Federal Register of Legislation - Australian Government

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Act No. 73 of 1997 as amended, taking into account amendments up to Act No. 145 of 2010
An Act relating to the assessment and collection of termination payments tax, and for related purposes
Administered by: Treasury
Registered 24 Dec 2010
Start Date 17 Dec 2010
Date of repeal 30 Mar 2018
Repealed by Treasury Laws Amendment (2018 Measures No. 1) Act 2018

Termination Payments Tax (Assessment and Collection) Act 1997

Act No. 73 of 1997 as amended

This compilation was prepared on 24 December 2010
taking into account amendments up to Act No. 145 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

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

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

2............ Commencement [see Note 1].............................................................. 1

3............ Act to bind Crown.............................................................................. 1

4............ Extension to Territories....................................................................... 1

5............ Object of Act....................................................................................... 1

6............ Outline of Act..................................................................................... 2

Part 2—Liability to surcharge                                                                                        3

7............ Application.......................................................................................... 3

8............ Termination payments surcharge......................................................... 3

9............ Surcharge payable only on part of certain termination payments......... 4

10.......... Surcharge threshold............................................................................ 5

Part 3—Assessment and collection of surcharge                                                7

11.......... Assessment of liability to pay surcharge............................................. 7

11A....... Periods within which assessments may be amended........................... 8

12.......... Amendment of assessments.............................................................. 11

13.......... Payment of general interest charge if liability increased by amended assessment     12

14.......... Commissioner may use tax file numbers for the purposes of this Act 13

15.......... Objections against assessments......................................................... 13

Part 4—Recovery of unpaid surcharge, general interest charge or late payment penalty           14

16.......... Penalty for non‑payment of surcharge.............................................. 14

16A....... Additional liability to pay general interest charge.............................. 14

Part 5—Administration                                                                                                    16

21.......... General administration of Act........................................................... 16

22.......... Annual report.................................................................................... 16

Part 6—Miscellaneous                                                                                                       17

24.......... Authorised officers........................................................................... 17

25.......... Evidence............................................................................................ 17

26.......... Access to premises etc...................................................................... 18

27.......... Obtaining information and evidence.................................................. 19

28.......... Records to be kept and retained by employer.................................... 19

29.......... Application of the Criminal Code..................................................... 20

30.......... Regulations....................................................................................... 21

Part 7—Interpretation                                                                                                      22

31.......... Definitions........................................................................................ 22

Notes                                                                                                                                             25


An Act relating to the assessment and collection of termination payments tax, and for related purposes

Part 1Preliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Termination Payments Tax (Assessment and Collection) Act 1997.

2  Commencement [see Note 1]

                   This Act commences on the day on which it receives the Royal Assent.

3  Act to bind Crown

             (1)  This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island.

             (2)  Nothing in this Act permits the Crown to be prosecuted for an offence.

4  Extension to Territories

                   This Act extends to Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.

5  Object of Act

                   The object of this Act is to provide for the assessment and collection of the termination payments surcharge. The surcharge is payable on payments of kinds commonly known as golden handshakes that are made to high‑income taxpayers in consequence of the termination of their employment.

6  Outline of Act

                   The following is a simplified outline of this Act.

     If any termination payments have been or are made to or for a taxpayer after 7.30 pm on 20 August 1996 and before 1 July 2005, the Commissioner will calculate the taxpayer’s adjusted taxable income for the financial year in which the payments were or are made.

     If the amount calculated is greater than the surcharge threshold, the Commissioner will calculate the rate of surcharge and assess the amount of surcharge payable by the taxpayer on the payments. Only part of certain employment‑related termination payments is subject to the surcharge.

     If, after the assessment of surcharge, the taxpayer’s adjusted taxable income is found to be different from the amount that was previously calculated or the termination payments are found to be different from the amount on which the assessment was based, the Commissioner may amend the assessment.

     If liability for surcharge is increased as a result of an amendment of an assessment, the general interest charge is payable on the additional surcharge.

·     A taxpayer may object against an assessment of surcharge in the way set out in Part IVC of the Taxation Administration Act 1953 for objecting against assessment of income tax.

     A late payment penalty applies if surcharge is not paid on time.


 

Part 2Liability to surcharge

  

7  Application

Act provides for surcharge on termination payments

             (1)  This Act provides for the payment of surcharge on certain payments (termination payments) made to or for high‑earning taxpayers (see subsection 8(2)) in consequence of the termination of their employment.

Definition of termination payment

             (2)  A termination payment is a payment that:

                     (a)  is made after 7.30 pm by legal time in the Australian Capital Territory on 20 August 1996 and before 1 July 2005; and

                     (b)  is the retained amount of an eligible termination payment for the purposes of Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act because of paragraph (a) of the definition of eligible termination payment in subsection 27A(1) of that Act;

but does not include the retained amount of any post‑June 1994 invalidity component or CGT exempt component of such a payment or an eligible termination payment from an employee share acquisition scheme.

8  Termination payments surcharge

Surcharge payable on termination payments

             (1)  Subject to subsection (1A), termination payments surcharge is payable on any termination payments made to or for a taxpayer.

No surcharge is payable on excessive part of termination payments

          (1A)  In the case of a termination payment made after 7.30 pm by legal time in the Australian Capital Territory on 22 May 2001, surcharge is not payable on any part of the payment that the Commissioner has determined under section 140R of the Income Tax Assessment Act to be in excess of the RBLs of the taxpayer.

No surcharge is payable unless adjusted taxable income is greater than surcharge threshold

             (2)  Surcharge is payable only if the taxpayer’s adjusted taxable income for the financial year in which the payments are made is greater than the surcharge threshold for the financial year.

No surcharge is payable by residents of external Territories

             (3)  Surcharge is not payable on any termination payments made to or for a taxpayer in a financial year if the taxpayer is a Territory resident for the purposes of Division 1A of Part III of the Income Tax Assessment Act as it applies to the year of income that comprises that financial year.

Taxpayer liable for surcharge

             (4)  The taxpayer is liable to pay the surcharge.

9  Surcharge payable only on part of certain termination payments

             (1)  This section applies if a termination payment has been or is made to or for a taxpayer after 20 August 1996.

             (2)  In the case of a termination payment made at or before 7.30 pm by legal time in the Australian Capital Territory on 22 May 2001, surcharge is payable only on the part of the termination payment that is worked out using the formula:

             (3)  In the case of a termination payment made after 7.30 pm by legal time in the Australian Capital Territory on 22 May 2001, surcharge is payable only on the part of the termination payment that is worked out using the formula:

             (4)  For the purposes of this section:

excessive component means the part (if any) of the termination payment that the Commissioner has determined under section 140R of the Income Tax Assessment Act to be in excess of the RBLs of the taxpayer.

post‑20 August 1996 period means the number of days in the period of the taxpayer’s employment for which the termination payment was made that occurred after 20 August 1996.

total period means the number of days in the period of the taxpayer’s employment for which the termination payment was made.

10  Surcharge threshold

Surcharge threshold for 1996‑97 financial year

             (1)  The surcharge threshold for the 1996‑97 financial year is $70,000.

Surcharge threshold for later financial year

             (2)  The surcharge threshold for a later financial year is the amount calculated using the formula:

where:

previous surcharge threshold means the surcharge threshold for the financial year immediately before the financial year for which the surcharge threshold is being calculated.

indexation factor means the number calculated under subsections (4) and (5) for the financial year for which the surcharge threshold is being calculated.

Rounding off of amount of surcharge threshold

             (3)  If an amount worked out for the purposes of subsection (2) is an amount of dollars and cents:

                     (a)  if the number of cents is less than 50—the amount is to be rounded down to the nearest whole dollar; or

                     (b)  otherwise—the amount is to be rounded up to the nearest whole dollar.

Indexation factor

             (4)  The indexation factor for a financial year is the number calculated, to 3 decimal places, using the formula:

where:

index number, for a quarter, means the estimate of full‑time adult average weekly ordinary time earnings for the middle month of the quarter published by the Australian Statistician.

current March year means the period of 12 months ending on 31 March immediately before the financial year for which the surcharge threshold is being calculated.

previous March year means the period of 12 months immediately before the current March year.

Rounding up of indexation factor

             (5)  If the number calculated under subsection (4) for a financial year would, if it were worked out to 4 decimal places, end with a number greater than 4, the number so calculated is increased by 0.001.

Change in index numbers

             (6)  If at any time, whether before or after the commencement of this Act, the Australian Statistician has published or publishes an index number for a quarter in substitution for an index number previously published for the quarter, the publication of the later index number is to be disregarded.

Surcharge threshold to be published

             (7)  The Commissioner must publish before, or as soon as practicable after, the start of the 1997‑98 financial year, and before the start of each later financial year (being a financial year that ends before 1 July 2005), the surcharge threshold for the financial year.

Note:          For the purposes of this section, Australian Statistician means the Australian Statistician referred to in subsection 5(2) of the Australian Bureau of Statistics Act 1975.


 

Part 3Assessment and collection of surcharge

  

11  Assessment of liability to pay surcharge

Commissioner to assess surcharge

             (1)  For each financial year (being a financial year that ends before 1 July 2005) in which termination payments are made to or for a taxpayer, the Commissioner must make an assessment that:

                     (a)  calculates the taxpayer’s adjusted taxable income; and

                     (b)  if the adjusted taxable income is greater than the surcharge threshold:

                              (i)  calculates the termination payments; and

                             (ii)  calculates the rate of surcharge that applies to the taxpayer; and

                            (iii)  specifies the amount of the surcharge payable or, if no surcharge is payable, states that a nil amount of surcharge is payable; and

                     (c)  if the adjusted taxable income is equal to or less than the surcharge threshold—states that a nil amount of surcharge is payable.

When surcharge is payable

             (2)  Surcharge assessed under subsection (1) is payable within one month after the day on which the assessment is made.

Note:          For provisions about collection and recovery of termination payments surcharge and other related amounts, see Part 4‑15 in Schedule 1 to the Taxation Administration Act 1953.

Notice of assessment

             (3)  When an assessment (including an amended assessment) is made, the Commissioner must, subject to subsection (4), give notice of the assessment to the taxpayer.

No notice if nil amount assessed

             (4)  The Commissioner is not required under subsection (3) to give a notice of an assessment if the assessment states that a nil amount of surcharge is payable.

Particulars in notice of assessment

             (5)  A notice of assessment must include particulars of the matters contained in the assessment under subsection (1).

How a notice is to be given

             (6)  A notice of assessment may be given in any manner prescribed by the regulations.

Non‑compliance not to affect validity of assessment

             (7)  The validity of any assessment is not affected by any non‑compliance with a provision of this Act.

11A  Periods within which assessments may be amended

General provision

             (1)  The Commissioner may, subject to this section, at any time amend an assessment of surcharge on a termination payment or termination payments made to or for a taxpayer by making such alterations or additions as the Commissioner thinks necessary, even though surcharge has been paid in respect of the assessment. Such an amendment may be made on the Commissioner’s own initiative or at the request of the member.

Period for making further amendment

             (2)  If:

                     (a)  an assessment has been amended in any particular in a way that effected a reduction in the amount of surcharge payable; and

                     (b)  for the purposes of making the amendment, the Commissioner accepted a statement made by or on behalf of a taxpayer;

the Commissioner may, within 4 years from the date of service of the notice of the amended assessment, further amend the assessment in, or in respect of, that particular in a way that increases the amount of the surcharge payable to the extent that the Commissioner considers necessary.

Period where avoidance of surcharge

             (3)  Subject to this section, if there has been an avoidance of surcharge, the Commissioner may:

                     (a)  if the Commissioner is of the opinion that the avoidance of surcharge is due to fraud or evasion—at any time; or

                     (b)  in any other case—within 4 years from the date upon which the surcharge became due and payable under the assessment;

amend the assessment by making such alterations or additions as the Commissioner thinks necessary to correct the assessment.

Period where amendment reduces surcharge

             (4)  An amendment effecting a reduction in the amount of surcharge payable under an assessment is not to be made after the end of 4 years from the date upon which the surcharge became due and payable under the assessment.

Application or request for extension of period

             (5)  If:

                     (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 (3) or, if that period has been extended by any previous order or orders of the Federal Court of Australia made under subsection (6), or by any previous consent or consents of the taxpayer given under subsection (7), 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 (3)(b).

Court may extend period

             (6)  If, on application made to the Federal Court of Australia in accordance with subsection (5), 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 (5)(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 (3)(b) for such period as the Court considers appropriate.

Taxpayer may extend period

             (7)  If a request is made to the taxpayer in accordance with subsection (5), the taxpayer may, by writing, consent to the extension of the period within which the Commissioner may amend the assessment under paragraph (3)(b) for such period as is specified in the instrument of consent.

Meaning of take action

             (8)  In subsection (6), a reference to action taken by a taxpayer includes a reference to the institution by the taxpayer of a proceeding before a court or tribunal.

Period for further amendment reducing surcharge

             (9)  If an assessment has, under this section, been amended in any particular, the Commissioner may, within 4 years from the date upon which surcharge became due under the amended assessment, make, in or in respect of that particular, such further amendment of the assessment as, in the Commissioner’s opinion, is necessary to effect such reduction in the amount of surcharge payable under the assessment as is just.

Case when subsection (9) does not apply

           (10)  Subsection (9) does not authorise the further amendment of an earlier further amendment of an assessment made under subsection (2).

Assessment following application by taxpayer

           (11)  If:

                     (a)  an application for an amendment of an assessment is made by a taxpayer within 4 years from the date upon which surcharge became due and payable under the assessment; and

                     (b)  the taxpayer has given to the Commissioner within that period all information needed by the Commissioner for the purpose of deciding the application;

the Commissioner may amend the assessment when he or she decides the application even though that period has elapsed.

How application for amendment is to be made

           (12)  An application for amendment must be made in writing, on a data processing device or by way of electronic transmission and must be signed in accordance with the regulations.

Information to be contained in application

           (13)  An application for amendment must be given in the prescribed manner and contain the prescribed information.

Certain other powers of amendment not affected

           (14)  Nothing in this section prevents:

                     (a)  the amendment of an assessment in order to give effect to the decision upon any appeal or review; or

                     (b)  the amendment of an assessment by way of reduction in the amount of surcharge payable pursuant to an objection made against the assessment or pending any appeal or review.

12  Amendment of assessments

Application

             (1)  This section applies if, after the making of an assessment of surcharge on a termination payment or termination payments made to or for a taxpayer in a financial year:

                     (a)  the taxpayer’s adjusted taxable income for the financial year is increased or reduced and the increase or reduction affects the taxpayer’s liability to pay the surcharge; or

                     (b)  the amount of the payment or the sum of the amounts of the payments is greater or less than the amount that was taken to be the amount of the payment or the sum for the purposes of the assessment.

Commissioner may amend assessment

             (2)  The Commissioner may amend the assessment to take account of any matter referred to in paragraph (1)(a) or (b).

Amendment increasing surcharge

             (3)  If, as a result of the amendment of the assessment, the amount of surcharge is increased, the amount of the increase is payable within one month after the day on which the assessment is amended.

Amendment reducing surcharge

             (4)  If, as a result of the amendment of the assessment, the amount of surcharge is reduced:

                     (a)  the amount by which the surcharge is reduced is taken never to have been payable; and

                     (b)  the Commissioner must:

                              (i)  refund the amount of any surcharge overpaid; or

                             (ii)  apply that amount against any liability of the taxpayer to the Commonwealth under this Act, and refund to the taxpayer any part of that amount not so applied.

This section subject to section 11A

             (5)  This section is subject to section 11A.

13  Payment of general interest charge if liability increased by amended assessment

Liability to pay general interest charge

             (1)  If an amendment of an assessment increasing a taxpayer’s liability to pay surcharge for a financial year is made, the taxpayer is liable to pay the general interest charge on the amount of the increase for each day in the period that:

                     (a)  started at the beginning of 15 June in the financial year; and

                     (b)  finishes at the end of the day before the amended assessment is made.

Note:          The general interest charge is worked out under Part IIA of the Taxation Administration Act 1953.

Amendment of nil assessment

             (2)  If:

                     (a)  the Commissioner has calculated that no surcharge is payable by a taxpayer for a financial year; and

                     (b)  the Commissioner afterwards makes an assessment of surcharge payable by the taxpayer for the financial year;

that assessment is taken to be an amended assessment.

14  Commissioner may use tax file numbers for the purposes of this Act

                   The Commissioner may use for the purposes of this Act a tax file number that has been provided for any other purpose.

15  Objections against assessments

                   If:

                     (a)  an assessment of surcharge payable by a taxpayer is made; and

                     (b)  the taxpayer is dissatisfied with the assessment;

the taxpayer may object against it in the way set out in Part IVC of the Taxation Administration Act 1953.


 

Part 4Recovery of unpaid surcharge, general interest charge or late payment penalty

  

16  Penalty for non‑payment of surcharge

Liability to pay general interest charge

             (1)  If an amount of surcharge payable by a taxpayer remains unpaid after the time by which it is due to be paid, the taxpayer is liable to pay the general interest charge on the unpaid amount.

Note:          The general interest charge is worked out under Part IIA of the Taxation Administration Act 1953.

General interest charge period

             (2)  The taxpayer is liable to pay the general interest charge for each day in the period that:

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

                     (b)  finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:

                              (i)  the surcharge;

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

Commissioner’s right to sue not affected

          (3B)  This section does not prevent the Commissioner from suing for the recovery of any unpaid surcharge, general interest charge or late payment penalty at any time after it becomes due and payable.

16A  Additional liability to pay general interest charge

Commissioner may give notice

             (1)  If general interest charge (the primary general interest charge) is payable by a person under section 13, the Commissioner may give a notice to the person specifying a date after which general interest charge will apply under this section. The specified date must be at least 30 days after the notice is given.

Liability to general interest charge

             (2)  If any of the primary general interest charge remains unpaid after the day specified in the notice, the person is liable to pay general interest charge on the unpaid amount.

Note:          The general interest charge is worked out under Part IIA of the Taxation Administration Act 1953.

General interest charge period

             (3)  The person is liable to pay the general interest charge for each day in the period that:

                     (a)  started at the beginning of the day specified in the notice; and

                     (b)  finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:

                              (i)  primary general interest charge;

                             (ii)  general interest charge on primary general interest charge.


 

Part 5Administration

  

21  General administration of Act

                   The Commissioner has the general administration of this Act.

Note:          An effect of this provision is that people who acquire information under this Act are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.

22  Annual report

                   After the end of each financial year, the Commissioner must give the Treasurer a report on the working of this Act during the year for presentation to the Parliament.


 

Part 6Miscellaneous

  

24  Authorised officers

                   The Commissioner may, by writing, authorise a person who is engaged under the Public Service Act 1999 to be an authorised officer for the purposes of a provision or provisions of this Part.

25  Evidence

Assessment to be evidence of correctness of calculations

             (1)  The mere production of:

                     (a)  an assessment; or

                     (b)  a document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner purporting to be a copy of an assessment;

is conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment, that the amounts and all of the particulars of the assessment are correct.

Copies of documents

             (2)  A document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner purporting to be a copy of a document issued or given by the Commissioner, a Second Commissioner or a Deputy Commissioner is prima facie evidence that the second‑mentioned document was so issued or given.

Copy of, or extract from, assessment

             (3)  A document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner purporting to be a copy of, or an extract from, an assessment is evidence of the matter set out in the document to the same extent as the original assessment would be if it were produced.

Certificates

             (4)  A certificate signed by the Commissioner, a Second Commissioner or a Deputy Commissioner certifying that an amount stated in the certificate was, on the day of the certificate, payable by a person as an amount of surcharge, general interest charge under section 13 or late payment penalty, is prima facie evidence of the matters stated in the certificate.

26  Access to premises etc.

Powers of authorised officer

             (1)  For the purposes of this Act, an authorised officer:

                     (a)  may, at any reasonable time, enter and remain on any land or premises; and

                     (b)  is entitled to full and free access at any reasonable time to all documents; and

                     (c)  may inspect, examine, make copies of, or take extracts from, any documents.

Proof of authority to be produced

             (2)  An authorised officer is not entitled to enter or remain on any land or premises if, on being requested by the occupier of the land or premises for proof of authority, the officer does not produce a written authority signed by the Commissioner stating that the officer is authorised to exercise powers under this section.

Occupier to help authorised officer

             (3)  The occupier of land or premises entered or proposed to be entered by an authorised officer under subsection (1) must, for the purpose of enabling the effective exercise of the officer’s powers under this section, provide the officer with all reasonable facilities and assistance that the occupier is reasonably capable of providing.

Penalty:  30 penalty units.

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

27  Obtaining information and evidence

Power of Commissioner to obtain information or documents

             (1)  The Commissioner may, for the purposes of this Act, by written notice, require a person:

                     (a)  to give to the Commissioner, within a reasonable period, and in a reasonable manner, stated in the notice, any information that the Commissioner requires; and

                     (b)  to attend before the Commissioner, or an authorised officer, at a reasonable time and place stated in the notice, and answer questions; and

                     (c)  to produce to the Commissioner, at a reasonable time and place stated in the notice, any documents in the custody or under the control of the person.

Power to require information on oath or affirmation

             (2)  The Commissioner may require the information or answers to be verified or given on oath or affirmation, and either orally or in writing, and for that purpose the Commissioner or an authorised officer may administer an oath or affirmation.

Nature of oath or affirmation

             (3)  The oath to be taken or affirmation to be made by a person is an oath or affirmation that the information or answers the person will give will be true.

Expenses of attendance

             (4)  The regulations are to prescribe scales of expenses to be allowed to persons required to attend under this section.

28  Records to be kept and retained by employer

Employer to keep records

             (1)  An employer must keep records that record and explain all termination payments made by the employer.

How records to be kept

             (2)  The records must be kept 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.

Period for retention of records

             (3)  An employer who has possession of any records kept or obtained under or for the purposes of this Act must retain them until the end of 5 years after they were prepared or obtained, or the making of the payments to which those records relate, whichever is the later.

When records need not be kept

             (4)  This section does not require an employer to retain records if:

                     (a)  the Commissioner has notified the employer that the retention of the records is not required; or

                     (b)  the employer is a company that has gone into liquidation and been finally dissolved.

Offences

             (5)  An employer who contravenes this section is guilty of an offence punishable on conviction by a fine of not more than 60 penalty units.

Note 1:       Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:       The amount of a penalty unit is stated in section 4AA of the Crimes Act 1914. If a body corporate is convicted of an offence, subsection 4B(3) of that Act allows a court to impose a fine that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.

Note 3:       In a prosecution for an offence against subsection (5), the defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

29  Application of the Criminal Code

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

30  Regulations

                   The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.


 

Part 7Interpretation

  

31  Definitions

                   In this Act, unless the contrary intention applies:

adjusted taxable income of a taxpayer has the same meaning as adjusted taxable income of a member has in the Superannuation Contributions Tax (Assessment and Collection) Act 1997.

assessment means an assessment made under subsection 11(1).

authorised officer means a person engaged under the Public Service Act 1999 who has been authorised in writing by the Commissioner for the purposes of the provision in which the expression occurs.

Commissioner means the Commissioner of Taxation.

Deputy Commissioner means a Deputy Commissioner of Taxation.

general interest charge means the charge worked out under Part IIA of the Taxation Administration Act 1953.

Income Tax Assessment Act means the Income Tax Assessment Act 1936.

late payment penalty means general interest charge payable under section 16 or 16A.

post‑June 1994 invalidity component of an eligible termination payment has the meaning given by subsection 27A(1) of the Income Tax Assessment Act.

retained amount has the meaning given by section 27AC of the Income Tax Assessment Act.

Second Commissioner means a Second Commissioner of Taxation.

surcharge threshold has the meaning given by section 10.

taxpayer means an individual who is a taxpayer for the purposes of the Income Tax Assessment Act but does not include an individual acting as a trustee.

termination payment has the meaning given by subsection 7(2).

termination payments surcharge or surcharge means the tax imposed by the Termination Payments Tax Imposition Act 1997.

the 1996‑97 financial year means the financial year that started on 1 July 1996.


Notes to the Termination Payments Tax (Assessment and Collection) Act 1997

Note 1

The Termination Payments Tax (Assessment and Collection) Act 1997 as shown in this compilation comprises Act No. 73, 1997 amended as indicated in the Tables below.

All relevant information pertaining to application, saving or transitional provisions prior to 13 October 1999 is not included in this compilation. For subsequent information see Table A.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

Termination Payments Tax (Assessment and Collection) Act 1997

73, 1997

5 June 1997

5 June 1997

 

Taxation Laws Amendment Act (No. 3) 1997

147, 1997

14 Oct 1997

Schedule 1 (item 44): Royal Assent (a)

Sch. 1 (item 45)

as amended by

 

 

 

 

Superannuation Contributions and Termination Payments Taxes Legislation Amendment Act 1999

131, 1999

13 Oct 1999

Schedule 6: 14 Oct 1997 (aa)

Superannuation Contributions and Termination Payments Taxes Legislation Amendment Act 1997

191, 1997

7 Dec 1997

Schedule 9: 5 June 1997 (b)

Taxation Laws Amendment Act (No. 3) 1999

11, 1999

31 Mar 1999

Schedule 1 (items 376–392): 1 July 1999 (c)

¾

Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999

44, 1999

17 June 1999

Schedule 7 (items 229–231): 1 July 1999 (see Gazette 1999, No. S283) (d)

S. 3(2)(e) (am. by 160, 2000, Sch. 4 [item 4])

as amended by

 

 

 

 

Financial Sector Legislation Amendment Act (No. 1) 2000

160, 2000

21 Dec 2000

Schedule 1 (item 21): Royal Assent
Remainder: 18 Jan 2001

Superannuation Contributions and Termination Payments Taxes Legislation Amendment Act 1999

131, 1999

13 Oct 1999

Schedule 3: Royal Assent (e)

Sch. 3 (item 7)

Public Employment (Consequential and Transitional) Amendment Act 1999

146, 1999

11 Nov 1999

Schedule 1 (items 932–934): (see Gazette 1999, No. S584) (f)

A New Tax System (Tax Administration) Act 1999

179, 1999

22 Dec 1999

Schedule 2 (items 108–110, 130, 132): (g)

Sch. 2 (items 130, 132)

A New Tax System (Tax Administration) Act (No. 1) 2000

44, 2000

3 May 2000

Schedule 3 (item 69): (h)

A New Tax System (Tax Administration) Act (No. 2) 2000

91, 2000

30 June 2000

Schedule 2 (items 124, 129): (i)

Sch. 2 (item 129)

Superannuation Contributions Taxes and Termination Payments Tax Legislation Amendment Act 2001

96, 2001

15 Aug 2001

Schedule 3: 5 June 1997 (j)

Sch. 3 (items 4, 5)

Superannuation Laws Amendment (Abolition of Surcharge) Act 2005

102, 2005

12 Aug 2005

12 Aug 2005

Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006

101, 2006

14 Sept 2006

Schedule 2 (items 1017, 1060–1063) and Schedule 6 (items 1, 6–11): Royal Assent

Sch. 6 (items 1,
 6–11)

Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010

145, 2010

16 Dec 2010

Schedule 2 (items 120, 121): 17 Dec 2010


(a)     The Termination Payments Tax (Assessment and Collection) Act 1997 was amended by Schedule 1 (item 44) only of the Taxation Laws Amendment Act (No. 3) 1997, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(aa)   The Taxation Laws Amendment Act (No. 3) 1997 was amended by Schedule 6 only of the Superannuation Contributions and Termination Payments Taxes Legislation Amendment Act 1999, subsection 2(4) of which provides as follows:

                 (4)   Schedule 6 is taken to have commenced on 14 October 1997, immediately after the commencement of Schedule 1 to the Taxation Laws Amendment Act (No. 3) 1997.

(b)     The Termination Payments Tax (Assessment and Collection) Act 1997 was amended by Schedule 9 only of the Superannuation Contributions and Termination Payments Taxes Legislation Amendment Act 1997, subsection 2(5) of which provides as follows:

                 (5)   Schedule 9 is taken to have commenced on 5 June 1997, immediately after the commencement of the Termination Payments Tax (Assessment and Collection) Act 1997.

(c)     The Termination Payments Tax (Assessment and Collection) Act 1997 was amended by Schedule 1 (items 376–392) only of the Taxation Laws Amendment Act (No. 3) 1999, subsection 2(3) of which provides as follows:

                 (3)   Subject to subsections (4) and (5), Schedule 1 commences on 1 July 1999.

(d)     The Termination Payments Tax (Assessment and Collection) Act 1997 was amended by Schedule 7 (items 229–231) only of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999, subsections 3(2)(e) and (16) of which provide as follows:

                 (2)   The following provisions commence on the transfer date:

                      (e)   subject to subsection (12), Schedule 7, other than items 43, 44, 118, 205 and 207 (the commencement of those items is covered by subsections (10), (11) and (13)).

               (16)   The Governor‑General may, by Proclamation published in the Gazette, specify the date that is to be the transfer date for the purposes of this Act.

(e)     The Termination Payments Tax (Assessment and Collection) Act 1997 was amended by Schedule 3 only of the Superannuation Contributions and Termination Payments Taxes Legislation Amendment Act 1999, subsection 2(1)of which provides as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(f)      The Termination Payments Tax (Assessment and Collection) Act 1997 was amended by Schedule 1 (items 932–934) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:

                 (1)   In this Act, commencing time means the time when the Public Service Act 1999 commences.

                 (2)   Subject to this section, this Act commences at the commencing time.

(g)     The Termination Payments Tax (Assessment and Collection) Act 1997 was amended by Schedule 2 (items 108–110) only of the A New Tax System (Tax Administration) Act 1999, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences, or is taken to have commenced, immediately after the commencement of section 1 of the A New Tax System (Pay As You Go) Act 1999.

         Section 1 commenced on 22 December 1999.

(h)     The Termination Payments Tax (Assessment and Collection) Act 1997 was amended by Schedule 3 (item 69) only of the A New Tax System (Tax Administration) Act (No. 1) 2000, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences, or is taken to have commenced, immediately after the commencement of section 1 of the A New Tax System (Tax Administration) Act 1999.

         Section 1 commenced on 22 December 1999.

(i)      The Termination Payments Tax (Assessment and Collection) Act 1997 was amended by Schedule 2 (item 124) only of the A New Tax System (Tax Administration) Act (No. 2) 2000, subsection 3(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences, or is taken to have commenced, immediately after the commencement of section 1‑1 of the A New Tax System (Goods and Services Tax) Act 1999.

         Section 1‑1 of the A New Tax System (Goods and Services Tax) Act 1999 commenced on 1 July 2000.

(j)      The Termination Payments Tax (Assessment and Collection) Act 1997 was amended by Schedule 3 only of the Superannuation Contributions Taxes and Termination Payments Tax Legislation Amendment Act 2001, subsection 2(4) of which provides as follows:

                 (4)   Schedule 3 is taken to have commenced on 5 June 1997, immediately after the commencement of the Termination Payments Tax (Assessment and Collection) Act 1997.


Table of Amendments

ad. = added or inserted      am. = amended      rep. = repealed      rs. = repealed and substituted

Provision affected

How affected

Part 1

 

S. 6......................................

am. Nos. 11 and 131, 1999; No. 102, 2005

Part 2

 

S. 7......................................

am. No. 147, 1997 (as am. by No. 131, 1999); No. 102, 2005

S. 8......................................

am. No. 96, 2001

S. 9......................................

rs. No. 96, 2001

S. 10....................................

am. No. 102, 2005

Part 3

 

S. 11....................................

am. No. 131, 1999; No. 102, 2005

Note to s. 11(2)..................

ad. No. 44, 2000

S. 11A.................................

ad. No. 131, 1999

S. 12....................................

am. No. 191, 1997; No. 131, 1999

S. 13....................................

rs. No. 11, 1999

Note to s. 13(1)..................

am. No. 101, 2006

Part 4

 

Heading to Part 4..............

rs. No. 11, 1999

S. 16....................................

am. No. 191, 1997; No. 11, 1999

Note to s. 16(1)..................

am. No. 101, 2006

S. 16A.................................

ad. No. 11, 1999

Note to s. 16A(2)................

am. No. 101, 2006

S. 17....................................

am. No. 11, 1999

 

rep. No. 179, 1999

Heading to s. 18................

am. No. 11, 1999

 

rep. No. 179, 1999

S. 18....................................

am. No. 11, 1999

 

rep. No. 179, 1999

S. 19....................................

rep. No. 11, 1999

S. 20....................................

rep. No. 11, 1999

Part 5

 

Note to s. 21.......................

ad. No. 145, 2010

S. 23....................................

am. No. 146, 1999

 

rep. No. 145, 2010

Note 1 to s. 23(2)...............

rs. No. 191, 1997

 

rep. No. 145, 2010

Note 2 to s. 23(2)...............

ad. No. 191, 1997

 

rep. No. 145, 2010

Part 6

 

S. 24....................................

am. No. 191, 1997; No. 146, 1999

S. 25....................................

am. No. 11, 1999

S. 26....................................

am. No. 91, 2000

S. 28....................................

am. No. 191, 1997

S. 28A.................................

ad. No. 191, 1997

 

am. Nos. 11 and 44, 1999

 

rep. No. 179, 1999

Part 7

 

S. 31....................................

am. No. 191, 1997; Nos. 11, 131 and 146, 1999; No. 101, 2006


Table A

Application, saving or transitional provisions

Superannuation Contributions and Termination Payments Taxes Legislation Amendment Act 1999 (No. 131, 1999)

Schedule 3 

7  Application of amendments

The amendments made by items 2 to 6 apply to assessments of surcharge payable for the financial year beginning on 1 July 1999 and later financial years.

 

A New Tax System (Tax Administration) Act 1999 (No. 179, 1999)

Schedule 2 

130  Recovery of a tax‑related liability that is due and payable

Despite its repeal, a provision listed in the table continues to have effect in relation to an amount that became due and payable before 1 July 2000.

 

Tax‑related liability that became due and payable before 1 July 2000

Item

Act

Provision

1

Fringe Benefits Tax Assessment Act 1986

section 94

2

Petroleum Resource Rent Tax Assessment Act 1987

section 86

3

Sales Tax Assessment Act 1992

section 69

4

Superannuation Contributions Tax (Assessment and Collection) Act 1997

section 26 or 27

5

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

section 22 or 23

6

Superannuation Guarantee (Administration) Act 1992

section 50

7

Termination Payments Tax (Assessment and Collection) Act 1997

section 17 or 18

8

Taxation Administration Act 1953

subsection 8AAV(1) or (2)

9

Tobacco Charges Assessment Act 1955

section 21

10

Wool Tax (Administration) Act 1964

section 44

132  Collecting amounts from third parties

Despite the repeal of a provision listed in the table:

                     (a)  anything done under that provision before 1 July 2000 continues to have effect on and after that day as if the provision had not been repealed; and

                     (b)  anything done on or after that day, under that provision as it continues to have effect because of this item, has effect as if the provision had not been repealed.

 

Collecting amounts from third parties

Item

Act

Provision

1

Fringe Benefits Tax Assessment Act 1986

section 99

2

Petroleum Resource Rent Tax Assessment Act 1987

section 91

3

Sales Tax Assessment Act 1992

section 74

4

Superannuation Contributions Tax (Assessment and Collection) Act 1997

section 40A

5

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

section 35

6

Superannuation Guarantee (Administration) Act 1992

section 56

7

Termination Payments Tax (Assessment and Collection) Act 1997

section 28A

8

Wool Tax (Administration) Act 1964

section 54

 

A New Tax System (Tax Administration) Act (No. 2) 2000 (No. 91, 2000)

Schedule 2 

129  Transitional—existing RBAs

Although the A New Tax System (Pay As You Go) Act 1999 repealed subsection 8AAZL(3) of the Taxation Administration Act 1953, special priority credits referred to in that subsection are to continue to be applied in accordance with that subsection.

 

Superannuation Contributions Taxes and Termination Payments Tax Legislation Amendment Act 2001 (No. 96, 2001)

Schedule 3 

4  Application

The amendments made by this Schedule apply only to payments made after 7.30 pm by legal time in the Australian Capital Territory on 22 May 2001.

5  Amendment of assessments

Nothing in the Termination Payments Tax (Assessment and Collection) Act 1997 prevents the amendment of an assessment of surcharge on termination payments made to or for a taxpayer for a financial year for the purpose of giving effect to an amendment of that Act made by this Schedule or Schedule 1 if the Commissioner has sufficient information to satisfy himself or herself that the amendment is required or permitted for that purpose and the amendment does not increase the amount of surcharge payable in respect of those termination payments.

 

 

Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006
(No. 101, 2006)

Schedule 6

1  Application of Schedule 1 and 2 amendments

Except as mentioned in items 2 and 3, the repeals and amendments made by Schedules 1 and 2 apply:

                     (a)  so far as they affect assessments—to assessments for the 2006‑07 income year and all later income years; and

                     (b)  otherwise—to acts done or omitted to be done, or states of affairs existing, after the commencement of the repeals and amendments.

6  Object

The object of this Part is to ensure that, despite the repeals and amendments made by this Act, the full legal and administrative consequences of:

                     (a)  any act done or omitted to be done; or

                     (b)  any state of affairs existing; or

                     (c)  any period ending;

before such a repeal or amendment applies, can continue to arise and be carried out, directly or indirectly through an indefinite number of steps, even if some or all of those steps are taken after the repeal or amendment applies.

7  Making and amending assessments, and doing other things, in relation to past matters

Even though an Act is repealed or amended by this Act, the repeal or amendment is disregarded for the purpose of doing any of the following under any Act or legislative instrument (within the meaning of the Legislative Instruments Act 2003):

                     (a)  making or amending an assessment (including under a provision that is itself repealed or amended);

                     (b)  exercising any right or power, performing any obligation or duty or doing any other thing (including under a provision that is itself repealed or amended);

in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.

Example 1: On 31 July 1999, Greg Ltd lodged its annual return under former section 160ARE of the Income Tax Assessment Act 1936. The return stated that the company had a credit on its franking account and that no franking deficit tax was payable for the 1998‑99 franking year. Under former section 160ARH of that Act, the Commissioner was taken to have made an assessment consistent with the return.

                   Following an audit undertaken after the repeal of Part IIIAA of that Act, the Commissioner concludes that Greg Ltd fraudulently overfranked dividends it paid during the 1998‑99 franking year, and had a franking account deficit for that franking year. As a result, the Commissioner considers that franking deficit tax and a penalty by way of additional tax are payable.

                   The Commissioner can amend the assessment under former section 160ARN of that Act, because item 7 of this Schedule disregards the repeal of that section for the purposes of making an assessment in relation to the 1998‑99 franking year. Item 7 will also disregard the repeal of Division 11 of former Part IIIAA to the extent necessary for the Commissioner to assess Greg Ltd’s liability to a penalty by way of additional tax.

                   Despite the repeal of sections 160ARU and 160ARV, item 9 will ensure that the general interest charge will accrue on the unpaid franking deficit tax and penalty until they are paid.

                   Item 7 will also preserve Greg Ltd’s right, under former section 160ART of that Act, to object against the Commissioner’s amended assessment (including the penalty), since the objection is the exercise of a right in relation to a franking year that ended before the repeal of Part IIIAA.

Example 2: During the 1997‑98 income year, Duffy Property Ltd withheld amounts from its employees’ wages as required by former Divisions 1AAA and 2 of Part VI of the Income Tax Assessment Act 1936. The company failed to notify the Commissioner of those amounts, and failed to remit them to the Commissioner.

                   Following an audit undertaken after the repeal of those Divisions, the Commissioner discovers that the withheld amounts have not been remitted. The company’s records are incomplete and the Commissioner is unable to completely ascertain the extent of its liability for the withheld amounts. Under section 222AGA of that Act, the Commissioner makes an estimate of the liability.

                   Item 7 will disregard the repeal of section 220AAZA of that Act (which empowered the Commissioner to recover the amount of the estimate). Even though the estimate is made after the repeal, it relates to amounts withheld before the repeal.

8  Saving of provisions about effect of assessments

If a provision or part of a provision that is repealed or amended by this Act deals with the effect of an assessment, the repeal or amendment is disregarded in relation to assessments made, before or after the repeal or amendment applies, in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.

9  Saving of provisions about general interest charge, failure to notify penalty or late reconciliation statement penalty

If:

                     (a)  a provision or part of a provision that is repealed or amended by this Act provides for the payment of:

                              (i)  general interest charge, failure to notify penalty or late reconciliation statement penalty (all within the meaning of the Income Tax Assessment Act 1936); or

                             (ii)  interest under the Taxation (Interest on Overpayments and Early Payments) Act 1983; and

                     (b)  in a particular case, the period in respect of which the charge, penalty or interest is payable (whether under the provision or under the Taxation Administration Act 1953) has not begun, or has begun but not ended, when the provision is repealed or amended;

then, despite the repeal or amendment, the provision or part continues to apply in the particular case until the end of the period.

10  Repeals disregarded for the purposes of dependent provisions

If the operation of a provision (the subject provision) of any Act or legislative instrument (within the meaning of the Legislative Instruments Act 2003) made under any Act depends to any extent on an Act, or a provision of an Act, that is repealed by this Act, the repeal is disregarded so far as it affects the operation of the subject provision.

11  Schedule does not limit operation of section 8 of the Acts Interpretation Act 1901

This Schedule does not limit the operation of section 8 of the Acts Interpretation Act 1901.