Contents
Part I—Preliminary 1
1............................ Short title............................................................................ 1
2............................ Interpretation....................................................................... 1
2A......................... Application of the Criminal Code....................................... 3
2B.......................... Act binds the Crown........................................................... 3
3............................ Application......................................................................... 4
3AA...................... Schedule 1.......................................................................... 4
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
3CA....................... Reporting of information by significant global entities....... 8
3E.......................... Reporting of information about entity with PRRT payable. 9
3F.......................... Reporting of information about junior minerals exploration incentive offset 11
Part II—Commissioner of Taxation, Second Commissioner of Taxation and Deputy Commissioner of Taxation 12
4............................ Commissioner and Second Commissioners of Taxation... 12
4A......................... Statutory Agency etc. for purposes of Public Service Act 12
5............................ Tenure of Commissioner and Second Commissioners..... 12
5A......................... Remuneration and allowances of Commissioner and Second Commissioners 12
6............................ Leave of absence............................................................... 13
6A......................... Resignation....................................................................... 13
6B.......................... Acting appointments......................................................... 13
6C.......................... Suspension and removal from office of Commissioner or Second Commissioner 14
6D......................... Powers of Second Commissioner..................................... 16
7............................ Deputy Commissioners of Taxation................................. 16
8............................ Delegation......................................................................... 17
Part IIA—The general interest charge 18
8AAA................... Overview.......................................................................... 18
8AAB.................... When the general interest charge applies........................... 18
8AAC.................... Amount of the general interest charge............................... 24
8AAD................... What is the general interest charge rate?......................... 25
8AAE.................... When the charge is due and payable................................. 25
8AAF.................... Notification by Commissioner.......................................... 26
8AAG................... Remission of the charge.................................................... 26
8AAGA................ Rounding of the charge..................................................... 27
8AAH................... Judgment for payment of an unpaid amount..................... 27
Part IIB—Running balance accounts, application of payments and credits, and related matters 28
Division 1—Preliminary 28
8AAZA................. Definitions........................................................................ 28
8AAZB................. Trustee to be treated as separate entity for each capacity... 30
Division 2—Running Balance Accounts (or RBAs) 31
8AAZC................. Establishment of RBAs.................................................... 31
8AAZD................. Allocation of tax debts to RBAs....................................... 31
8AAZF.................. General interest charge on RBA deficit debt..................... 32
8AAZG................. RBA statements................................................................ 32
8AAZH................. Liability for RBA deficit debt........................................... 32
8AAZI................... RBA statement to be evidence.......................................... 33
8AAZJ.................. Evidentiary certificate about RBA transactions etc............ 33
Division 3—Treatment of payments, credits and RBA surpluses 35
8AAZL.................. Amounts covered by this Division................................... 35
8AAZLA............... Method 1—allocating the amount first to an RBA............ 36
8AAZLB............... Method 2—applying the amount first against a non‑RBA tax debt 36
8AAZLC............... RBA surplus and related credits must remain equivalent if one or the other is applied 37
8AAZLD............... Special priority credits...................................................... 37
8AAZLE............... Instructions to Commissioner not binding........................ 38
Division 3A—Refunds of RBA surpluses and credits 39
8AAZLF............... Commissioner must refund RBA surpluses and credits... 39
8AAZLG............... Retaining refunds until information or notification given.. 40
8AAZLGA............ Retaining refunds while Commissioner verifies information 40
8AAZLGB............ Retaining refunds until notification under Division 389 or ascertainment of liability 43
8AAZLH............... How refunds are made...................................................... 45
Division 4—Miscellaneous provisions about tax debts 46
8AAZM................ When payments are treated as received............................. 46
8AAZMA............. Electronic payment of tax debts........................................ 46
8AAZMB.............. Saturdays, Sundays and public holidays........................... 46
8AAZN................. Overpayments made by the Commissioner under taxation laws 47
Part III—Prosecutions and offences 48
Division 1—Preliminary 48
8A......................... Interpretation..................................................................... 48
8AC....................... Application of Part to the Tax Agent Services Act 2009.... 49
Division 2—Offences 50
Subdivision A—Failure to comply with taxation requirements 50
8B.......................... Interpretation..................................................................... 50
8C.......................... Failure to comply with requirements under taxation law... 51
8D......................... Failure to answer questions when attending before the Commissioner etc. 52
8E.......................... Penalties for failure to comply with requirements under taxation law 53
8F.......................... Election to treat offence otherwise than as prescribed taxation offence 53
8G......................... Order to comply with requirement.................................... 54
8H......................... Penalty for failure to comply with order to comply........... 54
8HA...................... Court may order payment of amount in addition to penalty 55
Subdivision B—Offences relating to statements, records and certain other Acts 55
8J........................... Interpretation..................................................................... 55
8K.......................... False or misleading statements.......................................... 62
8L.......................... Incorrectly keeping records etc......................................... 64
8M......................... Penalties for offences against subsections 8K(1) and (1B) and 8L(1) and (1A) 65
8N......................... Recklessly making false or misleading statements............ 65
8Q......................... Recklessly incorrectly keeping records etc........................ 67
8R.......................... Penalties for offences against sections 8N and 8Q........... 67
8S.......................... Election to treat offence otherwise than as prescribed taxation offence 68
8T.......................... Incorrectly keeping records with intention of deceiving or misleading etc. 68
8U......................... Falsifying or concealing identity with intention of deceiving or misleading etc. 69
8V......................... Penalties for offences against sections 8T and 8U............ 70
8W......................... Court may order payment of amount in addition to penalty 70
Subdivision BAA—Offences relating to electronic sales suppression tools 74
8WAA................... Object of this Subdivision................................................ 74
8WAB................... Interpretation..................................................................... 74
8WAC................... Producing or supplying electronic sales suppression tools 75
8WAD................... Possessing electronic sales suppression tools................... 76
8WAE................... Incorrectly keeping records using electronic sales suppression tools 76
Subdivision BA—Offences relating to tax file numbers 77
8WA...................... Unauthorised requirement etc. that tax file number be quoted 77
8WB...................... Unauthorised recording etc. of tax file number................. 78
8WC...................... Conducting affairs so as to avoid tax file number requirements 79
Subdivision C—Miscellaneous 81
8XA...................... Unauthorised access to taxation records........................... 81
8Y......................... Liability of officers etc. of corporations............................ 81
8Z.......................... Evidentiary certificate relating to previous convictions..... 82
Division 3—Prosecution of taxation offences 84
8ZA....................... Prosecution of taxation offences....................................... 84
8ZB....................... Prosecution may be commenced at any time..................... 85
8ZC....................... Place where offence committed......................................... 85
8ZD....................... Conduct by employees or agents of corporations............. 86
8ZE........................ Civil penalty not payable if prosecution instituted............. 86
8ZF........................ Penalties for corporations................................................. 87
8ZG....................... Enforcement of orders for payment.................................. 87
8ZH....................... Penalties not to relieve from tax........................................ 88
Division 4—Prescribed taxation offences 89
8ZJ........................ Prosecution of prescribed taxation offences...................... 89
8ZK....................... Protection of witnesses..................................................... 90
8ZL........................ Averment.......................................................................... 91
8ZM...................... Evidence of authority to institute proceedings................... 91
8ZN....................... Costs................................................................................. 92
Division 5—Service of summons for prescribed taxation offences 93
9............................ Interpretation..................................................................... 93
10.......................... Service of summons by post............................................. 93
11.......................... Notice of conviction in absentia....................................... 94
12.......................... Notice of intention to issue warrant in default of payment 94
13.......................... Limitation of action to enforce payment of fine................. 95
13A....................... Setting aside of conviction or order.................................. 95
13B........................ Proof of service of summons or notice............................. 98
13C........................ Application of other laws.................................................. 98
Division 6—Setting aside etc. of conviction or order on application of Commissioner 99
13CA..................... Setting aside etc. of conviction or order on application of Commissioner 99
Part IIIA—Co‑operation between Commonwealth and State taxation authorities 101
Division 1—Interpretation 101
13D....................... Interpretation................................................................... 101
Division 2—Trans‑border investigations 103
13E........................ State taxation officers may refer matters to Commissioner for investigation 103
13F........................ Access to documents etc................................................. 103
13G....................... Commissioner may obtain information and evidence...... 104
Division 4—Certification by State taxation officer of copies of, and extracts from, documents 106
13K........................ Certification by State taxation officer of copies of, and extracts from, documents 106
Division 5—Australian Taxation Office may perform functions under State/Territory debits tax laws 108
13L........................ Australian Taxation Office may perform functions under State/Territory debits tax laws 108
Part IVA—Departure from Australia of certain tax debtors 110
Division 1—Interpretation 110
14Q....................... Interpretation................................................................... 110
Division 2—Prohibition and authorisation of departure of certain tax debtors 111
14R........................ Departure from Australia of certain tax debtors prohibited 111
14S........................ Departure prohibition orders........................................... 111
14T........................ Revocation and variation of departure prohibition orders 112
14U....................... Departure authorisation certificates................................. 113
Division 3—Appeals from, and review of, decisions of the Commissioner 116
14V....................... Appeals to courts against making of departure prohibition orders 116
14W....................... Jurisdiction of courts...................................................... 116
14X....................... Orders of court on appeal............................................... 116
14Y....................... Applications for review of certain decisions................... 117
Division 4—Enforcement 118
14Z........................ Powers of authorised officers......................................... 118
14ZA..................... Certain tax debtors to produce authority to depart etc..... 119
Part IVC—Taxation objections, reviews and appeals 120
Division 1—Introduction 120
14ZL...................... Part applies to taxation objections................................... 120
14ZM.................... Division 2—Interpretive................................................. 120
14ZN..................... Division 3—Taxation objections.................................... 120
14ZO..................... Division 4—Tribunal review.......................................... 120
14ZP...................... Division 5—Federal Court appeals................................. 120
Division 2—Interpretive provisions 121
14ZQ..................... General interpretation provisions.................................... 121
14ZR..................... Taxation decisions covered by single notice to be treated as single decision 122
14ZS...................... Ineligible income tax remission decisions....................... 123
Division 3—Taxation objections 124
14ZU..................... How taxation objections are to be made.......................... 124
14ZV..................... Limited objection rights in the case of certain amended taxation decisions 124
14ZVA.................. Limited objection rights because of other objections....... 124
14ZVB.................. Objections relating to excess concessional contributions 125
14ZVC.................. Objections relating to non‑concessional contributions.... 126
14ZW.................... When taxation objections are to be made........................ 127
14ZX..................... Commissioner to consider applications for extension of time 133
14ZY..................... Commissioner to decide taxation objections................... 133
14ZYA.................. Person may require Commissioner to make an objection decision 134
14ZYB.................. Requiring Commissioner to make a private ruling.......... 135
14ZZ...................... Person may seek review of, or appeal against, Commissioner’s decision 135
Division 4—AAT review of objection decisions and extension of time refusal decisions 137
14ZZA................... Modified AAT Act to apply........................................... 137
14ZZB................... Sections 27, 28, 41 and 44A of the AAT Act not to apply to certain decisions 137
14ZZC................... Modification of section 29 of the AAT Act.................... 137
14ZZD................... Modification of section 30 of the AAT Act.................... 138
14ZZE................... Hearings before Tribunal to be held in private if applicant so requests 138
14ZZF................... Modification of section 37 of the AAT Act.................... 138
14ZZG................... Modification of section 38 of the AAT Act.................... 139
14ZZJ.................... Modification of section 43 of the AAT Act.................... 140
14ZZK................... Grounds of objection and burden of proof..................... 140
14ZZL................... Implementation of Tribunal decisions............................. 141
14ZZM.................. Pending review not to affect implementation of taxation decisions 141
Division 5—Court appeals against objection decisions 142
14ZZN................... Time limit for appeals..................................................... 142
14ZZO................... Grounds of objection and burden of proof..................... 142
14ZZP................... Order of court on objection decision............................... 142
14ZZQ................... Implementation of court order in respect of objection decision 142
14ZZR................... Pending appeal not to affect implementation of taxation decisions 143
14ZZS................... Transfer of certain proceedings to Family Court............. 143
Part V—Miscellaneous 146
15.......................... Appearance by Commissioner etc................................... 146
15A....................... Certification by Commissioner of copies of, and extracts from, documents 147
15B........................ Recoverable advances..................................................... 149
15C........................ Recoverable payments.................................................... 150
15D....................... Reports about recoverable advances and recoverable payments 152
16.......................... Payments out of Consolidated Revenue Fund................ 154
16A....................... Regulations may provide for methods of payment of tax liabilities etc. 155
16B........................ Certain liabilities to be reduced to nearest multiple of 5 cents.. 156
17.......................... Powers of taxation officers in relation to references to currency etc. 156
17A....................... Powers of Federal Court and Federal Circuit Court in respect of taxation matters 157
18.......................... Regulations..................................................................... 158
Schedule 1—Collection and recovery of income tax and other liabilities 159
Chapter 2—Collection, recovery and administration of income tax 159
Part 2‑1—Introduction to the Pay as you go (PAYG) system 159
Division 6—Guide to Parts 2‑5 and 2‑10 159
6‑1......................... What Parts 2‑5 and 2‑10 are about.................................. 159
6‑5......................... The Pay as you go (PAYG) system............................... 159
6‑10....................... How the amounts collected are dealt with....................... 160
Part 2‑5—Pay as you go (PAYG) withholding 161
Division 10—Guide to Part 2‑5 161
10‑1....................... What this Part is about.................................................... 161
10‑5....................... Summary of withholding payments................................ 161
Division 11—Preliminary matters 164
11‑1....................... Object of this Part........................................................... 164
11‑5....................... Constructive payment..................................................... 164
Division 12—Payments from which amounts must be withheld 166
Subdivision 12‑A—General rules 166
12‑1....................... General exceptions.......................................................... 166
12‑5....................... What to do if more than one provision requires a withholding 168
12‑7....................... Division does not apply to alienated personal services payments 169
12‑10..................... Division does not apply to non‑cash benefits................. 170
12‑20..................... Application of Division and regulations to non‑share dividends 170
Subdivision 12‑B—Payments for work and services 170
12‑35..................... Payment to employee...................................................... 171
12‑40..................... Payment to company director.......................................... 171
12‑45..................... Payment to office holder................................................. 171
12‑47..................... Payment to religious practitioners................................... 172
12‑50..................... Return to work payment................................................. 172
12‑55..................... Voluntary agreement to withhold.................................... 172
12‑60..................... Payment under labour hire arrangement, or specified by regulations 173
Subdivision 12‑C—Payments for retirement or because of termination of employment 174
12‑80..................... Superannuation income streams and annuities................ 174
12‑85..................... Superannuation lump sums and payments for termination of employment 174
12‑90..................... Unused leave payments.................................................. 175
Subdivision 12‑D—Benefit and compensation payments 175
12‑110................... Social Security or other benefit payment......................... 175
12‑115................... Commonwealth education or training payment............... 176
12‑120................... Compensation, sickness or accident payment................. 176
Subdivision 12‑E—Payments where TFN or ABN not quoted 176
Payment in respect of investment 177
12‑140................... Recipient does not quote tax file number........................ 177
12‑145................... Investor becoming presently entitled to income of a unit trust 178
12‑150................... Limited application of section 12‑140 to payment under financial arrangement 179
12‑152................... Limited application of section 12‑140 to payment covered by section 12A‑205 180
12‑155................... When investor may quote ABN as alternative................ 180
12‑160................... Investment body unaware that exemption from quoting TFN has stopped applying 181
12‑165................... Exception for fully franked dividend.............................. 181
12‑170................... Exception for payments below thresholds set by regulations 181
Payment of income of closely held trust where TFN not quoted 182
12‑175................... Trustee distributes income of closely held trust.............. 182
12‑180................... Beneficiary becomes presently entitled to income of closely held trust 184
12‑185................... Exception for payments below thresholds set by regulations 185
Payment for a supply 185
12‑190................... Recipient does not quote ABN....................................... 185
Subdivision 12‑F—Dividend, interest and royalty payments 188
Dividends 189
12‑210................... Dividend payment to overseas person............................ 189
12‑215................... Dividend payment received for foreign resident............. 190
12‑220................... Application to part of a dividend..................................... 190
12‑225................... Application to distribution by a liquidator or other person 190
Interest 191
12‑245................... Interest payment to overseas person............................... 191
12‑250................... Interest payment received for foreign resident................ 191
12‑255................... Interest payment derived by lender in carrying on business through overseas permanent establishment 192
12‑260................... Lender to notify borrower if interest derived through overseas permanent establishment 192
Royalties 193
12‑280................... Royalty payment to overseas person............................... 193
12‑285................... Royalty payment received for foreign resident................ 193
General 194
12‑300................... Limits on amount withheld under this Subdivision......... 194
Subdivision 12‑FA—Departing Australia superannuation payments 194
12‑305................... Departing Australia superannuation payment................. 195
12‑310................... Limits on amount withheld under this Subdivision......... 195
Subdivision 12‑FAA—Excess untaxed roll‑over amount 195
12‑312................... Untaxed roll‑over superannuation benefits..................... 195
12‑313................... Limits on amount withheld under this Subdivision......... 195
Subdivision 12‑FB—Payments to foreign residents etc. 196
12‑315................... Payment to foreign resident etc....................................... 196
12‑317................... Payment received for foreign resident etc....................... 197
12‑319................... Exemptions from withholding obligations under this Subdivision 199
Subdivision 12‑FC—Seasonal Labour Mobility Program 200
12‑319A................ Payment to employee...................................................... 200
Subdivision 12‑G—Payments in respect of mining on Aboriginal land, and natural resources 200
Mining on Aboriginal land 201
12‑320................... Mining payment.............................................................. 201
Natural resources 201
12‑325................... Natural resource payment............................................... 201
12‑330................... Payer must ask Commissioner how much to withhold... 202
12‑335................... Commissioner may exempt from section 12‑330, subject to conditions 202
Subdivision 12‑H—Distributions of withholding MIT income 203
Guide to Subdivision 12‑H 203
12‑375................... What this Subdivision is about....................................... 203
Operative provisions 204
12‑383................... Meaning of withholding MIT.......................................... 204
12‑385................... Withholding by withholding MITs................................. 205
12‑390................... Withholding by custodians and other entities.................. 207
12‑395................... Requirement to give notice or make information available 211
12‑405................... Meaning of fund payment—general case........................ 213
12‑410................... Entity to whom payment is made.................................... 216
12‑415................... Failure to give notice or make information available: administrative penalty 216
12‑420................... Agency rules................................................................... 217
12‑425................... Meaning of clean building managed investment trust.... 217
12‑430................... Meaning of clean building.............................................. 218
Subdivision 12‑J—FHSS released amounts 219
12‑460................... FHSS released amounts.................................................. 219
Division 12A—Distributions by AMITs (including deemed payments) 220
Guide to Division 12A 220
12A‑1.................... What this Division is about............................................. 220
Subdivision 12A‑A—Distributions by AMITs relating to dividend, interest and royalties 221
Guide to Subdivision 12A‑A 221
12A‑5.................... What this Subdivision is about....................................... 221
Operative provisions 221
12A‑10.................. Deemed payments—no obligation to withhold under Subdivision 12‑F (dividend, interest and royalty payments)....................................................................... 221
12A‑15.................. Dividend, interest or royalty payments relating to AMIT—requirement to give notice or make information available.......................................................................... 222
12A‑20.................. Failure to give notice or make information available under section 12A‑15: administrative penalty 225
12A‑25.................. Meaning of AMIT DIR payment..................................... 225
12A‑30.................. Meaning of AMIT dividend payment.............................. 226
12A‑35.................. Meaning of AMIT interest payment................................ 227
12A‑40.................. Meaning of AMIT royalty payment................................. 228
Subdivision 12A‑B—Distributions by AMITs relating to Subdivision 12‑H fund payments 229
Guide to Subdivision 12A‑B 229
12A‑100................ What this Subdivision is about....................................... 229
Operative provisions 229
12A‑105................ Deemed payments—no obligation to withhold under Subdivision 12‑H 229
12A‑110................ Meaning of fund payment—AMITs............................... 230
Subdivision 12A‑C—Deemed payments by AMITs etc. 234
Guide to Subdivision 12A‑C 234
12A‑200................ What this Subdivision is about....................................... 234
Operative provisions 235
12A‑205................ Issue of AMMA statement etc. deemed to be payment... 235
12A‑210................ Post‑AMMA actual payment and pre‑AMMA actual payment in respect of deemed payment 237
12A‑215................ AMIT payment to the Commissioner in respect of deemed payments to offshore entities etc. 238
12A‑220................ Custodian payment to the Commissioner in respect of deemed payments to offshore entities etc. 239
Division 13—Alienated personal services payments 242
13‑1....................... Object of this Division.................................................... 242
13‑5....................... Payment to the Commissioner in respect of alienated personal services payments 242
13‑10..................... Alienated personal services payments............................. 245
13‑15..................... Personal services payment remitters............................... 246
13‑20..................... Time for payments to Commissioner for alienated personal services payments made during 2000‑01 247
Division 14—Benefits, gains and taxable supplies for which amounts must be paid to the Commissioner 248
Subdivision 14‑A—Non‑cash benefits 248
14‑1....................... Object of this Subdivision.............................................. 248
14‑5....................... Provider of non‑cash benefit must pay amount to the Commissioner if payment would be subject to withholding..................................................................... 248
14‑10..................... Dividend, interest or royalty received, for a foreign resident, in the form of a non‑cash benefit 249
14‑15..................... Payer can recover amount paid to the Commissioner...... 250
Subdivision 14‑B—Accruing gains 250
14‑50..................... Object of this Subdivision.............................................. 250
14‑55..................... Liability for TFN withholding tax................................... 251
14‑60..................... Investment body may recover TFN withholding tax from investor 252
14‑65..................... Application of rules in Division 18................................. 252
14‑75..................... Overpayment of TFN withholding tax............................ 253
14‑85..................... Other laws do not exempt from TFN withholding tax.... 253
Subdivision 14‑C—Shares and rights under employee share schemes 254
14‑155................... Liability for TFN withholding tax (ESS)........................ 254
14‑160................... Employer may give individual tax file numbers to provider 255
14‑165................... Provider may recover TFN withholding tax (ESS) from individual 255
14‑170................... Application of rules in Division 18................................. 256
14‑175................... Overpayment of TFN withholding tax (ESS)................. 256
14‑180................... Application of certain provisions of Division 83A of the Income Tax Assessment Act 1997 256
Subdivision 14‑D—Capital proceeds involving foreign residents and taxable Australian property 257
14‑200................... Certain acquisitions of taxable Australian property from foreign residents 257
14‑205................... Effect of look‑through earnout rights.............................. 258
14‑210................... Whether an entity is a relevant foreign resident............... 259
14‑215................... Excluded transactions..................................................... 261
14‑220................... Commissioner clearance certificates................................ 263
14‑225................... Entity declarations........................................................... 263
14‑230................... Administrative penalties for false or misleading declarations 264
14‑235................... Varying amounts to be paid to the Commissioner.......... 265
Subdivision 14‑E—GST payable on taxable supplies of certain real property 266
14‑250................... Recipients of certain taxable supplies of real property must pay amounts to Commissioner 267
14‑255................... Notification by suppliers of residential premises etc....... 269
Division 15—Working out the amount to withhold 272
Guide to Division 15 272
15‑1....................... What this Division is about............................................. 272
Subdivision 15‑A—Working out how much to withhold 272
15‑10..................... How much to withhold................................................... 273
15‑15..................... Variation of amounts required to be withheld................. 273
Subdivision 15‑B—Withholding schedules and regulations 274
15‑25..................... Commissioner’s power to make withholding schedules. 274
15‑30..................... Matters to be considered when making withholding schedules 275
15‑35..................... Regulations about withholding....................................... 276
Subdivision 15‑C—Declarations 277
15‑50..................... Declarations.................................................................... 277
Division 16—Payer’s obligations and rights 279
Guide to Division 16 279
16‑1....................... What this Division is about............................................. 279
Subdivision 16‑A—To withhold 279
When to withhold 280
16‑5....................... When to withhold an amount.......................................... 280
16‑7....................... Treat entity obliged to pay under Subdivision 12A‑C as having withheld amount under Division 12 280
16‑20..................... Payer discharged from liability to recipient for amount withheld 281
Penalties for not withholding 281
16‑25..................... Failure to withhold: offence............................................ 281
16‑30..................... Failure to withhold: administrative penalty for entity other than exempt Australian government agency 282
16‑35..................... Failure to withhold: administrative penalty for exempt Australian government agency in relation to payment other than dividend, interest or royalty............................ 283
16‑40..................... Failure to withhold: administrative penalty for exempt Australian government agency in relation to dividend, interest or royalty payment.............................................. 284
16‑43..................... Failure to withhold: administrative penalty for exempt Australian government agency in relation to payment to foreign resident etc.......................................................... 284
Subdivision 16‑B—To pay withheld amounts to the Commissioner 285
When and how to pay amounts to the Commissioner 285
16‑70..................... Entity to pay amounts to Commissioner......................... 285
16‑75..................... When amounts must be paid to Commissioner............... 286
16‑80..................... Penalty for failure to pay within time.............................. 288
16‑85..................... How amounts are to be paid........................................... 288
Who is a large, medium or small withholder 289
16‑95..................... Meaning of large withholder.......................................... 289
16‑100................... Meaning of medium withholder...................................... 290
16‑105................... Meaning of small withholder.......................................... 290
16‑110................... Commissioner may vary withholder’s status downwards 290
16‑115................... Commissioner may vary withholder’s status upwards... 291
Subdivision 16‑BA—To be registered 292
Registration of withholders 293
16‑140................... Withholders must be registered....................................... 293
16‑141................... Registration and cancellation........................................... 294
Branch registration 294
16‑142................... Branches may be registered............................................ 294
16‑143................... Separate amounts for entities and branches..................... 295
16‑144................... Cancellation of branch registration.................................. 295
16‑145................... Effect on branches of cancelling the entity’s registration 295
Registration of employers of working holiday makers 296
16‑146................... Employers of working holiday makers must be registered 296
16‑147................... Registering employers of working holiday makers......... 296
16‑148................... Cancelling the registration of employers of working holiday makers 298
Subdivision 16‑C—To provide information 300
To the Commissioner 300
16‑150................... Commissioner must be notified of amounts.................... 300
16‑152................... Annual reports—Withholding payments covered by section 12‑175 301
16‑153................... Annual reports—other payments.................................... 302
To recipients of withholding payments 305
16‑155................... Annual payment summary.............................................. 305
16‑156................... Annual payment summary for sections 12‑175 and 12‑180 307
16‑157................... Payment summary for Subdivision 12‑H....................... 307
16‑160................... Part‑year payment summary........................................... 308
16‑165................... Payment summaries for superannuation lump sums and payments for termination of employment 309
16‑166................... Payment summary for a departing Australia superannuation payment 310
16‑167................... Payment summary for payment to recipient who does not quote ABN 310
16‑170................... Form and content of payment summary.......................... 311
16‑175................... Penalty for not providing payment summary.................. 312
16‑180................... Commissioner may exempt entity from giving payment summary 313
16‑182................... Definition of reportable employer superannuation contribution 313
Subdivision 16‑D—Additional rights and obligations of entity that makes a payment 314
16‑195................... Payer’s right to recover amounts of penalty: certain withholding taxes 314
Division 18—Recipient’s entitlements and obligations 316
Subdivision 18‑A—Crediting withheld amounts 316
Guide to Subdivision 18‑A 316
18‑1....................... What this Subdivision is about....................................... 316
General exception 318
18‑5....................... No credit for refunded amount........................................ 318
Entitlement to credits: income tax liability 318
18‑10..................... Application of sections 18‑15, 18‑20 and 18‑25............. 318
18‑15..................... Tax credit for recipient of withholding payments............ 319
18‑20..................... Tax credit where recipient is a partnership...................... 319
18‑25..................... Tax credit where recipient is a trust................................. 320
18‑27..................... Tax credit for alienated personal services payments........ 322
Entitlement to credits: dividend, interest or royalty, amount attributable to fund payment or Seasonal Labour Mobility Program 322
18‑30..................... Credit: dividend, interest or royalty................................. 322
18‑32..................... Credit: amount attributable to fund payment................... 323
18‑33..................... Credit: Seasonal Labour Mobility Program.................... 324
18‑35..................... Credit: penalty under section 12‑415, 16‑30, 16‑35 or 16‑40 or related general interest charge 324
18‑40..................... Credit: liability under Part 4‑25....................................... 326
Entitlement to credit: departing Australia superannuation payment 328
18‑42..................... Credit—departing Australia superannuation payment..... 328
Entitlement to credit: mining payment 329
18‑45..................... Credit—mining payment................................................. 329
Entitlement to credit: Petroleum resource rent tax 330
18‑55..................... Credit—Natural resource payments................................ 330
Entitlement to credit: taxable supply of real property 330
18‑60..................... Credit—payment relating to taxable supply of real property 330
Subdivision 18‑B—Refund of certain withheld amounts 331
18‑65..................... Refund of withheld amounts by the payer to the recipient 331
18‑70..................... Refund of withheld amounts by the Commissioner to the recipient 334
18‑80..................... Refund by Commissioner of amount withheld from payment in respect of investment 336
18‑85..................... Refund by Commissioner of amount withheld from payment in respect of taxable supply of real property........................................................................................ 337
Subdivision 18‑C—Recipient’s obligations 337
18‑100................... Obligation to keep payment summary............................. 337
Subdivision 18‑D—Directors etc. of non‑complying companies 338
Object of Subdivision 339
18‑120................... Object of Subdivision..................................................... 339
PAYG withholding non‑compliance tax 339
18‑125................... Directors of non‑complying companies.......................... 339
18‑130................... Directors of non‑complying companies—tax reduced in certain circumstances 341
18‑135................... Associates of directors of non‑complying companies..... 342
18‑140................... Notices............................................................................ 346
18‑145................... When PAYG withholding non‑compliance tax must be paid.. 347
18‑150................... General interest charge payable on unpaid PAYG withholding non‑compliance tax 348
18‑155................... Validity of decisions and evidence.................................. 348
18‑160................... Rights of indemnity and contribution.............................. 349
Credits for later compliance 350
18‑165................... Credits for later compliance—scope............................... 350
18‑170................... Credits for later compliance—Commissioner must give notice in certain circumstances 350
18‑175................... Credits for later compliance—Commissioner may give notice 352
18‑180................... Effect of earlier credits.................................................... 353
Other provisions 354
18‑185................... When Commissioner may give notice............................. 354
18‑190................... Review of decisions........................................................ 355
Division 20—Other matters 356
Subdivision 20‑B—Offences 356
20‑35..................... Offences......................................................................... 356
20‑40..................... Joining of charges........................................................... 357
20‑45..................... Offences that would otherwise be committed by a partnership or unincorporated company 358
Subdivision 20‑D—Review of decisions 359
20‑80..................... Reviewable decisions...................................................... 359
Division 21—Entitlements relating to insolvent ADIs and general insurers 361
Guide to Division 21 361
21‑1....................... What this Division is about............................................. 361
Subdivision 21‑A—Treatment of some payments by APRA 361
21‑5....................... APRA treated like ADI or general insurance company.. 361
Part 2‑10—Pay as you go (PAYG) instalments 363
Division 45—Instalment payments 363
Guide to Division 45 364
45‑1....................... What this Division is about............................................. 364
Subdivision 45‑A—Basic rules 365
45‑5....................... Object of this Part........................................................... 365
45‑10..................... Application of Part.......................................................... 367
45‑15..................... Liability for instalments.................................................. 367
45‑20..................... Information to be given to the Commissioner by certain payers 368
45‑25..................... Penalty for failure to notify Commissioner..................... 368
45‑30..................... Credit for instalments payable......................................... 369
Subdivision 45‑B—When instalments are due 370
45‑50..................... Liability to pay instalments............................................. 370
45‑60..................... Meaning of instalment quarter....................................... 371
45‑61..................... When quarterly instalments are due—payers of quarterly instalments 371
45‑65..................... Meaning of instalment month......................................... 372
45‑67..................... When monthly instalments are due—payers of monthly instalments 373
45‑70..................... When annual instalments are due.................................... 373
45‑72..................... Means of payment of instalment..................................... 374
45‑75..................... Instalments recoverable in same way as income tax........ 374
45‑80..................... General interest charge on late payment.......................... 374
45‑90..................... Commissioner may withdraw instalment rate................. 374
Subdivision 45‑C—Working out instalment amounts 375
45‑110................... How to work out amount of quarterly instalment on instalment income basis 375
45‑112................... Amount of instalment for quarterly payer who pays on basis of GDP‑adjusted notional tax 376
45‑114................... How to work out amount of monthly instalment............ 377
45‑115................... How to work out amount of annual instalment............... 378
45‑120................... Meaning of instalment income........................................ 379
Subdivision 45‑D—Quarterly payers 383
45‑125................... Quarterly payer who pays instalments on the basis of instalment income 383
45‑130................... Quarterly payer who pays on the basis of GDP‑adjusted notional tax 385
45‑132................... Quarterly payer who pays 4 instalments annually on the basis of GDP‑adjusted notional tax 387
45‑134................... Quarterly payer who pays 2 instalments annually on the basis of GDP‑adjusted notional tax 388
Subdivision 45‑DA—Monthly payers 389
45‑136................... Monthly payer................................................................ 389
45‑138................... Monthly payer requirement............................................. 390
Subdivision 45‑E—Annual payers 392
When you start and stop being an annual payer 392
45‑140................... Choosing to pay annual instalments................................ 392
45‑145................... Meaning of instalment group......................................... 394
45‑150................... Entity stops being annual payer if involved with GST registration or instalment group 394
45‑155................... Entity stops being annual payer if notional tax is $8,000 or more, or entity chooses to pay quarterly 395
45‑160................... Head company of a consolidated group stops being annual payer 396
Subdivision 45‑F—Varying the instalment rate for quarterly or monthly payers who pay on the basis of instalment income 397
45‑200................... Application..................................................................... 397
45‑205................... Choosing a varied instalment rate................................... 397
45‑210................... Notifying Commissioner of varied instalment rate.......... 398
45‑215................... Credit on using varied rate in certain cases..................... 398
Subdivision 45‑G—General interest charge payable in certain cases if instalments are too low 400
45‑225................... Effect of Subdivision in relation to monthly payers........ 400
45‑230................... Liability to GIC on shortfall in quarterly instalment worked out on the basis of varied rate 400
45‑232................... Liability to GIC on shortfall in quarterly instalment worked out on the basis of estimated benchmark tax........................................................................................ 402
45‑233................... Reduction in GIC liability under section 45‑232 if shortfall is made up in later instalment 411
45‑235................... Liability to GIC on shortfall in annual instalment........... 412
45‑240................... Commissioner may remit general interest charge............ 414
Subdivision 45‑H—Partnership income 414
45‑260................... Instalment income for a period in which you are in a partnership 414
Subdivision 45‑I—Trust income included in instalment income of beneficiary 415
45‑280................... Instalment income for a period in which you are a beneficiary of a trust 415
45‑285................... Instalment income includes distributions by certain resident unit trusts 418
45‑286................... Instalment income includes distributions by certain managed investment trusts 419
45‑287................... When trusts are disqualified due to concentrated ownership 420
45‑288................... Resident investment trusts for beneficiaries who are absolutely entitled 422
45‑290................... Exceptions to exclusion of trust capital gains from beneficiary’s instalment income 422
Subdivision 45‑J—How Commissioner works out your instalment rate and notional tax 423
45‑320................... Working out instalment rate............................................ 423
45‑325................... Working out your notional tax........................................ 424
45‑330................... Working out your adjusted taxable income.................... 425
45‑335................... Working out your adjusted withholding income............. 428
45‑340................... Adjusted tax on adjusted taxable income or on adjusted withholding income 428
Subdivision 45‑K—How Commissioner works out your benchmark instalment rate and benchmark tax 431
45‑355................... When Commissioner works out benchmark instalment rate and benchmark tax 431
45‑360................... How Commissioner works out benchmark instalment rate 431
45‑365................... Working out your benchmark tax................................... 432
45‑370................... Working out your adjusted assessed taxable income for the variation year 433
45‑375................... Adjusted assessed tax on adjusted assessed taxable income 434
Subdivision 45‑L—How Commissioner works out amount of quarterly instalment on basis of GDP‑adjusted notional tax 436
45‑400................... Working out amount of instalment—payers of 4 quarterly instalments 436
45‑402................... Working out amount of instalment—payers of 2 quarterly instalments 438
45‑405................... Working out your GDP‑adjusted notional tax................ 440
Subdivision 45‑M—How amount of quarterly instalment is worked out on basis of your estimate of your benchmark tax 441
45‑410................... Working out amount of instalment—payers of 4 quarterly instalments 442
45‑412................... Working out amount of instalment—payers of 2 quarterly instalments 443
45‑415................... Estimating your benchmark tax....................................... 445
45‑420................... Credit in certain cases where amount of instalment is nil 446
Subdivision 45‑N—How this Part applies to the trustee of a trust 447
Trustees to whom this Part applies 447
45‑450................... Trustees to whom a single instalment rate is given......... 447
45‑455................... Trustees to whom several instalment rates are given....... 448
45‑460................... Rest of Subdivision applies only to multi‑rate trustees... 449
45‑465................... Meaning of instalment income........................................ 449
45‑468................... Multi‑rate trustee may pay quarterly instalments............. 450
How Commissioner works out instalment rate and notional tax for a multi‑rate trustee 450
45‑470................... Working out instalment rate............................................ 450
45‑473................... Commissioner must notify you of notional tax............... 451
45‑475................... Working out your notional tax........................................ 451
45‑480................... Working out your adjusted taxable income.................... 452
45‑483................... Meaning of reduced beneficiary’s share and reduced no beneficiary’s share 452
45‑485................... Working out your adjusted withholding income............. 453
How Commissioner works out benchmark instalment rate and benchmark tax for a multi‑rate trustee 454
45‑525................... When Commissioner works out benchmark instalment rate and benchmark tax 454
45‑530................... How Commissioner works out benchmark instalment rate 454
45‑535................... Working out your benchmark tax................................... 455
Subdivision 45‑P—Anti‑avoidance rules 455
45‑595................... Object of this Subdivision.............................................. 456
45‑597................... Effect of Subdivision in relation to instalment months.... 456
45‑600................... General interest charge on tax benefit relating to instalments 456
45‑605................... When do you get a tax benefit from a scheme?............... 458
45‑610................... What is your tax position for an income year?................ 459
45‑615................... What is your hypothetical tax position for an income year? 461
45‑620................... Amount on which GIC is payable, and period for which it is payable 461
45‑625................... Credit if you also got a tax detriment from the scheme... 462
45‑630................... When do you get a tax detriment from a scheme?........... 463
45‑635................... No tax benefit or detriment results from choice for which income tax law expressly provides 464
45‑640................... Commissioner may remit general interest charge in special cases 466
Subdivision 45‑Q—General rules for consolidated groups 466
Guide to Subdivision 45‑Q 466
45‑700................... What this Subdivision is about....................................... 466
Application of Subdivision 467
45‑703................... Effect of this Subdivision and Subdivision 45‑R in relation to monthly payers 467
45‑705................... Application of Subdivision to head company................. 468
Usual operation of this Part for consolidated group members 472
45‑710................... Single entity rule............................................................. 472
45‑715................... When instalments are due—modification of section 45‑61 473
45‑720................... Head company cannot be an annual payer—modification of section 45‑140 473
Membership changes 473
45‑740................... Change of head company................................................ 473
45‑755................... Entry rule (for an entity that becomes a subsidiary member of a consolidated group) 476
45‑760................... Exit rule (for an entity that ceases to be a subsidiary member of a consolidated group) 477
45‑775................... Commissioner’s power to work out different instalment rate or GDP‑adjusted notional tax 479
Subdivision 45‑R—Special rules for consolidated groups 481
Guide to Subdivision 45‑R 481
45‑850................... What this Subdivision is about....................................... 481
Operative provisions 482
45‑855................... Section 701‑1 disregarded for certain purposes.............. 482
45‑860................... Member having a different instalment period.................. 482
45‑865................... Credit rule....................................................................... 483
45‑870................... Head company’s liability to GIC on shortfall in quarterly instalment 485
45‑875................... Other rules about the general interest charge................... 488
45‑880................... Continued application of Subdivision 45‑Q to the head company of an acquired group 489
45‑885................... Early application of Subdivision 45‑Q to the head company of a new group 491
Subdivision 45‑S—MEC groups 492
Guide to Subdivision 45‑S 492
45‑900................... What this Subdivision is about....................................... 492
Preliminary 493
45‑905................... Objects of Subdivision................................................... 493
General modification rules 494
45‑910................... Extended operation of Part to cover MEC groups.......... 494
Extended operation of Subdivision 45‑Q 495
45‑913................... Sections 45‑705 and 45‑740 do not apply to members of MEC groups 495
45‑915................... Application of Subdivision 45‑Q to provisional head company 495
45‑917................... Assumption for applying section 45‑710 (single entity rule) 499
45‑920................... Change of provisional head company............................. 499
45‑922................... Life insurance company.................................................. 502
Extended operation of Subdivision 45‑R 503
45‑925................... Additional modifications of sections 45‑855 and 45‑860 503
45‑930................... Modifications of sections 45‑865 and 45‑870 and a related provision 503
45‑935................... Additional modifications of section 45‑885.................... 504
Part 2‑15—Returns and assessments 505
Division 70—Tax receipts 505
Guide to Division 70 505
70‑1....................... What this Division is about............................................. 505
Subdivision 70‑A—Tax receipts 505
70‑5....................... Tax receipt to be provided to certain individual taxpayers 506
Part 2‑30—Collecting Medicare levy with income tax 508
Division 90—Medicare levy and Medicare levy surcharge 508
Subdivision 90‑A—Treatment like income tax 508
90‑1....................... Laws apply in relation to Medicare levy and Medicare levy surcharge as they apply in relation to income tax........................................................................................ 508
Part 2‑35—Excess superannuation contributions 509
Division 95—Excess concessional contributions charge 509
Guide to Division 95 509
95‑1....................... What this Division is about............................................. 509
Subdivision 95‑A—Object of Division 509
95‑5....................... Object of Division.......................................................... 509
Subdivision 95‑B—Excess concessional contributions charge 510
95‑10..................... Liability to excess concessional contributions charge..... 510
95‑15..................... Amount of excess concessional contributions charge..... 511
95‑20..................... When excess concessional contributions charge is due and payable 511
95‑25..................... General interest charge.................................................... 512
Division 97—Excess contributions determinations 513
Subdivision 97‑A—Excess concessional contributions determinations 513
Guide to Subdivision 97‑A 513
97‑1....................... What this Subdivision is about....................................... 513
Operative provisions 513
97‑5....................... Determination of excess concessional contributions and charge 513
97‑10..................... Review............................................................................ 514
Subdivision 97‑B—Excess non‑concessional contributions determinations 514
Guide to Subdivision 97‑B 514
97‑20..................... What this Subdivision is about....................................... 514
Operative provisions 515
97‑25..................... Excess non‑concessional contributions determinations... 515
97‑30..................... Associated earnings........................................................ 515
97‑35..................... Review............................................................................ 516
An Act to provide for the administration of certain Acts relating to Taxation, and for purposes connected therewith
Part I—Preliminary
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.
assessable amount has the meaning given by subsection 155‑5(2) in Schedule 1.
Australia, when used in a geographical sense, has the same meaning as in the Income Tax Assessment Act 1997.
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 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.
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.
(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.
2B Act binds the Crown
This Act binds the Crown in each of its capacities. However, it does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.
3 Application
This Act extends to every external Territory referred to in the definition of Australia.
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 IA—Administration
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:
(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 (within the meaning of the Income Tax Assessment Act 1997) found guilty of the offence in section 355‑25 in Schedule 1 (about disclosure of protected information); and
(e) set out information on the exercise during the year of the Commissioner’s powers under Subdivision 370‑A in Schedule 1 (Commissioner’s remedial power).
(1C) 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 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 a corporate tax entity for an income year if, according to information reported to the Commissioner in the entity’s income tax return for the income year:
(a) the entity has total income equal to or exceeding $100 million for the income year and, at the end of the income year:
(i) the entity is not an Australian resident that is a private company for the income year; or
(ii) the entity is a member of a wholly‑owned group that has a foreign resident ultimate holding company; or
(iii) the percentage of foreign shareholding in the entity is greater than 50%; or
(b) the entity has total income equal to or exceeding $200 million for the income year and, at the end of the income year, the entity is an Australian resident that is a private company for the income year.
An expression used in this subsection that is also used in the Income Tax Assessment Act 1997 has the same meaning as in that Act.
(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.
3CA Reporting of information by significant global entities
(1) This section applies to a corporate tax entity for an income year if:
(a) the entity is a significant global entity for the income year; and
(b) at the end of the income year, the entity is:
(i) an Australian resident; or
(ii) a foreign resident who operates an Australian permanent establishment (within the meaning of Part IVA of the Income Tax Assessment Act 1936); and
(c) the entity does not lodge a general purpose financial statement for the financial year most closely corresponding to the income year:
(i) with the Australian Securities and Investments Commission; and
(ii) within the time provided under subsection 319(3) of the Corporations Act 2001 for lodgement of a report for that financial year.
(2) A corporate tax entity to which this section applies for an income year must, on or before the day by which the entity is required to lodge its income tax return for the income year with the Commissioner, give to the Commissioner in the approved form a general purpose financial statement for the financial year most closely corresponding to the income year.
Note: Section 286‑75 in Schedule 1 provides an administrative penalty for breach of this subsection.
(3) The Commissioner must give a copy of the statement to the Australian Securities and Investments Commission.
(4) The giving of the copy to the Australian Securities and Investments Commission under subsection (3) is taken, for the purposes of the Corporations Act 2001, to be lodgement of the document with the Australian Securities and Investments Commission.
Note: Under section 1274 of the Corporations Act 2001, a person may inspect, and require to be given a copy or extract of, any document lodged with the Australian Securities and Investments Commission.
(5) For the purposes of this section, a general purpose financial statement in relation to an entity:
(a) must be prepared in accordance with:
(i) the accounting principles; or
(ii) if accounting principles do not apply in relation to the entity—commercially accepted principles relating to accounting; and
(b) if the entity is a member of a group of entities that are consolidated for accounting purposes as a single group—must relate to:
(i) the entity; or
(ii) the entity and some or all of the other members of the group.
(6) An expression used in this section that is also used in the Income Tax Assessment Act 1997 has the same meaning as in that Act.
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.
3F Reporting of information about junior minerals exploration incentive offset
(1) This section applies if the Commissioner makes a determination under section 418‑101 of the Income Tax Assessment Act 1997 allocating exploration credits to an entity for an income year.
(2) The Commissioner must, as soon as practicable after making the determination, make publicly available:
(a) the ABN and name of the entity; and
(b) the amount of the entity’s exploration credits allocation for the income year.
(3) An expression used in this section that is also used in the Income Tax Assessment Act 1997 has the same meaning as in that Act.
Part II—Commissioner 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 IIA—The 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 | |
| 3B | 67 | Excise Act 1901 | payment of excise duty for tobacco goods | |
| 5 | 93 | Fringe Benefits Tax Assessment Act 1986 | payment of fringe benefits 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 | former section
163AA | Income Tax Assessment Act 1936 | returns by instalment taxpayers | |
| 10 | former section 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 | |
| 15B | 294‑250 | Income Tax Assessment Act 1997 | payment of excess transfer balance tax | |
| 16A | 418‑170 | Income Tax Assessment Act 1997 | payment of excess exploration credit tax or shortfall interest charge | |
| 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 | |
| 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 | |
| 33A | 20QE | Superannuation (Unclaimed Money and Lost Members) Act 1999 | payment in respect of inactive low‑balance accounts | |
| 33B | 20QL | Superannuation (Unclaimed Money and Lost Members) Act 1999 | repayment of Commissioner’s payment in respect of inactive low‑balance accounts 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 | |
| 35A | 24NB | Superannuation (Unclaimed Money and Lost Members) Act 1999 | repayment of Commissioner’s payment for inactive low‑balance accounts that cannot be credited to an active 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 | 115‑10 in Schedule 1 | Taxation Administration Act 1953 | payment of major bank levy | |
| 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 | |
| | | | | | |
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.
(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 IIB—Running balance accounts, application of payments and credits, and related matters
Division 1—Preliminary
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 ABSTUDY SSL repayment amount has the same meaning as in the Student Assistance Act 1973.
compulsory repayment amount has the same meaning as in the Higher Education Support Act 2003.
compulsory SSL repayment amount has the same meaning as in Chapter 2AA of the Social Security Act 1991.
compulsory TSL repayment amount has the same meaning as in the Trade Support Loans Act 2014.
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 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 2—Running 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 3—Treatment 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
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
(ab) then against any compulsory SSL repayment amount of the entity; and
(ac) then against any compulsory ABSTUDY SSL repayment amount of the entity; and
(ad) then against any compulsory TSL 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 3A—Refunds 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 petroleum 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.
(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)(aad) and subsection 14ZW(4).
(8) A failure to comply with subsection (7) does not affect the validity of the decision.
8AAZLGB Retaining refunds until notification under Division 389 or ascertainment of liability
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:
(a) the Commissioner reasonably believes that the entity has made a payment as a result of which the entity is, or will be, required to notify the Commissioner under section 389‑5 in Schedule 1; and
(b) the entity has not notified the Commissioner of the amount under that section; and
(c) the notification affects or may affect the amount that the Commissioner refunds to the entity.
(2) The Commissioner must inform the entity that he or she has retained the amount under this section. He or she must do so within 14 days after the day on which the relevant RBA surplus or credit arose.
How long the amount may be retained
(3) The Commissioner may retain the amount until:
(a) the entity has given the Commissioner that notification (including notification of a nil amount); or
(b) the Commissioner becomes reasonably satisfied that the entity is not required to give that notification; or
(c) the Commissioner becomes reasonably satisfied that the entity does not have a liability (a PAYGW liability) to pay to the Commissioner an amount of a kind referred to in item 1 of the table in subsection 389‑5(1) in Schedule 1; or
(d) the Commissioner ascertains (including as a result of making an estimate) the total amount of the entity’s outstanding PAYGW liabilities;
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 (3).
Objecting to the decision to retain the amount
(4) 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: For the start of the period for objecting to the decision, see paragraph 14ZW(1)(aae) and subsection 14ZW(4).
(5) 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.
(6) A failure to comply with subsection (5) 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 petroleum 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 4—Miscellaneous 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 III—Prosecutions and offences
Note: Subsection 2(2) specifies laws that are not taxation laws for the purposes of this Part.
Division 1—Preliminary
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.
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 2—Offences
Subdivision A—Failure 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 give any information or document 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
(fa) to comply with an education direction in accordance with subsection 384‑15(3) in Schedule 1; 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;
commits 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;
commits 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 commits 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) commits 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 B—Offences 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:
(kaa) subparagraph 451(2)(c)(ii) or paragraph 453(1)(e) of the Income Tax Assessment Act 1936;
(p) paragraph 13G(1)(c) of this Act; or
(pa) paragraph 353‑10(1)(c) in Schedule 1 to this Act; or
(q) paragraph 353‑25(1)(b) or (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 commits 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 commits 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.
(2A) Subsection (1) or (1B) does not apply if:
(a) the statement (the original statement) was made under section 389‑5 in Schedule 1 notifying an amount under item 1 or 2 of the table in subsection 389‑5(1) in that Schedule (and no other item in that table); and
(b) the original statement related to the financial year in which it was made; and
(c) the person who made the original statement makes a further statement to a taxation officer that corrects the original statement in each of the respects in which it is false or misleading in a material particular; and
(d) the further statement:
(i) is in the approved form; and
(ii) if subsection 389‑25(1) in that Schedule provides for a period for correcting the original statement—is made within that period; and
(iii) without limiting subparagraph (ii), is made within 14 days after the end of the financial year in which the original statement was made.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2A), see subsection 13.3(3) of the Criminal Code.
(2B) Subsection (1) or (1B) does not apply if:
(a) the statement (the original statement) was made under section 390‑5 in Schedule 1; and
(b) the person who made the original statement makes a further statement to a taxation officer that corrects the original statement in each of the respects in which it is false or misleading in a material particular; and
(c) subsection 390‑7(1) in Schedule 1 provides for a period for correcting the original statement; and
(d) the further statement:
(i) is in the approved form; and
(ii) is made within the period referred to in paragraph (c) of this subsection.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2B): see subsection 13.3(3) 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 commits 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 commits 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
(1) A person commits 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.
(2) This section does not apply if:
(a) the statement (the original statement) was made under section 389‑5 in Schedule 1 notifying an amount under item 1 or 2 of the table in subsection 389‑5(1) in that Schedule (and no other item in that table); and
(b) the original statement related to the financial year in which it was made; and
(c) the person who made the original statement makes a further statement to a taxation officer that corrects the original statement in each of the respects in which it is false or misleading in a material particular; and
(d) the further statement:
(i) is in the approved form; and
(ii) if subsection 389‑25(1) in that Schedule provides for a period for correcting the original statement—is made within that period; and
(iii) without limiting subparagraph (ii), is made within 14 days after the end of the financial year in which the original statement was made.
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) This section does not apply if:
(a) the statement (the original statement) was made under section 390‑5 in Schedule 1; and
(b) the person who made the original statement makes a further statement to a taxation officer that corrects the original statement in each of the respects in which it is false or misleading in a material particular; and
(c) subsection 390‑7(1) in Schedule 1 provides for a period for correcting the original statement; and
(d) the further statement:
(i) is in the approved form; and
(ii) is made within the period referred to in paragraph (c) of this subsection.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.
8Q Recklessly incorrectly keeping records etc.
(1) A person commits 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 commits 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) commits 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) commits 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 (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.
(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 (within the meaning of the Income Tax Assessment Act 1997) that the head company makes as a result of CGT event L6 happening as mentioned in section 104‑525 of that Act; and
(b) the corporate tax rate (within the meaning of that Act) 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 (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:
CGT event has the same meaning as in the Income Tax Assessment Act 1997.
head company has the same meaning as in the Income Tax Assessment Act 1997.
product grant or benefit means a grant or benefit payable under the Product Grants and Benefits Administration Act 2000.
subsidiary member has the same meaning as in the Income Tax Assessment Act 1997.
tax cost setting amount has the same meaning as in the Income Tax Assessment Act 1997.
Subdivision BAA—Offences relating to electronic sales suppression tools
8WAA Object of this Subdivision
The object of this Subdivision is to deter the production, use and distribution of tools to manipulate or falsify electronic point of sale records to facilitate tax evasion.
8WAB Interpretation
In this Subdivision:
electronic sales suppression tool means a device, software program or other thing, a part of any such thing, or a combination of any such things or parts, that meets the following conditions:
(a) it is capable of falsifying, manipulating, hiding, obfuscating, destroying, or preventing the creation of, a record that:
(i) an entity is required by a taxation law to keep or make; and
(ii) is, or would be, created by a system that is or includes an electronic point of sale system;
(b) a reasonable person would conclude that one of its principal functions is to falsify, manipulate, hide, obfuscate, destroy, or prevent the creation of, such records.
right to use includes right to possess.
supply has the meaning given by section 9‑10 of the A New Tax System (Goods and Services Tax) Act 1999.
8WAC Producing or supplying electronic sales suppression tools
(1) A person commits an offence if the person manufactures, develops or publishes an electronic sales suppression tool.
Penalty: 5,000 penalty units.
(2) A person commits an offence if the person:
(a) makes a supply of, or makes available for use, an electronic sales suppression tool or a right to use an electronic sales suppression tool; or
(b) provides a service to an entity that involves the use of an electronic sales suppression tool.
Penalty: 5,000 penalty units.
(3) Subsections (1) and (2) do not apply to conduct undertaken by the person for the purpose of preventing or deterring tax evasion or enforcing a taxation law.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) An offence against subsection (1) or (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) Section 15.4 (extended geographical jurisdiction—category D) of the Criminal Code applies to an offence against subsection (1) if the electronic sales suppression tool is, at any time, used to modify records that a taxation law requires an entity to keep or make.
(6) Section 15.4 (extended geographical jurisdiction—category D) of the Criminal Code applies to an offence against subsection (2) if the person makes a supply of, or makes available for use, the electronic sales suppression tool or the right to use the tool to an entity that is required by a taxation law to keep or make any record.
8WAD Possessing electronic sales suppression tools
(1) A person commits an offence if:
(a) the person is required under, or pursuant to, a taxation law to keep or make a record; and
(b) the person acquires, or has possession or control of, an electronic sales suppression tool or a right to use an electronic sales suppression tool.
Penalty: 500 penalty units.
(2) Subsection (1) does not apply to conduct undertaken by a person for the purpose of preventing or deterring tax evasion or enforcing a taxation law.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
8WAE Incorrectly keeping records using electronic sales suppression tools
(1) A person commits an offence if:
(a) the person is required under, or pursuant to, a taxation law to keep or make a record; and
(b) the record is kept, made or altered with the use of an electronic sales suppression tool, or is prevented by the use of an electronic sales suppression tool from being kept, made or altered; and
(c) as a result of the use:
(i) the record does not correctly record and explain the matter, transaction, act or operation to which it relates; or
(ii) the person does not keep or make the record in accordance with the taxation law.
Penalty: 1,000 penalty units.
(2) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Subdivision BA—Offences 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), (gaa), (h), (hab), (hac), (ha), (hb), (hc), (i), (ia), (j), (kb), (la), (m), (r), (s) or (t) 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), (gaa), (h), (hab), (hac), (ha), (hb), (hc), (i), (ia), (j), (ka), (kb), (la), (m), (o), (q), (r), (s) or (t) 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), (gaa), (h), (hab), (hac), (ha), (hb), (hc), (i), (ia), (j), (ka), (kb), (la), (m), (o), (q), (r), (s) or (t) 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
(iv) the investments are not referred to in a report under the regulations made under that Act;
the person commits an offence.
Penalty: 100 penalty units or imprisonment for 2 years, or both.
(2) In this section:
investment means an investment of a kind mentioned in section 202D of the Income Tax Assessment Act 1936.
investor means an investor within the meaning of that section.
Subdivision C—Miscellaneous
8XA Unauthorised access to taxation records
A person must not take action with the intention of obtaining information about another person’s affairs that:
(a) is contained in records in the possession of the Commissioner; and
(b) is held or was obtained by the Commissioner under or for the purposes of a taxation law;
unless the person takes the action:
(c) under the Freedom of Information Act 1982; or
(d) in accordance with the processes of a court or the Tribunal; or
(e) in the course of exercising powers or performing functions under or in relation to a taxation law.
Penalty: 100 penalty units or imprisonment for 2 years, or both.
8Y Liability of officers etc. of corporations
(1) Where a corporation does or omits to do an act or thing the doing or omission of which constitutes a taxation offence, a person (by whatever name called and whether or not the person is an officer of the corporation) who is concerned in, or takes part in, the management of the corporation shall be deemed to have committed the taxation offence and is punishable accordingly.
(2) In a prosecution of a person for a taxation offence by virtue of subsection (1), it is a defence if the person proves that the person:
(a) did not aid, abet, counsel or procure the act or omission of the corporation concerned; and
(b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission of the corporation.
Note 1: A defendant bears a legal burden in relation to the matters in subsection (2), see section 13.4 of the Criminal Code.
Note 2: Subsection (2) does not apply in relation to a prosecution under Part 2.4 of the Criminal Code.
(3) For the purposes of subsection (1), an officer of a corporation shall be presumed, unless the contrary is proved, to be concerned in, and to take part in, the management of the corporation.
(4) In this section, officer, in relation to a corporation, means:
(a) a director or secretary of the corporation;
(b) a receiver and manager of property of the corporation;
(ba) an administrator, within the meaning of the Corporations Act 2001, of the corporation;
(bb) an administrator of a deed of company arrangement executed by the corporation under Part 5.3A of that Act;
(d) a liquidator of the corporation appointed in a voluntary winding up of the corporation; or
(e) a trustee or other person administering a compromise or arrangement made between the corporation and another person or other persons.
8Z Evidentiary certificate relating to previous convictions
(1) The Commissioner may, for the purposes of subsection 8E(2) or (3), 8M(2), 8R(2) or 8V(2), issue a certificate setting out such facts as the Commissioner considers relevant with respect to:
(a) the conviction of a person of an offence against a provision of Subdivision A or B or against Division 136 or 137 of the Criminal Code in relation to a taxation law; or
(b) the conviction of a person of an offence against the Crimes (Taxation Offences) Act 1980; or
(c) the conviction of a person of an offence against:
(i) section 6 of the Crimes Act 1914; or
(ii) section 11.1, 11.4 or 11.5 of the Criminal Code;
being an offence that relates to an offence of a kind referred to in paragraph (a) or (b) of this subsection; or
(d) the conviction of a person of an offence against section 134.1, 134.2, 135.1, 135.2 or 135.4 of the Criminal Code, being an offence that relates to a tax liability; or
(e) the making of an order under section 19B of the Crimes Act 1914 in relation to a person in respect of an offence of a kind referred to in paragraph (a), (b), (c) or (d) of this subsection; or
(f) the conviction of a person of an offence against Division 136 or 137 of the Criminal Code, being an offence that relates to a taxation law.
(2) A document purporting to be a certificate issued under subsection (1) shall be received in evidence in a court without further proof and is, for those purposes, prima facie evidence of the facts stated in it.
(3) The provisions of this section are in addition to, and not in derogation of, any other law of the Commonwealth or any law of a State or Territory.
Division 3—Prosecution of taxation offences
8ZA Prosecution of taxation offences
(1) A taxation offence that is punishable by imprisonment for a period exceeding 12 months is, when committed by a natural person, an indictable offence.
(2) A taxation offence that is punishable by imprisonment for a period not exceeding 12 months is, when committed by a natural person, punishable on summary conviction.
(3) A prescribed taxation offence, when committed by a natural person, is punishable on summary conviction.
(4) A taxation offence, when committed by a corporation, is punishable on summary conviction.
(5) In spite of anything in the preceding provisions of this section, if:
(a) a person is convicted of 2 or more offences against section 8T or 8U, or both, before the same court at the same sitting; and
(b) assuming that the person had only been convicted of one of those offences, that offence would have been punishable on summary conviction;
all those offences are punishable on summary conviction.
(6) A reference in subsection (5) to a conviction of a person for an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.
(7) A reference in subsection (5) to an offence against section 8T or 8U includes a reference to an offence against section 11.1 of the Criminal Code that relates to an offence against section 8T or 8U, as the case may be.
8ZB Prosecution may be commenced at any time
(1) A prosecution for a taxation offence may be commenced at any time.
(2) Subsection (1) has effect notwithstanding anything contained in section 15B of the Crimes Act 1914.
8ZC Place where offence committed
(1) Where a person commits a taxation offence by doing an act, the taxation offence may be taken to have been committed at:
(a) the place where the act was done;
(b) if the person is a natural person—the usual place of residence or business of the person or the place of residence or business of the person last known to the Commissioner; or
(c) if the person is a corporation—the head office, a registered office or a principal office of the corporation;
and the person may be charged with, and convicted of, the taxation offence as if it had been committed at any of those places.
(2) Where a person commits a taxation offence by omitting to do an act, the taxation offence may be taken to have been committed at:
(a) the place where the act should have been done;
(b) if the person is a natural person—the usual place of residence or business of the person or the place of residence or business of the person last known to the Commissioner; or
(c) if the person is a corporation—the head office, a registered office or a principal office of the corporation;
and the person may be charged with, and convicted of, the taxation offence as if it had been committed at any of those places.
(3) This section has effect subject to section 80 of the Constitution.
Note: This section does not apply as an averment. For averments, see section 8ZL of this Act and section 13.6 of the Criminal Code.
8ZD Conduct by employees or agents of corporations
(1) Where, in a prosecution for a taxation offence constituted by an act done, or omitted to be done, by a corporation, it is necessary to establish the intention of the corporation, it is sufficient to show that an employee or agent of the corporation by whom the act was done or omitted to be done, as the case may be, had the intention.
(2) In a prosecution for a taxation offence, any act done, or omitted to be done, on behalf of a corporation by:
(a) a director, employee or agent of the corporation; or
(b) any other person:
(i) at the direction; or
(ii) with the consent or agreement (whether express or implied);
of a director, employee or agent of the corporation;
shall be deemed to have been done, or omitted to have been done, as the case may be, also by the corporation.
(3) Part 2.5 of the Criminal Code does not apply to taxation offences.
8ZE Civil penalty not payable if prosecution instituted
If:
(a) a person is liable to pay by way of penalty (other than for an offence) an amount under a taxation law because of an act or omission of the person; and
(b) a prosecution is instituted against the person for a taxation offence constituted by the act or omission;
then (whether or not the prosecution is withdrawn):
(c) the person is not liable to pay the amount; and
(d) any amount paid, or applied by the Commissioner, in total or partial discharge of that liability is to be refunded to the person, or applied by the Commissioner in total or partial discharge of another tax liability of the person.
Note: An example of a penalty referred to in paragraph (a) is a penalty payable under section 284‑75 in Schedule 1.
8ZF Penalties for corporations
Where a corporation is convicted of:
(a) a taxation offence (other than a prescribed offence) that, if committed by a natural person, is punishable by imprisonment; or
(b) a prescribed offence to which subsection 8E(3) or 8R(2) applies;
the penalty that the court before which the corporation is convicted may impose is a fine not exceeding 5 times the maximum fine that, but for this section, the court could impose as a penalty for the taxation offence.
8ZG Enforcement of orders for payment
(1) Where:
(a) upon the conviction of a person for a taxation offence, the court before which the person is convicted, in addition to imposing a penalty on the person, orders the person to pay an amount to the Commissioner; and
(b) the court has civil jurisdiction to the extent of the amount;
the order is enforceable in all respects as a final judgment of the court in favour of the Commissioner.
(2) Where:
(a) upon conviction of a person for a taxation offence, the court before which the person is convicted, in addition to imposing a penalty on the person, orders the person to pay an amount to the Commissioner; and
(b) the court:
(i) does not have civil jurisdiction; or
(ii) has civil jurisdiction, but does not have civil jurisdiction to the extent of the amount;
the proper officer of the court shall issue to the Commissioner a certificate in the prescribed form containing the prescribed particulars.
(3) The certificate may, in the prescribed manner and subject to the prescribed conditions (if any), be registered in a court having civil jurisdiction to the extent of the amount ordered to be paid to the Commissioner.
(4) Upon registration under subsection (3), the certificate is enforceable in all respects as a final judgment of the court in favour of the Commissioner.
(5) The costs of registration of the certificate and other proceedings under this section shall, subject to the prescribed conditions (if any), be deemed to be payable under the certificate.
8ZH Penalties not to relieve from tax
The adjudgment or payment of:
(a) a penalty in respect of a taxation offence; or
(b) an amount ordered by a court, upon the conviction of a person for a taxation offence, to be paid by the person to the Commissioner;
does not relieve any person from liability to assessment or payment of any amount (whether by way of tax, duty, charge or otherwise) for which the person would otherwise be liable.
Division 4—Prescribed taxation offences
8ZJ Prosecution of prescribed taxation offences
(1) A prosecution for a prescribed taxation offence shall take the form of a proceeding by the Commonwealth for the recovery of a pecuniary penalty.
(2) A prosecution for a prescribed taxation offence may be instituted by a person authorized under subsection (8) on behalf of, and in the official name of, the Commissioner by information or complaint in a court of summary jurisdiction.
(3) A prosecution of a person for a prescribed taxation offence that is punishable by a fine exceeding the prescribed amount in relation to the person may be instituted by a person authorized under subsection (8) on behalf of, and in the official name of, the Commissioner by action in the Supreme Court of a State or Territory.
(4) Where a court of summary jurisdiction convicts a person of a prescribed taxation offence, the penalty that the court may impose is a fine not exceeding the prescribed amount in relation to the person.
(5) Where:
(a) a prosecution of a person for a prescribed taxation offence that is punishable by a fine exceeding the prescribed amount in relation to the person is instituted in accordance with subsection (2); and
(b) before the expiration of the period of 14 days after service of process on the person in respect of the prescribed taxation offence, the person elects, in the prescribed manner, to have the case tried in the Supreme Court of the State or Territory in which the prosecution was instituted;
the prosecution shall, by force of this subsection and without any order of the Supreme Court, be removed to the Supreme Court.
(6) Where a prosecution for a prescribed taxation offence is instituted in the Supreme Court of a State or Territory in accordance with subsection (3) or is removed to the Supreme Court of a State or Territory by force of subsection (5), the prosecution may be conducted in accordance with:
(a) the usual practice and procedure of the Supreme Court in civil cases; or
(b) the directions of the Supreme Court or a Justice or Judge of the Supreme Court.
(7) The jurisdiction of the Supreme Court of a State or Territory under this section shall be exercised by a single Justice or Judge of the Supreme Court.
(8) The Commissioner may, by writing, authorize a person to institute a prosecution for:
(a) a specified prescribed taxation offence;
(b) a prescribed taxation offence included in a specified class of prescribed taxation offences; or
(c) any prescribed taxation offence.
(9) A reference in this section to the prescribed amount in relation to a person is a reference to:
(a) if the person is a natural person—$5,000; or
(b) if the person is a corporation—$25,000.
8ZK Protection of witnesses
A witness called on behalf of the Commissioner in any prosecution for a prescribed taxation offence shall not be compelled:
(a) to disclose:
(i) the fact that the witness received any information;
(ii) the nature of any information received by the witness; or
(iii) the name of any person from whom the witness received any information; or
(b) if the witness is an officer, to produce any reports:
(i) made or received by the witness confidentially in the witness’ official capacity; or
(ii) containing confidential information.
8ZL Averment
(1) In a prosecution for a prescribed taxation offence, a statement or averment contained in the information, claim or complaint is prima facie evidence of the matter so stated or averred.
(2) This section applies in relation to any matter so stated or averred although:
(a) evidence in support or rebuttal of the matter stated or averred, or of any other matter, is given; or
(b) the matter averred is a mixed question of law and fact, but, in that case, the statement or averment is prima facie evidence of the fact only.
(3) Any evidence given in support or rebuttal of a matter so stated or averred shall be considered on its merits, and the credibility and probative value of such evidence shall be neither increased nor diminished by reason of this section.
(4) This section:
(a) does not apply to any fault element of an offence; and
(aa) does not apply in relation to any offence for which imprisonment is a penalty; and
(b) does not lessen or affect any onus of proof otherwise falling on a defendant.
8ZM Evidence of authority to institute proceedings
(1) Where a prosecution for a prescribed taxation offence is instituted by a person in the official name of the Commissioner, the prosecution shall be presumed, unless the contrary is proved, to have been instituted with the authority of the Commissioner.
(2) In a prosecution for a prescribed taxation offence, the mere production of an instrument, telegram or copy of a telex message purporting to have been issued or sent by the Commissioner, a Second Commissioner or a Deputy Commissioner and purporting to notify a person that the person is authorized by the Commissioner to institute the prosecution, to institute prosecutions for a class of prescribed taxation offences in which the prescribed taxation offence is included or to institute prosecutions for any prescribed taxation offence is conclusive evidence of the authority of the person to institute the prosecution on behalf of, and in the official name of, the Commissioner.
8ZN Costs
In a prosecution for a prescribed taxation offence, the court may award costs against any party.
Division 5—Service of summons for prescribed taxation offences
9 Interpretation
In this Division, unless the contrary intention appears:
defendant, in relation to a prescribed taxation offence, means a person to whom a summons has been sent in the manner permitted by subsection 10(1) in relation to the prescribed taxation offence (whether or not the summons has been delivered to, or received by, the person).
summons, in relation to a person, means a writ or process notifying or directing the person to appear on a designated day before a specified court.
10 Service of summons by post
(1) A summons for the appearance before a court of summary jurisdiction of a person charged with having committed a prescribed taxation offence may be served upon the person to whom it is directed by sending a copy of the summons, not less than 21 days before the day on which the person is required by the summons to appear before the court, by ordinary prepaid post addressed to the person at the person’s last known place of residence or last known place of business.
(1A) Subsection (1) has effect without prejudice to any other method of service provided for under any other law of the Commonwealth or under a law of a State or Territory.
(2) Where a summons is served in the manner permitted by subsection (1), the court may require the summons to be re‑served if the court has reasonable cause to believe that the summons has not come to the notice of the person to whom it is directed.
11 Notice of conviction in absentia
(1) Where a defendant who has not entered a plea in relation to a prescribed taxation offence is, in the defendant’s absence, convicted of the prescribed taxation offence, the proper officer of the court concerned shall cause to be served on the defendant notice in writing of:
(a) the conviction;
(b) the order of the court;
(c) where the order of the court includes the imposition of a fine—the time allowed by the court for payment of the fine; and
(d) the right of the defendant to make an application under section 13A for an order setting aside the conviction.
(2) Without prejudice to any other method of service provided for under any other law of the Commonwealth or under a law of a State or Territory, a notice under subsection (1) may be served on the defendant by sending the notice to the defendant by ordinary prepaid post addressed to the defendant at the defendant’s last known place of residence or last known place of business.
12 Notice of intention to issue warrant in default of payment
Where:
(a) a defendant, not being a body corporate, has been served with a notice under subsection 11(1), being a notice that includes notice of a fine imposed on him or her in consequence of a conviction;
(b) the fine is not paid in full within the time allowed by the court for payment of the fine; and
(c) a period of not less than 21 days has elapsed after the date of service of the notice;
the proper officer of the court concerned may cause to be served personally on the defendant a notice (in this section referred to as the personal notice) informing the defendant that unless:
(d) the fine is paid in full before the expiration of 21 days after the date of service of the personal notice; or
(e) an application in accordance with section 13A for the setting aside of the conviction is made before the expiration of 14 days after the date of service of the personal notice;
a warrant for his or her commitment to prison may be issued.
13 Limitation of action to enforce payment of fine
Notwithstanding anything contained in any other law of the Commonwealth or in a law of a State or Territory, where a defendant who has not entered a plea in relation to a prescribed taxation offence is, in the defendant’s absence, convicted of the prescribed taxation offence and the order of the court includes the imposition of a fine:
(a) a warrant for commitment of the defendant to prison for failure to pay the fine shall not be issued unless:
(i) a notice has been served on the defendant under section 12 in relation to the fine; and
(ii) a period of not less than 21 days has elapsed after the date of service of the notice; and
(b) no other action for enforcement of payment of the fine shall be taken unless:
(i) a notice has been served on the defendant in relation to the conviction under subsection 11(1); and
(ii) a period of not less than 21 days has elapsed after the date of service of the notice.
13A Setting aside of conviction or order
(1) Where a defendant has been served with a notice under section 11 in relation to a conviction or order of a court, the defendant may:
(a) where a fine was imposed by the court—before the expiration of:
(i) the period allowed by the court for payment of the fine; or
(ii) a period of 21 days after the date of service of the notice;
whichever is the longer; or
(b) where no fine was imposed by the court—within 21 days after the date of service of the notice;
make an application in writing to the court, or to another court of summary jurisdiction that would have had jurisdiction to make the conviction or order, for an order setting aside the conviction or order.
(2) Where a defendant has been served with a notice under section 12 in relation to a conviction or order of a court, the defendant may, within 14 days after the date of service of the notice, make an application in writing to the court, or to another court of summary jurisdiction that would have had jurisdiction to make the conviction or order, for an order setting aside the conviction or order.
(3) Any person who was a party to the proceedings in which the conviction or order to which an application under subsection (1) or (2) relates was made shall be a party to proceedings in respect of the application.
(4) Where a court is satisfied, on an application made by a defendant in accordance with subsection (1) or (2) in relation to a conviction or order, that:
(a) in the case of an application under subsection (1):
(i) the defendant did not receive notice of the proceedings in which the conviction or order was made, or did not receive such notice in sufficient time to enable the defendant to attend the proceedings; or
(ii) the defendant failed to attend the proceedings in which the conviction or order was made for reasons that, in the opinion of the court, render it desirable, in the interests of justice, that the conviction or order be set aside and the matter re‑heard; or
(b) in the case of an application under subsection (2):
(i) the defendant:
(A) did not receive notice of the proceedings in which the conviction or order was made, or did not receive such notice in sufficient time to enable the defendant to attend the proceedings; and
(B) did not receive notice of the conviction or order, or did not receive such notice in sufficient time to enable the defendant to apply, within the time specified in paragraph (1)(a), for an order setting aside the conviction or order; or
(ii) the defendant failed to attend the proceedings in which the conviction or order was made, and failed to make an application in accordance with subsection (1) in relation to the notice served on the defendant under section 11 in relation to the conviction or order, for reasons that, in the opinion of the court, render it desirable, in the interests of justice, that the conviction or order be set aside and the matter re‑heard;
the court shall set aside the conviction or order and shall:
(c) proceed forthwith to re‑hear and determine the matter; or
(d) adjourn the proceedings for re‑hearing the matter to such time and place as the court thinks fit.
(5) Where an application is made to a court (in this subsection referred to as the relevant court) under this section for the setting aside of a conviction or order of a court, the proper officer of the relevant court shall forthwith:
(a) cause notice of the making of the application to be given to each party to the application other than the defendant; and
(b) where the conviction or order was made by a court other than the relevant court—cause notice of the making of the application to be given to that other court.
(6) Where, under subsection (4), a court sets aside a conviction or order of another court, the proper officer of the first‑mentioned court shall forthwith cause notice of the setting aside of that conviction or order to be given to the other court.
13B Proof of service of summons or notice
Service of a summons in accordance with section 10 or of a notice in accordance with section 11 or 12 may be proved by the oath of the person who served it or by affidavit or otherwise.
13C Application of other laws
(1) The provisions of this Division have effect in addition to, and not in derogation of, any other law of the Commonwealth or a State or Territory that makes provision for, or in relation to, the service of summonses.
(2) Without limiting the generality of section 79 of the Judiciary Act 1903, the laws (if any) of a State or Territory relating to any procedure whereby a person may, without appearing in court in obedience to a summons, enter a plea in relation to a charge of having committed an offence apply in like manner, mutatis mutandis, to a defendant charged with having committed a prescribed taxation offence.
Division 6—Setting aside etc. of conviction or order on application of Commissioner
13CA Setting aside etc. of conviction or order on application of Commissioner
(1) Where a person has been convicted in his or her absence of a prescribed taxation offence (whether before or after the commencement of this section), the Commissioner may apply to a court (in this section called the quashing court) for:
(a) an order setting aside the conviction or setting aside the order of the convicting court in respect of the conviction; or
(b) an order varying the order of the convicting court in respect of the conviction so as to reduce its severity.
(2) The application shall be made in writing:
(a) to the convicting court; or
(b) to any other court of summary jurisdiction that would have had jurisdiction to make the conviction or order.
(3) The proper officer of the quashing court shall, without delay, cause notice of the making of the application to be given to each party to the application (other than the Commissioner).
(4) Any person who was a party to the proceedings in which the defendant was convicted shall be made a party to the proceedings in respect of the application.
(5) If the quashing court is satisfied that:
(a) the conviction or order was made in circumstances that, in the opinion of the court, make it desirable, in the interests of justice, that:
(i) the conviction or order be set aside; or
(ii) the order be varied by reducing its severity; or
(b) because of other special circumstances (whether or not existing at the time the conviction or order was made) it is desirable, in the interests of justice, or in order to avoid undue hardship, that:
(i) the order be set aside; or
(ii) the order be varied so as to reduce its severity;
the court may set aside the conviction, or set aside or vary the order, as the case may be, on such terms as to costs or otherwise as the court thinks just.
(6) If the court sets aside the conviction, or sets aside or varies the order in respect of the conviction, the court shall also set aside any warrant issued in consequence of the conviction.
(7) If the quashing court:
(a) is not the convicting court; and
(b) sets aside the conviction, or sets aside or varies the order, of the convicting court;
the proper officer of the quashing court shall without delay cause notice of the setting aside or variation to be given to the convicting court.
(8) A reference in this section to a conviction includes a reference to the making of an order under section 19B of the Crimes Act 1914.
(9) The setting aside of a conviction or order under this section is a bar to any further legal proceeding against the defendant for the same matter in any court (other than on appeal).
(10) This section is in addition to, and not in derogation of, any other law of the Commonwealth or any law of a State or Territory.
Part IIIA—Co‑operation between Commonwealth and State taxation authorities
Division 1—Interpretation
13D Interpretation
(1) In this Part, unless the contrary intention appears:
Australian Capital Territory includes the Jervis Bay Territory.
officer means:
(a) a person appointed or engaged under the Public Service Act 1999; or
(b) a State taxation officer.
State includes the Northern Territory.
State Minister means:
(a) in relation to a State other than the Northern Territory—a Minister of the Crown of the State; or
(b) in relation to the Northern Territory—a Minister of the Northern Territory.
State tax law means a law of a State relating to taxation.
State taxation officer means:
(a) a person or authority, not being a State Minister, who or which is for the time being authorised under a law of a State to perform the functions of a State taxation officer under this Part; or
(b) a person, not being a State Minister, authorised by writing signed by a person or authority referred to in paragraph (a) to act under this Part.
Territory means the Australian Capital Territory.
Territory tax law means a law of the Territory relating to taxation.
Territory taxation officer means:
(a) a person or authority, not being a Minister of State of the Commonwealth, who or which is for the time being authorised under a law of the Territory to perform the functions of a Territory taxation officer under this Part; or
(b) a person, not being a Minister of State of the Commonwealth, authorised by writing signed by a person or authority referred to in paragraph (a) to act under this Part.
(2) A reference in Division 3 or 4 to a State tax law includes a reference to a Territory tax law.
(3) A reference in Division 3 or 4 to a State taxation officer includes a reference to a Territory taxation officer.
Division 2—Trans‑border investigations
13E State taxation officers may refer matters to Commissioner for investigation
A State taxation officer may, by writing signed by the officer, refer a matter arising under a State tax law to the Commissioner for investigation in the Territory.
13F Access to documents etc.
(1) Where, under section 13E, a matter is referred to the Commissioner for investigation, the Commissioner may, by writing signed by the Commissioner, authorise an officer to conduct an investigation into that matter.
(2) For the purposes of conducting an investigation into a matter referred to the Commissioner under section 13E, an officer authorised under subsection (1) of this section to conduct the investigation:
(a) may, at all reasonable times, enter upon any land in the Territory;
(b) shall have full and free access at all reasonable times to all documents in the Territory; and
(c) may take extracts from, and make copies of, any documents in the Territory.
(3) An officer who enters upon land pursuant to subsection (2) is not authorised to remain on the land if, on request by the occupier of the land, the officer does not produce a certificate issued by the Commissioner stating that he or she is an officer authorised under subsection (1) to conduct an investigation into a matter specified in the certificate.
(4) The occupier of land entered or proposed to be entered by an officer under subsection (2) shall provide the officer with all reasonable facilities and assistance for the effective exercise of powers under this section.
Penalty for a contravention of this subsection: 10 penalty units.
13G Commissioner may obtain information and evidence
(1) Where, under section 13E, a matter is referred to the Commissioner for investigation, the Commissioner may, for the purposes of conducting the investigation in the Territory, by notice in writing, require any person, including any officer employed in or in connection with any department of a government or by any public authority:
(a) to furnish the Commissioner with such information as the Commissioner requires;
(b) to attend before the Commissioner, or before an officer authorised by the Commissioner for the purpose, at a time and place specified in the notice and there answer questions; and
(c) to produce to the Commissioner, or to an officer authorised by the Commissioner for the purpose, any documents in the custody or under the control of the person.
(2) The Commissioner may require the information or answers to be verified or furnished, as the case may be, on oath or affirmation and either orally or in writing, and for that purpose the Commissioner or an officer authorised by the Commissioner may administer an oath or affirmation.
(3) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the information is or the answers will be true.
(4) The Commissioner may cause copies to be made of, or extracts to be taken from, any documents that are produced pursuant to paragraph (1)(c).
(5) A person required pursuant to paragraph (1)(b) to attend before the Commissioner or an officer authorised by the Commissioner is entitled to payment of an allowance in respect of his or her expenses of an amount determined by the Commissioner in accordance with the regulations.
Division 4—Certification by State taxation officer of copies of, and extracts from, documents
13K Certification by State taxation officer of copies of, and extracts from, documents
(1) Where a document is obtained pursuant to a State tax law, a State taxation officer may certify a copy of the document to be a true copy.
(2) Where, pursuant to a State tax law, a copy is made of a document, a State taxation officer may certify the copy to be a true copy.
(3) Where a document is obtained pursuant to a State tax law, a State taxation officer may certify an extract taken from the document to be a true extract.
(4) Where, pursuant to a State tax law, an extract is taken from a document, a State taxation officer may certify the extract to be a true extract.
(5) Subject to subsection (6), a document purporting to be a copy or extract certified under subsection (1), (2), (3) or (4) shall be received in all courts and tribunals in proceedings arising out of a taxation law as evidence as if it were the original.
(6) Subsection (5) does not apply in relation to a document if:
(a) in the case of proceedings for an offence—evidence is adduced that the document is not a true copy or a true extract; or
(b) in any other case—it is proved that the document is not a true copy or a true extract.
(7) Where:
(a) pursuant to a State tax law, a copy (in this section referred to as the primary copy) is made of, or an extract (in this section referred to as the primary extract) is taken from, a document (in this section referred to as the original document); and
(b) pursuant to subsection (2) or (4), a State taxation officer has certified the primary copy to be a true copy of, or the primary extract to be a true extract taken from, the original document;
a State taxation officer may:
(c) certify a copy of the primary copy or primary extract to be a true copy; or
(d) certify an extract taken from the primary copy or primary extract to be a true extract.
(8) Subject to subsection (9), a document purporting to be:
(a) a copy, certified under subsection (7), of a primary copy of, or a primary extract taken from, an original document; or
(b) an extract, certified under subsection (7), taken from a primary copy of, or a primary extract taken from, an original document;
shall be received in all courts and tribunals in proceedings arising out of a taxation law as evidence as if it were the original document.
(9) Subsection (8) does not apply in relation to a document if:
(a) in the case of proceedings for an offence, evidence is adduced that:
(i) the document is not a true copy of, or a true extract taken from, the primary copy or primary extract; or
(ii) the primary copy is not a true copy of, or the primary extract is not a true extract taken from, the original document; or
(b) in any other case, it is proved that:
(i) the document is not a true copy of, or a true extract taken from, the primary copy or primary extract; or
(ii) the primary copy is not a true copy of, or the primary extract is not a true extract taken from, the original document.
Division 5—Australian Taxation Office may perform functions under State/Territory debits tax laws
13L Australian Taxation Office may perform functions under State/Territory debits tax laws
(1) In this section:
accounts, in relation to a financial institution, includes accounts kept by way of withdrawable share capital in, or money deposited with, the financial institution.
co‑operative housing society means a society registered or incorporated as a co‑operative housing society or similar society under a law of a State or Territory.
financial institution includes:
(a) a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959; and
(b) a co‑operative housing society; and
(c) a registered entity under the Financial Sector (Collection of Data) Act 2001.
State/Territory debits tax law means:
(a) a State tax law; or
(b) a Territory tax law;
relating to the taxation of debits made to accounts kept with financial institutions.
(2) The Commissioner may make an arrangement with an appropriate officer or authority of a State or the Territory about any matter in connection with the administration of a State/Territory debits tax law.
(3) In particular, an arrangement may provide:
(a) for the Commissioner or the Second Commissioners to perform functions, or exercise powers, conferred on them by a State/Territory debits tax law; or
(b) for the services of officers or employees under the control of the Commissioner to be made available to the State or the Territory or to an authority of the State or of the Territory for the purposes of matters relating to the administration of a State/Territory debits tax law.
Part IVA—Departure from Australia of certain tax debtors
Division 1—Interpretation
14Q Interpretation
(1) In this Part, unless the contrary intention appears:
authorized officer means a person who is:
(a) an officer for the purposes of the Customs Act 1901; or
(b) a member of the Australian Federal Police.
departure authorization certificate means a certificate under subsection 14U(1).
departure prohibition order means an order under subsection 14S(1).
(2) A reference in this Part to the departure of a person from Australia for a foreign country is a reference to the departure of the person from Australia for a foreign country, whether or not the person intends to return to Australia.
Division 2—Prohibition and authorisation of departure of certain tax debtors
14R Departure from Australia of certain tax debtors prohibited
(1) A person in respect of whom a departure prohibition order is in force, and who knows that such an order is in force in respect of him or her, shall not depart from Australia for a foreign country.
Penalty: 50 penalty units or imprisonment for 12 months, or both.
(2) Subsection (1) does not apply if the departure is authorised by a departure authorization certificate.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2), see subsection 13.3(3) of the Criminal Code.
14S Departure prohibition orders
(1) Where:
(a) a person is subject to a tax liability; and
(b) the Commissioner believes on reasonable grounds that it is desirable to do so for the purpose of ensuring that the person does not depart from Australia for a foreign country without:
(i) wholly discharging the tax liability; or
(ii) making arrangements satisfactory to the Commissioner for the tax liability to be wholly discharged;
the Commissioner may, by order in accordance with the prescribed form, prohibit the departure of the person from Australia for a foreign country.
(2) Subject to subsection (3), a departure prohibition order remains in force unless and until revoked under section 14T or set aside by a court.
(3) A departure prohibition order made in respect of a person shall be taken, by virtue of this subsection, not to be in force in respect of the person during any period during which an order is in force under the Migration Act 1958 for the deportation of the person.
(4) Where a departure prohibition order is made in respect of a person, the Commissioner shall forthwith:
(a) cause the person to be informed, as prescribed, of the making of the order; and
(b) subject to subsection (5), cause a copy of the order, and such information as the Commissioner considers is likely to facilitate the identification of the person, to be given to:
(i) the Immigration Secretary; and
(ii) such other persons as the Commissioner considers appropriate, being persons prescribed, or included in a class of persons prescribed, for the purposes of this paragraph.
(5) Where a departure prohibition order is made in respect of a person whom the Commissioner is satisfied is an Australian citizen, the Commissioner shall not cause a copy of the order, or any information likely to facilitate the identification of the person, to be given to the Immigration Secretary unless the Commissioner is of the opinion that it is desirable to do so.
14T Revocation and variation of departure prohibition orders
(1) Where a departure prohibition order is in force in respect of a person and:
(a) the tax liabilities to which the person is subject have been wholly discharged and the Commissioner is satisfied that it is likely that the tax liabilities to which the person may become subject in respect of, or arising out of, matters that have occurred will be:
(i) wholly discharged; or
(ii) completely irrecoverable; or
(b) the Commissioner is satisfied that the tax liabilities to which the person is subject are completely irrecoverable;
the Commissioner shall, on application being made to the Commissioner by the person to do so or on the Commissioner’s own motion, revoke the departure prohibition order.
(2) Where a departure prohibition order is in force in respect of a person, the Commissioner may, in the Commissioner’s discretion and on application being made to the Commissioner to do so or on the Commissioner’s own motion, revoke or vary the departure prohibition order.
(3) A reference in paragraph (1)(a) to tax liabilities having been wholly discharged includes a reference to arrangements satisfactory to the Commissioner having been made for those tax liabilities to be wholly discharged and a reference in that paragraph to the Commissioner being satisfied that it is likely that tax liabilities to which a person may become subject will be wholly discharged includes a reference to the Commissioner being satisfied that it is likely that arrangements satisfactory to the Commissioner will be made for those tax liabilities to be wholly discharged.
(4) As soon as practicable after a departure prohibition order made in respect of a person is revoked or varied under this section, the Commissioner shall:
(a) cause to be served, as prescribed, on the person; and
(b) cause to be given to each person to whom a copy of the departure prohibition order was given;
notification of the revocation or variation of the departure prohibition order.
(5) As soon as practicable after a decision is made under subsection (1) or (2) refusing to revoke a departure prohibition order made in respect of a person, the Commissioner shall cause to be served, as prescribed, on the person notification of the decision.
14U Departure authorisation certificates
(1) Where, on application made by a person in respect of whom a departure prohibition order is in force:
(a) the Commissioner is satisfied:
(i) that, if a departure authorization certificate is issued in respect of the person, it is likely that:
(A) the person will depart from Australia and will return to Australia within such period as the Commissioner considers to be appropriate in relation to the person; and
(B) circumstances of the kind referred to in paragraph 14T(1)(a) will come into existence within such period as the Commissioner considers to be appropriate in relation to the person; and
(ii) that it is not necessary or desirable for the person to give security under subsection (2) for the person’s return to Australia; or
(b) in a case where the Commissioner is not satisfied with respect to the matters referred to in paragraph (a):
(i) the person has given security under subsection (2) to the satisfaction of the Commissioner for the person’s return to Australia; or
(ii) if the person is unable to give such security, the Commissioner is satisfied that:
(A) a departure authorization certificate should be issued in respect of the person on humanitarian grounds; or
(B) a refusal to issue a departure authorization certificate in respect of the person would be detrimental to the interests of Australia;
the Commissioner shall issue a certificate authorizing the person to depart from Australia for a foreign country on or before the seventh day after a day (being a day later than, but not more than 7 days later than, the day on which the certificate is issued) specified in the certificate.
(2) For the purposes of this section:
(a) a person may give security, by bond, deposit or any other means, for the person’s return to Australia by such day as is agreed between the person and the Commissioner;
(b) the Commissioner may, in the Commissioner’s discretion and on application by the person or on the Commissioner’s own motion, substitute a later day for the day so agreed (including a day substituted by virtue of a previous application of this paragraph); and
(c) the Commissioner may refuse to substitute such a later day unless the person:
(i) increases, to the satisfaction of the Commissioner, the value of the security given by the person under this subsection; or
(ii) gives a further security, to the satisfaction of the Commissioner, by bond, deposit or any other means, for the person’s return to Australia by that later day.
(3) As soon as practicable after a departure authorization certificate is issued in respect of a person, the Commissioner shall:
(a) cause a copy of the departure authorization certificate to be served, as prescribed, on the person; and
(b) cause a copy of the departure authorization certificate to be given to each person to whom a copy of the departure prohibition order made in respect of the person was given.
(4) As soon as practicable after a decision is made under subsection (1) refusing to issue a departure authorization certificate in respect of a person or a decision is made under subsection (2) refusing to substitute a later day in relation to the return of a person to Australia, the Commissioner shall cause to be served, as prescribed, on the person notification of the decision.
Division 3—Appeals from, and review of, decisions of the Commissioner
14V Appeals to courts against making of departure prohibition orders
(1) A person aggrieved by the making of a departure prohibition order may appeal to the Federal Court of Australia or the Supreme Court of a State or Territory against the making of the departure prohibition order.
(2) This section has effect:
(a) subject to chapter III of the Constitution; and
(b) notwithstanding anything contained in section 9 of the Administrative Decisions (Judicial Review) Act 1977.
14W Jurisdiction of courts
(1) The jurisdiction of a court under section 14V shall be exercised by a single Judge or Justice.
(2) An appeal lies to the Federal Court of Australia from a judgment or order of the Supreme Court of a State or Territory exercising jurisdiction under section 14V.
(3) An appeal lies to the High Court, with special leave of the High Court, from a judgment or order referred to in subsection (2).
(4) Except as provided in subsection (2) or (3), no appeal lies from a judgment or order referred to in subsection (2).
14X Orders of court on appeal
A court hearing an appeal under section 14V against the making of a departure prohibition order may, in its discretion:
(a) make an order setting aside the departure prohibition order; or
(b) dismiss the appeal.
14Y Applications for review of certain decisions
(1) Applications may be made to the Tribunal for review of decisions of the Commissioner under section 14T or 14U.
(2) In subsection (1), decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
Division 4—Enforcement
14Z Powers of authorised officers
(1) Where an authorized officer believes on reasonable grounds that:
(a) a person is about to depart from Australia for a foreign country;
(b) a departure prohibition order is in force in respect of the person; and
(c) the departure is not authorized by a departure authorization certificate;
the authorized officer may:
(d) take such steps as are reasonably necessary to prevent the departure of the person, including, but without limiting the generality of the foregoing, steps to prevent the person going on board, or steps to remove the person from, a vessel or aircraft in which the authorized officer believes on reasonable grounds the departure will take place; and
(e) require the person to answer questions or produce documents to the authorized officer, or both, for the purposes of ascertaining whether:
(i) a departure prohibition order is in force in respect of the person; and
(ii) if a departure prohibition order is in force in respect of the person—the departure of the person from Australia for a foreign country is authorized by a departure authorization certificate.
(2) A person who refuses or fails, when and as required to do so pursuant to subsection (1), to answer a question or produce a document, commits an offence punishable on conviction by a fine not exceeding 10 penalty units.
(2A) Subsection (2) does not apply to the extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2A), see subsection 13.3(3) of the Criminal Code.
(4) Section 8C does not apply in relation to a requirement made pursuant to subsection (1) of this section.
(5) Subsection 8K(1) and (1B) and section 8N do not apply in relation to an answer given to a question asked, or a document produced, pursuant to subsection (1).
14ZA Certain tax debtors to produce authority to depart etc.
(1) Where:
(a) a person in respect of whom a departure prohibition order is in force is about to depart from Australia for a foreign country; and
(b) the departure is authorized by a departure authorization certificate;
the person shall, if required to do so pursuant to this subsection by an authorized officer, produce a copy of the departure authorization certificate for inspection by the authorized officer.
Penalty: 5 penalty units.
(1A) An offence under subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) Section 8C does not apply in relation to a requirement made pursuant to subsection (1) of this section.
Part IVC—Taxation objections, reviews and appeals
Division 1—Introduction
14ZL Part applies to taxation objections
(1) This Part applies if a provision of an Act or of regulations (including the provision as applied by another Act) provides that a person who is dissatisfied with an assessment, determination, notice or decision, or with a failure to make a private ruling, may object against it in the manner set out in this Part.
(2) Such an objection is in this Part called a taxation objection.
14ZM Division 2—Interpretive
Division 2 contains interpretive provisions necessary for this Part.
14ZN Division 3—Taxation objections
Division 3 describes how taxation objections are to be made and how they are to be dealt with by the Commissioner.
14ZO Division 4—Tribunal review
Division 4 contains provisions about applications to the Tribunal for review of decisions by the Commissioner in relation to certain taxation objections and requests for extension of time.
14ZP Division 5—Federal Court appeals
Division 5 contains provisions about appeals to the Federal Court against decisions by the Commissioner in relation to certain taxation objections.
Division 2—Interpretive provisions
14ZQ General interpretation provisions
In this Part:
AAT means the Administrative Appeals Tribunal.
AAT Act means the Administrative Appeals Tribunal Act 1975.
AAT extension application means an application under subsection 29(7) of the AAT Act that relates to a review of a reviewable objection decision or an extension of time refusal decision.
delayed administration (beneficiary) objection means a taxation objection made under:
(b) subsection 220(3) of the Income Tax Assessment Act 1936 (including that subsection as applied by any other Act); or
(g) subsection 260‑145(5) in Schedule 1 (because of paragraph (a) of that subsection).
delayed administration (trustee) objection means a taxation objection made under:
(a) subsection 220(7) of the Income Tax Assessment Act 1936 (including that subsection as applied by any other Act); or
(b) subsection 260‑145(5) in Schedule 1 (because of paragraph (b) of that subsection).
extension of time refusal decision means a decision of the Commissioner under subsection 14ZX(1) to refuse a request by a person.
Family Court means the Family Court of Australia.
Family Court Judge means a Judge of the Family Court (including the Chief Justice, the Deputy Chief Justice or a Senior Judge).
Federal Court means the Federal Court of Australia.
reviewable objection decision means an objection decision that is not an ineligible income tax remission decision.
taxation decision means the assessment, determination, notice or decision against which a taxation objection may be, or has been, made.
taxation objection has the meaning given by section 14ZL.
14ZR Taxation decisions covered by single notice to be treated as single decision
(1) If:
(a) a provision of an Act (including a provision as applied by another Act) provides that a person who is dissatisfied with a taxation decision may object against it in the manner set out in this Part; and
(b) a notice incorporates notice of 2 or more such taxation decisions;
then, for the purposes of the provision and of this Part, the taxation decisions are taken to be one taxation decision.
(2) If:
(a) under subsection (1), 2 or more taxation decisions are taken to be a single taxation decision (in this subsection called the deemed single taxation decision); and
(b) the Commissioner makes an objection decision in relation to the deemed single taxation decision; and
(c) the objection decision is to any extent an ineligible income tax remission decision;
then, this Part has effect, in relation to any review or appeal, as if so much of the objection decision as consists of one or more ineligible income tax remission decisions were taken to be a separate objection decision.
14ZS Ineligible income tax remission decisions
(1) An objection decision is an ineligible income tax remission decision if it relates to the remission of additional tax payable by a taxpayer under the Income Tax Assessment Act 1936 (other than Division 11 of former Part IIIAA), except where the additional tax is payable under former section 163B, 224, 225, 226, 226G, 226H, 226J, 226K, 226L or 226M of that Act, whatever its amount, or is payable under a provision of former Part VII of that Act other than any of the preceding sections and its amount, after the decision is made, exceeds:
(a) in the case of additional tax payable under former section 222 of that Act because of the refusal or failure to furnish a return, or any information, relating to a year of income—the amount calculated, in respect of the period commencing on the last day allowed for furnishing the return or information and ending on:
(i) the day on which the return or information is furnished; or
(ii) the day on which the assessment of the additional tax is made;
whichever first happens, at the rate of 20% per year of the tax properly payable by the taxpayer in respect of the year of income; or
(d) if the amount calculated in accordance with paragraph (a) is less than $20—$20.
(2) A reference in this section to a provision of the Income Tax Assessment Act 1936 includes a reference to that provision as applied by any other Act.
Division 3—Taxation objections
14ZU How taxation objections are to be made
A person making a taxation objection must:
(a) make it in the approved form; and
(b) lodge it with the Commissioner within the period set out in section 14ZW; and
(c) state in it, fully and in detail, the grounds that the person relies on.
Note: A person who objects against the Commissioner’s failure to make a private ruling must lodge a draft private ruling with the objection: see subsection 359‑50(4).
14ZV Limited objection rights in the case of certain amended taxation decisions
If the taxation objection is made against a taxation decision, being an assessment or determination that has been amended in any particular, then a person’s right to object against the amended assessment or amended determination is limited to a right to object against alterations or additions in respect of, or matters relating to, that particular.
14ZVA Limited objection rights because of other objections
If there has been a taxation objection against:
(a) a private ruling; or
(b) a determination under subsection 960‑555(3) of the Income Tax Assessment Act 1997; or
(c) a determination under subsection 136‑10(1) in Schedule 1 to this Act (about excess transfer balance);
the right of objection under this Part against an assessment, or against a decision made under an indirect tax law or an excise law, relating to the matter ruled or determined is limited to a right to object on grounds that neither were, nor could have been, grounds for the taxation objection against the ruling or determination.
14ZVB Objections relating to excess concessional contributions
Taxation decisions to which section applies
(1) This section applies to the following taxation decisions:
(a) an assessment against which a taxation objection may be made under section 175A of the Income Tax Assessment Act 1936;
(b) an excess concessional contributions determination;
(c) a determination under section 291‑465 of the Income Tax Assessment Act 1997;
(d) a decision not to make a determination under that section;
(e) 2 or more taxation decisions that are taken to be a single taxation decision under subsection (2).
Decisions treated as single decision for common objection ground
(2) If:
(a) a person makes a taxation objection at a particular time, on a particular ground, against a taxation decision to which this section applies; and
(b) at that time, the person also objects, or could also object, on that ground, against another taxation decision to which this section applies;
then, for the purposes of this Part, those taxation decisions are taken to be one taxation decision.
Limited objection rights because of earlier objection
(3) A person cannot object under this Part against a taxation decision to which this section applies on a particular ground if:
(a) the ground was a ground for an objection the person has made against another decision to which this section applies; or
(b) the ground could have been a ground for an objection the person has made against another decision to which this section applies.
14ZVC Objections relating to non‑concessional contributions
Taxation decisions to which section applies
(1) This section applies to the following taxation decisions:
(a) an assessment against which a taxation objection may be made under section 175A of the Income Tax Assessment Act 1936;
(b) an excess non‑concessional contributions determination (within the meaning of the Income Tax Assessment Act 1997);
(c) an assessment against which a taxation objection may be made under section 292‑245 of the Income Tax Assessment Act 1997;
(d) a determination under section 292‑465 of the Income Tax Assessment Act 1997, or a decision not to make a determination under that section;
(e) a direction under section 292‑467 of the Income Tax Assessment Act 1997, or a decision not to make a direction under that section;
(f) 2 or more taxation decisions that are taken to be a single taxation decision under subsection (2).
Decisions treated as single decision for common objection ground
(2) If:
(a) a person makes a taxation objection at a particular time, on a particular ground, against a taxation decision to which this section applies; and
(b) at that time, the person also objects, or could also object, on that ground, against another taxation decision to which this section applies;
then, for the purposes of this Part, those taxation decisions are taken to be a single taxation decision.
Limited objection rights because of earlier objection
(3) A person cannot object under this Part against a taxation decision to which this section applies on a particular ground if:
(a) the ground was a ground for an objection the person has made against another decision to which this section applies; or
(b) the ground could have been a ground for an objection the person has made against another decision to which this section applies.
14ZW When taxation objections are to be made
(1) Subject to this section, the person must lodge the taxation objection with the Commissioner within:
(aa) if the taxation objection is made under section 175A of the Income Tax Assessment Act 1936:
(i) if item 1, 2 or 3 of the table in subsection 170(1) of that Act applies to the assessment concerned—2 years after notice of the assessment is given to the person; or
(ii) otherwise—4 years after notice of the assessment concerned is given to the person; or
(aaa) if the taxation objection is made under section 78A of the Fringe Benefits Tax Assessment Act 1986 or former section 160AL of the Income Tax Assessment Act 1936—4 years after notice of the taxation decision to which it relates has been given to the person; or
(aaaa) if the taxation objection is made under subsection 112‑36(5) or 116‑120(5) of the Income Tax Assessment Act 1997—60 days after the notice mentioned in paragraph (b) of that subsection is given to the person; or
(aab) if the taxation objection is made under section 292‑245 of the Income Tax Assessment Act 1997—4 years after notice of the assessment concerned is given to the person; or
(aac) if the taxation objection is made under section 97‑10 in Schedule 1 on a particular ground—within the same period that the person:
(i) must lodge a taxation objection on that ground under section 175A of the Income Tax Assessment Act 1936; or
(ii) would be required to lodge such a taxation objection, if, disregarding subsection 175A(2) of that Act, one could be made; or
(aaca) if the taxation objection is made on a particular ground under any of the following provisions:
(i) section 175A of the Income Tax Assessment Act 1936;
(ii) section 97‑35 in Schedule 1 to this Act;
(iii) section 292‑245, 292‑465 or 292‑467 of the Income Tax Assessment Act 1997;
within the same period that the person must lodge a taxation objection on that ground under section 292‑245 of the Income Tax Assessment Act 1997; or
(aad) if the taxation objection is made under subsection 8AAZLGA(6) of this Act (retaining refunds while Commissioner verifies information)—the period:
(i) starting at the end of the 60 day period after the end of the day before which, under subsection 8AAZLGA(3), the Commissioner is required to inform the entity mentioned in section 8AAZLGA that the Commissioner has retained an amount under that section; and
(ii) ending on the day (if any) on which there is a change, of a kind mentioned in paragraph 8AAZLGA(5)(c), to how much the Commissioner is required to refund in relation to the amount; or
(aae) if the taxation objection is made under subsection 8AAZLGB(4) of this Act (retaining refunds until notification under Division 389 or ascertainment of liability)—the period:
(i) starting at the end of the 60 day period after the end of the day before which, under subsection 8AAZLGB(2), the Commissioner is required to inform the entity mentioned in section 8AAZLGB that the Commissioner has retained an amount under that section; and
(ii) ending on the day (if any) on which, under subsection 8AAZLGB(3), the Commissioner ceases to be entitled to retain the amount; or
(ab) if the taxation objection is a delayed administration (beneficiary) objection made under subsection 260‑145(5) in Schedule 1 (because of paragraph (a) of that subsection) or subsection 220(3) of the Income Tax Assessment Act 1936 (not including that subsection as applied by any other Act)—4 years after notice of the taxation decision to which it relates has been first published; or
(ac) if the taxation objection is a delayed administration (trustee) objection made under subsection 260‑145(5) in Schedule 1 (because of paragraph (b) of that subsection) or subsection 220(7) of the Income Tax Assessment Act 1936 (not including that subsection as applied by any other Act)—4 years after probate of the will, or letters of administration of the estate, of the deceased person concerned has been granted; or
(a) if the taxation objection is a delayed administration (beneficiary) objection to which paragraph (ab) does not apply—60 days after notice of the taxation decision to which it relates has been first published; or
(b) if the taxation objection is a delayed administration (trustee) objection to which paragraph (ac) does not apply—60 days after probate of the will, or letters of administration of the estate, of the deceased person concerned has been granted; or
(ba) if the taxation objection is an objection under subsection 359‑50(3) in Schedule 1 against the Commissioner’s failure to make a private ruling—60 days after the end of the period of 30 days referred to in that subsection; or
(bb) if the taxation objection is made under section 66 of the Petroleum Resource Rent Tax Assessment Act 1987 to an assessment under that Act—4 years after notice of the assessment is given to the person; or
(bd) if the taxation objection is made under section 20P of the Superannuation (Unclaimed Money and Lost Members) Act 1999 against a notice given to a superannuation provider under section 20C of that Act and the person is not the superannuation provider—2 years after the notice was given to the superannuation provider; or
(be) if the taxation objection is made under section 20P of the Superannuation (Unclaimed Money and Lost Members) Act 1999 against a decision under Division 4 or 5 of Part 3A of that Act and the person is not a superannuation provider (as defined in that Act)—2 years after the person was given notice of the decision; or
(bf) if the taxation objection is made under subsection 155‑30(2) in Schedule 1 to this Act—60 days after the end of the period of 30 days mentioned in that subsection; or
(bg) if the taxation objection is made under Subdivision 155‑C in Schedule 1 to this Act—the period mentioned in paragraph 155‑35(2)(a) in that Schedule in relation to the assessment concerned; or
(bi) if the taxation objection is made under section 265‑110 in Schedule 1 to this Act (about directions to pay superannuation guarantee charge)—the period specified for the purposes of paragraph 265‑90(3)(c) in the direction given to the person (subject to subsection 265‑115(2)); or
(bj) if the taxation objection is made under section 384‑40 in Schedule 1 to this Act (about education directions)—the period specified for the purposes of subsection 384‑15(2) in the direction given to the person (subject to subsection 384‑35(7)); or
(c) in any other case—60 days after notice of the taxation decision to which it relates has been served on the person.
(1AAC) The person cannot lodge a taxation objection against a private indirect tax ruling after the end of whichever of the following ends last:
(a) 60 days after the ruling was made;
(b) 4 years after the last day allowed to the person for lodging a return relating to the assessment of the assessable amount to which the ruling relates.
(1A) The person cannot lodge a taxation objection against a private ruling (other than a private indirect tax ruling, or a ruling that relates to an excise law) that relates to a year of income after the end of whichever of the following ends last:
(a) 60 days after the ruling was made;
(b) whichever of the following is applicable:
(i) if item 1, 2 or 3 of the table in subsection 170(1) of the Income Tax Assessment Act 1936 applies to the person’s assessment for that income year—2 years after the last day allowed to the person for lodging a return in relation to the person’s income for that year of income;
(ii) otherwise—4 years after that day.
(1AA) The person cannot lodge a taxation objection against a private ruling that relates to a year of tax and a petroleum project under the Petroleum Resource Rent Tax Assessment Act 1987 after the end of whichever of the following ends last:
(a) the 60 days after the ruling was made;
(b) the 4 years after the last day allowed to the person for lodging a return in relation to the year of tax and the project.
(1B) If:
(a) section 14ZV applies to a taxation objection; and
(b) apart from this subsection, subparagraph (1)(aa)(ii) or paragraph (1)(aaa), (aab), (ab), (ac), (bb), (bf) or (bg) would apply to the taxation objection;
the person must lodge the taxation objection before the end of whichever of the following ends last:
(c) the 4 years after notice of the assessment or determination that has been amended by the amended assessment or amended determination to which the taxation objection relates has been served on the person;
(d) the 60 days after the notice of the amended assessment or amended determination to which the taxation objection relates has been served on the person.
(1BA) If:
(a) section 14ZV applies to a taxation objection; and
(b) apart from this subsection, subparagraph (1)(aa)(i) would apply to the taxation objection;
the person must lodge the taxation objection before the end of whichever of the following ends last:
(c) 2 years after notice of the assessment or determination that has been amended by the amended assessment or amended determination to which the taxation objection relates has been served on the person;
(d) 60 days after the notice of the amended assessment to which the taxation objection relates has been served on the person.
(1BB) If:
(a) the taxation objection is against an assessment by the Commissioner of the amount of an administrative penalty under Division 284; and
(b) that penalty relates to an assessment of the person; and
(c) the person has longer than 60 days to lodge a taxation objection against the assessment referred to in paragraph (b);
the person must lodge the taxation objection within that longer period.
(1C) For the purposes of paragraph (1B)(c), if an assessment or determination has been amended more than once, the notice is the notice of the first assessment or determination in relation to the year of income, franking year or year of tax, as the case requires.
(2) If the period within which an objection by a person is required to be lodged has passed, the person may nevertheless lodge the objection with the Commissioner together with a written request asking the Commissioner to deal with the objection as if it had been lodged within that period.
(3) The request must state fully and in detail the circumstances concerning, and the reasons for, the person’s failure to lodge the objection with the Commissioner within the required period.
(4) The 60 day period mentioned in subparagraph (1)(aad)(i) (including the period as extended by a previous application of this subsection) is extended by the number of days during that period in relation to which the following paragraphs apply:
(a) on or before the day, but during the period, the Commissioner requests information from the entity for the purposes of verifying the notified information mentioned in section 8AAZLGA;
(b) the Commissioner does not receive the requested information before the day.
14ZX Commissioner to consider applications for extension of time
(1) After considering the request, the Commissioner must decide whether to agree to it or refuse it.
(2) The Commissioner must give the person written notice of the Commissioner’s decision.
(3) If the Commissioner decides to agree to the request, then, for the purposes of this Part, the objection is taken to have been lodged with the Commissioner within the required period.
(4) If the Commissioner decides to refuse the request, the person may apply to the Tribunal for review of the decision.
14ZY Commissioner to decide taxation objections
(1) Subject to subsection (1A), if the taxation objection has been lodged with the Commissioner within the required period, the Commissioner must decide whether to:
(a) allow it, wholly or in part; or
(b) disallow it.
(1A) If the taxation objection is an objection under subsection 359‑50(3) in Schedule 1 against the Commissioner’s failure to make a private ruling, the Commissioner must:
(a) make a private ruling in the same terms as the draft ruling lodged with the objection; or
(b) make a different private ruling.
(1B) If the taxation objection is an objection under subsection 155‑30(2) in Schedule 1 against the Commissioner’s failure to make an assessment of an assessable amount, the Commissioner must decide to make an assessment of the assessable amount.
(2) A decision of the Commissioner mentioned in subsection (1), (1A) or (1B) is an objection decision.
(3) The Commissioner must cause to be served on the person written notice of the Commissioner’s objection decision.
14ZYA Person may require Commissioner to make an objection decision
(1) This section applies if the taxation objection (other than one under subsection 155‑30(2) or 359‑50(3) in Schedule 1) has been lodged with the Commissioner within the required period and the Commissioner has not made an objection decision by whichever is the later of the following times:
(a) the end of the period (in this section called the original 60‑day period) of 60 days after whichever is the later of the following days:
(i) the day on which the taxation objection is lodged with the Commissioner;
(ii) if the Commissioner decides under section 14ZX to agree to a request in relation to the taxation objection—the day on which the decision is made;
(b) if the Commissioner, by written notice served on the person within the original 60‑day period, requires the person to give information relating to the taxation objection—the end of the period of 60 days after the Commissioner receives that information.
(2) The person may give the Commissioner a written notice requiring the Commissioner to make an objection decision.
(3) If the Commissioner has not made an objection decision by the end of the period of 60 days after being given the notice, then, at the end of that period, the Commissioner is taken to have made a decision under subsection 14ZY(1) to disallow the taxation objection.
14ZYB Requiring Commissioner to make a private ruling
(1) This section applies if the taxation objection is an objection under subsection 155‑30(2) or 359‑50(3) in Schedule 1 and the Commissioner has not made an objection decision by the end of 60 days after the later of these days:
(a) the day on which the taxation objection was lodged with the Commissioner;
(b) if the Commissioner decides under section 14ZX to agree to a request in relation to the taxation objection—the day on which the decision was made.
Note 1: Subsection 155‑30(2) provides for objections against the Commissioner’s failure to make an assessment of an assessable amount.
Note 2: Subsection 359‑50(3) provides for objections against the Commissioner’s failure to make a private ruling.
(2) The Commissioner is taken, at the end of that 60 day period, to have disallowed the objection.
14ZZ Person may seek review of, or appeal against, Commissioner’s decision
(1) If the person is dissatisfied with the Commissioner’s objection decision (including a decision under paragraph 14ZY(1A)(b) to make a different private ruling), the person may:
(a) if the decision is a reviewable objection decision—either:
(i) apply to the Tribunal for review of the decision; or
(ii) appeal to the Federal Court against the decision; or
(b) otherwise—appeal to the Federal Court against the decision.
(2) Treat a reference in subsection (1) to appealing to the Federal Court as being a reference to appealing to a designated court (within the meaning of the Australian Charities and Not‑for‑profits Commission Act 2012) if:
(a) the person may appeal to the designated court against an objection decision under that Act (the ACNC objection decision); and
(b) the objection decision mentioned in subsection (1) (the taxation objection decision) and the ACNC objection decision are related, or it would be efficient for the designated court to consider the decisions together.
Note: In the Australian Charities and Not‑for‑profits Commission Act 2012, designated court means the Federal Court of Australia or a Supreme Court of a State or Territory that has jurisdiction in relation to matters arising under that Act.
(3) An appeal to the designated court against the taxation objection decision must be made together with the appeal against the ACNC objection decision as mentioned in section 170‑30 of the Australian Charities and Not‑for‑profits Commission Act 2012, if the designated court is not the Federal Court.
Division 4—AAT review of objection decisions and extension of time refusal decisions
14ZZA Modified AAT Act to apply
The AAT Act applies in relation to:
(a) the review of reviewable objection decisions; and
(b) the review of extension of time refusal decisions; and
(c) AAT extension applications;
subject to the modifications set out in this Division.
14ZZB Sections 27, 28, 41 and 44A of the AAT Act not to apply to certain decisions
(1) Sections 27 and 41 of the AAT Act do not apply in relation to:
(a) a reviewable objection decision; or
(b) an extension of time refusal decision.
(2) Sections 28 and 44A of the AAT Act do not apply in relation to a reviewable objection decision.
14ZZC Modification of section 29 of the AAT Act
Section 29 of the AAT Act applies in relation to a reviewable objection decision as if subsections (1) to (6) (inclusive) of that section were omitted and the following subsection were substituted:
“(1) An application to the Tribunal for a review of a decision:
(a) must be in writing; and
(c) must set out a statement of the reasons for the application; and
(d) must be lodged with the Tribunal within 60 days after the person making the application is served with notice of the decision.”.
14ZZD Modification of section 30 of the AAT Act
Section 30 of the AAT Act applies in relation to a reviewable objection decision or an extension of time refusal decision as if subsection (1A) of that section were omitted and the following subsection were substituted:
“(1A) If an application has been made by a person to the Tribunal for the review of a reviewable objection decision or an extension of time refusal decision:
(a) any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding; and
(b) the Tribunal may, in its discretion, by order, if it is satisfied that the person making the application consents to the order, make that person a party to the proceeding.”.
14ZZE Hearings before Tribunal to be held in private if applicant so requests
Despite section 35 of the AAT Act, the hearing of a proceeding before the Tribunal for:
(a) a review of a reviewable objection decision; or
(b) a review of an extension of time refusal decision; or
(c) an AAT extension application;
is to be in private if the party who made the application requests that it be in private.
14ZZF Modification of section 37 of the AAT Act
(1) Section 37 of the AAT Act applies in relation to an application for review of a reviewable objection decision as if:
(a) the requirement in subsection (1) of that section to lodge with the Tribunal a copy of:
(i) a statement giving the reasons for the decision; and
(ii) the notice of the taxation decision concerned; and
(iii) the taxation objection concerned; and
(iv) the notice of the objection decision; and
(v) every other document that is in the Commissioner’s possession or under the Commissioner’s control and is considered by the Commissioner to be necessary to the review of the objection decision concerned; and
(vi) a list of the documents (if any) being lodged under subparagraph (v); and
(b) the power of the Tribunal under subsection (2) of that section to cause a notice to be served containing a statement and imposing a requirement on a person were instead:
(i) a power to make such a statement and impose such a requirement orally at a conference held in accordance with subsection 34(1) of the AAT Act; and
(ii) a power, by such a notice, to make such a statement and impose a requirement that the person lodge with the Tribunal, within the time specified in the notice, a copy of each of those other documents that is in the person’s possession or under the person’s control; and
(iii) a power, by such a notice, to make such a statement and impose a requirement that the person lodge with the Tribunal, within the time specified in the notice, a copy of a list of the documents in the person’s possession or under the person’s control considered by the person to be relevant to the review of the objection decision concerned.
(2) Paragraph (1)(b) does not affect any powers that the Tribunal has apart from that paragraph.
(3) The imposition of a requirement covered by subparagraph (1)(b)(iii) does not prevent the subsequent imposition of a requirement covered by subparagraph (1)(b)(ii).
14ZZG Modification of section 38 of the AAT Act
Section 38 of the AAT Act applies in relation to an application for a review of a reviewable objection decision as if the reference to paragraph 37(1)(a) of that Act were instead a reference to subparagraph 14ZZF(1)(a)(i) of this Act.
14ZZJ Modification of section 43 of the AAT Act
Section 43 of the AAT Act applies in relation to:
(a) a review of a reviewable objection decision; and
(b) a review of an extension of time refusal decision; and
(c) an AAT extension application;
as if the following subsections were inserted after subsection (2B):
“(2C) If a hearing of a proceeding for the review of a decision or an AAT extension application is not conducted in public, that fact does not prevent the Tribunal from publishing its reasons for the decision.
“(2D) If:
(a) a hearing of a proceeding for the review of a decision or an AAT extension application is not conducted in public; and
(b) a notice of appeal has not been lodged with the Federal Court;
the Tribunal must ensure, as far as practicable, that its reasons for the decision are framed so as not to be likely to enable the identification of the person who applied for the review.
“(2E) In subsections (2C) and (2D):
reasons for decision includes findings on material questions of fact and references to the evidence or other material on which those findings were based.”.
14ZZK Grounds of objection and burden of proof
On an application for review of a reviewable objection decision:
(a) the applicant is, unless the Tribunal orders otherwise, limited to the grounds stated in the taxation objection to which the decision relates; and
(b) the applicant has the burden of proving:
(i) if the taxation decision concerned is an assessment—that the assessment is excessive or otherwise incorrect and what the assessment should have been; or
(ii) in any other case—that the taxation decision concerned should not have been made or should have been made differently.
14ZZL Implementation of Tribunal decisions
(1) When the decision of the Tribunal on the review of a reviewable objection decision or an extension of time refusal decision becomes final, the Commissioner must, within 60 days, take such action, including amending any assessment or determination concerned, as is necessary to give effect to the decision.
(2) For the purposes of subsection (1), if no appeal is lodged against the Tribunal’s decision within the period for lodging an appeal, the decision becomes final at the end of the period.
14ZZM Pending review not to affect implementation of taxation decisions
The fact that a review is pending in relation to a taxation decision does not in the meantime interfere with, or affect, the decision and any tax, additional tax or other amount may be recovered as if no review were pending.
Division 5—Court appeals against objection decisions
14ZZN Time limit for appeals
An appeal to the Federal Court against an objection decision must be lodged with the Court within 60 days after the person appealing is served with notice of the decision.
14ZZO Grounds of objection and burden of proof
In proceedings on an appeal under section 14ZZ to a court against an objection decision:
(a) the appellant is, unless the court orders otherwise, limited to the grounds stated in the taxation objection to which the decision relates; and
(b) the appellant has the burden of proving:
(i) if the taxation decision concerned is an assessment—that the assessment is excessive or otherwise incorrect and what the assessment should have been; or
(ii) in any other case—that the taxation decision should not have been made or should have been made differently.
14ZZP Order of court on objection decision
Where a court hears an appeal against an objection decision under section 14ZZ, the court may make such order in relation to the decision as it thinks fit, including an order confirming or varying the decision.
14ZZQ Implementation of court order in respect of objection decision
(1) When the order of the court in relation to the decision becomes final, the Commissioner must, within 60 days, take such action, including amending any assessment or determination concerned, as is necessary to give effect to the decision.
(2) For the purposes of subsection (1):
(a) if the order is made by the court constituted by a single Judge and no appeal is lodged against the order within the period for lodging an appeal—the order becomes final at the end of the period; and
(b) if the order is made by the court constituted other than as mentioned in paragraph (a) and no application for special leave to appeal to the High Court against the order is made within the period of 30 days after the order is made—the order becomes final at the end of the period.
14ZZR Pending appeal not to affect implementation of taxation decisions
The fact that an appeal is pending in relation to a taxation decision does not in the meantime interfere with, or affect, the decision and any tax, additional tax or other amount may be recovered as if no appeal were pending.
14ZZS Transfer of certain proceedings to Family Court
(1) If:
(a) a proceeding is pending in the Federal Court on an appeal under section 14ZZ in relation to an objection decision; and
(b) the taxation decision to which the objection decision relates was made under the Income Tax Assessment Act 1936;
the Federal Court may, on the application of a party to the proceeding or on its own initiative, transfer the proceeding to the Family Court.
(2) Subject to subsection (3), if the proceeding is transferred to the Family Court:
(a) the Family Court has jurisdiction to hear and determine the proceeding; and
(b) the Family Court also has jurisdiction to hear and determine matters not otherwise within its jurisdiction (whether because of paragraph (a) or otherwise):
(i) that are associated with matters arising in the proceeding; or
(ii) that, apart from subsection 32(1) of the Federal Court of Australia Act 1976, the Federal Court would have had jurisdiction to hear and determine in the proceeding; and
(c) the Family Court may, in and in relation to the proceeding:
(i) grant such remedies; and
(ii) make orders of such kinds; and
(iii) issue, and direct the issue of, writs of such kinds;
as the Federal Court could have granted, made, issued or directed the issue of, as the case may be, in and in relation to the proceeding; and
(d) remedies, orders and writs granted, made or issued by the Family Court in and in relation to the proceeding have effect, and may be enforced by the Family Court, as if they had been granted, made or issued by the Federal Court; and
(e) appeals lie from judgments of the Family Court given in and in relation to the proceeding as if the judgments were judgments of the Federal Court constituted by a single Judge of that Court, and do not otherwise lie; and
(f) subject to paragraphs (a) to (e) (inclusive), this Act, the regulations, the Federal Court of Australia Act 1976, the Rules of the Court made under that Act, and other laws of the Commonwealth, apply in and in relation to the proceeding as if:
(i) a reference to the Federal Court (other than in the expression “the Court or a Judge”) included a reference to the Family Court; and
(ii) a reference to a Judge of the Federal Court (other than in the expression “the Court or a Judge”) included a reference to a Family Court Judge; and
(iii) a reference to the expression “the Court or a Judge” when used in relation to the Federal Court included a reference to a Family Court Judge sitting in Chambers; and
(iv) a reference to a Registrar of the Federal Court included a reference to a Registrar of the Family Court; and
(v) any other necessary changes were made.
(3) If any difficulty arises in the application of paragraphs (2)(c), (d) and (f) in or in relation to a particular proceeding, the Family Court may, on the application of a party to the proceeding or on its own initiative, give such directions, and make such orders, as it considers appropriate to resolve the difficulty.
(4) An appeal does not lie from a decision of the Federal Court in relation to the transfer of a proceeding under this Part to the Family Court.
Part V—Miscellaneous
15 Appearance by Commissioner etc.
(1) In any action, prosecution or other proceeding under, or arising out of, a taxation law instituted by or on behalf of the Commissioner, a Second Commissioner or a Deputy Commissioner, to which the Commissioner, a Second Commissioner or a Deputy Commissioner is a party or in which the Commissioner, a Second Commissioner or a Deputy Commissioner intervenes or seeks to intervene, the Commissioner, Second Commissioner or Deputy Commissioner, as the case may be, may appear personally or may be represented by:
(a) a person enrolled as a barrister, solicitor, barrister and solicitor or legal practitioner of a federal court or of the Supreme Court of a State or Territory; or
(b) a person authorized by the Commissioner, a Second Commissioner or a Deputy Commissioner, by instrument in writing, to appear.
(2) The appearance of a person, and the statement of the person that the person appears by authority of the Commissioner, a Second Commissioner or a Deputy Commissioner, is prima facie evidence of that authority.
(3) This section applies in relation to the Tax Agent Services Act 2009 as if:
(a) references in this section to the Commissioner were references to the Tax Practitioners Board (within the meaning of that Act); and
(b) references in this section to a Second Commissioner or to a Deputy Commissioner were omitted.
15A Certification by Commissioner of copies of, and extracts from, documents
(1) Where a document is obtained pursuant to a taxation law, the Commissioner may certify a copy of the document to be a true copy.
(2) Where, pursuant to a taxation law, a copy is made of a document, the Commissioner may certify the copy to be a true copy.
(3) Where a document is obtained pursuant to a taxation law, the Commissioner may certify an extract taken from the document to be a true extract.
(4) Where, pursuant to a taxation law, an extract is taken from a document, the Commissioner may certify the extract to be a true extract.
(5) Subject to subsection (6), a document purporting to be a copy or extract certified under subsection (1), (2), (3) or (4) shall be received in all courts and tribunals in proceedings arising out of a taxation law as evidence as if it were the original.
(6) Subsection (5) does not apply in relation to a document if:
(a) in the case of proceedings for an offence—evidence is adduced that the document is not a true copy or a true extract; or
(b) in any other case—it is proved that the document is not a true copy or a true extract.
(7) Where:
(a) pursuant to a taxation law, a copy (in this section referred to as the primary copy) is made of, or an extract (in this section referred to as the primary extract) is taken from, a document (in this section referred to as the original document); and
(b) pursuant to subsection (2) or (4), the Commissioner has certified the primary copy to be a true copy of, or the primary extract to be a true extract taken from, the original document;
the Commissioner may:
(c) certify a copy of the primary copy or primary extract to be a true copy; or
(d) certify an extract taken from the primary copy or primary extract to be a true extract.
(8) Subject to subsection (9), a document purporting to be:
(a) a copy, certified under subsection (7), of a primary copy of, or a primary extract taken from, an original document; or
(b) an extract, certified under subsection (7), taken from a primary copy of, or a primary extract taken from, an original document;
shall be received in all courts and tribunals in proceedings arising out of a taxation law as evidence as if it were the original document.
(9) Subsection (8) does not apply in relation to a document if:
(a) in the case of proceedings for an offence, evidence is adduced that:
(i) the document is not a true copy of, or a true extract taken from, the primary copy or primary extract; or
(ii) the primary copy is not a true copy of, or the primary extract is not a true extract taken from, the original document; or
(b) in any other case, it is proved that:
(i) the document is not a true copy of, or a true extract taken from, the primary copy or primary extract; or
(ii) the primary copy is not a true copy of, or the primary extract is not a true extract taken from, the original document.
(12) This section applies in relation to the Tax Agent Services Act 2009 as if references in this section to the Commissioner were references to the Chair of the Tax Practitioners Board (within the meaning of that Act).
15B Recoverable advances
(1) The Commissioner may make an advance to a person (the recipient) on account of an amount to which the recipient may become entitled under a taxation law.
(2) The Commissioner must not make an advance under subsection (1) unless:
(a) if the advance is made in conjunction with other advances under that subsection—the Commissioner is satisfied that the total of the costs that would be likely to be incurred by:
(i) the Commonwealth; and
(ii) the recipients; and
(iii) persons other than the Commonwealth or the recipients;
if the advance and the other advances were not made is likely to exceed the total of the advance and the other advances; or
(b) otherwise—the Commissioner is satisfied that the total of the costs that would be likely to be incurred by:
(i) the Commonwealth; and
(ii) the recipient; and
(iii) persons other than the Commonwealth or the recipient;
if the advance were not made is likely to exceed the amount of the advance.
(3) An advance under subsection (1) may:
(a) be recovered under subsection (4); or
(b) be the subject of a determination under subsection (5).
(4) If an advance is made under subsection (1) to a person (the recipient), the advance:
(a) is a debt due to the Commonwealth by 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;
whether or not the recipient has become entitled to an amount under a taxation law.
Advance may discharge Commonwealth liability
(5) If:
(a) an advance is made to a person (the recipient) under subsection (1); and
(b) the advance has not been fully recovered under subsection (4); and
(c) an amount is payable to the recipient by the Commonwealth under a taxation law (the Commonwealth liability);
the Commissioner may, by written notice given to the recipient, determine that the making of the advance is taken to have discharged so much of the Commonwealth liability as equals the whole, or a specified part, of the amount of the advance.
(6) A part of an advance must not be specified in a determination under subsection (5) if it has already been specified in a previous determination under subsection (5).
(7) If the whole, or a part, of an advance is the subject of a determination under subsection (5), the whole, or the part, as the case may be, of the advance is not recoverable under subsection (4).
(8) Subsection (5) does not limit Part IIB.
(9) For the purposes of any rules made for the purposes of paragraph 103(c) of the Public Governance, Performance and Accountability Act 2013, a determination under subsection (5) of this section is taken to be a method of debt recovery.
15C Recoverable payments
(1) If, apart from this subsection, the Commissioner does not have power under a taxation law to pay an amount (the relevant amount) to a person (the recipient) purportedly as an amount to which the recipient is entitled to under a taxation law, then the Commissioner may pay the relevant amount to the recipient.
Recovery
(2) If a payment is made under subsection (1) to the recipient, the relevant amount:
(a) is a debt due to the Commonwealth by 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.
(3) If:
(a) a payment is made under subsection (1) to the recipient; and
(b) an amount is payable to the recipient by the Commonwealth under a taxation law (the Commonwealth liability);
then:
(c) the relevant amount; or
(d) such part of the relevant amount as the Commissioner determines;
may, if the Commissioner so directs, be recovered by deduction from the Commonwealth liability.
(4) For the purposes of a designated recovery provision, in determining whether an amount is payable, disregard subsection (1) of this section.
(5) If the relevant amount is recovered under a designated recovery provision, the relevant amount cannot be recovered under subsection (2) or (3) of this section.
(6) If the relevant amount is recovered under subsection (2) or (3) of this section, the relevant amount cannot be recovered under a designated recovery provision.
(7) Except as provided by subsection (6), subsection (3) does not limit Part IIB.
Designated recovery provisions
(8) For the purposes of this section, each of the following provisions is a designated recovery provision:
(a) section 8AAZN of this Act;
(b) section 70 of the Superannuation Guarantee (Administration) Act 1992;
(d) section 24 of the Superannuation (Government Co‑contribution for Low Income Earners) Act 2003;
(e) a similar provision of a taxation law.
(9) For the purposes of a designated recovery provision, in determining:
(a) whether a person is entitled to an amount; or
(b) whether an amount is payable;
disregard subsection (1).
15D Reports about recoverable advances and recoverable payments
(1) During the applicable publication period for a reporting period, the Commissioner must publish, in such manner as the Commissioner thinks fit, a report that sets out:
(a) both:
(i) the number of advances made under subsection 15B(1) during the reporting period; and
(ii) the total amount of those advances; and
(b) both:
(i) the number of payments made under subsection 15C(1) during the reporting period; and
(ii) the total amount of those payments.
(2) However, a report is not required if:
(a) the number mentioned in subparagraph (1)(a)(i) is zero; and
(b) the number mentioned in subparagraph (1)(b)(i) is zero.
Deferred reporting
(3) Paragraph (1)(b) of this section does not require a report to deal with a payment unless, before the preparation of the report, an Australian Taxation Office official was aware the payment was made under subsection 15C(1).
(4) For the purposes of this section, if:
(a) a payment was made under subsection 15C(1) in a reporting period; and
(b) because of subsection (3) of this section, paragraph (1)(b) of this section did not require a report to deal with the payment; and
(c) during a later reporting period, an Australian Taxation Office official becomes aware that the payment was made under subsection 15C(1);
the payment is subject to a deferred reporting obligation in relation to the later reporting period.
(5) If one or more payments made under subsection 15C(1) during a reporting period are subject to a deferred reporting obligation in relation to a later reporting period, the Commissioner must, during the applicable publication period for the later reporting period:
(a) prepare a report that sets out:
(i) the number of those payments; and
(ii) the total amount of those payments; and
(iii) the reporting period during which the payments were made; and
(b) if a report is required under subsection (1) in relation to the later reporting period—include the paragraph (a) report in the subsection (1) report; and
(c) if paragraph (b) does not apply—publish, in such manner as the Commissioner thinks fit, the paragraph (a) report.
Reporting period
(6) For the purposes of this section, a reporting period is:
(a) a financial year; or
(b) if a shorter recurring period is specified in a legislative instrument made by the Minister—that period.
Applicable publication period
(7) For the purposes of this section, the applicable publication period for a reporting period is the period of:
(a) 4 months; or
(b) if a lesser number of months is specified, in relation to the reporting period, in a legislative instrument made by the Minister—that number of months;
beginning immediately after the end of the reporting period.
Australian Taxation Office official
(8) For the purposes of this section, Australian Taxation Office official means an official (within the meaning of the Public Governance, Performance and Accountability Act 2013) of the Australian Taxation Office.
16 Payments out of Consolidated Revenue Fund
(1) Where the Commissioner is required or permitted to pay an amount to a person by or under a provision of a taxation law other than:
(a) a general administration provision; or
(b) a provision prescribed for the purposes of this paragraph;
the amount is payable out of the Consolidated Revenue Fund, which is appropriated accordingly.
(2) Where:
(a) an amount is required or permitted to be paid to a person:
(i) by or under a provision of a taxation law other than:
(A) a general administration provision; or
(B) a provision prescribed for the purposes of this sub‑subparagraph; or
(ii) by way of the repayment, whether in whole or in part, to the person of an amount paid to the Commonwealth;
(b) except as mentioned in paragraph (c), there is no provision of a taxation law by or under which the Commissioner is required or permitted to pay the amount; and
(c) the Commissioner is required or permitted to pay the amount by or under a general administration provision;
the amount shall be taken, for the purposes of subsection (1), to be an amount that the Commissioner is required or permitted to pay to the person by or under a provision of a taxation law of the kind referred to in that subsection.
(3) In this section, general administration provision means a provision of a taxation law that provides that the Commissioner has the general administration of the taxation law.
16A Regulations may provide for methods of payment of tax liabilities etc.
(1) This section applies to a liability to or of the Commonwealth arising under, or by virtue of, any of the following laws:
(a) this Act;
(b) any other Act of which the Commissioner has the general administration;
(c) regulations under an Act covered by paragraph (a) or (b).
(2) The regulations may make provision for and in relation to the methods by which the amount of the liability may be paid.
(3) Without limiting subsection (2), the regulations may make provision for and in relation to the making of payments using:
(a) collection agents; or
(b) electronic funds transfer systems; or
(c) credit cards; or
(d) debit cards.
16B Certain liabilities to be reduced to nearest multiple of 5 cents
If the amount of a tax‑related liability that arises by way of penalty or because it is assessed by the Commissioner (other than an RBA deficit or a liability to pay the general interest charge) is not a multiple of 5 cents, the amount is decreased to the nearest multiple of 5 cents.
17 Powers of taxation officers in relation to references to currency etc.
(1) In this section:
decimal currency means the currency provided for by the Currency Act 1965.
law of the Commonwealth has the same meaning as in section 10 of the Currency Act 1965.
officer includes the Commissioner and a Second Commissioner.
taxation law means any law of the Commonwealth of which the Commissioner has the general administration.
the previous currency means the currency provided for by the Coinage Act 1909.
(2) An officer may, in the exercise of, or for the purpose of exercising, any power under a taxation law or in the performance of, or for the purpose of performing, any function under a taxation law:
(a) treat:
(i) a reference in a law of the Commonwealth;
(ii) a reference in a bill of exchange, promissory note, security for money, contract or agreement (whether the contract or agreement is in writing or not), deed or other instrument; or
(iii) a reference in any other manner;
to an amount of money in the previous currency as a reference to a corresponding amount of money in decimal currency and treat such a reference to an amount of money in decimal currency as a reference to a corresponding amount of money in the previous currency;
(b) treat an amount of money in the previous currency as a corresponding amount of money in decimal currency and treat an amount of money in decimal currency as a corresponding amount of money in the previous currency; and
(c) express an amount of money in either decimal currency or the previous currency.
(3) For the purposes of paragraphs (2)(a), (b) and (c):
(a) the amount of money in decimal currency that corresponds with an amount of money in the previous currency; and
(b) the amount of money in the previous currency that corresponds with an amount of money in decimal currency;
shall be calculated on the basis of the equivalents specified in subsection 8(4) of the Currency Act 1965.
17A Powers of Federal Court and Federal Circuit Court in respect of taxation matters
(1) The Federal Court of Australia shall not, in relation to a review by the Court of a decision of the Tribunal in connection with proceedings under a taxation law, exercise a power conferred on it by section 15, or paragraph 16(1)(d), (2)(b) or (3)(c) or subsection 16(4), of the Administrative Decisions (Judicial Review) Act 1977 so as to prevent or restrain the recovery, under that law, of tax or duty, further tax or further duty or additional tax or additional duty.
(2) The Federal Circuit Court of Australia must not, in relation to a review by the Court of a decision of the Tribunal in connection with proceedings under a taxation law, exercise a power conferred on it by section 15A, or paragraph 16(1)(d), (2)(b) or (3)(c) or subsection 16(4), of the Administrative Decisions (Judicial Review) Act 1977 so as to prevent or restrain the recovery, under that law, of:
(a) tax or duty; or
(b) further tax or further duty; or
(c) additional tax or additional duty.
18 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for giving effect to this Act, and, in particular, prescribing penalties not exceeding a fine of 5 penalty units for offences against the regulations.
Schedule 1—Collection and recovery of income tax and other liabilities
Note: See section 3AA.
Chapter 2—Collection, recovery and administration of income tax
Part 2‑1—Introduction to the Pay as you go (PAYG) system
Division 6—Guide to Parts 2‑5 and 2‑10
6‑1 What Parts 2‑5 and 2‑10 are about
To help taxpayers meet their annual income tax liability, they are required to pay amounts of their income at regular intervals as it is earned during the year. The system for collecting these amounts is called “Pay as you go”.
Amounts collected under this system also go towards meeting liability for Medicare levy and liability to repay debts under certain income‑contingent loan schemes.
Table of sections
6‑5 The Pay as you go (PAYG) system
6‑10 How the amounts collected are dealt with
6‑5 The Pay as you go (PAYG) system
(1) Parts 2‑5 and 2‑10 establish the PAYG system, which has 2 components:
• PAYG withholding (Part 2‑5)
• PAYG instalments (Part 2‑10).
PAYG withholding
(2) Under PAYG withholding, amounts are collected in respect of particular kinds of payments or transactions. Usually, someone who makes a payment to you is required to withhold an amount from the payment, and then to pay the amount to the Commissioner.
For a list of the payments and other transactions to which
PAYG withholding applies, see Division 10
PAYG instalments
(3) You pay PAYG instalments directly to the Commissioner. These are usually based on your GDP‑adjusted notional tax or your ordinary income for a past period, but excluding:
• income subject to PAYG withholding (with certain exceptions)
• exempt income, or income that is otherwise not assessable.
An instalment is usually paid after a quarter, but some taxpayers are eligible to pay an annual instalment after the end of the income year.
6‑10 How the amounts collected are dealt with
You are entitled to credits for the amounts of your income that are collected under the PAYG system. The credits are applied under Division 3 of Part IIB against your tax debts, and any excess is refunded to you.
Part 2‑5—Pay as you go (PAYG) withholding
Division 10—Guide to Part 2‑5
10‑1 What this Part is about
Under PAYG withholding, amounts are collected in respect of particular kinds of payments or transactions. Usually, someone who makes a payment to you is required to withhold an amount from the payment, and then to pay the amount to the Commissioner. If the payment is personal services income that is included in the assessable income of someone else under Division 86 of the Income Tax Assessment Act 1997, the payer must pay such an amount to the Commissioner at a later date.
If a non‑cash benefit is provided instead of a payment, the provider must first pay to the Commissioner the amount that would have been withheld from the payment.
This Part also contains provisions about the obligations and rights of payers and recipients.
10‑5 Summary of withholding payments
(1) The payments and other transactions covered by PAYG withholding are called withholding payments. They are summarised in the table.
Note: The obligation to pay an amount to the Commissioner is imposed on the entity making the withholding payment (except for items 17, 19, 22 and 27, and 26 (to the extent that it covers subsection 12‑390(4))).
| Summary of withholding payments |
| Item | Withholding payment | Section |
| 1 | A payment of salary etc. to an employee | 12‑35 |
| 2 | A payment of remuneration to the director of a company | 12‑40 |
| 3 | A payment of salary etc. to an office holder (e.g. a member of the Defence Force) | 12‑45 |
| 3A | a payment to a *religious practitioner | 12‑47 |
| 4 | A return to work payment to an individual | 12‑50 |
| 5 | A payment that is covered by a voluntary agreement | 12‑55 |
| 6 | A payment under a labour hire arrangement or a payment specified by regulations | 12‑60 |
| 7 | A *superannuation income stream or an annuity | 12‑80 |
| 8 | A *superannuation lump sum or a payment for termination of employment | 12‑85 |
| 9 | An unused leave payment | 12‑90 |
| 10 | A social security or similar payment (e.g. old age pension) | 12‑110 |
| 11 | A Commonwealth education or training payment | 12‑115 |
| 12 | A compensation, sickness or accident payment | 12‑120 |
| 13 | A payment arising from an investment where the recipient does not quote its tax file number, or in some cases, its ABN | 12‑140 |
| 14 | Investor becoming presently entitled to income of a unit trust | 12‑145 |
| 14A | A trustee of a closely held trust distributing an amount from the trust income to a beneficiary, where the beneficiary does not quote its tax file number | 12‑175 |
| 14B | A beneficiary of a closely held trust becoming presently entitled to income of the trust, where the beneficiary does not quote its tax file number | 12‑180 |
| 15 | A payment for a supply where the recipient of the payment does not quote its ABN | 12‑190 |
| 16 | A dividend payment to an overseas person | 12‑210 |
| 17 | A dividend payment received for a foreign resident | 12‑215 |
| 18 | An interest payment to an overseas person | 12‑245 |
| 19 | An interest payment received for a foreign resident | 12‑250 |
| 20 | An interest payment derived by a lender in carrying on business through overseas permanent establishment | 12‑255 |
| 21 | A royalty payment to an overseas person | 12‑280 |
| 22 | A royalty payment received for a foreign resident | 12‑285 |
| 22A | A departing Australia superannuation payment | 12‑305 |
| 22AA | An *excess untaxed roll‑over amount | 12‑312 |
| 22B | A payment (of a kind set out in the regulations) to a foreign resident | 12‑315 |
| 22C | A payment (of a kind set out in the regulations) received for a foreign resident | 12‑317 |
| 22D | A payment of salary, wages etc. to an employee under the Seasonal Labour Mobility Program | 12‑319A |
| 23 | A mining payment | 12‑320 |
| 24 | A natural resource payment | 12‑325 |
| 25 | A payment by a withholding MIT | 12‑385 |
| 26 | A payment by a *custodian or other entity | 12‑390 |
| 27 | A payment under the *first home super saver scheme | 12‑460 |
(2) These can also be treated as withholding payments:
(aa) a payment that arises because of the operation of section 12A‑205 (see Division 12A);
(a) alienated personal services payments (see Division 13);
(b) non‑cash benefits, and capital proceeds involving foreign residents and certain kinds of taxable Australian property (see Division 14).
Note: The obligation to pay an amount to the Commissioner is imposed on the entity receiving the alienated personal services payment or providing the non‑cash benefit or capital proceeds.
Division 11—Preliminary matters
Table of sections
11‑1 Object of this Part
11‑5 Constructive payment
11‑1 Object of this Part
The object of this Part is to ensure the efficient collection of:
(a) income tax; and
(b) *Medicare levy; and
(ca) amounts of liabilities to the Commonwealth under Chapter 4 of the Higher Education Support Act 2003; and
(cb) amounts of liabilities to the Commonwealth under Chapter 2AA of the Social Security Act 1991; and
(cc) amounts of liabilities to the Commonwealth under Part 2 of the Student Assistance Act 1973; and
(cd) amounts of liabilities to the Commonwealth under Chapter 3 of the Trade Support Loans Act 2014; and
(da) amounts of liabilities to the Commonwealth under Part 2B.3 of the Social Security Act 1991; and
(db) amounts of liabilities to the Commonwealth under Division 6 of Part 4A of the Student Assistance Act 1973; and
(d) *withholding tax; and
(e) *mining withholding tax; and
(f) *TFN withholding tax; and
(h) *petroleum resource rent tax.
11‑5 Constructive payment
(1) In working out whether an entity has paid an amount to another entity, and when the payment is made, the amount is taken to have been paid to the other entity when the first entity applies or deals with the amount in any way on the other’s behalf or as the other directs.
(2) An amount is taken to be payable by an entity to another entity if the first entity is required to apply or deal with it in any way on the other’s behalf or as the other directs.
Division 12—Payments from which amounts must be withheld
Table of Subdivisions
12‑A General rules
12‑B Payments for work and services
12‑C Payments for retirement or because of termination of employment
12‑D Benefit and compensation payments
12‑E Payments where TFN or ABN not quoted
12‑F Dividend, interest and royalty payments
12‑FA Departing Australia superannuation payments
12‑FAA Excess untaxed roll‑over amount
12‑FB Payments to foreign residents etc.
12‑FC Seasonal Labour Mobility Program
12‑G Payments in respect of mining on Aboriginal land, and natural resources
12‑H Distributions of withholding MIT income
12‑J FHSS released amounts
Subdivision 12‑A—General rules
Table of sections
12‑1 General exceptions
12‑5 What to do if more than one provision requires a withholding
12‑7 Division does not apply to alienated personal services payments
12‑10 Division does not apply to non‑cash benefits
12‑20 Application of Division and regulations to non‑share dividends
12‑1 General exceptions
Exempt income of recipient
(1) An entity need not withhold an amount under section 12‑35, 12‑40, 12‑45, 12‑47, 12‑50, 12‑55, 12‑60, 12‑80, 12‑85, 12‑90, 12‑120 or 12‑190 from a payment if the whole of the payment is *exempt income of the entity receiving the payment.
Non‑assessable non‑exempt income of recipient
(1A) An entity need not withhold an amount under Subdivision 12‑B, Subdivision 12‑C or section 12‑120 or 12‑190 from a payment if the whole of the payment is not assessable income and is not *exempt income of the entity receiving the payment.
Living‑away‑from‑home allowance benefit
(2) In working out how much to withhold under section 12‑35, 12‑40, 12‑45, 12‑47, 12‑115, 12‑120, 12‑315 or 12‑317 from a payment, disregard so much of the payment as is a living‑away‑from‑home allowance benefit as defined by section 136 of the Fringe Benefits Tax Assessment Act 1986.
Expense payment benefit
(3) In working out how much to withhold under section 12‑35, 12‑40, 12‑45, 12‑47, 12‑115, 12‑120, 12‑315 or 12‑317 from a payment, disregard so much of the payment as:
(a) is an expense payment benefit as defined by section 136 of the Fringe Benefits Tax Assessment Act 1986; and
(b) is not an exempt benefit under section 22 of that Act (about reimbursement of car expenses on the basis of distance travelled).
Capped defined benefit income stream
(4) This section does not apply in relation to a payment if the whole of the payment is a *superannuation income stream benefit that is paid from a *capped defined benefit income stream.
Note: For withholding amounts from a superannuation income stream, see section 12‑80.
12‑5 What to do if more than one provision requires a withholding
(1) If more than one provision in this Division covers a payment, only one amount is to be withheld from the payment.
(2) The provision to apply is the one that is most specific to the circumstances of the payment. However, this general rule is subject to the specific rules in the table, and the specific rule in subsection (3).
| Specific rules for determining priority among withholding provisions |
| Item | Apply: | Which is about: | In priority to: |
| 1AA | section 12‑385 or 12‑390 | distributions to foreign residents from *withholding MITs | each other withholding provision |
| 1 | section 12‑35, 12‑40, 12‑45, 12‑47 or 12‑50 | a payment for work or services | section 12‑60 (payment under a labour hire arrangement or specified by regulations); or section 12‑190 (payment for a supply where recipient does not quote its ABN) |
| 1A | section 12‑35 or 12‑45 | a payment for work or services | section 12‑47 (a payment to a *religious practitioner) |
| 2 | section 12‑80, 12‑85 or 12‑90 | a *superannuation benefit, an annuity, a payment for termination of employment or an unused leave payment | section 12‑60 (payment under a labour hire arrangement or specified by regulations); or section 12‑190 (payment for a supply where recipient does not quote its ABN) |
| 3 | section 12‑110, 12‑115 or 12‑120 | a payment of benefit or compensation | section 12‑60 (payment under a labour hire arrangement or specified by regulations); or section 12‑190 (payment for a supply where recipient does not quote its ABN) |
| 4 | section 12‑60 | a payment under a labour hire arrangement or specified by regulations | section 12‑190 (payment for a supply where recipient does not quote its ABN) |
| 5 | section 12‑140 or 12‑145 | a payment arising from investment where the recipient does not quote tax file number | section 12‑175 or 12‑180 (Payment of income of closely held trust where TFN not quoted) or section 12‑210, 12‑215, 12‑245, 12‑250 or 12‑255 (payment of a dividend or interest) |
| 6 | section 12‑280 or 12‑285 | a payment of royalty | section 12‑325 (natural resource payment) |
(3) Apply a provision in this Division (apart from a provision in Subdivision 12‑FB) that covers a payment in priority to a provision in Subdivision 12‑FB that also covers the payment.
Note: Some provisions of this Division clearly do not cover a payment covered by some other provisions. For example:
· Section 12‑55 (about voluntary agreements) covers a payment only if no other provision requires the payer to withhold an amount from the payment.
12‑7 Division does not apply to alienated personal services payments
(1) This Division (other than the provisions mentioned in subsection (2)) does not apply to a payment in so far as the payment:
(a) is an *alienated personal services payment; or
(b) was received, by the entity making the payment, as an *alienated personal services payment.
Note: An entity that receives an alienated personal services payment may be obliged to pay an amount to the Commissioner: see Division 13.
(2) The provisions are:
(a) Subdivision 12‑FB; and
(b) any other provisions in this Division to the extent that they apply in relation to that Subdivision.
12‑10 Division does not apply to non‑cash benefits
This Division does not apply to a payment in so far as it consists of providing a *non‑cash benefit.
Note: If a non‑cash benefit is provided in circumstances where a payment would give rise to a withholding obligation, the provider must pay an amount to the Commissioner: see Division 14.
12‑20 Application of Division and regulations to non‑share dividends
This Division and the regulations made for the purposes of this Division:
(a) apply to a non‑share equity interest in the same way as it applies to a share; and
(b) apply to an equity holder in the same way as it applies to a shareholder; and
(c) apply to a non‑share dividend in the same way as it applies to a dividend.
Subdivision 12‑B—Payments for work and services
Table of sections
12‑35 Payment to employee
12‑40 Payment to company director
12‑45 Payment to office holder
12‑47 Payment to religious practitioners
12‑50 Return to work payment
12‑55 Voluntary agreement to withhold
12‑60 Payment under labour hire arrangement, or specified by regulations
12‑35 Payment to employee
An entity must withhold an amount from salary, wages, commission, bonuses or allowances it pays to an individual as an employee (whether of that or another entity).
For exceptions, see section 12‑1.
12‑40 Payment to company director
A company must withhold an amount from a payment of remuneration it makes to an individual:
(a) if the company is incorporated—as a director of the company, or as a person who performs the duties of a director of the company; or
(b) if the company is not incorporated—as a member of the committee of management of the company, or as a person who performs the duties of such a member.
For exceptions, see section 12‑1.
12‑45 Payment to office holder
(1) An entity must withhold an amount from salary, wages, commission, bonuses or allowances it pays to an individual as:
(a) a member of an *Australian legislature; or
(b) a person who holds, or performs the duties of, an appointment, office or position under the Constitution or an *Australian law; or
(c) a member of the Defence Force, or of a police force of the Commonwealth, a State or a Territory; or
(d) a person who is otherwise in the service of the Commonwealth, a State or a Territory; or
(e) a member of a *local governing body where there is in effect, in accordance with section 446‑5, a unanimous resolution by the body that the remuneration of members of the body be subject to withholding under this Part.
For exceptions, see section 12‑1.
(2) This section does not require an amount to be withheld from a payment to an individual as a member of a *local governing body unless it is one to which paragraph (1)(e) applies.
12‑47 Payment to religious practitioners
An entity must withhold an amount from a payment it makes to a *religious practitioner for an activity, or a series of activities, if:
(a) the activity, or series of activities, is done by the religious practitioner in pursuit of his or her vocation as a religious practitioner; and
(b) the activity, or series of activities, is done by the religious practitioner as a member of a religious institution; and
(c) the payment is made by the entity in the course or furtherance of an *enterprise that the entity *carries on.
12‑50 Return to work payment
An entity must withhold an amount from a payment it makes to an individual if the payment is included in the individual’s assessable income under section 15‑3 of the Income Tax Assessment Act 1997 (return to work payments).
For exceptions, see section 12‑1.
12‑55 Voluntary agreement to withhold
(1) An entity must withhold an amount from a payment it makes to an individual if:
(a) the payment is made under an *arrangement the performance of which, in whole or in part, involves the performance of work or services (whether or not by the individual); and
(b) no other provision of this Division requires the entity to withhold an amount from the payment; and
(c) the entity and the individual are parties to an agreement (the voluntary agreement) that is in the *approved form and states that this section covers payments under the arrangement mentioned in paragraph (a), or under a series of such arrangements that includes that arrangement; and
(d) the individual has an *ABN that is in force and is *quoted in that agreement.
For exceptions, see section 12‑1.
(2) Each party must keep a copy of the voluntary agreement from when it is made until 5 years after the making of the last payment covered by the agreement.
Penalty: 30 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
(2A) An offence under subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A party to the voluntary agreement may terminate it at any time by notifying the other party in writing.
12‑60 Payment under labour hire arrangement, or specified by regulations
(1) An entity that *carries on an *enterprise must withhold an amount from a payment that it makes to an individual in the course or furtherance of the enterprise if:
(a) the enterprise is a *business of arranging for persons to perform work or services directly for clients of the entity, or the enterprise includes a business of that kind that is not merely incidental to the main activities of the enterprise; and
(b) the payment is made under an *arrangement the performance of which, in whole or in part, involves the performance of work or services by the individual directly for a client of the entity, or directly for a client of another entity.
For exceptions, see section 12‑1.
Example 1: Staffprovider Ltd keeps a database of skilled persons who are willing for their services to be provided to third parties. Staffprovider arranges with Corporate Pty Ltd to provide to it the services of a computer programmer in return for payment. Staffprovider arranges with Jane for her to do computer programming for Corporate. Staffprovider must withhold amounts under this section from payments it makes to Jane under the arrangement with her.
Example 2: Ian is a solicitor who regularly briefs barristers to represent his clients. Briefing barristers is merely incidental to Ian’s main activities as a solicitor, so he does not have to withhold amounts under this section from payments he makes to barristers.
(2) An entity that carries on an *enterprise must withhold an amount from a payment that it makes to an individual in the course or furtherance of the enterprise if the payment is, in whole or in part, for work or services and is of a kind prescribed by the regulations.
For exceptions, see section 12‑1.
Subdivision 12‑C—Payments for retirement or because of termination of employment
12‑80 Superannuation income streams and annuities
An entity must withhold an amount from any of the following payments it makes to an individual:
(a) a *superannuation income stream;
(b) an *annuity.
For exceptions, see section 12‑1.
12‑85 Superannuation lump sums and payments for termination of employment
An entity must withhold an amount from any of the following payments it makes to an individual:
(a) a *superannuation lump sum;
(b) a payment that is an *employment termination payment or would be one except that it is received more than 12 months after termination of employment.
For exceptions, see section 12‑1.
12‑90 Unused leave payments
An entity must withhold an amount from any of the following payments it makes to an individual:
(a) an *unused annual leave payment;
(b) an *unused long service leave payment, to the extent that the payment is included in the individual’s assessable income.
For exceptions, see section 12‑1.
Subdivision 12‑D—Benefit and compensation payments
Table of sections
12‑110 Social Security or other benefit payment
12‑115 Commonwealth education or training payment
12‑120 Compensation, sickness or accident payment
12‑110 Social Security or other benefit payment
(1) An entity must withhold an amount from a payment it makes to an individual if the payment is:
(a) specified in an item of the table in section 52‑10 of the Income Tax Assessment Act 1997 (Social Security payments); or
(b) specified in an item of the table in section 52‑65 of that Act (Veterans’ Affairs payments); or
(ba) specified in an item of the table in section 52‑114 of that Act (Military Rehabilitation and Compensation Act payments); or
(c) specified in section 52‑105, 53‑10, 55‑5 or 55‑10 of that Act; or
Note: Payments specified in those provisions of the Income Tax Assessment Act 1997 are made under various Commonwealth laws.
(ca) *parental leave pay; or
(cb) *dad and partner pay; or
(d) made under Part 3.15A of the Social Security Act 1991.
(2) In working out the amount to be withheld, disregard so much of the payment as is *exempt income of the individual.
12‑115 Commonwealth education or training payment
(1) An entity must withhold an amount from a *Commonwealth education or training payment it makes to an individual.
For exceptions, see subsection (2) and section 12‑1.
(2) In working out the amount to be withheld, disregard so much of the payment as is *exempt income of the individual.
12‑120 Compensation, sickness or accident payment
An entity must withhold an amount from a payment of compensation, or of sickness or accident pay, it makes to an individual if the payment:
(a) is made because of that or another individual’s incapacity for work; and
(b) is calculated at a periodical rate; and
(c) is not a payment made under an insurance policy to the policy owner.
For exceptions, see section 12‑1.
Subdivision 12‑E—Payments where TFN or ABN not quoted
Table of sections
Payment in respect of investment
12‑140 Recipient does not quote tax file number
12‑145 Investor becoming presently entitled to income of a unit trust
12‑150 Limited application of section 12‑140 to payment under financial arrangement
12‑152 Limited application of section 12‑140 to payment covered by section 12A‑205
12‑155 When investor may quote ABN as alternative
12‑160 Investment body unaware that exemption from quoting TFN has stopped applying
12‑165 Exception for fully franked dividend
12‑170 Exception for payments below thresholds set by regulations
Payment of income of closely held trust where TFN not quoted
12‑175 Trustee distributes income of closely held trust
12‑180 Beneficiary becomes presently entitled to income of closely held trust
12‑185 Exception for payments below thresholds set by regulations
Payment for a supply
12‑190 Recipient does not quote ABN
Payment in respect of investment
12‑140 Recipient does not quote tax file number
(1) An *investment body must withhold an amount from a payment it makes to another entity in respect of a *Part VA investment if:
(a) all or some of the payment is *ordinary income or *statutory income of the other entity; and
(b) if the investment is non‑transferable—the other entity did not *quote its *tax file number in connection with the investment before the time when the payment became payable; and
(c) if the investment is transferable—the other entity did not quote its tax file number in connection with the investment before the time when the other entity had to be registered with the investment body as the *investor to be entitled to the payment.
Note: If the investment body is an AMIT, under subsection 12A‑205(2) amounts may be treated, for the purposes of this Part, as having been paid to the other entity by the investment body.
Payment in respect of units in a trust or investment‑related betting chance
(2) If a *Part VA investment consists of:
(a) units in a unit trust (as defined in section 202A of the Income Tax Assessment Act 1936); or
(b) an investment‑related betting chance;
an entity (including the *investment body) must withhold an amount from a payment it makes to another entity in respect of the investment if the conditions in subsection (1) of this section are met.
For exceptions to the rules in this section, see sections 12‑150 to 12‑170.
(3) If:
(a) because of subsection 12A‑205(2), an entity is treated as having made a payment to another entity; and
(b) under subsection (2) of this section, the entity has withheld an amount from that payment, and paid the amount to the Commissioner;
the entity may recover from the other entity, as a debt, the amount withheld.
(4) The entity is entitled to set off an amount that the entity can recover from the other entity under subsection (3) against debts due by the entity to the other entity.
12‑145 Investor becoming presently entitled to income of a unit trust
(1) This section applies if:
(a) a *Part VA investment consists of units in a unit trust (as defined in section 202A of the Income Tax Assessment Act 1936); and
(b) the *investor becomes presently entitled, for the purposes of Division 6 of Part III of the Income Tax Assessment Act 1936, to a share of income of the trust at a time (the entitlement time) before any of that share is paid to the investor.
(2) The entity (including the *investment body) that would have to pay that share to the *investor if the share were due and payable at the entitlement time must withhold from the share, at that time, the amount (if any) that subsection 12‑140(2) would have required it to withhold if it had paid the share to the investor at that time.
For exceptions to the rules in this section, see sections 12‑155 to 12‑170.
(3) This Part (except section 12‑140 and this section) applies as if that entity had paid that share to the *investor at the entitlement time.
(4) If that entity withholds an amount from that share as required by subsection (2), subsection 12‑140(2) does not require an amount to be withheld from a payment of all or part of that share to the *investor.
12‑150 Limited application of section 12‑140 to payment under financial arrangement
(1) This section limits the extent to which section 12‑140 applies to a payment in respect of a *Part VA investment if the investment is a qualifying security (within the meaning of Division 16E of Part III of the Income Tax Assessment Act 1936 (about gains accruing on securities)) and:
(a) is of a kind mentioned in item 1 or 2 of the table in subsection 202D(1) of that Act; or
(b) is of a kind mentioned in item 3 of that table and is non‑transferable.
Note: Section 202D of the Income Tax Assessment Act 1936 lists the investments in connection with which tax file numbers are to be quoted.
(2) Section 12‑140 applies to the payment only to the extent that is covered by one or both of these paragraphs:
(a) so much of the payment as consists of periodic interest (within the meaning of Division 16E of Part III of the Income Tax Assessment Act 1936);
(b) if the payment became payable at the end of the term (within the meaning of that Division) of the investment—so much of the payment as does not exceed what section 159GQ of that Act would include in the *investor’s assessable income for the income year in which that term ended.
Note: This limitation ensures that an amount is not withheld from payment of an amount in respect of which TFN withholding tax is payable. See Subdivision 14‑B.
(3) The adoption (under section 18 of the Income Tax Assessment Act 1936) of an accounting period ending on a day other than 30 June is disregarded for the purposes of:
(a) paragraph (2)(b) of this section; and
(b) the application of Division 16E of Part III of that Act for the purposes of that paragraph.
12‑152 Limited application of section 12‑140 to payment covered by section 12A‑205
(1) If a payment is treated under section 12A‑205 as having been made, section 12‑140 does not apply to the payment to the extent that it covers a *pre‑AMMA actual payment from which section 12‑140 has required an amount to be withheld.
(2) If a payment is a *post‑AMMA actual payment, section 12‑140 does not apply to the payment to the extent that it covers either or both of the following:
(a) a *pre‑AMMA actual payment from which section 12‑140 has required an amount to be withheld;
(b) a payment that is treated under section 12A‑205 as having been made from which section 12‑140 has required an amount to be withheld.
12‑155 When investor may quote ABN as alternative
Section 12‑140 or 12‑145 does not require an amount to be withheld if:
(a) the other entity made the investment in the course or furtherance of an *enterprise *carried on by it; and
(b) the other entity has an *ABN, and has *quoted it to the investment body, by the time referred to in paragraph 12‑140(1)(b) or (c).
12‑160 Investment body unaware that exemption from quoting TFN has stopped applying
Section 12‑140 or 12‑145 does not require an amount to be withheld if:
(a) a provision of Division 5 of Part VA of the Income Tax Assessment Act 1936 has applied to the other entity in relation to the investment, but no longer applies when the payment is made; and
(b) when the payment is made, the *investment body has not been informed of anything that resulted in the provision no longer applying.
Note: Division 5 of Part VA of that Act provides, in certain cases, that even though an entity has not quoted its tax file number it is taken to have done so.
12‑165 Exception for fully franked dividend
Section 12‑140 does not require an amount to be withheld if:
(a) the investment consists of *shares in a public company (as defined in section 202A of the Income Tax Assessment Act 1936); and
(b) the payment is a *distribution that has been franked in accordance with section 202‑5 of the Income Tax Assessment Act 1997; and
(c) the *franking percentage for the distribution is 100%.
12‑170 Exception for payments below thresholds set by regulations
(1) Section 12‑140 or 12‑145 does not require an amount to be withheld if the payment is less than the amount worked out under the regulations.
(2) Regulations made for the purposes of this section may deal differently with different payments.
Payment of income of closely held trust where TFN not quoted
12‑175 Trustee distributes income of closely held trust
Scope
(1) This section applies if:
(a) the trustee of a trust makes a distribution to a beneficiary of the trust at a time (the distribution time) during an income year of the trust; and
(b) some or all of the distribution is from the *ordinary income or *statutory income of the trust; and
(c) the trust is:
(i) a resident trust estate (within the meaning of subsection 95(2) of the Income Tax Assessment Act 1936) in relation to the income year; and
(ii) a closely held trust (within the meaning of section 102UC of that Act, disregarding paragraphs (c), (d) and (e) of the definition of excluded trust in subsection (4) of that section); and
(iii) not prescribed by the regulations for the purposes of this subparagraph; and
(d) the beneficiary is:
(i) an Australian resident; and
(ii) not an *exempt entity; and
(iii) not under a legal disability for the purposes of section 98 of that Act.
Trustee must withhold
(2) The trustee must withhold an amount from the distribution, if:
(a) the beneficiary did not *quote the beneficiary’s *tax file number to the trustee before the distribution time; and
(b) the trustee is not liable to pay tax under section 98 of the Income Tax Assessment Act 1936 in connection with the distribution; and
(c) the trustee is not required to make a correct TB statement under Division 6D of Part III of that Act (about trustee beneficiary non‑disclosure tax) in connection with the distribution; and
(d) family trust distribution tax is not payable under Schedule 2F to that Act in connection with the distribution.
Note 1: If the trust is a unit trust, the trustee may be required to withhold under section 12‑140 in priority to this section: see section 12‑5.
Note 2: The trustee commits an offence if the trustee fails to withhold an amount as required by this section: see section 16‑25.
Application of rest of Part
(3) If the distribution is not a payment, this Part applies as if the trustee paid the amount of the distribution to the beneficiary at the distribution time.
Trust income of earlier income years
(4) Subsections (2) and (3) do not apply to the distribution, to the extent that:
(a) the beneficiary is presently entitled, for the purposes of Division 6 of Part III of the Income Tax Assessment Act 1936, to a share of the income of the trust of an earlier income year; and
(b) the distribution is a distribution of some or all of that share.
Note: The trustee may have been required to withhold from that share under section 12‑180.
12‑180 Beneficiary becomes presently entitled to income of closely held trust
Scope
(1) This section applies if:
(a) at the end of an income year of a trust, a beneficiary of the trust is presently entitled, for the purposes of Division 6 of Part III of the Income Tax Assessment Act 1936, to a share of the income of the trust of that year; and
(b) paragraph 12‑175(1)(c) in this Schedule applies to the trustee of the trust; and
(c) paragraph 12‑175(1)(d) applies to the beneficiary.
Trustee must withhold
(2) The trustee must withhold an amount from that share of the *net income of the trust, if:
(a) the beneficiary did not *quote the beneficiary’s *tax file number to the trustee before the end of the year; and
(b) the trustee is not liable to pay tax in respect of that share under section 98 of the Income Tax Assessment Act 1936; and
(c) the trustee is not required to make a correct TB statement about that share under Division 6D of Part III of that Act (about trustee beneficiary non‑disclosure tax); and
(d) family trust distribution tax is not payable on that share of the income of the trust under Schedule 2F to that Act.
Note 1: If the trust is a unit trust, the trustee may be required to withhold under section 12‑145 in priority to this section: see section 12‑5.
Note 2: The trustee commits an offence if the trustee fails to withhold an amount as required by this section: see section 16‑25.
Application of rest of Part
(3) This Part (other than section 12‑175) applies as if the trustee had paid that share of the *net income of the trust to the beneficiary at the end of the income year.
Entitlements already paid
(4) Subsections (2) and (3) do not apply to that share of the *net income of the trust to the extent that the trustee distributed any of that share to the beneficiary during the income year.
Note: The trustee may have been required to withhold from that distribution under section 12‑175.
Trusts that end during the year
(5) This section applies as if each reference to the end of an income year were a reference to the time occurring just before the trust ends, if the trust ends during the income year.
12‑185 Exception for payments below thresholds set by regulations
(1) Section 12‑175 or 12‑180 does not require an amount to be withheld if the payment (including the payment mentioned in subsection 12‑180(3)) is less than the amount worked out under the regulations.
(2) Regulations made for the purposes of this section may deal differently with different payments.
Payment for a supply
12‑190 Recipient does not quote ABN
(1) An entity (the payer) must withhold an amount from a payment it makes to another entity if:
(a) the payment is for a *supply that the other entity has made, or proposes to make, to the payer in the course or furtherance of an *enterprise *carried on in Australia by the other entity; and
(b) none of the exceptions in this section applies.
ABN correctly quoted
(2) The payer need not withhold an amount under this section if, when the payment is made:
(a) the other entity has given the payer an *invoice that relates to the *supply and *quotes the other entity’s *ABN; or
(b) the payer has some other document relating to the supply on which the other entity’s ABN is *quoted.
(2A) The payer need not withhold an amount under this section if the other entity has made the *supply, or proposes to make the supply, through an agent and, when the payment is made:
(a) the agent has given the payer an *invoice that relates to the supply and *quotes the agent’s *ABN; or
(b) the payer has some other document relating to the supply on which the agent’s ABN is *quoted.
Payer has no reason to believe that ABN has been incorrectly quoted
(3) The payer need not withhold an amount under this section if, when the payment is made:
(a) the other entity has given the payer an *invoice that relates to the *supply and purports to *quote the other entity’s *ABN, or the payer has some other document that relates to the supply and purports to *quote the other entity’s ABN; and
(b) the other entity does not have an ABN, or the invoice or other document does not in fact quote the other entity’s ABN; and
(c) the payer has no reasonable grounds to believe that the other entity does not have an ABN, or that the invoice or other document does not quote the other entity’s ABN.
(3A) The payer need not withhold an amount under this section if the other entity has made the *supply, or proposes to make the supply, through an agent and, when the payment is made:
(a) the agent has given the payer an *invoice that relates to the supply and purports to *quote the agent’s *ABN, or the payer has some other document that relates to the supply and purports to *quote the agent’s ABN; and
(b) the agent does not have an ABN, or the invoice or other document does not in fact quote the agent’s ABN; and
(c) the payer has no reasonable grounds to believe that the agent does not have an ABN, or that the invoice or other document does not quote the agent’s ABN.
No need to quote ABN
(4) The payer need not withhold an amount under this section if:
(a) the payment is made otherwise than in the course or furtherance of an *enterprise *carried on in Australia by the payer; or
(b) the payment (disregarding so much of it as relates to *GST payable on the *supply) or, if the payer has also made, or proposes to make, one or more other payments to the other entity for the supply, the total of all the payments (disregarding so much of them as relates to *GST payable on the supply) does not exceed $50 or such higher amount as is specified in regulations in force for the purposes of subsection 29‑80(1) of the *GST Act; or
(c) the supply is made in the course or furtherance of an activity, or series of activities, done as a member of a local governing body established by or under a *State law or *Territory law; or
(d) the supply is wholly *input taxed.
(5) The payer need not withhold an amount under this section if the payment:
(a) is covered by section 12‑140 or 12‑145 (about not quoting *tax file number in respect of an investment in respect of which the payment is made); or
(b) would be covered by section 12‑140 or 12‑145 if the other entity had not quoted as mentioned in subsection 12‑140(1) or section 12‑155; or
(c) would be covered by section 12‑140 or 12‑145 apart from section 12‑160, 12‑165 or 12‑170 (which are exceptions to sections 12‑140 and 12‑145); or
(d) is covered by section 12‑175 or 12‑180 (Payment of income of closely held trust where TFN not quoted); or
(e) would be covered by section 12‑175 or 12‑180 if the other entity had not quoted as mentioned in paragraph 12‑175(2)(a) or 12‑180(2)(a); or
(f) would be covered by section 12‑175 or 12‑180 apart from section 12‑185 (which is an exception to sections 12‑175 and 12‑180).
(6) The payer need not withhold an amount under this section if, when the payment is made:
(a) the other entity is an individual and has given the payer a written statement to the effect that:
(i) the *supply is made in the course or furtherance of an activity, or series of activities, done as a private recreational pursuit or hobby; or
(ii) the supply is, for the other entity, wholly of a private or domestic nature; and
(b) the payer has no reasonable grounds to believe that the statement is false or misleading in a material particular.
(7) In working out, for the purposes of this section, whether an enterprise is *carried on in Australia, ignore any part of Australia that is not in the indirect tax zone (within the meaning of the *GST Act).
Note: The effect of this subsection is to treat an enterprise as carried on in Australia only where it would be treated as carried on in the indirect tax zone under the A New Tax System (Australian Business Number) Act 1999.
Subdivision 12‑F—Dividend, interest and royalty payments
Table of sections
Dividends
12‑210 Dividend payment to overseas person
12‑215 Dividend payment received for foreign resident
12‑220 Application to part of a dividend
12‑225 Application to distribution by a liquidator or other person
Interest
12‑245 Interest payment to overseas person
12‑250 Interest payment received for foreign resident
12‑255 Interest payment derived by lender in carrying on business through overseas permanent establishment
12‑255 Interest payment derived by lender in carrying on business through overseas permanent establishment
12‑260 Lender to notify borrower if interest derived through overseas permanent establishment
Royalties
12‑280 Royalty payment to overseas person
12‑285 Royalty payment received for foreign resident
General
12‑300 Limits on amount withheld under this Subdivision
Dividends
12‑210 Dividend payment to overseas person
A company that is an Australian resident must withhold an amount from a *dividend it pays if:
(a) according to the register of the company’s members, the entity, or any of the entities, holding the *shares on which the dividend is paid has an address outside Australia; or
(b) that entity, or any of those entities, has authorised or directed the company to pay the dividend to an entity or entities at a place outside Australia.
For limits on the amount to be withheld, see section 12‑300.
12‑215 Dividend payment received for foreign resident
(1) An entity that receives a payment of a *dividend of a company that is an Australian resident must withhold an amount from the dividend if:
(a) the entity is a person in Australia or an *Australian government agency; and
(b) a foreign resident is or becomes entitled:
(i) to receive the dividend or part of it from the entity, or to receive the amount of the dividend or of part of it from the entity; or
(ii) to have the entity credit to the foreign resident, or otherwise deal with on the foreign resident’s behalf or as the foreign resident directs, the dividend or part of it, or the amount of the dividend or of part of it.
For limits on the amount to be withheld, see section 12‑300.
(2) The entity must withhold the amount:
(a) if the foreign resident is so entitled when the entity receives the payment—immediately after the entity receives the payment; or
(b) if the foreign resident becomes so entitled after the entity receives the payment—immediately after the foreign resident becomes so entitled.
12‑220 Application to part of a dividend
This Part applies to a part of a *dividend in the same way as to a dividend.
12‑225 Application to distribution by a liquidator or other person
This Part applies to a distribution that section 47 of the Income Tax Assessment Act 1936 treats as a *dividend paid by a company, in the same way as this Part applies to a dividend paid by the company, and as if the liquidator or other person making the distribution were the company.
Interest
12‑245 Interest payment to overseas person
An entity must withhold an amount from interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936) it pays to an entity, or to entities jointly, if:
(a) the recipient or any of the recipients has an address outside Australia according to any record that is in the payer’s possession, or is kept or maintained on the payer’s behalf, about the transaction to which the interest relates; or
(b) the payer is authorised to pay the interest at a place outside Australia (whether to the recipient or any of the recipients or to anyone else).
For limits on the amount to be withheld, see section 12‑300.
12‑250 Interest payment received for foreign resident
(1) An entity that receives a payment of interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936) must withhold an amount from the payment if:
(a) the entity is a person in Australia or an *Australian government agency; and
(b) a foreign resident is or becomes entitled:
(i) to receive the interest or part of it from the entity, or to receive the amount of the interest or of part of it from the entity; or
(ii) to have the entity credit to the foreign resident, or otherwise deal with on the foreign resident’s behalf or as the foreign resident directs, the interest or part of it, or the amount of the interest or of part of it.
For limits on the amount to be withheld, see section 12‑300.
(2) The entity must withhold the amount:
(a) if the foreign resident is so entitled when the entity receives the payment—immediately after the entity receives the payment; or
(b) if the foreign resident becomes so entitled after the entity receives the payment—immediately after the foreign resident becomes so entitled.
12‑255 Interest payment derived by lender in carrying on business through overseas permanent establishment
An entity must withhold an amount from interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936) it pays if it has been notified under section 12‑260 of this Act that this section applies to the interest.
Note: For limits on the amount to be withheld, see section 12‑300.
12‑260 Lender to notify borrower if interest derived through overseas permanent establishment
(1) If:
(a) interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936) is payable to:
(i) an entity that is, or entities at least one of whom is, an Australian resident; or
(ii) an *Australian government agency; and
(b) the entity liable to pay the interest is authorised to pay it at a place in Australia (whether to any of those entities or the agency, or to anyone else); and
(c) the interest is or will be *derived by any of those entities or the agency in carrying on business in a country outside Australia at or through a *permanent establishment it has in that country;
those entities, or the agency, must notify the entity liable to pay the interest that section 12‑255 applies to the interest.
(2) The notice must be given in writing, before the entities, or the agency, enter into the transaction in relation to which the interest is payable, or within one month afterwards.
(3) Immediately after giving the notice, those entities, or the agency, must notify the Commissioner of:
(a) the particulars of the transaction (including the dates on which interest is payable under it); and
(b) the day when the notice was given to the entity liable to pay the interest.
Failure to comply with this section may contravene section 8C of this Act.
Royalties
12‑280 Royalty payment to overseas person
An entity must withhold an amount from a *royalty it pays to an entity, or to entities jointly, if:
(a) the recipient or any of the recipients has an address outside Australia according to any record that is in the payer’s possession, or is kept or maintained on the payer’s behalf, about the transaction to which the royalty relates; or
(b) the payer is authorised to pay the royalty at a place outside Australia (whether to the recipient or any of the recipients or to anyone else).
For limits on the amount to be withheld, see section 12‑300.
12‑285 Royalty payment received for foreign resident
(1) An entity that receives a payment of a *royalty must withhold an amount from the payment if:
(a) the entity is a person in Australia or an *Australian government agency; and
(b) a foreign resident is or becomes entitled:
(i) to receive the royalty or part of it from the entity, or to receive the amount of the royalty or of part of it from the entity; or
(ii) to have the entity credit to the foreign resident, or otherwise deal with on the foreign resident’s behalf or as the foreign resident directs, the royalty or part of it, or the amount of the royalty or of part of it.
For limits on the amount to be withheld, see section 12‑300.
(2) The entity must withhold the amount:
(a) if the foreign resident is so entitled when the entity receives the payment—immediately after the entity receives the payment; or
(b) if the foreign resident becomes so entitled after the entity receives the payment—immediately after the foreign resident becomes so entitled.
General
12‑300 Limits on amount withheld under this Subdivision
This Subdivision does not require an entity:
(a) to withhold an amount from a *dividend, from interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936) or from a