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Taxation Administration Regulations 2017

Authoritative Version
  • - F2019C00290
  • In force - Superseded Version
  • View Series
Regulations as amended, taking into account amendments up to Taxation Administration Amendment (Serious Financial Crime Taskforce) Regulations 2019
These regulations remake the Taxation Administration Regulations 1976.
Administered by: Treasury
Registered 08 Apr 2019
Start Date 26 Mar 2019
End Date 01 Nov 2019

Commonwealth Coat of Arms of Australia

Taxation Administration Regulations 2017

made under the

Taxation Administration Act 1953

Compilation No. 6

Compilation date:                              26 March 2019

Includes amendments up to:            F2019L00379

Registered:                                         8 April 2019

 

About this compilation

This compilation

This is a compilation of the Taxation Administration Regulations 2017 that shows the text of the law as amended and in force on 26 March 2019 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

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

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part 1—Preliminary                                                                                                                                        1

1............ Name............................................................................................................................. 1

3............ Authority....................................................................................................................... 1

5............ Definitions..................................................................................................................... 1

Part 2—General administration (not relating to Schedule 1 to the Act)                         2

Division 1—Preliminary                                                                                                                        2

6............ Interpretation................................................................................................................. 2

Division 2—Prosecutions and offences                                                                                          3

7............ Certificates—failure to comply with requirements of taxation laws............................... 3

8............ Compliance with taxation law requirements—manner of serving orders....................... 3

9............ Enforcement of orders for payment of amounts to Commissioner................................ 3

10.......... Prosecution of prescribed taxation offences—election to have cases tried in Supreme Court   4

Division 3—Departure from Australia                                                                                          5

11.......... Departure prohibition orders......................................................................................... 5

12.......... Revocation and variation of departure prohibition orders.............................................. 5

13.......... Departure authorisation certificates................................................................................ 5

Division 4—Service of documents                                                                                                    6

14.......... Service of documents.................................................................................................... 6

15.......... Preferred address for service......................................................................................... 6

16.......... Requirement to maintain a preferred address for service............................................... 7

17.......... Change or withdrawal of preferred address for service................................................. 7

18.......... Substitute preferred address for service......................................................................... 7

19.......... Failure to notify change of address................................................................................ 7

Division 5—Miscellaneous                                                                                                                    8

20.......... Payments out of Consolidated Revenue Fund—prescribed provisions......................... 8

21.......... Payment of tax‑related liabilities.................................................................................... 8

22.......... When receipts are to be given........................................................................................ 8

23.......... Payment of postage on mail to Commissioner............................................................... 8

24.......... Presumption as to signatures......................................................................................... 8

Part 3—Income tax (Chapter 2 in Schedule 1 to the Act)                                                     10

Division 1—Preliminary                                                                                                                      10

25.......... Interpretation............................................................................................................... 10

26.......... Rounding amounts for PAYG withholding................................................................ 10

Division 2—Pay as you go (PAYG) withholding—Payments from which amounts must be withheld   11

Subdivision A—Payments for work or services                                                                         11

27.......... Payment under labour hire arrangement, or specified by regulations........................... 11

Subdivision B—Payments where TFN not quoted                                                                      11

28.......... Thresholds for withholding on investment payments.................................................. 11

29.......... Distributions of income of closely held trusts—prescribed trusts............................... 12

30.......... Threshold for withholding on net income of closely held trusts.................................. 13

Subdivision C—Payments to foreign residents                                                                           13

31.......... Kinds of payments—gaming junkets........................................................................... 13

32.......... Kinds of payments—entertainment or sports activities................................................ 14

33.......... Kinds of payments—construction and related activities............................................... 14

Subdivision D—Distributions of withholding MIT income                                                      15

34.......... Information exchange countries................................................................................... 15

Division 3—Pay as you go (PAYG) withholding—Working out the amount to withhold            19

Subdivision A—Withholding amounts for Subdivision 12‑E                                                  19

35.......... Part VA investment payments..................................................................................... 19

36.......... Closely held trust—distribution of income of closely held trust.................................. 19

37.......... Closely held trust—beneficiary is presently entitled to income.................................... 19

38.......... Payment for supply where ABNs not quoted.............................................................. 19

Subdivision B—Withholding amounts for Subdivision 12‑F                                                  20

39.......... Application to a part of a dividend............................................................................... 20

40.......... Dividend payments...................................................................................................... 20

41.......... Interest payments......................................................................................................... 20

42.......... Royalty payments........................................................................................................ 20

43.......... Meaning of double tax country.................................................................................... 21

44.......... Meaning of tax sharing country.................................................................................. 21

45.......... Meaning of other party............................................................................................... 22

Subdivision C—Withholding amounts for Subdivisions 12‑FA and 12‑FAA                      22

46.......... Departing Australia superannuation payments............................................................ 22

47.......... Excess untaxed roll‑over amounts............................................................................... 22

Subdivision D—Withholding amounts for Subdivision 12‑FB                                               22

48.......... Limits on amounts withheld under this Subdivision.................................................... 22

49.......... Gaming junkets........................................................................................................... 22

50.......... Entertainment or sports activities................................................................................. 23

51.......... Construction and related activities............................................................................... 23

Subdivision E—Withholding amounts for Subdivisions 12‑FC and 12‑G                           23

52.......... Seasonal Labour Mobility Program............................................................................. 23

53.......... Mining payments......................................................................................................... 23

Subdivision EA—Withholding amounts for Subdivision 12‑J                                                23

53A....... FHSS released amounts.............................................................................................. 23

Subdivision F—Declarations                                                                                                           24

54.......... When declarations cease to have effect........................................................................ 24

55.......... Certain Defence Force members taken to have given Medicare levy variation declaration       24

56.......... When new declaration to be given............................................................................... 24

Part 4—Other taxes (Chapter 3 in Schedule 1 to the Act)                                                    26

Division 1—Preliminary                                                                                                                      26

57.......... Interpretation............................................................................................................... 26

Division 2—Indirect taxes                                                                                                                  27

58.......... Refund scheme—specified kinds of entity.................................................................. 27

59.......... Refund scheme—specified kinds of acquisition.......................................................... 27

60.......... Refund scheme—conditions and limitations................................................................ 27

61.......... Refund scheme—period and manner........................................................................... 28

Division 3—Financial hardship                                                                                                        29

61A....... Financial hardship determination................................................................................. 29

Part 5—Generic rules (Chapter 4 in Schedule 1 to the Act)                                                30

Division 1—Preliminary                                                                                                                      30

62.......... Interpretation............................................................................................................... 30

Division 2—Estimates of liability                                                                                                    31

63.......... Requirements for statutory declaration or affidavit—prescribed individual for body corporate (Australian government agency)........................................................................................................................ 31

64.......... Requirements for statutory declaration or affidavit—prescribed individual for body politic     31

Division 3—Penalties for offences relating to tobacco                                                       32

64A....... Amount of duty to determine the amount of a penalty—tobacco leaf.......................... 32

Part 6—Administration (Chapter 5 in Schedule 1 to the Act)                                            33

Division 1—Preliminary                                                                                                                      33

65.......... Interpretation............................................................................................................... 33

Division 2—The Australian Taxation Office                                                                            34

Subdivision A—Powers to obtain information and evidence                                                  34

66.......... Expenses for certain attendances................................................................................. 34

Subdivision B—Confidentiality of taxpayer information                                                       34

67.......... Disclosure for law enforcement and related purposes—prescribed taskforce.............. 34

Division 3—Rulings                                                                                                                                35

68.......... Private rulings—amount of charge for valuations and reviews of valuations.............. 35

Division 4—Record‑keeping etc.                                                                                                     36

69.......... Reporting to Agriculture Department about Farm Management Deposits................... 36

Division 5—Verification system                                                                                                      37

70.......... Transaction reporting by purchasers............................................................................ 37

Part 7—Transitional matters                                                                                                                   39

Division 1—Transitional matters relating to the repeal of the Taxation Administration Regulations 1976                                                                                                                                                39

71.......... Things done under old regulations.............................................................................. 39

72.......... Approved forms.......................................................................................................... 39

Division 2—Transitional matters relating to the Treasury Laws Amendment (2018 Measures No. 1) Regulations 2018                                                                                                           40

73.......... Disclosure of information to the Black Economy Standing Taskforce and the Illicit Tobacco Taskforce 40

Division 3—Transitional matters relating to the Taxation Administration Amendment (Serious Financial Crime Taskforce) Regulations 2019                                                                   41

74.......... Disclosure of information to the Serious Financial Crime Taskforce.......................... 41

Schedule 1—Prescribed forms and notices                                                                  42

Form 1—Certificate under subsection 8ZG(2)                                                                             42

Form 2—Notice of election to have case tried in Supreme Court                                     43

Form 3—Departure prohibition order                                                                                              44

Schedule 2—Scale of expenses                                                                                                  45

1............ Scale of expenses for certain attendances.................................................................... 45

Endnotes                                                                                                                                                               46

Endnote 1—About the endnotes                                                                                                      46

Endnote 2—Abbreviation key                                                                                                          47

Endnote 3—Legislation history                                                                                                       48

Endnote 4—Amendment history                                                                                                     49


Part 1Preliminary

  

1  Name

                   This instrument is the Taxation Administration Regulations 2017.

3  Authority

                   This instrument is made under the Taxation Administration Act 1953.

5  Definitions

                   In this instrument:

Act means the Taxation Administration Act 1953.

assessable FHSS released amount has the meaning given by subsection 995‑1(1) of the Income Tax Assessment Act 1997.

double tax agreement means an agreement within the meaning of the International Tax Agreements Act 1953.

double tax country has the meaning given by section 43.

effective, in relation to an address, has the meaning given by subsection 15(3).

electronic communication has the same meaning as in the Electronic Transactions Act 1999.

foreign resident has the meaning given by subsection 995‑1(1) of the Income Tax Assessment Act 1997.

indirect tax zone has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999.

international agreement has the meaning given by subsection 58(3).

other party, to a double tax agreement or international tax sharing treaty, has the meaning given by section 45.

preferred address for service has the meaning given by subsection 15(1).

tax‑related liability has the meaning given by section 255‑1 in Schedule 1 to the Act.

tax sharing country has the meaning given by section 44.

top rate means the sum of:

                     (a)  the highest rate specified in the table in Part I of Schedule 7 to the Income Tax Rates Act 1986; and

                     (b)  the rate of levy specified in subsection 6(1) of the Medicare Levy Act 1986.

Part 2General administration (not relating to Schedule 1 to the Act)

Division 1Preliminary

6  Interpretation

                   To avoid doubt, paragraph 13(1)(b) of the Legislation Act 2003 has effect in relation to this Part.

Note:          The effect of paragraph 13(1)(b) of the Legislation Act 2003 is that expressions have the same meaning in this Part as in the Act (except Schedule 1) as in force from time to time.

Division 2Prosecutions and offences

7  Certificates—failure to comply with requirements of taxation laws

             (1)  In a prosecution of a person for an offence against subsection 8C(1), 8D(1) or 8D(2) of the Act in relation to the refusal or failure of the person to comply with a requirement made under or pursuant to a taxation law, a certificate in writing signed by the Commissioner, a Second Commissioner or a Deputy Commissioner certifying that the person, in the circumstances stated in the certificate, refused or failed, as the case may be, to do a matter or thing mentioned in subsection 8C(1), 8D(1) or 8D(2) is prima facie evidence of the facts stated in the certificate.

             (2)  In any proceedings, a document purporting to be a certificate given in accordance with this section and signed by a person authorised to sign the certificate is, unless the contrary is proved, taken to be such a certificate and to have been duly given.

8  Compliance with taxation law requirements—manner of serving orders

                   For the purposes of subsection 8G(2) of the Act, a copy of an order under subsection 8G(1) of the Act is served in the prescribed manner on the person to whom the order is addressed if the copy:

                     (a)  where the person is a natural person:

                              (i)  is delivered to the person personally; or

                             (ii)  is left at, or sent by pre‑paid post to, the address of the place of residence or business of the person last known to the person causing the copy to be served; or

                     (b)  where the person is a body corporate—is left at, or sent by pre‑paid post to, the head office, a registered office or a principal office of the body corporate.

9  Enforcement of orders for payment of amounts to Commissioner

             (1)  A certificate issued under subsection 8ZG(2) of the Act in relation to an order of a court for the payment of an amount to the Commissioner must be in accordance with Form 1 in Schedule 1, and must contain the following particulars:

                     (a)  the name and location of the court;

                     (b)  the date on which the order was made;

                     (c)  the provision of the taxation law under which the order was made;

                     (d)  the amount to be paid to the Commissioner;

                     (e)  the name and address of the person ordered to pay the amount.

             (2)  For the purposes of subsection 8ZG(3) of the Act:

                     (a)  a certificate issued under subsection 8ZG(2) of the Act is to be registered in a court by the proper officer of the court entering the particulars of the certificate in a book kept by the court for that purpose; and

                     (b)  if the order to which a certificate referred to in paragraph (a) relates was made more than 12 months before the day on which the registration of the certificate is sought, the registration of the certificate in a court is subject to the condition that leave to register the certificate has first been obtained from the court.

10  Prosecution of prescribed taxation offences—election to have cases tried in Supreme Court

                   For the purpose of subsection 8ZJ(5) of the Act, a person prosecuted for a prescribed taxation offence may elect to have the case tried in the Supreme Court of the State or Territory in which the prosecution was instituted by serving on the person who instituted the prosecution, and filing in the court in which the prosecution was instituted, a notice in accordance with Form 2 in Schedule 1.

Division 3Departure from Australia

11  Departure prohibition orders

             (1)  For the purposes of subsection 14S(1) of the Act, Form 3 in Schedule 1 is prescribed.

             (2)  For the purposes of paragraph 14S(4)(a) of the Act, a person is informed, as prescribed, of the making of a departure prohibition order if a copy of the order is served in accordance with section 14.

             (3)  For the purposes of subparagraph 14S(4)(b)(ii) of the Act, each of the following persons is prescribed:

                     (a)  the Comptroller‑General of Customs (within the meaning of the Customs Act 1901);

                     (b)  the Commissioner of Police referred to in section 6 of the Australian Federal Police Act 1979;

                     (c)  the Secretary of the Department administered by the Minister administering the Diplomatic Privileges and Immunities Act 1967.

12  Revocation and variation of departure prohibition orders

             (1)  For the purposes of paragraph 14T(4)(a) of the Act, notification of the revocation or variation of a departure prohibition order is served, as prescribed, on a person if a document containing the particulars of the revocation or variation is served in accordance with section 14.

             (2)  For the purposes of subsection 14T(5) of the Act, notification of a decision referred to in that subsection is served, as prescribed, on a person if a document containing the particulars of the decision is served in accordance with section 14.

13  Departure authorisation certificates

             (1)  For the purposes of subsection 14U(3) of the Act, a copy of a departure authorisation certificate is served, as prescribed, on a person if the copy is served in accordance with section 14.

             (2)  For the purposes of subsection 14U(4) of the Act, notification of a decision referred to in that subsection is served, as prescribed, on a person if a document containing particulars of the decision is served in accordance with section 14.

Division 4Service of documents

14  Service of documents

             (1)  The Commissioner may serve a document on a person for the purposes of the taxation laws by:

                     (a)  if the person has given a preferred address for service that is a physical address—leaving a copy of the document at that address; or

                     (b)  if the person has given a preferred address for service that is a postal address—posting a copy of the document to that address; or

                     (c)  if the person has given a preferred address for service that is an electronic address:

                              (i)  sending an electronic copy of the document to that address; or

                             (ii)  sending an electronic communication to that address that notifies the person that a copy of the document is available to be retrieved by electronic means.

             (2)  This section does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, that deals with the service of documents.

Note:          For an example of another law that deals with the service of documents, see sections 28A and 29 of the Acts Interpretation Act 1901.

15  Preferred address for service

             (1)  An address in Australia used by or associated with a person is a preferred address for service of the person if:

                     (a)  it is of one of the following kinds of address:

                              (i)  a physical address;

                             (ii)  a postal address;

                            (iii)  an electronic address; and

Note 1:    An address may be both a physical address and a postal address (for example a street address).

Note 2:    The following are examples of an electronic address:

(a)    an email address;

(b)    a secure website that the person can access to obtain a document.

                     (b)  the person has given it to the Commissioner as an address for the service of documents by the Commissioner under a taxation law; and

                     (c)  the designation of the address or other circumstances indicate that the person wishes the address to be used by the Commissioner in preference to other addresses of the person, whether generally or in specific circumstances.

             (2)  The designation of an address in a form or correspondence as an ‘address for service’, a ‘preferred address’, an ‘address for correspondence’ or similar term satisfies paragraph (1)(c).

             (3)  An address is effective if the person to whom the address relates:

                     (a)  will receive documents delivered to the address; or

                     (b)  will receive electronic communications sent to the address.

16  Requirement to maintain a preferred address for service

                   If a person is required to give the Commissioner a preferred address for service for a purpose (for example, by the approved form for a return), the person must subsequently maintain a preferred address for service for the purpose.

17  Change or withdrawal of preferred address for service

             (1)  A person may change or withdraw a preferred address for service only by giving the Commissioner notice in the approved form.

             (2)  If the person is required to maintain a preferred address for service under a taxation law, the person may withdraw a preferred address for service only if another effective preferred address for service that is a postal address remains.

             (3)  If the person is required to maintain a preferred address for service under a taxation law, and a preferred address for service becomes ineffective, the person must change or withdraw the ineffective address within 28 days.

18  Substitute preferred address for service

             (1)  This section applies if:

                     (a)  a person has not given the Commissioner a preferred address for service; or

                     (b)  the Commissioner is satisfied that none of a person’s preferred addresses for service is effective.

             (2)  If the Commissioner has a record of another address relating to the person (whether or not a physical address), and it appears to the Commissioner that it is likely that the address is effective, the Commissioner may treat that address as the person’s preferred address for service for all purposes under the taxation laws.

19  Failure to notify change of address

                   A person whose preferred address for service is no longer effective, and who has not changed or withdrawn the address under section 17, may not plead the fact that the address was not effective as a defence in any proceedings (whether civil or criminal) instituted against the person under a taxation law.

Division 5Miscellaneous

20  Payments out of Consolidated Revenue Fund—prescribed provisions

                   For the purposes of sub‑subparagraph 16(2)(a)(i)(B) of the Act, subsection 353‑10(3) in Schedule 1 to the Act is prescribed.

21  Payment of tax‑related liabilities

             (1)  A person who pays a tax‑related liability must pay the liability in Australian currency.

             (2)  The person must pay the tax‑related liability using a method approved by the Commissioner and in accordance with any instructions provided by the Commissioner.

             (3)  The person must pay the amount of the tax‑related liability in a single payment unless the Commissioner agrees that the person may make more than one payment.

22  When receipts are to be given

                   The Commissioner is not required to give a receipt to a person who pays a tax‑related liability unless the person asks for the receipt.

23  Payment of postage on mail to Commissioner

             (1)  The full amount of postage on an item addressed to the Commissioner in relation to a matter must be paid by the sender before the letter is sent.

             (2)  If:

                     (a)  the Commissioner contributes to the cost of postage of an unstamped, or insufficiently stamped, item; and

                     (b)  the Commissioner receives a payment in relation to a tax‑related liability;

the Commissioner may deduct the amount of the contribution from the payment.

             (3)  The amount of the payment remaining after deduction of the Commissioner’s contribution is to be credited towards payment of the tax‑related liability.

24  Presumption as to signatures

             (1)  A document bearing the name (however produced) of a person who is, or was at any time, the Commissioner, a Second Commissioner, a Deputy Commissioner or a delegate of the Commissioner in the place of the person’s signature is taken to have been duly signed by the person, unless it is proved that the document was issued without authority.

             (2)  A document given under a taxation law that purports to be signed by the authority of the Commissioner is as effective for all purposes under the taxation laws as if it had been signed personally by the Commissioner.

             (3)  Any notice that, under a taxation law, is to be given to an entity by the Commissioner may be given to the entity by an officer who is authorised by the Commissioner to do so.

Part 3Income tax (Chapter 2 in Schedule 1 to the Act)

Division 1Preliminary

25  Interpretation

                   Paragraph 13(1)(b) of the Legislation Act 2003 has effect in relation to this Part as if the reference in that paragraph to the enabling legislation was a reference to Schedule 1 to the Act.

Note 1:       The effect of modifying paragraph 13(1)(b) of the Legislation Act 2003 is that expressions have the same meaning in this Part as in Schedule 1 to the Act as in force from time to time.

Note 2:       Under section 3AA of the Act, an expression has the same meaning in Schedule 1 as in the Income Tax Assessment Act 1997.

26  Rounding amounts for PAYG withholding

             (1)  This section applies to:

                     (a)  the amount of a payment that is to be dealt with under a provision of Division 2 or 3 of this Part; and

                     (b)  an amount that has been worked out under a provision of Division 2 or 3 of this Part.

             (2)  If the amount is less than $1, disregard the amount.

             (3)  If the amount is more than $1 and includes a number of cents that is less than a whole dollar, disregard the number of cents by which the amount exceeds the whole dollar.

Division 2Pay as you go (PAYG) withholding—Payments from which amounts must be withheld

Subdivision APayments for work or services

27  Payment under labour hire arrangement, or specified by regulations

                   For the purposes of subsection 12‑60(2) in Schedule 1 to the Act, payments of the following kinds are prescribed:

                     (a)  payments for tutorial services that are provided to improve the education of Indigenous people and are financially supported (directly or indirectly) by the Commonwealth;

                     (b)  payments for translation and interpretation services provided for the Translating and Interpreting Service (also known as TIS) conducted by the Department administered by the Minister administering the Migration Act 1958;

                     (c)  payments under a contract to an individual engaged as a performing artist to perform in an activity in which the individual:

                              (i)  endorses or promotes goods or services; or

                             (ii)  appears or participates in an advertisement;

                            unless the individual is engaged primarily because he or she is a sportsperson;

                     (d)  payments of green army allowance (within the meaning of the Social Security Act 1991).

Subdivision BPayments where TFN not quoted

28  Thresholds for withholding on investment payments

             (1)  This section is made for the purposes of section 12‑170 in Schedule 1 to the Act.

Investments other than public company shares, investors aged under 16

             (2)  An amount is not required to be withheld from a payment under section 12‑140 or 12‑145 in Schedule 1 to the Act if:

                     (a)  the payment is not a payment in relation to an investment mentioned in item 6 (shares in a public company) of the table in subsection 202D(1) of the Income Tax Assessment Act 1936; and

                     (b)  the payment is to be made to an investor:

                              (i)  who had not turned 16 on the 1 January before the date on which the payment was made; and

                             (ii)  about whose age the investment body is aware; and

                     (c)  the amount of the payment is less than:

                              (i)  in the case of a payment in respect of the whole of a financial year—$420; and

                             (ii)  in any other case—an amount worked out using the formula:

                                  

                                   where:

                                   number of days in period is the number of days in the period in the financial year in respect of which the amount is payable.

                                   number of days in year is the number of days in the financial year.

Interest‑bearing investments

             (3)  An amount is not required to be withheld from a payment under section 12‑140 or 12‑145 in Schedule 1 to the Act if:

                     (a)  the payment is not a payment to which subsection (2) applies; and

                     (b)  the payment is in respect of an investment of a kind mentioned in item 1 or 2 of the table in subsection 202D(1) of the Income Tax Assessment Act 1936; and

                     (c)  the amount of the payment is less than:

                              (i)  in the case of a payment in respect of the whole of a financial year—$120; and

                             (ii)  in any other case—the amount worked out using the formula:

                                  

                                   where:

                                   number of days in period is the number of days in the period in the financial year in respect of which the amount is payable.

                                   number of days in year is the number of days in the financial year.

29  Distributions of income of closely held trusts—prescribed trusts

             (1)  For the purposes of subparagraph 12‑175(1)(c)(iii) in Schedule 1 to the Act, the following trusts are prescribed:

                     (a)  a discretionary mutual fund (within the meaning of subsections 5(5) and (6) of the Financial Sector (Collection of Data) Act 2001);

                     (b)  a trust that is a fund that provides professional indemnity insurance or insurance‑like cover to a legal practitioner, including a fund established under legislation or by a State or Territory law society to provide professional indemnity cover to its members;

                     (c)  an employee share trust for an employee share scheme;

                     (d)  a trust covered by subsection (2).

Law practice trusts

             (2)  This subsection covers a trust that is:

                     (a)  created and maintained for the purposes of, or in connection with:

                              (i)  the provision of legal services by a duly qualified legal practitioner; or

                             (ii)  the deposit of money of a kind described in column 1 of item 4 of the table in subsection 202D(1) of the Income Tax Assessment Act 1936; and

                     (b)  regulated by a State or Territory law for the regulation of legal practices or legal services.

30  Threshold for withholding on net income of closely held trusts

             (1)  This section is made for the purposes of section 12‑185 in Schedule 1 to the Act.

             (2)  An amount is not required to be withheld under section 12‑175 or 12‑180 in Schedule 1 to the Act from a payment (including a payment mentioned in subsection 12‑180(3)) if the payment is less than:

                     (a)  if the payment is for the whole of a financial year—$120; or

                     (b)  if the payment is for part of a financial year—the amount worked out using the formula:

                           

                            where:

                            number of days in period is the number of days in the period in the financial year in respect of which the amount is payable.

                            number of days in year is the number of days in the financial year.

Subdivision CPayments to foreign residents

31  Kinds of payments—gaming junkets

             (1)  For the purposes of paragraph 12‑315(1)(b) in Schedule 1 to the Act, a payment for operating or promoting an arrangement covered by subsection (2) is prescribed.

Note:          For the amount to be withheld from the payment, see section 49.

Gaming junkets

             (2)  This subsection covers an arrangement for the promotion or organising of gaming in one or more casinos, whether or not any of the casinos is required by an agreement to make a payment, by which:

                     (a)  an individual or a group of people comes to Australia for the purpose of gaming at particular casinos; and

                     (b)  the entity receives payment, from one or more of the casinos, that is:

                              (i)  a reward made in relation to arranging for the individual or the people to go to a casino for gaming; or

                             (ii)  a commission based on the gaming or losses of the individual or group of people.

             (3)  For the purposes of subsection (2), gaming means playing a game of chance or a game that is partly a game of chance and partly a game of skill.

32  Kinds of payments—entertainment or sports activities

             (1)  For the purposes of paragraph 12‑315(1)(b) in Schedule 1 to the Act, a payment to an entity for entertainment or sports activities is prescribed.

Examples:  Appearance fees, award for player of the series, bonuses, endorsement fees, expense reimbursements, match payments, non‑cash prizes, performance fees, preparation fees, prize money, promotional fees, sponsorship.

Note:          For the amount to be withheld from the payment, see section 50.

             (2)  For the purposes of subsection (1), the activities may include giving a speech or a sports commentary.

Entertainment or sports activities

             (3)  For the purposes of subsection (1), entertainment or sports activities means the activities of:

                     (a)  a performing artist or a sportsperson; or

                     (b)  support staff relating to the activity.

33  Kinds of payments—construction and related activities

             (1)  For the purposes of paragraph 12‑315(1)(b) in Schedule 1 to the Act, a payment made under a contract entered into after 30 June 2004 (including payments to subcontractors) for works or related activities is prescribed.

Note:          For the amount to be withheld from the payment, see section 51.

Works

             (2)  For the purposes of subsection (1), works includes the construction, installation and upgrade of buildings, plant and fixtures.

Examples:  Dam, electricity links, mine site development, natural gas field development, natural resource infrastructure, oilfield development, pipeline, power generation infrastructure, railway or road, residential building, resort development, retail or commercial development, upgrading airport, upgrading telecommunications equipment, water treatment plant.

Related activities

             (3)  For the purposes of subsection (1), related activities includes activities associated with the construction, installation and upgrading of buildings, plant and fixtures.

Examples:  Administration, assembly, de‑commissioning plant, design, commissioning and operation of facilities, costing, engineering, erection, fabrication, hook‑up, installation, project management, site management, supervision and provision of personnel, supply of plant and equipment, warranty repairs.

Subdivision DDistributions of withholding MIT income

34  Information exchange countries

             (1)  For the purposes of subsection 12‑385(4) in Schedule 1 to the Act, a country mentioned in an item of the table in subsection (2) is specified as an information exchange country with effect from the date specified in the item.

             (2)  A reference to a country in the table is a reference to the country to the extent to which it is described in an agreement mentioned in:

                     (a)  the definition of agreement in subsection 3(1) of the International Tax Agreements Act 1953; or

                     (b)  the definition of international agreement in subsection 23(4) of the International Tax Agreements Act 1953.

 

Information exchange countries

Item

Country

Date of effect

1

Argentina

1 July 2008

2

Bermuda

1 July 2008

3

Canada

1 July 2008

4

China

1 July 2008

5

Czech Republic

1 July 2008

6

Denmark

1 July 2008

7

Fiji

1 July 2008

8

Finland

1 July 2008

9

France

1 July 2008

10

Germany

1 July 2008

11

Hungary

1 July 2008

12

India

1 July 2008

13

Indonesia

1 July 2008

14

Ireland

1 July 2008

15

Italy

1 July 2008

16

Japan

1 July 2008

17

Kiribati

1 July 2008

18

Malta

1 July 2008

19

Mexico

1 July 2008

20

Netherlands

1 July 2008

21

Netherlands Antilles

1 July 2008

22

New Zealand

1 July 2008

23

Norway

1 July 2008

24

Papua New Guinea

1 July 2008

25

Poland

1 July 2008

26

Romania

1 July 2008

27

Russia

1 July 2008

28

Slovakia

1 July 2008

29

South Africa

1 July 2008

30

Spain

1 July 2008

31

Sri Lanka

1 July 2008

32

Sweden

1 July 2008

33

Taipei

1 July 2008

34

Thailand

1 July 2008

35

United Kingdom

1 July 2008

36

United States of America

1 July 2008

37

Vietnam

1 July 2008

 

 

 

38

Antigua and Barbuda

1 July 2010

39

British Virgin Islands

1 July 2010

40

Isle of Man

1 July 2010

41

Jersey

1 July 2010

 

 

 

42

Gibraltar

1 January 2011

43

Guernsey

1 January 2011

 

 

 

44

Belize

1 July 2011

45

Cayman Islands

1 July 2011

46

The Commonwealth of the Bahamas

1 July 2011

47

Principality of Monaco

1 July 2011

48

The Republic of San Marino

1 July 2011

49

The Republic of Singapore

1 July 2011

50

Saint Kitts and Nevis

1 July 2011

51

Saint Vincent and the Grenadines

1 July 2011

 

 

 

52

Anguilla

1 January 2012

53

Aruba

1 January 2012

54

Belgium

1 January 2012

55

Malaysia

1 January 2012

56

Turks and Caicos Islands

1 January 2012

 

 

 

57

Cook Islands

1 July 2012

58

Macau

1 July 2012

59

Mauritius

1 July 2012

60

Republic of Korea

1 July 2012

 

 

 

61

Albania

1 January 2019

62

Andorra

1 January 2019

63

Austria

1 January 2019

64

Azerbaijan

1 January 2019

65

Bahrain

1 January 2019

66

Barbados

1 January 2019

67

Brazil

1 January 2019

68

Brunei

1 January 2019

69

Bulgaria

1 January 2019

70

Cameroon

1 January 2019

71

Chile

1 January 2019

72

Colombia

1 January 2019

73

Costa Rica

1 January 2019

74

Croatia

1 January 2019

75

Cyprus

1 January 2019

76

Dominica

1 January 2019

77

Estonia

1 January 2019

78

Faroe Islands

1 January 2019

79

Georgia

1 January 2019

80

Ghana

1 January 2019

81

Greece

1 January 2019

82

Greenland

1 January 2019

83

Grenada

1 January 2019

84

Guatemala

1 January 2019

85

Iceland

1 January 2019

86

Israel

1 January 2019

87

Kazakhstan

1 January 2019

88

Kenya

1 January 2019

89

Latvia

1 January 2019

90

Liberia

1 January 2019

91

Liechtenstein

1 January 2019

92

Lithuania

1 January 2019

93

Luxembourg

1 January 2019

94

Marshall Islands

1 January 2019

95

Moldova

1 January 2019

96

Montserrat

1 January 2019

97

Nigeria

1 January 2019

98

Niue

1 January 2019

99

Philippines

1 January 2019

100

Portugal

1 January 2019

101

Saint Lucia

1 January 2019

102

Samoa

1 January 2019

103

Saudi Arabia

1 January 2019

104

Senegal

1 January 2019

105

Seychelles

1 January 2019

106

Sint Maarten

1 January 2019

107

Slovenia

1 January 2019

108

Switzerland

1 January 2019

109

Tunisia

1 January 2019

110

Turkey

1 January 2019

111

Uganda

1 January 2019

112

Ukraine

1 January 2019

113

Uruguay

1 January 2019

114

Vanuatu

1 January 2019

Division 3Pay as you go (PAYG) withholding—Working out the amount to withhold

Subdivision AWithholding amounts for Subdivision 12‑E

35  Part VA investment payments

             (1)  The amount to be withheld under section 12‑140 or 12‑145 in Schedule 1 to the Act from a payment made in respect of a Part VA investment is an amount equal to the product of the top rate and the amount of the payment.

Note:          For the thresholds for withholding, see section 28.

             (2)  However, subsection (3) applies if:

                     (a)  the payment from which that amount is to be withheld is a franked distribution; and

                     (b)  the franking percentage is less than 100%.

             (3)  The amount to be withheld from the payment is the product of the unfranked part of the distribution and the top rate.

36  Closely held trust—distribution of income of closely held trust

                   The amount to be withheld by a trustee of a closely held trust from a distribution to a beneficiary of the trust under subsection 12‑175(2) in Schedule 1 to the Act is the product of the amount of the distribution to be made to the beneficiary and the top rate.

Note 1:       The amount of a distribution in a financial year is affected by the operation of subsection 12‑175(4) in Schedule 1 to the Act.

Note 2:       For the threshold for withholding, see section 30.

37  Closely held trust—beneficiary is presently entitled to income

                   The amount to be withheld by a trustee of a closely held trust from a beneficiary’s share of the net income of the trust under subsection 12‑180(2) in Schedule 1 to the Act, is the product of the amount of the beneficiary’s share of the net income of the trust and the top rate.

Note 1:       The amount of an entitlement in a financial year is affected by the operation of subsection 12‑180(4) in Schedule 1 to the Act.

Note 2:       For the threshold for withholding, see section 30.

38  Payment for supply where ABNs not quoted

             (1)  This section applies to a payment to which subsection 12‑190(1) in Schedule 1 to the Act applies.

             (2)  The amount to be withheld from the payment is an amount equal to the product of the top rate and the amount of the payment.

Subdivision BWithholding amounts for Subdivision 12‑F

39  Application to a part of a dividend

                   This Subdivision applies to a part of a dividend in the same way as to a dividend.

40  Dividend payments

             (1)  The amount to be withheld from a dividend to which section 12‑210 in Schedule 1 to the Act applies is:

                     (a)  if an address mentioned in paragraph 12‑210(a), or a place mentioned in paragraph 12‑210(b), in Schedule 1 to the Act is in a tax sharing country and the relevant international tax sharing treaty applies to the dividend—an amount calculated at the rate provided for in the treaty; and

                     (b)  if paragraph (a) does not apply, but that address or place is in a double tax country—an amount calculated at the rate provided for in the relevant double tax agreement; and

                     (c)  if paragraphs (a) and (b) do not apply—an amount equal to 30% of the amount of the dividend.

             (2)  The amount to be withheld from a dividend to which section 12‑215 in Schedule 1 to the Act applies is:

                     (a)  if a foreign resident mentioned in paragraph 12‑215(1)(b) in Schedule 1 to the Act is a resident of a tax sharing country and the relevant international tax sharing treaty applies to the dividend—an amount calculated at the rate provided for in the treaty; and

                     (b)  if paragraph (a) does not apply, but that foreign resident is a resident of a double tax country—an amount calculated at the rate provided for in the relevant double tax agreement; and

                     (c)  if paragraphs (a) and (b) do not apply—an amount equal to 30% of the amount of the dividend.

             (3)  However, paragraphs (1)(b) and (2)(b) do not apply in relation to a dividend that is:

                     (a)  paid to a resident of the United States of America; and

                     (b)  included in a class of dividends that is exempt from tax under the law of that country.

41  Interest payments

                   The amount to be withheld under section 12‑245, 12‑250 or 12‑255 in Schedule 1 to the Act from interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936) is an amount equal to 10% of the amount of the interest.

42  Royalty payments

                   The amount to be withheld under section 12‑280 or 12‑285 in Schedule 1 to the Act from a royalty is:

                     (a)  if the person to whom the royalty is paid, or a foreign resident mentioned in paragraph 12‑285(1)(b) in that Schedule, is a resident of the other party to an international tax sharing treaty that applies to the royalty—the amount calculated at the rate provided for in the treaty; and

                     (b)  if paragraph (a) does not apply, but the person to whom the royalty is paid, or a foreign resident mentioned in paragraph 12‑285(1)(b) in Schedule 1 to the Act, is a resident of the other party to a double tax agreement—the amount calculated at the rate provided for in the agreement; and

                     (c)  if paragraphs (a) and (b) do not apply, but the person to whom the royalty is paid, or a foreign resident mentioned in paragraph 12‑285(1)(b) in that Schedule, is a resident of a country other than Australia—30% of the amount of the royalty; and

                     (d)  if the person to whom the royalty is paid is a resident of Australia—30% of the amount of the royalty.

43  Meaning of double tax country

             (1)  If a double tax agreement includes provisions that have the force of law because of the International Tax Agreements Act 1953, and relate to a withholding payment:

                     (a)  on income derived by a non‑resident on or after a particular day; or

                     (b)  in respect of dividends derived on or after a particular day;

the other party to the agreement is a double tax country on and after that day.

             (2)  If a double tax agreement, not being an agreement to which subsection (1) applies, includes a provision that has the force of law because of the International Tax Agreements Act 1953, and limits the amount of Australian tax payable in respect of a dividend, the other party to the agreement is a double tax country.

             (3)  The Netherlands, as defined in Article 3 of the Netherlands agreement referred to in the International Tax Agreements Act 1953, is a double tax country for this Division.

44  Meaning of tax sharing country

             (1)  If an international tax sharing treaty includes provisions that have the force of law because of an Act, and relate to withholding payment:

                     (a)  on income derived by a non‑resident on or after a particular day; or

                     (b)  in respect of dividends derived on or after a particular day;

the other party to the treaty is a tax sharing country on and after that day.

             (2)  If an international tax sharing treaty, not being a treaty to which subsection (1) applies, includes a provision that has the force of law because of an Act, and limits the amount of Australian tax payable in respect of a dividend, the other party to the treaty is a tax sharing country.

45  Meaning of other party

The other party to a double tax agreement or international tax sharing treaty is:

                     (a)  if the agreement or treaty was made between Australia and another country—the other country; or

                     (b)  if the agreement or treaty was made between the government of Australia and the government of another country—the other country.

Subdivision CWithholding amounts for Subdivisions 12‑FA and 12‑FAA

46  Departing Australia superannuation payments

                   The amount to be withheld under section 12‑305 in Schedule 1 to the Act from a departing Australia superannuation payment is the amount of tax payable on the payment, worked out under section 5 of the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007.

47  Excess untaxed roll‑over amounts

                   The amount to be withheld from an excess untaxed roll‑over amount under section 12‑312 in Schedule 1 to the Act is the amount of tax payable on the excess untaxed roll‑over amount, worked out under section 5 of the Superannuation (Excess Untaxed Roll‑over Amounts Tax) Act 2007.

Subdivision DWithholding amounts for Subdivision 12‑FB

48  Limits on amounts withheld under this Subdivision

             (1)  This section applies to an amount that is required by Subdivision 12‑FB in Schedule 1 to the Act (including regulations made for the purposes of that Subdivision) to be withheld from a payment if any amounts are already withheld under that Subdivision from the payment.

             (2)  The amount to be withheld is reduced by the amounts already withheld from the payment.

Example:    A payer is required to withhold an amount under section 12‑315 in Schedule 1 to the Act from a payment made to a foreign resident. However, if the foreign resident has an agent who is an intermediary, the intermediary is required to withhold an amount under section 12‑317 in that Schedule from that payment. The amount to be withheld under section 12‑317 in that Schedule is reduced by the amount already withheld under section 12‑315 in that Schedule.

49  Gaming junkets

             (1)  This section applies to an amount that is required by section 12‑315 in Schedule 1 to the Act to be withheld from a payment prescribed by section 31.

             (2)  The amount to be withheld from the payment is an amount equal to 3% of the total payment.

50  Entertainment or sports activities

             (1)  This section applies to an amount that is required by section 12‑315 in Schedule 1 to the Act to be withheld from a payment prescribed by section 32.

             (2)  The amount to be withheld from the payment is:

                     (a)  if the payment is made to a company—the amount worked out by applying to the payment, as if the amount of the payment was the taxable income of the company, the rates mentioned in section 23 of the Income Tax Rates Act 1986; or

                     (b)  if the payment is made to an individual—the amount worked out by applying to the payment, as if the amount of the payment was the taxable income of the individual, the rates mentioned in Part II of Schedule 7 of the Income Tax Rates Act 1986.

51  Construction and related activities

             (1)  This section applies to an amount that is required by section 12‑315 in Schedule 1 to the Act to be withheld from a payment prescribed by section 33.

             (2)  The amount to be withheld from the payment is an amount equal to 5% of each payment made under the contract mentioned in subsection 33(1).

Subdivision EWithholding amounts for Subdivisions 12‑FC and 12‑G

52  Seasonal Labour Mobility Program

                   The amount to be withheld from a payment of salary, wages, commission, bonuses or allowances under section 12‑319A in Schedule 1 to the Act is an amount equal to 15% of the amount of the payment.

Note:          Section 12‑319A relates to payments made to certain visa holders as employees of Approved Employers under the Seasonal Labour Mobility Program.

53  Mining payments

                   The amount to be withheld under subsection 12‑320(1) in Schedule 1 to the Act from a mining payment is an amount equal to 4% of the amount of the payment.

Subdivision EAWithholding amounts for Subdivision 12‑J

53A  FHSS released amounts

             (1)  The amount to be withheld under section 12‑460 in Schedule 1 to the Act from the FHSS released amounts paid in respect of an individual is:

                     (a)  the amount of tax that the Commissioner estimates will be payable by the individual in relation to the individual’s assessable FHSS released amount for an income year; or

                     (b)  if the Commissioner is unable to make an estimate under paragraph (a)—17% of the individual’s assessable FHSS released amount for an income year.

             (2)  For the purposes of this section, the Commissioner may have regard to any information that the Commissioner considers relevant.

Subdivision FDeclarations

54  When declarations cease to have effect

             (1)  If an individual who has given a declaration to an entity under subsection 15‑50(1) in Schedule 1 to the Act directs the entity in writing to disregard the declaration, the declaration ceases to be in effect.

             (2)  If an individual who has given a declaration (the earlier declaration) to an entity under subsection 15‑50(1) in Schedule 1 to the Act about a matter, later gives another declaration about the matter to the entity, the earlier declaration ceases to be in effect.

             (3)  If an individual who has given a declaration to an entity under subsection 15‑50(1) in Schedule 1 to the Act permanently ceases to receive withholding payments covered by Subdivision 12‑B, 12‑C or 12‑D in that Schedule from the entity, the declaration ceases to be in effect.

             (4)  If an individual has given a declaration to an entity under subsection 15‑50(1) or (3) in Schedule 1 to the Act, the declaration ceases to be in effect if a TFN declaration made by the individual in relation to the entity ceases to have effect because of subsection 202CA(1B) or (1C) of the Income Tax Assessment Act 1936.

55  Certain Defence Force members taken to have given Medicare levy variation declaration

             (1)  This section applies to an individual:

                     (a)  who, on a particular day, is entitled (because of being a member of the Defence Force) to free medical treatment for any incapacity, disease or disabling condition; and

                     (b)  who:

                              (i)  has not given, as a member of the Defence Force, a declaration under subsection 15‑50(1) in Schedule 1 to the Act to the effect that the individual is entitled to full relief from the Medicare levy; and

                             (ii)  has not previously been taken to have given a declaration under subsection (2).

             (2)  On that day, the individual is taken to have given, as a member of the Defence Force, a declaration under subsection 15‑50(1) in Schedule 1 to the Act to the effect that the individual is entitled to relief from 50% of the Medicare levy.

56  When new declaration to be given

             (1)  An individual to whom subsection (2) or (3) applies must give a new declaration in the approved form to the entity mentioned in that subsection.

             (2)  This subsection applies to an individual if:

                     (a)  the individual gives to an entity a declaration under subsection 15‑50(1) or (3) in Schedule 1 to the Act about a matter; and

                     (b)  the individual’s circumstances change in relation to the matter.

             (3)  This subsection applies to an individual who:

                     (a)  gives a TFN declaration to an entity expressing a wish to reduce the amount withheld to correspond with the tax‑free threshold (within the meaning of the Income Tax Rates Act 1986); and

                     (b)  becomes a foreign resident.

Part 4Other taxes (Chapter 3 in Schedule 1 to the Act)

Division 1Preliminary

57  Interpretation

                   Paragraph 13(1)(b) of the Legislation Act 2003 has effect in relation to this Part as if the reference in that paragraph to the enabling legislation was a reference to Schedule 1 to the Act.

Note 1:       The effect of modifying paragraph 13(1)(b) of the Legislation Act 2003 is that expressions have the same meaning in this Part as in Schedule 1 to the Act as in force from time to time.

Note 2:       Under section 3AA of the Act, an expression has the same meaning in Schedule 1 as in the Income Tax Assessment Act 1997.

Division 2Indirect taxes

58  Refund scheme—specified kinds of entity

             (1)  For the purposes of paragraph 105‑125(1)(a) in Schedule 1 to the Act, an entity of the kind mentioned in subsection (2) is specified.

             (2)  For the purposes of subsection (1), an entity must be an entity that is the subject of an international agreement that provides that the Commonwealth is under an obligation to grant indirect tax concessions in relation to the entity.

Example:    The Australian‑American Educational Foundation, which was established under the Agreement between the Government of the Commonwealth of Australia and the Government of the United States of America for the Financing of Certain Educational and Cultural Exchange Programmes.

                   The text of the agreement is set out in Australian Treaty Series [1964] ATS 15. In 2017, the text of the agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

             (3)  International agreement means:

                     (a)  a convention or treaty to which Australia is a party; or

                     (b)  an agreement between Australia and a foreign country;

and includes, for example, an agreement, arrangement or undertaking between a Minister and an official or authority of a foreign country.

59  Refund scheme—specified kinds of acquisition

             (1)  For the purposes of paragraph 105‑125(1)(b) in Schedule 1 to the Act, an acquisition, by an entity mentioned in section 58, of the kind mentioned in subsection (2) is specified.

             (2)  The acquisition must be:

                     (a)  an acquisition that is permitted by the international agreement relevant to the entity; and

                     (b)  an acquisition of:

                              (i)  a thing the supply of which is a taxable supply; or

                             (ii)  wine on which the entity has borne wine tax (within the meaning of the A New Tax System (Wine Equalisation Tax) Act 1999).

60  Refund scheme—conditions and limitations

             (1)  This section is made for the purposes of subsection 105‑125(2) in Schedule 1 to the Act.

             (2)  An entity of the kind specified in section 58 is entitled to a refund of an amount of indirect tax paid on an acquisition of a kind specified in section 59 if the entity has agreed, in writing, to repay the amount worked out under subsection (3) to the Commissioner in any of the following circumstances:

                     (a)  if the entity purchased a car, and agreed to retain the car for 3 years after purchasing the car—the entity disposes of the car to an entity (other than an entity of a kind specified by section 58) before the end of 3 years after the first entity purchased the car;

                     (b)  if the entity purchased goods (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999) other than a car—the entity disposes of the goods (other than to an entity of a kind specified by section 58) in the indirect tax zone or an External Territory before the end of 2 years after the entity purchased the goods;

                     (c)  if the entity acquired a service—the entity assigns the entity’s entitlement to the service to another entity (other than an entity of a kind specified by section 58) in the indirect tax zone or an External Territory.

             (3)  The amount to be repaid is:

                     (a)  for an acquisition to which paragraph (2)(a) or (b) applies—the proportion of the amount of indirect tax paid for the acquisition that is equal to the proportion of the period mentioned in the paragraph remaining after the entity disposes of the acquisition; and

                     (b)  for an acquisition to which paragraph (2)(c) applies—the amount of indirect tax paid for the acquisition.

             (4)  The amount of indirect tax to be refunded to an applicant is limited by the terms of the international agreement to which the entity is subject.

             (5)  The entity must use the taxable supply acquired by the entity in accordance with the terms of the international agreement to which the entity is subject.

61  Refund scheme—period and manner

             (1)  This section is made for the purposes of subsection 105‑125(2) in Schedule 1 to the Act.

             (2)  An application for a refund:

                     (a)  must be signed by the applicant; and

                     (b)  must be sent:

                              (i)  to the Australian Taxation Office; and

                             (ii)  with the tax invoice for the acquisition; and

                     (c)  in the case of an acquisition of a car—may be sent any time after the acquisition; and

                     (d)  in the case of an acquisition that is not a car—may be:

                              (i)  sent with another claim; or

                             (ii)  sent at least 3 months after another claim made by the entity.

             (3)  The amount to be refunded is to be paid to a single recipient or account nominated by the entity.

Division 3Financial hardship

61A  Financial hardship determination

             (1)  For the purposes of subsection 138‑10(2B) in Schedule 1 to the Act, the Commissioner is to determine that an individual has suffered a financial hardship if, and only if:

                     (a)  the individual requests the Commissioner to make such a determination at the time when the individual requests a first home super saver determination; and

                     (b)  the individual has previously held one or more property interests specified in paragraph 138‑10(2)(a) in Schedule 1 to the Act; and

                     (c)  the Commissioner is satisfied that:

                              (i)  the individual suffered a financial hardship that resulted in the individual ceasing to hold any such property interests held at the time of the hardship; and

                             (ii)  the individual has not held any other such property interests since that time.

             (2)  In determining whether to make a determination that an individual has suffered a financial hardship, the Commissioner may have regard to the information provided by the individual and any other information that the Commissioner considers relevant.

Part 5Generic rules (Chapter 4 in Schedule 1 to the Act)

Division 1Preliminary

62  Interpretation

                   Paragraph 13(1)(b) of the Legislation Act 2003 has effect in relation to this Part as if the reference in that paragraph to the enabling legislation was a reference to Schedule 1 to the Act.

Note 1:       The effect of modifying paragraph 13(1)(b) of the Legislation Act 2003 is that expressions have the same meaning in this Part as in Schedule 1 to the Act as in force from time to time.

Note 2:       Under section 3AA of the Act, an expression has the same meaning in Schedule 1 as in the Income Tax Assessment Act 1997.

Division 2Estimates of liability

63  Requirements for statutory declaration or affidavit—prescribed individual for body corporate (Australian government agency)

             (1)  For the purposes of paragraph (b) of item 2 of the table in subsection 268‑90(3) in Schedule 1 to the Act, the individual mentioned in subsection (2) is prescribed.

             (2)  The prescribed individual is the public official of an Australian government agency who is responsible for the financial affairs of the agency:

                     (a)  under an Australian law; or

                     (b)  because the public official holds a particular office in the agency.

64  Requirements for statutory declaration or affidavit—prescribed individual for body politic

             (1)  For the purposes of item 3 of the table in subsection 268‑90(3) in Schedule 1 to the Act, the individual mentioned in subsection (2) is prescribed.

             (2)  The prescribed individual is the public official of an Australian government agency who is responsible for the financial affairs of the agency:

                     (a)  under an Australian law; or

                     (b)  because the public official holds a particular office in the agency.

Division 3Penalties for offences relating to tobacco

64A  Amount of duty to determine the amount of a penalty—tobacco leaf

             (1)  This section sets out how to work out the amount of excise duty that is to be used to determine the amount of a penalty for an offence relating to a quantity of tobacco leaf for the purposes of the following provisions in Schedule 1 to the Act:

                     (a)  paragraph 308‑10(2)(b);

                     (b)  paragraph 308‑15(2)(b);

                     (c)  paragraph 308‑20(2)(b);

                     (d)  paragraph 308‑25(2)(b);

                     (e)  paragraph 308‑30(2)(b);

                      (f)  paragraph 308‑35(2)(b);

                     (g)  paragraph 308‑40(2)(b);

                     (h)  paragraph 308‑45(2)(b);

                      (i)  paragraph 308‑50(2)(b);

                      (j)  paragraph 308‑110(2)(b);

                     (k)  paragraph 308‑115(2)(b);

                      (l)  paragraph 308‑120(2)(b);

                    (m)  paragraph 308‑125(2)(b);

                     (n)  paragraph 308‑130(2)(b);

                     (o)  paragraph 308‑135(2)(b).

             (2)  The amount is to be worked out in accordance with section 21 of the Excise Regulation 2015, subject to subsections (3) and (4) of this section.

             (3)  For the purposes of working out the amount, treat a reference to the penalty day in section 21 of the Excise Regulation 2015 as a reference to:

                     (a)  if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or

                     (b)  otherwise—the day on which the prosecution for the offence is instituted.

             (4)  For the purposes of working out an amount under subsection 21(3) of the Excise Regulation 2015:

                     (a)  treat the reference in paragraph (a) of that subsection to a bale as a reference to one or more bales; and

                     (b)  treat the reference in the definition of weight in that subsection to 100 kilograms as a reference to 100 kilograms multiplied by the number of bales, as shown by the evidence.

Part 6Administration (Chapter 5 in Schedule 1 to the Act)

Division 1Preliminary

65  Interpretation

                   Paragraph 13(1)(b) of the Legislation Act 2003 has effect in relation to this Part as if the reference in that paragraph to the enabling legislation was a reference to Schedule 1 to the Act.

Note 1:       The effect of modifying paragraph 13(1)(b) of the Legislation Act 2003 is that expressions have the same meaning in this Part as in Schedule 1 to the Act as in force from time to time.

Note 2:       Under section 3AA of the Act, an expression has the same meaning in Schedule 1 as in the Income Tax Assessment Act 1997.

Division 2The Australian Taxation Office

Subdivision APowers to obtain information and evidence

66  Expenses for certain attendances

             (1)  This section applies to an entity (a witness) that is required to attend before the Commissioner, or an individual authorised by the Commissioner, under paragraph 353‑10(1)(b) in Schedule 1 to the Act.

             (2)  The scale of expenses set out in Schedule 2 is prescribed to be allowed to the witness in relation to an attendance before the Commissioner, or an individual authorised by the Commissioner, on or after 1 October 2017.

             (3)  However subsection (2) does not apply if the witness is required to attend before the Commissioner, or an individual authorised by the Commissioner, in relation to any of the following:

                     (a)  the witness’s own obligations under a taxation law;

                     (b)  the obligations of another entity under a taxation law if the witness is an agent or representative of the other entity;

                     (c)  the obligations of another entity under a taxation law if the witness’s financial affairs are interrelated with the financial affairs of the other entity.

Subdivision BConfidentiality of taxpayer information

67  Disclosure for law enforcement and related purposes—prescribed taskforce

                   For the purposes of subsection 355‑70(12) in Schedule 1 to the Act, the taskforces in the table are prescribed.

 

Prescribed taskforce

Item

Taskforce

1

Criminal Assets Confiscation Taskforce

2

National Criminal Intelligence Fusion Centre

3

National Anti‑Gang Taskforce

4

Trusts Taskforce

5

Phoenix Taskforce

6

Fraud and Anti‑Corruption Centre

7

Taskforce Cadena

8

Black Economy Standing Taskforce

9

Illicit Tobacco Taskforce

10

Serious Financial Crime Taskforce

Division 3Rulings

68  Private rulings—amount of charge for valuations and reviews of valuations

                   For the purposes of subsection 359‑40(4) in Schedule 1 to the Act:

                     (a)  the charge for the valuer making a valuation is the amount that the Commissioner is required to pay the valuer for making the valuation; and

                     (b)  the charge for the valuer reviewing a valuation is the amount that the Commissioner is required to pay the valuer for reviewing the valuation.

Note:          The charge for the service may be taxable under the A New Tax System (Goods and Services Tax) Act 1999. As a result, while the amount the Commissioner can charge for making or reviewing a valuation must be equal to the amount the Commissioner was required to pay for making or reviewing the valuation, the Commissioner can also charge the applicant GST for the service.

Division 4Record‑keeping etc.

69  Reporting to Agriculture Department about Farm Management Deposits

             (1)  For the purposes of paragraph 398‑5(3)(d) in Schedule 1 to the Act, an FMD provider must give the following information to the Agriculture Secretary:

                     (a)  the month to which the information relates;

                     (b)  in relation to each farm management deposit held by the provider at any time in that month, the information set out in subsection (2).

             (2)  For the purposes of subsection (1), the information that is required is:

                     (a)  the industry code for the depositor, by reference to the Australian and New Zealand Standard Industrial Classification (ANZSIC) 2006 published by the Australian Bureau of Statistics, as in force or existing at the time when this instrument commences; and

                     (b)  an account number that is modified by the FMD provider to prevent the disclosure of the identity of the depositor and the identity of the owner (if the owner is not the depositor), and that remains the same while the owner holds the farm management deposit; and

                     (c)  a personal identification number that is modified by the FMD provider to prevent the disclosure of the identity of the depositor and the identity of the owner (if the owner is not the depositor), and that remains the same while the owner holds any farm management deposits with the FMD provider; and

                     (d)  the closing balance of the farm management deposit at the end of the month to which the report relates; and

                     (e)  the State or Territory of the residence of the owner; and

                      (f)  the year of birth of the owner; and

                     (g)  the year and month of the deposit.

Division 5Verification system

70  Transaction reporting by purchasers

             (1)  For the purposes of section 405‑5 in Schedule 1 to the Act, a supply by a supplier to a purchaser is specified if all of the following circumstances apply:

                     (a)  the purchaser is carrying on a business that is primarily in the building and construction industry;

                     (b)  the purchaser has an ABN;

                     (c)  the supplier supplies to the purchaser:

                              (i)  building and construction services; or

                             (ii)  a combination of goods and building and construction services, unless the supply of services is incidental to the supply of the goods.

             (2)  Subsection (1) does not apply if both the supplier and the purchaser are members of:

                     (a)  the same consolidated group; or

                     (b)  the same MEC group.

             (3)  Subsection (1) does not apply if the payment made for the supply is a payment of the kind mentioned in paragraph (a) of the definition of withholding payment in subsection 995‑1(1) of the Income Tax Assessment Act 1997.

             (4)  A purchaser is taken to be carrying on a business that is primarily in the building and construction industry only if:

                     (a)  in the current financial year, 50% or more of the purchaser’s business activity relates to building and construction services; or

                     (b)  in the current financial year, 50% or more of the purchaser’s business income is derived from providing building and construction services; or

                     (c)  in the financial year immediately preceding the current financial year, 50% or more of the purchaser’s business income was derived from providing building and construction services.

             (5)  For the purposes of this section, building and construction services include any of the following activities, if the activities are performed on, or in relation to, any part of a building, structure, works, surface or sub‑surface:

                     (a)  alteration;

                     (b)  assembly;

                     (c)  construction;

                     (d)  demolition;

                     (e)  design;

                      (f)  destruction;

                     (g)  dismantling;

                     (h)  erection;

                      (i)  excavation;

                      (j)  finishing;

                     (k)  improvement;

                      (l)  installation;

                    (m)  maintenance;

                     (n)  management of building and construction services;

                     (o)  modification;

                     (p)  organisation of building and construction services;

                     (q)  removal;

                      (r)  repair;

                      (s)  site preparation.

Part 7Transitional matters

Division 1Transitional matters relating to the repeal of the Taxation Administration Regulations 1976

71  Things done under old regulations

             (1)  If:

                     (a)  a thing was done for a particular purpose under the Taxation Administration Regulations 1976 as in force immediately before those regulations were repealed; and

                     (b)  the thing could be done for that purpose under this instrument;

the thing has effect for the purposes of this instrument as if it had been done under this instrument.

             (2)  Without limiting subsection (1), a reference in that subsection to a thing being done includes a reference to an election, a declaration, a certificate, a notice, an application, an order or a document being given, made or served.

Example 1: A certificate given in accordance with regulation 5 of the Taxation Administration Regulations 1976 has effect for the purposes of this instrument as if it had been made under section 7 of this instrument.

Example 2: If the Commissioner served a document on a person under regulation 12F of the Taxation Administration Regulations 1976, the service of the document has effect for the purposes of this instrument as if it had been done under section 14 of this instrument.

72  Approved forms

                   If:

                     (a)  a form was approved under section 388‑50 in Schedule 1 to the Act for the purposes of a provision of the Taxation Administration Regulations 1976 as in force immediately before those regulations were repealed; and

                     (b)  the form could be approved for that purpose under this instrument;

the form has effect for the purposes of this instrument as if it had been approved for the purposes of the corresponding provision of this instrument.

Division 2Transitional matters relating to the Treasury Laws Amendment (2018 Measures No. 1) Regulations 2018

73  Disclosure of information to the Black Economy Standing Taskforce and the Illicit Tobacco Taskforce

                   The amendment of section 67 of this instrument made by Schedule 1 to the Treasury Laws Amendment (2018 Measures No. 1) Regulations 2018 applies in relation to disclosures of information made on or after the commencement of that Schedule (whether the information was obtained before, on or after that commencement).

Division 3Transitional matters relating to the Taxation Administration Amendment (Serious Financial Crime Taskforce) Regulations 2019

74  Disclosure of information to the Serious Financial Crime Taskforce

                   The amendment of section 67 of this instrument made by Schedule 1 to the Taxation Administration Amendment (Serious Financial Crime Taskforce) Regulations 2019 applies in relation to disclosures of information made on or after 1 July 2019 (whether the information was obtained before, on or after that date).


Schedule 1Prescribed forms and notices

Note:       See sections 9, 10 and 11.

Form 1Certificate under subsection 8ZG(2)

  

 

COMMONWEALTH OF AUSTRALIA

 

Taxation Administration Act 1953

 

CERTIFICATE UNDER SUBSECTION 8ZG(2)

 

I,                                              , the (title of officer issuing the certificate) of the (name and location of court), pursuant to subsection 8ZG(2) of the Taxation Administration Act 1953, hereby certify that on (date) the court, acting under (relevant provision) of the (relevant taxation law), ordered (name and address of relevant person) to pay $
to the Commissioner of Taxation.

 

Dated

 

                                                                        (Signature)

Form 2Notice of election to have case tried in Supreme Court

  

 

(Heading to be similar to that of Information or Complaint)

 

NOTICE OF ELECTION TO HAVE CASE TRIED IN SUPREME COURT

 

 

To the above‑named Court and to the *Informant *Complainant

 

 

Notice is hereby given that the defendant in the above‑named prosecution, pursuant to subsection 8ZJ(5) of the Taxation Administration Act 1953, elects to have the case tried in the Supreme Court of (insert name of State or Territory).

 

Dated

 

 

                                    (Signature of defendant or of defendant’s solicitor or counsel)

 

* Omit if inapplicable

Form 3Departure prohibition order

  

 

COMMONWEALTH OF AUSTRALIA

 

Taxation Administration Act 1953

 

DEPARTURE PROHIBITION ORDER

 

Pursuant to subsection 14S(1) of the Taxation Administration Act 1953,

I,                                              , *the/*delegate of the/*a Second/Commissioner of Taxation, believing on reasonable grounds that it is desirable to do so for the purpose of ensuring that                                       , a person subject to the tax liability referred to in the Schedule, does not depart from Australia for a foreign country without:

                     (a)  wholly discharging the tax liability; or

                     (b)  making arrangements satisfactory to *me/*the Commissioner for Taxation for the tax liability to be wholly discharged;

hereby prohibit the departure of                                  from Australia for a foreign country.

 

SCHEDULE

 

 

                                                (Details of tax liability)

 

 

Dated

                                                ......................................................

                                                                *Delegate of the /*Second/Commissioner of Taxation

 

 

* Omit if inapplicable

Schedule 2Scale of expenses

Note:       See section 66.

 

  

1  Scale of expenses for certain attendances

             (1)  If a witness attending before the Commissioner, or an individual authorised by the Commissioner, is an expert, an amount equal to the expert’s actual fees for preparing to give evidence and for attending to give evidence.

             (2)  For a witness, other than a witness referred to in subclause (1), attending before the Commissioner, or an individual authorised by the Commissioner, the amount specified in item 18 of the table in clause 2 of Schedule 2 to the High Court Rules 2004, as in force or existing at the time when this instrument commences.

Note:          This instrument commenced on 1 October 2017.


Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

 

Endnote 2—Abbreviation key

 

ad = added or inserted

o = order(s)

am = amended

Ord = Ordinance

amdt = amendment

orig = original

c = clause(s)

par = paragraph(s)/subparagraph(s)

C[x] = Compilation No. x

    /sub‑subparagraph(s)

Ch = Chapter(s)

pres = present

def = definition(s)

prev = previous

Dict = Dictionary

(prev…) = previously

disallowed = disallowed by Parliament

Pt = Part(s)

Div = Division(s)

r = regulation(s)/rule(s)

ed = editorial change

reloc = relocated

exp = expires/expired or ceases/ceased to have

renum = renumbered

    effect

rep = repealed

F = Federal Register of Legislation

rs = repealed and substituted

gaz = gazette

s = section(s)/subsection(s)

LA = Legislation Act 2003

Sch = Schedule(s)

LIA = Legislative Instruments Act 2003

Sdiv = Subdivision(s)

(md) = misdescribed amendment can be given

SLI = Select Legislative Instrument

    effect

SR = Statutory Rules

(md not incorp) = misdescribed amendment

Sub‑Ch = Sub‑Chapter(s)

    cannot be given effect

SubPt = Subpart(s)

mod = modified/modification

underlining = whole or part not

No. = Number(s)

    commenced or to be commenced

 

Endnote 3—Legislation history

 

Name

Registration

Commencement

Application, saving and transitional provisions

Taxation Administration Regulations 2017

21 Sept 2017 (F2017L01227)

1 Oct 2017 (s 2(1) item 1)

 

Treasury Laws Amendment (2017 Measures No. 3) Regulations 2017

4 Dec 2017 (F2017L01568)

Sch 2 (item 2): 5 Dec 2017 (s 2(1) item 3)

Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures No. 1) Regulations 2018

7 Mar 2018 (F2018L00210)

Sch 1: 1 July 2018 (s 2(1) item 2)

Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures No. 2) Regulations 2018

8 June 2018 (F2018L00739)

Sch 1: 1 July 2018 (s 2(1) item 2)

Treasury Laws Amendment (2018 Measures No. 1) Regulations 2018

22 June 2018 (F2018L00831)

Sch 1: 23 June 2018 (s 2(1) item 1)

Treasury Laws Amendment (Illicit Tobacco Offences) Regulations 2018

14 Sept 2018 (F2018L01292)

15 Sept 2018 (s 2(1) item 1)

Taxation Administration Amendment (Updating the List of Exchange of Information Countries) Regulations 2018

23 Nov 2018 (F2018L01596)

24 Nov 2018 (s 2(1) item 1)

Taxation Administration Amendment (Serious Financial Crime Taskforce) Regulations 2019

25 Mar 2019 (F2019L00379)

26 Mar 2019 (s 2(1) item 1)

 

Endnote 4—Amendment history

 

Provision affected

How affected

Part 1

 

s 2.............................................

rep LA s 48D

s 4.............................................

rep LA s 48C

s 5.............................................

am F2018L00210

Part 3

 

Division 2

 

Subdivision D

 

s 34...........................................

am F2018L01596

Division 3

 

Subdivision E

 

s 52...........................................

am F2017L01568

Subdivision EA

 

Subdivision EA.........................

ad F2018L00210

s 53A........................................

ad F2018L00210

Part 4

 

Division 3

 

Division 3.................................

ad F2018L00739

s 61A........................................

ad F2018L00739

Part 5

 

Division 3

 

Division 3.................................

ad F2018L01292

s 64A........................................

ad F2018L01292

Part 6

 

Division 2

 

Subdivision B

 

s 67...........................................

am F2018L00831; F2019L00379

Part 7

 

Division 1

 

Division 1 heading....................

ad F2018L00831

Division 2

 

Division 2.................................

ad F2018L00831

s 73...........................................

ad F2018L00831

Division 3

 

Division 3.................................

ad F2019L00379

s 74...........................................

ad F2019L00379

Schedule 3................................

rep LA s 48C