chairperson of that Commission;

                     (e)  in the case of the National Companies and Securities Commission—the Chairman of that Commission;

                      (f)  in the case of the Corporate Affairs Commission of a State—the Commissioner for Corporate Affairs of that State;

                     (g)  in the case of the Corporate Affairs Commission of the Northern Territory—the Commissioner for Corporate Affairs for the Northern Territory; and

                     (h)  in the case of the Corporate Affairs Commission for the Australian Capital Territory—the Commissioner appointed under the Corporate Affairs Commission Ordinance 1980 of that Territory.

IGIS officer means:

                     (a)  the Inspector-General; or

                     (b)  a member of staff appointed to assist the Inspector-General under the Inspector-General of Intelligence and Security Act 1986.

Inspector-General means the Inspector-General of Intelligence and Security holding office under the Inspector-General of Intelligence and Security Act 1986.

late reconciliation statement penalty means the penalty worked out under Division 3 of Part IIA.

law enforcement agency means:

                     (a)  the Australian Federal Police; or

                     (b)  the police force of a State or of the Northern Territory; or

                     (c)  the Office of the Director of Public Prosecutions; or

                     (d)  the Australian Crime Commission; or

                  (dab)  the Independent Commission Against Corruption established by the Independent Commission Against Corruption Act 1988 of New South Wales; or

                  (dac)  the New South Wales Crimes Commission; or

                  (dae)  the New South Wales Police Integrity Commission; or

                  (daf)  the Crime and Misconduct Commission of Queensland; or

                  (dag)  the Corruption and Crime Commission of Western Australia; or

                    (da)  the Australian Securities Commission; or

                     (e)  the National Companies and Securities Commission; or

                      (f)  a Corporate Affairs Commission established under a law of a State, of the Northern Territory or of the Australian Capital Territory.

officer means a person appointed or engaged under the Public Service Act 1999.

official, in relation to an eligible Royal Commission, means:

                     (a)  a barrister or solicitor appointed to assist the person or persons constituting the eligible Royal Commission; or

                     (b)  a person assisting a barrister or solicitor so appointed; or

                     (c)  a member of a police force assigned to the eligible Royal Commission to carry out an investigation on behalf of, or under the control of, the person or persons constituting the eligible Royal Commission; or

                     (d)  a person or employee under the control of the person or persons constituting the eligible Royal Commission.

Second Commissioner means a Second Commissioner of Taxation.

Small Taxation Claims Tribunal means the Taxation Appeals Division of the Administrative Appeals Tribunal when that Division is required under Part IIIAA of the Administrative Appeals Tribunal 1975 to be known as the Small Taxation Claims Tribunal.

taxation law means:

                     (a)  this Act;

                     (b)  any other Act of which the Commissioner has the general administration (other than an Act prescribed for the purposes of this paragraph);

                    (ba)  the A New Tax System (Australian Business Number) Act 1999;

                     (c)  regulations under an Act referred to in paragraph (a), (b) or (ba).

Note 2:       Subsection (2) restricts the meaning of this term in Part III, and in Subdivision 284-B in Schedule 1.

tax liability means a liability to the Commonwealth arising under, or by virtue of, a taxation law.

Tribunal means the Administrative Appeals Tribunal or, in appropriate circumstances, the Small Taxation Claims Tribunal.

             (2)  Despite the definition of taxation law in subsection (1), the following are not taxation laws for the purposes of Part III, and Subdivision 284-B in Schedule 1:

                     (a)  any Excise Act (as defined in subsection 4(1) of the Excise Act 1901);

                     (b)  the Fuel (Penalty Surcharges) Administration Act 1997.

2A  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

3  Extension of Act to external Territories

             (1)  Subject to subsection (2), this Act extends to every external Territory.

             (2)  Part IV does not extend to an external Territory to which the Banking Act 1959 does not extend.

3AA  Schedule 1

             (1)  Schedule 1 has effect.

Application of interpretation provisions of Income Tax Assessment Act 1997

             (2)  An expression has the same meaning in Schedule 1 as in the Income Tax Assessment Act 1997.

             (3)  Division 950 of the Income Tax Assessment Act 1997 (which contains rules for interpreting that Act) applies to Schedule 1 to this Act as if the provisions in that Schedule were provisions of that Act.


 

Part IAAdministration

  

3A  General administration of Act

                   The Commissioner has the general administration of this Act.

3B  Annual report

             (1)  The Commissioner shall, as soon as practicable after 30 June in each year, prepare and furnish to the Minister a report on the working of this Act.

       (1AA)  A report under subsection (1) in relation to a year ending on 30 June shall:

                     (a)  include information concerning:

                              (i)  any breaches or evasions of Part IV; and

                             (ii)  any breaches of undertakings given for the purposes of subsection l4C(2);

                            of which the Commissioner has notice; and

                     (b)  set out, in relation to each general category of offence and in relation to each law enforcement agency:

                              (i)  the number of occasions (if any) during the year on which the Commissioner was requested by, or on behalf of, the head of the agency to disclose information under subsection 3E(1) to authorised law enforcement agency officers representing the agency; and

                             (ii)  the number of occasions (if any) during the year on which information was disclosed under subsection 3E(1) to authorised law enforcement agency officers representing the agency; and

                     (c)  set out, in relation to each general category of offence and in relation to each eligible Royal Commission:

                              (i)  the number of occasions (if any) during the year on which the Commissioner was requested by, or on behalf of, the Chairperson of the eligible Royal Commission to disclose information under subsection 3E(1) to authorised Royal Commission officers representing the eligible Royal Commission; and

                             (ii)  the number of occasions (if any) during the year on which information was disclosed under subsection 3E(1) to authorised Royal Commission officers representing the eligible Royal Commission; and

                     (d)  set out, in relation to ASIO:

                              (i)  the number of occasions (if any) during the year on which the Commissioner was requested by, or on behalf of, the Director-General of Security to disclose information under subsection 3EA(1) to an authorised ASIO officer; and

                             (ii)  the number of occasions (if any) during the year on which information was disclosed under subsection 3EA(1) to an authorised ASIO officer.

          (1B)  Subsection (1) does not apply in relation to Part III and sections 13J, 15 and 15A insofar as that Part and those sections apply in relation to the Development Allowance Authority Act 1992.

             (2)  The Minister shall cause a copy of a report furnished under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

             (3)  For the purposes of section 34C of the Acts Interpretation Act 1901, a report that is required by subsection (1) to be furnished as soon as practicable after 30 June in a year shall be taken to be a periodic report relating to the working of this Act during the year ending on that 30 June.

             (4)  In this section:

this Act does not include Part IVC except insofar as it relates to Part IV.

3C  Secrecy

             (1)  In this section, officer means a person:

                     (a)  who is or has been appointed or employed by the Commonwealth; or

                     (b)  to whom powers or functions have been delegated by the Commissioner;

and who, by reason of the appointment or employment or in the course of the employment, or by reason of, or in the course of the exercise of powers or the performance of functions under, the delegation, as the case may be, may acquire or has acquired information with respect to the affairs of any other person disclosed or obtained under or for the purposes of this Act.

        (1AB)  This section does not apply in relation to information disclosed or obtained under or for the purposes of Part III insofar as that Part applies in relation to the Development Allowance Authority Act 1992.

          (1A)  For the purposes of this section, a person who, although not appointed or employed by the Commonwealth, performs services for the Commonwealth shall be taken to be employed by the Commonwealth.

             (2)  Subject to subsection (4), a person who is or has been an officer shall not directly or indirectly:

                     (a)  make a record of any information with respect to the affairs of a second person; or

                     (b)  divulge or communicate to a second person any information with respect to the affairs of a third person;

being information disclosed or obtained under or for the purposes of this Act and acquired by the person by reason of the person’s appointment or employment by the Commonwealth or in the course of such employment, or by reason of the delegation to the person of powers or functions by the Commissioner, or in the course of the exercise of such powers or the performance of such functions, as the case may be.

Penalty:  10,000 or imprisonment for 2 years, or both.

          (2A)  Subsection (2) does not apply to the extent that the person makes a record of the information, or divulges or communicates the information:

                     (a)  for the purposes of this Act; or

                     (b)  in the performance of the person’s duties as an officer; or

                     (c)  for the purposes of complying with an obligation Australia has under an agreement between Australia and another country.

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

             (3)  Except when it is necessary to do so for the purpose of carrying into effect the provisions of a taxation law, a person who is or has been an officer shall not be required:

                     (a)  to produce in court any document made or given under or for the purposes of this Act; or

                     (b)  to divulge or communicate to a court a matter or thing with respect to information disclosed or obtained under or for the purposes of this Act;

being a document or information acquired by the person by reason of the person’s appointment or employment by the Commonwealth or in the course of such employment, or by reason of the delegation to the person of powers or functions by the Commissioner, or in the course of the exercise of such powers or the performance of such functions, as the case may be.

             (4)  Nothing in subsection (2) shall be taken to prohibit the Commissioner, a Second Commissioner, a Deputy Commissioner or a person authorized by the Commissioner, a Second Commissioner or a Deputy Commissioner from communicating any information to a person performing, as an officer, duties in relation to a taxation law, for the purpose of enabling the person to perform those duties.

             (5)  For the purposes of subsection (2), an officer shall be deemed to have communicated information to another person in contravention of that subsection if:

                     (a)  the officer communicates that information to any Minister of State of the Commonwealth, any Minister of the Crown of a State or any Minister of the Northern Territory; and

                     (b)  the information was acquired by the officer otherwise than for the purposes of Part II.

             (6)  An officer shall, if and when required by the Commissioner, a Second Commissioner or a Deputy Commissioner to do so, make an oath or declaration, in a manner and form specified by the Commissioner by instrument in writing, to maintain secrecy in conformity with the provisions of this section.

             (7)  For the purposes of this section, information communicated to the Commissioner by a person performing a function, or exercising a power, under a law of a State or of an internal Territory relating to taxation shall be taken to have been acquired by the Commissioner for the purposes of this Act.

             (8)  A reference in this section to a document or information acquired by a person does not include a reference to a document or information acquired by the person under a provision of this Part (other than this section) that authorises the disclosure of information.

             (9)  In this section:

this Act does not include Part IVC except insofar as it relates to Part IV, and does not include Part VI.

3D  Provision of taxation information to Australian Crime Commission

             (1)  Notwithstanding anything in a taxation secrecy provision, the Commissioner may communicate information to the Chief Executive Officer of the ACC for the purposes of a tax-related investigation.

             (2)  Where:

                     (a)  information has, whether before or after the commencement of this section, been communicated to a Royal Commission under paragraph 16(4)(k) of the Income Tax Assessment Act 1936; or

                     (b)  information has been communicated to the State Commissioner under section 16A of that Act;

and the Royal Commission or the State Commissioner, as the case may be, is of the opinion that the information is or may be relevant to a tax-related investigation, the Royal Commission or State Commissioner may communicate the information to the Chief Executive Officer of the ACC in spite of subsection 16(4A) or section 16A of that Act, as the case may be.

             (4)  Where a special ACC operation/investigation is being carried out and the Chief Executive Officer of the ACC considers that the Commissioner, under the provisions of a taxation law or of a previous law of the Commonwealth of which the Commissioner had the general administration, may have acquired particular information (in this section referred to as the requested information) that is relevant to the operation or investigation, the Chief Executive Officer of the ACC may apply to a Judge for an order under subsection (7).

             (5)  An application under subsection (4) shall be in writing and shall be accompanied by an affidavit made by the applicant that:

                     (a)  sets out details of the operation or investigation in relation to which the application is made; and

                     (b)  specifies particulars of the requested information.

             (6)  The Chief Executive Officer of the ACC who makes an application under subsection (4) shall give notice in writing to the Commissioner of the making of the application and of the particulars of the requested information.

             (7)  Where an application is made to a Judge under subsecton (4):

                     (a)  the Judge may order the Commissioner to disclose to the Chief Executive Officer of the ACC all of the requested information, or such of the requested information as is specified in the order, that the Commissioner has acquired under the provisions of a taxation law or of a previous law of the Commonwealth of which the Commissioner had the general administration; and

                     (b)  if the Judge makes an order under paragraph (a)—the Judge may make a further order prohibiting the Chief Executive Officer of the ACC from communicating the information except in such manner as is, and to such persons (being persons to whom the Chief Executive Officer of the ACC is otherwise entitled to communicate the information) as are, specified in the order, and a Judge may at any time, on application by the Chief Executive Officer of the ACC or by the Commissioner, notice of which shall be given to the Commissioner or to the Chief Executive Officer of the ACC, as the case requires, vary or revoke such a further order.

             (8)  A Judge shall not make an order under subsection (7) in relation to an application unless:

                     (a)  the Commissioner has been given the opportunity to bring to the notice of the Judge any matter to which the Commissioner considers the Judge should have regard in considering the application;

                     (b)  the applicant has given to the Judge, on oath or by affidavit, such further information (if any) as the Judge requires concerning the operation or investigation in relation to which the application is made; and

                     (c)  the Judge is satisfied that:

                              (i)  there are reasonable grounds for believing that the information to be specified in the order is relevant to the operation or investigation in relation to which the application is made; and

                             (ii)  the information to be specified in the order is not readily obtainable by the Chief Executive Officer of the ACC from a source other than the Commissioner.

             (9)  A Judge, in considering for the purposes of paragraph (8)(c) whether or not particular information that may be relevant to an operation or investigation is readily obtainable by the Chief Executive Officer of the ACC from a source other than the Commissioner, shall have regard to any prejudice to the conduct of the operation or investigation that may result if the Chief Executive Officer of the ACC is required to obtain the information from such a source.

           (10)  Notwithstanding anything in a taxation secrecy provision, where a Judge makes an order under subsection (7):

                     (a)  in the case of an order under paragraph (7)(a)—the Commissioner shall comply with the order; or

                     (b)  in the case of an order under paragraph (7)(b) that has not been revoked—the Chief Executive Officer of the ACC shall comply with the order, or with the order as varied pursuant to paragraph (7)(b), as the case requires.

           (11)  Subject to subsections (12) and (13), where information is communicated to the Chief Executive Officer of the ACC under:

                     (a)  subsection (1) or (2); or

                     (b)  an order made under subsection (7);

then:

                    (ba)  the Chief Executive Officer of the ACC may, in a manner that does not identify, and is not reasonably capable of being used to identify, a person to whom the information relates, communicate the information to the Board of the ACC;

                     (c)  the Chair of the Board of the ACC may, in a manner that does not identify, and is not reasonably capable of being used to identify, a person to whom the information relates, communicate the information to the Inter-Governmental Committee in a report by the Chair under subsection 59(4) of the ACC Act;

                    (ca)  the Chief Executive Officer of the ACC may communicate the information to an examiner who is conducting an examination under Division 2 of Part II of the ACC Act;

                     (d)  an examiner may divulge the information in the course of such an examination before the examiner;

                     (e)  the Chief Executive Officer of the ACC may communicate the information to the Commissioner of the Australian Federal Police, or to the commanding officer of the Police Force of a State, if the Chief Executive Officer of the ACC is of the opinion that the information indicates that a person may have committed an offence against a law of the Commonwealth or of a Territory, or against a law of that State, as the case may be, being an offence the punishment, or maximum punishment, for which is or includes imprisonment for life or for a period exceeding 6 months;

                      (f)  subject to paragraphs (ba), (c), (ca), (d) and (e), the Chief Executive Officer of the ACC, the Chair of the Board of the ACC and an examiner must not divulge or communicate the information except to a member of the staff of the ACC for the purposes of, or in connection with:

                              (i)  in a case where paragraph (a) applies—a tax-related investigation; or

                             (ii)  in a case where paragraph (b) applies—a special ACC operation/investigation;

                     (g)  a person who is no longer the Chief Executive Officer of the ACC, the Chair of the Board of the ACC or an examiner must not make a record of the information, or divulge or communicate the information, in any circumstances;

                     (h)  a person to whom information has been communicated in accordance with paragraph (d) shall not make a record of the information, or divulge or communicate the information, in any circumstances; and

                      (j)  a member of the staff of the ACC to whom information has been communicated in accordance with paragraph (f) or this paragraph shall not:

                              (i)  while he or she is such a person—divulge or communicate the information except to another member of the staff of the ACC, or to an examiner, for the purposes of, or in connection with:

                                        (A)  in the case of information that was originally communicated to the Chief Executive Officer of the ACC pursuant to subsection (1) or (2)—a tax-related investigation;

                                        (B)  in the case of information that was originally communicated to the Chief Executive Officer of the ACC pursuant to an order made under subsection (7)—a special ACC operation/investigation; or

                             (ii)  when he or she is no longer such a person—make a record of the information, or divulge or communicate the information, in any circumstances.

           (12)  Nothing in subsection (11) prevents the communication of information respecting the affairs of a person to:

                     (a)  if the person is not a company—the person;

                     (b)  if the person to whose affairs the information relates is a company:

                              (i)  any person who is, or has been, a director or officer of the company; or

                             (ii)  any person who is, or has been, directly involved in, or responsible for, the preparation of information furnished to the Commissioner on behalf of the company; or

                     (c)  the person who furnished the information to the Commissioner.

           (13)  Where subsection (12) permits the communication of information to a person, nothing in subsection (11) prevents the communication of the information to a barrister or solicitor appearing before an examiner for the purpose of representing the person.

           (14)  Where information is communicated to a person in accordance with subsection (12) or (13), being information that was not furnished to the Commissioner by the person and does not relate to the affairs of the person, the person shall not make a record of the information, or divulge or communicate the information, in any circumstances.

           (15)  Where information is communicated under paragraph (11)(e) to the commanding officer of a Police Force:

                     (a)  that commanding officer must not divulge or communicate the information; and

                     (b)  a person who is no longer the commanding officer of that Police Force must not make a record of the information, or divulge or communicate the information, in any circumstances; and

                     (c)  a person to whom information has been communicated in accordance with subsection (15A) or (15B) must not:

                              (i)  while he or she is a person or employee under the control of the commanding officer of that Police Force—divulge or communicate the information; or

                             (ii)  when he or she is no longer a person or employee under the control of the commanding officer of that Police Force—make a record of the information, or divulge or communicate the information, in any circumstances.

        (15A)  Paragraph (15)(a) does not apply where the commanding officer, while still the commanding officer of that Police Force, divulges or communicates the information to a person or employee under his or her control for the purposes of, or in connection with, the performance by that person or employee of the duties of his or her office or employment.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (15A), see subsection 13.3(3) of the Criminal Code.

         (15B)  Subparagraph (15)(c)(i) does not apply where the person, while he or she is a person or employee under the control of the commanding officer of that Police Force, divulges or communicates the information to:

                     (a)  that commanding officer for the purposes of, or in connection with, the performance by that commanding officer of the duties of his or her office; or

                     (b)  to another person or employee under the control of that commanding officer for the purposes of, or in connection with, the performance by that person or employee of the duties of his or her office or employment.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (15B), see subsection 13.3(3) of the Criminal Code.

           (16)  If information is communicated to the Chief Executive Officer of the ACC under subsection (1) or (2) or under an order made under subsection (7), then nothing in subsection (11), (14), (15) or (17) prohibits:

                     (a)  the communication of the information to a person for the purposes of, or in connection with, the prosecution of a person for a taxation offence; or

                     (b)  if the information is admissible in a prosecution of a person for a taxation offence—the communication of the information to a court in the course of proceedings before that court against the last-mentioned person for that offence.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (16), see subsection 13.3(3) of the Criminal Code.

           (17)  A person to whom information has been communicated in accordance with paragraph (16)(a) shall not make a record of the information, or divulge or communicate the information, except as permitted by this section.

           (18)  Notwithstanding anything in the ACC Act, a person shall not be required pursuant to a provision of that Act to divulge or communicate information in particular circumstances to the Chief Executive Officer of the ACC, to an examiner, or to a member of the staff of the ACC, if a taxation secrecy provision would, but for subsection (1), prohibit the person from so divulging or communicating the information in those circumstances.

           (19)  A person to whom information is communicated pursuant to subsection (1), (2), (11), (15A), (15B) or (16) or pursuant to an order made under subsection (7) shall not be required to divulge or communicate that information to any court.

           (21)  A person who makes a record of, or divulges or communicates, information in contravention of a provision of this section is guilty of an offence punishable, upon conviction, by a fine of an amount not exceeding $10,000 or imprisonment for a period not exceeding 2 years, or both.

           (22)  In this section, unless the contrary intention appears:

ACC means the Australian Crime Commission.

ACC Act means the Australian Crime Commission Act 2002.

ACC operation/investigation has the same meaning as in the ACC Act.

Board of the ACC means the Board of the Australian Crime Commission established under section 7B of the ACC Act.

commanding officer, in relation to a Police Force, means, in the case of the Australian Federal Police, the Commissioner of the Australian Federal Police.

company means a body or association, whether incorporated or unincorporated, but does not include a partnership.

examiner has the same meaning as in the ACC Act.

inquiry means the inquiry being made by Gerald Edward Fitzgerald Q.C. under the Order in Council that was made under The Commissions of Inquiry Act of 1950 of the State of Queensland and published in the Queensland Government Gazette, on 26 May 1987, at pages 758A and 758B, being that Order in Council as amended by:

                     (a)  the Order in Council made under that Act and published in the Queensland Government Gazette, on 24 June 1987, at pages 1841A and 1841B; and

                     (b)  any other instrument, whether made before or after the commencement of this section.

lnter-Governmental Committee means the Inter-Governmental Committee referred to in section 8 of the ACC Act.

Judge means a person who is a Judge of the Federal Court of Australia.

member of the staff of the ACC has the same meaning as in the ACC Act.

Police Force means the Australian Federal Police or a Police Force of a State.

special ACC operation/investigation has the same meaning as in the ACC Act.

State includes the Northern Territory.

State Commissioner means Gerald Edward Fitzgerald Q.C., in his capacity as the person making the inquiry.

taxation offence has the same meaning as that expression has in Part III.

taxation secrecy provision means a provision of a taxation law, being a provision that is a secrecy provision for the purposes of the ACC Act.

tax-related investigation means an ACC operation/investigation, in so far as it relates to a taxation offence or taxation offences.

Territory does not include the Northern Territory.

3E  Use of tax information by law enforcement agencies and eligible Royal Commissions etc.

             (1)  Notwithstanding any taxation secrecy provision, the Commissioner may disclose information acquired by the Commissioner under the provisions of a tax law to an authorised law enforcement agency officer, or to an authorised Royal Commission officer, if the Commissioner is satisfied that the information is relevant to:

                     (a)  establishing whether a serious offence has been, or is being, committed; or

                     (b)  the making, or proposed or possible making, of a proceeds of crime order.

             (2)  Where information is communicated to an officer under subsection (1) of this section or paragraph 3EA(3)(e), the officer must not divulge or communicate the information to another person, or make a record of the information.

          (2A)  Subsection (2) does not apply to the extent that the information was divulged or communicated, or the record of the information was made, for, or in connection with:

                     (a)  the investigation of a serious offence; or

                     (b)  an investigation relating to the making, or proposed or possible making, of a proceeds of crime order.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2A), see subsection 13.3(3) of the Criminal Code.

          (2B)  A person to whom information has been communicated in accordance with subsection (2A) or (2C) must not divulge or communicate the information to another person, or make a record of the information.

          (2C)  Subsection (2B) does not apply to the extent that the information was divulged or communicated, or the record of the information was made, for, or in connection with, the investigation mentioned in subsection (2A).

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2C), see subsection 13.3(3) of the Criminal Code.

             (3)  Where information is communicated to a person under subsection (1), (2A) or (2C) of this section or paragraph 3EA(3)(e), the person:

                     (a)  shall not voluntarily give the information in evidence in a proceeding before a court; and

                     (b)  shall not be required to divulge or communicate the information to a court.

             (4)  Where information is communicated to an officer under subsection (1) of this section or paragraph 3EA(3)(e), nothing in subsection (2), (2B) or (3) prohibits:

                     (a)  the communication of the information to a person, or the making of a record of the information, for the purposes of, or in connection with:

                              (i)  the prosecution, or proposed or possible prosecution, of a person for a tax-related offence; or

                             (ii)  proceedings, or proposed or possible proceedings, for the making of a proceeds of crime order; or

                     (b)  the voluntary communication of the information to a court in the course of either of the following proceedings before that court:

                              (i)  a prosecution of a person for a tax-related offence;

                             (ii)  proceedings for the making of a proceeds of crime order.

             (5)  A person to whom information has been communicated in accordance with paragraph (4)(a) or this subsection shall not divulge or communicate the information, or make a record of the information.

          (5A)  Subsection (5) does not apply to the extent that the information was divulged or communicated, or the record of the information was made, for, or in connection with:

                     (a)  the prosecution referred to in subparagraph (4)(a)(i); or

                     (b)  the proceedings referred to in subparagraph (4)(a)(ii).

Note:          A defendant bears an evidential burden in relation to the matters in subsection (5A), see subsection 13.3(3) of the Criminal Code.

             (6)  A person to whom information is communicated in accordance with paragraph (4)(a) or subsection (5) shall not be required to divulge or communicate that information to a court.

          (6A)  If information is communicated to an authorised Royal Commission officer under subsection (1):

                     (a)  the person or persons constituting the eligible Royal Commission concerned may, in a manner that does not identify, and is not reasonably capable of being used to identify, the person to whom the information relates:

                              (i)  communicate the information to the appropriate executive authority in a report by the eligible Royal Commission; or

                             (ii)  divulge the information in the course of a proceeding conducted by the eligible Royal Commission, other than a proceeding conducted in private; and

                     (b)  the person or persons constituting the eligible Royal Commission concerned may communicate the information to the appropriate executive authority in a report by the eligible Royal Commission; and

                     (c)  the person or persons constituting the eligible Royal Commission concerned may divulge the information in the course of a proceeding conducted in private by the eligible Royal Commission where each person present is covered by one of the following categories:

                              (i)  the person or persons constituting the eligible Royal Commission;

                             (ii)  an official of the eligible Royal Commission;

                            (iii)  if the person to whose affairs the information relates is a company:

                                        (A)  a person who is, or has been, a director or officer of the company; or

                                        (B)  a person who is, or has been, directly involved in, or responsible for, the preparation of information given to the Commissioner on behalf of the company;

                            (iv)  if the person to whose affairs the information relates is not a company—that person;

                             (v)  the person who gave the information to the Commissioner;

                            (vi)  a barrister or solicitor representing either of the following in relation to the proceeding:

                                        (A)  a company covered by subparagraph (iii);

                                        (B)  a person covered by sub-subparagraph (iii)(A) or (B) or subparagraph (iv) or (v).

          (6B)  A person does not contravene subsection (2) or (2B) because of anything done for the purposes of enabling a thing mentioned in paragraph (6A)(a), (b) or (c) to happen.

          (6C)  If information is communicated to the appropriate executive authority under paragraph (6A)(b), the executive authority:

                     (a)  must not divulge or communicate the information to another person, or make a record of the information; and

                     (b)  must not voluntarily give the information in evidence in a proceeding before a court; and

                     (c)  is not to be required to divulge or communicate the information to a court.

        (6CA)  Paragraph (6C)(a) does not apply to the extent that the information was divulged or communicated, or the record of the information was made, for the purposes of, or in connection with, the disclosure of the information to an authorised law enforcement agency officer.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (6CA), see subsection 13.3(3) of the Criminal Code.

          (6D)  If information is communicated to an authorised law enforcement agency officer under paragraph (6C)(a), this section has effect as if the information had been communicated to the officer under subsection (1).

             (7)  A person who divulges or communicates information, or makes a record of information, in contravention of this section is guilty of an offence punishable, upon conviction, by a fine not exceeding $10,000 or imprisonment for a period not exceeding 2 years, or both.

             (8)  Subsection (1) is in addition to, and not in derogation of, any other provision of this Act or of any other law relating to the communication of information.

             (9)  For the purposes of this section, the communication of information to, or the making of a record of information by, a barrister or a solicitor representing a person in relation to a particular prosecution or other proceedings shall be taken to be the communication of the information, or the making of a record of the information, as the case requires, for the purposes of, or in connection with, that prosecution or those proceedings, as the case may be.

           (10)  A reference in this section to:

                     (a)  the possible making of a proceeds of crime order in respect of a person; or

                     (b)  possible proceedings for the making of a proceeds of crime order in respect of a person;

includes a reference to the making of an order that is only a possibility, or to proceedings that are only a possibility, at the time in question because the person has not been convicted (within the meaning of section 331 of the Proceeds of Crime Act 2002) of an offence to which the order relates.

           (11)  In this section:

appropriate executive authority, in relation to an eligible Royal Commission, means:

                     (a)  in the case of an eligible Royal Commission of the Commonwealth—the Governor-General; or

                     (b)  in the case of an eligible Royal Commission of a State—the Governor of the State; or

                     (c)  in the case of an eligible Royal Commission of the Northern Territory—the Administrator, or acting Administrator, of the Northern Territory; or

                     (d)  in the case of an eligible Royal Commission of the Australian Capital Territory—the Chief Minister, or acting Chief Minister, of that Territory; or

                     (e)  in any other case—the person specified in the regulations.

company has the same meaning as in section 6 of the Income Tax Assessment Act 1936.

proceeds of crime order means an order, relating to a person’s commission of a serious offence, under:

                     (a)  Chapter 2 or Division 1 of Part 3-1 of the Proceeds of Crime Act 2002; or

                     (b)  Part II or III of the Proceeds of Crime Act 1987; or

                     (c)  a law of a State or Territory corresponding to paragraph (a) or (b); or

                     (d)  Division 3 of Part XIII of the Customs Act 1901.

serious offence means an offence against a law of the Commonwealth, of a State or of a Territory that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).

taxation secrecy provision means a provision of a tax law that prohibits the communication or divulging of information.

tax law means:

                     (a)  a taxation law;

                     (b)  any other Act of which the Commissioner has the general administration;

                     (c)  a repealed Act of which the Commissioner had the general administration; or

                     (d)  regulations under an Act referred to in paragraph (b) or (c).

tax-related offence means:

                     (a)  an offence against:

                              (i)  a tax law; or

                             (ii)  the Crimes (Taxation Offences) Act 1980;

                     (b)  an offence against the Crimes Act 1914 or the Criminal Code relating to a law referred to in paragraph (a); or

                     (c)  an offence against section 134.1, 134.2, 135.1, 135.2 or 135.4 of the Criminal Code, being an offence that relates to a liability to the Commonwealth arising under, or by virtue of, a tax law.

3EA  Use by ASIO officers of tax information

             (1)  Despite any taxation secrecy provision, the Commissioner may disclose tax information to an authorised ASIO officer if the Commissioner is satisfied that the information is relevant to the performance of ASIO’s functions under subsection 17(1) of the Australian Security Intelligence Organisation Act 1979 (ASIO’s 17(1) functions).

             (2)  Subject to this section, if a person who is or has been an ASIO officer obtained tax information under subsection (1) or (3) of this section or subsection 3EC(2), the person must not communicate or divulge the information to another person, or make a record of the tax information.

Penalty:  Imprisonment for 2 years.

             (3)  In relation to a person who is an ASIO officer, each of the following is an exception to the prohibition in subsection (2):

                     (a)  making a record of the information for the purposes of, or in connection with, the performance of the ASIO officer’s duties in carrying out ASIO’s 17(1) functions;

                     (b)  divulging or communicating the information to another ASIO officer for the purposes of, or in connection with, the performance of that ASIO officer’s duties in carrying out ASIO’s 17(1) functions;

                     (c)  divulging or communicating the information to a solicitor or barrister representing a person in:

                              (i)  a prosecution of a person for a tax-related offence; or

                             (ii)  proceedings for the making of a proceeds of crime order;

                            for the purposes of, or in connection with, the prosecution or proceedings;

Note:       Section 3EB deals with the use by a legal practitioner of tax information provided by ASIO.

                     (d)  divulging or communicating the information to an IGIS officer for the purposes of, or in connection with, the performance of that IGIS officer’s duties in relation to ASIO or employees of ASIO;

Note:       Section 3EC deals with the use by an IGIS officer of tax information provided by ASIO.

                     (e)  divulging or communicating the information to a law enforcement agency officer for the purposes of, or in connection with:

                              (i)  the investigation of a serious offence; or

                             (ii)  an investigation relating to the making, or proposed or possible making, of a proceeds of crime order; or

                            (iii)  the prosecution, or proposed or possible prosecution, of a person for a tax-related offence; or

                            (iv)  the proceedings, or proposed or possible proceedings, for the making of a proceeds of crime order.

Note:       Section 3E deals with the use by a law enforcement agency officer of tax information provided by ASIO.

             (4)  If a person who is or has been an ASIO officer obtained tax information under subsection (1) or (3) of this section or subsection 3EC(2), the person must not:

                     (a)  be required to divulge or communicate the information to a court; or

                     (b)  voluntarily give the information in evidence in proceedings before a court, except in the course of:

                              (i)  the prosecution of a person for a tax-related offence; or

                             (ii)  the proceedings for the making of a proceeds of crime order.

             (5)  A reference in this section to:

                     (a)  the possible making of a proceeds of crime order in respect of a person; or

                     (b)  the possible proceedings for the making of a proceeds of crime order in respect of a person;

includes a reference to, the making of an order, or proceedings, that are only a possibility at the time in question because the person has not been convicted (within the meaning of section 5 of the Proceeds of Crime Act 1987) of an offence to which the order relates.

             (6)  In this section:

proceeds of crime order has the meaning given by section 3E.

serious offence has the meaning given by section 3E.

taxation secrecy provision has the meaning given by section 3E.

tax information means information acquired by the Commissioner under the provisions of a tax law.

tax law has the meaning given by section 3E.

tax-related offence has the meaning given by section 3E.

3EB  Use by legal practitioners of tax information provided by ASIO

             (1)  Subject to this section, a person to whom tax information has been communicated under paragraph 3EA(3)(c) or subsection (2) of this section must not divulge or communicate the information to another person, or make a record of the information.

Penalty:  Imprisonment for 2 years.

             (2)  An exception to the prohibition in subsection (1) is the communicating or divulging of the information, or the making of a record of the information, for the purposes of, or in connection with, the prosecution or proceedings mentioned in paragraph 3EA(3)(c).

             (3)  A person to whom information has been communicated or divulged under paragraph 3EA(3)(c) or subsection (2) of this section must not be required to divulge or communicate the information to a court.

             (4)  In this section:

tax information has the meaning given by section 3EA.

3EC  Use by IGIS officers of tax information provided by ASIO

             (1)  Subject to this section, if a person who is or has been an IGIS officer obtained tax information under section 3EA or subsection (2) of this section, the person must not communicate or divulge the information to another person, or make a record of the information.

Penalty:  Imprisonment for 2 years.

             (2)  In relation to a person who is an IGIS officer, each of the following is an exception to the prohibition in subsection (1):

                     (a)  making a record of the information for the purposes of, or in connection with, the performance of the IGIS officer’s duties in relation to ASIO or employees of ASIO;

                     (b)  divulging or communicating the information to another IGIS officer for the purposes of, or in connection with, the performance of that IGIS officer’s duties in relation to ASIO or employees of ASIO;

                     (c)  divulging or communicating the information to the Director-General of Security:

                              (i)  in a draft report under section 21 of the Inspector-General of Intelligence and Security Act 1986; or

                             (ii)  in a report under section 22 or 25A of that Act;

                            in relation to ASIO or employees of ASIO.

             (3)  If a person who is or has been an IGIS officer obtained tax information under section 3EA or subsection (2) of this section, the person must not:

                     (a)  be required to divulge or communicate the information to a court; or

                     (b)  voluntarily give the information in evidence in proceedings before a court.

             (4)  In this section:

tax information has the meaning given by section 3EA.

3F  Provision of taxation information to Chief Executive Officer of Customs

             (1)  Notwithstanding any taxation secrecy provision, the Commissioner may disclose to the Chief Executive Officer of Customs any information that has come to the knowledge of the Commissioner in the performance of the Commissioner’s official duties.

             (2)  Subsection (1) is in addition to, and not in derogation of, any other provision of this Act or of any other law relating to the communication of information.

             (3)  In this section:

taxation secrecy provision has the same meaning as in section 3E.


 

Part IICommissioner of Taxation, Second Commissioner of Taxation and Deputy Commissioner of Taxation

  

4  Commissioner and Second Commissioners of Taxation

                   There shall be a Commissioner of Taxation and 3 Second Commissioners of Taxation, who shall be appointed by the Governor-General.

4A  Statutory Agency etc. for purposes of Public Service Act

             (1)  The staff necessary to assist the Commissioner are to be persons engaged under the Public Service Act 1999.

             (2)  For the purposes of the Public Service Act 1999:

                     (a)  the Commissioner and the APS employees assisting the Commissioner together constitute a Statutory Agency; and

                     (b)  the Commissioner is the Head of that Statutory Agency.

5  Tenure of Commissioner and Second Commissioners

             (1)  The Commissioner of Taxation and each Second Commissioner of Taxation shall be appointed for terms of 7 years respectively and shall be eligible for re-appointment.

             (3)  The Commissioner of Taxation and the Second Commissioners of Taxation are not subject to the Public Service Act 1999.

5A  Remuneration and allowances of Commissioner and Second Commissioners

             (1)  The Commissioner of Taxation and the Second Commissioners of Taxation shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration by the Tribunal is in operation, they shall be paid remuneration at the respective rates that were applicable immediately before the commencement of this section.

             (2)  The Commissioner of Taxation and the Second Commissioners of Taxation shall be paid such allowances as are prescribed.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

6  Leave of absence

             (1)  The Commissioner and a Second Commissioner have such recreation leave entitlements as are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the Commissioner and a Second Commissioner leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.

6A  Resignation

                   The Commissioner or a Second Commissioner may resign his or her office by writing signed by the Commissioner or Second Commissioner, as the case may be, and delivered to the Governor-General.

6B  Acting appointments

             (1)  The Prime Minister may appoint a person to act in the office of Commissioner of Taxation:

                     (a)  during a vacancy in that office; or

                     (b)  during any period, or during all periods, when the person holding that office is absent from duty or from Australia or is, for any other reason, unable to perform the functions of that office.

             (2)  The Prime Minister may appoint a person to act in an office of Second Commissioner of Taxation:

                     (a)  during a vacancy in that office; or

                     (b)  during any period, or during all periods, when the person holding the office of Second Commissioner of Taxation is absent from duty or from Australia, is acting in the office of Commissioner of Taxation or is, for any other reason, unable to perform the functions of the office of Second Commissioner of Taxation.

             (3)  An appointment of a person under subsection (1) or (2) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

             (4)  A person appointed under subsection (1) or (2) to act during a vacancy shall not continue so to act for more than 12 months.

             (5)  Where a person is acting in the office of Commissioner of Taxation in accordance with paragraph (1)(b) or in an office of Second Commissioner of Taxation in accordance with paragraph (2)(b) and the office becomes vacant while the person is so acting, then, subject to subsection (3), the person may continue so to act until the Prime Minister otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurs expires, whichever first happens.

             (6)  While a person is acting in the office of Commissioner of Taxation, the person has and may exercise all the powers, and shall perform all the functions, of the Commissioner under this Act or any other law.

          (6A)  For the purposes of subsection (6), the Commissioner’s powers and functions include powers and functions given to the Commissioner in his or her capacity as Registrar of the Australian Business Register.

             (7)  While a person is acting in an office of Second Commissioner of Taxation, the person has and may exercise all the powers, and shall perform all the functions, of the Second Commissioner under this Act or any other law.

             (8)  The Prime Minister may:

                     (a)  determine the terms and conditions of appointment, including remuneration and allowances, of a person acting in the office of Commissioner of Taxation or in an office of Second Commissioner of Taxation; and

                     (b)  terminate such an appointment at any time.

             (9)  A person appointed under subsection (1) or (2) may resign the appointment by writing signed by the person and delivered to the Prime Minister.

           (10)  The validity of anything done by or in relation to a person purporting to act in the office of Commissioner of Taxation or in an office of Second Commissioner of Taxation shall not be called in question on the ground that the occasion for the appointment had not arisen, that there was a defect or irregularity in or in connection with the appointment, that the appointment had ceased to have effect or that the occasion for the person to act had not arisen or had ceased.

           (11)  A power conferred on the Prime Minister by this section may be exercised on the Prime Minister’s behalf by the Treasurer, where the Treasurer is authorised by the Prime Minister to do so.

6C  Suspension and removal from office of Commissioner or Second Commissioner

             (1)  The Governor-General may remove the Commissioner or a Second Commissioner from office on an address praying for the removal of the Commissioner or the Second Commissioner, as the case may be, on the ground of proved misbehaviour or physical or mental incapacity being presented to the Governor-General by each House of the Parliament in the same session of the Parliament.

             (2)  The Governor-General may suspend the Commissioner or a Second Commissioner from office on the ground of misbehaviour or physical or mental incapacity.

             (3)  Where the Governor-General suspends the Commissioner or a Second Commissioner, the Minister shall cause a statement of the grounds of the suspension to be laid before each House of the Parliament within 7 sitting days of that House after the suspension.

             (4)  If, at the expiration of 15 sitting days of a House of the Parliament after the day on which the statement was laid before that House, an address under subsection (1) has not been presented to the Governor-General by each House of the Parliament, the suspension terminates.

             (5)  The suspension of the Commissioner or a Second Commissioner from office under this section does not affect any entitlement of the Commissioner or Second Commissioner, as the case may be, to be paid remuneration and allowances.

             (6)  If:

                     (a)  the Commissioner or a Second Commissioner becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;

                     (b)  the Commissioner or a Second Commissioner engages, except with the approval of the Minister, in paid employment outside the duties of the office of Commissioner or Second Commissioner, as the case may be; or

                     (c)  the Commissioner or a Second Commissioner is absent from duty, except on leave of absence, for 14 consecutive days or 28 days in any 12 months;

the Governor-General shall remove the Commissioner or Second Commissioner, as the case may be, from office.

             (7)  The Governor-General may, with the consent of the Commissioner or a Second Commissioner, retire the Commissioner or Second Commissioner, as the case may be, from office on the ground of physical or mental incapacity.

             (8)  The Commissioner or a Second Commissioner shall not be suspended, removed or retired from office except as provided by this section.

6D  Powers of Second Commissioner

             (1)  Subject to subsection (2) and to the regulations, a Second Commissioner has all the powers, and may perform all the functions, of the Commissioner under a taxation law.

             (2)  Subsection (1) does not apply in relation to:

                     (a)  section 8 of this Act; or

                     (b)  a provision of a taxation law that:

                              (i)  provides that the Commissioner has the general administration of the taxation law; or

                             (ii)  requires the Commissioner to furnish to the Minister a report on the working of the taxation law during any period.

             (3)  When a power or function of the Commissioner under a taxation law is exercised or performed by a Second Commissioner, the power or function shall, for the purposes of the taxation law, be deemed to have been exercised or performed by the Commissioner.

             (4)  The exercise of a power, or the performance of a function, of the Commissioner under a taxation law by a Second Commissioner does not prevent the exercise of the power, or the performance of the function, by the Commissioner.

7  Deputy Commissioners of Taxation

                   There shall be such Deputy Commissioners of Taxation as are required.

8  Delegation

             (1)  The Commissioner may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Commissioner, delegate to a Deputy Commissioner or any other person all or any of the Commissioner’s powers or functions under a taxation law or any other law of the Commonwealth or a Territory, other than this power of delegation.

          (1A)  For the purposes of this section, the Commissioner’s powers and functions include powers and functions given to the Commissioner in his or her capacity as Registrar of the Australian Business Register.

             (2)  Subject to subsection (5), a power or function so delegated, when exercised or performed by the delegate, shall, for the purposes of the taxation law or the other law, as the case may be, be deemed to have been exercised or performed by the Commissioner.

             (4)  A delegation under this section does not prevent the exercise of a power or the performance of a function by the Commissioner.

             (5)  A delegation under this section may be made subject to a power of review and alteration by the Commissioner, within a period specified in the instrument of delegation, of acts done in pursuance of the delegation.

             (6)  A delegation under this section continues in force notwithstanding a change in the occupancy of, or a vacancy in, the office of Commissioner, but, for the purposes of the application of subsection 33(3) of the Acts Interpretation Act 1901 to a delegation under this section, nothing in any law shall be taken to preclude the revocation or variation of the delegation by the same or a subsequent holder of that office.


 

Part IIACharges and penalties for failing to meet obligations

Division 1The general interest charge

8AAA  Overview

This Division explains how to work out the general interest charge on an amount.

Usually, a person is liable to pay the charge if an amount that the person must pay to the Commissioner is not paid on time. But there are also other circumstances in which a person can be liable.

A person is only liable to pay the charge if a provision of an Act makes the person liable. (Most of the provisions are in the Income Tax Assessment Act 1936.)

8AAB  When the general interest charge applies

             (1)  There are certain provisions of this Act and other Acts that make persons liable to pay the general interest charge. Subsections (4) and (5) list the provisions.

             (2)  A person is only liable to pay the charge on an amount if a provision specifies that the person is liable to pay the charge on the amount.

             (3)  The charge does not apply to the Commonwealth or an authority of the Commonwealth.

             (4)  The following table is an index of the provisions of the Income Tax Assessment Act 1936 that deal with liability to the charge.

 

Liability to the charge under the Income Tax Assessment Act 1936

Item

Section

Topic

1AA

102UP

payment of ultimate beneficiary non-disclosure tax

1

128C

payment of withholding tax

1A

160ARDZA

payment of untainting tax

6

163AA

returns by instalment taxpayers

7

163B

returns by persons other than instalment taxpayers

8

170AA

amended assessments

9

204

payment of tax assessed and shortfall interest charge on that tax

10

220AAE

payment of RPS, PAYE and PPS deductions (large remitters)

11

220AAM

payment of RPS, PAYE and PPS deductions (medium remitters)

12

220AAR

payment of RPS, PAYE and PPS deductions (small remitters)

13

220AAW

non-electronic payment of RPS, PAYE and PPS deductions (large remitters)

14

220AS

deductions from reportable payments (RPS)

15

221AZMAA

payment of instalments by companies etc.

16

221AZP

underestimation of instalments by companies etc.

17

221EAA

deductions from salary or wages (PAYE)

18

221YD

payment of provisional tax or instalments of provisional tax

19

221YDB

provisional tax—income under-estimated or PAYE deductions over-estimated

20

221YHH

deductions from prescribed payments (PPS)

21

221YHZC

deductions from certain payments

22

221YHZD

payment of certain payments

23

221YN

payment of withholding tax

24

221ZC

payment of mining withholding tax

25

221ZD

deductions of mining withholding tax

26

221ZO

deductions—Australian Film Industry Trust Fund accounts

27

221ZP

payments—Australian Film Industry Trust Fund accounts

28

221ZXC

payments of farm management deposits

29

221ZXG

understated farm management deposits

30

222AJA

payments of estimates of certain amounts

31

271-80 of Schedule 2F

payment of family trust distribution tax

             (5)  The following table is an index of the provisions of Acts other than the Income Tax Assessment Act 1936 that deal with liability to the charge.

 

Liability to the charge under other Acts

Item

Section

Act

1AA

162-100

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

1

93

Fringe Benefits Tax Assessment Act 1986

2

112B

Fringe Benefits Tax Assessment Act 1986

2A

214-155

Income Tax Assessment Act 1997

3

65

Petroleum Resource Rent Tax Assessment Act 1987

4

85

Petroleum Resource Rent Tax Assessment Act 1987

4A

35

Product Grants and Benefits Administration Act 2000

5

68

Sales Tax Assessment Act 1992

6

91ZB

Sales Tax Assessment Act 1992

7

91ZC

Sales Tax Assessment Act 1992

8

21

Superannuation Contributions Tax (Assessment and Collection) Act 1997

9

22

Superannuation Contributions Tax (Assessment and Collection) Act 1997

10

25

Superannuation Contributions Tax (Assessment and Collection) Act 1997

11

18

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

12

21

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

12A

25

Superannuation (Government Co-contribution for Low Income Earners) Act 2003

13

49

Superannuation Guarantee (Administration) Act 1992

14

8AAN

Taxation Administration Act 1953

15

8AAT

Taxation Administration Act 1953

16

8AAZF

Taxation Administration Act 1953

17

8AAZN

Taxation Administration Act 1953

17AA

40

Taxation Administration Act 1953

17A

16-50 in Schedule 1

Taxation Administration Act 1953

17B

16-80 in Schedule 1

Taxation Administration Act 1953

17E

45-80 in Schedule 1

Taxation Administration Act 1953

17F

45-230 in Schedule 1

Taxation Administration Act 1953

17GA

45-232 in Schedule 1

Taxation Administration Act 1953

17G

45-235 in Schedule 1

Taxation Administration Act 1953

17H

45-600 and 45-620 in Schedule 1

Taxation Administration Act 1953

17J

45-870 and 45-875 in Schedule 1

Taxation Administration Act 1953

18

298-25 in Schedule 1

Taxation Administration Act 1953

19

13

Termination Payments Tax (Assessment and Collection) Act 1997

20

16

Termination Payments Tax (Assessment and Collection) Act 1997

21

18

Tobacco Charges Assessment Act 1955

22

38

Wool Tax (Administration) Act 1964

8AAC  Amount of the general interest charge

             (1)  The general interest charge for a day is worked out in accordance with this section.

             (2)  If the charge is payable under section 8AAZF on the RBA deficit at the end of that day, then the charge is worked out by multiplying the general interest charge rate for that day by the RBA deficit at the end of that day.

             (3)  If the charge is not payable under section 8AAZF, but applies to an amount that remains unpaid (the original unpaid amount), then the charge is worked out by multiplying the general interest charge rate for that day by the sum of so much of the following amounts as remains unpaid:

                     (a)  the charge from previous days;

                     (b)  the original unpaid amount.

             (4)  If the charge applies to an amount that is specified in the provision that imposes the charge, but neither subsection (2) nor (3) applies, then the charge is worked out by multiplying the general interest charge rate for that day by the sum of the following amounts:

                     (a)  so much of the charge from previous days as remains unpaid;

                     (b)  the specified amount.

8AAD  What is the general interest charge rate?

             (1)  The general interest charge rate for a day is the rate worked out by adding 7 percentage points to the base interest rate for that day, and dividing that total by the number of days in the calendar year.

             (2)  The base interest rate for a day depends on which quarter of the year the day is in. For each day in a quarter in the second column of the table, it is the monthly average yield of 90-day Bank Accepted Bills published by the Reserve Bank of Australia for the month in the third column of the table.

 

Base interest rate

Item

For days in this quarter...

the monthly average yield of 90-day Bank Accepted Bills for this month applies...

1

1 January to 31 March

the preceding November

2

1 April to 30 June

the preceding February

3

1 July to 30 September

the preceding May

4

1 October to 31 December

the preceding August

             (3)  If the monthly average yield of 90-day Bank Accepted Bills for a particular month in the third column of the table in subsection (2) is not published by the Reserve Bank of Australia before the beginning of the relevant quarter, assume that it is the same as the last monthly average yield of 90-day Bank Accepted Bills published by the Reserve Bank of Australia before that month.

             (4)  The base interest rate must be rounded to the second decimal place (rounding .005 upwards).

8AAE  When the charge is due and payable

                   The general interest charge for a day is due and payable to the Commissioner at the end of that day.

Note:          For provisions about collection and recovery of the charge, see Part 4-15 in Schedule 1.

8AAF  Notification by Commissioner

             (1)  The Commissioner may give notice to a person liable to pay the charge of the amount of the charge for a particular day or days.

             (3)  The notice may be included in any other notice issued by the Commissioner in respect of the person.

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

8AAG  Remission of the charge

             (1)  The Commissioner may remit all or a part of the charge payable by a person.

             (2)  However, if a person is liable to pay the charge because an amount remains unpaid after the time by which it is due to be paid, the Commissioner may only remit all or a part of the charge in the circumstances set out in subsection (3), (4) or (5).

             (3)  The Commissioner may remit all or a part of the charge referred to in subsection (2) if the Commissioner is satisfied that:

                     (a)  the circumstances that contributed to the delay in payment were not due to, or caused directly or indirectly by, an act or omission of the person; and

                     (b)  the person has taken reasonable action to mitigate, or mitigate the effects of, those circumstances.

             (4)  The Commissioner may remit all or a part of the charge referred to in subsection (2) if the Commissioner is satisfied that:

                     (a)  the circumstances that contributed to the delay in payment were due to, or caused directly or indirectly by, an act or omission of the person; and

                     (b)  the person has taken reasonable action to mitigate, or mitigate the effects of, those circumstances; and

                     (c)  having regard to the nature of those circumstances, it would be fair and reasonable to remit all or a part of the charge.

             (5)  The Commissioner may remit all or a part of the charge referred to in subsection (2) if the Commissioner is satisfied that:

                     (a)  there are special circumstances because of which it would be fair and reasonable to remit all or a part of the charge; or

                     (b)  it is otherwise appropriate to do so.

8AAGA  Rounding of the charge

                   If the amount of the charge payable for any period is not a multiple of 5 cents, the Commissioner may round it down to the nearest multiple of 5 cents.

8AAH  Judgment for payment of an unpaid amount

             (1)  This section applies if judgment is given by, or entered in, a court for the payment of:

                     (a)  all or a part of an amount in respect of which a person is, or was, liable to pay the charge because the amount remains unpaid after the time by which it is due to be paid; or

                     (b)  an amount that includes all or a part of the unpaid amount.

             (2)  The consequences of judgment being given or entered are:

                     (a)  the unpaid amount is not taken, for the purposes of a provision that makes, or would make, the person liable to pay the charge on the unpaid amount, to have ceased to be due and payable by reason only of the giving or entering of the judgment; and

                     (b)  if the judgment debt carries interest, the amount of the charge that the person would, if not for this paragraph, be liable to pay on the unpaid amount is reduced by:

                              (i)  in a case to which paragraph (1)(a) applies—the amount of the interest; or

                             (ii)  in a case to which paragraph (1)(b) applies—the amount worked out using the formula:


 

Division 2The failure to notify penalty

8AAHA  Division to stop applying

                   This Division does not apply to a notification of a liability that arises on or after 1 July 2000.

8AAI  Overview

This Division explains how to work out the failure to notify penalty on an amount.

Generally, a person is liable to pay the penalty if the person must notify the Commissioner by a certain time of an amount that the person is liable to pay, and fails to do so.

A person is only liable to pay the penalty if a provision of an Act makes the person liable. (Most of the provisions are in the Income Tax Assessment Act 1936.)

8AAJ  When the failure to notify penalty applies

             (1)  There are certain provisions of Acts that make persons liable to pay the failure to notify penalty. Subsections (4) and (5) list the provisions.

             (2)  A person is only liable to pay the penalty on an amount if a provision specifies that the person is liable to pay the penalty on the amount.

             (3)  The penalty does not apply to exempt Australian government agencies.

Note:          Exempt Australian government agency is defined in subsection 995-1(1) of the Income Tax Assessment Act 1997.

             (4)  The following table is an index of the provisions in the Income Tax Assessment Act 1936 that deal with liability to the penalty.

 

Liability to the penalty under the Income Tax Assessment Act 1936

Item

Section

Topic

1

220AAGA

payment of RPS, PAYE and PPS deductions (large remitter)

2

220AAOA

payment of RPS, PAYE and PPS deductions (medium remitter)

3

220AATA

payment of RPS, PAYE and PPS deductions (small remitter)

4

221YHZCA

deductions from certain payments

5

221YN

withholding tax

6

221ZC

mining withholding tax

7

221ZNA

Australian Film Industry Trust Fund accounts

             (5)  The following table is an index of the provisions of Acts other than the Income Tax Assessment Act 1936 that deal with liability to the penalty.

 

Liability to the penalty under other Acts

Item

Section

Act

1

91Z

Sales Tax Assessment Act 1992

2

95A

Sales Tax Assessment Act 1992

3

16-150 in Schedule 1

Taxation Administration Act 1953

4

45-25 in Schedule 1

Taxation Administration Act 1953

8AAK  Amount of the failure to notify penalty

             (1)  The failure to notify penalty on an amount is payable by a person for each day in the period that is specified in the provision which makes the person liable to pay the penalty.

             (2)  The penalty on an amount is worked out at the rate of 8% per annum of the amount.

8AAL  Notification by Commissioner

             (1)  The Commissioner must give written notice to the person of:

                     (a)  the amount of the penalty; and

                     (b)  the day on which that amount of the penalty is due and payable, which must be at least 30 days after the notice is given to the person.

             (2)  The amount of the penalty is due and payable to the Commissioner on the day specified.

             (3)  The notice may be included in any other notice issued by the Commissioner in respect of the person.

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

Note:          For provisions about collection and recovery of the penalty, see Part 4-15 in Schedule 1.

8AAM  Remission of the penalty

                   The Commissioner may remit all or a part of the penalty payable by a person if the Commissioner is satisfied that:

                     (a)  the circumstances that contributed to the failure to notify, or delay in notifying, the Commissioner were not due to, or caused directly or indirectly by, an act or omission of the person; and

                     (b)  the person has taken reasonable action to mitigate, or mitigate the effects of, those circumstances.

8AAN  Failure to pay the penalty

                   If any of the amount of penalty that a person is liable to pay remains unpaid after the day by which it is due to be paid, the person is liable to pay the 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 of the penalty 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 penalty;

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

Note:          The general interest charge is worked out under Division 1.


 

Division 3The late reconciliation statement penalty

8AANA  Division to stop applying

                   This Division does not apply to a statement, report or form that relates to the 2000-01 year of income or a later year of income.

8AAO  Overview

This Division explains how to work out the late reconciliation statement penalty on an amount.

Generally, a person is liable to pay the penalty if the person must give the Commissioner a reconciliation statement, report or form by a certain time, and fails to do so.

A person is only liable to pay the penalty if a provision of an Act makes the person liable. (All of the provisions are in the Income Tax Assessment Act 1936.)

8AAP  When the late reconciliation statement penalty applies

             (1)  There are certain provisions of the Income Tax Assessment Act 1936 that make persons liable to pay the late reconciliation statement penalty. Subsection (4) lists the provisions.

             (2)  A person is only liable to pay the penalty if a provision specifies that the person is liable to pay the penalty.

             (3)  The penalty does not apply to exempt Australian government agencies.

Note:          Exempt Australian government agency is defined in subsection 995-1(1) of the Income Tax Assessment Act 1997.

             (4)  The following table is an index of the provisions of the Income Tax Assessment Act 1936 that deal with liability to the penalty.

 

Liability to the penalty under the Income Tax Assessment Act 1936

Item

Subsection

Topic

1

220AJ(5)

RPS payment report

2

221F(6)

PAYE deductions reconciliation statement

3

221YHDC(9A)

PPS payment reconciliation statement form

4

221YHZC(1AAA)

statement of deductions from certain payments

5

221YN(2C)

statement of withholding tax deductions

6

221ZC(2C)

statement of mining withholding tax deductions

7

221ZXD(4)

farm management deposits report

8AAQ  Amount of the late reconciliation statement penalty

             (1)  The late reconciliation statement penalty is payable by a person for each week in the period that:

                     (a)  starts on the day by which the statement, report or form referred to in the provision which makes the person liable to pay the penalty is due to be given to the Commissioner; and

                     (b)  ends on the day before the Commissioner is given the statement, report or form.

             (2)  The penalty is $10 for each week, or part of a week. However, the penalty for a particular statement, report or form cannot exceed $200.

8AAR  Notification by Commissioner

             (1)  The Commissioner must give written notice to the person of:

                     (a)  the amount of the penalty; and

                     (b)  the day on which that amount of the penalty is due and payable, which must be at least 30 days after the notice is given to the person.

             (2)  The amount of the penalty is due and payable to the Commissioner on the day specified.

             (3)  The notice may be included in any other notice issued by the Commissioner in respect of the person.

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

Note:          For provisions about collection and recovery of the penalty, see Part 4-15 in Schedule 1.

8AAS  Remission of the penalty

             (1)  The Commissioner may remit all or a part of the penalty payable by a person if the Commissioner is satisfied that:

                     (a)  the circumstances that contributed to the failure to give, or delay in giving, the Commissioner the statement, report or form referred to in the provision which makes the person liable to pay the penalty were not due to, or caused directly or indirectly by, an act or omission of the person; and

                     (b)  the person has taken reasonable action to mitigate, or mitigate the effects of, those circumstances.

             (2)  The Commissioner may also remit all or a part of the penalty if the Commissioner is satisfied that there are special circumstances because of which it would be fair and reasonable to remit all or a part of the penalty.

8AAT  Failure to pay the penalty

                   If any of the amount of penalty that a person is liable to pay remains unpaid after the day by which it is due to be paid, the person is liable to pay the 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 of the penalty 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 penalty;

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

Note:          The general interest charge is worked out under Division 1.


 

Part IIBRunning balance accounts, application of payments and credits, and related matters

Division 1Preliminary

8AAZA  Definitions

                   In this Part, unless the contrary intention appears:

company includes any body or association (whether or not it is incorporated), but does not include a partnership or a non-entity joint venture.

compulsory repayment amount has the same meaning as in the Higher Education Support Act 2003.

credit includes an amount that the Commissioner must pay to a taxpayer under a taxation law (other than the Product Grants and Benefits Administration Act 2000), whether or not described as a credit.

entity means any of the following:

                     (a)  a company;

                     (b)  a partnership;

                     (c)  a person in a particular capacity of trustee;

                     (d)  a body politic;

                     (e)  a corporation sole;

                      (f)  any other person.

excess non-RBA credit means a credit that arises under section 8AAZLA or 8AAZLB.

FS assessment debt means an FS assessment debt under:

                     (a)  subsection 19AB(2) of the Social Security Act 1991; or

                     (b)  the Student Assistance Act 1973 as in force at a time on or after 1 July 1998.

HEC assessment debt has the same meaning as in Chapter 5A of the Higher Education Funding Act 1988.

non-entity joint venture has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.

non-RBA tax debt means a tax debt other than an RBA deficit debt.

primary tax debt means any amount due to the Commonwealth directly under a taxation law (other than, except in Division 4, the Product Grants and Benefits Administration Act 2000), including any such amount that is not yet payable.

RBA means a running balance account established under section 8AAZC.

RBA deficit debt, in relation to an RBA of an entity, means a balance in favour of the Commissioner, based on:

                     (a)  primary tax debts that have been allocated to the RBA and that are currently payable; and

                     (b)  payments made in respect of current or anticipated primary tax debts of the entity, and credits to which the entity is entitled under a taxation law, that have been allocated to the RBA.

RBA group means a GST group under Division 48 of the A New Tax System (Goods and Services Tax) Act 1999.

RBA statement means a statement prepared by the Commissioner under section 8AAZG.

RBA surplus, in relation to an RBA of an entity, means a balance in favour of the entity, based on:

                     (a)  primary tax debts that have been allocated to the RBA; and

                     (b)  payments made in respect of current or anticipated primary tax debts of the entity, and credits to which the entity is entitled under a taxation law, that have been allocated to the RBA.

secondary tax debt means an amount that is not a primary tax debt, but is due to the Commonwealth in connection with a primary tax debt.

Note:          An example of a secondary tax debt is an amount due to the Commonwealth under an order of a court made in a proceeding for recovery of a primary tax debt.

tax debt means a primary tax debt or a secondary tax debt.

tax debtor means:

                     (a)  in relation to a tax debt—the person or persons who are liable for the tax debt; and

                     (b)  in relation to an RBA—the person or persons who are liable for the tax debts that are allocated to the RBA.

8AAZB  Trustee to be treated as separate entity for each capacity

                   For the purposes of this Part, a person who is a trustee in more than one capacity is to be treated as a separate entity in relation to each of those capacities.


 

Division 2Running Balance Accounts (or RBAs)

8AAZC  Establishment of RBAs

             (1)  The Commissioner may establish one or more systems of accounts for primary tax debts.

Note:          This section does not prevent the Commissioner from establishing other accounts that are not RBAs.

             (2)  Each account is to be known as a Running Balance Account (or RBA).

             (3)  An RBA may be established for any entity.

Note:          The same person might be part of different entities. For example, a person might have a trustee capacity and also be a partner in a partnership. The person would then be a tax debtor in relation to each of the separate RBAs established for the trustee capacity and the partnership.

             (4)  RBAs for entities may be established on any basis that the Commissioner determines.

          (4A)  Without limiting subsection (4), separate RBAs may be established for different types of primary tax debts.

             (5)  Without limiting subsection (4), separate RBAs may be established for:

                     (a)  different businesses or undertakings conducted by the same entity; or

                     (b)  different parts of the same business or undertaking; or

                     (c)  different periods.

8AAZD  Allocation of tax debts to RBAs

             (1)  The Commissioner may allocate a primary tax debt to an RBA that has been established for that type of tax debt.

Note:          General interest charge on an RBA deficit debt is not allocated to the RBA: it accrues automatically under section 8AAZF.

Separate RBAs for one entity

          (1A)  If 2 or more RBAs for an entity have been established for that kind of tax debt, the Commissioner may allocate the debt to any one of those RBAs, or between any 2 or more of those RBAs, in the manner the Commissioner determines.

Note:          Separate RBAs may be established for different businesses or undertakings conducted by the same entity, for different parts of the same business or undertaking or for different periods: see subsection 8AAZC(5).

Definition

             (2)  In this section:

primary tax debt does not include:

                     (a)  general interest charge; or

                     (b)  an RBA deficit debt.

8AAZF  General interest charge on RBA deficit debt

             (1)  If there is an RBA deficit debt at the end of a day, then general interest charge is payable by the tax debtor on that RBA deficit debt for that day.

             (2)  The balance of the RBA is altered in the Commissioner’s favour by the amount of the general interest charge payable.

8AAZG  RBA statements

                   The Commissioner may at any time prepare a statement for an RBA, containing such particulars as the Commissioner determines.

8AAZH  Liability for RBA deficit debt

             (1)  If there is an RBA deficit debt on an RBA at the end of a day, the tax debtor is liable to pay to the Commonwealth the amount of the debt. The amount is due and payable at the end of that day.

Note:          For provisions about collection and recovery of the amount, see Part 4-15 in Schedule 1.

             (2)  If there are several tax debtors, their liability for the debt is of the same kind as their liability for the tax debts that were allocated to the RBA.

Example:    If the tax debtors are jointly and severally liable for the tax debts that were allocated to the RBA, they will also be jointly and severally liable for the RBA deficit debt.

8AAZI  RBA statement to be evidence

             (1)  The production of an RBA statement:

                     (a)  is prima facie evidence that the RBA was duly kept; and

                     (b)  is prima facie evidence that the amounts and particulars in the statement are correct.

             (2)  In this section:

RBA statement includes a document that purports to be a copy of an RBA statement and is signed by the Commissioner or a delegate of the Commissioner or by a Second Commissioner or Deputy Commissioner.

8AAZJ  Evidentiary certificate about RBA transactions etc.

             (1)  In proceedings for recovery of an RBA deficit debt, a Commissioner’s certificate stating any of the following matters in respect of a specified RBA is prima facie evidence of those matters:

                     (a)  that no tax debts (other than general interest charge on the RBA deficit debt) were allocated to the RBA after the balance date shown on a specified RBA statement for the RBA;

                     (b)  that general interest charge is payable on the RBA deficit debt, as specified in the certificate;

                     (c)  that payments and credits were allocated to the RBA, as specified in the certificate;

                     (d)  that a specified amount was the RBA deficit debt on the date of the certificate.

             (2)  In this section:

Commissioner’s certificate means a certificate signed by the Commissioner or a delegate of the Commissioner, or by a Second Commissioner or Deputy Commissioner.


 

Division 3Treatment of payments, credits and RBA surpluses

8AAZL  Amounts covered by this Division

             (1)  This Division sets out how the Commissioner must treat the following kinds of amount:

                     (a)  a payment the Commissioner receives in respect of a current or anticipated tax debt or tax debts of an entity;

                     (b)  a credit (including an excess non-RBA credit) that an entity is entitled to under a taxation law;

                     (c)  an RBA surplus of an entity.

             (2)  The Commissioner must treat each such amount using the method set out in section 8AAZLA or 8AAZLB (but not both).

Note:          In either case, section 8AAZLC has some additional rules that apply to RBA surpluses and to certain excess non-RBA credits.

             (3)  However, the Commissioner does not have to treat an amount using either of those methods if doing so would require the Commissioner to apply the amount against a tax debt:

                     (a)  that is:

                              (i)  not a BAS amount (as defined in subsection 995-1(1) of the Income Tax Assessment Act 1997); and

                             (ii)  due but not yet payable; or

                     (b)  in respect of which the taxpayer has complied with an arrangement under section 255-15 to pay the debt by instalments; or

                     (c)  in respect of which the Commissioner has agreed to defer recovery under section 255-5.

8AAZLA  Method 1—allocating the amount first to an RBA

             (1)  The Commissioner may, in the manner he or she determines, allocate the amount to an RBA of the entity or, if the entity is a member of an RBA group, to an RBA of another member of the group.

             (2)  The Commissioner must then also apply the amount against the following kinds of debts (if there are any):

                     (a)  tax debts that have been allocated to that RBA;

                     (b)  general interest charge on such tax debts.

             (3)  To the extent that the amount is not applied under subsection (2), it gives rise to an excess non-RBA credit in favour of the entity that:

                     (a)  is equal to the part of the amount that is not applied; and

                     (b)  relates to the RBA to which the amount was allocated.

8AAZLB  Method 2—applying the amount first against a non-RBA tax debt

             (1)  The Commissioner may, in the manner he or she determines, apply the amount against a non-RBA tax debt of the entity or, if the entity is a member of an RBA group, against a non-RBA tax debt of another member of the group.

             (2)  If the non-RBA tax debt is:

                     (a)  a tax debt that has been allocated to an RBA; or

                     (b)  general interest charge on such a tax debt;

the Commissioner must then also allocate the amount to that RBA.

             (3)  To the extent that the amount is not applied under subsection (1), it gives rise to an excess non-RBA credit in favour of the entity that is equal to the part of the amount that is not applied.

             (4)  The excess non-RBA credit relates to the RBA (if any) that the Commissioner determines and the balance of that RBA is adjusted in the entity’s favour by the amount of that credit.

Separate RBAs for one entity

             (5)  If the non-RBA tax debt mentioned in subsection (1) has been allocated to 2 or more RBAs, the Commissioner must allocate the amount applied between those RBAs in the proportions in which the tax debt was allocated.

Note:          Separate RBAs may be established for different businesses or undertakings conducted by the same entity, for different parts of the same business or undertaking or for different periods: see subsection 8AAZC(5).

8AAZLC  RBA surplus and related credits must remain equivalent if one or the other is applied

RBA surpluses

             (1)  If an RBA surplus is allocated or applied under this Division, the Commissioner must reduce by the same amount excess non-RBA credits that relate to the RBA.

Excess non-RBA credits

             (2)  If, under this Division, an excess non-RBA credit that relates to an RBA (the related RBA) is:

                     (a)  allocated to an RBA; or

                     (b)  applied against a non-RBA tax debt;

the related RBA is adjusted in the Commissioner’s favour by the same amount.

8AAZLD  Special priority credits: HEC and FS assessment debts and compulsory repayment amounts

                   If, under this Division, the Commissioner is to apply a credit that arises under Schedule 1 to this Act (the PAYG system), the Commissioner must apply it, whether under section 8AAZLA or 8AAZLB:

                     (a)  first, against any HEC assessment debt of the entity; and

                    (aa)  secondly, against any compulsory repayment amount of the entity; and

                     (b)  then against any FS assessment debt of the entity;

before applying it against other non-RBA tax debts of the entity.

8AAZLE  Instructions to Commissioner not binding

                   In doing anything under this Division, the Commissioner is not required to take account of any instructions of any entity.


 

Division 3ARefunds of RBA surpluses and credits

8AAZLF  Commissioner must refund RBA surpluses and credits

             (1)  The Commissioner must refund to an entity so much of:

                     (a)  an RBA surplus of the entity; or

                     (b)  a credit (including an excess non-RBA credit) in the entity’s favour;

as the Commissioner does not allocate or apply under Division 3.

Voluntary payments only to be refunded on request

             (2)  However, the Commissioner is not required to refund an RBA surplus or excess non-RBA credit that arises because a payment is made in respect of an anticipated tax debt of an entity unless the entity later requests, in the approved manner, that the Commissioner do so.

             (3)  On receiving such a request, the Commissioner must refund so much of the amount as the Commissioner does not allocate or apply under Division 3.

Effect of refunding RBA surplus

             (4)  If the Commissioner refunds an RBA surplus under this section, the Commissioner must reduce by the same amount excess non-RBA credits that relate to the RBA.

Effect of refunding credit that relates to an RBA

             (5)  If, under this section, the Commissioner refunds an excess non-RBA credit that relates to an RBA, the RBA is adjusted in the Commissioner’s favour by the same amount.

8AAZLG  Retaining refunds until information or notification given

             (1)  The Commissioner may retain an amount that he or she otherwise would have to refund to an entity under section 8AAZLF, if the entity has not given the Commissioner a notification:

                     (a)  that affects or may affect the amount that the Commissioner refunds to the entity; and

                     (b)  that the entity is required to give the Commissioner under any of the BAS provisions (as defined in subsection 995-1(1) of the Income Tax Assessment Act 1997).

             (2)  The Commissioner may retain the amount until the entity has given the Commissioner that notification or the Commissioner makes an assessment of the amount, whichever happens first.

Note:          Interest is payable under the Taxation (Interest on Overpayments and Early Payments) Act 1983 if the Commissioner is late in making the payment under subsection (2).

8AAZLH  How refunds are made

             (1)  This section applies to refunds payable to an entity of RBA surpluses, or excess non-RBA credits that relate to an RBA, if primary tax debts arising under any of the BAS provisions (as defined in subsection 995-1(1) of the Income Tax Assessment Act 1997) have been allocated to that RBA.

             (2)  The Commissioner must pay those refunds to the credit of a financial institution account nominated in the approved form by the entity. The account nominated must be maintained at a branch or office of the institution that is in Australia.

          (2A)  The account must be one held by:

                     (a)  the entity, or the entity and some other entity; or

                     (b)  the entity’s registered tax agent; or

                     (c)  a legal practitioner as trustee or executor for the entity.

             (3)  However, the Commissioner may direct that any such refunds be paid to the entity in a different way.

             (4)  If an entity has not nominated a financial institution account for the purposes of this section and the Commissioner has not directed that any such refunds be paid in a different way, the Commissioner is not obliged to refund any amount to the entity until the entity does so.

             (5)  If the Commissioner pays a refund to the credit of an account nominated by an entity, the Commissioner is taken to have paid the refund to the entity.


 

Division 4Miscellaneous provisions about tax debts

8AAZM  When payments are treated as received

                   For the purposes of taxation laws, a payment in respect of a tax debt is taken not to have been made until it is received by:

                     (a)  the Commissioner; or

                     (b)  a person acting on behalf of the Commissioner.

8AAZMA  Electronic payment of tax debts

             (1)  An entity that, under subsection 33-10(2) of the A New Tax System (Goods and Services Tax) Act 1999, is required to pay a net amount for a tax period electronically must also electronically pay the Commissioner all of its other tax debts that are due to be paid during that period.

             (2)  A large withholder that, under subsection 16-85(1) in Schedule 1, is required to pay an amount electronically in a particular month must also electronically pay the Commissioner all of its other tax debts that are due to be paid during that month.

8AAZMB  Saturdays, Sundays and public holidays

             (1)  Where, apart from this section, an amount in respect of a tax debt is due and payable by, or on, a day (the payment day) that is not a business day, the payment is due and payable on the first business day after the payment day.

             (2)  In this section:

business day means a day other than:

                     (a)  a Saturday or a Sunday; or

                     (b)  a day which is a public holiday for the whole of:

                              (i)  any State; or

                             (ii)  the Australian Capital Territory; or

                            (iii)  the Northern Territory.

tax debt does not include general interest charge.

8AAZN  Overpayments made by the Commissioner under taxation laws

             (1)  An administrative overpayment (the overpaid amount):

                     (a)  is a debt due to the Commonwealth by the person to whom the overpayment was made (the recipient); and

                     (b)  is payable to the Commissioner; and

                     (c)  may be recovered in a court of competent jurisdiction by the Commissioner, or by a Deputy Commissioner, suing in his or her official name.

             (2)  If:

                     (a)  the Commissioner has given a notice to the recipient in respect of the overpaid amount, specifying a due date for payment that is at least 30 days after the notice is given; and

                     (b)  any of the overpaid amount remains unpaid at the end of that due date;

then the recipient is liable to pay the general interest charge on the unpaid amount for each day in the period that:

                     (c)  started at the beginning of that due date; and

                     (d)  finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:

                              (i)  the overpaid amount;

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

             (3)  In this section:

administrative overpayment means an amount that the Commissioner has paid to a person by mistake, being an amount to which the person is not entitled.


 

Part IIIProsecutions and offences

Note:          Subsection 2(2) specifies laws that are not taxation laws for the purposes of this Part.

Division 1Preliminary

8A  Interpretation

             (1)  In this Part, unless the contrary intention appears:

corporation means any body corporate.

director, in relation to a corporation, includes:

                     (a)  any person occupying or acting in the position of director of the corporation, by whatever name called and whether or not validly appointed to occupy, or duly authorized to act in, the position; and

                     (b)  any person in accordance with whose directions or instructions the directors of the corporation are accustomed to act.

instrument includes any document.

prescribed offence means:

                     (a)  an offence against section 8C, subsection 8D(1) or (2) or section 8N or 8Q, or against Division 136 or 137 of the Criminal Code in relation to a taxation law; or

                     (b)  an offence against section 11.1 of the Criminal Code that relates to an offence of a kind referred to in paragraph (a).

prescribed taxation offence means:

                     (a)  a taxation offence (other than a prescribed offence) that is committed by a natural person and punishable by a fine and not by imprisonment;

                     (b)  a prescribed offence (other than a prescribed offence that the Commissioner has elected under subsection 8F(1) or 8S(1) to treat otherwise than as a prescribed taxation offence) that is committed by a natural person; or

                     (c)  a taxation offence that is committed by a corporation.

produce, in relation to a book, paper, record or other document, includes permit access to.

taxation offence means:

                     (a)  an offence against a taxation law; or

                     (b)  an offence against:

                              (i)  section 6 of the Crimes Act 1914; or

                             (ii)  section 11.1, 11.4 or 11.5 of the Criminal Code;

                            being an offence that relates to an offence against a taxation law.

tax file number means a tax file number as defined in section 202A of the Income Tax Assessment Act 1936.

             (2)  For the purposes of the definition of director in subsection (1), a person shall not be regarded as a person in accordance with whose directions or instructions the directors of a corporation are accustomed to act by reason only that the directors act on advice given by that person in the proper performance of the functions attaching to the person’s professional capacity or to the person’s business relationship with the directors.

8AB  Application of Part to the Development Allowance Authority Act 1992

                   This Part applies in relation to the Development Allowance Authority Act 1992 as if:

                     (a)  that Act were a taxation law; and

                     (b)  references in this Part to the Commissioner were references to the Development Allowance Authority.


 

Division 2Offences

Subdivision AFailure to comply with taxation requirements

8B  Interpretation

             (1)  A reference in this Subdivision to a relevant offence is a reference to:

                     (a)  an offence against section 8C, subsection 8D(1) or (2) or section 8H; or

                     (b)  an offence against:

                              (i)  section 6 of the Crimes Act 1914; or

                             (ii)  section 11.1, 11.4 or 11.5 of the Criminal Code;

                            being an offence that relates to an offence of a kind referred to in paragraph (a) of this subsection.

             (2)  For the purposes of this Subdivision, a person who is convicted of an offence against section 8C or subsection 8D(1) or (2) (in this subsection referred to as the subsequent offence) shall be treated as having been previously convicted of a relevant offence (in this subsection referred to as the earlier offence) if:

                     (a)  the person was convicted of the earlier offence on an occasion earlier than, but not more than 5 years earlier than, the person’s conviction of the subsequent offence; or

                     (b)  the person is convicted of the earlier offence and the subsequent offence before the same court at the same sitting and the earlier offence was committed:

                              (i)  at a time or on a day earlier than, but not more than 5 years earlier than, the subsequent offence; or

                             (ii)  at the same time, or on the same day, as the subsequent offence.

             (3)  A reference in subsection 8E(2) or (3) or 8F(1) or subsection (2) of this section to an offence against section 8C or subsection 8D(1) or (2) includes a reference to an offence against section 11.1 of the Criminal Code that relates to an offence against section 8C or subsection 8D(1) or (2), as the case may be.

             (4)  Unless the contrary intention appears, a reference in paragraph (2)(a) or (b) to a conviction of a person of an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.

             (5)  A reference in this Subdivision to an instrument being duly stamped is a reference to the instrument being duly stamped within the meaning of the Australian Capital Territory Taxation (Administration) Act 1969.

8C  Failure to comply with requirements under taxation law

             (1)  A person who refuses or fails, when and as required under or pursuant to a taxation law to do so:

                     (a)  to furnish an approved form or any information to the Commissioner or another person; or

                    (aa)  to give information to the Commissioner in the manner in which it is required under a taxation law to be given; or

                     (b)  to lodge an instrument with the Commissioner or another person for assessment; or

                     (c)  to cause an instrument to be duly stamped; or

                     (d)  to notify the Commissioner or another person of a matter or thing; or

                     (e)  to produce a book, paper, record or other document to the Commissioner or another person; or

                      (f)  to attend before the Commissioner or another person; or

                     (g)  to apply for registration or cancellation of registration under the A New Tax System (Goods and Services Tax) Act 1999; or

                     (h)  to comply with a requirement under subsection 45A(2) of the Product Grants and Benefits Administration Act 2000;

is guilty of an offence.

          (1A)  An offence under subsection (1) is an offence of absolute liability.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

          (1B)  Subsection (1) does not apply to the extent that the person is not capable of complying with the relevant paragraph.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (1B), see subsection 13.3(3) of the Criminal Code.

             (2)  For the purposes of paragraphs (1)(a) and (d), a person shall not be taken to have refused or failed to furnish information to the Commissioner or another person, or to notify the Commissioner or another person of a matter or thing, merely because the person has refused or failed to quote the person’s tax file number to the Commissioner or other person.

8D  Failure to answer questions when attending before the Commissioner etc.

             (1)  A person who, when attending before the Commissioner or another person pursuant to a taxation law, refuses or fails, when and as required pursuant to a taxation law to do so:

                     (a)  to answer a question asked of the person; or

                     (b)  to produce a book, paper, record or other document;

is guilty of an offence.

          (1A)  An offence under subsection (1) is an offence of strict liability.

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

          (1B)  Subsection (1) does not apply to the extent that the person is not capable of complying with the relevant paragraph.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (1B), see subsection 13.3(3) of the Criminal Code.

             (2)  A person who, when attending before the Commissioner or another person pursuant to a taxation law, refuses or fails, when and as required pursuant to a taxation law to do so, either to take an oath or make an affirmation is guilty of an offence.

8E  Penalties for failure to comply with requirements under taxation law

             (1)  Subject to subsections (2) and (3), an offence against section 8C or subsection 8D(1) or (2) is punishable on conviction by a fine not exceeding $2,000.

             (2)  Subject to subsection (3), where:

                     (a)  a person is convicted of an offence against section 8C or subsection 8D(1) or (2); and

                     (b)  the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence;

the penalty that the court may impose in respect of the first-mentioned offence is a fine not exceeding $4,000.

             (3)  Where:

                     (a)  a person is convicted of an offence against section 8C or subsection 8D(1) or (2);

                     (b)  in a case where the person is a natural person—the Commissioner has elected under subsection 8F(1) to treat the offence otherwise than as a prescribed taxation offence; and

                     (c)  the court before which the person is convicted is satisfied that the person has previously been convicted of 2 or more relevant offences;

the penalty that the court may impose in respect of the first-mentioned offence is a fine not exceeding $5,000 or imprisonment for a period not exceeding 12 months, or both.

8F  Election to treat offence otherwise than as prescribed taxation offence

             (1)  The Commissioner may, before the institution of a prosecution of a natural person for an offence against section 8C or subsection 8D(1) or (2), elect, in writing, to treat the offence otherwise than as a prescribed taxation offence.

             (2)  Where a prosecution is instituted for an offence in relation to which an election under subsection (1) has been made, the Commissioner shall cause a copy of the election to be filed in the court in which the prosecution is instituted.

8G  Order to comply with requirement

             (1)  Where:

                     (a)  a person is convicted before a court of an offence against section 8C or subsection 8D(1) or (2); or

                     (b)  a court makes an order under section 19B of the Crimes Act 1914 in relation to a person in respect of an offence against section 8C or subsection 8D(1) or (2);

in relation to the refusal or failure of the person to comply (whether in whole or in part) with a requirement made under or pursuant to a taxation law, the court may, in addition to imposing a penalty on the person or making such an order in relation to the person, as the case may be, and notwithstanding that the time for complying with the requirement or any other such requirement has passed, order the person to comply with:

                     (c)  the requirement; and

                     (d)  such other requirements made, or that could be made, in relation to the person under or pursuant to the taxation law as the court considers necessary to ensure the effectiveness of the first-mentioned requirement;

within a specified time or at a specified place and time.

             (2)  Where an order under subsection (1) is not given orally by the court to the person to whom the order is addressed, the proper officer of the court shall cause a copy of the order to be served on the person in the prescribed manner.

8H  Penalty for failure to comply with order to comply

             (1)  A person who refuses or fails to comply with an order under subsection 8G(1) is guilty of an offence punishable on conviction by a fine not exceeding $5,000 or imprisonment for a period not exceeding 12 months, or both.

             (2)  An offence under 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 the person is not capable of complying with the relevant paragraph.

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

8HA  Court may order payment of amount in addition to penalty

             (1)  If:

                     (a)  a person (the convicted person) is convicted before a court of an offence against section 8C, 8D or 8H in relation to a refusal or failure to do a particular thing; and

                     (b)  the court is satisfied that the purpose of, or one of the purposes of, the refusal or failure was to facilitate the avoidance of an amount of a tax liability of the convicted person or another person;

the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding:

                     (c)  if the offence is an offence to which subsection 8E(2) or (3) applies—3 times that amount; or

                     (d)  in any other case—2 times that amount.

             (2)  A reference in this section to a conviction of a person for an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.

Subdivision BOffences relating to statements, records and certain other Acts

8J  Interpretation

             (1)  In this Subdivision:

accounting records includes invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry and also includes:

                     (a)  such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up; and

                     (b)  such other documents (if any) as are prescribed.

accounts means ledgers, journals, profit and loss accounts and balance-sheets, and includes statements, reports and notes attached to, or intended to be read with, any of the foregoing.

data processing device means any article or material from which information is capable of being reproduced with or without the aid of any other article or device.

taxation officer means a person exercising powers or performing functions under, pursuant to or in relation to a taxation law.

             (2)  A reference in this Subdivision to a statement made to a taxation officer is a reference to a statement made to a taxation officer orally, in writing, in a data processing device, by way of electronic transmission or in any other form and, without limiting the generality of the foregoing, includes a statement:

                     (a)  made in an application, certificate, declaration, notification, objection, return, claim or other document made, prepared, given or furnished, or purporting to be made, prepared, given or furnished, under or pursuant to a taxation law; or

                     (b)  made in an instrument lodged for assessment under or pursuant to a taxation law; or

                     (c)  made in answer to a question asked of a person under or pursuant to a taxation law; or

                     (d)  made in any information furnished, or purporting to be furnished, under or pursuant to a taxation law; or

                     (e)  made in a document furnished to a taxation officer otherwise than under or pursuant to a taxation law;

but does not include a statement made in a document produced pursuant to:

                      (f)  paragraph 61(2)(c) of the Australian Capital Territory Taxation (Administration) Act 1969; or

                     (g)  subparagraph 59(1)(b)(ii) of the Debits Tax Administration Act 1982; or

                    (ga)  paragraph 79(1)(b) or (c) or 93ZC(1)(b) or (c) of the Development Allowance Authority Act 1992;

                    (ha)  paragraph 128(1)(c) of the Fringe Benefits Tax Assessment Act 1986; or

                     (k)  paragraph 264(1)(b) or 264A(1)(d) or (e) of the Income Tax Assessment Act 1936 (including that paragraph as applied by subsection 4(1) of the Trust Recoupment Tax Assessment Act 1985) other than a document containing particulars of the calculation of taxable income of a year of income and of the tax payable in respect of that taxable income that were specified in a return in accordance with section 221AZD of the Income Tax Assessment Act 1936; or

                  (kaa)  subparagraph 451(2)(c)(ii) or paragraph 453(1)(e) of the Income Tax Assessment Act 1936;

                    (m)  paragraph 20(1)(c) of the Pay-roll Tax (Territories) Assessment Act 1971; or

                   (ma)  paragraph 108(1)(c) of the Petroleum Resource Rent Tax Assessment Act 1987; or

                   (mb)  paragraph 42(2)(b) or (c) of the Product Grants and Benefits Administration Act 2000; or

                     (n)  subsection 23(1) of the Sales Tax Assessment Act (No. 1) 1930 (including that subsection as applied by any other Act providing for the assessment of sales tax); or

                    (na)  paragraph 108(1)(c) of the Sales Tax Assessment Act 1992; or

                    (nb)  paragraph 76(1)(c) of the Superannuation Guarantee (Administration) Act 1992; or

                     (p)  paragraph 13G(1)(c) or 14I(1)(c) of this Act; or

                    (pa)  paragraph 65(1)(c) of this Act; or

                     (q)  subsection 15(1) of the Tobacco Charges Assessment Act 1955; or

                    (qa)  paragraph 99(1)(c) of the Training Guarantee (Administration) Act 1990; or

                      (r)  paragraph 34(1)(c) of the Wool Tax (Administration) Act 1964.

          (2A)  If a document is given on a data processing device, or by way of electronic transmission, by a registered tax agent on behalf of a taxpayer, then, for the purposes of this Subdivision, each statement in the document is taken to have been made by the taxpayer unless the taxpayer can show that the taxpayer did not authorise the statement.

             (3)  A reference in this Subdivision to a relevant offence is a reference to:

                     (a)  an offence against:

                              (i)  subsection 8K(1) or (1B) or 8L(1) or (1A) or section 8N, 8Q, 8T or 8U; or

                             (ii)  the Crimes (Taxation Offences) Act 1980;

                     (b)  an offence against:

                              (i)  section 6 of the Crimes Act 1914; or

                             (ii)  section 11.1, 11.4 or 11.5 of the Criminal Code;

                            being an offence that relates to an offence of a kind referred to in paragraph (a) of this subsection; or

                     (c)  an offence against section 134.1, 134.2, 135.1, 135.2 or 135.4 of the Criminal Code, being an offence that relates to a tax liability.

             (4)  For the purposes of this Subdivision, a person who is convicted of an offence against subsection 8K(1) or (1B) or 8L(1) or (1A) or section 8N, 8Q, 8T or 8U (in this subsection referred to as the subsequent offence) shall be treated as having been previously convicted of a relevant offence (in this subsection referred to as the earlier offence) if:

                     (a)  the person was convicted of the earlier offence on an occasion earlier than, but not more than 10 years earlier than, the person’s conviction of the subsequent offence; or

                     (b)  the person is convicted of the earlier offence and the subsequent offence before the same court at the same sitting and the earlier offence was committed:

                              (i)  at a time or on a day earlier than, but not more than 10 years earlier than, the subsequent offence; or

                             (ii)  at the same time, or on the same day, as the subsequent offence.

             (5)  Unless the contrary intention appears, a reference in paragraph (4)(a) or (b) to a conviction of a person for an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.

             (6)  A reference in subsection 8M(2) or (4) of this section to an offence against subsection 8K(1) or (1B) or 8L(1) or (1A) includes a reference to an offence against section 11.1 of the Criminal Code that relates to an offence against subsection 8K(1) or (1B) or 8L(1) or (1A) includes a reference to an offence against section 7 of the Crimes Act 1914 that relates to an offence against subsection 8K(1) or (1B) or 8L(1) or (1A) includes a reference to an offence against section 11.1 of the Criminal Code that relates to an offence against subsection 8K(1) or (1B) or 8L(1) or (1A), as the case may be.

             (7)  A reference in subsection 8R(2) or 8S(1) or subsection (4) of this section to an offence against section 8N or 8Q includes a reference to an offence against section 11.1 of the Criminal Code that relates to an offence against section 8N or 8Q, as the case may be.

             (8)  A reference in subsection 8V(2) or subsection (4) of this section to an offence against section 8T or 8U includes a reference to an offence against section 7 of the Crimes Act 1914 that relates to an offence against section 8T or 8U, as the case may be.

             (9)  A reference in this Subdivision to a statement made to a taxation officer includes a reference to a statement made to a person other than a taxation officer for a purpose in connection with the operation of a taxation law.

           (10)  A reference in subsection (9) to a statement made to a person other than a taxation officer for a purpose in connection with the operation of a taxation law is a reference to such a statement made orally, in writing, in a data processing device or in any other form and, without limiting the generality of the foregoing, includes such a statement:

                     (a)  made in an application, certificate, declaration, notification or other document, made, given or furnished to the person;

                    (aa)  made in a tax invoice, or adjustment note, (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999) given to the person;

                     (b)  made in answer to a question asked by the person; or

                     (c)  made in any information furnished to the person.

           (11)  Where a person omits from a return furnished under or pursuant to the Income Tax Assessment Act 1936 or the regulations under that Act, being a return of income derived by the person, a partnership or a trust estate during a period, any assessable income derived by the person, partnership or the trust estate, as the case may be, during the period, the person shall, for the purposes of this Subdivision, be taken to have made a statement in the return to the effect that the person, the partnership or the trust estate, as the case requires, did not derive the assessable income during the period.

           (12)  Where:

                     (a)  a person issues a notice to another person under section 265B of the Income Tax Assessment Act 1936;

                     (b)  a person to whom a notice is issued under that section gives the notice to another person in connection with the transfer of a qualifying security to the other person; or

                     (c)  a person gives advice in writing to another person, in connection with the transfer of a qualifying security, of a variation or partial redemption of the qualifying security;

any statement in the notice when so issued or given, or in the advice when so given, to the other person shall, for the purposes of this Division, be taken to have been made by the issuer or person giving the notice or advice, as the case may be, to the other person for a purpose in connection with the operation of a taxation law.

           (13)  Where:

                     (a)  the holder of a qualifying security transfers the security to another person;

                     (b)  by virtue of the application of section 128AA of the Income Tax Assessment Act 1936, the holder is liable to pay withholding tax in relation to the transfer of the qualifying security;

                     (c)  before the security was transferred, the holder gave to the transferee, in connection with the transfer, a notice issued to the holder under section 265B of that Act identifying the security;

                     (d)  after the notice was issued to the holder, the security was varied or partially redeemed; and

                     (e)  the holder did not advise the transferee in writing of the variation or partial redemption;

the holder shall, for the purposes of this Division, be taken to have made for a purpose in connection with the operation of a taxation law a statement that the qualifying security was not so varied or partially redeemed.

           (14)  Where:

                     (a)  the holder of a qualifying security who acquired the security on transfer (in this subsection referred to as the current acquisition transfer) transfers the security to another person;

                     (b)  by virtue of the application of section 128AA of the Income Tax Assessment Act 1936, the holder is liable to pay withholding tax in relation to the transfer of the security;

                     (c)  before the security was transferred, the holder gave to the transferee, in connection with the transfer, a certificate issued to the holder under section 128AB of that Act identifying the security; and

                     (d)  the holder had acquired the security on transfer on any occasion before the current acquisition transfer;

the holder shall, for the purposes of this Division, be taken to have made for a purpose in connection with the operation of a taxation law a statement that the certificate relates to the current acquisition transfer.

           (15)  Where:

                     (a)  a qualifying security is redeemed or partially redeemed from the holder;

                     (b)  the holder acquired the security on transfer (in this subsection referred to as the current acquisition transfer);

                     (c)  the holder is liable to pay withholding tax in relation to the redemption or partial redemption of the security;

                     (d)  before the security was redeemed or partially redeemed, the holder gave to the issuer, in connection with the redemption or partial redemption, a certificate issued to the holder under section 128AB of the Income Tax Assessment Act 1936 identifying the security; and

                     (e)  the holder had acquired the security on transfer on any occasion before the current acquisition transfer;

the holder shall, for the purposes of this Division, be taken to have made for a purpose in connection with the operation of a taxation law a statement that the certificate relates to the current acquisition transfer.

           (16)  Subject to subsection (17), for the purposes of subsections (12) to (15) (inclusive):

                     (a)  expressions used in those subsections that are also used in Division 16E of Part III of the Income Tax Assessment Act 1936 have the same respective meanings as in that Division; and

                     (b)  sections 159GV (other than subsection 159GV(2)) and 159GZ of the Income Tax Assessment Act 1936 apply as if references in those sections to “this Division” were references to “section 8J of the Taxation Administration Act 1953”.

           (17)  Subsection (16) applies as if paragraph (c) of the definition of qualifying security in subsection 159GP(1) of the Income Tax Assessment Act 1936 were omitted.

           (18)  If:

                     (a)  a depositor gives a financial institution a statement that:

                              (i)  there will be no assessable FMD amount in respect of the repayment of a farm management deposit; or

                             (ii)  there will be an assessable FMD amount in respect of the repayment of a farm management deposit that is less than the amount of the deposit, where the statement specifies what the assessable FMD amount will be; and

                     (b)  the statement turns out to be incorrect; and

                     (c)  the person believed, or had reasonable grounds for believing, that the statement would turn out to be incorrect;

for the purposes of this Division, the statement is taken to be false or misleading in a material particular.

           (19)  Expressions used in subsection (18) that are also used in Division 6A of Part VI of the Income Tax Assessment Act 1936 have the same respective meanings as in that Division.

8K  False or misleading statements

             (1)  A person is guilty of an offence if:

                     (a)  the person makes a statement to a taxation officer; and

                     (b)  the statement is false or misleading in a material particular.

          (1A)  In subsection (1), absolute liability applies to the circumstance, that the statement is false or misleading in a material particular.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

          (1B)  A person is guilty of an offence if:

                     (a)  the person makes a statement to a taxation officer; and

                     (b)  the person omits any matter or thing from the statement; and

                     (c)  the statement is misleading in a material particular because of the omission.

          (1C)  In subsection (1B), absolute liability applies to:

                     (a)  the conduct, that the person omits a matter or thing; and

                     (b)  the circumstance, that the statement is misleading in a material particular.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

             (2)  In a prosecution of a person for an offence against subsection (1) or (1B), it is a defence if the person proves that the person:

                     (a)  did not know; and

                     (b)  could not reasonably be expected to have known;

that the statement to which the prosecution relates was false or misleading.

Note:          The defendant bears a legal burden in relation to the matter in subsection (2), see section 13.4 of the Criminal Code.

             (3)  For the purposes of subsection (1B), a person shall not be taken to have omitted a matter or thing from a statement made to a taxation officer merely because the person has, in making the statement, failed to quote the person’s tax file number.

8L  Incorrectly keeping records etc.

             (1)  A person is guilty of an offence if:

                     (a)  the person is required under, or pursuant to, a taxation law to keep any accounts, accounting records or other records; and

                     (b)  the person keeps the accounts or records; and

                     (c)  the accounts or records do not correctly record and explain the matters, transactions, acts or operations to which they relate.

          (1A)  A person is guilty of an offence if:

                     (a)  the person is required under, or pursuant to, a taxation law to make a record of any matter, transaction, act or operation; and

                     (b)  the person makes the record; and

                     (c)  the record does not correctly record the matter, transaction, act or operation.

          (1B)  An offence under subsection (1) or (1A) is an offence of absolute liability.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

             (2)  In a prosecution of a person for an offence against subsection (1) or (1A), it is a defence if the person proves that the person:

                     (a)  did not know; and

                     (b)  could not reasonably be expected to have known;

that:

                     (c)  in the case of a prosecution for an offence against subsection (1)—the accounts, accounting records or other records to which the prosecution relates did not correctly record and explain the matters, transactions, acts or operations to which they relate; or

                     (d)  in the case of a prosecution for an offence against subsection (1A)—the record to which the prosecution relates did not correctly record the matter, transaction, act or operation to which the record relates.

Note:          The defendant bears a legal burden in relation to the matter in subsection (2), see section 13.4 of the Criminal Code.

8M  Penalties for offences against subsections 8K(1) and (1B) and 8L(1) and (1A)

             (1)  Subject to subsection (2), an offence against subsection 8K(1) or (1B) or 8L(1) or (1A) is punishable on conviction by a fine not exceeding $2,000.

             (2)  Where:

                     (a)  a person is convicted of an offence against subsection 8K(1) or (1B) or 8L(1) or (1A); and

                     (b)  the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence;

the penalty that the court may impose in respect of the first-mentioned offence is a fine not exceeding $4,000.

8N  Recklessly making false or misleading statements

                   A person is guilty of an offence if:

                     (a)  the person makes a statement (whether orally, in a document or in any other way) to a taxation officer; and

                     (b)  the statement:

                              (i)  is false or misleading in a material particular; or

                             (ii)  omits any matter or thing without which the statement is misleading in a material particular; and

                     (c)  the person is reckless as to whether the statement:

                              (i)  is false or misleading in a material particular; or

                             (ii)  omits any matter or thing without which the statement is misleading in a material particular.

8Q  Recklessly incorrectly keeping records etc.

             (1)  A person is guilty of an offence if:

                     (a)  the person is required under, or pursuant to, a taxation law to keep any accounts, accounting records or other records; and

                     (b)  the person keeps the accounts or records; and

                    (ba)  the accounts or records do not correctly record and explain the matters, transactions, acts or operations to which they relate; and

                     (c)  the person is reckless as to whether the accounts or records correctly record and explain the matters, transactions, acts or operations to which they relate.

             (2)  A person is guilty of an offence if:

                     (a)  the person is required under, or pursuant to, a taxation law to make a record of any matter, transaction, act or operation; and

                     (b)  the person makes the record; and

                    (ba)  the record does not correctly record the matter, transaction, act or operation; and

                     (c)  the person is reckless as to whether the record correctly records the matter, transaction, act or operation.

             (3)  In subsections (1) and (2), strict liability applies to the circumstance, that the person is required under, or pursuant to, a taxation law to keep the accounts, accounting records or other records.

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

8R  Penalties for offences against sections 8N and 8Q

             (1)  Subject to subsection (2), an offence against section 8N or 8Q is punishable on conviction by a fine not exceeding $3,000.

             (2)  Where:

                     (a)  a person is convicted of an offence against section 8N or 8Q;

                     (b)  in a case where the person is a natural person—the Commissioner has elected under subsection 8S(1) to treat the offence otherwise than as a prescribed taxation offence; and

                     (c)  the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence;

the penalty that the court may impose in respect of the first-mentioned offence is a fine not exceeding $5,000 or imprisonment for a period not exceeding 12 months, or both.

8S  Election to treat offence otherwise than as prescribed taxation offence

             (1)  The Commissioner may, before the institution of a prosecution of a natural person for an offence against section 8N, or 8Q, or against Division 136 or 137 of the Criminal Code in relation to a taxation law, elect, in writing, to treat the offence otherwise than as a prescribed taxation offence.

             (2)  Where a prosecution is instituted for an offence in relation to which an election under subsection (1) has been made, the Commissioner shall cause a copy of the election to be filed in the court in which the prosecution is instituted.

8T  Incorrectly keeping records with intention of deceiving or misleading etc.

                   A person who:

                     (a)  keeps any accounts, accounting records or other records in such a way that they:

                              (i)  do not correctly record and explain the matters, transactions, acts or operations to which they relate; or

                             (ii)  are (whether in whole or in part) illegible, indecipherable, incapable of identification or, if they are kept in the form of a data processing device, incapable of being used to reproduce information;

                     (b)  makes a record of any matter, transaction, act or operation in such a way that it does not correctly record the matter, transaction, act or operation;

                     (c)  engages in conduct that results in the alteration, defacing, mutilation, falsification, damage, removal, concealing or destruction of any accounts, accounting records or other records (whether in whole or in part); or

                     (d)  does or omits to do any other act or thing to any accounts, accounting records or other records;

with any of the following intentions, namely:

                     (e)  deceiving or misleading the Commissioner or a particular taxation officer;

                      (f)  hindering or obstructing the Commissioner or a particular taxation officer (otherwise than in the investigation of a taxation offence);

                     (g)  hindering or obstructing the investigation of a taxation offence;

                     (h)  hindering, obstructing or defeating the administration, execution or enforcement of a taxation law; or

                      (j)  defeating the purposes of a taxation law;

(whether or not the person had any other intention) is guilty of an offence.

8U  Falsifying or concealing identity with intention of deceiving or misleading etc.

                   A person who:

                     (a)  engages in conduct that results in the falsification or concealing of the identity of, or the address or location of a place of residence or business of, the person or another person; or

                     (b)  does or omits to do any act or thing the doing or omission of which facilitates the falsification or concealment of the identity of, or the address or location of a place of residence or business of, the person or another person;

with any of the following intentions, namely:

                     (c)  deceiving or misleading the Commissioner or a particular taxation officer;

                     (d)  hindering or obstructing the Commissioner or a particular taxation officer (otherwise than in the investigation of a taxation offence);

                     (e)  hindering or obstructing the investigation of a taxation offence;

                      (f)  hindering, obstructing or defeating the administration, execution or enforcement of a taxation law; or

                     (g)  defeating the purposes of a taxation law;

(whether or not the person had any other intention) is guilty of an offence.

8V  Penalties for offences against sections 8T and 8U

             (1)  Subject to subsection (2), an offence against section 8T or 8U is punishable on conviction by a fine not exceeding $5,000 or imprisonment for a period not exceeding 12 months, or both.

             (2)  Where:

                     (a)  a person is convicted of an offence against section 8T or 8U; and

                     (b)  the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence;

the penalty that the court may impose in respect of the first-mentioned offence is a fine not exceeding $10,000 or imprisonment for a period not exceeding 2 years, or both.

8W  Court may order payment of amount in addition to penalty

             (1)  Where:

                     (a)  a person (in this subsection referred to as the convicted person) is convicted before a court of:

                              (i)  an offence against subsection 8K(1) or or (1B) or section 8N, or against Division 136 or 137 of the Criminal Code in relation to a taxation law, in relation to a statement made to a taxation officer; or

                             (ii)  an offence against subsection 8L(1) or (1A) or section 8Q in relation to the keeping of any accounts, accounting records or other records (in paragraph (b) referred to as the relevant accounts) or the making of a record; and

                     (b)  the court is satisfied that the proper amount of a tax liability of the convicted person or another person exceeds the amount that would have been the amount of the tax liability if it were assessed or determined, as the case requires, on the basis that the statement were not false or misleading, on the basis of the relevant accounts as they were kept or on the basis that the record were correct, as the case may be;

the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding:

                     (c)  in a case where the offence is an offence to which subsection 8R(2) applies or that is against Division 136 or 137 of the Criminal Code in relation to a taxation law—3 times the amount of the excess; or

                     (d)  in any other case—double the amount of the excess.

          (1B)  For the purposes of paragraph (1)(b), a decision made by the Development Allowance Authority under Part 2, 3, 4, 5 or 6 of Chapter 2, or Division 1 of Part 3 of Chapter 3, of the Development Allowance Authority Act 1992 is taken to form part of the process of making assessments of income tax.

          (1C)  If the conditions in section 705-315 of the Income Tax Assessment Act 1997 are satisfied, then for the purposes of any application of subsection (1) of this section in relation to the errors mentioned in that section that were made in a statement that was made before the Commissioner became aware of the errors, the references in paragraphs (1)(c) and (d) of this section to the excess are taken instead to be references to the amount worked out using the formula:

where:

adjusted reset cost base asset setting amount means:

                     (a)  the *tax cost setting amount, worked out under Division 705 of the Income Tax Assessment Act 1997, for all assets of a kind referred to in section 705-35 of that Act as reset cost base assets that the *head company of the relevant group held continuously from the time when the *subsidiary member referred to in subsection 705-315(2) of that Act joined the group until the start of the head company’s income year in which the Commissioner became aware of the errors mentioned in section 705-315 of that Act;

less:

                     (b)  the head company’s deductions under Division 40 (except under Subdivision 40-F, 40-G, 40-H or 40-I) or Subdivision 328-D of the Income Tax Assessment Act 1997 for those assets for all income years before the earliest income year for which the Commissioner could amend the head company’s assessment to correct any of the errors.

original reset cost base asset setting amount means the *tax cost setting amount, worked out under Division 705 of the Income Tax Assessment Act 1997, for all reset cost base assets that the *subsidiary member held at the time it joined the group, other than assets that the *head company no longer held at the start of the earliest income year for which the Commissioner could amend the head company’s assessment to correct any of the errors.

tax on capital gain means the product of:

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

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

             (2)  Where:

                     (a)  a person (in this subsection referred to as the convicted person) is convicted before a court of an offence against section 8T or 8U in relation to an act or omission; and

                     (b)  the court is satisfied that the purpose of, or one of the purposes of, the act or omission was to facilitate the avoidance of an amount of a tax liability of the convicted person or another person;

the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding:

                     (c)  in a case where the offence is an offence to which subsection 8V(2) applies—3 times that amount; or

                     (d)  in any other case—double that amount.

          (2A)  If:

                     (a)  a person (the convicted person) is convicted before a court of:

                              (i)  an offence against subsection 8K(1) or or (1B) or section 8N, or against Division 136 or 137 of the Criminal Code in relation to a taxation law, in relation to a statement made to a taxation officer; or

                             (ii)  an offence against subsection 8L(1) or (1A) or section 8Q in relation to the keeping of any records; and

                     (b)  the offence relates to the Product Grants and Benefits Administration Act 2000; and

                     (c)  the court is satisfied that the amount that would have been the amount of a product grant or benefitt payable to the convicted person or another person, determined on the basis that:

                              (i)  the statement were not false or misleading; or

                             (ii)  on the basis of those records as they were kept;

                            as the case may be, exceeds the proper amount of the product grant or benefit payable to the convicted person or the other person;

the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding:

                     (d)  in a case where the offence is an offence to which subsection 8R(2) applies, or that is against Division 136 or 137 of the Criminal Code in relation to a taxation law—3 times the amount of the excess; or

                     (e)  in any other case—double the amount of the excess.

             (3)  A reference in this section to a conviction of a person for an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.

             (4)  In this section:

product grant or benefit means a grant or benefit payable under the Product Grants and Benefits Administration Act 2000.

Subdivision BAOffences relating to tax file numbers

8WA  Unauthorised requirement etc. that tax file number be quoted

             (1)  A person must not require or request another person to quote the other person’s tax file number.

Penalty:  $10,000 or imprisonment for 2 years, or both.

       (1AA)  Subsection (1) does not apply if:

                     (a)  provision is made by or under a taxation law or legislation described in paragraph 202(e) of the Income Tax Assessment Act 1936 for the person to quote the number; or

                     (b)  the first-mentioned person requires or requests the number to be quoted in connection with that person exercising powers or performing functions under, or in relation to, or complying with an obligation imposed by, a taxation law or a law of the Commonwealth of the kind referred to in paragraph 202(c), (d), (g), (ga), (h), (ha), (hb), (hc), (i), (ia), (j), (m) or (n) of the Income Tax Assessment Act 1936; or

                     (c)  the first-mentioned person requires or requests the number to be quoted in connection with the first-mentioned person acting on the other person’s behalf in the conduct of the other person’s affairs.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (1AA), see subsection 13.3(3) of the Criminal Code.

          (1A)  A person does not contravene subsection (1) by asking another person to quote the other person’s tax file number if the request is made so that the number can be included in an application for the registration of an entity under the A New Tax System (Australian Business Number) Act 1999.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code.

             (2)  Nothing in subsection (1) shall be read as prohibiting a person from requesting the production of a document, or a copy of a document, on which another person’s tax file number is recorded if the other person is not prevented from removing the tax file number from the document.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2), see subsection 13.3(3) of the Criminal Code.

             (3)  For the purposes of this section, a person who makes to another person a statement that the other person could reasonably understand to mean that the other person is required or requested to quote the other person’s tax file number shall be taken to require or request the other person to quote the number.

             (4)  Nothing in this section shall be read as imposing on a person an obligation to require another person to quote a tax file number.

8WB  Unauthorised recording etc. of tax file number

             (1)  A person must not:

                     (a)  record another person’s tax file number or maintain such a record; or

                     (b)  use another person’s tax file number in a manner connecting it with the other person’s identity; or

                     (c)  divulge or communicate another person’s tax file number to a third person.

Penalty:  $10,000 or imprisonment for 2 years, or both.

          (1A)  Subsection (1) does not apply:

                     (a)  to the extent required or permitted by, or reasonably necessary in order to comply with an obligation imposed by, a taxation law or a law of the Commonwealth of a kind referred to in paragraph 202(c), (d), (e), (g), (ga), (h), (ha), (hb), (hc), (i), (ia), (j), (ka), (m), (n) or (o) of the Income Tax Assessment Act 1936; or

                     (b)  in connection with the first-mentioned person exercising powers or performing functions under, or in relation to, a taxation law or a law of the Commonwealth of a kind referred to in paragraph 202(c), (d), (e), (g), (ga), (h), (ha), (hb), (hc), (i), (ia), (j), (ka), (m), (n) or (o) of the Income Tax Assessment Act 1936; or

                     (c)  in connection with the first-mentioned person acting on the other person’s behalf in the conduct of the other person’s affairs.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code.

             (2)  Without affecting any obligation imposed by or under a law of the Commonwealth other than this section, nothing in subsection (1A) shall be read as imposing on a person an obligation to do an act referred to in paragraph (1)(a), (b) or (c).

8WC  Conducting affairs so as to avoid tax file number requirements

             (1)  Where:

                     (a)  a person is an investor in relation to 2 or more investments of a similar kind; and

                     (b)  having regard to:

                              (i)  the manner in which the person became an investor in relation to the investments; and

                             (ii)  any explanation made by the person as to becoming such an investor in that manner;

                            it would be reasonable to conclude that the person became such an investor in that manner for the sole or dominant purpose of ensuring, or attempting to ensure that:

                            (iii)  although the person has not, under Part VA of the Income Tax Assessment Act 1936, quoted the person’s tax file number in connection with those investments (in this subparagraph called the non-TFN investments):

                                        (A)  amounts would not be deducted under Division 3B of that Act, or withheld under section 12-140 or 12-145 in Schedule 1 to this Act, or withheld under section 12-140 or 12-145 in Schedule 1 to this Act, from income in respect of one or more of the non-TFN investments; and

                                        (B)  amounts would not be paid to the Commissioner under subsection 221YHZD(1B) of that Act, or under section 14-5 in Schedule 1 to this Act, or under section 14-5 in Schedule 1 to this Act, in relation to income in respect of one or more of the non-TFN investments; and

                                        (C)  TFN withholding tax would not be payable under section 221YHZR of that Act in respect of one or more of the non-TFN investments; or

                            (iv)  the investments are not referred to in a report under the regulations made under that Act;

the person is guilty of an offence.

Penalty:  $10,000 or imprisonment for 2 years, or both.

             (2)  In this section:

investment means an investment of a kind mentioned in section 202D of the Income Tax Assessment Act 1936.

investor means an investor within the meaning of that section.

Subdivision CMiscellaneous

8XA  Unauthorised access to taxation records

                   A person must not take action with the intention of obtaining information about another person’s affairs that:

                     (a)  is contained in records in the possession of the Commissioner; and

                     (b)  is held or was obtained by the Commissioner under or for the purposes of a taxation law;

unless the person takes the action:

                     (c)  under the Freedom of Information Act 1982; or

                     (d)  in accordance with the processes of a court or the Tribunal; or

                     (e)  in the course of exercising powers or performing functions under or in relation to a taxation law.

Penalty:  $10,000 or imprisonment for 2 years, or both.

8XB  Secrecy

             (1)  Subject to subsection (3), a person shall not directly or indirectly:

                     (a)  make a record of any taxation information relating to another person; or

                     (b)  divulge or communicate to another person any taxation information relating to a third person; or

                     (c)  otherwise make use of any taxation information relating to another person;

being information disclosed to or obtained by the person in breach of a provision of a taxation law (including this provision).

Penalty:  $10,000 or imprisonment for 2 years, or both.

          (1A)  Subsection (1) does not apply to the extent that the person’s actions are required or permitted by a taxation law or reasonably necessary in order to comply with an obligation imposed by a taxation law.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code.

             (2)  Without limiting subsection (1), a person shall be taken to have obtained taxation information in breach of a provision of a taxation law if:

                     (a)  the information relates to the affairs of another person;

                     (b)  the form or circumstances in which the information was obtained would have led a reasonable person to believe that:

                              (i)  in the case of information contained in a document—the document had come from an office of the Commissioner or a Deputy Commissioner; or

                             (ii)  in any other case—the information had come from the records of the Commissioner or from an officer; and

                     (c)  the information was obtained by the person in circumstances that gave the person no reasonable cause to believe that the communication of the information to the person was authorised by a taxation law or by a person acting in accordance with such a law.

             (3)  Subsection (1) does not apply to the divulging or communicating of information to an officer (within the meaning of a taxation secrecy provision) for a purpose connected with the administration of a taxation law.

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

             (4)  Except where it is necessary to do so for the purpose of carrying into effect the provisions of a taxation law, a person shall not be required:

                     (a)  to produce in court any document containing information in relation to which subsection (1) applies; or

                     (b)  to divulge or communicate to a court a matter or thing with respect to information in relation to which subsection (1) applies.

             (5)  This section does not apply to a person in respect of information or a document if the person is an officer within the meaning of a taxation secrecy provision and that provision refers to the information or document.

             (6)  In this section:

taxation information means information with respect to a person’s affairs, being information that is, or at any time has been, in the possession of the Commissioner.

taxation secrecy provision means a provision of a taxation law that purports to prohibit the communication, divulging or publication of information or the production of, or the publication of the contents of, a document.

8Y  Liability of officers etc. of corporations

             (1)  Where a corporation does or omits to do an act or thing the doing or omission of which constitutes a taxation offence, a person (by whatever name called and whether or not the person is an officer of the corporation) who is concerned in, or takes part in, the management of the corporation shall be deemed to have committed the taxation offence and is punishable accordingly.

             (2)  In a prosecution of a person for a taxation offence by virtue of subsection (1), it is a defence if the person proves that the person:

                     (a)  did not aid, abet, counsel or procure the act or omission of the corporation concerned; and

                     (b)  was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission of the corporation.

Note 1:       A defendant bears a legal burden in relation to the matters in subsection (2), see section 13.4 of the Criminal Code.

Note 2:       Subsection (2) does not apply in relation to a prosecution under Part 2.4 of the Criminal Code.

             (3)  For the purposes of subsection (1), an officer of a corporation shall be presumed, unless the contrary is proved, to be concerned in, and to take part in, the management of the corporation.

             (4)  In this section, officer, in relation to a corporation, means:

                     (a)  a director or secretary of the corporation;

                     (b)  a receiver and manager of property of the corporation;

                    (ba)  an administrator, within the meaning of the Corporations Act 2001, of the corporation;

                    (bb)  an administrator of a deed of company arrangement executed by the corporation under Part 5.3A of that Act;

                     (c)  an official manager or deputy official manager of the corporation;

                     (d)  a liquidator of the corporation appointed in a voluntary winding up of the corporation; or

                     (e)  a trustee or other person administering a compromise or arrangement made between the corporation and another person or other persons.

8Z  Evidentiary certificate relating to previous convictions

             (1)  The Commissioner may, for the purposes of subsection 8E(2) or (3), 8M(2), 8R(2) or 8V(2), issue a certificate setting out such facts as the Commissioner considers relevant with respect to:

                     (a)  the conviction of a person of an offence against a provision of Subdivision A or B or against Division 136 or 137 of the Criminal Code in relation to a taxation law; or

                     (b)  the conviction of a person of an offence against the Crimes (Taxation Offences) Act 1980; or

                     (c)  the conviction of a person of an offence against:

                              (i)  section 6 of the Crimes Act 1914; or

                             (ii)  section 11.1, 11.4 or 11.5 of the Criminal Code;

                            being an offence that relates to an offence of a kind referred to in paragraph (a) or (b) of this subsection; or

                     (d)  the conviction of a person of an offence against section 134.1, 134.2, 135.1, 135.2 or 135.4 of the Criminal Code, being an offence that relates to a tax liability; or

                     (e)  the making of an order under section 19B of the Crimes Act 1914 in relation to a person in respect of an offence of a kind referred to in paragraph (a), (b), (c) or (d) of this subsection; or

                      (f)  the conviction of a person of an offence against Division 136 or 137 of the Criminal Code, being an offence that relates to a taxation law.

             (2)  A document purporting to be a certificate issued under subsection (1) shall be received in evidence in a court without further proof and is, for those purposes, prima facie evidence of the facts stated in it.

             (3)  The provisions of this section are in addition to, and not in derogation of, any other law of the Commonwealth or any law of a State or Territory.


 

Division 3Prosecution of taxation offences

8ZA  Prosecution of taxation offences

             (1)  A taxation offence that is punishable by imprisonment for a period exceeding 12 months is, when committed by a natural person, an indictable offence.

             (2)  A taxation offence that is punishable by imprisonment for a period not exceeding 12 months is, when committed by a natural person, punishable on summary conviction.

             (3)  A prescribed taxation offence, when committed by a natural person, is punishable on summary conviction.

             (4)  A taxation offence, when committed by a corporation, is punishable on summary conviction.

             (5)  In spite of anything in the preceding provisions of this section, if:

                     (a)  a person is convicted of 2 or more offences against section 8T or 8U, or both, before the same court at the same sitting; and

                     (b)  assuming that the person had only been convicted of one of those offences, that offence would have been punishable on summary conviction;

all those offences are punishable on summary conviction.

             (6)  A reference in subsection (5) to a conviction of a person for an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.

             (7)  A reference in subsection (5) to an offence against section 8T or 8U includes a reference to an offence against section 11.1 of the Criminal Code that relates to an offence against section 8T or 8U, as the case may be.

8ZB  Prosecution may be commenced at any time

             (1)  A prosecution for a taxation offence may be commenced at any time.

             (2)  Subsection (1) has effect notwithstanding anything contained in section 15B of the Crimes Act 1914.

8ZC  Place where offence committed

             (1)  Where a person commits a taxation offence by doing an act, the taxation offence may be taken to have been committed at:

                     (a)  the place where the act was done;

                     (b)  if the person is a natural person—the usual place of residence or business of the person or the place of residence or business of the person last known to the Commissioner; or

                     (c)  if the person is a corporation—the head office, a registered office or a principal office of the corporation;

and the person may be charged with, and convicted of, the taxation offence as if it had been committed at any of those places.

             (2)  Where a person commits a taxation offence by omitting to do an act, the taxation offence may be taken to have been committed at:

                     (a)  the place where the act should have been done;

                     (b)  if the person is a natural person—the usual place of residence or business of the person or the place of residence or business of the person last known to the Commissioner; or

                     (c)  if the person is a corporation—the head office, a registered office or a principal office of the corporation;

and the person may be charged with, and convicted of, the taxation offence as if it had been committed at any of those places.

             (3)  This section has effect subject to section 80 of the Constitution.

Note:          This section does not apply as an averment. For averments, see section 8ZL of this Act and section 13.6 of the Criminal Code.

8ZD  Conduct by servants or agents of corporations

             (1)  Where, in a prosecution for a taxation offence constituted by an act done, or omitted to be done, by a corporation, it is necessary to establish the intention of the corporation, it is sufficient to show that a servant or agent of the corporation by whom the act was done or omitted to be done, as the case may be, had the intention.

             (2)  In a prosecution for a taxation offence, any act done, or omitted to be done, on behalf of a corporation by:

                     (a)  a director, servant or agent of the corporation; or

                     (b)  any other person:

                              (i)  at the direction; or

                             (ii)  with the consent or agreement (whether express or implied);

                            of a director, servant or agent of the corporation;

shall be deemed to have been done, or omitted to have been done, as the case may be, also by the corporation.

             (3)  Part 2.5 of the Criminal Code does not apply to taxation offences.

8ZE  Civil penalty not payable if prosecution instituted

                   If:

                     (a)  a person is liable to pay by way of penalty (other than for an offence) an amount under a taxation law because of an act or omission of the person; and

                     (b)  a prosecution is instituted against the person for a taxation offence constituted by the act or omission;

then (whether or not the prosecution is withdrawn):

                     (c)  the person is not liable to pay the amount; and

                     (d)  any amount paid, or applied by the Commissioner, in total or partial discharge of that liability is to be refunded to the person, or applied by the Commissioner in total or partial discharge of another tax liability of the person.

Note:          An example of a penalty referred to in paragraph (a) is a penalty payable under section 226G of the Income Tax Assessment Act 1936.

8ZF  Penalties for corporations

                   Where a corporation is convicted of:

                     (a)  a taxation offence (other than a prescribed offence) that, if committed by a natural person, is punishable by imprisonment; or

                     (b)  a prescribed offence to which subsection 8E(3) or 8R(2) applies;

the penalty that the court before which the corporation is convicted may impose is a fine not exceeding 5 times the maximum fine that, but for this section, the court could impose as a penalty for the taxation offence.

8ZG  Enforcement of orders for payment

             (1)  Where:

                     (a)  upon the conviction of a person for a taxation offence, the court before which the person is convicted, in addition to imposing a penalty on the person, orders the person to pay an amount to the Commissioner; and

                     (b)  the court has civil jurisdiction to the extent of the amount;

the order is enforceable in all respects as a final judgment of the court in favour of the Commissioner.

             (2)  Where:

                     (a)  upon conviction of a person for a taxation offence, the court before which the person is convicted, in addition to imposing a penalty on the person, orders the person to pay an amount to the Commissioner; and

                     (b)  the court:

                              (i)  does not have civil jurisdiction; or

                             (ii)  has civil jurisdiction, but does not have civil jurisdiction to the extent of the amount;

the proper officer of the court shall issue to the Commissioner a certificate in the prescribed form containing the prescribed particulars.

             (3)  The certificate may, in the prescribed manner and subject to the prescribed conditions (if any), be registered in a court having civil jurisdiction to the extent of the amount ordered to be paid to the Commissioner.

             (4)  Upon registration under subsection (3), the certificate is enforceable in all respects as a final judgment of the court in favour of the Commissioner.

             (5)  The costs of registration of the certificate and other proceedings under this section shall, subject to the prescribed conditions (if any), be deemed to be payable under the certificate.

8ZH  Penalties not to relieve from tax

                   The adjudgment or payment of:

                     (a)  a penalty in respect of a taxation offence; or

                     (b)  an amount ordered by a court, upon the conviction of a person for a taxation offence, to be paid by the person to the Commissioner;

does not relieve any person from liability to assessment or payment of any amount (whether by way of tax, duty, charge or otherwise) for which the person would otherwise be liable.


 

Division 4Prescribed taxation offences

8ZJ  Prosecution of prescribed taxation offences

             (1)  A prosecution for a prescribed taxation offence shall take the form of a proceeding by the Commonwealth for the recovery of a pecuniary penalty.

             (2)  A prosecution for a prescribed taxation offence may be instituted by a person authorized under subsection (8) on behalf of, and in the official name of, the Commissioner by information or complaint in a court of summary jurisdiction.

             (3)  A prosecution of a person for a prescribed taxation offence that is punishable by a fine exceeding the prescribed amount in relation to the person may be instituted by a person authorized under subsection (8) on behalf of, and in the official name of, the Commissioner by action in the Supreme Court of a State or Territory.

             (4)  Where a court of summary jurisdiction convicts a person of a prescribed taxation offence, the penalty that the court may impose is a fine not exceeding the prescribed amount in relation to the person.

             (5)  Where:

                     (a)  a prosecution of a person for a prescribed taxation offence that is punishable by a fine exceeding the prescribed amount in relation to the person is instituted in accordance with subsection (2); and

                     (b)  before the expiration of the period of 14 days after service of process on the person in respect of the prescribed taxation offence, the person elects, in the prescribed manner, to have the case tried in the Supreme Court of the State or Territory in which the prosecution was instituted;

the prosecution shall, by force of this subsection and without any order of the Supreme Court, be removed to the Supreme Court.

             (6)  Where a prosecution for a prescribed taxation offence is instituted in the Supreme Court of a State or Territory in accordance with subsection (3) or is removed to the Supreme Court of a State or Territory by force of subsection (5), the prosecution may be conducted in accordance with:

                     (a)  the usual practice and procedure of the Supreme Court in civil cases; or

                     (b)  the directions of the Supreme Court or a Justice or Judge of the Supreme Court.

             (7)  The jurisdiction of the Supreme Court of a State or Territory under this section shall be exercised by a single Justice or Judge of the Supreme Court.

             (8)  The Commissioner may, by writing, authorize a person to institute a prosecution for:

                     (a)  a specified prescribed taxation offence;

                     (b)  a prescribed taxation offence included in a specified class of prescribed taxation offences; or

                     (c)  any prescribed taxation offence.

             (9)  A reference in this section to the prescribed amount in relation to a person is a reference to:

                     (a)  if the person is a natural person—$5,000; or

                     (b)  if the person is a corporation—$25,000.

8ZK  Protection of witnesses

                   A witness called on behalf of the Commissioner in any prosecution for a prescribed taxation offence shall not be compelled:

                     (a)  to disclose:

                              (i)  the fact that the witness received any information;

                             (ii)  the nature of any information received by the witness; or

                            (iii)  the name of any person from whom the witness received any information; or

                     (b)  if the witness is an officer, to produce any reports:

                              (i)  made or received by the witness confidentially in the witness’ official capacity; or

                             (ii)  containing confidential information.

8ZL  Averment

             (1)  In a prosecution for a prescribed taxation offence, a statement or averment contained in the information, claim or complaint is prima facie evidence of the matter so stated or averred.

             (2)  This section applies in relation to any matter so stated or averred although:

                     (a)  evidence in support or rebuttal of the matter stated or averred, or of any other matter, is given; or

                     (b)  the matter averred is a mixed question of law and fact, but, in that case, the statement or averment is prima facie evidence of the fact only.

             (3)  Any evidence given in support or rebuttal of a matter so stated or averred shall be considered on its merits, and the credibility and probative value of such evidence shall be neither increased nor diminished by reason of this section.

             (4)  This section:

                     (a)  does not apply to any fault element of an offence; and

                    (aa)  does not apply in relation to any offence for which imprisonment is a penalty; and

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

8ZM  Evidence of authority to institute proceedings

             (1)  Where a prosecution for a prescribed taxation offence is instituted by a person in the official name of the Commissioner, the prosecution shall be presumed, unless the contrary is proved, to have been instituted with the authority of the Commissioner.

             (2)  In a prosecution for a prescribed taxation offence, the mere production of an instrument, telegram or copy of a telex message purporting to have been issued or sent by the Commissioner, a Second Commissioner or a Deputy Commissioner and purporting to notify a person that the person is authorized by the Commissioner to institute the prosecution, to institute prosecutions for a class of prescribed taxation offences in which the prescribed taxation offence is included or to institute prosecutions for any prescribed taxation offence is conclusive evidence of the authority of the person to institute the prosecution on behalf of, and in the official name of, the Commissioner.

8ZN  Costs

                   In a prosecution for a prescribed taxation offence, the court may award costs against any party.


 

Division 5Service of summons for prescribed taxation offences

9  lnterpretation

                   In this Division, unless the contrary intention appears:

defendant, in relation to a prescribed taxation offence, means a person to whom a summons has been sent in the manner permitted by subsection 10(1) in relation to the prescribed taxation offence (whether or not the summons has been delivered to, or received by, the person).

summons, in relation to a person, means a writ or process notifying or directing the person to appear on a designated day before a specified court.

10  Service of summons by post

             (1)  A summons for the appearance before a court of summary jurisdiction of a person charged with having committed a prescribed taxation offence may be served upon the person to whom it is directed by sending a copy of the summons, not less than 21 days before the day on which the person is required by the summons to appear before the court, by ordinary prepaid post addressed to the person at his last known place of residence or last known place of business.

          (1A)  Subsection (1) has effect without prejudice to any other method of service provided for under any other law of the Commonwealth or under a law of a State or Territory.

             (2)  Where a summons is served in the manner permitted by subsection (1), the court may require the summons to be re-served if the court has reasonable cause to believe that the summons has not come to the notice of the person to whom it is directed.

11  Notice of conviction in absentia

             (1)  Where a defendant who has not entered a plea in relation to a prescribed taxation offence is, in his absence, convicted of the prescribed taxation offence, the proper officer of the court concerned shall cause to be served on the defendant notice in writing of:

                     (a)  the conviction;

                     (b)  the order of the court;

                     (c)  where the order of the court includes the imposition of a fine—the time allowed by the court for payment of the fine; and

                     (d)  the right of the defendant to make an application under section 13A for an order setting aside the conviction.

             (2)  Without prejudice to any other method of service provided for under any other law of the Commonwealth or under a law of a State or Territory, a notice under subsection (1) may be served on the defendant by sending the notice to him by ordinary prepaid post addressed to him at his last known place of residence or last known place of business.

12  Notice of intention to issue warrant in default of payment

                   Where:

                     (a)  a defendant, not being a body corporate, has been served with a notice under subsection 11(1), being a notice that includes notice of a fine imposed on him in consequence of a conviction;

                     (b)  the fine is not paid in full within the time allowed by the court for payment of the fine; and

                     (c)  a period of not less than 21 days has elapsed after the date of service of the notice;

the proper officer of the court concerned may cause to be served personally on the defendant a notice (in this section referred to as the personal notice) informing the defendant that unless:

                     (d)  the fine is paid in full before the expiration of 21 days after the date of service of the personal notice; or

                     (e)  an application in accordance with section 13A for the setting aside of the conviction is made before the expiration of 14 days after the date of service of the personal notice;

a warrant for his commitment to prison may be issued.

13  Limitation of action to enforce payment of fine

                   Notwithstanding anything contained in any other law of the Commonwealth or in a law of a State or Territory, where a defendant who has not entered a plea in relation to a prescribed taxation offence is, in his absence, convicted of the prescribed taxation offence and the order of the court includes the imposition of a fine:

                     (a)  a warrant for commitment of the defendant to prison for failure to pay the fine shall not be issued unless:

                              (i)  a notice has been served on the defendant under section 12 in relation to the fine; and

                             (ii)  a period of not less than 21 days has elapsed after the date of service of the notice; and

                     (b)  no other action for enforcement of payment of the fine shall be taken unless:

                              (i)  a notice has been served on the defendant in relation to the conviction under subsection 11(1); and

                             (ii)  a period of not less than 21 days has elapsed after the date of service of the notice.

13A  Setting aside of conviction or order

             (1)  Where a defendant has been served with a notice under section 11 in relation to a conviction or order of a court, the defendant may:

                     (a)  where a fine was imposed by the court—before the expiration of:

                              (i)  the period allowed by the court for payment of the fine; or

                             (ii)  a period of 21 days after the date of service of the notice;

                             whichever is the longer; or

                     (b)  where no fine was imposed by the court—within 21 days after the date of service of the notice;

make an application in writing to the court, or to another court of summary jurisdiction that would have had jurisdiction to make the conviction or order, for an order setting aside the conviction or order.

             (2)  Where a defendant has been served with a notice under section 12 in relation to a conviction or order of a court, the defendant may, within 14 days after the date of service of the notice, make an application in writing to the court, or to another court of summary jurisdiction that would have had jurisdiction to make the conviction or order, for an order setting aside the conviction or order.

             (3)  Any person who was a party to the proceedings in which the conviction or order to which an application under subsection (1) or (2) relates was made shall be a party to proceedings in respect of the application.

             (4)  Where a court is satisfied, on an application made by a defendant in accordance with subsection (1) or (2) in relation to a conviction or order, that:

                     (a)  in the case of an application under subsection (1):

                              (i)  the defendant did not receive notice of the proceedings in which the conviction or order was made, or did not receive such notice in sufficient time to enable the defendant to attend the proceedings; or

                             (ii)  the defendant failed to attend the proceedings in which the conviction or order was made for reasons that, in the opinion of the court, render it desirable, in the interests of justice, that the conviction or order be set aside and the matter re-heard; or

                     (b)  in the case of an application under subsection (2):

                              (i)  the defendant:

                                        (A)  did not receive notice of the proceedings in which the conviction or order was made, or did not receive such notice in sufficient time to enable the defendant to attend the proceedings; and

                                        (B)  did not receive notice of the conviction or order, or did not receive such notice in sufficient time to enable the defendant to apply, within the time specified in paragraph (1)(a), for an order setting aside the conviction or order; or

                             (ii)  the defendant failed to attend the proceedings in which the conviction or order was made, and failed to make an application in accordance with subsection (1) in relation to the notice served on the defendant under section 11 in relation to the conviction or order, for reasons that, in the opinion of the court, render it desirable, in the interests of justice, that the conviction or order be set aside and the matter re-heard;

the court shall set aside the conviction or order and shall:

                     (c)  proceed forthwith to re-hear and determine the matter; or

                     (d)  adjourn the proceedings for re-hearing the matter to such time and place as the court thinks fit.

             (5)  Where an application is made to a court (in this subsection referred to as the relevant court) under this section for the setting aside of a conviction or order of a court, the proper officer of the relevant court shall forthwith:

                     (a)  cause notice of the making of the application to be given to each party to the application other than the defendant; and

                     (b)  where the conviction or order was made by a court other than the relevant court—cause notice of the making of the application to be given to that other court.

             (6)  Where, under subsection (4), a court sets aside a conviction or order of another court, the proper officer of the first-mentioned court shall forthwith cause notice of the setting aside of that conviction or order to be given to the other court.

13B  Proof of service of summons or notice

                   Service of a summons in accordance with section 10 or of a notice in accordance with section 11 or 12 may be proved by the oath of the person who served it or by affidavit or otherwise.

13C  Application of other laws

             (1)  The provisions of this Division have effect in addition to, and not in derogation of, any other law of the Commonwealth or a State or Territory that makes provision for, or in relation to, the service of summonses.

             (2)  Without limiting the generality of section 79 of the Judiciary Act 1903, the laws (if any) of a State or Territory relating to any procedure whereby a person may, without appearing in court in obedience to a summons, enter a plea in relation to a charge of having committed an offence apply in like manner, mutatis mutandis, to a defendant charged with having committed a prescribed taxation offence.


 

Division 6Setting aside etc. of conviction or order on application of Commissioner

13CA  Setting aside etc. of conviction or order on application of Commissioner

             (1)  Where a person has been convicted in his or her absence of a prescribed taxation offence (whether before or after the commencement of this section), the Commissioner may apply to a court (in this section called the quashing court) for:

                     (a)  an order setting aside the conviction or setting aside the order of the convicting court in respect of the conviction; or

                     (b)  an order varying the order of the convicting court in respect of the conviction so as to reduce its severity.

             (2)  The application shall be made in writing:

                     (a)  to the convicting court; or

                     (b)  to any other court of summary jurisdiction that would have had jurisdiction to make the conviction or order.

             (3)  The proper officer of the quashing court shall, without delay, cause notice of the making of the application to be given to each party to the application (other than the Commissioner).

             (4)  Any person who was a party to the proceedings in which the defendant was convicted shall be made a party to the proceedings in respect of the application.

             (5)  If the quashing court is satisfied that:

                     (a)  the conviction or order was made in circumstances that, in the opinion of the court, make it desirable, in the interests of justice, that:

                              (i)  the conviction or order be set aside; or

                             (ii)  the order be varied by reducing its severity; or

                     (b)  because of other special circumstances (whether or not existing at the time the conviction or order was made) it is desirable, in the interests of justice, or in order to avoid undue hardship, that:

                              (i)  the order be set aside; or

                             (ii)  the order be varied so as to reduce its severity;

the court may set aside the conviction, or set aside or vary the order, as the case may be, on such terms as to costs or otherwise as the court thinks just.

             (6)  If the court sets aside the conviction, or sets aside or varies the order in respect of the conviction, the court shall also set aside any warrant issued in consequence of the conviction.

             (7)  If the quashing court:

                     (a)  is not the convicting court; and

                     (b)  sets aside the conviction, or sets aside or varies the order, of the convicting court;

the proper officer of the quashing court shall without delay cause notice of the setting aside or variation to be given to the convicting court.

             (8)  A reference in this section to a conviction includes a reference to the making of an order under section 19B of the Crimes Act 1914.

             (9)  The setting aside of a conviction or order under this section is a bar to any further legal proceeding against the defendant for the same matter in any court (other than on appeal).

           (10)  This section is in addition to, and not in derogation of, any other law of the Commonwealth or any law of a State or Territory.


 

Part IIIACo-operation between Commonwealth and State taxation authorities

Division 1Interpretation

13D  Interpretation

             (1)  In this Part, unless the contrary intention appears:

Australian Capital Territory includes the Jervis Bay Territory.

officer means:

                     (a)  a person appointed or engaged under the Public Service Act 1999; or

                     (b)  a State taxation officer.

State includes the Northern Territory.

State Minister means:

                     (a)  in relation to a State other than the Northern Territory—a Minister of the Crown of the State; or

                     (b)  in relation to the Northern Territory—a Minister of the Northern Territory.

State tax law means a law of a State relating to taxation.

State taxation officer means:

                     (a)  a person or authority, not being a State Minister, who or which is for the time being authorised under a law of a State to perform the functions of a State taxation officer under this Part; or

                     (b)  a person, not being a State Minister, authorised by writing signed by a person or authority referred to in paragraph (a) to act under this Part.

Territory means the Australian Capital Territory.

Territory tax law means a law of the Territory relating to taxation.

Territory taxation officer means:

                     (a)  a person or authority, not being a Minister of State of the Commonwealth, who or which is for the time being authorised under a law of the Territory to perform the functions of a Territory taxation officer under this Part; or

                     (b)  a person, not being a Minister of State of the Commonwealth, authorised by writing signed by a person or authority referred to in paragraph (a) to act under this Part.

             (2)  A reference in Division 3 or 4 to a State tax law includes a reference to a Territory tax law.

             (3)  A reference in Division 3 or 4 to a State taxation officer includes a reference to a Territory taxation officer.


 

Division 2Trans-border investigations

13E  State taxation officers may refer matters to Commissioner for investigation

                   A State taxation officer may, by writing signed by the officer, refer a matter arising under a State tax law to the Commissioner for investigation in the Territory.

13F  Access to documents etc.

             (1)  Where, under section 13E, a matter is referred to the Commissioner for investigation, the Commissioner may, by writing signed by the Commissioner, authorise an officer to conduct an investigation into that matter.

             (2)  For the purposes of conducting an investigation into a matter referred to the Commissioner under section 13E, an officer authorised under subsection (1) of this section to conduct the investigation:

                     (a)  may, at all reasonable times, enter upon any land in the Territory;

                     (b)  shall have full and free access at all reasonable times to all documents in the Territory; and

                     (c)  may take extracts from, and make copies of, any documents in the Territory.

             (3)  An officer who enters upon land pursuant to subsection (2) is not authorised to remain on the land if, on request by the occupier of the land, the officer does not produce a certificate issued by the Commissioner stating that he or she is an officer authorised under subsection (1) to conduct an investigation into a matter specified in the certificate.

             (4)  The occupier of land entered or proposed to be entered by an officer under subsection (2) shall provide the officer with all reasonable facilities and assistance for the effective exercise of powers under this section.

Penalty for a contravention of this subsection:    $1,000.

13G  Commissioner may obtain information and evidence

             (1)  Where, under section 13E, a matter is referred to the Commissioner for investigation, the Commissioner may, for the purposes of conducting the investigation in the Territory, by notice in writing, require any person, including any officer employed in or in connection with any department of a government or by any public authority:

                     (a)  to furnish the Commissioner with such information as the Commissioner requires;

                     (b)  to attend before the Commissioner, or before an officer authorised by the Commissioner for the purpose, at a time and place specified in the notice and there answer questions; and

                     (c)  to produce to the Commissioner, or to an officer authorised by the Commissioner for the purpose, any documents in the custody or under the control of the person.

             (2)  The Commissioner may require the information or answers to be verified or furnished, as the case may be, on oath or affirmation and either orally or in writing, and for that purpose the Commissioner or an officer authorised by the Commissioner may administer an oath or affirmation.

             (3)  The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the information is or the answers will be true.

             (4)  The Commissioner may cause copies to be made of, or extracts to be taken from, any documents that are produced pursuant to paragraph (1)(c).

             (5)  A person required pursuant to paragraph (1)(b) to attend before the Commissioner or an officer authorised by the Commissioner is entitled to payment of an allowance in respect of his or her expenses of an amount determined by the Commissioner in accordance with the regulations.

13H  State taxation officers to observe secrecy in relation to trans-border investigations

             (1)  A person who is or has been a State taxation officer shall not, directly or indirectly, make a record of, or divulge or communicate to another person, any information acquired by the first-mentioned person by reason of the exercise of the powers conferred by section 13F or 13G.

Penalty:  $10,000 or imprisonment for 2 years, or both.

          (1A)  Subsection (1) does not apply to the extent that the person makes the record of the information, or divulges or communicates the information, for the purposes of the administration of a State tax law, a Territory tax law or a taxation law.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code.

             (2)  Except where it is necessary to do so for the purpose of carrying into effect the provisions of a State tax law, a Territory tax law or a taxation law, a person who is or has been a State taxation officer shall not be required to divulge or communicate to a court any information, or to produce in a court any document, acquired by the person by reason of the exercise of the powers conferred by section 13F or 13G.

             (3)  For the purposes of subsection (1), a person shall be deemed to have communicated information in contravention of that subsection if the person communicates that information to any Minister of State of the Commonwealth or any State Minister.


 

Division 3Provision of Commonwealth taxation information to State taxation authorities

13J  Provision of Commonwealth taxation information to State taxation authorities

             (1)  Notwithstanding anything in a secrecy provision of a taxation law, the Commissioner may communicate information disclosed or obtained under or for the purposes of a taxation law to a State taxation officer for the purposes of the administration of a State tax law if a State taxation officer is authorised by law to communicate similar information to the Commissioner.

             (2)  A person to whom information is communicated under subsection (1), or a person or employee under the control of the first-mentioned person, shall not, directly or indirectly, and while he or she is, or after he or she ceases to be, such a person, make a record of, or divulge or communicate to any person, that information.

Penalty:  $10,000 or imprisonment for 2 years, or both.

          (2A)  Subsection (2) does not apply to the extent that the person makes the record of the information, or divulges or communicates the information, for the purposes of the administration of a State tax law or a taxation law.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2A), see subsection 13.3(3) of the Criminal Code.

             (3)  Except where it is necessary to do so for the purposes of carrying into effect the provisions of a State tax law or a taxation law, a person to whom information is communicated under subsection (1) shall not be required to divulge or communicate that information to any court.

             (4)  For the purposes of subsection (2), a person shall be deemed to have communicated information in contravention of that subsection if the person communicates that information to any Minister of State of the Commonwealth or any State Minister.

             (5)  A reference in this section to a secrecy provision of a taxation law is a reference to a provision that prohibits the communication or divulging of information.

             (8)  This section applies in relation to the Development Allowance Authority Act 1992 as if:

                     (a)  that Act were a taxation law; and

                     (b)  references in this section to the Commissioner were references to the Development Allowance Authority.


 

Division 4Certification by State taxation officer of copies of, and extracts from, documents

13K  Certification by State taxation officer of copies of, and extracts from, documents

             (1)  Where a document is obtained pursuant to a State tax law, a State taxation officer may certify a copy of the document to be a true copy.

             (2)  Where, pursuant to a State tax law, a copy is made of a document, a State taxation officer may certify the copy to be a true copy.

             (3)  Where a document is obtained pursuant to a State tax law, a State taxation officer may certify an extract taken from the document to be a true extract.

             (4)  Where, pursuant to a State tax law, an extract is taken from a document, a State taxation officer may certify the extract to be a true extract.

             (5)  Subject to subsection (6), a document purporting to be a copy or extract certified under subsection (1), (2), (3) or (4) shall be received in all courts and tribunals in proceedings arising out of a taxation law as evidence as if it were the original.

             (6)  Subsection (5) does not apply in relation to a document if:

                     (a)  in the case of proceedings for an offence—evidence is adduced that the document is not a true copy or a true extract; or

                     (b)  in any other case—it is proved that the document is not a true copy or a true extract.

             (7)  Where:

                     (a)  pursuant to a State tax law, a copy (in this section referred to as the primary copy) is made of, or an extract (in this section referred to as the primary extract) is taken from, a document (in this section referred to as the original document); and

                     (b)  pursuant to subsection (2) or (4), a State taxation officer has certified the primary copy to be a true copy of, or the primary extract to be a true extract taken from, the original document;

a State taxation officer may:

                     (c)  certify a copy of the primary copy or primary extract to be a true copy; or

                     (d)  certify an extract taken from the primary copy or primary extract to be a true extract.

             (8)  Subject to subsection (9), a document purporting to be:

                     (a)  a copy, certified under subsection (7), of a primary copy of, or a primary extract taken from, an original document; or

                     (b)  an extract, certified under subsection (7), taken from a primary copy of, or a primary extract taken from, an original document;

shall be received in all courts and tribunals in proceedings arising out of a taxation law as evidence as if it were the original document.

             (9)  Subsection (8) does not apply in relation to a document if:

                     (a)  in the case of proceedings for an offence, evidence is adduced that:

                              (i)  the document is not a true copy of, or a true extract taken from, the primary copy or primary extract; or

                             (ii)  the primary copy is not a true copy of, or the primary extract is not a true extract taken from, the original document; or

                     (b)  in any other case, it is proved that:

                              (i)  the document is not a true copy of, or a true extract taken from, the primary copy or primary extract; or

                             (ii)  the primary copy is not a true copy of, or the primary extract is not a true extract taken from, the original document.

           (11)  This section applies in relation to the Development Allowance Authority Act 1992 as if that Act were a taxation law.


 

Division 5Australian Taxation Office may perform functions under State/Territory debits tax laws

13L  Australian Taxation Office may perform functions under State/Territory debits tax laws

             (1)  In this section:

accounts, in relation to a financial institution, includes accounts kept by way of withdrawable share capital in, or money deposited with, the financial institution.

co-operative housing society means a society registered or incorporated as a co-operative housing society or similar society under a law of a State or Territory.

financial institution includes:

                     (a)  a body corporate that is an ADI (authorised deposit-taking institution) for the purposes of the Banking Act 1959; and

                     (b)  a co-operative housing society; and

                     (c)  a registered entity under the Financial Sector (Collection of Data) Act 2001.

State/Territory debits tax law means:

                     (a)  a State tax law; or

                     (b)  a Territory tax law;

relating to the taxation of debits made to accounts kept with financial institutions.

             (2)  The Commissioner may make an arrangement with an appropriate officer or authority of a State or the Territory about any matter in connection with the administration of a State/Territory debits tax law.

             (3)  In particular, an arrangement may provide:

                     (a)  for the Commissioner or the Second Commissioners to perform functions, or exercise powers, conferred on them by a State/Territory debits tax law; or

                     (b)  for the services of officers or employees under the control of the Commissioner to be made available to the State or the Territory or to an authority of the State or of the Territory for the purposes of matters relating to the administration of a State/Territory debits tax law.


 

Part IVExchange control—taxation certificates

  

14A  Interpretation

                   In this Part, unless the contrary intention appears:

Australian tax means tax imposed by a law of the Commonwealth or of a Territory.

Reserve Bank or Bank means the Reserve Bank of Australia.

tax clearance certificate or certificate means a certificate issued under section 14C.

taxation law means a law of the Commonwealth or of a Territory imposing a tax or otherwise dealing with Australian tax.

this Part includes Part IVC of the Taxation Administration Act 1953, insofar as that Part relates to this Part.

14B  Applications for issue of certificates

             (1)  Where:

                     (a)  a person proposes to do an act or thing the doing of which, without the authority of the Reserve Bank, is prohibited by regulations made under section 39 of the Banking Act 1959; and

                     (b)  by virtue of paragraph 39B(1)(a) of that Act, the Bank is not permitted to grant that authority unless there is produced to the Bank, in respect of that act or thing, a certificate issued under section 14C of this Act, or the Bank has, under paragraph 39B(1)(b) of the Banking Act 1959, refused to grant that authority unless there is produced to the Bank such a certificate;

the person may apply in writing to the Commissioner for the issue of a tax clearance certificate under section 14C of this Act in respect of that act or thing.

             (2)  Where:

                     (a)  an authority is issued pursuant to regulations made under section 39 of the Banking Act 1959 authorizing a person, or persons included in a class of persons, specified in the authority or all persons to do an act or thing, or acts or things, specified in the authority, the doing of which, except with the authority of the Reserve Bank, would otherwise be prohibited by those regulations; and

                     (b)  a tax clearance certificate under section 14C of this Act is required, for the purposes of a condition of the grant of the authority, to be issued to a person in respect of an act or thing;

the last-mentioned person may apply in writing to the Commissioner for the issue to the person of a tax clearance certificate under section 14C of this Act in respect of the last-mentioned act or thing.

14C  Issue of certificates

             (1)  Where:

                     (a)  application is made to the Commissioner under section 14B for the issue of a tax clearance certificate in respect of an act or thing; and

                     (b)  the Commissioner is not authorized by section 14D to refuse to issue the certificate or, if he is so authorized, he is of the opinion that it is not necessary, for the purpose of protecting the revenue of Australia, to withhold the issue of the certificate;

then, subject to subsection (2), the Commissioner shall issue the certificate.

             (2)  The Commissioner may, before issuing a certificate under subsection (1) in respect of an act or thing, require the applicant, or any other person or persons, to give to the Commissioner such undertaking or such undertakings in relation to the act or thing as the Commissioner considers necessary for the purpose of protecting the revenue of the Commonwealth, being an undertaking or undertakings which the Commissioner is satisfied will be carried out.

             (3)  The Commissioner may require any person who gives, or any persons who give, an undertaking for the purposes of subsection (2) to agree to pay to the Commonwealth in the event of a breach of the undertaking such amount as is specified in, or is to be ascertained in accordance with, the undertaking and, if a court is satisfied that a breach of the undertaking given for the purposes of subsection (2) has occurred, the court may order the person, or all or any of those persons, as the case may be, to pay to the Commonwealth, as a debt due to the Commonwealth, such amount, not exceeding the amount so specified or to be ascertained, as the court determines to be appropriate having regard to all relevant matters, including the nature of the undertaking, the nature and extent of the breach, the circumstances in which the breach took place and the nature and extent of any benefit or advantage in relation to the application or operation of a taxation law which will be, or may reasonably be expected to be, received or obtained, or has been, or could reasonably have been expected to have been, received or obtained, by that person, by one or more of those persons, or by any other person, as a result or by virtue of the breach.

             (4)  A court may, for the purposes of subsection (3), treat a person as a person who will receive or obtain or has received or obtained, as a result or by virtue of a breach of an undertaking, a benefit or advantage in relation to the application or operation of a taxation law, being a taxation law with respect to a tax on incomes, if the person has not become, or could not reasonably be expected to have become, or will not become, or may not reasonably be expected to become, liable to pay tax or the liability of the person to pay tax has been, or could reasonably be expected to have been, or will be, or may reasonably be expected to be, reduced, by reason that:

                     (a)  the person has not, or could not reasonably be expected to have, derived, or will not, or may not reasonably be expected to, derive income that the person would have, or could reasonably be expected to have, derived, or will, or could reasonably be expected to, derive, if the breach had not taken place; or

                     (b)  the person has, or could reasonably be expected to have, incurred, or will, or may reasonably be expected to, incur, a loss or outgoing that the person would not have, or could not reasonably be expected to have, incurred, or will not, or may not reasonably be expected to, incur, if the breach had not taken place;

but this subsection shall not be taken as limiting the generality of subsection (3).

             (5)  The Commissioner may institute a proceeding in any court, being a court having jurisdiction in proceedings for the recovery of debts up to an amount of not less than the amount that could be recovered in that proceeding, for the recovery on behalf of the Commonwealth of a debt referred to in subsection (3).

14D  Grounds on which issue of certificates may be refused

             (1)  Where application is made to the Commissioner under section 14B for the issue of a tax clearance certificate in respect of an act or thing, the Commissioner may refuse to issue the certificate if the applicant does not satisfy the Commissioner that the act or thing will not, or may not reasonably be expected to, involve or assist in, or be associated with, the avoidance or evasion, whether in Australia or elsewhere, of Australian tax by the applicant or by another person and, without limiting the generality of the foregoing, does not satisfy the Commissioner that:

                     (a)  a person (whether or not the applicant), either alone or in association with another person and whether in Australia or elsewhere, as a result or by virtue of the doing of the act or thing or of an associated act or thing to be done or done:

                              (i)  will not, or may not reasonably be expected to, receive or obtain; or

                             (ii)  has not, or could not reasonably be expected to have, received or obtained;

                            a benefit or advantage in relation to the application or operation of a taxation law, and the act or thing, or the associated act or thing:

                            (iii)  would not be done, or could not reasonably be expected to be done, or done in the same form or in the same way; or

                            (iv)  would not have been done, or could not reasonably have been expected to have been done, or done in the same form or in the same way;

                            but for that benefit or advantage; and

                     (b)  as a result or by virtue of the doing of the first-mentioned act or thing or an associated act or thing to be done or done, an amount of Australian tax that will become, or may reasonably be expected to become, or has become, or could reasonably be expected to have become, payable will not be, or may not reasonably be expected to be, or has not been, or could not reasonably be expected to have been, able to be collected.

             (2)  A person may, for the purposes of subsection (1), be treated as a person who will receive or obtain or has received or obtained, as a result or by virtue of the doing of an act or thing, a benefit or advantage in relation to the application or operation of a taxation law, being a taxation law with respect to a tax on incomes, if the person has not become, or could not reasonably be expected to have become, or will not become, or may not reasonably be expected to become, liable to pay tax or the liability of the person to pay tax has been, or could reasonably be expected to have been, or will be, or may reasonably be expected to be, reduced, by reason that:

                     (a)  the person has not, or could not reasonably be expected to have, derived, or will not, or may not reasonably be expected to, derive income that the person would have, or could reasonably be expected to have, derived, or will, or could reasonably be expected to, derive, if the act or thing had not been, or were not, done; or

                     (b)  the person has, or could reasonably be expected to have, incurred, or will, or may reasonably be expected to, incur, a loss or outgoing that the person would not have, or could not reasonably be expected to have, incurred, or will not, or may not reasonably be expected to, incur, if the act or thing had not been, or were not, done;

but this subsection shall not be taken as limiting the generality of subsection (1).

             (3)  For the purposes of this section:

                     (a)  the Commissioner may have regard to arrangements, understandings and practices not having legal force in the same manner as if they had legal force; and

                     (b)  the fact that an act or thing is, forms part of or relates to an ordinary commercial or family dealing is irrelevant.

             (4)  Where the Commissioner refuses to issue a tax clearance certificate, he shall cause to be served on the applicant for the issue of the certificate notice of the refusal.

14E  Objections

                   An applicant who is dissatisfied with a decision of the Commissioner to refuse an application made under section 14B may object against the decision in the manner set out in Part IVC.

14I  Commissioner may obtain information and evidence

             (1)  For the purposes of this Part, the Commissioner may, by notice in writing, require any person, whether an applicant for a certificate or not, including any officer employed in or in connexion with any department of a government or by any public authority:

                     (a)  to furnish the Commissioner with such information as the Commissioner requires;

                     (b)  to attend before the Commissioner, or before an officer authorized by the Commissioner for the purpose, at a time and place specified in the notice, and then and there answer questions; and

                     (c)  to produce to the Commissioner any documents in the custody or under the control of the person.

             (2)  The Commissioner may cause copies to be made of, or extracts to be taken from, any documents which are produced to the Commissioner in pursuance of paragraph (1)(c).

             (3)  A person, not being the applicant for the issue of a tax clearance certificate, who, in relation to an application for the issue of a certificate, is required in pursuance of paragraph (1)(b) to attend before the Commissioner or an officer authorized by the Commissioner is entitled to payment of an allowance in respect of his expenses of an amount determined by the Commissioner in accordance with the regulations.

14J  Access to books etc.

             (1)  For the purposes of this Part, an officer authorized by the Commissioner to exercise powers under this section:

                     (a)  may, at all reasonable times, enter upon any land;

                     (b)  shall have full and free access at all reasonable times to all documents; and

                     (c)  may take extracts from, and make copies of, any documents.

             (2)  An officer who enters upon land in pursuance of subsection (1) is not authorized to remain on the land if, on request by the occupier of the land, he does not produce a certificate issued by the Commissioner certifying that he is an officer authorized to exercise powers under subsection (1).

             (3)  The occupier of land entered or proposed to be entered by an officer under subsection (1) shall provide the officer with all reasonable facilities and assistance for the effective exercise of powers under this section.

Penalty for a contravention of this subsection:    $1,000.

14L  Application of Part outside Australia

                   This Part applies both within and without Australia.

14N  Notices

                   A notice that is required or permitted by this Part, or the regulations made for the purposes of this Part, to be given to or served on a person by the Commissioner may, without prejudice to any other method of service, be given or served personally, or by post addressed to the person at his place of residence or business last known to the Commissioner or at an address that, under the regulations, is his address for service for the purposes of this Part.


 

Part IVADeparture from Australia of certain tax debtors

Division 1Interpretation

14Q  Interpretation

             (1)  In this Part, unless the contrary intention appears:

Australia, when used in a geographical sense, includes the external Territories.

authorized officer means a person who is:

                     (a)  an officer for the purposes of the Customs Act 1901; or

                     (b)  a member of the Australian Federal Police.

departure authorization certificate means a certificate under subsection 14U(1).

departure prohibition order means an order under subsection 14S(1).

Immigration Department means the Department of Immigration and Ethnic Affairs.

             (2)  A reference in this Part to the departure of a person from Australia for a foreign country is a reference to the departure of the person from Australia for a foreign country, whether or not the person intends to return to Australia.


 

Division 2Prohibition and authorisation of departure of certain tax debtors

14R  Departure from Australia of certain tax debtors prohibited

             (1)  A person in respect of whom a departure prohibition order is in force, and who knows that such an order is in force in respect of him or her, shall not depart from Australia for a foreign country.

Penalty:  $5,000 or imprisonment for 12 months, or both.

             (2)  Subsection (1) does not apply if the departure is authorised by a departure authorization certificate.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2), see subsection 13.3(3) of the Criminal Code.

14S  Departure prohibition orders

             (1)  Where:

                     (a)  a person is subject to a tax liability; and

                     (b)  the Commissioner believes on reasonable grounds that it is desirable to do so for the purpose of ensuring that the person does not depart from Australia for a foreign country without:

                              (i)  wholly discharging the tax liability; or

                             (ii)  making arrangements satisfactory to the Commissioner for the tax liability to be wholly discharged;

the Commissioner may, by order in accordance with the prescribed form, prohibit the departure of the person from Australia for a foreign country.

             (2)  Subject to subsection (3), a departure prohibition order remains in force unless and until revoked under section 14T or set aside by a court.

             (3)  A departure prohibition order made in respect of a person shall be taken, by virtue of this subsection, not to be in force in respect of the person during any period during which an order is in force under the Migration Act 1958 for the deportation of the person.

             (4)  Where a departure prohibition order is made in respect of a person, the Commissioner shall forthwith:

                     (a)  cause the person to be informed, as prescribed, of the making of the order; and

                     (b)  subject to subsection (5), cause a copy of the order, and such information as the Commissioner considers is likely to facilitate the identification of the person, to be given to:

                              (i)  the Secretary to the Immigration Department; and

                             (ii)  such other persons as the Commissioner considers appropriate, being persons prescribed, or included in a class of persons prescribed, for the purposes of this paragraph.

             (5)  Where a departure prohibition order is made in respect of a person whom the Commissioner is satisfied is an Australian citizen, the Commissioner shall not cause a copy of the order, or any information likely to facilitate the identification of the person, to be given to the Secretary to the Immigration Department unless the Commissioner is of the opinion that it is desirable to do so.

14T  Revocation and variation of departure prohibition orders

             (1)  Where a departure prohibition order is in force in respect of a person and:

                     (a)  the tax liabilities to which the person is subject have been wholly discharged and the Commissioner is satisfied that it is likely that the tax liabilities to which the person may become subject in respect of, or arising out of, matters that have occurred will be:

                              (i)  wholly discharged; or

                             (ii)  completely irrecoverable; or

                     (b)  the Commissioner is satisfied that the tax liabilities to which the person is subject are completely irrecoverable;

the Commissioner shall, on application being made to the Commissioner by the person to do so or on the Commissioner’s own motion, revoke the departure prohibition order.

             (2)  Where a departure prohibition order is in force in respect of a person, the Commissioner may, in the Commissioner’s discretion and on application being made to the Commissioner to do so or on the Commissioner’s own motion, revoke or vary the departure prohibition order.

             (3)  A reference in paragraph (1)(a) to tax liabilities having been wholly discharged includes a reference to arrangements satisfactory to the Commissioner having been made for those tax liabilities to be wholly discharged and a reference in that paragraph to the Commissioner being satisfied that it is likely that tax liabilities to which a person may become subject will be wholly discharged includes a reference to the Commissioner being satisfied that it is likely that arrangements satisfactory to the Commissioner will be made for those tax liabilities to be wholly discharged.

             (4)  As soon as practicable after a departure prohibition order made in respect of a person is revoked or varied under this section, the Commissioner shall:

                     (a)  cause to be served, as prescribed, on the person; and

                     (b)  cause to be given to each person to whom a copy of the departure prohibition order was given;

notification of the revocation or variation of the departure prohibition order.

             (5)  As soon as practicable after a decision is made under subsection (1) or (2) refusing to revoke a departure prohibition order made in respect of a person, the Commissioner shall cause to be served, as prescribed, on the person notification of the decision.

14U  Departure authorisation certificates

             (1)  Where, on application made by a person in respect of whom a departure prohibition order is in force:

                     (a)  the Commissioner is satisfied:

                              (i)  that, if a departure authorization certificate is issued in respect of the person, it is likely that:

                                        (A)  the person will depart from Australia and will return to Australia within such period as the Commissioner considers to be appropriate in relation to the person; and

                                        (B)  circumstances of the kind referred to in paragraph 14T(1)(a) will come into existence within such period as the Commissioner considers to be appropriate in relation to the person; and

                             (ii)  that it is not necessary or desirable for the person to give security under subsection (2) for the person’s return to Australia; or

                     (b)  in a case where the Commissioner is not satisfied with respect to the matters referred to in paragraph (a):

                              (i)  the person has given security under subsection (2) to the satisfaction of the Commissioner for the person’s return to Australia; or

                             (ii)  if the person is unable to give such security, the Commissioner is satisfied that:

                                        (A)  a departure authorization certificate should be issued in respect of the person on humanitarian grounds; or

                                        (B)  a refusal to issue a departure authorization certificate in respect of the person would be detrimental to the interests of Australia;

the Commissioner shall issue a certificate authorizing the person to depart from Australia for a foreign country on or before the seventh day after a day (being a day later than, but not more than 7 days later than, the day on which the certificate is issued) specified in the certificate.

             (2)  For the purposes of this section:

                     (a)  a person may give security, by bond, deposit or any other means, for the person’s return to Australia by such day as is agreed between the person and the Commissioner;

                     (b)  the Commissioner may, in the Commissioner’s discretion and on application by the person or on the Commissioner’s own motion, substitute a later day for the day so agreed (including a day substituted by virtue of a previous application of this paragraph); and

                     (c)  the Commissioner may refuse to substitute such a later day unless the person:

                              (i)  increases, to the satisfaction of the Commissioner, the value of the security given by the person under this subsection; or

                             (ii)  gives a further security, to the satisfaction of the Commissioner, by bond, deposit or any other means, for the person’s return to Australia by that later day.

             (3)  As soon as practicable after a departure authorization certificate is issued in respect of a person, the Commissioner shall:

                     (a)  cause a copy of the departure authorization certificate to be served, as prescribed, on the person; and

                     (b)  cause a copy of the departure authorization certificate to be given to each person to whom a copy of the departure prohibition order made in respect of the person was given.

             (4)  As soon as practicable after a decision is made under subsection (1) refusing to issue a departure authorization certificate in respect of a person or a decision is made under subsection (2) refusing to substitute a later day in relation to the return of a person to Australia, the Commissioner shall cause to be served, as prescribed, on the person notification of the decision.


 

Division 3Appeals from, and review of, decisions of the Commissioner

14V  Appeals to courts against making of departure prohibition orders

             (1)  A person aggrieved by the making of a departure prohibition order may appeal to the Federal Court of Australia or the Supreme Court of a State or Territory against the making of the departure prohibition order.

             (2)  This section has effect:

                     (a)  subject to chapter III of the Constitution; and

                     (b)  notwithstanding anything contained in section 9 of the Administrative Decisions (Judicial Review) Act 1977.

14W  Jurisdiction of courts

             (1)  The jurisdiction of a court under section 14V shall be exercised by a single Judge or Justice.

             (2)  An appeal lies to the Federal Court of Australia from a judgment or order of the Supreme Court of a State or Territory exercising jurisdiction under section 14V.

             (3)  An appeal lies to the High Court, with special leave of the High Court, from a judgment or order referred to in subsection (2).

             (4)  Except as provided in subsection (2) or (3), no appeal lies from a judgment or order referred to in subsection (2).

14X  Orders of court on appeal

                   A court hearing an appeal under section 14V against the making of a departure prohibition order may, in its discretion:

                     (a)  make an order setting aside the departure prohibition order; or

                     (b)  dismiss the appeal.

14Y  Applications for review of certain decisions

             (1)  Applications may be made to the Tribunal for review of decisions of the Commissioner under section 14T or 14U.

             (2)  In subsection (1), decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.


 

Division 4Enforcement

14Z  Powers of authorised officers

             (1)  Where an authorized officer believes on reasonable grounds that:

                     (a)  a person is about to depart from Australia for a foreign country;

                     (b)  a departure prohibition order is in force in respect of the person; and

                     (c)  the departure is not authorized by a departure authorization certificate;

the authorized officer may:

                     (d)  take such steps as are reasonably necessary to prevent the departure of the person, including, but without limiting the generality of the foregoing, steps to prevent the person going on board, or steps to remove the person from, a vessel or aircraft in which the authorized officer believes on reasonable grounds the departure will take place; and

                     (e)  require the person to answer questions or produce documents to the authorized officer, or both, for the purposes of ascertaining whether:

                              (i)  a departure prohibition order is in force in respect of the person; and

                             (ii)  if a departure prohibition order is in force in respect of the person—the departure of the person from Australia for a foreign country is authorized by a departure authorization certificate.

             (2)  A person who refuses or fails, when and as required to do so pursuant to subsection (1), to answer a question or produce a document, is guilty of an offence punishable on conviction by a fine not exceeding $1,000.

          (2A)  Subsection (2) does not apply to the extent that the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2A), see subsection 13.3(3) of the Criminal Code.

             (4)  Section 8C does not apply in relation to a requirement made pursuant to subsection (1) of this section.

             (5)  Subsection 8K(1) and (1B) and section 8N do not apply in relation to an answer given to a question asked, or a document produced, pursuant to subsection (1).

14ZA  Certain tax debtors to produce authority to depart etc.

             (1)  Where:

                     (a)  a person in respect of whom a departure prohibition order is in force is about to depart from Australia for a foreign country; and

                     (b)  the departure is authorized by a departure authorization certificate;

the person shall, if required to do so pursuant to this subsection by an authorized officer, produce a copy of the departure authorization certificate for inspection by the authorized officer.

Penalty:  $500.

          (1A)  An offence under subsection (1) is an offence of strict liability.

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

             (2)  Section 8C does not apply in relation to a requirement made pursuant to subsection (1) of this section.


 

Part IVCTaxation objections, reviews and appeals

Division 1Introduction

14ZL  Part applies to taxation objections

             (1)  This Part applies if a provision of an Act or of regulations (including the provision as applied by another Act) provides that a person who is dissatisfied with an assessment, determination, notice or decision, or with a failure to make a private ruling, may object against it in the manner set out in this Part.

             (2)  Such an objection is in this Part called a taxation objection.

14ZM  Division 2—Interpretive

                   Division 2 contains interpretive provisions necessary for this Part.

14ZN  Division 3—Taxation objections

                   Division 3 describes how taxation objections are to be made and how they are to be dealt with by the Commissioner.

14ZO  Division 4—Tribunal review

                   Division 4 contains provisions about applications to the Tribunal for review of decisions by the Commissioner in relation to certain taxation objections and requests for extension of time.

14ZP  Division 5—Federal Court appeals

                   Division 5 contains provisions about appeals to the Federal Court against decisions by the Commissioner in relation to certain taxation objections.


 

Division 2Interpretive provisions

14ZQ  General interpretation provisions

                   In this Part:

AAT means the Administrative Appeals Tribunal.

AAT Act means the Administrative Appeals Tribunal Act 1975.

AAT extension application means an application under subsection 29(7) of the AAT Act that relates to a review of a reviewable objection decision or an extension of time refusal decision.

appealable objection decision means an objection decision other than one made on a taxation objection under:

                     (a)  section 63 of the Pay-roll Tax (Territories) Assessment Act 1971; or

                     (b)  section 14E of this Act; or

                     (c)  section 43A of the Wool Tax (Administration) Act 1964.

delayed administration (beneficiary) objection means a taxation objection made under:

                     (b)  subsection 220(3) of the Income Tax Assessment Act 1936 (including that subsection as applied by any other Act); or

                     (c)  subsection 34(3) of the Pay-roll Tax (Territories) Assessment Act 1971; or

                     (e)  subsection 35(6) of the Sales Tax Assessment Act (No. 1) 1930 (including that subsection as applied by any other Sales Tax Assessment Act); or

                    (ea)  subsection 73(4) of the Sales Tax Assessment Act 1992; or

                      (f)  subsection 80(3) of the Training Guarantee (Administration) Act 1990; or

                     (g)  subsection 260-145(5) in Schedule 1 (because of paragraph (a) of that subsection).

delayed administration (trustee) objection means a taxation objection made under:

                     (b)  subsection 220(7) of the Income Tax Assessment Act 1936 (including that subsection as applied by any other Act); or

                     (c)  subsection 34(7) of the Pay-roll Tax (Territories) Assessment Act 1971; or

                     (e)  subsection 35(10) of the Sales Tax Assessment Act (No. 1) 1930 (including that subsection as applied by any other Sales Tax Assessment Act); or

                    (ea)  subsection 73(5) of the Sales Tax Assessment Act 1992; or

                      (f)  subsection 80(7) of the Training Guarantee (Administration) Act 1990; or

                     (g)  subsection 260-145(5) in Schedule 1 (because of paragraph (b) of that subsection).

extension of time refusal decision means a decision of the Commissioner under subsection 14ZX(1) to refuse a request by a person.

Family Court means the Family Court of Australia.

Family Court Judge means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge).

Federal Court means the Federal Court of Australia.

franking assessment has the same meaning as in the Income Tax Assessment Act 1997.

ineligible income tax remission decision has the meaning given by section 14ZS.

ineligible sales tax remission decision has the meaning given by section 14ZT.

objection decision has the meaning given by subsection 14ZY(2).

private ruling has the same meaning as in section Division 359 in Schedule 1.

registration-type sales tax decision means:

                     (a)  a decision covered by subsection 38A(4) of the Sales Tax Assessment Act (No. 1) 1930 (including that subsection as applied by any other Sales Tax Assessment Act); or

                     (b)  a decision covered by section 79 or 80 of the Sales Tax Assessment Act 1992.

reviewable objection decision means an objection decision that is not:

                     (a)  an ineligible income tax remission decision; or

                     (b)  an ineligible sales tax remission decision.

Sales Tax Assessment Act means any Act providing for the assessment of sales tax.

taxation decision means the assessment, determination, notice or decision against which a taxation objection may be, or has been, made.

taxation objection has the meaning given by section 14ZL.

14ZR  Taxation decisions covered by single notice to be treated as single decision

             (1)  If:

                     (a)  a provision of an Act (including a provision as applied by another Act, but not including section 14E of this Act) provides that a person who is dissatisfied with a taxation decision may object against it in the manner set out in this Part; and

                     (b)  a notice incorporates notice of 2 or more such taxation decisions;

then, for the purposes of the provision and of this Part, the taxation decisions are taken to be one taxation decision.

             (2)  If:

                     (a)  under subsection (1), 2 or more taxation decisions are taken to be a single taxation decision (in this subsection called the deemed single taxation decision); and

                     (b)  the Commissioner makes an objection decision in relation to the deemed single taxation decision; and

                     (c)  the objection decision is, to any extent:

                              (i)  an ineligible income tax remission decision; or

                             (ii)  an ineligible sales tax remission decision;

then, this Part has effect, in relation to any review or appeal, as if:

                     (d)  so much of the objection decision as consists of one or more ineligible income tax remission decisions were taken to be a separate objection decision; and

                     (e)  so much of the objection decision as consists of one or more ineligible sales tax remission decisions were taken to be a separate objection decision.

14ZS  Ineligible income tax remission decisions

             (1)  For the purposes of this Part, an objection decision is an ineligible income tax remission decision if subsection (2) or (4) applies.

             (2)  An objection decision is an ineligible income tax remission decision if it relates to the remission of additional tax payable by a taxpayer under the Income Tax Assessment Act 1936 (other than Division 11 of Part IIIAA), except where the additional tax is payable under section 163B, 224, 225, 226, 226G, 226H, 226J, 226K, 226L or 226M of that Act, whatever its amount, or is payable under a provision of Part VII of that Act other than any of the preceding sections and its amount, after the decision is made, exceeds:

                     (a)  in the case of additional tax payable under section 222 of that Act because of the refusal or failure to furnish a return, or any information, relating to a year of income—the amount calculated, in respect of the period commencing on the last day allowed for furnishing the return or information and ending on:

                              (i)  the day on which the return or information is furnished; or

                             (ii)  the day on which the assessment of the additional tax is made;

                            whichever first happens, at the rate of 20% per year of the tax properly payable by the taxpayer in respect of the year of income; or

                     (d)  if the amount calculated in accordance with paragraph (a) is less than $20—$20.

             (5)  A reference in this section to a provision of the Income Tax Assessment Act 1936 includes a reference to that provision as applied by any other Act.

14ZT  Ineligible sales tax remission decisions

             (1)  For the purposes of this Part, an objection decision is an ineligible sales tax remission decision if it relates to the remission of additional tax under the Sales Tax Assessment Act (No. 1) 1930, except where the additional tax payable, after the decision is made, exceeds:

                     (a)  in the case of additional tax payable under subsection 45(1) of that Act because of a refusal or failure to furnish a return or information in respect of goods—the amount calculated, in respect of the period commencing on the last day allowed for furnishing the return or information, as the case may be, and ending on:

                              (i)  the day on which the return or information is furnished; or

                             (ii)  the day on which the assessment of additional tax is made;

                            whichever first happens, at the rate of 20% per year of the tax properly payable in respect of those goods; or

                     (b)  in the case of additional tax payable under subsection 45(2) of that Act because of the making of a false or misleading statement—the amount calculated, in respect of the period commencing on the day the amount of the excess referred to in that subsection became due and payable and ending on the day on which the assessment of additional tax is made, at the rate of 20% per year of that excess; or

                     (c)  in the case of additional tax payable under section 46 of that Act in consequence of an alteration in sale value of goods—the amount calculated, in respect of the period commencing on the day the amount of the difference referred to in that section became due and payable and ending on the day on which the assessment of additional tax is made, at the rate of 20% per year of the amount of that difference; or

                     (d)  if the amount ascertained in accordance with paragraph (a), (b) or (c) is less than $20—$20.

             (2)  A reference in subsection (1) to a provision of the Sales Tax Assessment Act (No. 1) 1930 includes a reference to that provision as applied by any Sales Tax Assessment Act.

             (3)  An objection decision under the Sales Tax Assessment Act 1992 that relates to the remission of a penalty is an ineligible sales tax remission decision, unless the amount of penalty that is payable after the decision is made is more than the amount that applies under subsection (4) and is also more than $20.

             (4)  The amount that applies to an objection decision is worked out by applying a rate of 20% per year to the base amount in column 2 during the period in column 3:

 

Remission decision relates to penalty under:

Base amount

Period

section 96 in relation to a failure to provide a return or other information concerning goods

the tax properly payable on those goods

starting on the last day allowed for providing the return or information, and ending on the day on which the return or information is provided or the assessment of penalty is made (whichever happens first)

section 97 in relation to making a false statement

the excess referred to in subsection 97(2)

starting on the day when the excess became due for payment and ending on the day on which the assessment of penalty is made

section 98 in relation to obtaining a tax benefit under an avoidance scheme

the tax benefit referred to in section 98

starting on the day when the amount involved in the tax benefit would have become due and payable, and ending on the day on which the assessment of penalty is made


 

Division 3Taxation objections

14ZU  How taxation objections are to be made

                   A person making a taxation objection must:

                     (a)  make it in the approved form; and

                     (b)  lodge it with the Commissioner within the period set out in section 14ZW; and

                     (c)  state in it, fully and in detail, the grounds that the person relies on.

Note:          A person who objects against the Commissioner’s failure to make a private ruling must lodge a draft private ruling with the objection: see subsection 359-50(4).

14ZV  Limited objection rights in the case of certain amended taxation decisions

                   If the taxation objection is made against a taxation decision, being an assessment or determination that has been amended in any particular, then a person’s right to object against the amended assessment or amended determination is limited to a right to object against alterations or additions in respect of, or matters relating to, that particular.

14ZVA  Limited objection rights because of objection against private ruling

                   If there has been a taxation objection against a private ruling, then the right of objection against an assessment relating to the matter ruled is limited to a right to object on grounds that neither were, nor could have been, grounds for the taxation objection against the ruling.

14ZW  When taxation objections are to be made

             (1)  Subject to this section, the person must lodge the taxation objection with the Commissioner within:

                    (aa)  if the taxation objection is made under section 175A of the Income Tax Assessment Act 1936:

                              (i)  if item 1, 2 or 3 of the table in subsection 170(1) of that Act applies to the assessment concerned—2 years after notice of the assessment is given to the person; or

                             (ii)  otherwise—4 years after notice of the assessment concerned is given to the person; or

                  (aaa)  if the taxation objection is made under section 78A of the Fringe Benefits Tax Assessment Act 1986 or section 160AL of the Income Tax Assessment Act 1936—4 years after notice of the taxation decision to which it relates has been given to the person; or

                    (ab)  if the taxation objection is a delayed administration (beneficiary) objection made under subsection 260-145(5) in Schedule 1 (because of paragraph (a) of that subsection) or subsection 220(3) of the Income Tax Assessment Act 1936 (not including that subsection as applied by any other Act)—4 years after notice of the taxation decision to which it relates has been first published; or

                    (ac)  if the taxation objection is a delayed administration (trustee) objection made under subsection 260-145(5) in Schedule 1 (because of paragraph (b) of that subsection) or subsection 220(7) of the Income Tax Assessment Act 1936 (not including that subsection as applied by any other Act)—4 years after probate of the will, or letters of administration of the estate, of the deceased person concerned has been granted; or

                     (a)  if the taxation objection is a delayed administration (beneficiary) objection to which paragraph (ab) does not apply—60 days after notice of the taxation decision to which it relates has been first published; or

                     (b)  if the taxation objection is a delayed administration (trustee) objection to which paragraph (ac) does not apply—60 days after probate of the will, or letters of administration of the estate, of the deceased person concerned has been granted; or

                    (ba)  if the taxation objection is an objection under subsection 359-50(3) in Schedule 1 against the Commissioner’s failure to make a private ruling—60 days after the end of the period of 30 days referred to in that subsection; or

                     (c)  in any other case—60 days after notice of the taxation decision to which it relates has been served on the person.

     (1AAA)  The person must lodge the taxation objection against a decision mentioned in item 1 of the table in subsection 62(3) of this Act before the end of whichever of the following ends last:

                     (a)  the 60 days after notice of the decision was served on the person;

                     (b)  the 4 years after the end of the tax period, or after the importation of goods, to which the decision relates.

          (1A)  The person cannot lodge a taxation objection against a private ruling that relates to a year of income after the end of whichever of the following ends last:

                     (a)  60 days after the ruling was made;

                     (b)  whichever of the following is applicable:

                              (i)  if item 1, 2 or 3 of the table in subsection 170(1) of the Income Tax Assessment Act 1936 applies to the person’s assessment for that income year—2 years after the last day allowed to the person for lodging a return in relation to the person’s income for that year of income;

                             (ii)  otherwise—4 years after that day.

          (1B)  If:

                     (a)  section 14ZV applies to a taxation objection; and

                     (b)  apart from this subsection, subparagraph (1)(aa)(ii) or paragraph (1)(aaa), (ab) or (ac) would apply to the taxation objection;

the person must lodge the taxation objection before the end of whichever of the following ends last:

                     (c)  the 4 years after notice of the assessment or determination that has been amended by the amended assessment or amended determination to which the taxation objection relates has been served on the person;

                     (d)  the 60 days after the notice of the amended assessment or amended determination to which the taxation objection relates has been served on the person.

        (1BA)  If:

                     (a)  section 14ZV applies to a taxation objection; and

                     (b)  apart from this subsection, subparagraph (1)(aa)(i) would apply to the taxation objection;

the person must lodge the taxation objection before the end of whichever of the following ends last:

                     (c)  2 years after notice of the assessment or determination that has been amended by the amended assessment or amended determination to which the taxation objection relates has been served on the person;

                     (d)  60 days after the notice of the amended assessment to which the taxation objection relates has been served on the person.

          (1C)  For the purposes of paragraph (1B)(c), if an assessment or determination has been amended more than once, the notice is the notice of the first assessment or determination in relation to the year of income, franking year or year of tax, as the case requires.

             (2)  If the period within which an objection by a person is required to be lodged has passed, the person may nevertheless lodge the objection with the Commissioner together with a written request asking the Commissioner to deal with the objection as if it had been lodged within that period.

             (3)  The request must state fully and in detail the circumstances concerning, and the reasons for, the person’s failure to lodge the objection with the Commissioner within the required period.

14ZX  Commissioner to consider applications for extension of time

             (1)  After considering the request, the Commissioner must decide whether to agree to it or refuse it.

             (2)  The Commissioner must give the person written notice of the Commissioner’s decision.

             (3)  If the Commissioner decides to agree to the request, then, for the purposes of this Part, the objection is taken to have been lodged with the Commissioner within the required period.

             (4)  If the Commissioner decides to refuse the request, the person may apply to the Tribunal for review of the decision.

14ZY  Commissioner to decide taxation objections

             (1)  Subject to subsection (1A), if the taxation objection has been lodged with the Commissioner within the required period, the Commissioner must decide whether to:

                     (a)  allow it, wholly or in part; or

                     (b)  disallow it.

          (1A)  If the taxation objection is an objection under subsection 359-50(3) in Schedule 1 against the Commissioner’s failure to make a private ruling, the Commissioner must:

                     (a)  make a private ruling in the same terms as the draft ruling lodged with the objection; or

                     (b)  make a different private ruling.

             (2)  Such a decision is in this Part called an objection decision.

             (3)  The Commissioner must cause to be served on the person written notice of the Commissioner’s objection decision.

14ZYA  Person may require Commissioner to make an objection decision

             (1)  This section applies if the taxation objection (other than one under subsection 359-50(3) in Schedule 1) has been lodged with the Commissioner within the required period and the Commissioner has not made an objection decision by whichever is the later of the following times:

                     (a)  the end of the period (in this section called the original 60-day period) of 60 days after whichever is the later of the following days:

                              (i)  the day on which the taxation objection is lodged with the Commissioner;

                             (ii)  if the Commissioner decides under section 14ZX to agree to a request in relation to the taxation objection—the day on which the decision is made;

                     (b)  if the Commissioner, by written notice served on the person within the original 60-day period, requires the person to give information relating to the taxation objection—the end of the period of 60 days after the Commissioner receives that information.

             (2)  The person may give the Commissioner a written notice requiring the Commissioner to make an objection decision.

             (3)  If the Commissioner has not made an objection decision by the end of the period of 60 days after being given the notice, then, at the end of that period, the Commissioner is taken to have made a decision under subsection 14ZY(1) to disallow the taxation objection.

14ZYB  Requiring Commissioner to make a private ruling

             (1)  This section applies if the taxation objection is an objection under subsection 359-50(3) in Schedule 1 against the Commissioner’s failure to make a private ruling and the Commissioner has not made an objection decision by the end of 60 days after the later of these days:

                     (a)  the day on which the taxation objection was lodged with the Commissioner;

                     (b)  if the Commissioner decides under section 14ZX to agree to a request in relation to the taxation objection—the day on which the decision was made.

             (2)  The Commissioner is taken, at the end of that 60 day period, to have disallowed the objection.

14ZZ  Person may seek review of, or appeal against, Commissioner’s decision

                   If the person is dissatisfied with the Commissioner’s objection decision (including a decision under paragraph 14ZY(1A)(b) to make a different private ruling), the person may:

                     (a)  if the decision is both a reviewable objection decision and an appealable objection decision—either:

                              (i)  apply to the Tribunal for review of the decision; or

                             (ii)  appeal to the Federal Court against the decision; or

                     (b)  if the decision is a reviewable objection decision (other than an appealable objection decision)—apply to the Tribunal for review of the decision; or

                     (c)  if the decision is an appealable objection decision (other than a reviewable objection decision)—appeal to the Federal Court against the decision.


 

Division 4AAT review of objection decisions and extension of time refusal decisions

14ZZA  Modified AAT Act to apply

                   The AAT Act applies in relation to:

                     (a)  the review of reviewable objection decisions; and

                     (b)  the review of extension of time refusal decisions; and

                     (c)  AAT extension applications;

subject to the modifications set out in this Division.

14ZZB  Sections 27, 28, 41 and 44A of the AAT Act not to apply to certain decisions

             (1)  Sections 27 and 41 of the AAT Act do not apply in relation to:

                     (a)  a reviewable objection decision (other than a reviewable objection decision that relates to a registration-type sales tax decision); or

                     (b)  an extension of time refusal decision.

             (2)  Sections 28 and 44A of the AAT Act do not apply in relation to a reviewable objection decision (other than a reviewable objection decision that relates to a registration-type sales tax decision).

14ZZC  Modification of section 29 of the AAT Act

                   Section 29 of the AAT Act applies in relation to a reviewable objection decision as if subsections (1) to (6) (inclusive) of that section were omitted and the following subsection were substituted:

           “(1)  An application to the Tribunal for a review of a decision:

                     (a)  must be in writing; and

                     (b)  may be made in accordance with the prescribed form; and

                     (c)  must set out a statement of the reasons for the application; and

                     (d)  must be lodged with the Tribunal within 60 days after the person making the application is served with notice of the decision.”.

14ZZD  Modification of section 30 of the AAT Act

                   Section 30 of the AAT Act applies in relation to a reviewable objection decision or an extension of time refusal decision as if subsection (1A) of that section were omitted and the following subsection were substituted:

         “(1A)  If an application has been made by a person to the Tribunal for the review of a reviewable objection decision or an extension of time refusal decision:

                     (a)  any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding; and

                     (b)  the Tribunal may, in its discretion, by order, if it is satisfied that the person making the application consents to the order, make that person a party to the proceeding.”.

14ZZE  Hearings before Tribunal other than Small Taxation Claims Tribunal to be held in private if applicant so requests

                   Despite section 35 of the AAT Act, the hearing of a proceeding before the Tribunal, other than the Small Taxation Claims Tribunal, for:

                     (a)  a review of a reviewable objection decision; or

                     (b)  a review of an extension of time refusal decision; or

                     (c)  an AAT extension application;

is to be in private if the party who made the application requests that it be in private.

14ZZF  Modification of section 37 of the AAT Act

             (1)  Section 37 of the AAT Act applies in relation to an application for review of a reviewable objection decision as if:

                     (a)  the requirement in subsection (1) of that section to lodge with the Tribunal such numbers of copies as is prescribed of statements or other documents were instead a requirement to lodge with the Tribunal such numbers of copies as is prescribed of:

                              (i)  a statement giving the reasons for the decision; and

                             (ii)  the notice of the taxation decision concerned; and

                            (iii)  the taxation objection concerned; and

                            (iv)  the notice of the objection decision; and

                             (v)  every other document that is in the Commissioner’s possession or under the Commissioner’s control and is considered by the Commissioner to be necessary to the review of the objection decision concerned; and

                            (vi)  a list of the documents (if any) being lodged under subparagraph (v); and

                     (b)  the power of the Tribunal under subsection (2) of that section to cause a notice to be served containing a statement and imposing a requirement on a person were instead:

                              (i)  a power to make such a statement and impose such a requirement orally at a conference held in accordance with subsection 34(1) of the AAT Act; and

                             (ii)  a power, by such a notice, to make such a statement and impose a requirement that the person lodge with the Tribunal, within the time specified in the notice, the prescribed number of copies of each of those other documents that is in the person’s possession or under the person’s control; and

                            (iii)  a power, by such a notice, to make such a statement and impose a requirement that the person lodge with the Tribunal, within the time specified in the notice, the prescribed number of copies of a list of the documents in the person’s possession or under the person’s control considered by the person to be relevant to the review of the objection decision concerned.

             (2)  Paragraph (1)(b) does not affect any powers that the Tribunal has apart from that paragraph.

             (3)  The imposition of a requirement covered by subparagraph (1)(b)(iii) does not prevent the subsequent imposition of a requirement covered by subparagraph (1)(b)(ii).

14ZZG  Modification of section 38 of the AAT Act

                   Section 38 of the AAT Act applies in relation to an application for a review of a reviewable objection decision as if the reference to paragraph 37(1)(a) of that Act were instead a reference to subparagraph 14ZZF(1)(a)(i) of this Act.

14ZZH  Modification of section 41 of the AAT Act

                   If:

                     (a)  a person applies to the Tribunal for the review of a reviewable objection decision; and

                     (b)  the objection decision relates to a registration-type sales tax decision;

section 41 of the AAT Act applies as if the reference in that section to a decision were a reference both to the objection decision and to the registration-type sales tax decision.

14ZZJ  Modification of section 43 of the AAT Act

                   Section 43 of the AAT Act applies in relation to:

                     (a)  a review of a reviewable objection decision; and

                     (b)  a review of an extension of time refusal decision; and

                     (c)  an AAT extension application;

as if the following subsections were inserted after subsection (2B):

         “(2C)  If a hearing of a proceeding for the review of a decision or an AAT extension application is not conducted in public, that fact does not prevent the Tribunal from publishing its reasons for the decision.

         “(2D)  If:

                     (a)  a hearing of a proceeding for the review of a decision or an AAT extension application is not conducted in public; and

                     (b) a notice of appeal has not been lodged with the Federal Court;

the Tribunal must ensure, as far as practicable, that its reasons for the decision are framed so as not to be likely to enable the identification of the person who applied for the review.

         “(2E)  In subsections (2C) and (2D):

reasons for decision includes findings on material questions of fact and references to the evidence or other material on which those findings were based.”.

14ZZK  Grounds of objection and burden of proof

                   On an application for review of a reviewable objection decision:

                     (a)  the applicant is, unless the Tribunal orders otherwise, limited to the grounds stated in the taxation objection to which the decision relates; and

                     (b)  the applicant has the burden of proving that:

                              (i)  if the taxation decision concerned is an assessment (other than a franking assessment)—the assessment is excessive; or

                             (ii)  if the taxation decision concerned is a franking assessment—the assessment is incorrect; or

                            (iii)  in any other case—the taxation decision concerned should not have been made or should have been made differently.

14ZZL  Implementation of Tribunal decisions

             (1)  When the decision of the Tribunal on the review of a reviewable objection decision or an extension of time refusal decision becomes final, the Commissioner must, within 60 days, take such action, including amending any assessment or determination concerned, as is necessary to give effect to the decision.

             (2)  For the purposes of subsection (1), if no appeal is lodged against the Tribunal’s decision within the period for lodging an appeal, the decision becomes final at the end of the period.

14ZZM  Pending review not to affect implementation of taxation decisions

                   The fact that a review is pending in relation to a taxation decision (other than a registration-type sales tax decision) does not in the meantime interfere with, or affect, the decision and any tax, additional tax or other amount may be recovered as if no review were pending.


 

Division 5Federal Court appeals against objection decisions

14ZZN  Time limit for appeals

                   An appeal to the Federal Court against an appealable objection decision must be lodged with the Court within 60 days after the person appealing is served with notice of the decision.

14ZZO  Grounds of objection and burden of proof

                   In proceedings on an appeal under section 14ZZ to the Federal Court against an appealable objection decision:

                     (a)  the appellant is, unless the Court orders otherwise, limited to the grounds stated in the taxation objection to which the decision relates; and

                     (b)  the appellant has the burden of proving that:

                              (i)  if the taxation decision concerned is an assessment (other than a franking assessment)—the assessment is excessive; or

                             (ii)  if the taxation decision concerned is a franking assessment—the assessment is incorrect; or

                            (iii)  in any other case—the taxation decision should not have been made or should have been made differently.

14ZZP  Order of Federal Court on appealable objection decision

                   Where the Federal Court hears an appeal against an appealable objection decision under section 14ZZ, the Court may make such order in relation to the decision as it thinks fit, including an order confirming or varying the decision.

14ZZQ  Implementation of Federal Court order in respect of appealable objection decision

             (1)  When the order of the Federal Court in relation to the decision becomes final, the Commissioner must, within 60 days, take such action, including amending any assessment or determination concerned, as is necessary to give effect to the decision.

             (2)  For the purposes of subsection (1):

                     (a)  if the order is made by the Federal Court constituted by a single Judge and no appeal is lodged against the order within the period for lodging an appeal—the order becomes final at the end of the period; and

                     (b)  if the order is made by the Full Court of the Federal Court and no application for special leave to appeal to the High Court against the order is made within the period of 30 days after the order is made—the order becomes final at the end of the period.

14ZZR  Pending appeal not to affect implementation of taxation decisions

                   The fact that an appeal is pending in relation to a taxation decision (other than a registration-type sales tax decision) does not in the meantime interfere with, or affect, the decision and any tax, additional tax or other amount may be recovered as if no appeal were pending.

14ZZS  Transfer of certain proceedings to Family Court

             (1)  If:

                     (a)  a proceeding is pending in the Federal Court on an appeal under section 14ZZ in relation to an appealable objection decision; and

                     (b)  the taxation decision to which the appealable objection decision relates was made under the Income Tax Assessment Act 1936;

the Federal Court may, on the application of a party to the proceeding or on its own initiative, transfer the proceeding to the Family Court.

             (2)  Subject to subsection (3), if the proceeding is transferred to the Family Court:

                     (a)  the Family Court has jurisdiction to hear and determine the proceeding; and

                     (b)  the Family Court also has jurisdiction to hear and determine matters not otherwise within its jurisdiction (whether because of paragraph (a) or otherwise):

                              (i)  that are associated with matters arising in the proceeding; or

                             (ii)  that, apart from subsection 32(1) of the Federal Court of Australia Act 1976, the Federal Court would have had jurisdiction to hear and determine in the proceeding; and

                     (c)  the Family Court may, in and in relation to the proceeding:

                              (i)  grant such remedies; and

                             (ii)  make orders of such kinds; and

                            (iii)  issue, and direct the issue of, writs of such kinds;

                            as the Federal Court could have granted, made, issued or directed the issue of, as the case may be, in and in relation to the proceeding; and

                     (d)  remedies, orders and writs granted, made or issued by the Family Court in and in relation to the proceeding have effect, and may be enforced by the Family Court, as if they had been granted, made or issued by the Federal Court; and

                     (e)  appeals lie from judgments of the Family Court given in and in relation to the proceeding as if the judgments were judgments of the Federal Court constituted by a single Judge of that Court, and do not otherwise lie; and

                      (f)  subject to paragraphs (a) to (e) (inclusive), this Act, the regulations, the Federal Court of Australia Act 1976, the Rules of the Court made under that Act, and other laws of the Commonwealth, apply in and in relation to the proceeding as if:

                              (i)  a reference to the Federal Court (other than in the expression “the Court or a Judge”) included a reference to the Family Court; and

                             (ii)  a reference to a Judge of the Federal Court (other than in the expression “the Court or a Judge”) included a reference to a Family Court Judge; and

                            (iii)  a reference to the expression “the Court or a Judge” when used in relation to the Federal Court included a reference to a Family Court Judge sitting in Chambers; and

                            (iv)  a reference to a Registrar of the Federal Court included a reference to a Registrar of the Family Court; and

                             (v)  any other necessary changes were made.

             (3)  If any difficulty arises in the application of paragraphs (2)(c), (d) and (f) in or in relation to a particular proceeding, the Family Court may, on the application of a party to the proceeding or on its own initiative, give such directions, and make such orders, as it considers appropriate to resolve the difficulty.

             (4)  An appeal does not lie from a decision of the Federal Court in relation to the transfer of a proceeding under this Part to the Family Court.


 

Part VMiscellaneous

  

15  Appearance by Commissioner etc.

             (1)  In any action, prosecution or other proceeding under, or arising out of, a taxation law instituted by or on behalf of the Commissioner, a Second Commissioner or a Deputy Commissioner, to which the Commissioner, a Second Commissioner or a Deputy Commissioner is a party or in which the Commissioner, a Second Commissioner or a Deputy Commissioner intervenes or seeks to intervene, the Commissioner, Second Commissioner or Deputy Commissioner, as the case may be, may appear personally or may be represented by:

                     (a)  a person enrolled as a barrister, solicitor, barrister and solicitor or legal practitioner of a federal court or of the Supreme Court of a State or Territory; or

                     (b)  a person authorized by the Commissioner, a Second Commissioner or a Deputy Commissioner, by instrument in writing, to appear.

             (2)  The appearance of a person, and the statement of the person that the person appears by authority of the Commissioner, a Second Commissioner or a Deputy Commissioner, is prima facie evidence of that authority.

             (4)  This section applies in relation to the Development Allowance Authority Act 1992 as if:

                     (a)  that Act were a taxation law; and

                     (b)  references in this section to the Commissioner were references to the Development Allowance Authority; and

                     (c)  references in this section to a Second Commissioner or to a Deputy Commissioner were omitted.

15A  Certification by Commissioner of copies of, and extracts from, documents

             (1)  Where a document is obtained pursuant to a taxation law, the Commissioner may certify a copy of the document to be a true copy.

             (2)  Where, pursuant to a taxation law, a copy is made of a document, the Commissioner may certify the copy to be a true copy.

             (3)  Where a document is obtained pursuant to a taxation law, the Commissioner may certify an extract taken from the document to be a true extract.

             (4)  Where, pursuant to a taxation law, an extract is taken from a document, the Commissioner may certify the extract to be a true extract.

             (5)  Subject to subsection (6), a document purporting to be a copy or extract certified under subsection (1), (2), (3) or (4) shall be received in all courts and tribunals in proceedings arising out of a taxation law as evidence as if it were the original.

             (6)  Subsection (5) does not apply in relation to a document if:

                     (a)  in the case of proceedings for an offence—evidence is adduced that the document is not a true copy or a true extract; or

                     (b)  in any other case—it is proved that the document is not a true copy or a true extract.

             (7)  Where:

                     (a)  pursuant to a taxation law, a copy (in this section referred to as the primary copy) is made of, or an extract (in this section referred to as the primary extract) is taken from, a document (in this section referred to as the original document); and

                     (b)  pursuant to subsection (2) or (4), the Commissioner has certified the primary copy to be a true copy of, or the primary extract to be a true extract taken from, the original document;

the Commissioner may:

                     (c)  certify a copy of the primary copy or primary extract to be a true copy; or

                     (d)  certify an extract taken from the primary copy or primary extract to be a true extract.

             (8)  Subject to subsection (9), a document purporting to be:

                     (a)  a copy, certified under subsection (7), of a primary copy of, or a primary extract taken from, an original document; or

                     (b)  an extract, certified under subsection (7), taken from a primary copy of, or a primary extract taken from, an original document;

shall be received in all courts and tribunals in proceedings arising out of a taxation law as evidence as if it were the original document.

             (9)  Subsection (8) does not apply in relation to a document if:

                     (a)  in the case of proceedings for an offence, evidence is adduced that:

                              (i)  the document is not a true copy of, or a true extract taken from, the primary copy or primary extract; or

                             (ii)  the primary copy is not a true copy of, or the primary extract is not a true extract taken from, the original document; or

                     (b)  in any other case, it is proved that:

                              (i)  the document is not a true copy of, or a true extract taken from, the primary copy or primary extract; or

                             (ii)  the primary copy is not a true copy of, or the primary extract is not a true extract taken from, the original document.

           (11)  This section applies in relation to the Development Allowance Authority Act 1992 as if:

                     (a)  that Act were a taxation law; and

                     (b)  references in this section to the Commissioner were references to the Development Allowance Authority.

16  Payments out of Consolidated Revenue Fund

             (1)  Where the Commissioner is required or permitted to pay an amount to a person by or under a provision of a taxation law other than:

                     (a)  a general administration provision; or

                     (b)  a provision prescribed for the purposes of this paragraph;

the amount is payable out of the Consolidated Revenue Fund, which is appropriated accordingly.

             (2)  Where:

                     (a)  an amount is required or permitted to be paid to a person:

                              (i)  by or under a provision of a taxation law other than:

                                        (A)  a general administration provision; or

                                        (B)  a provision prescribed for the purposes of this sub-subparagraph; or

                             (ii)  by way of the repayment, whether in whole or in part, to the person of an amount paid to the Commonwealth;

                     (b)  except as mentioned in paragraph (c), there is no provision of a taxation law by or under which the Commissioner is required or permitted to pay the amount; and

                     (c)  the Commissioner is required or permitted to pay the amount by or under a general administration provision;

the amount shall be taken, for the purposes of subsection (1), to be an amount that the Commissioner is required or permitted to pay to the person by or under a provision of a taxation law of the kind referred to in that subsection.

             (3)  In this section, general administration provision means a provision of a taxation law that provides that the Commissioner has the general administration of the taxation law.

16A  Regulations may provide for methods of payment of tax liabilities etc.

             (1)  This section applies to a liability to or of the Commonwealth arising under, or by virtue of, any of the following laws:

                     (a)  this Act;

                     (b)  any other Act of which the Commissioner has the general administration;

                     (c)  regulations under an Act covered by paragraph (a) or (b).

             (2)  The regulations may make provision for and in relation to the methods by which the amount of the liability may be paid.

             (3)  Without limiting subsection (2), the regulations may make provision for and in relation to the making of payments using:

                     (a)  collection agents; or

                     (b)  electronic funds transfer systems; or

                     (c)  credit cards; or

                     (d)  debit cards.

16B  Certain liabilities to be reduced to nearest multiple of 5 cents

                   If the amount of a tax-related liability that arises by way of penalty or because it is assessed by the Commissioner (other than an RBA deficit or a liability to pay the general interest charge) is not a multiple of 5 cents, the amount is decreased to the nearest multiple of 5 cents.

17  Powers of taxation officers in relation to references to currency etc.

             (1)  In this section:

decimal currency means the currency provided for by the Currency Act 1965.

law of the Commonwealth has the same meaning as in section 10 of the Currency Act 1965.

officer includes the Commissioner and a Second Commissioner.

taxation law means any law of the Commonwealth of which the Commissioner has the general administration.

the previous currency means the currency provided for by the Coinage Act 1909.

             (2)  An officer may, in the exercise of, or for the purpose of exercising, any power under a taxation law or in the performance of, or for the purpose of performing, any function under a taxation law:

                     (a)  treat:

                              (i)  a reference in a law of the Commonwealth;

                             (ii)  a reference in a bill of exchange, promissory note, security for money, contract or agreement (whether the contract or agreement is in writing or not), deed or other instrument; or

                            (iii)  a reference in any other manner;

                            to an amount of money in the previous currency as a reference to a corresponding amount of money in decimal currency and treat such a reference to an amount of money in decimal currency as a reference to a corresponding amount of money in the previous currency;

                     (b)  treat an amount of money in the previous currency as a corresponding amount of money in decimal currency and treat an amount of money in decimal currency as a corresponding amount of money in the previous currency; and

                     (c)  express an amount of money in either decimal currency or the previous currency.

             (3)  For the purposes of paragraphs (2)(a), (b) and (c):

                     (a)  the amount of money in decimal currency that corresponds with an amount of money in the previous currency; and

                     (b)  the amount of money in the previous currency that corresponds with an amount of money in decimal currency;

shall be calculated on the basis of the equivalents specified in subsection 8(4) of the Currency Act 1965.

17A  Powers of Federal Court and Federal Magistrates Court in respect of taxation matters

             (1)  The Federal Court of Australia shall not, in relation to a review by the Court of a decision of the Tribunal in connection with proceedings under a taxation law, exercise a power conferred on it by section 15, or paragraph 16(1)(d), (2)(b) or (3)(c) or subsection 16(4), of the Administrative Decisions (Judicial Review) Act 1977 so as to prevent or restrain the recovery, under that law, of tax or duty, further tax or further duty or additional tax or additional duty.

             (2)  The Federal Magistrates Court must not, in relation to a review by the Court of a decision of the Tribunal in connection with proceedings under a taxation law, exercise a power conferred on it by section 15A, or paragraph 16(1)(d), (2)(b) or (3)(c) or subsection 16(4), of the Administrative Decisions (Judicial Review) Act 1977 so as to prevent or restrain the recovery, under that law, of:

                     (a)  tax or duty; or

                     (b)  further tax or further duty; or

                     (c)  additional tax or additional duty.

17B  Injunctions to prevent contravention of secrecy provisions

             (1)  Where a person has engaged, is engaging or is proposing to engage in any conduct that constituted or would constitute a contravention of a taxation law that prohibits the communication, divulging or publication of information or the production of, or the publication of the contents of, a document, the Federal Court of Australia may, on the application of the Commissioner, grant an injunction restraining the person from engaging in the conduct and, if in the court’s opinion it is desirable to do so, requiring the person to do any act or thing.

             (2)  Where an application is made to the court for an injunction under subsection (1), the court may, if in the court’s opinion it is desirable to do so, before considering the application, grant an interim injunction restraining a person from engaging in conduct of the kind referred to in that subsection pending the determination of the application.

             (3)  The court may discharge or vary an injunction granted under this section.

             (4)  Where an application is made to the court for the grant of an injunction restraining a person from engaging in conduct of a particular kind, the power of the court to grant the injunction may be exercised:

                     (a)  if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

                     (b)  if it appears to the court that, in the event that an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

             (5)  The power of the court to grant an injunction requiring a person to do a particular act or thing may be exercised:

                     (a)  if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

                     (b)  if it appears to the court that, in the event that an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.

             (6)  Where the Commissioner makes an application to the court for the grant of an injunction under this section, the court shall not require the Commissioner or any other person, as a condition of the granting of an interim injunction, to give any undertakings as to damages.

             (7)  The powers conferred on the court under this section are in addition to, and not in derogation of, any other powers of the court, whether conferred by this Act or otherwise.

17C  Requests to be prescribed as an eligible Royal Commission

             (1)  This section applies to:

                     (a)  a Royal Commission of the Commonwealth, a State or a Territory; or

                     (b)  a commission of inquiry of a State or a Territory; or

                     (c)  a board of inquiry of a State or a Territory.

             (2)  The person, or any of the persons, constituting the commission or board may give the Minister a written request that the Governor-General make a regulation prescribing the commission or board for the purposes of paragraph (b), (c) or (d) of the definition of eligible Royal Commission in section 2.

             (3)  Within 28 days after receiving the request, the Minister must give the person who made the request a written notice:

                     (a)  stating whether or not the Governor-General will make the regulation; and

                     (b)  setting out the reasons why the regulation will be made, or will not be made, as the case requires.

             (4)  The Minister must cause a copy of a notice given under subsection (3) to be laid before each House of the Parliament on the next sitting day of that House after the day on which the notice was given.

18  Regulations

                   The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for giving effect to this Act, and, in particular:

                     (b)  prescribing penalties not exceeding a fine of $500 for offences against the regulations.


 

Part VIAdministration of the GST, wine equalisation tax and luxury car tax

Division 1Introduction

19  Overview

This Part sets out administrative provisions for the GST, the wine equalisation tax and the luxury car tax and should be read in conjunction with these Acts:

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

       A New Tax System (Wine Equalisation Tax) Act 1999;

       A New Tax System (Luxury Car Tax) Act 1999.

Other provisions of this Act can also affect the way these taxes are administered.

                   Example:       It is an offence under section 8C to fail to notify the Commissioner of a change of address as required by subsection 67(2).

20  Meaning of expressions

             (1)  In this Part:

GST Act means the A New Tax System (Goods and Services Tax) Act 1999.

authorised officer, when used in a particular provision, means a person the Commissioner has authorised to exercise powers or perform functions under that provision.

indirect tax means any of these:

                     (a)  GST;

                     (b)  wine tax;

                     (c)  luxury car tax.

indirect tax law means any of these:

                     (a)  the GST law;

                     (b)  the wine tax law;

                     (c)  the luxury car tax law.

luxury car tax has the meaning given by section 27-1 of the Luxury Car Tax Act.

Luxury Car Tax Act means the A New Tax System (Luxury Car Tax) Act 1999.

luxury car tax law has the meaning given by section 27-1 of the Luxury Car Tax Act.

wine tax has the meaning given by section 33-1 of the Wine Tax Act.

Wine Tax Act means the A New Tax System (Wine Equalisation Tax) Act 1999.

wine tax law has the meaning given by section 33-1 of the Wine Tax Act.

             (2)  Other expressions in this Part have the same meaning as in the GST Act.


 

Division 2Assessments

22  Commissioner may make assessment of indirect tax

             (1)  The Commissioner may at any time make an assessment of your net amount, or any part of your net amount, for a tax period.

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

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

Note:          An assessment made under this section is a reviewable indirect tax decision (see Division 7).

23  Request for assessment

             (1)  You may request the Commissioner in the approved form to make an assessment of your net amount for a tax period or of an amount of indirect tax payable by you on an importation of goods.

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

                     (a)  4 years after the end of the tax period or the time of the importation; or

                     (b)  such further period as the Commissioner allows.

24  Indirect tax liabilities do not depend on assessment

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

             (2)  The Commissioner’s obligation to pay a net amount under section 35-5 of the GST Act, and the time by which it must be paid, do not depend on, and are not in any way affected by, the making of an assessment under this Division.

Note:          However, an assessment can be used as evidence of liability: see section 59.

25  Commissioner must give notice of the assessment

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

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

26  Amendment of assessment

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

Note:          However, there is a time limit on the recovery of overpaid or underpaid indirect tax: see sections 35 and 36.

27  Later assessment prevails in case of inconsistency

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


 

Division 3Recovery

35  Time limit on recovering unpaid indirect tax

                   A net amount or an amount of indirect tax that has not been paid within 4 years after the time when it became payable by you (together with any relevant penalty under section 40 for unpaid indirect tax) ceases to be payable at the end of that period, unless:

                     (a)  within that period the Commissioner has required payment of the amount by giving a notice to you; or

                     (b)  the Commissioner is satisfied that the payment of the amount was avoided by fraud or evaded.

36  Time limit on credits and refunds

             (1)  You are not entitled to:

                     (a)  a refund under section 35-5 of the GST Act in respect of a particular tax period; or

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

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

                     (d)  a refund, under subsection 39(1) of this Act, of an amount of indirect tax relating to an importation;

unless:

                     (e)  within 4 years after the end of the tax period, or after the making of the importation (as the case requires), you notify the Commissioner (in a GST return or otherwise) that you are entitled to the refund or credit; or

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

                     (g)  in the case of a credit—the credit is taken into account in working out a net amount that the Commissioner may recover from you only because of paragraph 35(b) of this Act.

             (2)  In this section:

wine tax credit has the meaning given by section 33-1 of the Wine Tax Act.

37  Reliance on Commissioner’s interpretation of an indirect tax law

             (1)  This section applies to you if:

                     (a)  the Commissioner alters a previous ruling that applied to you; and

                     (b)  relying on the previous ruling, you have underpaid a net amount or an amount of indirect tax, or the Commissioner has overpaid an amount under section 35-5 of the GST Act, in respect of one or more:

                              (i)  taxable supplies or taxable importations; or

                             (ii)  taxable dealings; or

                            (iii)  taxable supplies of luxury cars or taxable importations of luxury cars; or

                            (iv)  creditable acquisitions or creditable importations;

                            that happened before the alteration.

             (2)  Unless the Commissioner is satisfied that you contributed to the giving, or continuing in force, of the earlier ruling by a misstatement or by suppressing a material fact:

                     (a)  the underpaid indirect tax ceases to be payable; or

                     (b)  the overpaid amount under section 35-5 of the GST Act is taken to have been payable in full;

from when the previous ruling was made.

             (3)  The following rules apply in deciding whether a ruling applies to you, or whether a ruling has been altered:

                     (a)  a private ruling applies only to the entity to whom it was given;

                     (b)  so far as a private ruling conflicts with an earlier public ruling, the private ruling prevails;

                     (c)  so far as a public ruling conflicts with an earlier private ruling, the public ruling prevails;

                     (d)  an alteration that a later ruling makes to an earlier ruling is disregarded so far as the alteration results from a change in the law that came into operation after the earlier ruling was given.

             (4)  In this section:

private ruling means a ruling given to a particular entity.

public ruling means a ruling other than a private ruling.

ruling means any ruling or advice given or published by the Commissioner, including one that has been previously altered, but not including:

                     (a)  one given orally; or

                     (b)  an assessment.

taxable dealing has the meaning given by section 33-1 of the Wine Tax Act.

taxable importation of a luxury car has the meaning given by section 27-1 of the Luxury Car Tax Act.

taxable supply of a luxury car has the meaning given by section 27-1 of the Luxury Car Tax Act.

39  Restriction on refunds

             (1)  This section applies to:

                     (a)  so much of any net amount or amount of indirect tax as you have overpaid; and

                     (b)  so much of any net amount that is payable to you under section 35-5 of the GST Act as the Commissioner has not paid to you or applied under Division 3 of Part IIB of this Act.

             (3)  The Commissioner need not give you the refund, or apply the amount under Division 3 or 3A of Part IIB, if:

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

                     (b)  the supply is not a taxable supply to that extent (for example, because it is GST-free);

unless:

                     (c)  the Commissioner is satisfied that you have reimbursed a corresponding amount to the recipient of the supply; and

                     (d)  the recipient is neither registered nor required to be registered.


 

Division 4Penalties

40  Unpaid tax

             (1)  If any of the indirect tax which a person is liable to pay remains unpaid after the time by which the tax is due to be paid, the person is liable to pay the 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 tax 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 tax;

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

Note:          The general interest charge is worked out under Division 1 of Part IIA of the Taxation Administration Act 1953.

             (2)  In this section:

tax includes penalty under this Division.

46A  Indirect tax amending Acts cannot impose penalties etc. earlier than 28 days after Royal Assent

             (1)  An indirect tax amending Act does not have the effect of making a person liable to an indirect tax penalty for any act or omission that happens before the postponed day.

             (2)  If an indirect tax amending Act would (apart from this section) have the effect of making a person liable to an indirect tax penalty because the person 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 a person from liability to an indirect tax penalty to the extent to which the liability would have existed if the indirect tax amending Act had not been enacted.

             (4)  In this section:

postponed day means the 28th day after the day on which the indirect tax amending Act receives the Royal Assent.

indirect tax amending Act means an Act that amends an indirect tax law.

indirect tax penalty means:

                     (a)  an offence against an indirect tax law; or

                     (b)  a penalty under Division 4 of this Part.

49  Relationship with offence provisions

                   Nothing in this Division makes it an offence to do or omit to do anything.

Note:          However, some of the conduct covered by this Division might constitute an offence against a provision outside this Division. An entity that is prosecuted for such an offence is not liable to pay any penalty under this Division: see section 8ZE.


 

Division 5Special rules for certain entities

50  Liability of partners

             (1)  Obligations that are imposed under an indirect tax law on a partnership are imposed on each partner, but may be discharged by any of the partners.

             (2)  The partners are jointly and severally liable to pay any amount that is payable under an indirect tax law by the partnership.

             (3)  Any offence against an indirect tax law that is committed by a partnership is taken to have been committed by each of the partners.

             (4)  In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (3), it is a defence if the entity proves that the entity:

                     (a)  did not aid, abet, counsel or procure the relevant act or omission; and

                     (b)  was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).

Note 1:       The defence in subsection (4) does not apply in relation to offences under Part 2.4 of the Criminal Code.

Note 2:       A defendant bears a legal burden in relation to the matters in subsection (4), see section 13.4 of the Criminal Code.

51  Liability of participants in GST joint ventures

             (1)  The participants in a GST joint venture are jointly and severally liable to pay any amount that is payable under an indirect tax law by the joint venture operator of the joint venture, to the extent that the amount relates to the joint venture.

             (2)  Any offence against an indirect tax law that:

                     (a)  is committed by the joint venture operator of a GST joint venture; and

                     (b)  relates to the joint venture;

is taken to have been committed by each of the participants in the joint venture.

             (3)  In a prosecution of a person for an offence that the person is taken to have committed because of subsection (2), it is a defence if the person proves that the person:

                     (a)  did not aid, abet, counsel or procure the relevant act or omission; and

                     (b)  was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the person).

Note 1:       The defence in subsection (3) does not apply in relation to offences under Part 2.4 of the Criminal Code.

Note 2:       A defendant bears a legal burden in relation to the matters in subsection (3), see section 13.4 of the Criminal Code.

52  Liability related to unincorporated associations or bodies of persons

             (1)  Obligations that would be imposed under an indirect tax law on an unincorporated association or body of persons are imposed on each member of the committee of management of the association or body, but may be discharged by any of those members.

             (2)  Any offence against an indirect tax law that is committed by the association or body is taken to have been committed by each member of its committee of management.

             (3)  In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (2), it is a defence if the entity proves that the entity:

                     (a)  did not aid, abet, counsel or procure the relevant act or omission; and

                     (b)  was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).

Note 1:       The defence in subsection (3) does not apply in relation to offences under Part 2.4 of the Criminal Code.

Note 2:       A defendant bears a legal burden in relation to the matters in subsection (3), see section 13.4 of the Criminal Code.

52A  Liability related to non-profit sub-entities

             (1)  Obligations that would be imposed under the GST law on a non-profit sub-entity are imposed on each person who is responsible, to persons or bodies outside the sub-entity, for the management of the sub-entity, but may be discharged by any person who is so responsible.

          (1A)  The persons who are so responsible in respect of the sub-entity are jointly and severally liable to pay any amount that is payable under the GST law by the sub-entity.

             (2)  Any offence against the GST law that is committed by the sub-entity is taken to have been committed by each person who is responsible, to persons or bodies outside the sub-entity, for the management of the sub-entity.

             (3)  In a prosecution of a person for an offence that the person is taken to have committed because of subsection (2), it is a defence if the person proves that the person:

                     (a)  did not aid, abet, counsel or procure the relevant act or omission; and

                     (b)  was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).

Note 1:       The defence in subsection (3) does not apply in relation to offences under Part 2.4 of the Criminal Code.

Note 2:       A defendant bears a legal burden in relation to the matters in subsection (3), see section 13.4 of the Criminal Code.

53  Liability of members of GST groups

             (1)  The members of a GST group are jointly and severally liable to pay any amount that is payable under an indirect tax law by the representative member of the group.

          (1A)  Subsection (1) does not apply to a member of a GST group if an Australian law has the effect of prohibiting the member from entering into any arrangement under which the member becomes subject to the liability referred to in that subsection.

          (1B)  However, a member to which subsection (1A) applies remains liable for any amount payable under an indirect tax law by the representative member of the group, to the extent that the liability arises from an act or omission of the member to which subsection (1A) applies.

             (2)  Any offence against an indirect tax law that is committed by the representative member of a GST group is taken to have been committed by each of the members of the group.

             (3)  In a prosecution of an entity for an offence that the entity is taken to have committed because of subsection (2), it is a defence if the entity proves that the entity:

                     (a)  did not aid, abet, counsel or procure the relevant act or omission; and

                     (b)  was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the entity).

Note 1:       The defence in subsection (3) does not apply in relation to offences under Part 2.4 of the Criminal Code.

Note 2:       A defendant bears a legal burden in relation to the matters in subsection (3), see section 13.4 of the Criminal Code.

54  Liability of representatives of incapacitated entities

             (1)  If there are 2 or more representatives of the same incapacitated entity, the representatives are jointly and severally liable to pay any amount that is payable under an indirect tax law by any of the representatives in relation to that same incapacitated entity.

             (2)  If there are 2 or more representatives of the same incapacitated entity, any offence against an indirect tax law that is committed by one of the representatives is taken to have been committed by each of the representatives.

             (3)  In a prosecution of a person for an offence that the person is taken to have committed because of subsection (2), it is a defence if the person proves that the person:

                     (a)  did not aid, abet, counsel or procure the relevant act or omission; and

                     (b)  was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the person).

Note 1:       The defence in subsection (3) does not apply in relation to offences under Part 2.4 of the Criminal Code.

Note 2:       A defendant bears a legal burden in relation to the matters in subsection (3), see section 13.4 of the Criminal Code.

56  Public officer of a company

             (1)  The person who is the public officer of a company for the purposes of the Income Tax Assessment Act 1936 is also the public officer of the company for the purposes of an indirect tax law. The public officer’s address for service under that Act is also the public officer’s address for service for the same purposes.

             (2)  The public officer is answerable for doing everything required to be done by the company under an indirect tax law, and in case of default is liable to the same penalties.

             (3)  A proceeding under an indirect tax law that is brought against the public officer is taken to have been brought against the company, and the company is liable jointly with the public officer for any penalty imposed on the public officer.

             (4)  Everything done by the public officer that the public officer is required to do in that capacity is taken to have been done by the company.

             (5)  Service of a notice or other document on the public officer or at the public officer’s address for service is sufficient service on the company for the purposes of an indirect tax law. If at any time there is no public officer, service on a person who is acting or appears to be acting in the business of the company is sufficient.

             (6)  This section does not, by implication, reduce any of the obligations or liabilities of the company.

57  Liability of directors etc. of a company

             (1)  Any notice, process or proceeding that may be given to, served on or taken against a company or its public officer under an indirect tax law may, if the Commissioner considers it appropriate, be given to, served on, or taken against an entity (the representative) who is:

                     (a)  a director, secretary or other officer of the company; or

                     (b)  an attorney or agent of the company.

             (2)  The representative has the same liability in respect of the notice, process or proceeding as the company or public officer would have had if it had been given to, served on or taken against the company or public officer.

             (3)  This section does not, by implication, reduce any of the obligations or liabilities of the company or public officer.


 

Division 6Evidence

59  Production of assessment or declaration is conclusive evidence

                   The production of a notice of assessment under this Part or of a declaration under section 165-40 or subsection 165-45(3) of the GST Act is conclusive evidence:

                     (a)  that the assessment or declaration was properly made; and

                     (b)  except in proceedings under Part IVC on a review or appeal relating to the assessment or declaration—that the amounts and particulars in the assessment or declaration are correct.

60  Certificate of amount payable is prima facie evidence

                   The presentation of a certificate signed by the Commissioner or a Deputy Commissioner certifying that, from the time specified in the certificate, an amount was payable under an indirect tax law (whether to or by the Commissioner) is prima facie evidence:

                     (a)  that the amount is payable from that time; and

                     (b)  the particulars stated in the certificate are correct.

61  Signed copies are evidence

             (1)  The production of a document signed by the Commissioner or a Deputy Commissioner that appears to be a copy of, or extract from, any document made or given by or to an entity for the purposes of an indirect tax law is evidence of the matters set out in the document to the same extent as the original document would have been evidence of those matters.

             (2)  To avoid doubt, subsection (1) applies to a copy or extract of a document that was given by or to the Commissioner on a data processing device or by way of electronic transmission, unless it is shown that the document was not authorised.


 

Division 7Review

62  Reviewable GST decisions, reviewable wine tax decisions and reviewable indirect tax decisions

             (1)  If you are dissatisfied with:

                     (a)  a reviewable GST decision relating to you; or

                     (b)  a reviewable wine tax decision relating to you; or

                     (c)  a reviewable indirect tax decision relating to you; or

                     (d)  a reviewable GST transitional decision relating to you;

you may object against the decision in the manner set out in Part IVC.

Note:          Subsection (2) lists reviewable GST decisions under the GST Act, subsection (2A) lists reviewable wine tax decisions under the Wine Tax Act, subsection (3) lists reviewable indirect tax decisions under this Part and subsection (3A) lists reviewable GST transitional decisions under the A New Tax System (Goods and Services Tax Transition) Act 1999.

             (2)  Each of the following decisions is a reviewable GST decision under the GST Act:

 

Reviewable GST decisions under GST Act

Item

Decision

Provision of GST Act under which decision is made

1

refusing to register you

subsection 25-5(1)

2

registering you

subsection 25-5(2)

3

deciding the date of effect of your registration

section 25-10

4

refusing to cancel your registration

subsection 25-55(1)

5

cancelling your registration

subsection 25-55(2)

5A

refusing to cancel your registration

section 25-57

6

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

section 25-60

7

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

subsection 27-15(1)

8

deciding the date of effect of a determination

subsection 27-15(2)

8A

refusing to revoke your election under section 27-10

subsection 27-22(1)

8B

deciding the date of effect of a revocation

subsection 27-22(3)

9

refusing to revoke a determination under section 27-15

subsection 27-25(1)

10

deciding the date of effect of a revocation

subsection 27-25(2)

11

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

section 27-30

12

refusing a request for a determination

section 27-37

13

revoking a determination under section 27-37

subsection 27-38(1)

14

deciding the date of a revocation

subsection 27-38(2)

15

refusing to permit you to account on a cash basis

subsection 29-45(1)

16

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

subsection 29-45(2)

17

revoking your permission to account on a cash basis

subsection 29-50(3)

18

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

subsection 29-50(4)

18A

refusing an application for a decision that an event is a fund-raising event

paragraph 40-165(1)(c)

19

refusing an application for approval

section 48-5

20

refusing an application for approval or revocation

subsection 48-70(1)

21

revoking an approval under Division 48

subsection 48-70(2)

22

refusing an application for revocation

subsection 48-75(1)

23

revoking the approval of a GST group

subsection 48-75(2)

24

deciding the date of effect of any approval, or any revocation of an approval, under Division 48

section 48-85

24A

refusing an application for approval

section 49-5

24B

refusing an application for approval or revocation

subsection 49-70(1)

24C

revoking an approval under Division 49

subsection 49-70(2)

24D

refusing an application for revocation

subsection 49-75(1)

24E

revoking the approval of a GST religious group

subsection 49-75(2)

24F

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

section 49-85

25

refusing an application for approval

section 51-5

25A

disallowing an election to consolidate GST returns relating to GST joint ventures

subsection 51-52(5)

26

refusing an application for approval or revocation

subsection 51-70(1)

27

revoking an approval under Division 51

subsection 51-70(2)

28

refusing an application for revocation

subsection 51-75(1)

29

revoking the approval of a GST joint venture

subsection 51-75(2)

30

deciding the date of effect of any approval, or any revocation of an approval, under Division 51

section 51-85

31

cancelling the registration of an Australian resident agent

subsection 57-25(1)

31A

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

subsection 57-35(1)

31B

deciding the date of effect of a determination

subsection 57-35(2)

32

cancelling the registration of a representative of an incapacitated entity

subsection 147-10(1)

33

refusing an application for registration

section 54-5

34

deciding the date of effect of registration as a GST branch

section 54-10

35

refusing to cancel the registration of a GST branch

subsection 54-75(1)

36

cancelling the registration of a GST branch

subsection 54-75(2)

37

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

section 54-80

37A

cancelling the registration of a non-profit sub-entity

subsection 63-35(1)

37AA

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

paragraph 75-5(1A)(b)

37AB

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

paragraph 131-10(2)(b)

37AC

disallowing an annual apportionment election

subsection 131-20(3)

37AD

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

paragraph 151-10(2)(b)

37AE

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

subsection 151-20(3)

37AF

disallowing an annual tax period election

subsection 151-25(3)

37B

refusing a request to allow an election to pay GST by instalments to take effect from the start of another tax period

paragraph 162-15(2)(b)

37C

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

subsection 162-25(3)

37D

disallowing an election to pay GST by instalments

subsection 162-30(3)

38

making a declaration to negate a GST benefit

section 165-40

39

making a declaration to negate or reduce a GST disadvantage

subsection 165-45(3)

40

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

subsection 165-45(5)

          (2A)  Each decision under section 17-45 of the Wine Tax Act disallowing the whole or part of a claim for a wine tax credit is a reviewable wine tax decision.

             (3)  Each of the following decisions is a reviewable indirect tax decision under this Part:

 

Reviewable indirect tax decisions

Item

Decision

Provision of this Part under which decision is made

1

making an assessment

section 22

3

refusing to any extent to remit an amount of penalty (other than penalty under section 40 for unpaid indirect tax), but only if the amount of penalty payable after the refusal is more than $200

subsection 48(1)

          (3A)  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.

             (4)  In this section:

wine tax credit has the meaning given by section 33-1 of the Wine Tax Act.


 

Division 7AEffect of alterations to wine tax or luxury car tax laws

62A  Alteration of contracts if cost of supplies etc. 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 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.

             (3)  In this section:

taxable dealing has the meaning given by section 33-1 of the Wine Tax Act.


 

Division 7BIndirect tax refund schemes

62B  Refund scheme—defence related international obligations

             (1)  If:

                     (a)  an acquisition covered by a determination of the Defence Minister is made:

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

                             (ii)  by a member of the visiting force who is; or

                            (iii)  any other person who is;

                            covered by a determination of the Defence Minister; and

                     (b)  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 of the visiting force; or

                            (iii)  any other use;

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

the Commissioner must, on behalf of the Commonwealth and subject to subsection (4), pay to a person in a class of persons determined by the Defence Minister an amount equal to the amount of indirect tax (if any) borne by the entity in respect of that acquisition.

             (2)  A determination of a person under subparagraph (1)(a)(iii) and of a use under subparagraph (1)(b)(iii) may be made if, and only if, the Commonwealth is under an international obligation to grant indirect tax concessions in relation to the kind of person and the kind of use.

             (3)  A claim for an amount covered by subsection (1) must be in the approved form.

             (4)  The amount is payable:

                     (a)  in accordance with the conditions and limitations; and

                     (b)  within the period and manner;

determined by the Defence Minister.

             (5)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (6)  In this section:

Defence Minister means the Minister administering the Defence Act 1903.

member of a visiting force and visiting force have the meaning given by section 5 of the Defence (Visiting Forces) Act 1963.

62C  Refund scheme—international obligations

             (1)  If an entity of a kind specified in the regulations makes an acquisition of a kind specified in the regulations, the Commissioner must, on behalf of the Commonwealth and subject to subsection (4), pay to the entity (or a person in a class of persons determined by the Commissioner) an amount equal to the amount of indirect tax (if any) borne by the entity in respect of that acquisition.

             (2)  The regulations may specify a kind of entity and a kind of acquisition if, and only if, the Commonwealth is under an international obligation to grant indirect tax concessions in relation to the kind of entity and the kind of acquisition.

             (3)  A claim for an amount covered by subsection (1) must be in the approved form.

             (4)  The amount is payable:

                     (a)  in accordance with the conditions and limitations; and

                     (b)  within the period and manner;

set out in the regulations.


 

Division 8Other administrative provisions

63  Commissioner has general administration of indirect tax laws

                   The Commissioner has the general administration of each indirect tax law.

64  Commissioner must prepare annual report

             (1)  As soon as practicable after 30 June in each year, the Commissioner must prepare and give to the Minister a report on the working of the indirect tax laws during the year ending on that 30 June.

             (2)  The report must include a report on any breaches or evasions of the indirect tax laws that the Commissioner knows about.

             (3)  The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

65  Commissioner may direct a person to provide information

             (1)  The Commissioner may direct a person to do all or any of the following:

                     (a)  to give the Commissioner any information that the Commissioner requires;

                     (b)  to attend and give evidence before the Commissioner or an authorised officer;

                     (c)  to produce to the Commissioner any documents in the custody or under the control of the person;

for the purpose of enabling the Commissioner to apply an indirect tax law in relation to the person or any other person.

Note:          Failing to comply with a direction can be an offence against section 8C.

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