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Taxation Laws Amendment Act (No. 5) 1989

Act No. 20 of 1990 as amended, taking into account amendments up to Act No. 75 of 2010
An Act to amend the law relating to taxation
Registered 09 Sep 2010
Start Date 29 Jun 2010
End Date 10 Mar 2016
Date of repeal 10 Mar 2016
Repealed by Amending Acts 1990 to 1999 Repeal Act 2016

Taxation Laws Amendment Act (No. 5) 1989

Act No. 20 of 1990 as amended

This compilation was prepared on 9 September 2010
taking into account amendments up to Act No. 75 of 2010

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

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

  

  


TABLE OF PROVISIONS

 

PART 1 - PRELIMINARY

Section

  1.   Short title [see Note 1]

  2.   Commencement [see Note 1]

PART 2 - AMENDMENT OF THE CRIMES (TAXATION OFFENCES) ACT 1980

  3.   Principal Act

  4.   Interpretation

PART 3 - AMENDMENT OF THE INCOME TAX ASSESSMENT ACT 1936

  5.   Principal Act

  6.   Interpretation

  7.   Exemption of certain pensions

  8.   Repeal of section and substitution of new section:

       69.   Tax-related expenses

  9.   Gifts, pensions etc.

  10.  Interpretation

  11.  Insertion of new section:

       111AA.  Deductions to be allowable for expenditure incurred in gaining

               the investment component of certain premiums

  12.  Deductions not allowable for expenditure incurred in gaining certain

       premium income

  13.  Insertion of new sections:

       160AIA. Self-determination of credits by taxpayers

       160AIB. Reliance by Commissioner on claim for credit

  14.  Insertion of new section:

       160AJA. Deemed determination of credit by Commissioner

  15.  Amendment of determinations

  16.  Information for credit to be furnished within 4 years

  17.  Interpretation

  18.  Residence requirement for credit to arise in relation to year of income

  19.  Insertion of new sections:

       160APMA. Initial payment of tax

       160APMB. Subsequent payments of tax before determination of taxable

                income

  20.  Insertion of new section:

       160APNA. Notional receipt of company tax assessment

  21.  Residence requirement for debit to arise in relation to year of income

  22.  Insertion of new sections:

       160APYA. Crediting of initial payment of tax by a company

       160APYB. Refunds in respect of initial payment of tax by a company

  23.  Determination of estimated debit

  24.  Liability to franking deficit tax

  25.  Insertion of new sections:

       160AQKA. Self-determination of offsets by companies

       160AQKB. Reliance by Commissioner on claim for offset

  26.  Residence requirement for credit or debit to arise

  27.  Company to keep records

  28.  Cost base etc.

  29.  Annual returns

  30.  Insertion of new section:

       166A. Deemed assessment

  31.  Amendment of assessments

  32.  Payment of interest by taxpayer where assessment or determination is

       amended

  33.  Commissioner may collect tax from person owing money to taxpayer

  34.  Heading to Division 1A of Part VI

  35.  Insertion of new section:

       221AAA. Application

  36.  Insertion of new Division:

       Division 1B - Collection of Tax on Companies and Trustees of certain

       Funds

       221AK.  General interpretative provisions

       221AL.  Net capital gains to be disregarded in making certain

               calculations

       221AM.  When income tax becomes due and payable

       221AN.  Modified application of Division for certain entities

               with substituted accounting periods

       221AO.  Liability to make payments under this Division

       221AP.  When initial payment to be made

       221AQ.  Amount of initial payment

       221AR.  Power of relevant entity to revise estimate in

               certain circumstances

       221AS.  Statement as to basis of estimate

       221AT.  Circumstances in which initial payment not required

       221AU.  Election to make single payment

       221AV.  Power of Commissioner to reduce amount of initial payment

               or waive initial payment

       221AW.  Power of Commissioner to vary estimate of income tax

       221AX.  Initial payment avoidance arrangements

       221AY.  Additional tax if income or deduction transferred under

               avoidance scheme

       221AZ.  Additional payments to form part of initial payment

       221AZA. Refund to reduce initial payment of tax

       221AZB. Notional tax

       221AZC. Modification of notional tax for certain entities with

               substituted early accounting periods

       221AZD. Final tax liability

       221AZE. Additional tax if estimate incorrect

       221AZF. Crediting of payments

  37.  Liability to provisional tax

  38.  Interpretation

  39.  Deductions from certain withdrawals from film accounts

  40.  Penalty for failure to keep or furnish documents or information

  41.  Penalty for false or misleading statements

  42.  Repeal of section and substitution of new section:

       262A.  Keeping of records

  43.  Taxable contributions

  44.  Fixed interest complying ADFs - exemption of income attributable to

       certain 25 May 1988 deposits

  45.  Rebates

  46.  Application of certain amendments

  47.  Transitional - section 69 of the amended Act

  48.  Transitional - subsection 113 (2) of the amended Act

  49.  Transitional - section 274 of the amended Act

PART 4 - AMENDMENT OF THE TAXATION ADMINISTRATION ACT 1953

  51.  Principal Act

  52.  Interpretation

  53.  Penalty taxes to be alternative to prosecution for certain offences


TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990 - LONG TITLE

 

                   An Act to amend the law relating to taxation

 

PART 1 - PRELIMINARY

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 1

Short title [see Note 1]

 

1. This Act may be cited as the Taxation Laws Amendment Act (No. 5) 1989.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 2

Commencement [see Note 1]

 

  2. (1) Subject to subsection (2), this Act commences on the day on which it

receives the Royal Assent.

  (2) Subparagraph 78 (1) (a) (xcvi) of the Income Tax Assessment Act 1936

inserted by section 9 of this Act is to be taken to have come into effect on

10 November 1989.

 

PART 2 - AMENDMENT OF THE CRIMES (TAXATION OFFENCES) ACT 1980

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 3

Principal Act

 

  3. In this Part, "Principal Act" means the Crimes (Taxation Offences) Act

1980.*1*

*1* No. 156, 1980, as amended. for previous amendments, see No. 123, 1984; No.

47, 1985; Nos. 41, 48, 76 and 154, 1986; Nos. 58, 61, 140 and 145, 1987; and

97, 1988.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 4

Interpretation

 

  4. Section 3 of the Principal Act is amended:

  (a) by inserting "221ay, 221aze" in paragraph (b) of the definition of

"income tax" after "221ag";

  (b) by inserting after paragraph (c) of that definition the following

paragraph:

  "(ca)  any initial payment of income tax that is required to be made under

Division 1b of Part VI of the Income Tax Assessment Act;".

 

PART 3 - AMENDMENT OF THE INCOME TAX ASSESSMENT ACT 1936

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 5

Principal Act

 

  5. In this Part, "Principal Act" means the Income Tax Assessment Act

1936.*2*

*2* No. 27, 1936, as amended. For previous amendments, see No. 88, 1936; No.

5, 1937; No. 46, 1938; No. 30, 1939; Nos. 17 and 65, 1940; Nos. 58 and 69,

1941; Nos. 22 and 50, 1942; No. 10, 1943; Nos. 3 and 28, 1944; Nos. 4 and 37,

1945; No. 6, 1946; Nos. 11 and 63, 1947; No. 44, 1948; No. 66, 1949; No. 48,

1950; No. 44, 1951; Nos. 4, 28 and 90, 1952; Nos. 1, 28, 45 and 81, 1953; No.

43, 1954; Nos. 18 and 62, 1955; Nos. 25, 30 and 101, 1956; Nos. 39 and 65,

1957; No. 55, 1958; Nos. 12, 70 and 85, 1959; Nos. 17, 18, 58 and 108, 1960;

Nos. 17, 27 and 94, 1961; Nos. 39 and 98, 1962; Nos. 34 and 69, 1963; Nos. 46,

68, 110 and 115, 1964; Nos. 33, 103 and 143, 1965; Nos. 50 and 83, 1966; Nos.

19, 38, 76 and 85, 1967; Nos. 4, 70, 87 and 148, 1968; Nos. 18, 93 and 101,

1969; No. 87, 1970; Nos. 6, 54 and 93, 1971; Nos. 5, 46, 47, 65 and 85, 1972;

Nos. 51, 52, 53, 164 and 165, 1973; No. 216, 1973 (as amended by No. 20,

1974); Nos. 26 and 126, 1974; Nos. 80 and 117, 1975; Nos. 50, 53, 56, 98, 143,

165 and 205, 1976; Nos. 57, 126 and 127, 1977; Nos. 36, 57, 87, 90, 123, 171

and 172, 1978; Nos. 12, 19, 27, 43, 62, 146, 147 and 149, 1979; Nos. 19, 24,

57, 58, 124, 133, 134 and 159, 1980; Nos. 61, 92, 108, 109, 110, 111, 154 and

175, 1981; Nos. 29, 38, 39, 76, 80, 106 and 123, 1982; Nos. 14, 25, 39, 49,

51, 54 and 103, 1983; Nos. 14, 42, 47, 63, 76, 115, 124, 165 and 174, 1984;

No. 123, 1984 (as amended by No. 65, 1985); Nos. 47, 49, 104, 123, 168 and

174, 1985; No. 173, 1985 (as amended by No. 49, 1986); Nos. 41, 46, 48, 51,

109, 112 and 154, 1986; No. 49, 1986 (as amended by No. 141, 1987); No. 52,

1986 (as amended by No. 141, 1987); No. 90, 1986 (as amended by No. 141,

1987); Nos. 23, 58, 61, 120, 145 and 163, 1987; No. 62, 1987 (as amended by

No. 108, 1987); No. 108, 1987 (as amended by No. 138, 1987); No. 138, 1987 (as

amended by No. 11, 1988); No. 139, 1987 (as amended by Nos. 11 and 78, 1988);

Nos. 8, 11, 59, 75, 78, 80, 87, 95, 97, 127 and 153, 1988; Nos. 2, 11, 56, 70,

73, 105, 107 and 000, 1989; and No. 97, 1989 (as amended by No. 105, 1989).

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 6

Interpretation

 

  6. (1) Section 6 of the Principal Act is amended by omitting paragraph (a)

of the definition of "assessment" in subsection (1) and substituting the

following paragraph:

  "(a)  the ascertainment of:

  (i)  the amount of taxable income; or

  (ii)  in the case of a taxpayer being the trustee of a unit trust that is a

corporate unit trust within the meaning of section 102J - the net income of

the trust as defined by section 102D; or

  (iii)  in the case of a taxpayer being the trustee of a unit trust that is a

public trading trust within the meaning of section 102R - the net income of

the trust as defined by section 102M; or

  (iv)  in the case of any other taxpayer that is the trustee of a trust

estate but excluding a taxpayer that is the trustee of a fund or unit trust

referred to in paragraph (a), (b) or (c) of the definition of 'eligible

entity' in subsection 267 (1) - so much of the net income of the trust estate

as is net income in respect of which the trustee is liable to pay tax;

and of the tax payable on that taxable income or net income; or".

  (2) The amendment made by subsection (1) applies, and is to be taken to have

applied, in respect of all years of income.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 7

Exemption of certain pensions

 

  7. Section 23AD of the Principal Act is amended:

  (a)  by omitting "172" from paragraph (a) of the definition of "excepted

pension" and substituting "237";

  (b)  by omitting from paragraph (3) (e) "172" and substituting "237".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 8

 

  8. Section 69 of the Principal Act is repealed and the following section is

substituted:

Tax-related expenses

  "69. (1) Subject to this section, expenditure (other than expenditure of a

capital nature) incurred by the taxpayer on or after 1 July 1989, to the

extent to which the expenditure is in respect of a tax-related matter, is an

allowable deduction for the year of income in which the expenditure is

incurred.   "(2) For the purposes of the application of this section to a

taxpayer, a reference in this section to a tax-related matter is a reference

to:

  (a)  the management or administration of the income tax affairs of the

taxpayer; or

  (b)  compliance with an obligation imposed on the taxpayer by a law of the

Commonwealth, insofar as that obligation relates to the income tax affairs of

another taxpayer;

but does not include a reference to an offence-related matter.

  "(3) For the purposes of this section, expenditure incurred by the taxpayer

in respect of a tax-related matter is not to be taken to be expenditure of a

capital nature only because the income tax affairs concerned relate to matters

of a capital nature.

  "(4) A deduction is not allowable under subsection (1) in respect of a fee

or commission for professional advice concerning the operation of a law

relating to taxation unless the advice is provided by a recognised

professional tax adviser.

  "(5) A deduction is not allowable under subsection (1) for expenditure that

consists of:

  (a)  income tax; or

  (b)  an amount payable under Part VI; or

  (c)  a financing cost in relation to an amount covered by paragraph (a) or

        (b) "(6) A provision of this Act (including a provision of section 51) that

expressly prevents or restricts the operation of section 51 applies in the

same way to this section.

  "(7) For the purposes of this section, where:

  (a)  a taxpayer dies during a year of income; and

  (b)  the trustee of the estate of the deceased taxpayer incurs expenditure

on or after 1 July 1989 that, if it had been incurred by the taxpayer during

his or her lifetime,  would have been an allowable deduction to the taxpayer

under subsection (1);

then, in the assessment of the trustee upon the assessable income derived by

the deceased taxpayer, the expenditure is to be taken to be expenditure

incurred by the taxpayer during that year of income.

  "(8) If:

  (a)  a deduction has been allowed or is allowable under subsection (1) to a

taxpayer for any expenditure; and

  (b)  that expenditure, or any part of it, is:

  (i)  reimbursed to the taxpayer; or

  (ii)  paid for the taxpayer by another person; or

  (iii)  recouped by the taxpayer from another person;

the assessable income of the taxpayer of the year of income in which the

amount is so reimbursed, paid for or recouped includes that amount.

  "(9) For the purposes of this Act, where property is used by the taxpayer on

or after 1 July 1989 for a tax-related matter, that use of the property by the

taxpayer is to be taken to be for the purpose of producing assessable income

of the taxpayer.

  "(10) Subsection (9) has effect subject to a provision of this Act that

expressly provides that a particular use of property is not to be taken to be

for the purpose of producing assessable income.

  "(11) In this section:

  'financing cost', in relation to an amount (in this definition called the

'financed amount'), means expenditure incurred by the taxpayer to the extent

to which it is incurred in respect of obtaining finance for the financed

amount and, without limiting the generality of the foregoing, includes:

  (a)  interest or a payment in the nature of interest; and

  (b)  expenses of borrowing;

  'income tax' means tax (however described) that is:

  (a)  imposed by an Act other than this Act; and

  (b)  payable under this Act;

  'offence-related matter' means a matter relating to the commission, or

possible commission, of an offence against a law of the Commonwealth, of a

State, of a Territory or of a foreign country and, without limiting the

generality of the foregoing, includes a matter relating to:

  (a)  the investigation of such an offence; and

  (b)  a prosecution for, or other proceedings in relation to, such an

offence;

  'recognised professional tax adviser' means:

  (a)  a registered tax agent (within the meaning of section 251A); or

  (b)  a person exempted under subsection 251L (2) from the operation of

section 251L; or

  (c)  a person who is enrolled as a barrister, a solicitor or a barrister and

solicitor of a federal court or a court of a State or Territory;

  'tax-related matter' has the meaning given by subsection (2).".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 9

Gifts, pensions etc.

 

  9. Section 78 of the Principal Act is amended by adding after subparagraph

(1) (a) (xciv) the following subparagraphs:

    "(xcv)  a public fund established and maintained exclusively for

providing money for the acquisition, construction or maintenance of a building

where:

    (a)  the building is used or to be used solely or principally as

residential accommodation for students whose usual place of residence is in a

rural area and who are undertaking primary or secondary education courses, or

special education programs for children with disabilities, at a school or

schools in the same locality as the residential accommodation; and

    (b)  the capital or recurrent costs of the school or schools are

funded (in whole or in part) by the Commonwealth, a State or a Territory; and

    (c)  the residential accommodation is provided by the Commonwealth, a

State or a Territory, by a public authority or by a company that is not

carried on for the purposes of profit or gain to its individual members and

is, by the terms of the company's constituent document, prohibited from making

any distribution whether in money, property or otherwise, to its members;

  "(xcvi) the Nursing Mothers' Association of Australia;".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 10

Interpretation

 

  10. Section 110 of the Principal Act is amended by inserting in subsection

(1) the following definitions:

  " 'approved form' means a form approved in writing by the Commissioner for

the purposes of the provision in which the expression appears;

   'authorised actuary', in relation to a life assurance company, means:

  (a)  if the company is registered under the Life Insurance Act 1945 - the

appointed actuary of the company (within the meaning of that Act); or

  (b)  in any other case - a Fellow or an Accredited Member of the Institute

of Actuaries of Australia;

   'investment component', in relation to a premium received in

respect of a life assurance policy, means so much of the premium as does not

consist of a risk component;

   'risk component', in relation to a premium received in respect of a

life assurance policy, means the risk component (if any) of the premium worked

out on the basis specified in the regulations;".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 11

 

  11. After section 111a of the Principal Act the following section is

inserted:

Deductions to be allowable for expenditure incurred in gaining the investment

component of certain premiums

  "111AA. (1) This section applies to premiums received in respect of life

assurance policies other than:

  (a)  superannuation premiums; or

  (b)  premiums received in respect of exempt policies; or

  (c)  specified roll-over amounts.

  "(2) For the purposes of determining the deductions allowable to a life

assurance company, the investment component of a premium to which this section

applies is to be treated as assessable income.

  "(3) This section does not apply to premiums derived by a life assurance

company in a year of income unless the company obtains a certificate by an

authorised actuary, in the approved form, with respect to the operation of

this section, before the date of lodgment of the return of income of the

company of the year of income or within such further time as the Commissioner

allows.".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 12

Deductions not allowable for expenditure incurred in gaining certain premium

income

 

  12. Section 112 of the Principal Act is amended:

  (a) by omitting from subsection (1) all the words after "exclusively" and

substituting the following words and paragraphs:

     "in gaining:

  (a)  premiums that are excluded from assessable income by section 111 other

than:

    (i)  superannuation premiums; or

    (ii)  premiums to which section 111AA applies; or

  (b)  the risk component of premiums to which section 111AA applies.";

  (b) by omitting subsection (2).

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 13

 

  13. (1) After section 160AI of the Principal Act the following sections are

inserted:

Self-determination of credits by taxpayers

  "160AIA. A person may, for the purpose of making a claim for a credit in

relation to a year of income (being a claim made in the return furnished by

the person in respect of income of that year of income or made after the

furnishing of that return), determine:

  (a)  whether a credit is allowable to the person; and

  (b)  if the person determines that a credit is so allowable - the amount of

the credit.

Reliance by Commissioner on claim for credit

  "160AIB. (1) Where a person makes a claim for a credit (whether in a return

of income of a year of income or otherwise), the Commissioner may, for the

purpose of determining whether a credit is allowable to the person and, if the

Commissioner determines that a credit is allowable, for the purpose of

determining the amount of the credit, accept, in whole or in part, any

statement in the claim that is relevant to the determination.

  "(2) Despite subsection (1), where, in a document furnished with a claim for

a credit, a question is raised that is relevant to the determination of the

claim, the Commissioner must give attention to that question.

  "(3) In deciding whether a determination of a claim for a credit is correct,

any determination, opinion or judgment of the Commissioner made, held or

formed in connection with the consideration of an objection against the

determination of the claim is deemed to have been made, held or formed when

the determination of the credit was made.".

  (2) The sections inserted by subsection (1) apply to credits in respect of

tax in respect of the year of income ending on 30 June 1990 and in respect of

all subsequent years of income.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 14

 

  14. (1) After section 160AJ of the Principal Act the following section is

inserted:

Deemed determination of credit by Commissioner

  "160AJA. Where a person who has furnished a return in respect of income of a

year of income makes in that return or at a later time a claim for a credit in

relation to that year of income that specifies the amount of the credit

claimed:

  (a)  the Commissioner is deemed to have made, at the time when the claim was

made, a determination:

  (i)  that a credit is allowable to the person; and

  (ii)  that the amount of the credit is the amount specified in the claim;

and

  (b)  the claim is deemed to be a notice of the deemed determination and to

be under the hand of the Commissioner; and

  (c)  the notice referred to in paragraph (b) is deemed to have been served

on the person when the claim was made.".

  (2) The section inserted by subsection (1) applies to credits in respect of

tax in respect of the year of income ending on 30 June 1990 and in respect of

all subsequent years of income.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 15

Amendment of determinations

 

  15. (1) Section 160AK of the Principal Act is amended:

  (a) by omitting from subsection (1) "subsections (2) and (3)" and

substituting "subsection (2)";

  (b) by omitting subsections (2) and (3) and substituting the following

subsection:

  "(2) An amendment of a determination is not to be made after the end of 4

years after the original determination date except to correct an error in

calculation or a mistake of fact or in consequence of an adjustment, credit or

refund of Australian tax or foreign tax.".

  (2) The amendments made by subsection (1) apply to determinations of credits

in respect of tax in respect of the year of income ending on 30 June 1990 and

in respect of all subsequent years of income.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 16

Information for credit to be furnished within 4 years

 

  16. (1) Section 160AM of the Principal Act is amended by omitting "3" (first

occurring) and substituting "4".

  (2) The amendment made by subsection (1) applies to determinations of

credits in respect of tax in respect of the year of income ending on 30 June

1990 and in respect of all subsequent years of income.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 17

Interpretation

 

  17. (1) Section 160APA of the Principal Act is amended:

  (a)  by inserting "any of the following" after "does not include" in the

definition of "frankable dividend";

  (b)  by omitting "or" from the end of paragraph (d) of the definition of

"frankable dividend";

  (c)  by adding at the end of the definition of "frankable dividend" the

following paragraph:

    "(f)  a dividend that is a debt dividend for the purposes of section

46d;".

  (2) Section 160APA of the Principal Act is amended by inserting after

subparagraph (a) (i) of the definition of "applicable general company tax

rate" the following subparagraphs:

  "(ia)  the making of an initial payment of tax by a company in respect of a

year of income under section 221AP;

  (ib)  the making of any further payment by a company on account of tax in

respect of a year of income under Division 1b of Part VI;

  (ic)  the payment of a refund to a company in respect of a year of income

under Division 1B of Part VI;".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 18

Residence requirement for credit to arise in relation to year of income

 

  18. Section 160APK of the Principal Act is amended by inserting after

paragraph (a) the following word and paragraph:

  "or (aa)  the making of an initial payment of tax that the company is

required to make under section 221AP in respect of a year of income or the

making of a further payment by the company on account of tax in respect of

that year of income; or".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 19

 

  19. After section 160APM of the Principal Act the following sections are

inserted:

Initial payment of tax

  "160APMA. Where, on a particular day, a payment is made by a company in

respect of an initial payment of tax that the company is required to make

under section 221AP in respect of a year of income, there arises on that day a

franking credit of the company equal to the adjusted amount in relation to the

amount paid.

Subsequent payments of tax before determination of taxable income

  "160APMB. If, after a company makes an initial payment of tax referred to in

section 160APMA in respect of a year of income and before the day on which the

company makes a final payment of tax in respect of that year of income under

section 221AZD, the company makes a further payment on account of tax in

respect of that year of income, there arises, on the day on which that further

payment is made, a franking credit of the company equal to the adjusted amount

in relation to the amount of that further payment.".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 20

 

  20. After section 160APN of the Principal Act the following section is

inserted:

Notional receipt of company tax assessment

  "160APNA. Where, on a particular day, a company is, under section 166a,

deemed to have been served with a notice of an original company tax assessment

for a year of income, there arises, on that day, a franking credit of the

company equal to the adjusted amount in relation to the company tax.".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 21

Residence requirement for debit to arise in relation to year of income

 

  21. Section 160APW of the Principal Act is amended by inserting after

paragraph (a) the following word and paragraph:

  "or (aa)  the making of an initial payment of tax that the company is

required to make under section 221AP in respect of a year of income or the

making of a further payment by the company on account of tax in respect of

that year of income; or".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 22

 

  22. After section 160APY of the Principal Act the following sections are

inserted:

Crediting of initial payment of tax by a company

  "160APYA. Where an initial payment of tax made by a company under section

221AP in respect of a year of income is credited by the Commissioner under

section 221AZF, there arises, on the day on which the payment is credited, a

franking debit of the company equal to the adjusted amount in relation to the

amount so credited.

Refunds in respect of initial payment of tax by a company

  "160APYB. Where a company receives an amount as a refund under subsection

221AQ (3), 221AR (6), 221AU (4), 221AV (4), 221AW (5) or 221AX (14), there

arises, on the day on which the company receives the amount, a franking debit

of the company equal to the adjusted amount in relation to the amount

received.".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 23

Determination of estimated debit

 

  23. Section 160AQD of the Principal Act is amended:

  (a) by adding at the end of paragraph (1) (b) "or an initial payment of tax

under section 221AP";

  (b) by inserting in paragraph (1) (c) "or of the initial payment of tax"

after "instalments".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 24

Liability to franking deficit tax

 

  24. Section 160aqj of the Principal Act is amended by adding at the end the

following subsection:

  "(2) Where a company that has, in respect of a year of income:

  (a)  given a notice under paragraph 221AQ (1) (a); and

  (b)  made an initial payment of tax under section 221AP;

would, but for this subsection, be liable to pay tax under subsection (1) of

this section in respect of the franking year in which the last day of that

year of income occurs (in this subsection called the 'relevant franking

deficit tax'):

  (c)  if the amount of the relevant franking deficit tax does not exceed the

amount of the initial payment of tax - the company is not liable to pay tax

under subsection (1) in respect of that franking year; or

  (d)  if the amount of the relevant franking deficit tax exceeds the amount

of the initial payment of tax - the tax that the company is liable to pay

under subsection (1) in respect of that franking year is an amount equal to

the excess.".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 25

 

  25. (1) After section 160AQK of the Principal Act the following sections are

inserted:

Self-determination of offsets by companies

  "160AQKA. A company may, for the purpose of making a claim for an offset in

relation to a year of income (being a claim made in the return furnished by

the company in respect of income of that year of income or made after the

furnishing of that return), determine:

  (a)  whether an offset is allowable to the company; and

  (b)  if the company determines that an offset is so allowable - the amount

of the offset.

Reliance by Commissioner on claim for offset

  "160AQKB. (1) Where a company makes a claim for an offset (whether in a

return of income of a year of income or otherwise), the Commissioner may, for

the purpose of determining whether an offset is allowable to the company and,

if the Commissioner determines that an offset is allowable, for the purpose of

determining the amount of the offset, accept, in whole or in part, any

statement in the claim that is relevant to the determination.

  "(2) Despite subsection (1), where, in a document furnished with a claim for

an offset, a question is raised that is relevant to the determination of the

claim, the Commissioner must give attention to that question.

  "(3) In deciding whether a determination of a claim for an offset is

correct, any determination, opinion or judgment of the Commissioner made, held

or formed in connection with the consideration of an objection against the

determination of the claim is deemed to have been made, held or formed when

the determination of the offset was made.".

  (2) The sections inserted by subsection (1) apply to offset determinations

in respect of company tax in respect of the franking year ending on 30 June

1990 and in respect of all subsequent franking years.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 26

Residence requirement for credit or debit to arise

 

  26. Section 160ARDD of the Principal Act is amended by adding at the end of

paragraph (2) (a) "or an initial payment of tax that a company is required to

make under section 221AP".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 27

Company to keep records

 

  27. Section 160ASC of the Principal Act is amended:

  (a) by adding at the end of paragraph (b) "and";

  (b) by omitting paragraph (c);

  (c) by omitting "(2) (a)" from paragraph (d) and substituting "(5) (a)".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 28

Cost base etc.

 

  28. Section 160ZH of the Principal Act is amended by omitting from

subsections (5) and (7) all the words after "but excluding any expenditure"

and substituting the following words and paragraphs:

  "incurred by way of fees or commission for professional advice that:

  (e)  concerns the operation of this Act; and

  (f)  was not provided by a recognised professional tax adviser (within the

meaning of section 69).".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 29

Annual returns

 

  29. (1) Section 161 of the Principal Act is amended by omitting subsection

(1) and substituting the following subsections:

  "(1) Every person must, if required by the Commissioner by notice published

in the Gazette, furnish to the Commissioner:

  (a)  in whichever of the forms of return provided by the Commissioner for

the purpose is applicable; and

  (b)  in the prescribed manner; and

  (c)  within the period specified in the notice or such further period as the

Commissioner allows;

a return signed by the person, containing such information as is required by

the form of return in relation to:

  (d)  the income (other than income upon which withholding tax is payable),

and profits or gains of a capital nature, derived by the person during the

year of income; and

  (e)  any deductions or losses, being losses of a capital nature, claimed by

the person.

  "(1a) The Commissioner may, in the notice, exempt from liability to furnish

returns such classes of persons not liable to pay income tax as the

Commissioner thinks fit, and a person so exempted need not furnish a return

unless the person is required by the Commissioner to do so.".

  (2) The amendment made by subsection (1) applies in respect of the year of

income ending on 30 June 1990 and in respect of all subsequent years of

income.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 30

 

  30. After section 166 of the Principal Act the following section is

inserted:

Deemed assessment

  "166A. Where a taxpayer that is a relevant entity within the meaning of

Division 1b of Part VI furnishes a return in respect of income of a year of

income to which that Division applies:

  (a)  the Commissioner is deemed to have made:

  (i)  if the entity furnishes the return on or before the day by which the

entity is required to make a payment under section 221azd in respect of that

year of income - on that day; or

  (ii)  if the entity furnishes the return after that day - on the day on

which the return is furnished;

an assessment of the relevant taxable income or net income, as the case may

be, and of the tax payable on that taxable income or net income, being those

respective amounts as specified in the return; and

  (b)  on and after the day on which the Commissioner is deemed to have made

the assessment, the return is deemed to be a notice of the  deemed assessment

and to be under the hand of the Commissioner; and

  (c)  the notice referred to in paragraph (b) is deemed to have been served

on the entity on the day on which the Commissioner is deemed to have made the

assessment.".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 31

Amendment of assessments

 

  31. (1) Section 170 of the Principal Act is amended:

  (a) by omitting subsections (2), (3) and (4) and substituting the following

subsections:

  "(2) Subject to this section, where there has been an avoidance of tax, the

Commissioner may:

  (a)  if the Commissioner is of the opinion that the avoidance of tax is due

to fraud or evasion - at any time; and

  (b)  in any other case:

  (i)  where the taxpayer is a relevant entity within the meaning of Division

1b of Part VI and the assessment is deemed by section 166A to have been made -

within 4 years from the date upon which the assessment is so deemed to have

been made; or

  (ii)  otherwise - within 4 years from the date upon which the tax became due

and payable under the assessment;

amend the assessment by making such alterations in it or additions to it as

the Commissioner thinks necessary to correct the assessment.

  "(3) An amendment effecting a reduction in the liability of a taxpayer under

an assessment is not to be made after the end of 4 years from:

  (a)  where the taxpayer is a relevant entity within the meaning of Division

1B of Part VI and the assessment is deemed by section 166A to have been made -

the date upon which the assessment is so deemed to have been made; o   (b)  in

any other case - the date upon which the tax became due and payable under the

assessment.

  "(4) Where:

  (a)  the Commissioner has begun an examination of the affairs of a taxpayer;

and

  (b)  the examination was not completed within the period within which the

Commissioner may amend an assessment to which the examination relates under

subsection (2) or, if that period has been extended by any previous order or

orders of the Federal Court of Australia made under subsection (4a), or by any

previous consent or consents of the taxpayer given under subsection (4b),

within that period as so extended;

the Commissioner may, before the end of the period referred to in paragraph

        (b) of this subsection, apply to the Federal Court for an order extending, or

request the taxpayer to consent to the extension of, the period within which

the Commissioner may amend the assessment under paragraph (2)(b).

  "(4a) If, on application made to the Federal Court of Australia in

accordance with subsection (4), the Court is satisfied that it was not

reasonably practicable, or it was inappropriate, for the Commissioner to

complete the examination within the period referred to in paragraph (4)(b)

because of any action taken by the taxpayer or any failure of the taxpayer to

take action that it would have been reasonable for the taxpayer to take, the

Court may make an order extending the period within which the Commissioner may

amend the assessment under paragraph (2)(b) for such period as the Court

considers appropriate.

  "(4b) If a request is made to the taxpayer in accordance with subsection

(4), the taxpayer may, by writing, consent to the extension of the period

within which the Commissioner may amend the assessment under paragraph (2)(b)

for such period as is specified in the instrument of consent.

  "(4c) In subsection (4a):

  (a)  a reference to action taken by a taxpayer includes a reference to:

  (i)  the institution by a taxpayer of a proceeding before a court or

tribunal; and

  (ii)  the doing by a taxpayer of any act or thing that hinders or prevents

the exercise by the Commissioner or an officer authorised by the Commissioner

of any power under section 263; and

  (b)  a reference to a failure by a taxpayer to take action includes a

reference to the failure by a taxpayer to comply with subsection 263 (3) or a

requirement made under section 264.";

  (b)  by omitting from subsections (5), (6), (9) and (9a) "3" and

substituting "4".

  (2) The amendments made by subsection (1) apply to assessments in respect of

income of the year of income ending on 30 June 1990 or any subsequent year of

income that are made after the commencement of this section.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 32

Payment of interest by taxpayer where assessment or determination is amended

 

  32. (1) Section 170aa of the Principal Act is amended:

  (a) by inserting after subsection (1) the following subsection:

  "(1a) Subject to this section, where an amendment of a determination

reducing a credit, or an offset within the meaning of Part IIIaa, allowable to

a taxpayer is made, the taxpayer is liable to pay interest to the

Commissioner, calculated in accordance with subsection (4), on the amount (in

this section also called the 'principal amount') by which the amount of the

credit or offset allowable to the taxpayer under the amended determination is

less than the amount of the credit or offset allowable to the taxpayer under

the determination that was amended.";

  (b) by inserting in subsections (2) and (3) "or (1a)" after "(1)";

  (c) by inserting in subsection (4) "or under subsection (1a) in relation to

an amended determination (in this subsection called the 'amended

determination')" before "in respect of a year of income";

  (d) by inserting in subparagraph (4) (a) (i) "or (1a)" after "(1)";

  (e) by inserting in paragraph (4) (a) "or the amended determination, as the

case may be," after "current amended assessment";

  (f) by inserting in subsection (8) ", (1a)" after "(1)".

  (2) The amendments made by subsection (1) apply in respect of amendments of

determinations where those last-mentioned amendments are made after the

commencement of this section.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 33

Commissioner may collect tax from person owing money to taxpayer

 

  33. Section 218 of the Principal Act is amended:

  (a) by inserting in paragraph (b), and in subparagraph (iii) of paragraph

        (c), of the definition of "tax" in subsection (6b) "1b," after "1a,";

  (b) by inserting in the definition of "taxpayer" in subsection (6b)b," after

"1A,".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 34

Heading to Division 1a of Part VI

 

  34. The heading to Division 1A of Part VI is amended by adding at the end

"in respect of Years of Income before the Year of Income ending on 30 June

1990".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 35

 

  35. Before section 221AA of the Principal Act the following section is

inserted in Division 1A of Part VI:

Application

  "221AAA. This Division does not apply in respect of income of the year of

income ending on 30 June 1990 or of any subsequent year of income.".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 36

 

  36. After Division 1A of Part VI of the Principal Act the following Division

is inserted:

     "Division 1B - Collection of Tax on Companies and Trustees of

                           certain Funds

General interpretative provisions

  ''221AK. (1) In this Division, unless the contrary intention appears:

  'AD/RLA component' has the same meaning as in Division 8 of Part

III;

  'amount', in relation to an estimate by a relevant entity of the

income tax that will be payable in respect of its taxable income of a year of

income, includes a nil amount;

  'company' includes a trustee of a corporate unit trust and a trustee

of a public trading trust but does not otherwise include a company in the

capacity of a trustee;

  'corporate unit trust' means a unit trust that is a corporate unit

trust within the meaning of Division 6B of Part III;

  'CS/RA component':

  (a)  in relation to the taxable income of a life assurance company - has

the same meaning as in Division 8 of Part III; or

  (b)  in relation to the taxable income of a registered organization - has

the

same meaning as in Division 8A of Part III;

  'EIB component' has the same meaning as in Division 8A of

Part III;

  'initial payment of tax' means a payment of tax that is required by

section 221AP to be made by a relevant entity;

  'month' means one of the 12 months of the year;

  'NCS component':

  (a)  in relation to the taxable income of a life assurance company - has

the same meaning as in Division 8 of Part III; or

  (b)  in relation to the taxable income of a registered organization - has

the

same meaning as in Division 8A of Part III;

  'non-fund component' has the same meaning as in Division 8 of Part

III;

  'public trading trust' means a unit trust that is a public trading

trust within the meaning of Division 6C of Part III;

  'relevant entity', in relation to a year of income, means:

  (a)  a company; or

  (b)  any person in the capacity of a trustee of:

  (i)  a fund that is an eligible ADF in relation to that year of income; or

  (ii)  a fund that is an eligible superannuation fund in relation to that

year

of income; or

  (iii)  a unit trust that is a pooled superannuation trust in relation to

that

year of income;

  'registered organization' has the same meaning as in Division

8A of Part III;

  'taxable income':

  (a)  in relation to a relevant entity being the trustee of a corporate unit

trust or of a public trading trust, means the net income of the corporate

unit

trust or of the public trading trust, as the case may be; and

  (b)  in relation to a relevant entity being the trustee of a fund or unit

trust referred to in paragraph (b) of the definition of 'relevant entity',

means the taxable income of the fund or trust, as the case may be;

  'year of income to which this Division applies' means the year of

income ending on 30 June 1990 or a subsequent year of income.

  ''(2) Subject to subsection (1), expressions used in this Division that

are defined in section 267 have, in this Division, the same meanings as they

have in that section.

  ''(3) In sections 206, 207, 208, 209, 214, 254, 255, 258 and 259, but not

in any other section, 'income tax' or 'tax' includes a payment that a

relevant

entity is required to make as an initial payment of tax or a final payment of

tax under this Division.

  ''(4) In sections 208, 209, 214, 254, 255, 258 and 259, but not in any

other section, 'income tax' or 'tax' includes additional tax payable under

section 221AY or 221AZE.

  ''(5) The ascertainment of the amount of any notional tax, or the amount

of any initial payment of tax, in accordance with this Division is not to be

taken to be an assessment within the meaning of any of the provisions of this

Act.

  ''(6) The amount of an initial payment of tax is to be calculated

to the nearest dollar.

Net capital gains to be disregarded in making certain calculations

  "221AL. In the making of an estimate for the purpose of calculating the

amount of an initial payment of tax to be made by a relevant entity under this

Division, a reference in this Division to the income tax that will be or would

be payable in respect of the taxable income of the entity of a year of income

is, in the case of an entity that is a company whose assessable income of that

year of income included a net capital gain within the meaning of Part IIIa, to

be taken to be a reference to:

  (a)  in the case of a company other than a life assurance company or a

registered organization - the income tax that would be payable in respect of

the amount that would have been the taxable income of that company of that

year of income if that net capital gain had not been included; and

  (b)  in the case of a life assurance company - the sum of:

  (i)  the income tax that will be payable in respect of the CS/RA component

of the company's taxable income of that year of income; and

    (ii)  in relation to each of the NCS component, the non-fund component

(if any) and the AD/RLA component of the company's taxable income of that year

of income:

  (a)  if the part of the company's assessable income of that year of income

to which that component relates included a net capital gain within the meaning

of Part IIIA - the income tax that would be payable in respect of the amount

that would have been that component if that net capital gain had not been

included; or

  (b)  otherwise - the income tax that will be payable in respect of that

component; and

  (c)  in the case of a registered organization - the sum of:

    (i)  the income tax that will be payable in respect of the CS/RA

component of the organization's taxable income of that year of income; and

    (ii)  in relation to each of the NCS component and the EIB component

of the organization's taxable income of that year of income:

  (a)  if the part of the organization's assessable income of that year of

income to which that component relates included a net capital gain within the

meaning of Part IIIA - the income tax that would be payable in respect of the

amount that would have been that component if that net capital gain had not

been included; or

  (b)  otherwise - the income tax that will be payable in respect of that

component.

When income tax becomes due and payable

  "221AM. For the purposes of this Act, income tax in respect of a relevant

entity's taxable income of a year of income to which this Division applies

becomes due and payable:

  (a)  if the entity furnishes a return in respect of its income of that year

of income on or before the day by which the entity is required to make a

payment under section 221AZD in respect of its taxable income of that year of

income - on that day; or

  (b)  if the entity furnishes a return in respect of that income after that

day - on the day on which the return is furnished.

Modified application of Division for certain entities with substituted

accounting periods

  "221AN. (1) Subject to subsection (2), this section applies, in respect of a

year of income to which this Division applies, to a relevant entity that has

adopted or adopts under this Act, in lieu of that year of income, an

accounting period ending on a date (in this section called the 'substituted

date') other than 30 June (in this section called the 'relevant 30 June').

  "(2) This section does not apply to an entity in respect of a year of income

if the substituted date is earlier than the relevant 30 June but not earlier

than 1 June next preceding the relevant 30 June.

  "(3) For the purposes of the application of this Division to an entity to

which this section applies in respect of a year of income:

  (a)  if the substituted date is earlier than 31 December next preceding the

relevant 30 June:

    (i)  the reference in section 221AP to 28 July next following a year

of income is to be taken to be a reference to 28 January next following that

31 December; and

    (ii)  the reference in section 221AZD to 15 March next following a

year of income is to be taken to be a reference to:

  (a)  in the case of an entity that has made an election under subsection

221AU (1) in respect of the year of income - 15 June next following that 31

December; or

  (b)  in any other case - 15 September next following that 31 December; or

  (b)  if the substituted date is not earlier than 31 December next preceding

the relevant 30 June but is earlier than 1 June next preceding the relevant 30

June:

    (i)  the reference in section 221AP to 28 July next following a year

of income is to be taken to be a reference to the 28th day of the month next

following the month in which the substituted date occurs; and

    (ii)  the reference in section 221AZD to 15 March next following a

year of income is to be taken to be a reference to:

  (a)  in the case of an entity that has made an election under subsection

221AU (1) in respect of the year of income - the 15th day of the sixth month

next following the month in which the substituted date occurs; or

  (b)  in any other case - the 15th day of the ninth month next following the

month in which the substituted date occurs; or

  (c)  if the substituted date is later than the relevant 30 June:

    (i)  the reference in section 221AP to 28 July next following a year

of income is to be taken to be a reference to the 28th day of the month next

following the month in which the substituted date occurs; and

    (ii)  the reference in section 221AZD to 15 March next following a

year of income is to be taken to be a reference to:

  (a)  in the case of an entity that has made an election under subsection

221AU (1) in respect of the year of income - the 15th day of the sixth month

next following the month in which the substituted date occurs; or

  (b)  in any other case - the 15th day of the ninth month next following the

month in which the substituted date occurs;

or the 15th day of June next following the relevant 30 June, whichever is the

earlier day.

Liability to make payments under this Division

  "221AO. For the purpose of securing generally the more expeditious

collection of income tax payable by relevant entities, a relevant entity is

liable to make payments of income tax in accordance with this Division in

respect of its taxable income of each year of income to which this Division

applies.

When initial payment to be made

  "221AP. Subject to sections 221AN, 221AT, 221AU and 221AV, a relevant entity

must make an initial payment of tax in respect of its taxable income of a year

of income to which this Division applies not later than 28 July next following

that year of income.

Amount of initial payment

  "221AQ. (1) Subject to this Division, the amount of an initial payment of

tax to be made by a relevant entity in respect of its taxable income of a year

of income is 85% of:

  (a)  the amount specified in a written notice given by the entity to the

Commissioner to be the amount estimated by the entity to be the income tax

that will be payable in respect of its taxable income of that year of income;

or

  (b)  if no such notice is given - the entity's notional tax in respect of

that year of income.

  "(2) A notice given under paragraph (1) (a) in relation to a year of

income:

  (a)  must specify the amount estimated by the entity to be the income tax

that will be payable in respect of its taxable income of that year of income;

and

  (b)  is irrevocable.

  "(3) If:

  (a)  a relevant entity gives a notice under paragraph (1) (a) at a time

after the relevant entity made the initial payment of tax in respect of its

taxable income of the year of income to which the notice relates; and

  (b)  the entity had paid as that initial payment an amount that was not less

than 85% of its notional tax in respect of that year of income; and

  (c)  the amount estimated by the entity to be the income tax that will be

payable in respect of its taxable income of that year of income is less than

its notional tax in respect of that year of income;

the Commissioner must, as soon as practicable, refund to the entity an amount

equal to 85% of the difference between the amount so estimated and that

notional tax.

Power of relevant entity to revise estimate in certain circumstances

  "221AR. (1) A relevant entity that had given a notice under paragraph 221AQ

(1) (a) in respect of a year of income at the time when the initial payment of

tax in respect of its taxable income of that year of income was made may,

before the date by which it is required to make a final payment of tax in

respect of its taxable income of that year of income, by written notice given

to the Commissioner, make a revised estimate of the amount of the income tax

that will be payable in respect of its taxable income of that year of income

in substitution for the estimate made by it under that paragraph.

  "(2) An entity is entitled to make only one revised estimate under

subsection (1) in respect of each year of income.

  "(3) If the Commissioner has made a determination under section 221AW in

respect of the income tax that will be payable by a relevant entity in respect

of its taxable income of a year of income, the entity is not entitled to make

a revised estimate under subsection (1) of this section of that income tax

that would be less than the amount determined by the Commissioner.

  "(4) If, by virtue of a determination made by the Commissioner under section

221AX, the amount estimated by a relevant entity under paragraph 221AQ (1) (a)

to be the income tax that will be payable in respect of its taxable income of

a year of income is increased, the entity is not entitled to make a revised

estimate under subsection (1) of this section of that income tax that would be

less than the increased amount.

  "(5) If a relevant entity makes a revised estimate under subsection (1) of

the income tax that will be payable in respect of its taxable income of a year

of income that exceeds the amount of the estimate of that income tax that was

made by the entity under paragraph 221AQ (1) (a), the entity must pay to the

Commissioner, when notice of the revised estimate is given to the

Commissioner, an amount equal to 85% of the excess.

  "(6) If a relevant entity makes a revised estimate under subsection (1) of

the income tax that will be payable in respect of its taxable income of a year

of income that is less than the amount of the estimate of that income tax that

was made by the entity under paragraph 221AQ (1) (a), the Commissioner must,

as soon as practicable, refund to the entity an amount equal to 85% of the

difference.

  "(7) Nothing in this section prevents a relevant entity that has made an

initial payment of tax in respect of its taxable income of a year of income

from making a further payment or payments on account of tax in respect of that

taxable income at any time or times before the day on which the entity makes a

final payment of tax in respect of that taxable income under section 221AZD.

Statement as to basis of estimate

  "221AS. If a relevant entity makes an estimate or revised estimate of the

income tax that will be payable in respect of its taxable income of a year of

income, the entity must, if required to do so by the Commissioner by written

notice served on the entity, give to the Commissioner, within the period

specified in the notice, a written statement showing the basis on which the

estimate or revised estimate, as the case may be, was made and containing such

information and explanations in connection with the application of this

Division (including, without limiting the generality of the foregoing,

information and explanations as to any matters referred to in

sub-subparagraphs 221AX (4) (b) (ii) (a) to (h) (inclusive)) as are specified

in the notice.

  Penalty: $3,000.

Circumstances in which initial payment not required

  "221AT. (1) Where the amount ascertained in relation to a relevant entity in

respect of a year of income to which this Division applies in accordance with

the formula 100 X otherwise required initial payment

                               85

is less than:

  (a)  except where paragraph (b) applies - $1,000; or

  (b)  if the Commissioner has determined another amount under subsection (2)

in relation to that year of income - that other amount; then, unless the

Commissioner otherwise determines in relation to the entity or a specified

class of entities in which the entity is included, the entity is not required

to make an initial payment of tax in respect of that year of income.

  "(2) For the purposes of this section, the Commissioner may, by notice

published in the Gazette, determine an amount other than $1,000 to be the

minimum amount in relation to initial payments of tax payable by relevant

entities in respect of taxable income of a specified year of income and each

subsequent year of income.

  "(3) In this section:

  'otherwise required initial payment', in relation to a relevant entity in

respect of a year of income, means the amount that, but for this section,

would be payable by the entity (whether as a result of the giving of a notice

under paragraph 221AQ (1) (a) or otherwise) as an initial payment of tax in

respect of its taxable income of that year of income.

Election to make single payment

  "221AU. (1) Where the amount ascertained in relation to a relevant entity in

respect of a year of income to which this Division applies in accordance with

the formula 100 X otherwise required initial payment

                               85

is not less than the amount applicable under paragraph 221AT (1) (a) or (b),

as the case may be, but is less than:

  (a)  in the case of the year of income ending on 30 June 1990 - $400,000;

or

  (b)  in the case of a subsequent year of income - $20,000; then, unless the

Commissioner otherwise determines in relation to the entity or a specified

class of entities in which the entity is included, the entity may, by written

notice given to the Commissioner, elect that this section is to apply to the

entity in respect of that year of income.

  "(2) Where an election is made by an entity under subsection (1) in respect

of a year of income (in this subsection called the 'relevant year of

income'):

  (a)  the entity is not required to make an initial payment of tax in respect

of its taxable income of the relevant year of income; and

  (b)  for the purposes of the application of this Division to the entity in

respect of the relevant year of income, the reference in section 221AZD to 15

March next following a year of income is, except in the case of an entity to

which section 221AN applies, to be taken to be a reference to 15 December next

following the relevant year of income.

  "(3) An election under subsection (1) is irrevocable.

  "(4) If a relevant entity makes an election under subsection (1) at a time

after the relevant entity made an initial payment of tax in respect of its

taxable income of the year of income to which the election relates, the

Commissioner must, as soon as practicable, refund to the entity the amount

paid. "(5) In this section:

  'otherwise required initial payment', in relation to a relevant entity in

respect of a year of income, means the amount that, but for this section,

would be payable by the entity (whether as a result of the giving of a notice

under paragraph 221AQ (1) (a) or otherwise) as an initial payment of tax in

respect of its taxable income of that year of income.

Power of Commissioner to reduce amount of initial payment or waive initial

payment

  "221AV. (1) The Commissioner may, having regard to the purpose for which

this Division was enacted and to particular circumstances that exist in

relation to a relevant entity, determine:

  (a)  that the amount that, but for this subsection, would be payable by the

entity as an initial payment of tax in respect of its taxable income of a year

of income is to be reduced by such amount as the Commissioner thinks

appropriate; or

  (b)  that the entity is not required to make an initial payment of tax in

respect of its taxable income of a year of income.

  "(2) The particular circumstances to which regard may be had under

subsection (1) in relation to a relevant entity include the operation, in

relation to the entity in relation to the year of income referred to in that

subsection or the next preceding year of income, of subsection 98A (2),

Division 18 of Part III, section 160AQK or Division 3A of this Part, or of the

Income Tax (International Agreements) Act 1953.

  "(3) Where the Commissioner makes a determination under subsection (1), the

Commissioner must cause a written notice to be served on the relevant entity

setting out:

  (a)  in the case of a determination under paragraph (1) (a) - the amount of

the reduction; or

  (b)  in the case of a determination under paragraph (1) (b) - the effect of

the determination.

  "(4) Where a relevant entity has made an initial payment of tax in respect

of its taxable income of a year of income and, because of a determination

under subsection (1):

  (a)  the amount of the payment exceeded the amount that the entity was

required to pay; or

  (b)  the entity was not required to make the payment;

the Commissioner must, as soon as practicable, refund to the entity the excess

or the amount of the payment, as the case may be.

Power of Commissioner to vary estimate of income tax

  "221AW. (1) Subject to this section, if:

  (a)  a relevant entity has given a notice under paragraph 221AQ (1) (a) in

respect of a year of income; and

  (b)  the Commissioner has reason to believe that the amount of income tax

that will be payable by the entity in respect of its taxable income of that

year of income will be greater or less than the amount of the estimate or of a

revised estimate, as the case may be, of that income tax made by the entity

under this Division;

the Commissioner may, for the purposes of section 221AQ, determine that such

amount as the Commissioner thinks appropriate is to be substituted for the

amount of that estimate or revised estimate.

  "(2) A determination under subsection (1) in relation to a relevant entity

in respect of a year of income is of no effect if it would result in the

amount of the initial payment of tax that is required to be made by the entity

in respect of its taxable income of that year of income being increased to an

amount exceeding 85% of the entity's notional tax in respect of that year of

income.

  "(3) Where the Commissioner makes a determination under subsection (1), the

Commissioner must cause a written notice to be served on the relevant entity

specifying:

  (a)  the amount that, by virtue of the determination, is to be substituted

for the amount of the entity's estimate or revised estimate of the income tax

that will be payable in respect of its taxable income of the year of income to

which the determination relates and the basis on which the determination was

made; and (b)  the date on which the determination takes effect, being a date

not less than 30 days after the date of service of the notice.

  "(4) Any additional amount that, because of a determination under subsection

(1), is payable by a relevant entity in respect of the initial payment of tax

that the entity is required to make under section 221AP in respect of its

taxable income of the year of income to which the determination relates is

payable not later than the date on which the determination takes effect.

  "(5) Where a relevant entity has made an initial payment of tax in respect

of its taxable income of a year of income and, because of a determination

under subsection (1):

  (a)  the amount of the payment exceeded the amount that the entity was

required to pay; or

  (b)  the entity was not required to make the payment;

the Commissioner must, as soon as practicable, refund to the entity the excess

or the amount of the payment, as the case may be.

Initial payment avoidance arrangements

  "221AX. (1) In this section:

  'arrangement' means:

  (a)  any agreement, arrangement, understanding, promise or undertaking,

whether express or implied, and whether or not enforceable, or intended to be

enforceable, by legal proceedings; and

  (b)  any scheme, plan, proposal, action, course of action or course of

conduct, whether unilateral or otherwise.

  "(2) A reference in this section to the carrying out of an arrangement by a

person includes a reference to the carrying out of an arrangement by a person

together with any other person or persons.

  "(3) A reference in this section to an arrangement or a part of an

arrangement being entered into or carried out by a person for a particular

purpose includes a reference to the arrangement or the part of the arrangement

being entered into or carried out by the person for 2 or more purposes of

which that particular purpose is the dominant purpose.

  "(4) Where:

  (a)  a relevant entity has given a notice under paragraph 221aq (1) (a) in

respect of a year of income (in this section called the 'relevant year of

income'); and

  (b)  the Commissioner is of the opinion that:

    (i)  the entity has obtained or, but for this subsection would obtain,

a benefit (in this section called an 'initial payment tax benefit') in

relation to its obligation to make an initial payment of tax in respect of its

taxable income of the relevant year of income, in connection with an

arrangement, whether entered into within Australia or outside Australia, or

partly within and partly outside Australia, and whether entered into before or

after the commencement of this section; and

    (ii)  having regard to any one or more of the following:

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

  (b)  the form and substance of the arrangement;

  (c)  the time at which the arrangement was entered into and the length of

the period during which the arrangement was carried out;

  (d)  the result in relation to the operation of this Division that, but for

this section, would be achieved by the arrangement;

  (e)  any change in the financial position of the entity that has resulted,

will result, or may reasonably be expected to result, from the arrangement;

  (f)  any change in the financial position of any person who has, or has had,

any connection (whether of a business, family or other nature) with the

entity, being a change that has resulted, will result, or might reasonably be

expected to result, from the arrangement;

  (g)  any other consequence for the entity, or for any person referred to in

sub-subparagraph (f), of the arrangement having been entered into or carried

out;

  (h)  the nature of any connection (whether of a business, family or other

nature) between the entity and any person referred to in sub-subparagraph

        (f);

it would be concluded that the person, or one of the persons, who entered into

or carried out the arrangement or any part of the arrangement did so for the

purpose of enabling the entity to obtain an initial payment tax benefit in

connection with the arrangement or of enabling the entity and another taxpayer

or other taxpayers each to obtain an initial payment tax benefit in connection

with the arrangement (whether or not the person who entered into or carried

out the arrangement or any part of the arrangement is the entity or is the

other taxpayer or one of the other taxpayers);

the following provisions of this section have effect.

  "(5) The Commissioner may determine either:

  (a)  that the amount of the initial payment of tax to be made by the entity

in respect of its taxable income of the relevant year of income is to be taken

for the purposes of this Division to be 85% of the entity's notional tax in

respect of that year of income; or

  (b)  that the amount of the estimate or of a revised estimate, as the case

may be, made by the entity under this Division of the income tax that would be

payable in respect of its taxable income of the relevant year of income is to

be taken for the purposes of this Division to be increased by the amount of

the initial payment tax benefit.

  "(6) If the Commissioner makes a determination under subsection (5), the

Commissioner must cause to be served on the entity written notice:

  (a)  stating that the Commissioner is of opinion as set out in subsection

(4); and

  (b)  specifying the nature and amount of the initial payment tax benefit;

and

  (c)  setting out the terms of the determination made under subsection (5);

and (d)  specifying the date of effect of the determination, being a date not

less than 7 days after the date of service of the notice.

  "(7) A determination under subsection (5) has effect despite any other

provision of this Division.

  "(8) Any additional amount that, because of a determination under subsection

(5), is payable by a relevant entity in respect of the initial payment of tax

that the entity is required to make under section 221AP in respect of its

taxable income of the relevant year of income is payable not later than the

date on which the determination takes effect.

  "(9) After the determination comes into effect, the entity is not entitled

to make a revised estimate under section 221AR of the income tax that will be

payable in respect of its taxable income of the relevant year of income if:

  (a)  in the case of a determination under paragraph (5) (a) - the revised

estimate would result in the amount of the initial payment of tax to be made

by the entity in respect of its taxable income of the relevant year of income

being less than 85% of the entity's notional tax in respect of that year of

income; or (b)  in the case of a determination under paragraph (5) (b) in

respect of an estimate made by the entity under paragraph 221AQ (1) (a) - the

revised estimate would be less than the amount of the entity's estimate under

that last-mentioned paragraph as increased by the determination.

  "(10) A reference in this section to the obtaining by an entity of a benefit

in relation to its obligation to make an initial payment of tax in respect of

its taxable income of the relevant year of income in connection with an

arrangement is a reference to the amount of the estimate or of a revised

estimate, as the case may be, made by the entity under this Division of the

income tax that would be payable in respect of its taxable income of that year

of income being less than it would otherwise have been because of:

  (a)  in the case of an entity that is a company:

    (i)  an amount not being included in the company's assessable income

of that year of income where that amount would have been so included, or might

reasonably be expected to have been so included, if the arrangement had not

been entered into or carried out; or

    (ii)  a deduction being allowable to the company in relation to that

year of income where the whole or a part of that deduction would not have been

so allowable, or might reasonably be expected not to have been so allowable,

if the arrangement had not been entered into or carried out; or

  (b)  in the case of an entity that is a trustee of a fund or unit trust

referred to in paragraph (b) of the definition of 'relevant entity' in

subsection 221AK (1):

    (i)  an amount not being included in the assessable income of the fund

or trust of that year of income where that amount would have been so included,

or might reasonably be expected to have been so included, if the arrangement

had not been entered into or carried out; or

    (ii)  a deduction being allowable to the trustee in relation to that

year of income where the whole or a part of that deduction would not have been

so allowable, or might reasonably be expected not to have been so allowable,

if the arrangement had not been entered into or carried out.

  "(11) For the purposes of this section, the amount of an initial payment tax

benefit obtained by a relevant entity in relation to the relevant year of

income is to be taken to be:

  (a)  if, apart from this section, the entity would be required to make an

initial payment of tax in respect of its taxable income of that year of income

- the amount by which that payment would have been greater if the entity had

not obtained that initial payment tax benefit in relation to that year of

income; or (b)  if, apart from this section, the entity would not be required

to make an initial payment of tax in respect of its taxable income of that

year of income - the amount of the initial payment of tax in respect of that

taxable income that the entity would have been required to make if the entity

had not obtained that initial payment tax benefit in relation to that year of

income.

  "(12) Subsections (5) to (11), inclusive, do not apply, and are to be taken

never to have applied, in relation to an initial payment tax benefit obtained

by a relevant entity in respect of the relevant year of income if the

Commissioner is satisfied that:

  (a)  as a result of the arrangement referred to in subsection (4):

  (i)  the initial payment of tax that another relevant entity has made in

respect of its taxable income of that year of income has increased; or

  (ii)  the initial payments of tax that 2 or more other relevant entities

have made in respect of their taxable incomes of that year of income have

increased; and

  (b)  the amount of the increase, or the sum of the amounts of the increases,

as the case may be, is not less than the amount of the initial payment tax

benefit obtained by the first-mentioned entity in respect of that year of

income "(13) If the Commissioner becomes satisfied under subsection (12) after

the serving of a notice under subsection (6), the Commissioner must cause to

be served on the entity a further notice informing the entity that the

determination does not have, and is to be taken never to have had, any

effect.

  "(14) If:

  (a)  because of a determination under subsection (5), a relevant entity has

paid an additional amount under subsection (8); and

  (b)  after the payment of the additional amount, a notice in respect of the

determination is served on the entity under subsection (13);

the Commissioner must, as soon as practicable, refund the additional amount to

the entity.

Additional tax if income or deduction transferred under avoidance scheme

  "221AY. (1) If:

  (a)  the Commissioner is of the opinion in relation to a relevant entity in

respect of a year of income to which this Division applies (in this section

called the 'relevant year of income') that, in connection with an arrangement

referred to in subsection 221AX (1):

    (i)  an amount has been included in the assessable income of the

entity of the relevant year of income where the entity is a company, or in the

assessable income of the relevant fund or unit trust of the relevant year of

income where the entity is a trustee of a fund or unit trust, being an amount

that would not have been so included, or might reasonably be expected not to

have been so included, if the arrangement had not been entered into or carried

out; or

    (ii)  a deduction is not allowable to the entity in relation to the

relevant year of income where the whole or a part of that deduction would have

been so allowable, or might reasonably be expected to have been so allowable,

if the arrangement had not been entered into or carried out; and

  (b)  the entity did not give a notice under paragraph 221AQ (1) (a) in

relation to the relevant year of income; and

  (c)  income tax has become due and payable by the entity in respect of its

taxable income of the relevant year of income; the following provisions of

this section have effect.

  "(2) If the entity was not required to make an initial payment of tax in

respect of its taxable income of the relevant year of income, additional tax,

by way of penalty, in respect of the period that:

  (a)  commenced on the day by which, if such an initial payment of tax had

been payable by the entity, that payment would have been required to be made;

and

  (b)  ended on the day on which the entity makes the payment that it is

required by section 221azd to make in respect of the relevant year of income;

is due and payable by the entity, at the rate of 20% per annum on the amount

equal to 85% of the amount calculated by the entity under that section to be

the income tax that is payable in respect of its taxable income of the

relevant year of income.

  "(3) If the entity made an initial payment of tax in respect of its taxable

income of the relevant year of income, additional tax, by way of penalty, in

respect of each day (in this subsection called the 'day concerned') during the

period that:

  (a)  commenced on the day by which the entity was required to make that

initial payment; and

  (b)  ended on the day on which the entity makes the payment that it is

required by section 221AZD to make in respect of the relevant year of income;

is due and payable by the entity, at the rate of 20% per annum, on the amount

by which 85% of the amount calculated by the entity under that section to be

the income tax that is payable in respect of its taxable income of that year

of income exceeds the amount, or the total of the amounts, paid by the entity

on or before the day concerned in respect of that initial payment of tax.

  "(4) Where the entity received a refund in respect of an amount paid as an

initial payment of tax in respect of its taxable income of the relevant year

of income under this Division:

  (a)  subject to paragraph (b), the amount, or the total of the amounts, paid

by the entity in respect of that initial payment of tax is to be taken, for

the purposes of this section, to have been reduced, on and after the date of

receipt of the refund, by the amount of the refund; or

  (b)  if the entity received the refund because a determination under section

221AV reduced the amount of the initial payment that the entity was liable to

make in respect of its taxable income of the relevant year of income -

paragraph (a) does not apply and subsection (3) has effect as if the entity

had not received the refund.

  "(5) Where the Commissioner is satisfied that there are special

circumstances because of which it would be fair and reasonable to do so, the

Commissioner may remit the whole or any part of any additional tax payable by

the entity under subsection (2) or (3).

  "(6) For the purposes of this section, the income tax that is payable by the

entity in respect of its taxable income of the relevant year of income is the

income tax that is so payable after deducting:

  (a)  any credits to which the entity is or will be entitled under:

    (i)  subsection 98A (2), Division 18 of Part III or Division 3A of

this Part; or

    (ii)  the Income Tax (International Agreements) Act 1953; and

  (b)  any offset to which the entity is or will be entitled under section

160AQK.

Additional payments to form part of initial payment

  "221AZ. An amount paid by a relevant entity under subsection 221AR (5),

221AW (4) or 221AX (8), or as mentioned in subsection 221AR (7), is to be

taken for the purposes of this Act to be, or to constitute part of, as the

case requires, the initial payment of tax that the entity is required to make

under section 221AP in respect of its taxable income of the year of income

concerned and a reference in this Division to an initial payment of tax is,

unless the context otherwise requires, to be taken to include a reference to

an amount so paid.

Refund to reduce initial payment of tax

  "221AZA. An amount refunded to a relevant entity under subsection 221AQ (3),

221AR (6), 221AU (4), 221AV (4), 221AW (5) or 221AX (14) is to be taken for

the purposes of this Act to reduce the amount of the initial payment of tax

made in respect of the entity's taxable income of the year of income

concerned.

Notional tax

  "221AZB. (1) This section has effect subject to section 221AZC. "(2) Subject

to this section, the notional tax of a relevant entity in respect of a year of

income is an amount equal to the income tax assessed in respect of the

entity's taxable income of the next preceding year of income. "(3) A reference

in subsection (2) to the income tax assessed in respect of a relevant entity's

taxable income of a year of income is, in the case of a relevant entity that

is a company whose assessable income of that year of income included a net

capital gain within the meaning of Part IIIA, to be taken to be a reference

to:

  (a)  in the case of a company other than a life assurance company or a

registered organization - the income tax that would have been assessed in

respect of the amount that would have been the taxable income of that company

of that year of income if that net capital gain had not been included; and

  (b)  in the case of a life assurance company - the sum of:

    (i)  the income tax assessed in respect of the CS/RA component of the

company's taxable income of that year of income; and

    (ii)  in relation to each of the NCS component, the non-fund component

(if any) and the AD/RLA component of the company's taxable income of that year

of income:

  (a)  if the part of the company's assessable income of that year of income

to which that component relates included a net capital gain within the meaning

of Part IIIa - the income tax that would have been assessed in respect of the

amount that would have been that component if that net capital gain had not

been included; or

  (b)  otherwise - the income tax assessed in respect of that component; and

  (c)  in the case of a registered organization - the sum of:

    (i)  the amount of the income tax assessed in respect of theCS/RA

component of the organization's taxable income of that year of income; and

    (ii)  in relation to each of the NCS component and the EIB component

of the organization's taxable income of that year of income:

  (a)  if the part of the organization's assessable income of that year of

income to which that component relates included a net capital gain within the

meaning of Part IIIA - the income tax that would have been assessed in respect

of the amount that would have been that component if that net capital gain had

not been included; or

  (b)  otherwise - the income tax assessed in respect of that component. "(4)

Where:

  (a)  the rates of income tax payable by a class of relevant entities for a

financial year are different from the rates declared by the Parliament for the

next succeeding financial year; and

  (b)  provision is made by the regulations for varying the amount of notional

tax of such entities in respect of the year of income to the income of which

the last-mentioned rates apply;

then, on and after such date as is prescribed, the notional tax of such an

entity in respect of that year of income is the amount ascertained in

accordance with subsections (2) and (3) as varied in accordance with the

provision so made by the regulations.

Modification of notional tax for certain entities with substituted early

accounting periods

  "221AZC. (1) If a taxpayer that is a relevant entity in relation to the year

of income ending on 30 June 1990 by virtue of being the trustee of:

  (a)  a fund that is a complying ADF in relation to that year of income; or

  (b)  a fund that is a complying superannuation fund in relation to that year

of income; or

  (c)  a unit trust that is a pooled superannuation trust in relation to that

year of income;

has adopted, or adopts, under this Act, in lieu of that year of income, an

accounting period ending before 1 June 1990, section 221AZB has effect in

relation to the entity in respect of that year of income as if there were

substituted for the amount ascertained in accordance with subsections (2) and

(3) of that section the amount calculated in accordance with the following

formula:

                    Ascertained amount X 12

                     12 - Complete months

where:

  'Ascertained amount' means the amount ascertained in accordance with

subsections 221AZB (2) and (3) in relation to the entity in respect of that

year of income;

  'Complete months' means the number of complete months occurring after the

end of the accounting period and before 1 July 1990.

  "(2) If a relevant entity that is a life assurance company or a registered

organization has adopted, or adopts, under this Act, in lieu of the year of

income ending on 30 June 1990, an accounting period ending before 1 June 1990,

section 221AZB has effect in relation to the entity in respect of that year of

income as if there were substituted for the amount ascertained in accordance

with subsections (2) and (3) of that section the amount calculated in

accordance with the following formula:

(Ascertained amount - CS/RA Tax) + CS/RA Tax X 12

                                 12 - Complete months

where:

  'Ascertained amount' means the amount ascertained in accordance with

subsections 221AZB (2) and (3) in relation to the entity in respect of that

year of income;

  'CS/RA tax' means so much of the Ascertained amount as relates to the CS/RA

component of the entity's taxable income of that year of income;

  'Complete months' means the number of complete months occurring after the

end of the accounting period and before 1 July 1990.

Final tax liability

  "221AZD. Subject to sections 221AN and 221AU, a relevant entity must:

  (a)  in the return furnished by the entity in relation to a year of income

to which this Division applies (in this section called the 'relevant year of

income') specify its taxable income of the relevant year of income and the

amount of income tax (if any) payable by it in respect of that taxable income;

and

  (b)  unless no amount of income tax is payable or the amount of income tax

specified under paragraph (a) does not exceed the initial payment of tax made

by the entity in respect of its taxable income of the relevant year of income

- not later than 15 March next following the relevant year of income make a

final payment of tax in respect of that taxable income of an amount equal to:

    (i)  subject to subparagraph (ii), the amount by which the amount of

income tax specified under paragraph (a) exceeds the amount of the initial

payment; or

    (ii)  if the entity did not make an initial payment or the amount of

that payment was refunded under subsection 221AU (4) - the amount of income

tax specified under paragraph (a).

Additional tax if estimate incorrect

  "221AZE. (1) If:

  (a)  a relevant entity gives a notice under paragraph 221AQ (1)(a) in

respect of a year of income (in this section called the 'relevant year of

income'); and

  (b)  the amount (in this paragraph called the 'relevant amount') that is the

lesser of whichever of the following amounts are applicable to the entity (i)

in the case of:

  (a)  a relevant entity other than a company; or

  (b)  a relevant entity being a company whose assessable income of the

relevant year of income did not include a net capital gain within the meaning

of Part IIIA;

the amount specified by the entity in a return in accordance with section

221AZD to be the income tax that is payable in respect of its taxable income

of the relevant year of income;

    (ii)  in the case of a relevant entity being a company whose

assessable income of the relevant year of income included a net capital gain

within the meaning of Part IIIA - the amount calculated by the Commissioner

under subsection (2) in relation to the entity in respect of the relevant year

of income;

    (iii)  in the case of any relevant entity - the entity's notional tax

in respect of the relevant year of income;

    exceeds either of the following amounts:

    (iv)  the amount estimated by the entity under paragraph 221AQ (1)(a)

to be the income tax that would be payable by the entity in respect of its

taxable income of the relevant year of income;

    (v)  if the entity made a revised estimate under subsection 221AR (1)

of the amount referred to in subparagraph (iv) - the amount of the revised

estimate

    by more than 10% of the relevant amount; and

  (c)  income tax has become due and payable by the entity in respect of its

taxable income of the relevant year of income;

the following provisions of this section have effect.

  "(2) For the purposes of subparagraph (1)(b)(ii), the Commissioner must

calculate:

  (a)  in the case of a company other than a life assurance company or a

registered organization - the amount of income tax (if any) that would be

payable in respect of the amount that would have been its taxable income of

the relevant year of income if the net capital gain referred to in that

subparagraph had not been included; or

  (b)  in the case of a life assurance company - the sum of:

    (i)  the amount of income tax (if any) that is payable in respect of

the CS/RA component of its taxable income of the relevant year of income; and

    (ii)  in relation to each of the NCS component, the non-fund component

(if any) and the AD/RLA component of its taxable income of the relevant year

of income:

  (a)  if the part of its assessable income of that year of income to which

that component relates included a net capital gain within the meaning of Part

IIIA - the amount of income tax (if any) that would be payable in respect of

the amount that would have been that component if that net capital gain had

not been included; or

  (b)  otherwise - the amount of income tax (if any) that is payable in

respect of that component; and

  (c)  in the case of a registered organization - the sum of:

    (i)  the amount of income tax (if any) that is payable in respect of

the CS/RA component of its taxable income of the relevant year of income; and

    (ii)  in relation to each of the NCS component and the EIB component

of its taxable income of the relevant year of income:

  (a)  if the part of its assessable income of that year of income to which

that component relates included a net capital gain within the meaning of Part

IIIA - the amount of income tax (if any) that would be payable in respect of

the amount that would have been that component if that net capital gain had

not been included; or

  (b)  otherwise - the amount of income tax (if any) that is payable in

respect of that component.

  "(3) Additional tax, by way of penalty, in respect of each day (in this

subsection called the 'day concerned') during the period that:

  (a)  commenced on the day by which the entity was required to make an

initial payment of tax in respect of the relevant year of income or the

earliest day on which the entity made an estimate or revised estimate that

resulted in an excess referred to in paragraph (1) (b), whichever is the

later; and

  (b)  ended on the day on which the entity makes the payment that it is

required by section 221azd to make in respect of the relevant year of income;

is due and payable by the entity, at the rate of 20% per annum, on the amount

by which 85% of the relevant amount exceeds the amount, or the total of the

amounts, paid by the entity on or before the day concerned in respect of that

initial payment of tax.

  "(4) Where the entity received a refund in respect of an amount paid as an

initial payment of tax in respect of its taxable income of the relevant year

of income under this Division:

  (a)  subject to paragraph (b), the amount, or the total of the amounts, paid

by the entity in respect of that initial payment of tax is to be taken, for

the purposes of this section, to have been reduced, on and after the date of

receipt of the refund, by the amount of the refund; or

  (b)  if the entity received the refund because a determination under section

221AV or 221AW reduced the amount of the initial payment that the entity was

liable to make in respect of its taxable income of the relevant year of income

- paragraph (a) does not apply in respect of the refund and subsection (3) has

effect as if the entity had not received the refund.

  "(5) Where the Commissioner is satisfied that there are special

circumstances because of which it would be fair and reasonable to do so, the

Commissioner may remit the whole or any part of any additional tax payable by

the entity under subsection (3).

  "(6) For the purposes of this section, the income tax that is or would be

payable by the entity in respect of its taxable income of the relevant year of

income is the income tax that is or would be so payable after deducting:

  (a)  any credits to which the entity is or will be entitled under:

    (i)  subsection 98A (2), Division 18 of Part III or Division 3A of

this Part; or

    (ii)  the Income Tax (International Agreements) Act 1953; and

  (b)  any offset to which the entity is or will be entitled under section

160AQK.

Crediting of payments

  "221AZF. (1) Where an amount is paid by a taxpayer under this Division in

respect of the taxpayer's taxable income of a year of income, the Commissioner

is to credit the amount in payment successively of:

  (a)  income tax payable in respect of that taxable income; and

  (b)  tax payable in accordance with section 160AQJ; and

  (c)  any other liability of the taxpayer to the Commonwealth under or by

virtue of an Act of which the Commissioner has the general administration; and

must refund to the taxpayer so much of the amount as is not so credited.

  "(2) An amount that is to be credited by the Commissioner under subsection

(1) is to be taken to be credited on the day on which an assessment is deemed

by section 166A to have been made in respect of the taxpayer's income of the

year of income in respect of which the amount was paid to the Commissioner.".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 37

Liability to provisional tax

 

  37. (1) Section 221YB of the Principal Act is amended by omitting subsection

(1) and substituting the following subsection:

  "(1) For the purpose of enabling the income tax that will be payable by a

taxpayer to whom this section applies to be collected during the financial

year for which income tax is levied, a person (other than a relevant entity

within the meaning of Division 1B) deriving assessable income, not being

salary or wages, is liable to pay provisional tax in accordance with this

Division.".

  (2) The amendment made by subsection (1) applies in respect of the year of

income ending on 30 June 1990 and in respect of all subsequent years of

income.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 38

Interpretation

 

  38. Section 221YHA of the Principal Act is amended:

  (a)  by omitting "and" from the end of paragraph (3b) (b);

  (b)  by inserting after paragraph (3b) (b) the following paragraph:

  "(ba)  if subparagraph (b) (i) applies and the natural person has entered

into a contract with another person (in this paragraph called the 'actual

builder') in relation to the construction project:

    (i)  so much of the construction project as is proposed to be carried

out or undertaken by the actual builder or pursuant to a contract or contracts

entered into, or proposed to be entered into, by the actual builder; and

    (ii)  so much of the construction project as has been carried out or

undertaken by, or pursuant to a contract or contracts entered into by, the

actual builder;

together constitute neither the whole nor the greater part of the construction

project; and".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 39

Deductions from certain withdrawals from film accounts

 

  39. Section 221ZN of the Principal Act is amended by omitting from

subparagraph (1) (a) (ii) and paragraph (1) (b) "49%" and substituting "47%"

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 40

Penalty for failure to keep or furnish documents or information

 

  40. Section 222 of the Principal Act is amended by inserting after

subsection (1) the following subsection:

  "(1a) If a taxpayer that is a relevant entity within the meaning of Division

1B of Part VI:

  (a)  fails to keep a record containing particulars of the basis of the

calculation of its taxable income of a year of income and the tax payable in

respect of that taxable income that were specified in a return in accordance

with section 221AZD; or

  (b)  refuses or fails to produce to the Commissioner, when and as required

by the Commissioner under this Act, a document containing particulars of the

basis of the calculation of its taxable income of a year of income and the tax

payable in respect of that taxable income that were specified in a return in

accordance with section 221AZD;

the taxpayer is liable to pay, by way of penalty, additional tax equal to

double the amount of tax payable by the taxpayer in respect of that year of

income.".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 41

Penalty for false or misleading statements

 

  41. (1) Section 223 of the Principal Act is amended:

  (a)  by inserting after subsection (1) the following subsection:

  "(1a) Where:

  (a)  a taxpayer:

    (i)  makes a statement to a taxation officer, or to a person other

than a taxation officer for a purpose in connection with the operation of this

Act or the regulations, that is false or misleading in a material particular;

or

    (ii)  omits from a statement made to a taxation officer, or to a

person other than a taxation officer for a purpose in connection with the

operation of this Act or the regulations, any matter or thing without which

the statement is misleading in a material particular; and

  (b)  a credit, or an offset within the meaning of Division 1 of Part IIIAA,

properly allowable to the taxpayer is less than the credit or offset that

would have been allowable to the taxpayer if it were determined on the basis

that the statement was not false or misleading, as the case may be;

the taxpayer is liable to pay, by way of penalty, additional tax equal to

double the amount of the difference.";

  (b)  by omitting from paragraphs (8) (a) and (9) (a) "made, given" (wherever

occurring) and substituting "made, prepared, given";

  (c)  by adding at the end of subsection (8) "other than a document

containing particulars of the basis of the calculation of its taxable income

of a year of income and the tax payable in respect of that taxable income that

were specified in a return in accordance with section 221AZD".

  (2) The amendments made by subsection (1) apply in respect of statements

that are made, or omissions that occur, after the commencement of this

section.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 42

 

  42. Section 262A of the Principal Act is repealed and the following section

is substituted:

Keeping of records

  "262A. (1) Subject to this section, a person carrying on a business must

keep records that record and explain all transactions and other acts engaged

in by the person that are relevant for any purpose of this Act.

  "(2) The records to be kept under subsection (1) include:

  (a)  any documents that are relevant for the purpose of ascertaining the

person's income and expenditure; and

  (b)  documents containing particulars of any election, estimate,

determination or calculation made by the person under this Act and, in the

case of an estimate, determination or calculation, particulars showing the

basis on which and method by which the estimate, determination or calculation

was made.

  "(3) A person who is required by this section to keep records must:

  (a)  keep the records in writing in the English language or so as to enable

the records to be readily accessible and convertible into writing in the

English language; and

  (b)  keep the records so as to enable the person's liability under this Act

to be readily ascertained.

  "(4) A person who has possession of any records kept or obtained under or

for the purposes of this Act must retain those records until:

  (a)  in a case to which paragraph (b) does not apply - the end of 5 years

after those records were prepared or obtained, or the completion of the

transactions or acts to which those records relate, whichever is the later;

or

  (b)  if the period (in this paragraph called the 'assessment period') within

which the Commissioner may, under paragraph 170 (2) (b), amend an assessment

in respect of the person's income of the year of income to which those records

relate, or in which a transaction or act to which those records relate was

completed, is extended by virtue of an order of the Federal Court of Australia

made under subsection 170 (4a) or the consent of the person given under

subsection 170 (4b):

    (i)  the end of the period of 5 years referred to in paragraph (a); or

    (ii)  the end of the assessment period as so extended;

    whichever is the later.

  "(5) Nothing in this section requires a person to retain records where:

  (a)  the Commissioner has notified the person that retention of the records

is not required; or

  (b)  the person is a company that has gone into liquidation and been finally

dissolved.

  Penalty: $3,000.".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 43

Taxable contributions

 

  43. Section 274 of the Principal Act is amended:

  (a) by inserting in subparagraph (1) (a) (ii) "or 69" after "section 51";

  (b) by adding "and" at the end of paragraph (8) (a);

  (c) by omitting paragraph (8) (b).

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 44

Fixed interest complying ADFs - exemption of income attributable to certain

25

May 1988 deposits

 

  44. Section 290a of the Principal Act is amended by omitting "1 July 1989"

from paragraph (b) of the definition of "current 25 May balance" in subsection

(4) and substituting "1 September 1989".

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 45

Rebates

 

  45. Section 300 of the Principal Act is amended:

  (a) by adding at the end of paragraph (1) (a) "and";

  (b) by omitting from paragraph (1) (b) "and";

  (c) by omitting paragraph (1) (c);

  (d) by adding at the end of paragraph (2) (a) "and";

  (e) by omitting from paragraph (2) (b) "and";

  (f) by omitting paragraph (2) (c).

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 46

Application of certain amendments

 

  46. (1) In this section:

  "amended Act" means the Principal Act as amended by this Act.

  (2) The repeal of section 69 of the Principal Act effected by this Act

applies to expenditure incurred on or after 1 July 1989.

  (3) Subparagraph 78 (1) (a) (xcv) of the amended Act applies in relation to

gifts made on or after 7 April 1989.

  (4) The amendments made by sections 10, 11 and 12 apply in relation to

expenditure incurred by a life assurance company on or after 1 January 1990.

  (5) The amendments made by subsection 17 (1) apply to any dividend paid:

  (a)  in respect of a share issued on or after 16 August 1989; or

  (b)  under a finance arrangement (within the meaning of section 46d of the

Principal Act) entered into on or after 16 August 1989.

  (6) The amendments made by section 28 apply in relation to expenditure

incurred on or after 1 July 1989.

  (7) The amendments made by section 38 apply to:

  (a)  prescribed payments made by a natural person on or after the date of

the commencement of this subsection under:

    (i)  a contract entered into on or after the date of commencement of

this subsection; or

    (ii)  if, before the commencement of this subsection, the natural

person has given to the Commissioner a householder notification form in

relation to the construction project concerned - a contract entered into

before the commencement of this subsection; and

  (b)  if, on or after the date of commencement of this subsection, a natural

person gives to the Commissioner a householder notification form in relation

to the construction project concerned - prescribed payments made by the

natural person, on or after the date on which that form is given to the

Commissioner, under a contract entered into before the commencement of this

subsection.

  (8) If, because of subparagraph (7) (a) (ii) or paragraph (7)(b) of this

section, a natural person is, for the purposes of Division 3A of Part VI of

the amended Act, a householder in relation to a prescribed payment that is

made by the natural person under a contract:

  (a)  subsection 221YHB (7) of the amended Act does not apply in relation to

the natural person in relation to the contract; and

  (b)  Division 3A of Part VI of the amended Act applies in relation to the

householder notification form given as mentioned in subsection (7) of this

section as if that form had been given under subsection 221YHB (7) of the

amended Act. (9) The amendments made by section 39 apply to amounts withdrawn

from film accounts on or after 1 January 1990. (10) The amendment made by

paragraph 43 (a) applies in relation to contributions made on or after 1 July

1989.

  (11) The amendments made by paragraphs 43 (b) and (c) apply in relation to

contributions made on or after 1 July 1988.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 47

Transitional - section 69 of the amended Act

 

  47. (1) In this section:

  "amended Act" means the Principal Act as amended by this Act.

  (2) For the purposes of the application of subsection 69 (7) of the amended

Act to expenditure incurred on or after 1 July 1989 by the trustee of the

estate of a taxpayer who died before 1 July 1989, paragraph (b) of that

subsection has effect as if subsection 69 (1) of the amended Act applied to

expenditure incurred before, on or after 1 July 1989.

  (3) Nothing in subsection 69 (9) of the amended Act is to be taken as

authorising a deduction in respect of a period before 1 July 1989.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 48

Transitional - subsection 113 (2) of the amended Act

 

  48. (1) In this section:

  "1 January 1990 year" means the year of income in which 1 January 1990

occurred;

  "amended Act" means the Principal Act as amended by this Act.

  (2) In spite of anything in subsection 113 (2) of the amended Act, where:

  (a)  apart from this section, a deduction would be allowable to a life

assurance company under subsection 113 (2) of the amended Act in respect of

the company's 1 January 1990 year; and

  (b)  any part of the company's 1 January 1990 year occurs before 1 January

1990;

the amount of the deduction allowable to the company under subsection 113 (2)

of the amended Act in respect of the company's 1 January 1990 year is the

amount worked out using the following formula:

  (                        )   (                             Section    )

  (                        )   (                             111AAA     )

  (             Adjusted   )   (             Adjusted    +   premium    )

  (             assessable ) + (             assessable      investment )

  (Pre-1990  X  income     )   ( 1990 GME  X income          components )

  (  GME          Total    )   (                    Total income        )

                 income

where:

  Pre-1990 GME is the expenditure incurred before 1 January 1990, and in the

company's 1 January 1990 year, in the general management of the business of

the company;

  Adjusted assessable income is the number of dollars in the amount of the

assessable income of the company of the company's 1 January 1990 year (apart

from section 111AA of the amended Act);

  Total income is the total income of the company of the company's 1 January

1990 year;

  1990 GME is the expenditure incurred on or after 1 January 1990, and in the

company's 1 January 1990 year, in the general management of the business of

the company;

  Section 111AA premium investment components is the number of dollars in the

aggregate of the investment components of each premium to which section 111AA

of the amended Act applies, being a premium that was derived by the company in

the company's 1 January 1990 year.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 49

Transitional - section 274 of the amended Act

 

  49. (1) In this section:

  "amended Act" means the Principal Act as amended by this Act.

  (2) If the total of the contributions made to a complying superannuation

fund in a year of income that are covered by notices given under subsection

274 (7) of the Principal Act before the commencement of this section exceeds

the sum of the amounts referred to in paragraphs 274 (8) (a) and (c) of the

amended Act, the notices are to be taken, for the purposes of the amended Act,

never to have been given.

 

PART 4 - AMENDMENT OF THE TAXATION ADMINISTRATION ACT 1953

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 51

Principal Act

 

  51. In this Part, "Principal Act" means the Taxation Administration Act

1953.*3*

Interpretation

  52. Section 8j of the Principal Act is amended:

  (a)  by omitting from paragraph (2) (a) ''made, given'' (wherever occurring)

and substituting ''made, prepared, given'';

  (b)  by adding at the end of paragraph (2) (k) ''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".

*3* No. 1, 1953, as amended. For previous amendments, see Nos.  28, 39, 40 and

52, 1953; No. 18, 1955; No. 39, 1957; No. 95, 1959; No. 17, 1960; No. 75,

1964; No. 155, 1965; No. 93, 1966; No. 120, 1968; No. 216, 1973; No. 133,

1974; No. 37, 1976; Nos. 19 and 59, 1979; Nos. 39 and 117, 1983; No. 123,

1984; No. 65, 1985; (as amended by No. 193, 1985); Nos. 4, 47, 104, 123 and

168, 1985; Nos. 41, 46, 48, 112, 144 and 154, 1986; No. 49, 1986 (as amended

by No. 141, 1987); Nos. 120 and  145, 1987; No. 62, 1987 (as  amended by No.

108, 1987); No. 108, 1987 (as amended by No. 138, 1987); No. 138, 1987 (as

amended by No. 11, 1988); Nos. 95 and 97, 1988; and Nos. 105 and 107, 1989.

 

TAXATION LAWS AMENDMENT ACT (No. 5) 1989 No. 20 of 1990

- SECT 53

Penalty taxes to be alternative to prosecution for certain offences

 

  53. Section 8ZE of the Principal Act is amended by inserting in paragraphs

(1) (b) and (2) (c) "of this Act or section 262A of the Income Tax Assessment

Act 1936" after "8P".


Notes to the Taxation Laws Amendment Act (No. 5) 1989

Note 1

The Taxation Laws Amendment Act (No. 5) 1989 as shown in this compilation comprises
Act No. 20, 1990 amended as indicated in the Tables below.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

Taxation Laws Amendment Act (No. 5) 1989

20, 1990

17 Jan 1990

See s. 2

 

Tax Laws Amendment (2010 Measures No. 2) Act 2010

75, 2010

28 June 2010

Schedule 6 (item 83): 29 June 2010


Table of Amendments

ad. = added or inserted    am. = amended     rep. = repealed   rs. = repealed and substituted

Provision affected

How affected

S. 50.........................................

rep. No. 75, 2010