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Taxation Administration Act 1953

Authoritative Version
  • - C2013C00574
  • In force - Superseded Version
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Act No. 1 of 1953 as amended, taking into account amendments up to Private Health Insurance Amendment (Lifetime Health Cover Loading and Other Measures) Act 2013
An Act to provide for the administration of certain Acts relating to Taxation, and for purposes connected therewith
Administered by: Treasury
Registered 27 Sep 2013
Start Date 01 Jul 2013
End Date 11 Mar 2014

 

 

 

Taxation Administration Act 1953

No. 1, 1953 as amended

Compilation start date:                     1 July 2013

Includes amendments up to:            Act No. 124, 2013

This compilation has been split into 3 volumes

Volume 1:       sections 1–18

Volume 2:       Schedule

Volume 3:       Endnotes

Each volume has its own contents

 

About this compilation

This compilation

This is a compilation of the Taxation Administration Act 1953 as in force on 1 July 2013. It includes any commenced amendment affecting the legislation to that date.

This compilation was prepared on 27 September 2013.

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of each amended provision.

Uncommenced amendments

The effect of uncommenced amendments is not reflected in the text of the compiled law but the text of the amendments is included in the endnotes.

Application, saving and transitional provisions for provisions and amendments

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

Modifications

If a provision of the compiled law is affected by a modification that is in force, details are included in the endnotes.

Provisions ceasing to have effect

If a provision of the compiled law has expired or otherwise ceased to have effect in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part I—Preliminary                                                                                                              1

1............................ Short title............................................................................ 1

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

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

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

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

Part IA—Administration                                                                                                   5

3A......................... General administration of Act............................................. 5

3B.......................... Annual report...................................................................... 5

3C.......................... Reporting of information about corporate tax entity with reported total income of $100 million or more............................................................................................ 6

3D......................... Reporting of information about entity with MRRT payable 7

3E.......................... Reporting of information about entity with PRRT payable. 8

Part II—Commissioner of Taxation, Second Commissioner of Taxation and Deputy Commissioner of Taxation                                                                                                                  10

4............................ Commissioner and Second Commissioners of Taxation... 10

4A......................... Statutory Agency etc. for purposes of Public Service Act 10

5............................ Tenure of Commissioner and Second Commissioners..... 10

5A......................... Remuneration and allowances of Commissioner and Second Commissioners         10

6............................ Leave of absence............................................................... 11

6A......................... Resignation....................................................................... 11

6B.......................... Acting appointments......................................................... 11

6C.......................... Suspension and removal from office of Commissioner or Second Commissioner  12

6D......................... Powers of Second Commissioner..................................... 13

7............................ Deputy Commissioners of Taxation................................. 14

8............................ Delegation......................................................................... 14

Part IIA—The general interest charge                                                                   16

8AAA................... Overview.......................................................................... 16

8AAB.................... When the general interest charge applies........................... 16

8AAC.................... Amount of the general interest charge............................... 21

8AAD................... What is the general interest charge rate?......................... 22

8AAE.................... When the charge is due and payable................................. 23

8AAF.................... Notification by Commissioner.......................................... 23

8AAG................... Remission of the charge.................................................... 23

8AAGA................ Rounding of the charge..................................................... 24

8AAH................... Judgment for payment of an unpaid amount..................... 24

Part IIB—Running balance accounts, application of payments and credits, and related matters          25

Division 1—Preliminary                                                                                            25

8AAZA................. Definitions........................................................................ 25

8AAZB................. Trustee to be treated as separate entity for each capacity... 27

Division 2—Running Balance Accounts (or RBAs)                                    28

8AAZC................. Establishment of RBAs.................................................... 28

8AAZD................. Allocation of tax debts to RBAs....................................... 28

8AAZF.................. General interest charge on RBA deficit debt..................... 29

8AAZG................. RBA statements................................................................ 29

8AAZH................. Liability for RBA deficit debt........................................... 29

8AAZI................... RBA statement to be evidence.......................................... 30

8AAZJ.................. Evidentiary certificate about RBA transactions etc............ 30

Division 3—Treatment of payments, credits and RBA surpluses       32

8AAZL.................. Amounts covered by this Division................................... 32

8AAZLA............... Method 1—allocating the amount first to an RBA............ 32

8AAZLB............... Method 2—applying the amount first against a non‑RBA tax debt          33

8AAZLC............... RBA surplus and related credits must remain equivalent if one or the other is applied            34

8AAZLD............... Special priority credits: FS assessment debts and compulsory repayment amounts 34

8AAZLE............... Instructions to Commissioner not binding........................ 34

Division 3A—Refunds of RBA surpluses and credits                                35

8AAZLF............... Commissioner must refund RBA surpluses and credits... 35

8AAZLG............... Retaining refunds until information or notification given.. 35

8AAZLGA............ Retaining refunds while Commissioner verifies information 36

8AAZLH............... How refunds are made...................................................... 39

Division 4—Miscellaneous provisions about tax debts                             40

8AAZM................ When payments are treated as received............................. 40

8AAZMA............. Electronic payment of tax debts........................................ 40

8AAZMB.............. Saturdays, Sundays and public holidays........................... 40

8AAZN................. Overpayments made by the Commissioner under taxation laws              41

Part III—Prosecutions and offences                                                                        42

Division 1—Preliminary                                                                                            42

8A......................... Interpretation..................................................................... 42

8AB....................... Application of Part to the Development Allowance Authority Act 1992    43

8AC....................... Application of Part to the Tax Agent Services Act 2009.... 43

Division 2—Offences                                                                                                   44

Subdivision A—Failure to comply with taxation requirements                   44

8B.......................... Interpretation..................................................................... 44

8C.......................... Failure to comply with requirements under taxation law... 45

8D......................... Failure to answer questions when attending before the Commissioner etc.              46

8E.......................... Penalties for failure to comply with requirements under taxation law      46

8F.......................... Election to treat offence otherwise than as prescribed taxation offence    47

8G......................... Order to comply with requirement.................................... 47

8H......................... Penalty for failure to comply with order to comply........... 48

8HA...................... Court may order payment of amount in addition to penalty 48

Subdivision B—Offences relating to statements, records and certain other Acts          49

8J........................... Interpretation..................................................................... 49

8K.......................... False or misleading statements.......................................... 55

8L.......................... Incorrectly keeping records etc......................................... 56

8M......................... Penalties for offences against subsections 8K(1) and (1B) and 8L(1) and (1A)      57

8N......................... Recklessly making false or misleading statements............ 57

8Q......................... Recklessly incorrectly keeping records etc........................ 57

8R.......................... Penalties for offences against sections 8N and 8Q........... 58

8S.......................... Election to treat offence otherwise than as prescribed taxation offence    59

8T.......................... Incorrectly keeping records with intention of deceiving or misleading etc.              59

8U......................... Falsifying or concealing identity with intention of deceiving or misleading etc.       60

8V......................... Penalties for offences against sections 8T and 8U............ 60

8W......................... Court may order payment of amount in addition to penalty 61

Subdivision BA—Offences relating to tax file numbers                                64

8WA...................... Unauthorised requirement etc. that tax file number be quoted  64

8WB...................... Unauthorised recording etc. of tax file number................. 65

8WC...................... Conducting affairs so as to avoid tax file number requirements               66

Subdivision C—Miscellaneous                                                                              67

8XA...................... Unauthorised access to taxation records........................... 67

8Y......................... Liability of officers etc. of corporations............................ 68

8Z.......................... Evidentiary certificate relating to previous convictions..... 69

Division 3—Prosecution of taxation offences                                                70

8ZA....................... Prosecution of taxation offences....................................... 70

8ZB....................... Prosecution may be commenced at any time..................... 70

8ZC....................... Place where offence committed......................................... 71

8ZD....................... Conduct by servants or agents of corporations................. 71

8ZE........................ Civil penalty not payable if prosecution instituted............. 72

8ZF........................ Penalties for corporations................................................. 72

8ZG....................... Enforcement of orders for payment.................................. 73

8ZH....................... Penalties not to relieve from tax........................................ 74

Division 4—Prescribed taxation offences                                                        75

8ZJ........................ Prosecution of prescribed taxation offences...................... 75

8ZK....................... Protection of witnesses..................................................... 76

8ZL........................ Averment.......................................................................... 77

8ZM...................... Evidence of authority to institute proceedings................... 77

8ZN....................... Costs................................................................................. 78

Division 5—Service of summons for prescribed taxation offences    79

9............................ Interpretation..................................................................... 79

10.......................... Service of summons by post............................................. 79

11.......................... Notice of conviction in absentia....................................... 79

12.......................... Notice of intention to issue warrant in default of payment 80

13.......................... Limitation of action to enforce payment of fine................. 81

13A....................... Setting aside of conviction or order.................................. 81

13B........................ Proof of service of summons or notice............................. 83

13C........................ Application of other laws.................................................. 83

Division 6—Setting aside etc. of conviction or order on application of Commissioner                85

13CA..................... Setting aside etc. of conviction or order on application of Commissioner                85

Part IIIA—Co‑operation between Commonwealth and State taxation authorities          87

Division 1—Interpretation                                                                                       87

13D....................... Interpretation..................................................................... 87

Division 2—Trans‑border investigations                                                         89

13E........................ State taxation officers may refer matters to Commissioner for investigation            89

13F........................ Access to documents etc................................................... 89

13G....................... Commissioner may obtain information and evidence........ 90

Division 4—Certification by State taxation officer of copies of, and extracts from, documents             91

13K........................ Certification by State taxation officer of copies of, and extracts from, documents   91

Division 5—Australian Taxation Office may perform functions under State/Territory debits tax laws                                                                                                                      93

13L........................ Australian Taxation Office may perform functions under State/Territory debits tax laws        93

Part IVA—Departure from Australia of certain tax debtors                   95

Division 1—Interpretation                                                                                       95

14Q....................... Interpretation..................................................................... 95

Division 2—Prohibition and authorisation of departure of certain tax debtors               96

14R........................ Departure from Australia of certain tax debtors prohibited 96

14S........................ Departure prohibition orders............................................. 96

14T........................ Revocation and variation of departure prohibition orders. 97

14U....................... Departure authorisation certificates................................... 98

Division 3—Appeals from, and review of, decisions of the Commissioner          101

14V....................... Appeals to courts against making of departure prohibition orders           101

14W....................... Jurisdiction of courts...................................................... 101

14X....................... Orders of court on appeal............................................... 101

14Y....................... Applications for review of certain decisions................... 102

Division 4—Enforcement                                                                                        103

14Z........................ Powers of authorised officers......................................... 103

14ZA..................... Certain tax debtors to produce authority to depart etc..... 104

Part IVC—Taxation objections, reviews and appeals                                 105

Division 1—Introduction                                                                                        105

14ZL...................... Part applies to taxation objections................................... 105

14ZM.................... Division 2—Interpretive................................................. 105

14ZN..................... Division 3—Taxation objections.................................... 105

14ZO..................... Division 4—Tribunal review.......................................... 105

14ZP...................... Division 5—Federal Court appeals................................. 105

Division 2—Interpretive provisions                                                                  106

14ZQ..................... General interpretation provisions.................................... 106

14ZR..................... Taxation decisions covered by single notice to be treated as single decision            107

14ZS...................... Ineligible income tax remission decisions....................... 108

Division 3—Taxation objections                                                                         109

14ZU..................... How taxation objections are to be made.......................... 109

14ZV..................... Limited objection rights in the case of certain amended taxation decisions               109

14ZVA.................. Limited objection rights because of objection against private ruling         109

14ZVB.................. Objections relating to excess concessional contributions 109

14ZW.................... When taxation objections are to be made........................ 110

14ZX..................... Commissioner to consider applications for extension of time  116

14ZY..................... Commissioner to decide taxation objections................... 116

14ZYA.................. Person may require Commissioner to make an objection decision           117

14ZYB.................. Requiring Commissioner to make a private ruling.......... 118

14ZZ...................... Person may seek review of, or appeal against, Commissioner’s decision                118

Division 4—AAT review of objection decisions and extension of time refusal decisions             120

14ZZA................... Modified AAT Act to apply........................................... 120

14ZZB................... Sections 27, 28, 41 and 44A of the AAT Act not to apply to certain decisions       120

14ZZC................... Modification of section 29 of the AAT Act.................... 120

14ZZD................... Modification of section 30 of the AAT Act.................... 121

14ZZE................... Hearings before Tribunal other than Small Taxation Claims Tribunal to be held in private if applicant so requests........................................................................... 121

14ZZF................... Modification of section 37 of the AAT Act.................... 121

14ZZG................... Modification of section 38 of the AAT Act.................... 122

14ZZJ.................... Modification of section 43 of the AAT Act.................... 123

14ZZK................... Grounds of objection and burden of proof..................... 123

14ZZL................... Implementation of Tribunal decisions............................. 124

14ZZM.................. Pending review not to affect implementation of taxation decisions          124

Division 5—Court appeals against objection decisions                          125

14ZZN................... Time limit for appeals..................................................... 125

14ZZO................... Grounds of objection and burden of proof..................... 125

14ZZP................... Order of court on objection decision............................... 125

14ZZQ................... Implementation of court order in respect of objection decision                125

14ZZR................... Pending appeal not to affect implementation of taxation decisions           126

14ZZS................... Transfer of certain proceedings to Family Court............. 126

Part V—Miscellaneous                                                                                                    128

15.......................... Appearance by Commissioner etc................................... 128

15A....................... Certification by Commissioner of copies of, and extracts from, documents             129

15B........................ Recoverable advances..................................................... 130

15C........................ Recoverable payments.................................................... 132

15D....................... Reports about recoverable advances and recoverable payments               134

16.......................... Payments out of Consolidated Revenue Fund................ 136

16A....................... Regulations may provide for methods of payment of tax liabilities etc.    136

16B........................ Certain liabilities to be reduced to nearest multiple of 5 cents.. 137

17.......................... Powers of taxation officers in relation to references to currency etc.        137

17A....................... Powers of Federal Court and Federal Circuit Court in respect of taxation matters   138

18.......................... Regulations..................................................................... 139

 


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

Part IPreliminary

  

1  Short title

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

2  Interpretation

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

approved form has the meaning given by Schedule 1.

ASIO means the Australian Security Intelligence Organisation.

Commissioner means the Commissioner of Taxation.

Deputy Commissioner means any Deputy Commissioner of Taxation.

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

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

excess concessional contributions determination has the same meaning as in subsection 995‑1(1) of the Income Tax Assessment Act 1997.

excise law has the meaning given by the Income Tax Assessment Act 1997.

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

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

fuel tax law has the meaning given by the Fuel Tax Act 2006.

general interest charge means the charge worked out under Part IIA.

Immigration Department has the meaning given by the Income Tax Assessment Act 1997.

Immigration Minister has the meaning given by the Income Tax Assessment Act 1997.

Immigration Secretary has the meaning given by the Income Tax Assessment Act 1997.

indirect tax law has the meaning given by the Income Tax Assessment Act 1997.

ineligible income tax remission decision has the meaning given by section 14ZS.

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

migration officer means:

                     (a)  the Immigration Secretary; or

                     (b)  an employee of the Immigration Department.

objection decision has the meaning given by subsection 14ZY(2).

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

private indirect tax ruling means a private ruling, to the extent that it relates to an indirect tax law (other than the fuel tax law).

private ruling has the meaning given by section 359‑5 in Schedule 1.

registered tax agent or BAS agent has the same meaning as in the Tax Agent Services Act 2009.

Second Commissioner means a Second Commissioner of Taxation.

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

taxation law has the meaning given by the Income Tax Assessment Act 1997.

Note:          See also subsection (2).

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

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

             (2)  Despite the definition of taxation law in subsection (1), an Excise Act (as defined in subsection 4(1) of the Excise Act 1901) is not a taxation law for the purposes of Part III of this Act.

2A  Application of the Criminal Code

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

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

3  Extension of Act to external Territories

                   This Act extends to every external Territory.

3AA  Schedule 1

             (1)  Schedule 1 has effect.

Definitions in Schedule 1 do not apply to rest of Act

          (1A)  So far as a provision in Schedule 1 gives an expression a particular meaning, the provision does not also have effect for the purposes of this Act (other than Schedule 1), except as provided in this Act (other than Schedule 1).

Application of interpretation provisions of Income Tax Assessment Act 1997

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

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

Part IAAdministration

  

3A  General administration of Act

                   The Commissioner has the general administration of this Act.

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.

3B  Annual report

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

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

                     (a)  include information concerning any breaches, of which the Commissioner has notice, of undertakings given for the purposes of subsection 14C(2); and

                     (b)  set out:

                              (i)  the number of occasions (if any) during the year on which a request was made to disclose information under subsection 355‑55(1) in Schedule 1 (about disclosures to Ministers); and

                             (ii)  the number of occasions (if any) during the year on which information was disclosed under that subsection; and

                            (iii)  the Ministers to whom the information was disclosed; and

                     (c)  set out:

                              (i)  the number of occasions (if any) during the year on which a request was made to disclose information under subsection 355‑70(1) in Schedule 1 (about disclosures for law enforcement and related purposes); and

                             (ii)  the number of occasions (if any) during the year on which information was disclosed under that subsection; and

                            (iii)  the types of entities and the names of the courts and tribunals to which the information was disclosed; and

                            (iv)  if the information was disclosed under table item 1 or 6 in subsection 355‑70(1)—the general categories of offences in relation to which the information was disclosed; and

                     (d)  set out the number (if any) of *taxation officers found guilty of the offence in section 355‑25 in Schedule 1 (about disclosure of protected information).

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

          (1C)  Subsection (1) does not apply in relation to sections 3D and 3E, Part III and sections 15 and 15A insofar as that Part and those sections apply in relation to the Tax Agent Services Act 2009.

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

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

             (4)  In this section:

this Act does not include Part IVC.

3C  Reporting of information about corporate tax entity with reported total income of $100 million or more

             (1)  This section applies to an entity if:

                     (a)  the entity is a corporate tax entity (within the meaning of the Income Tax Assessment Act 1997); and

                     (b)  the entity has total income equal to or exceeding $100 million for an income year, according to information reported to the Commissioner in the entity’s income tax return (within the meaning of that Act) for the income year.

             (2)  The Commissioner must, as soon as practicable after the end of the income year, make publicly available the information mentioned in subsection (3).

             (3)  The information is as follows:

                     (a)  the entity’s ABN (within the meaning of the Income Tax Assessment Act 1997) and name;

                     (b)  the entity’s total income for the income year, according to information reported to the Commissioner in the entity’s income tax return (within the meaning of that Act) for the income year;

                     (c)  the entity’s taxable income or net income (if any) for the income year, according to information reported to the Commissioner in that income tax return;

                     (d)  the entity’s income tax payable (if any) for the financial year corresponding to the income year, according to information reported to the Commissioner in that income tax return.

             (4)  Subsection (5) applies if:

                     (a)  the entity gives the Commissioner a notice in writing that the return mentioned in paragraph (3)(b) contains an error; and

                     (b)  the notice contains information that corrects the error.

             (5)  The Commissioner may at any time make the information mentioned in paragraph (4)(b) publicly available, in accordance with subsection (2), in order to correct the error.

             (6)  To avoid doubt, if the Commissioner considers that information made publicly available under subsection (2) fails to reflect all of the information required to be made publicly available under that subsection, the Commissioner may at any time make publicly available other information in order to remedy the failure.

3D  Reporting of information about entity with MRRT payable

             (1)  This section applies to an entity if the entity has an amount of MRRT payable for an MRRT year, according to information reported to the Commissioner in the entity’s MRRT return for the MRRT year.

             (2)  The Commissioner must, as soon as practicable after the end of the MRRT year, make publicly available the information mentioned in subsection (3).

             (3)  The information is as follows:

                     (a)  the entity’s ABN (within the meaning of the Income Tax Assessment Act 1997) and name;

                     (b)  the entity’s MRRT payable for the MRRT year, according to information reported to the Commissioner in the entity’s MRRT return for the MRRT year.

             (4)  Subsection (5) applies if:

                     (a)  the entity gives the Commissioner a notice in writing that the return mentioned in paragraph (3)(b) contains an error; and

                     (b)  the notice contains information that corrects the error.

             (5)  The Commissioner may at any time make the information mentioned in paragraph (4)(b) publicly available, in accordance with subsection (2), in order to correct the error.

             (6)  To avoid doubt, if the Commissioner considers that information made publicly available under subsection (2) fails to reflect all of the information required to be made publicly available under that subsection, the Commissioner may at any time make publicly available other information in order to remedy the failure.

             (7)  In this section:

MRRT return has the meaning given by the Income Tax Assessment Act 1997.

MRRT year has the meaning given by section 300‑1 of the Minerals Resource Rent Tax Act 2012.

3E  Reporting of information about entity with PRRT payable

             (1)  This section applies to an entity if the entity has an amount of PRRT payable for a year of tax, according to information reported to the Commissioner in the entity’s PRRT return for the year of tax.

             (2)  The Commissioner must, as soon as practicable after the end of the year of tax, make publicly available the information mentioned in subsection (3).

             (3)  The information is as follows:

                     (a)  the entity’s ABN (within the meaning of the Income Tax Assessment Act 1997) and name;

                     (b)  the PRRT payable by the entity in respect of the year of tax, according to information reported to the Commissioner in the entity’s PRRT return for the year of tax.

             (4)  Subsection (5) applies if:

                     (a)  the entity gives the Commissioner a notice in writing that the return mentioned in paragraph (3)(b) contains an error; and

                     (b)  the notice contains information that corrects the error.

             (5)  The Commissioner may at any time make the information mentioned in paragraph (4)(b) publicly available, in accordance with subsection (2), in order to correct the error.

             (6)  To avoid doubt, if the Commissioner considers that information made publicly available under subsection (2) fails to reflect all of the information required to be made publicly available under that subsection, the Commissioner may at any time make publicly available other information in order to remedy the failure.

             (7)  In this section:

PRRT return means a return under section 59 or 60 of the Petroleum Resource Rent Tax Assessment Act 1987.

year of tax has the meaning given by the Petroleum Resource Rent Tax Assessment Act 1987.

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

  

4  Commissioner and Second Commissioners of Taxation

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

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

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

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

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

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

5  Tenure of Commissioner and Second Commissioners

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

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

5A  Remuneration and allowances of Commissioner and Second Commissioners

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

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

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

6  Leave of absence

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

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

6A  Resignation

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

6B  Acting appointments

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

                     (a)  during a vacancy in that office; or

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

Note:          For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

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

                     (a)  during a vacancy in that office; or

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

Note:          For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

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

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

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

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

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

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

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

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

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

             (6)  If:

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

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

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

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

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

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

6D  Powers of Second Commissioner

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

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

                     (a)  section 8 of this Act; or

                     (b)  a provision of a taxation law that:

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

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

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

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

7  Deputy Commissioners of Taxation

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

8  Delegation

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

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

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

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

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

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

Part IIAThe general interest charge

  

8AAA  Overview

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

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

A person is only liable to pay the charge if a provision of an Act makes the person liable.

8AAB  When the general interest charge applies

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

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

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

             (4)  The following table is an index of the laws that deal with liability to the charge.

 

Liability to general interest charge

 

Item

Column 1

Section

Column 2

Act

Column 3

Topic

 

1

162‑100

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

payment of GST instalments

 

2

168‑10

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

supplies later found to be GST‑free supplies

 

3

25‑10

A New Tax System (Wine Equalisation Tax) Act 1999

purchases later found to be GST free supplies

 

3A

175‑65

Australian Charities and Not‑for‑profits Commission Act 2012

payment of administrative penalty

 

4

52

First Home Saver Accounts Act 2008

repayment of FHSA contributions

 

5

93

Fringe Benefits Tax Assessment Act 1986

payment of fringe benefits tax or penalty tax

 

6

112B

Fringe Benefits Tax Assessment Act 1986

payment of fringe benefits tax instalments

 

7

102UP

Income Tax Assessment Act 1936

payment of trustee beneficiary non‑disclosure tax

 

8

128C

Income Tax Assessment Act 1936

payment of withholding tax

 

9

163AA

Income Tax Assessment Act 1936

returns by instalment taxpayers

 

10

163B

Income Tax Assessment Act 1936

returns by persons other than instalment taxpayers

 

10A

172A

Income Tax Assessment Act 1936

repayments of excessive tax offset refunds

 

11

271‑80 in Schedule 2F

Income Tax Assessment Act 1936

payment of family trust distribution tax

 

12

5‑15

Income Tax Assessment Act 1997

unpaid income tax or shortfall interest charge

 

13

197‑75

Income Tax Assessment Act 1997

payment of untainting tax

 

14

214‑155

Income Tax Assessment Act 1997

payment of franking tax by a corporate tax entity

 

15

292‑390

Income Tax Assessment Act 1997

payment of excess non‑concessional contributions tax or shortfall interest charge

 

15A

293‑75

Income Tax Assessment Act 1997

payment of Division 293 tax or shortfall interest charge

 

16

345‑115

Income Tax Assessment Act 1997

payment of FHSA misuse tax

 

17

721‑30

Income Tax Assessment Act 1997

liability of members of consolidated groups

 

18

840‑810

Income Tax Assessment Act 1997

payment of managed investment trust withholding tax

 

18A

840‑910

Income Tax Assessment Act 1997

payment of Seasonal Labour Mobility Program withholding tax

 

19

214‑105

Income Tax (Transitional Provisions) Act 1997

payment of franking deficit tax

 

19A

50‑15

Minerals Resource Rent Tax Act 2012

payment of MRRT

 

20

85

Petroleum Resource Rent Tax Assessment Act 1987

payment of petroleum resource rent tax, shortfall interest charge or instalment transfer interest charge

 

20A

282‑19

Private Health Insurance Act 2007

repayment of private health insurance premium reduction or refund

 

21

35

Product Grants and Benefits Administration Act 2000

payment of a designated scheme debt

 

22

21

Superannuation Contributions Tax (Assessment and Collection) Act 1997

increase in liability to pay superannuation contributions surcharge because of amendment of assessment

 

23

22

Superannuation Contributions Tax (Assessment and Collection) Act 1997

liability to pay superannuation contributions surcharge because of new assessment

 

24

25

Superannuation Contributions Tax (Assessment and Collection) Act 1997

payment of superannuation contributions surcharge or advance instalment

 

25

18

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

increase in liability to pay superannuation contributions surcharge because of amendment of assessment

 

26

21

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

payment of superannuation contributions surcharge

 

27

25

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

repayments or underpayments of Government co‑contributions that cannot be credited to an account

 

28

49

Superannuation Guarantee (Administration) Act 1992

payment of superannuation guarantee charge

 

29

15DC

Superannuation (Self Managed Superannuation Funds) Taxation Act 1987

payment of superannuation (self managed superannuation funds) supervisory levy

 

30

17A

Superannuation (Unclaimed Money and Lost Members) Act 1999

payment of unclaimed money

 

31

18C

Superannuation (Unclaimed Money and Lost Members) Act 1999

repayment of Commissioner’s payment that cannot be credited to an account

 

32

20F

Superannuation (Unclaimed Money and Lost Members) Act 1999

payment of unclaimed superannuation of former temporary residents

 

33

20M

Superannuation (Unclaimed Money and Lost Members) Act 1999

repayment of Commissioner’s payment for former temporary resident that cannot be credited to an account

 

34

24F

Superannuation (Unclaimed Money and Lost Members) Act 1999

payment in respect of lost member accounts

 

35

24L

Superannuation (Unclaimed Money and Lost Members) Act 1999

repayment of Commissioner’s payment for former lost member that cannot be credited to an account

 

36

8AAZF

Taxation Administration Act 1953

RBA deficit debts

 

37

8AAZN

Taxation Administration Act 1953

overpayments made by the Commissioner

 

38

16‑80 in Schedule 1

Taxation Administration Act 1953

payment of PAYG withholding amounts

 

38A

18‑150 in Schedule 1

Taxation Administration Act 1953

PAYG withholding non‑compliance tax

 

39

45‑80 in Schedule 1

Taxation Administration Act 1953

payment of PAYG instalments

 

40

45‑230 in Schedule 1

Taxation Administration Act 1953

shortfall in quarterly PAYG instalments worked out on the basis of a varied rate

 

41

45‑232 in Schedule 1

Taxation Administration Act 1953

shortfall in quarterly PAYG instalments worked out on the basis of estimated benchmark tax

 

42

45‑235 in Schedule 1

Taxation Administration Act 1953

shortfall in annual PAYG instalments

 

43

45‑600 and 45‑620 in Schedule 1

Taxation Administration Act 1953

tax benefits relating to PAYG instalments

 

44

45‑870 and 45‑875 in Schedule 1

Taxation Administration Act 1953

head company’s liability on shortfall in quarterly PAYG instalments

 

44Q

95‑25 in Schedule 1

Taxation Administration Act 1953

payment of excess concessional contributions charge or shortfall interest charge

45

105‑80 in Schedule 1

Taxation Administration Act 1953

payment of a net fuel amount or an amount of indirect tax

 

45A

115‑30 in Schedule 1

Taxation Administration Act 1953

payment of MRRT instalments

 

45B

115‑65 in Schedule 1

Taxation Administration Act 1953

shortfall in MRRT instalments worked out on the basis of a varied rate

 

45C

133‑115 in Schedule 1

Taxation Administration Act 1953

payment of debt account discharge liability

 

46

263‑30 in Schedule 1

Taxation Administration Act 1953

payment of a foreign revenue claim

 

47

268‑75 in Schedule 1

Taxation Administration Act 1953

late payment of estimate

 

48

298‑25 in Schedule 1

Taxation Administration Act 1953

payment of administrative penalty

 

49

9

Tax Bonus for Working Australians Act (No. 2) 2009

repayment of overpayment of tax bonus

 

50

13

Termination Payments Tax (Assessment and Collection) Act 1997

increase in liability to pay termination payments surcharge because of amendment of assessment

 

51

16

Termination Payments Tax (Assessment and Collection) Act 1997

payment of termination payments surcharge

 

8AAC  Amount of the general interest charge

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

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

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

                     (a)  the charge from previous days;

                     (b)  the original unpaid amount.

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

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

                     (b)  the specified amount.

8AAD  What is the general interest charge rate?

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

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

 

Base interest rate

Item

For days in this quarter...

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

1

1 January to 31 March

the preceding November

2

1 April to 30 June

the preceding February

3

1 July to 30 September

the preceding May

4

1 October to 31 December

the preceding August

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

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

8AAE  When the charge is due and payable

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

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

8AAF  Notification by Commissioner

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

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

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

8AAG  Remission of the charge

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

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

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

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

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

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

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

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

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

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

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

                     (b)  it is otherwise appropriate to do so.

8AAGA  Rounding of the charge

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

8AAH  Judgment for payment of an unpaid amount

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

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

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

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

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

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

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

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

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

Division 1Preliminary

8AAZA  Definitions

                   In this Part, unless the contrary intention appears:

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

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

credit includes:

                     (a)  an amount that the Commissioner must pay to a taxpayer under a taxation law (other than the Product Grants and Benefits Administration Act 2000, the Tax Bonus for Working Australians Act (No. 2) 2009 or Division 18 (refunds) of the A New Tax System (Luxury Car Tax) Act 1999), whether or not described as a credit; and

                     (b)  an amount received by the Commissioner in respect of a taxpayer as a result of the Commissioner having made a claim that is similar in nature to a foreign revenue claim (as defined in section 263‑10 in Schedule 1).

entity means any of the following:

                     (a)  a company;

                     (b)  a partnership;

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

                     (d)  a body politic;

                     (e)  a corporation sole;

                      (f)  any other person.

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

FS assessment debt means an FS assessment debt under:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

tax debtor means:

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

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

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

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

Division 2Running Balance Accounts (or RBAs)

8AAZC  Establishment of RBAs

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

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

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

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

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

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

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

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

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

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

                     (c)  different periods.

8AAZD  Allocation of tax debts to RBAs

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

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

Separate RBAs for one entity

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

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

Definition

             (2)  In this section:

primary tax debt does not include:

                     (a)  general interest charge; or

                     (b)  an RBA deficit debt.

8AAZF  General interest charge on RBA deficit debt

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

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

8AAZG  RBA statements

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

8AAZH  Liability for RBA deficit debt

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

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

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

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

8AAZI  RBA statement to be evidence

             (1)  The production of an RBA statement:

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

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

             (2)  In this section:

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

8AAZJ  Evidentiary certificate about RBA transactions etc.

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

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

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

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

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

             (2)  In this section:

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

Division 3Treatment of payments, credits and RBA surpluses

8AAZL  Amounts covered by this Division

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

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

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

                     (c)  an RBA surplus of an entity.

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

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

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

                     (a)  that is due but not yet payable; or

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

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

             (4)  Furthermore, the Commissioner does not have to treat an amount using either of those methods if:

                     (a)  doing so would require the Commissioner to apply the amount against a tax debt; and

                     (b)  the tax debt is a penalty that is due and payable under section 269‑20 in Schedule 1 (penalties for directors of non‑complying companies).

8AAZLA  Method 1—allocating the amount first to an RBA

             (1)  The Commissioner may, in the manner he or she determines, allocate the amount to an RBA of the entity or, if the entity is a member of an RBA group, to an RBA of another member of the group.

             (2)  The Commissioner must then also apply the amount against the following kinds of debts (if there are any):

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

                     (b)  general interest charge on such tax debts.

             (3)  To the extent that the amount is not applied under subsection (2), it gives rise to an excess non‑RBA credit in favour of the entity that:

                     (a)  is equal to the part of the amount that is not applied; and

                     (b)  relates to the RBA to which the amount was allocated.

8AAZLB  Method 2—applying the amount first against a non‑RBA tax debt

             (1)  The Commissioner may, in the manner he or she determines, apply the amount against a non‑RBA tax debt of the entity or, if the entity is a member of an RBA group, against a non‑RBA tax debt of another member of the group.

             (2)  If the non‑RBA tax debt is:

                     (a)  a tax debt that has been allocated to an RBA; or

                     (b)  general interest charge on such a tax debt;

the Commissioner must then also allocate the amount to that RBA.

             (3)  To the extent that the amount is not applied under subsection (1), it gives rise to an excess non‑RBA credit in favour of the entity that is equal to the part of the amount that is not applied.

             (4)  The excess non‑RBA credit relates to the RBA (if any) that the Commissioner determines and the balance of that RBA is adjusted in the entity’s favour by the amount of that credit.

Separate RBAs for one entity

             (5)  If the non‑RBA tax debt mentioned in subsection (1) has been allocated to 2 or more RBAs, the Commissioner must allocate the amount applied between those RBAs in the proportions in which the tax debt was allocated.

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

8AAZLC  RBA surplus and related credits must remain equivalent if one or the other is applied

RBA surpluses

             (1)  If an RBA surplus is allocated or applied under this Division, the Commissioner must reduce by the same amount excess non‑RBA credits that relate to the RBA.

Excess non‑RBA credits

             (2)  If, under this Division, an excess non‑RBA credit that relates to an RBA (the related RBA) is:

                     (a)  allocated to an RBA; or

                     (b)  applied against a non‑RBA tax debt;

the related RBA is adjusted in the Commissioner’s favour by the same amount.

8AAZLD  Special priority credits: FS assessment debts and compulsory repayment amounts

                   If, under this Division, the Commissioner is to apply a credit that arises under Schedule 1 to this Act (the PAYG system), the Commissioner must apply it, whether under section 8AAZLA or 8AAZLB:

                    (aa)  first, against any compulsory repayment amount of the entity; and

                     (b)  then against any FS assessment debt of the entity;

before applying it against other non‑RBA tax debts of the entity.

8AAZLE  Instructions to Commissioner not binding

                   In doing anything under this Division, the Commissioner is not required to take account of any instructions of any entity.

Division 3ARefunds of RBA surpluses and credits

8AAZLF  Commissioner must refund RBA surpluses and credits

             (1)  The Commissioner must refund to an entity so much of:

                     (a)  an RBA surplus of the entity; or

                     (b)  a credit (including an excess non‑RBA credit) in the entity’s favour;

as the Commissioner does not allocate or apply under Division 3.

Voluntary payments only to be refunded on request

             (2)  However, the Commissioner is not required to refund an RBA surplus or excess non‑RBA credit that arises because a payment is made in respect of an anticipated tax debt of an entity unless the entity later requests, in the approved manner, that the Commissioner do so.

             (3)  On receiving such a request, the Commissioner must refund so much of the amount as the Commissioner does not allocate or apply under Division 3.

Effect of refunding RBA surplus

             (4)  If the Commissioner refunds an RBA surplus under this section, the Commissioner must reduce by the same amount excess non‑RBA credits that relate to the RBA.

Effect of refunding credit that relates to an RBA

             (5)  If, under this section, the Commissioner refunds an excess non‑RBA credit that relates to an RBA, the RBA is adjusted in the Commissioner’s favour by the same amount.

8AAZLG  Retaining refunds until information or notification given

             (1)  The Commissioner may retain an amount that he or she otherwise would have to refund to an entity under section 8AAZLF, if the entity has not given the Commissioner a notification:

                     (a)  that affects or may affect the amount that the Commissioner refunds to the entity; and

                     (b)  that the entity is required to give the Commissioner under:

                              (i)  any of the BAS provisions (as defined in subsection 995‑1(1) of the Income Tax Assessment Act 1997); or

                             (ii)  any of the resource rent tax provisions (as defined in that subsection).

             (2)  The Commissioner may retain the amount until the entity has given the Commissioner that notification or the Commissioner makes or amends an assessment of the amount, whichever happens first.

Note:          Interest is payable under the Taxation (Interest on Overpayments and Early Payments) Act 1983 if the Commissioner is late in making the payment under subsection (2).

8AAZLGA  Retaining refunds while Commissioner verifies information

Commissioner may retain an amount

             (1)  The Commissioner may retain an amount that he or she otherwise would have to refund to an entity under section 8AAZLF, if the entity has given the Commissioner a notification that affects or may affect the amount that the Commissioner refunds to the entity, and:

                     (a)  it would be reasonable to require verification of information (the notified information) that:

                              (i)  is contained in the notification; and

                             (ii)  relates to the amount that the Commissioner would have to refund; or

                     (b)  the entity has requested the Commissioner to retain the amount for verification of the notified information, and the request has not been withdrawn.

             (2)  In deciding whether to retain the amount under this section, the Commissioner must, as far as the information available to the Commissioner at the time of making the decision reasonably allows, have regard to the following:

                     (a)  the likely accuracy of the notified information;

                     (b)  the likelihood that the notified information was affected by:

                              (i)  fraud or evasion; or

                             (ii)  intentional disregard of a taxation law; or

                            (iii)  recklessness as to the operation of a taxation law;

                     (c)  the impact of retaining the amount on the entity’s financial position;

                     (d)  whether retaining the amount is necessary for the protection of the revenue, including the likelihood that the Commissioner could recover any of the amount if the notified information were found to be incorrect after the amount had been refunded;

                     (e)  any complexity that would be involved in verifying the notified information;

                      (f)  the time for which the Commissioner has already retained the amount;

                     (g)  what the Commissioner has already done to verify the notified information;

                     (h)  whether the Commissioner has enough information to make an assessment relating to the amount (including information obtained from making further requests for information);

                      (i)  the extent to which the notified information is consistent with information that the entity previously provided;

                      (j)  any other relevant matter.

Informing the entity of the retention of the amount

             (3)  The Commissioner must inform the entity (by serving a document on the entity or by other means) that he or she has retained the amount under this section. He or she must do so by the end of:

                     (a)  in a case to which paragraph 8AAZLF(1)(a) applies—the RBA interest day (within the meaning of section 12AF of the Taxation (Interest on Overpayments and Early Payments) Act 1983) for the RBA surplus of the entity; or

                     (b)  in any other case—the 30th day after the entity gives to the Commissioner the notification mentioned in subsection (1) of this section.

Note:          Under Part 2A of the regulations, documents may be served on a person using the person’s preferred address for service.

             (4)  In informing the entity that the amount is retained, the Commissioner may request information that he or she is aware will be required for the purposes of verifying the notified information.

How long the amount may be retained

             (5)  The Commissioner may retain the amount under this section only until:

                     (a)  if paragraph (1)(a) applies—it would no longer be reasonable to require verification of the information; or

                     (b)  if the Commissioner fails to inform the entity, in accordance with subsection (3), that he or she has retained the amount under this section—the end of the day after the time by which, under that subsection, the Commissioner is required to inform the entity; or

                     (c)  in any case—there is a change to how much the Commissioner is required to refund, as a result of:

                              (i)  the Commissioner amending an assessment relating to the amount; or

                             (ii)  the Commissioner making or amending an assessment, under Division 105 in Schedule 1, relating to the amount;

whichever happens first.

Objecting to the decision to retain the amount

             (6)  The entity may object to a decision of the Commissioner to retain the amount under this section in the manner set out in Part IVC, if the entity is dissatisfied with the decision.

Note:          Interest on the amount may be payable under the Taxation (Interest on Overpayments and Early Payments) Act 1983.

             (7)  Before the end of the 7 days after the start of the period during which, under section 14ZW, the entity may object to the decision, the Commissioner must notify the entity, in writing, that the entity may object to the decision.

Note:          For the start of the period for objecting to the decision, see paragraph 14ZW(1)(aac) and subsection 14ZW(4).

             (8)  A failure to comply with subsection (7) does not affect the validity of the decision.

8AAZLH  How refunds are made

             (1)  This section applies to refunds payable to an entity of RBA surpluses, or excess non‑RBA credits that relate to an RBA, if primary tax debts arising under:

                     (a)  any of the BAS provisions (as defined in subsection 995‑1(1) of the Income Tax Assessment Act 1997); or

                     (b)  any of the resource rent tax provisions (as defined in that subsection);

have been allocated to that RBA.

             (2)  The Commissioner must pay those refunds to the credit of a financial institution account nominated in the approved form by the entity. The account nominated must be maintained at a branch or office of the institution that is in Australia.

          (2A)  The account must be one held by:

                     (a)  the entity, or the entity and some other entity; or

                     (b)  the entity’s registered tax agent or BAS agent; or

                     (c)  a legal practitioner as trustee or executor for the entity.

             (3)  However, the Commissioner may direct that any such refunds be paid to the entity in a different way.

             (4)  If an entity has not nominated a financial institution account for the purposes of this section and the Commissioner has not directed that any such refunds be paid in a different way, the Commissioner is not obliged to refund any amount to the entity until the entity does so.

             (5)  If the Commissioner pays a refund to the credit of an account nominated by an entity, the Commissioner is taken to have paid the refund to the entity.

Division 4Miscellaneous provisions about tax debts

8AAZM  When payments are treated as received

                   For the purposes of taxation laws, a payment in respect of a tax debt is taken not to have been made until it is received by:

                     (a)  the Commissioner; or

                     (b)  a person acting on behalf of the Commissioner.

8AAZMA  Electronic payment of tax debts

             (1)  An entity that, under subsection 33‑10(2) of the A New Tax System (Goods and Services Tax) Act 1999, is required to pay an assessed net amount for a tax period electronically must also electronically pay the Commissioner all of its other tax debts that are due to be paid during that period.

             (2)  A large withholder that, under subsection 16‑85(1) in Schedule 1, is required to pay an amount electronically in a particular month must also electronically pay the Commissioner all of its other tax debts that are due to be paid during that month.

8AAZMB  Saturdays, Sundays and public holidays

             (1)  Where, apart from this section, an amount in respect of a tax debt is due and payable by, or on, a day (the payment day) that is not a business day, the payment is due and payable on the first business day after the payment day.

             (2)  In this section:

business day means a day other than:

                     (a)  a Saturday or a Sunday; or

                     (b)  a day which is a public holiday for the whole of:

                              (i)  any State; or

                             (ii)  the Australian Capital Territory; or

                            (iii)  the Northern Territory.

tax debt does not include general interest charge.

8AAZN  Overpayments made by the Commissioner under taxation laws

             (1)  An administrative overpayment (the overpaid amount):

                     (a)  is a debt due to the Commonwealth by the person to whom the overpayment was made (the recipient); and

                     (b)  is payable to the Commissioner; and

                     (c)  may be recovered in a court of competent jurisdiction by the Commissioner, or by a Deputy Commissioner, suing in his or her official name.

             (2)  If:

                     (a)  the Commissioner has given a notice to the recipient in respect of the overpaid amount, specifying a due date for payment that is at least 30 days after the notice is given; and

                     (b)  any of the overpaid amount remains unpaid at the end of that due date;

then the recipient is liable to pay the general interest charge on the unpaid amount for each day in the period that:

                     (c)  started at the beginning of that due date; and

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

                              (i)  the overpaid amount;

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

             (3)  In this section:

administrative overpayment means an amount that the Commissioner has paid to a person by mistake, being an amount to which the person is not entitled.

Part IIIProsecutions and offences

Note:          Subsection 2(2) specifies laws that are not taxation laws for the purposes of this Part.

Division 1Preliminary

8A  Interpretation

             (1)  In this Part, unless the contrary intention appears:

corporation means any body corporate.

director, in relation to a corporation, includes:

                     (a)  any person occupying or acting in the position of director of the corporation, by whatever name called and whether or not validly appointed to occupy, or duly authorized to act in, the position; and

                     (b)  any person in accordance with whose directions or instructions the directors of the corporation are accustomed to act.

instrument includes any document.

prescribed offence means:

                     (a)  an offence against section 8C, subsection 8D(1) or (2) or section 8N or 8Q, or against Division 136 or 137 of the Criminal Code in relation to a taxation law; or

                     (b)  an offence against section 11.1 of the Criminal Code that relates to an offence of a kind referred to in paragraph (a).

prescribed taxation offence means:

                     (a)  a taxation offence (other than a prescribed offence) that is committed by a natural person and punishable by a fine and not by imprisonment;

                     (b)  a prescribed offence (other than a prescribed offence that the Commissioner has elected under subsection 8F(1) or 8S(1) to treat otherwise than as a prescribed taxation offence) that is committed by a natural person; or

                     (c)  a taxation offence that is committed by a corporation.

produce, in relation to a book, paper, record or other document, includes permit access to.

taxation offence means:

                     (a)  an offence against a taxation law; or

                     (b)  an offence against:

                              (i)  section 6 of the Crimes Act 1914; or

                             (ii)  section 11.1, 11.4 or 11.5 of the Criminal Code;

                            being an offence that relates to an offence against a taxation law.

tax file number means a tax file number as defined in section 202A of the Income Tax Assessment Act 1936.

             (2)  For the purposes of the definition of director in subsection (1), a person shall not be regarded as a person in accordance with whose directions or instructions the directors of a corporation are accustomed to act by reason only that the directors act on advice given by that person in the proper performance of the functions attaching to the person’s professional capacity or to the person’s business relationship with the directors.

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

                   This Part applies in relation to the Development Allowance Authority Act 1992 as if:

                     (a)  that Act were a taxation law; and

                     (b)  references in this Part to the Commissioner were references to the Development Allowance Authority.

8AC  Application of Part to the Tax Agent Services Act 2009

                   This Part applies in relation to the Tax Agent Services Act 2009 as if references in this Part (other than paragraph 8C(1)(b) and sections 8HA, 8W, 8WC, 8ZE, 8ZG and 8ZH) to the Commissioner, or an office of the Commissioner, were references to the Tax Practitioners Board established by the Tax Agent Services Act 2009.

Division 2Offences

Subdivision AFailure to comply with taxation requirements

8B  Interpretation

             (1)  A reference in this Subdivision to a relevant offence is a reference to:

                     (a)  an offence against section 8C, subsection 8D(1) or (2) or section 8H; or

                     (b)  an offence against:

                              (i)  section 6 of the Crimes Act 1914; or

                             (ii)  section 11.1, 11.4 or 11.5 of the Criminal Code;

                            being an offence that relates to an offence of a kind referred to in paragraph (a) of this subsection.

             (2)  For the purposes of this Subdivision, a person who is convicted of an offence against section 8C or subsection 8D(1) or (2) (in this subsection referred to as the subsequent offence) shall be treated as having been previously convicted of a relevant offence (in this subsection referred to as the earlier offence) if:

                     (a)  the person was convicted of the earlier offence on an occasion earlier than, but not more than 5 years earlier than, the person’s conviction of the subsequent offence; or

                     (b)  the person is convicted of the earlier offence and the subsequent offence before the same court at the same sitting and the earlier offence was committed:

                              (i)  at a time or on a day earlier than, but not more than 5 years earlier than, the subsequent offence; or

                             (ii)  at the same time, or on the same day, as the subsequent offence.

             (3)  A reference in subsection 8E(2) or (3) or 8F(1) or subsection (2) of this section to an offence against section 8C or subsection 8D(1) or (2) includes a reference to an offence against section 11.1 of the Criminal Code that relates to an offence against section 8C or subsection 8D(1) or (2), as the case may be.

             (4)  Unless the contrary intention appears, a reference in paragraph (2)(a) or (b) to a conviction of a person of an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.

8C  Failure to comply with requirements under taxation law

             (1)  A person who refuses or fails, when and as required under or pursuant to a taxation law to do so:

                     (a)  to furnish an approved form or any information to the Commissioner or another person; or

                    (aa)  to give information to the Commissioner in the manner in which it is required under a taxation law to be given; or

                     (b)  to lodge an instrument with the Commissioner or another person for assessment; or

                     (d)  to notify the Commissioner or another person of a matter or thing; or

                     (e)  to produce a book, paper, record or other document to the Commissioner or another person; or

                      (f)  to attend before the Commissioner or another person; or

                     (g)  to apply for registration or cancellation of registration under the A New Tax System (Goods and Services Tax) Act 1999; or

                     (h)  to comply with a requirement under subsection 45A(2) of the Product Grants and Benefits Administration Act 2000; or

                      (i)  to comply with subsection 82‑10F(4) of the Income Tax (Transitional Provisions) Act 1997;

is guilty of an offence.

          (1A)  An offence under subsection (1) is an offence of absolute liability.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

          (1B)  Subsection (1) does not apply to the extent that the person is not capable of complying with the relevant paragraph.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (1B), see subsection 13.3(3) of the Criminal Code.

             (2)  For the purposes of paragraphs (1)(a) and (d), a person shall not be taken to have refused or failed to furnish information to the Commissioner or another person, or to notify the Commissioner or another person of a matter or thing, merely because the person has refused or failed to quote the person’s tax file number to the Commissioner or other person.

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

             (1)  A person who, when attending before the Commissioner or another person pursuant to a taxation law, refuses or fails, when and as required pursuant to a taxation law to do so:

                     (a)  to answer a question asked of the person; or

                     (b)  to produce a book, paper, record or other document;

is guilty of an offence.

          (1A)  An offence under subsection (1) is an offence of strict liability.

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

          (1B)  Subsection (1) does not apply to the extent that the person is not capable of complying with the relevant paragraph.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (1B), see subsection 13.3(3) of the Criminal Code.

             (2)  A person who, when attending before the Commissioner or another person pursuant to a taxation law, refuses or fails, when and as required pursuant to a taxation law to do so, either to take an oath or make an affirmation is guilty of an offence.

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

             (1)  Subject to subsections (2) and (3), an offence against section 8C or subsection 8D(1) or (2) is punishable on conviction by a fine not exceeding 20 penalty units.

             (2)  Subject to subsection (3), where:

                     (a)  a person is convicted of an offence against section 8C or subsection 8D(1) or (2); and

                     (b)  the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence;

the penalty that the court may impose in respect of the first‑mentioned offence is a fine not exceeding 40 penalty units.

             (3)  Where:

                     (a)  a person is convicted of an offence against section 8C or subsection 8D(1) or (2);

                     (b)  in a case where the person is a natural person—the Commissioner has elected under subsection 8F(1) to treat the offence otherwise than as a prescribed taxation offence; and

                     (c)  the court before which the person is convicted is satisfied that the person has previously been convicted of 2 or more relevant offences;

the penalty that the court may impose in respect of the first‑mentioned offence is a fine not exceeding 50 penalty units or imprisonment for a period not exceeding 12 months, or both.

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

             (1)  The Commissioner may, before the institution of a prosecution of a natural person for an offence against section 8C or subsection 8D(1) or (2), elect, in writing, to treat the offence otherwise than as a prescribed taxation offence.

             (2)  Where a prosecution is instituted for an offence in relation to which an election under subsection (1) has been made, the Commissioner shall cause a copy of the election to be filed in the court in which the prosecution is instituted.

8G  Order to comply with requirement

             (1)  Where:

                     (a)  a person is convicted before a court of an offence against section 8C or subsection 8D(1) or (2); or

                     (b)  a court makes an order under section 19B of the Crimes Act 1914 in relation to a person in respect of an offence against section 8C or subsection 8D(1) or (2);

in relation to the refusal or failure of the person to comply (whether in whole or in part) with a requirement made under or pursuant to a taxation law, the court may, in addition to imposing a penalty on the person or making such an order in relation to the person, as the case may be, and notwithstanding that the time for complying with the requirement or any other such requirement has passed, order the person to comply with:

                     (c)  the requirement; and

                     (d)  such other requirements made, or that could be made, in relation to the person under or pursuant to the taxation law as the court considers necessary to ensure the effectiveness of the first‑mentioned requirement;

within a specified time or at a specified place and time.

             (2)  Where an order under subsection (1) is not given orally by the court to the person to whom the order is addressed, the proper officer of the court shall cause a copy of the order to be served on the person in the prescribed manner.

8H  Penalty for failure to comply with order to comply

             (1)  A person who refuses or fails to comply with an order under subsection 8G(1) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units or imprisonment for a period not exceeding 12 months, or both.

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

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

             (3)  Subsection (1) does not apply to the extent that the person is not capable of complying with the relevant paragraph.

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

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

             (1)  If:

                     (a)  a person (the convicted person) is convicted before a court of an offence against section 8C, 8D or 8H in relation to a refusal or failure to do a particular thing; and

                     (b)  the court is satisfied that the purpose of, or one of the purposes of, the refusal or failure was to facilitate the avoidance of an amount of a tax liability of the convicted person or another person;

the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding:

                     (c)  if the offence is an offence to which subsection 8E(2) or (3) applies—3 times that amount; or

                     (d)  in any other case—2 times that amount.

             (2)  A reference in this section to a conviction of a person for an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.

Subdivision BOffences relating to statements, records and certain other Acts

8J  Interpretation

             (1)  In this Subdivision:

accounting records includes invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry and also includes:

                     (a)  such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up; and

                     (b)  such other documents (if any) as are prescribed.

accounts means ledgers, journals, profit and loss accounts and balance‑sheets, and includes statements, reports and notes attached to, or intended to be read with, any of the foregoing.

data processing device means any article or material from which information is capable of being reproduced with or without the aid of any other article or device.

taxation officer means a person exercising powers or performing functions under, pursuant to or in relation to a taxation law.

             (2)  A reference in this Subdivision to a statement made to a taxation officer is a reference to a statement made to a taxation officer orally, in writing, in a data processing device, by way of electronic transmission or in any other form and, without limiting the generality of the foregoing, includes a statement:

                     (a)  made in an application, certificate, declaration, notification, objection, return, claim or other document made, prepared, given or furnished, or purporting to be made, prepared, given or furnished, under or pursuant to a taxation law; or

                     (b)  made in an instrument lodged for assessment under or pursuant to a taxation law; or

                     (c)  made in answer to a question asked of a person under or pursuant to a taxation law; or

                     (d)  made in any information furnished, or purporting to be furnished, under or pursuant to a taxation law; or

                     (e)  made in a document furnished to a taxation officer otherwise than under or pursuant to a taxation law;

but does not include a statement made in a document produced pursuant to:

                    (ga)  paragraph 93ZC(1)(b) or (c) of the Development Allowance Authority Act 1992;

                   (ha)  paragraph 128(1)(c) of the Fringe Benefits Tax Assessment Act 1986; or

                     (k)  paragraph 264(1)(b) or 264A(1)(d) or (e) of the Income Tax Assessment Act 1936 (including that paragraph as applied by subsection 4(1) of the Trust Recoupment Tax Assessment Act 1985); or

                  (kaa)  subparagraph 451(2)(c)(ii) or paragraph 453(1)(e) of the Income Tax Assessment Act 1936;

                  (ma)  paragraph 108(1)(c) of the Petroleum Resource Rent Tax Assessment Act 1987; or

                  (mb)  paragraph 42(2)(b) or (c) of the Product Grants and Benefits Administration Act 2000; or

                   (nb)  paragraph 76(1)(c) of the Superannuation Guarantee (Administration) Act 1992; or

                     (p)  paragraph 13G(1)(c) of this Act; or

                   (pa)  paragraph 353‑10(1)(c) in Schedule 1 to this Act.

          (2A)  If a document is given on a data processing device, or by way of electronic transmission, by a registered tax agent or BAS agent on behalf of a taxpayer, then, for the purposes of this Subdivision, each statement in the document is taken to have been made by the taxpayer unless the taxpayer can show that the taxpayer did not authorise the statement.

             (3)  A reference in this Subdivision to a relevant offence is a reference to:

                     (a)  an offence against:

                              (i)  subsection 8K(1) or (1B) or 8L(1) or (1A) or section 8N, 8Q, 8T or 8U; or

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

                     (b)  an offence against:

                              (i)  section 6 of the Crimes Act 1914; or

                             (ii)  section 11.1, 11.4 or 11.5 of the Criminal Code;

                            being an offence that relates to an offence of a kind referred to in paragraph (a) of this subsection; or

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

             (4)  For the purposes of this Subdivision, a person who is convicted of an offence against subsection 8K(1) or (1B) or 8L(1) or (1A) or section 8N, 8Q, 8T or 8U (in this subsection referred to as the subsequent offence) shall be treated as having been previously convicted of a relevant offence (in this subsection referred to as the earlier offence) if:

                     (a)  the person was convicted of the earlier offence on an occasion earlier than, but not more than 10 years earlier than, the person’s conviction of the subsequent offence; or

                     (b)  the person is convicted of the earlier offence and the subsequent offence before the same court at the same sitting and the earlier offence was committed:

                              (i)  at a time or on a day earlier than, but not more than 10 years earlier than, the subsequent offence; or

                             (ii)  at the same time, or on the same day, as the subsequent offence.

             (5)  Unless the contrary intention appears, a reference in paragraph (4)(a) or (b) to a conviction of a person for an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.

             (6)  A reference in subsection (4) of this section or subsection 8M(2) to an offence against subsection 8K(1) or (1B) or 8L(1) or (1A) includes a reference to an offence against section 11.1 of the Criminal Code that relates to an offence against subsection 8K(1) or (1B) or 8L(1) or (1A), as the case may be.

             (7)  A reference in subsection 8R(2) or 8S(1) or subsection (4) of this section to an offence against section 8N or 8Q includes a reference to an offence against section 11.1 of the Criminal Code that relates to an offence against section 8N or 8Q, as the case may be.

             (8)  A reference in subsection 8V(2) or subsection (4) of this section to an offence against section 8T or 8U includes a reference to an offence against section 11.1 of the Criminal Code that relates to an offence against section 8T or 8U, as the case may be.

             (9)  A reference in this Subdivision to a statement made to a taxation officer includes a reference to a statement made to a person other than a taxation officer for a purpose in connection with the operation of a taxation law.

           (10)  A reference in subsection (9) to a statement made to a person other than a taxation officer for a purpose in connection with the operation of a taxation law is a reference to such a statement made orally, in writing, in a data processing device or in any other form and, without limiting the generality of the foregoing, includes such a statement:

                     (a)  made in an application, certificate, declaration, notification or other document, made, given or furnished to the person; or

                    (aa)  made in:

                              (i)  a tax invoice (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999); or

                             (ii)  an adjustment note (within the meaning of that Act); or

                            (iii)  a third party adjustment note (within the meaning of that Act);

                            given to the person; or

                     (b)  made in answer to a question asked by the person; or

                     (c)  made in any information furnished to the person.

           (11)  Where a person omits from a return furnished under or pursuant to the Income Tax Assessment Act 1936 or the regulations under that Act, being a return of income derived by the person, a partnership or a trust estate during a period, any assessable income derived by the person, partnership or the trust estate, as the case may be, during the period, the person shall, for the purposes of this Subdivision, be taken to have made a statement in the return to the effect that the person, the partnership or the trust estate, as the case requires, did not derive the assessable income during the period.

           (12)  Where:

                     (a)  a person issues a notice to another person under section 265B of the Income Tax Assessment Act 1936;

                     (b)  a person to whom a notice is issued under that section gives the notice to another person in connection with the transfer of a qualifying security to the other person; or

                     (c)  a person gives advice in writing to another person, in connection with the transfer of a qualifying security, of a variation or partial redemption of the qualifying security;

any statement in the notice when so issued or given, or in the advice when so given, to the other person shall, for the purposes of this Division, be taken to have been made by the issuer or person giving the notice or advice, as the case may be, to the other person for a purpose in connection with the operation of a taxation law.

           (13)  Where:

                     (a)  the holder of a qualifying security transfers the security to another person;

                     (b)  by virtue of the application of section 128AA of the Income Tax Assessment Act 1936, the holder is liable to pay withholding tax in relation to the transfer of the qualifying security;

                     (c)  before the security was transferred, the holder gave to the transferee, in connection with the transfer, a notice issued to the holder under section 265B of that Act identifying the security;

                     (d)  after the notice was issued to the holder, the security was varied or partially redeemed; and

                     (e)  the holder did not advise the transferee in writing of the variation or partial redemption;

the holder shall, for the purposes of this Division, be taken to have made for a purpose in connection with the operation of a taxation law a statement that the qualifying security was not so varied or partially redeemed.

           (14)  Where:

                     (a)  the holder of a qualifying security who acquired the security on transfer (in this subsection referred to as the current acquisition transfer) transfers the security to another person;

                     (b)  by virtue of the application of section 128AA of the Income Tax Assessment Act 1936, the holder is liable to pay withholding tax in relation to the transfer of the security;

                     (c)  before the security was transferred, the holder gave to the transferee, in connection with the transfer, a certificate issued to the holder under section 128AB of that Act identifying the security; and

                     (d)  the holder had acquired the security on transfer on any occasion before the current acquisition transfer;

the holder shall, for the purposes of this Division, be taken to have made for a purpose in connection with the operation of a taxation law a statement that the certificate relates to the current acquisition transfer.

           (15)  Where:

                     (a)  a qualifying security is redeemed or partially redeemed from the holder;

                     (b)  the holder acquired the security on transfer (in this subsection referred to as the current acquisition transfer);

                     (c)  the holder is liable to pay withholding tax in relation to the redemption or partial redemption of the security;

                     (d)  before the security was redeemed or partially redeemed, the holder gave to the issuer, in connection with the redemption or partial redemption, a certificate issued to the holder under section 128AB of the Income Tax Assessment Act 1936 identifying the security; and

                     (e)  the holder had acquired the security on transfer on any occasion before the current acquisition transfer;

the holder shall, for the purposes of this Division, be taken to have made for a purpose in connection with the operation of a taxation law a statement that the certificate relates to the current acquisition transfer.

           (16)  Subject to subsection (17), for the purposes of subsections (12) to (15) (inclusive):

                     (a)  expressions used in those subsections that are also used in Division 16E of Part III of the Income Tax Assessment Act 1936 have the same respective meanings as in that Division; and

                     (b)  sections 159GV (other than subsection 159GV(2)) and 159GZ of the Income Tax Assessment Act 1936 apply as if references in those sections to “this Division” were references to “section 8J of the Taxation Administration Act 1953”.

           (17)  Subsection (16) applies as if paragraph (c) of the definition of qualifying security in subsection 159GP(1) of the Income Tax Assessment Act 1936 were omitted.

8K  False or misleading statements

             (1)  A person is guilty of an offence if:

                     (a)  the person makes a statement to a taxation officer; and

                     (b)  the statement is false or misleading in a material particular.

          (1A)  In subsection (1), absolute liability applies to the circumstance, that the statement is false or misleading in a material particular.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

          (1B)  A person is guilty of an offence if:

                     (a)  the person makes a statement to a taxation officer; and

                     (b)  the person omits any matter or thing from the statement; and

                     (c)  the statement is misleading in a material particular because of the omission.

          (1C)  In subsection (1B), absolute liability applies to:

                     (a)  the conduct, that the person omits a matter or thing; and

                     (b)  the circumstance, that the statement is misleading in a material particular.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

             (2)  In a prosecution of a person for an offence against subsection (1) or (1B), it is a defence if the person proves that the person:

                     (a)  did not know; and

                     (b)  could not reasonably be expected to have known;

that the statement to which the prosecution relates was false or misleading.

Note:          The defendant bears a legal burden in relation to the matter in subsection (2), see section 13.4 of the Criminal Code.

             (3)  For the purposes of subsection (1B), a person shall not be taken to have omitted a matter or thing from a statement made to a taxation officer merely because the person has, in making the statement, failed to quote the person’s tax file number.

8L  Incorrectly keeping records etc.

             (1)  A person is guilty of an offence if:

                     (a)  the person is required under, or pursuant to, a taxation law to keep any accounts, accounting records or other records; and

                     (b)  the person keeps the accounts or records; and

                     (c)  the accounts or records do not correctly record and explain the matters, transactions, acts or operations to which they relate.

          (1A)  A person is guilty of an offence if:

                     (a)  the person is required under, or pursuant to, a taxation law to make a record of any matter, transaction, act or operation; and

                     (b)  the person makes the record; and

                     (c)  the record does not correctly record the matter, transaction, act or operation.

          (1B)  An offence under subsection (1) or (1A) is an offence of absolute liability.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

             (2)  In a prosecution of a person for an offence against subsection (1) or (1A), it is a defence if the person proves that the person:

                     (a)  did not know; and

                     (b)  could not reasonably be expected to have known;

that:

                     (c)  in the case of a prosecution for an offence against subsection (1)—the accounts, accounting records or other records to which the prosecution relates did not correctly record and explain the matters, transactions, acts or operations to which they relate; or

                     (d)  in the case of a prosecution for an offence against subsection (1A)—the record to which the prosecution relates did not correctly record the matter, transaction, act or operation to which the record relates.

Note:          The defendant bears a legal burden in relation to the matter in subsection (2), see section 13.4 of the Criminal Code.

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

             (1)  Subject to subsection (2), an offence against subsection 8K(1) or (1B) or 8L(1) or (1A) is punishable on conviction by a fine not exceeding 20 penalty units.

             (2)  Where:

                     (a)  a person is convicted of an offence against subsection 8K(1) or (1B) or 8L(1) or (1A); and

                     (b)  the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence;

the penalty that the court may impose in respect of the first‑mentioned offence is a fine not exceeding 40 penalty units.

8N  Recklessly making false or misleading statements

                   A person is guilty of an offence if:

                     (a)  the person makes a statement (whether orally, in a document or in any other way) to a taxation officer; and

                     (b)  the statement:

                              (i)  is false or misleading in a material particular; or

                             (ii)  omits any matter or thing without which the statement is misleading in a material particular; and

                     (c)  the person is reckless as to whether the statement:

                              (i)  is false or misleading in a material particular; or

                             (ii)  omits any matter or thing without which the statement is misleading in a material particular.

8Q  Recklessly incorrectly keeping records etc.

             (1)  A person is guilty of an offence if:

                     (a)  the person is required under, or pursuant to, a taxation law to keep any accounts, accounting records or other records; and

                     (b)  the person keeps the accounts or records; and

                   (ba)  the accounts or records do not correctly record and explain the matters, transactions, acts or operations to which they relate; and

                     (c)  the person is reckless as to whether the accounts or records correctly record and explain the matters, transactions, acts or operations to which they relate.

             (2)  A person is guilty of an offence if:

                     (a)  the person is required under, or pursuant to, a taxation law to make a record of any matter, transaction, act or operation; and

                     (b)  the person makes the record; and

                   (ba)  the record does not correctly record the matter, transaction, act or operation; and

                     (c)  the person is reckless as to whether the record correctly records the matter, transaction, act or operation.

             (3)  In subsections (1) and (2), strict liability applies to the circumstance, that the person is required under, or pursuant to, a taxation law to keep the accounts, accounting records or other records.

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

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

             (1)  Subject to subsection (2), an offence against section 8N or 8Q is punishable on conviction by a fine not exceeding 30 penalty units.

             (2)  Where:

                     (a)  a person is convicted of an offence against section 8N or 8Q;

                     (b)  in a case where the person is a natural person—the Commissioner has elected under subsection 8S(1) to treat the offence otherwise than as a prescribed taxation offence; and

                     (c)  the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence;

the penalty that the court may impose in respect of the first‑mentioned offence is a fine not exceeding 50 penalty units or imprisonment for a period not exceeding 12 months, or both.

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

             (1)  The Commissioner may, before the institution of a prosecution of a natural person for an offence against section 8N, or 8Q, or against Division 136 or 137 of the Criminal Code in relation to a taxation law, elect, in writing, to treat the offence otherwise than as a prescribed taxation offence.

             (2)  Where a prosecution is instituted for an offence in relation to which an election under subsection (1) has been made, the Commissioner shall cause a copy of the election to be filed in the court in which the prosecution is instituted.

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

                   A person who:

                     (a)  keeps any accounts, accounting records or other records in such a way that they:

                              (i)  do not correctly record and explain the matters, transactions, acts or operations to which they relate; or

                             (ii)  are (whether in whole or in part) illegible, indecipherable, incapable of identification or, if they are kept in the form of a data processing device, incapable of being used to reproduce information;

                     (b)  makes a record of any matter, transaction, act or operation in such a way that it does not correctly record the matter, transaction, act or operation;

                     (c)  engages in conduct that results in the alteration, defacing, mutilation, falsification, damage, removal, concealing or destruction of any accounts, accounting records or other records (whether in whole or in part); or

                     (d)  does or omits to do any other act or thing to any accounts, accounting records or other records;

with any of the following intentions, namely:

                     (e)  deceiving or misleading the Commissioner or a particular taxation officer;

                      (f)  hindering or obstructing the Commissioner or a particular taxation officer (otherwise than in the investigation of a taxation offence);

                     (g)  hindering or obstructing the investigation of a taxation offence;

                     (h)  hindering, obstructing or defeating the administration, execution or enforcement of a taxation law; or

                      (j)  defeating the purposes of a taxation law;

(whether or not the person had any other intention) is guilty of an offence.

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

                   A person who:

                     (a)  engages in conduct that results in the falsification or concealing of the identity of, or the address or location of a place of residence or business of, the person or another person; or

                     (b)  does or omits to do any act or thing the doing or omission of which facilitates the falsification or concealment of the identity of, or the address or location of a place of residence or business of, the person or another person;

with any of the following intentions, namely:

                     (c)  deceiving or misleading the Commissioner or a particular taxation officer;

                     (d)  hindering or obstructing the Commissioner or a particular taxation officer (otherwise than in the investigation of a taxation offence);

                     (e)  hindering or obstructing the investigation of a taxation offence;

                      (f)  hindering, obstructing or defeating the administration, execution or enforcement of a taxation law; or

                     (g)  defeating the purposes of a taxation law;

(whether or not the person had any other intention) is guilty of an offence.

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

             (1)  Subject to subsection (2), an offence against section 8T or 8U is punishable on conviction by a fine not exceeding 50 penalty units or imprisonment for a period not exceeding 12 months, or both.

             (2)  Where:

                     (a)  a person is convicted of an offence against section 8T or 8U; and

                     (b)  the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence;

the penalty that the court may impose in respect of the first‑mentioned offence is a fine not exceeding 100 penalty units or imprisonment for a period not exceeding 2 years, or both.

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

             (1)  Where:

                     (a)  a person (in this subsection referred to as the convicted person) is convicted before a court of:

                              (i)  an offence against subsection 8K(1) or or (1B) or section 8N, or against Division 136 or 137 of the Criminal Code in relation to a taxation law, in relation to a statement made to a taxation officer; or

                             (ii)  an offence against subsection 8L(1) or (1A) or section 8Q in relation to the keeping of any accounts, accounting records or other records (in paragraph (b) referred to as the relevant accounts) or the making of a record; and

                     (b)  the court is satisfied that the proper amount of a tax liability of the convicted person or another person exceeds the amount that would have been the amount of the tax liability if it were assessed or determined, as the case requires, on the basis that the statement were not false or misleading, on the basis of the relevant accounts as they were kept or on the basis that the record were correct, as the case may be;

the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding:

                     (c)  in a case where the offence is an offence to which subsection 8R(2) applies or that is against Division 136 or 137 of the Criminal Code in relation to a taxation law—3 times the amount of the excess; or

                     (d)  in any other case—double the amount of the excess.

          (1B)  For the purposes of paragraph (1)(b), a decision made by the Development Allowance Authority under Division 1 of Part 3 of Chapter 3 of the Development Allowance Authority Act 1992 is taken to form part of the process of making assessments of income tax.

          (1C)  If the conditions in section 705‑315 of the Income Tax Assessment Act 1997 are satisfied, then for the purposes of any application of subsection (1) of this section in relation to the errors mentioned in that section that were made in a statement that was made before the Commissioner became aware of the errors, the references in paragraphs (1)(c) and (d) of this section to the excess are taken instead to be references to the amount worked out using the formula:

where:

adjusted reset cost base asset setting amount means:

                     (a)  the *tax cost setting amount, worked out under Division 705 of the Income Tax Assessment Act 1997, for all assets of a kind referred to in section 705‑35 of that Act as reset cost base assets that the *head company of the relevant group held continuously from the time when the *subsidiary member referred to in subsection 705‑315(2) of that Act joined the group until the start of the head company’s income year in which the Commissioner became aware of the errors mentioned in section 705‑315 of that Act;

less:

                     (b)  the head company’s deductions under Division 40 (except under Subdivision 40‑F, 40‑G, 40‑H or 40‑I) or Subdivision 328‑D of the Income Tax Assessment Act 1997 for those assets for all income years before the earliest income year for which the Commissioner could amend the head company’s assessment to correct any of the errors.

original reset cost base asset setting amount means the *tax cost setting amount, worked out under Division 705 of the Income Tax Assessment Act 1997, for all reset cost base assets that the *subsidiary member held at the time it joined the group, other than assets that the *head company no longer held at the start of the earliest income year for which the Commissioner could amend the head company’s assessment to correct any of the errors.

tax on capital gain means the product of:

                     (a)  the *capital gain that the *head company makes as a result of *CGT event L6 happening as mentioned in section 104‑525 of the Income Tax Assessment Act 1997; and

                     (b)  the *corporate tax rate in respect of taxable income for the income year in which that CGT event happens.

             (2)  Where:

                     (a)  a person (in this subsection referred to as the convicted person) is convicted before a court of an offence against section 8T or 8U in relation to an act or omission; and

                     (b)  the court is satisfied that the purpose of, or one of the purposes of, the act or omission was to facilitate the avoidance of an amount of a tax liability of the convicted person or another person;

the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding:

                     (c)  in a case where the offence is an offence to which subsection 8V(2) applies—3 times that amount; or

                     (d)  in any other case—double that amount.

          (2A)  If:

                     (a)  a person (the convicted person) is convicted before a court of:

                              (i)  an offence against subsection 8K(1) or or (1B) or section 8N, or against Division 136 or 137 of the Criminal Code in relation to a taxation law, in relation to a statement made to a taxation officer; or

                             (ii)  an offence against subsection 8L(1) or (1A) or section 8Q in relation to the keeping of any records; and

                     (b)  the offence relates to the Product Grants and Benefits Administration Act 2000; and

                     (c)  the court is satisfied that the amount that would have been the amount of a product grant or benefit payable to the convicted person or another person, determined on the basis that:

                              (i)  the statement were not false or misleading; or

                             (ii)  on the basis of those records as they were kept;

                            as the case may be, exceeds the proper amount of the product grant or benefit payable to the convicted person or the other person;

the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding:

                     (d)  in a case where the offence is an offence to which subsection 8R(2) applies, or that is against Division 136 or 137 of the Criminal Code in relation to a taxation law—3 times the amount of the excess; or

                     (e)  in any other case—double the amount of the excess.

             (3)  A reference in this section to a conviction of a person for an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.

             (4)  In this section:

product grant or benefit means a grant or benefit payable under the Product Grants and Benefits Administration Act 2000.

Subdivision BAOffences relating to tax file numbers

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

             (1)  A person must not require or request another person to quote the other person’s tax file number.

Penalty:  100 penalty units or imprisonment for 2 years, or both.

       (1AA)  Subsection (1) does not apply if:

                     (a)  provision is made by or under a taxation law or legislation described in paragraph 202(e) of the Income Tax Assessment Act 1936 for the person to quote the number; or

                     (b)  the first‑mentioned person requires or requests the number to be quoted in connection with that person exercising powers or performing functions under, or in relation to, or complying with an obligation imposed by, a taxation law or a law of the Commonwealth of the kind referred to in paragraph 202(c), (d), (g), (ga), (h), (haa), (ha), (hb), (hc), (i), (ia), (j), (kb), (la) or (m) of the Income Tax Assessment Act 1936; or

                     (c)  the first‑mentioned person requires or requests the number to be quoted in connection with the first‑mentioned person acting on the other person’s behalf in the conduct of the other person’s affairs.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (1AA), see subsection 13.3(3) of the Criminal Code.

          (1A)  A person does not contravene subsection (1) by asking another person to quote the other person’s tax file number if the request is made so that the number can be included in an application for the registration of an entity under the A New Tax System (Australian Business Number) Act 1999.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code.

             (2)  Nothing in subsection (1) shall be read as prohibiting a person from requesting the production of a document, or a copy of a document, on which another person’s tax file number is recorded if the other person is not prevented from removing the tax file number from the document.

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

             (3)  For the purposes of this section, a person who makes to another person a statement that the other person could reasonably understand to mean that the other person is required or requested to quote the other person’s tax file number shall be taken to require or request the other person to quote the number.

             (4)  Nothing in this section shall be read as imposing on a person an obligation to require another person to quote a tax file number.

8WB  Unauthorised recording etc. of tax file number

             (1)  A person must not:

                     (a)  record another person’s tax file number or maintain such a record; or

                     (b)  use another person’s tax file number in a manner connecting it with the other person’s identity; or

                     (c)  divulge or communicate another person’s tax file number to a third person.

Penalty:  100 penalty units or imprisonment for 2 years, or both.

          (1A)  Subsection (1) does not apply:

                     (a)  to the extent required or permitted by, or reasonably necessary in order to comply with an obligation imposed by, a taxation law or a law of the Commonwealth of a kind referred to in paragraph 202(c), (d), (e), (g), (ga), (h), (haa), (ha), (hb), (hc), (i), (ia), (j), (ka), (kb), (la), (m), (o) or (q) of the Income Tax Assessment Act 1936; or

                     (b)  in connection with the first‑mentioned person exercising powers or performing functions under, or in relation to, a taxation law or a law of the Commonwealth of a kind referred to in paragraph 202(c), (d), (e), (g), (ga), (h), (haa), (ha), (hb), (hc), (i), (ia), (j), (ka), (kb), (la), (m), (o) or (q) of the Income Tax Assessment Act 1936; or

                     (c)  in connection with the first‑mentioned person acting on the other person’s behalf in the conduct of the other person’s affairs.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code.

             (2)  Without affecting any obligation imposed by or under a law of the Commonwealth other than this section, nothing in subsection (1A) shall be read as imposing on a person an obligation to do an act referred to in paragraph (1)(a), (b) or (c).

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

             (1)  Where:

                     (a)  a person is an investor in relation to 2 or more investments of a similar kind; and

                     (b)  having regard to:

                              (i)  the manner in which the person became an investor in relation to the investments; and

                             (ii)  any explanation made by the person as to becoming such an investor in that manner;

                            it would be reasonable to conclude that the person became such an investor in that manner for the sole or dominant purpose of ensuring, or attempting to ensure that:

                            (iii)  although the person has not, under Part VA of the Income Tax Assessment Act 1936, quoted the person’s tax file number in connection with those investments (in this subparagraph called the non‑TFN investments):

                                        (A)  amounts would not be deducted under Division 3B of that Act, or withheld under section 12‑140 or 12‑145 in Schedule 1 to this Act, from income in respect of one or more of the non‑TFN investments; and

                                        (B)  amounts would not be paid to the Commissioner under section 14‑5 in Schedule 1 to this Act, in relation to income in respect of one or more of the non‑TFN investments; and

                                        (C)  TFN withholding tax would not be payable under section 14‑55 in Schedule 1 to this Act in respect of one or more of the non‑TFN investments; or