TAXATION ADMINISTRATION ACT 1953 - SCHEDULE 1 Collection and recovery of income tax and other liabilities

(2) Under PAYG withholding, amounts are collected in respect of particular kinds of payments or transactions. Usually, someone who makes a payment to you is required to withhold an amount from the payment, and then to pay the amount to the Commissioner.

For a list of the payments and other transactions to which
PAYG withholding applies, see Division 10

(3) You pay PAYG instalments directly to the Commissioner. These are usually based on your GDP-adjusted notional tax or your ordinary income for a past period, but excluding:

An instalment is usually paid after a quarter, but some taxpayers are eligible to pay an annual instalment after the end of the income year.

You are entitled to credits for the amounts of your income that are collected under the PAYG system. The credits are applied under Division 3 of Part IIB against your tax debts, and any excess is refunded to you.

(1) The payments and other transactions covered by PAYG withholding are called withholding payments. They are summarised in the table.

Note: The obligation to pay an amount to the Commissioner is imposed on the entity making the withholding payment (except for items 17, 19 and 22, and 26 (to the extent that it covers subsection 12 -390(4))).

Summary of withholding payments
1	A payment of salary etc. to an employee	12-35
2	A payment of remuneration to the director of a company	12-40
3	A payment of salary etc. to an office holder (e.g. a member of the Defence Force)	12-45
3A	a payment to a * religious practitioner	12-47
4	A return to work payment to an individual	12-50
5	A payment that is covered by a voluntary agreement	12-55
6	A payment under a labour hire arrangement or a payment specified by regulations	12-60
7	A * superannuation income stream or an annuity	12-80
8	A * superannuation lump sum or a payment for termination of employment	12-85
9	An unused leave payment	12-90
10	A social security or similar payment (e.g. old age pension)	12-110
11	A Commonwealth education or training payment	12-115
12	A compensation, sickness or accident payment	12-120
13	A payment arising from an investment where the recipient does not quote its tax file number, or in some cases, its ABN	12-140
14	Investor becoming presently entitled to income of a unit trust	12-145
14A	A trustee of a closely held trust distributing an amount from the trust income to a beneficiary, where the beneficiary does not quote its tax file number	12-175
14B	A beneficiary of a closely held trust becoming presently entitled to income of the trust, where the beneficiary does not quote its tax file number	12-180
15	A payment for a supply where the recipient of the payment does not quote its ABN	12-190
16	A dividend payment to an overseas person	12-210
17	A dividend payment received for a foreign resident	12-215
18	An interest payment to an overseas person	12-245
19	An interest payment received for a foreign resident	12-250
20	An interest payment derived by a lender in carrying on business through overseas permanent establishment	12-255
21	A royalty payment to an overseas person	12-280
22	A royalty payment received for a foreign resident	12-285
22A	A departing Australia superannuation payment	12-305
22AA	An * excess untaxed roll-over amount	12-312
22B	A payment (of a kind set out in the regulations) to a foreign resident	12-315
22C	A payment (of a kind set out in the regulations) received for a foreign resident	12-317
23	A mining payment	12-320
24	A natural resource payment	12-325
25	A payment by a managed investment trust	12-385
26	A payment by a * custodian or other entity	12-390

Note: The obligation to pay an amount to the Commissioner is imposed on the entity receiving the alienated personal services payment or providing the non-cash benefit.

(da) amounts of liabilities to the Commonwealth under Part 2B.3 of the Social Security Act 1991 ; and

(db) amounts of liabilities to the Commonwealth under Division 6 of Part 4A of the Student Assistance Act 1973 ; and

(1) In working out whether an entity has paid an amount to another entity, and when the payment is made, the amount is taken to have been paid to the other entity when the first entity applies or deals with the amount in any way on the other's behalf or as the other directs.

(2) An amount is taken to be payable by an entity to another entity if the first entity is required to apply or deal with it in any way on the other's behalf or as the other directs.

(1) An entity need not withhold an amount under section 12-35, 12-40, 12-45, 12-47, 12-50, 12-55, 12-60, 12-80, 12-85, 12-90, 12-120 or 12-190 from a payment if the whole of the payment is * exempt income of the entity receiving the payment.

(1A) An entity need not withhold an amount under Subdivision 12-B, Subdivision 12-C or section 12-120 or 12-190 from a payment if the whole of the payment is not assessable income and is not * exempt income of the entity receiving the payment.

(2) In working out how much to withhold under section 12-35, 12-40, 12-45, 12-47, 12-115, 12-120, 12-315 or 12-317 from a payment, disregard so much of the payment as is a living-away-from-home allowance benefit as defined by section 136 of the Fringe Benefits Tax Assessment Act 1986 .

(3) In working out how much to withhold under section 12-35, 12-40, 12-45, 12-47, 12-115, 12-120, 12-315 or 12-317 from a payment, disregard so much of the payment as:

(a) is an expense payment benefit as defined by section 136 of the Fringe Benefits Tax Assessment Act 1986 ; and

(i) an exempt benefit under section 22 of that Act (about reimbursement of car expenses on the basis of distance travelled);

(1) If more than one provision in this Division covers a payment, only one amount is to be withheld from the payment.

(2) The provision to apply is the one that is most specific to the circumstances of the payment. However, this general rule is subject to the specific rules in the table, and the specific rule in subsection (3).

(3) Apply a provision in this Division (apart from a provision in Subdivision 12-FB) that covers a payment in priority to a provision in Subdivision 12-FB that also covers the payment.

Note: Some provisions of this Division clearly do not cover a payment covered by some other provisions. For example:

Specific rules for determining priority among withholding provisions
1AA	section 12-385 or 12-390	distributions to foreign residents from * managed investment trusts	each other withholding provision
1	section 12-35, 12-40, 12-45, 12-47 or 12-50	a payment for work or services	section 12-60 (payment under a labour hire arrangement or specified by regulations); or section 12-190 (payment for a supply where recipient does not quote its ABN)
1A	section 12-35 or 12-45	a payment for work or services	section 12-47 (a payment to a * religious practitioner)
2	section 12-80, 12-85 or 12-90	a * superannuation benefit, an annuity, a payment for termination of employment or an unused leave payment	section 12-60 (payment under a labour hire arrangement or specified by regulations); or section 12-190 (payment for a supply where recipient does not quote its ABN)
3	section 12-110, 12-115 or 12-120	a payment of benefit or compensation	section 12-60 (payment under a labour hire arrangement or specified by regulations); or section 12-190 (payment for a supply where recipient does not quote its ABN)
4	section 12-60	a payment under a labour hire arrangement or specified by regulations	section 12-190 (payment for a supply where recipient does not quote its ABN)
5	section 12-140 or 12-145	a payment arising from investment where the recipient does not quote tax file number	section 12-175 or 12-180 (Payment of income of closely held trust where TFN not quoted) or section 12-210, 12-215, 12-245, 12-250 or 12-255 (payment of a dividend or interest)
6	section 12-280 or 12-285	a payment of royalty	section 12-325 (natural resource payment)

* Section 12-55 (about voluntary agreements) covers a payment only if no other provision requires the payer to withhold an amount from the payment.

(1) This Division (other than the provisions mentioned in subsection (2)) does not apply to a payment in so far as the payment:

(b) was received, by the entity making the payment, as an * alienated personal services payment.

Note: An entity that receives an alienated personal services payment may be obliged to pay an amount to the Commissioner: see Division 13.

(b) any other provisions in this Division to the extent that they apply in relation to that Subdivision.

This Division does not apply to a payment in so far as it consists of providing a * non-cash benefit.

Note: If a non-cash benefit is provided in circumstances where a payment would give rise to a withholding obligation, the provider must pay an amount to the Commissioner: see Division 14.

(a) apply to a non-share equity interest in the same way as it applies to a share; and

(b) apply to an equity holder in the same way as it applies to a shareholder; and

An entity must withhold an amount from salary, wages, commission, bonuses or allowances it pays to an individual as an employee (whether of that or another entity).

A company must withhold an amount from a payment of remuneration it makes to an individual:

(b) if the company is not incorporated--as a member of the committee of management of the company, or as a person who performs the duties of such a member.

(1) An entity must withhold an amount from salary, wages, commission, bonuses or allowances it pays to an individual as:

(b) a person who holds, or performs the duties of, an appointment, office or position under the Constitution or an * Australian law; or

(d) a person who is otherwise in the service of the Commonwealth, a State or a Territory; or

(e) a member of a * local governing body where there is in effect, in accordance with section 446-5, a unanimous resolution by the body that the remuneration of members of the body be subject to withholding under this Part.

(2) This section does not require an amount to be withheld from a payment to an individual as a member of a * local governing body unless it is one to which paragraph (1)(e) applies.

An entity must withhold an amount from a payment it makes to a * religious practitioner for an activity, or a series of activities, if:

(a) the activity, or series of activities, is done by the religious practitioner in pursuit of his or her vocation as a religious practitioner; and

(b) the activity, or series of activities, is done by the religious practitioner as a member of a religious institution; and

An entity must withhold an amount from a payment it makes to an individual if the payment is included in the individual's assessable income under section 15-3 of the Income Tax Assessment Act 1997 (return to work payments).

(1) An entity must withhold an amount from a payment it makes to an individual if:

(a) the payment is made under an * arrangement the performance of which, in whole or in part, involves the performance of work or services (whether or not by the individual); and

(b) no other provision of this Division requires the entity to withhold an amount from the payment; and

(c) the entity and the individual are parties to an agreement (the voluntary agreement ) that is in the * approved form and states that this section covers payments under the arrangement mentioned in paragraph (a), or under a series of such arrangements that includes that arrangement; and

(d) the individual has an * ABN that is in force and is * quoted in that agreement.

(2) Each party must keep a copy of the voluntary agreement from when it is made until 5 years after the making of the last payment covered by the agreement.

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

(3) A party to the voluntary agreement may terminate it at any time by notifying the other party in writing.

(1) An entity that * carries on an * enterprise must withhold an amount from a payment that it makes to an individual in the course or furtherance of the enterprise if:

(a) the enterprise is a * business of arranging for persons to perform work or services directly for clients of the entity, or the enterprise includes a business of that kind that is not merely incidental to the main activities of the enterprise; and

(b) the payment is made under an * arrangement the performance of which, in whole or in part, involves the performance of work or services by the individual directly for a client of the entity, or directly for a client of another entity.

Example 1: Staffprovider Ltd keeps a database of skilled persons who are willing for their services to be provided to third parties. Staffprovider arranges with Corporate Pty Ltd to provide to it the services of a computer programmer in return for payment. Staffprovider arranges with Jane for her to do computer programming for Corporate. Staffprovider must withhold amounts under this section from payments it makes to Jane under the arrangement with her.

Example 2: Ian is a solicitor who regularly briefs barristers to represent his clients. Briefing barristers is merely incidental to Ian's main activities as a solicitor, so he does not have to withhold amounts under this section from payments he makes to barristers.

(2) An entity that carries on an * enterprise must withhold an amount from a payment that it makes to an individual in the course or furtherance of the enterprise if the payment is, in whole or in part, for work or services and is of a kind prescribed by the regulations.

Subdivision 12-C -- Payments for retirement or because of termination of employment

An entity must withhold an amount from any of the following payments it makes to an individual:

(b) a payment that is an * employment termination payment or would be one except that it is received more than 12 months after termination of employment.

An entity must withhold an amount from any of the following payments it makes to an individual:

(b) an * unused long service leave payment, to the extent that the payment is included in the individual's assessable income.

(1) An entity must withhold an amount from a payment it makes to an individual if the payment is:

(a) specified in an item of the table in section 52-10 of the Income Tax Assessment Act 1997 (Social Security payments); or

(b) specified in an item of the table in section 52-65 of that Act (Veterans' Affairs payments); or

(ba) specified in an item of the table in section 52-114 of that Act (Military Rehabilitation and Compensation Act payments); or

Note: Payments specified in those provisions of the Income Tax Assessment Act 1997 are made under various Commonwealth laws.

(2) In working out the amount to be withheld, disregard so much of the payment as is * exempt income of the individual.

(1) An entity must withhold an amount from a * Commonwealth education or training payment it makes to an individual.

(2) In working out the amount to be withheld, disregard so much of the payment as is * exempt income of the individual.

An entity must withhold an amount from a payment of compensation, or of sickness or accident pay, it makes to an individual if the payment:

12-150 Limited application of section 12-140 to payment under financial arrangement

12-160 Investment body unaware that exemption from quoting TFN has stopped applying

(1) An * investment body must withhold an amount from a payment it makes to another entity in respect of a * Part VA investment if:

(a) all or some of the payment is * ordinary income or * statutory income of the other entity; and

(b) if the investment is non-transferable--the other entity did not * quote its * tax file number in connection with the investment before the time when the payment became payable; and

(c) if the investment is transferable--the other entity did not quote its tax file number in connection with the investment before the time when the other entity had to be registered with the investment body as the * investor to be entitled to the payment.

(a) units in a unit trust (as defined in section 202A of the Income Tax Assessment Act 1936 ); or

an entity (including the * investment body) must withhold an amount from a payment it makes to another entity in respect of the investment if the conditions in subsection (1) of this section are met.

(a) a * Part VA investment consists of units in a unit trust (as defined in section 202A of the Income Tax Assessment Act 1936 ); and

(b) the * investor becomes presently entitled, for the purposes of Division 6 of Part III of the Income Tax Assessment Act 1936 , to a share of income of the trust at a time (the entitlement time ) before any of that share is paid to the investor.

(2) The entity (including the * investment body) that would have to pay that share to the * investor if the share were due and payable at the entitlement time must withhold from the share, at that time, the amount (if any) that subsection 12-140(2) would have required it to withhold if it had paid the share to the investor at that time.

(3) This Part (except section 12-140 and this section) applies as if that entity had paid that share to the * investor at the entitlement time.

(4) If that entity withholds an amount from that share as required by subsection (2), subsection 12-140(2) does not require an amount to be withheld from a payment of all or part of that share to the * investor.

(a) is of a kind mentioned in item 1 or 2 of the table in subsection 202D(1) of that Act; or

Note: Section 202D of the Income Tax Assessment Act 1936 lists the investments in connection with which tax file numbers are to be quoted.

(2) Section 12-140 applies to the payment only to the extent that is covered by one or both of these paragraphs:

(a) so much of the payment as consists of periodic interest (within the meaning of Division 16E of Part III of the Income Tax Assessment Act 1936 );

(b) if the payment became payable at the end of the term (within the meaning of that Division) of the investment--so much of the payment as does not exceed what section 159GQ of that Act would include in the * investor's assessable income for the income year in which that term ended.

Note: This limitation ensures that an amount is not withheld from payment of an amount in respect of which TFN withholding tax is payable. See Subdivision 14-B.

(3) The adoption (under section 18 of the Income Tax Assessment Act 1936 ) of an accounting period ending on a day other than 30 June is disregarded for the purposes of:

(b) the application of Division 16E of Part III of that Act for the purposes of that paragraph.

(a) the other entity made the investment in the course or furtherance of an * enterprise * carried on by it; and

(b) the other entity has an * ABN, and has * quoted it to the investment body, by the time referred to in paragraph 12-140(1)(b) or (c).

(a) a provision of Division 5 of Part VA of the Income Tax Assessment Act 1936 has applied to the other entity in relation to the investment, but no longer applies when the payment is made; and

(b) when the payment is made, the * investment body has not been informed of anything that resulted in the provision no longer applying.

Note: Division 5 of Part VA of that Act provides, in certain cases, that even though an entity has not quoted its tax file number it is taken to have done so.

(a) the investment consists of * shares in a public company (as defined in section 202A of the Income Tax Assessment Act 1936 ); and

(b) the payment is a * distribution that has been franked in accordance with section 202-5 of the Income Tax Assessment Act 1997 ; and

(1) Section 12-140 or 12-145 does not require an amount to be withheld if the payment is less than the amount worked out under the regulations.

(2) Regulations made for the purposes of this section may deal differently with different payments.

(a) the trustee of a trust makes a distribution to a beneficiary of the trust at a time (the distribution time ) during an income year of the trust; and

(b) some or all of the distribution is from the * ordinary income or * statutory income of the trust; and

(i) a resident trust estate (within the meaning of subsection 95(2) of the Income Tax Assessment Act 1936 ) in relation to the income year; and

(ii) a closely held trust (within the meaning of section 102UC of that Act, disregarding paragraphs (c), (d) and (e) of the definition of excluded trust in subsection (4) of that section); and

(iii) not prescribed by the regulations for the purposes of this subparagraph; and

(a) the beneficiary did not * quote the beneficiary's * tax file number to the trustee before the distribution time; and

(b) the trustee is not liable to pay tax under section 98 of the Income Tax Assessment Act 1936 in connection with the distribution; and

(c) the trustee is not required to make a correct TB statement under Division 6D of Part III of that Act (about trustee beneficiary non-disclosure tax) in connection with the distribution; and

(d) family trust distribution tax is not payable under Schedule 2F to that Act in connection with the distribution.

Note 1: If the trust is a unit trust, the trustee may be required to withhold under section 12-140 in priority to this section: see section 12-5.

Note 2: The trustee commits an offence if the trustee fails to withhold an amount as required by this section: see section 16-25.

(3) If the distribution is not a payment, this Part applies as if the trustee paid the amount of the distribution to the beneficiary at the distribution time.

(4) Subsections (2) and (3) do not apply to the distribution, to the extent that:

(a) the beneficiary is presently entitled, for the purposes of Division 6 of Part III of the Income Tax Assessment Act 1936 , to a share of the income of the trust of an earlier income year; and

Note: The trustee may have been required to withhold from that share under section 12-180.

(a) at the end of an income year of a trust, a beneficiary of the trust is presently entitled, for the purposes of Division 6 of Part III of the Income Tax Assessment Act 1936 , to a share of the income of the trust of that year; and

(b) paragraph 12-175(1)(c) in this Schedule applies to the trustee of the trust; and

(2) The trustee must withhold an amount from that share of the * net income of the trust, if:

(a) the beneficiary did not * quote the beneficiary's * tax file number to the trustee before the end of the year; and

(b) the trustee is not liable to pay tax in respect of that share under section 98 of the Income Tax Assessment Act 1936 ; and

(c) the trustee is not required to make a correct TB statement about that share under Division 6D of Part III of that Act (about trustee beneficiary non-disclosure tax); and

(d) family trust distribution tax is not payable on that share of the income of the trust under Schedule 2F to that Act.

Note 1: If the trust is a unit trust, the trustee may be required to withhold under section 12-145 in priority to this section: see section 12-5.

Note 2: The trustee commits an offence if the trustee fails to withhold an amount as required by this section: see section 16-25.

(3) This Part (other than section 12-175) applies as if the trustee had paid that share of the * net income of the trust to the beneficiary at the end of the income year.

(4) Subsections (2) and (3) do not apply to that share of the * net income of the trust to the extent that the trustee distributed any of that share to the beneficiary during the income year.

Note: The trustee may have been required to withhold from that distribution under section 12-175.

(5) This section applies as if each reference to the end of an income year were a reference to the time occurring just before the trust ends, if the trust ends during the income year.

(1) Section 12-175 or 12-180 does not require an amount to be withheld if the payment (including the payment mentioned in subsection 12-180(3)) is less than the amount worked out under the regulations.

(2) Regulations made for the purposes of this section may deal differently with different payments.

(1) An entity (the payer ) must withhold an amount from a payment it makes to another entity if:

(a) the payment is for a * supply that the other entity has made, or proposes to make, to the payer in the course or furtherance of an * enterprise * carried on in Australia by the other entity; and

(2) The payer need not withhold an amount under this section if, when the payment is made:

(a) the other entity has given the payer an * invoice that relates to the * supply and * quotes the other entity's * ABN; or

(b) the payer has some other document relating to the supply on which the other entity's ABN is * quoted.

(2A) The payer need not withhold an amount under this section if the other entity has made the * supply, or proposes to make the supply, through an agent and, when the payment is made:

(a) the agent has given the payer an * invoice that relates to the supply and * quotes the agent's * ABN; or

(b) the payer has some other document relating to the supply on which the agent's ABN is * quoted.

(3) The payer need not withhold an amount under this section if, when the payment is made:

(a) the other entity has given the payer an * invoice that relates to the * supply and purports to * quote the other entity's * ABN, or the payer has some other document that relates to the supply and purports to * quote the other entity's ABN; and

(b) the other entity does not have an ABN, or the invoice or other document does not in fact quote the other entity's ABN; and

(c) the payer has no reasonable grounds to believe that the other entity does not have an ABN, or that the invoice or other document does not quote the other entity's ABN.

(3A) The payer need not withhold an amount under this section if the other entity has made the * supply, or proposes to make the supply, through an agent and, when the payment is made:

(a) the agent has given the payer an * invoice that relates to the supply and purports to * quote the agent's * ABN, or the payer has some other document that relates to the supply and purports to * quote the agent's ABN; and

(b) the agent does not have an ABN, or the invoice or other document does not in fact quote the agent's ABN; and

(c) the payer has no reasonable grounds to believe that the agent does not have an ABN, or that the invoice or other document does not quote the agent's ABN.

(a) the payment is made otherwise than in the course or furtherance of an * enterprise * carried on in Australia by the payer; or

(b) the payment (disregarding so much of it as relates to * GST payable on the * supply) or, if the payer has also made, or proposes to make, one or more other payments to the other entity for the supply, the total of all the payments (disregarding so much of them as relates to * GST payable on the supply) does not exceed $50 or such higher amount as is specified in regulations in force for the purposes of subsection 29-80(1) of the * GST Act; or

(c) the supply is made in the course or furtherance of an activity, or series of activities, done as a member of a local governing body established by or under a * State law or * Territory law; or

(a) is covered by section 12-140 or 12-145 (about not quoting * tax file number in respect of an investment in respect of which the payment is made); or

(b) would be covered by section 12-140 or 12-145 if the other entity had not quoted as mentioned in subsection 12-140(1) or section 12-155; or

(c) would be covered by section 12-140 or 12-145 apart from section 12-160, 12-165 or 12-170 (which are exceptions to sections 12-140 and 12-145); or

(d) is covered by section 12-175 or 12-180 (Payment of income of closely held trust where TFN not quoted); or

(e) would be covered by section 12-175 or 12-180 if the other entity had not quoted as mentioned in paragraph 12-175(2)(a) or 12-180(2)(a); or

(f) would be covered by section 12-175 or 12-180 apart from section 12-185 (which is an exception to sections 12-175 and 12-180).

(6) The payer need not withhold an amount under this section if, when the payment is made:

(a) the other entity is an individual and has given the payer a written statement to the effect that:

(i) the * supply is made in the course or furtherance of an activity, or series of activities, done as a private recreational pursuit or hobby; or

(ii) the supply is, for the other entity, wholly of a private or domestic nature; and

(b) the payer has no reasonable grounds to believe that the statement is false or misleading in a material particular.

(7) In working out, for the purposes of this section, whether an enterprise is * carried on in Australia:

(b) treat an installation (within the meaning of the Customs Act 1901 ) that is deemed by section 5C of the Customs Act 1901 to be part of Australia, as part of Australia.

Note: The effect of this subsection is to treat an enterprise as carried on in Australia only where it would be treated as carried on in Australia under the A New Tax System (Australian Business Number) Act 1999 .

12-255 Interest payment derived by lender in carrying on business through overseas permanent establishment

12-260 Lender to notify borrower if interest derived through overseas permanent establishment

A company that is an Australian resident must withhold an amount from a * dividend it pays if:

(a) according to the register of the company's members, the entity, or any of the entities, holding the * shares on which the dividend is paid has an address outside Australia; or

(b) that entity, or any of those entities, has authorised or directed the company to pay the dividend to an entity or entities at a place outside Australia.

(1) An entity that receives a payment of a * dividend of a company that is an Australian resident must withhold an amount from the dividend if:

(i) to receive the dividend or part of it from the entity, or to receive the amount of the dividend or of part of it from the entity; or

(ii) to have the entity credit to the foreign resident, or otherwise deal with on the foreign resident's behalf or as the foreign resident directs, the dividend or part of it, or the amount of the dividend or of part of it.

(a) if the foreign resident is so entitled when the entity receives the payment--immediately after the entity receives the payment; or

(b) if the foreign resident becomes so entitled after the entity receives the payment--immediately after the foreign resident becomes so entitled.

This Part applies to a distribution that section 47 of the Income Tax Assessment Act 1936 treats as a * dividend paid by a company, in the same way as this Part applies to a dividend paid by the company, and as if the liquidator or other person making the distribution were the company.

An entity must withhold an amount from interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936 ) it pays to an entity, or to entities jointly, if:

(a) the recipient or any of the recipients has an address outside Australia according to any record that is in the payer's possession, or is kept or maintained on the payer's behalf, about the transaction to which the interest relates; or

(b) the payer is authorised to pay the interest at a place outside Australia (whether to the recipient or any of the recipients or to anyone else).

(1) An entity that receives a payment of interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936 ) must withhold an amount from the payment if:

(i) to receive the interest or part of it from the entity, or to receive the amount of the interest or of part of it from the entity; or

(ii) to have the entity credit to the foreign resident, or otherwise deal with on the foreign resident's behalf or as the foreign resident directs, the interest or part of it, or the amount of the interest or of part of it.

(a) if the foreign resident is so entitled when the entity receives the payment--immediately after the entity receives the payment; or

(b) if the foreign resident becomes so entitled after the entity receives the payment--immediately after the foreign resident becomes so entitled.

An entity must withhold an amount from interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936 ) it pays if it has been notified under section 12-260 of this Act that this section applies to the interest.

12-260 Lender to notify borrower if interest derived through overseas permanent establishment

(i) an entity that is, or entities at least one of whom is, an Australian resident; or

(b) the entity liable to pay the interest is authorised to pay it at a place in Australia (whether to any of those entities or the agency, or to anyone else); and

(c) the interest is or will be * derived by any of those entities or the agency in carrying on business in a country outside Australia at or through a * permanent establishment it has in that country;

those entities, or the agency, must notify the entity liable to pay the interest that section 12-255 applies to the interest.

(2) The notice must be given in writing, before the entities, or the agency, enter into the transaction in relation to which the interest is payable, or within one month afterwards.

(3) Immediately after giving the notice, those entities, or the agency, must notify the Commissioner of:

(a) the particulars of the transaction (including the dates on which interest is payable under it); and

An entity must withhold an amount from a * royalty it pays to an entity, or to entities jointly, if:

(b) the payer is authorised to pay the royalty at a place outside Australia (whether to the recipient or any of the recipients or to anyone else).

(1) An entity that receives a payment of a * royalty must withhold an amount from the payment if:

(i) to receive the royalty or part of it from the entity, or to receive the amount of the royalty or of part of it from the entity; or

(ii) to have the entity credit to the foreign resident, or otherwise deal with on the foreign resident's behalf or as the foreign resident directs, the royalty or part of it, or the amount of the royalty or of part of it.

(a) if the foreign resident is so entitled when the entity receives the payment--immediately after the entity receives the payment; or

(b) if the foreign resident becomes so entitled after the entity receives the payment--immediately after the foreign resident becomes so entitled.

(a) to withhold an amount from a * dividend, from interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936 ) or from a * royalty if no * withholding tax is payable in respect of the dividend, interest or royalty; or

(b) to withhold from a dividend, from interest (within the meaning of that Division) or from a royalty more than the withholding tax payable in respect of the dividend, interest or royalty (reduced by each amount already withheld from it under this Subdivision).

Note: Section 128B of the Income Tax Assessment Act 1936 deals with withholding tax liability.

An entity must withhold an amount from a * departing Australia superannuation payment it pays to an entity.

(a) to withhold an amount from a * departing Australia superannuation payment if no * withholding tax is payable in respect of the payment; or

(b) to withhold from a departing Australia superannuation payment more than the withholding tax payable in respect of the payment (reduced by each amount already withheld from it under this Subdivision).

Note: Section 301-175 of the Income Tax Assessment Act 1997 deals with the withholding tax liability.

An entity must withhold an amount from an * excess untaxed roll-over amount it pays to an entity.

Note: An excess untaxed roll-over amount is an amount that may form part of a roll-over superannuation benefit that includes an element untaxed in the fund: see section 306-15 of the Income Tax Assessment Act 1997 .

(a) to withhold an amount from an * excess untaxed roll-over amount if no * withholding tax is payable on the amount; or

(b) to withhold from an excess untaxed roll-over amount more than the withholding tax payable on the amount (reduced by each amount already withheld from the excess untaxed roll-over amount under this Subdivision).

(1) An entity (the payer ) that * carries on an * enterprise must withhold an amount from a payment it makes to another entity, or to other entities jointly, in the course or furtherance of the enterprise if:

(a) the entity receiving the payment, or any of the entities receiving the payment, is an entity covered by subsection (2); and

(v) a payment worked out wholly or partly by reference to the value or quantity of * natural resources produced or recovered in Australia; or

(vii) an amount represented by or reasonably attributable to a * fund payment; and

(d) the entity receiving the payment is not covered by an exemption in force under subsection 12-319(1), or at least one of the entities receiving the payment is not covered by an exemption in force under that subsection.

(2) An entity is covered by this subsection if any of the following conditions is satisfied:

(b) the payer believes, or has reasonable grounds to believe, that the entity is a foreign resident;

(i) the entity has an address outside Australia (according to any record that is in the payer's possession, or is kept or maintained on the payer's behalf, about the transaction to which the payment relates); or

(ii) the payer is authorised to make the payment at a place outside Australia (whether to the entity or to anyone else);

(d) the entity has a connection outside Australia of a kind set out in the regulations.

(3) Before the Governor-General makes a regulation for the purposes of paragraph (1)(b), the Minister must be satisfied that each payment set out in the regulation is a payment of a kind that could reasonably be related to assessable income of foreign residents.

(1) An entity (the intermediary ) that receives a payment meeting the requirements set out in paragraphs 12-315(1)(b) and (c) must withhold an amount from the payment if:

(a) the intermediary is a person in Australia or an * Australian government agency; and

(b) another entity (the likely foreign recipient ) is or becomes entitled:

(i) to receive the payment or part of it from the intermediary, or to receive the amount of the payment or of part of it from the intermediary; or

(ii) to have the intermediary credit to the likely foreign recipient, or otherwise deal with on the likely foreign recipient's behalf or as the likely foreign recipient directs, the payment or part of it, or the amount of the payment or of part of it; and

(d) the likely foreign recipient is not covered by an exemption in force under subsection 12-319(1).

(a) if the likely foreign recipient is so entitled when the intermediary receives the payment--just after the intermediary receives the payment; or

(b) if the likely foreign recipient becomes so entitled after the intermediary receives the payment--just after the likely foreign recipient becomes so entitled.

(3) The likely foreign recipient is covered by this subsection if any of the following conditions is satisfied:

(b) the intermediary believes, or has reasonable grounds to believe, that the likely foreign recipient is a foreign resident;

(c) the intermediary has no reasonable grounds to believe that the likely foreign recipient is an Australian resident, and either:

(i) the likely foreign recipient has an address outside Australia (according to any record that is in the intermediary's possession, or is kept or maintained on the intermediary's behalf); or

(ii) the intermediary is authorised to forward the payment to a place outside Australia (whether to the likely foreign recipient or to anyone else);

(d) the likely foreign recipient has a connection outside Australia of a kind set out in the regulations.

(1) The Commissioner may grant an entity an exemption in writing for the purposes of paragraphs 12-315(1)(d) and 12-317(1)(d) if the Commissioner is satisfied that:

(a) the entity has an established history of compliance with its obligations under * taxation laws; and

(b) the entity is likely to continue to comply with those obligations in the future.

(3) Without limiting the matters to which the Commissioner may have regard in deciding whether to grant an entity an exemption, the Commissioner may have regard to the following:

(a) whether the entity is or was liable to pay an instalment under Division 45 at any time in:

(b) the amount (if any) of the entity's * tax-related liabilities that are currently due and payable;

(c) the extent to which the entity and its * associates (if any) have complied with their obligations under * taxation laws during:

(4) The Commissioner must give a copy of the exemption to the entity to which it relates.

(5) A failure to comply with subsection (4) does not affect the validity of the exemption.

(2) Subsection (1) does not require the entity to withhold more than the * mining withholding tax payable in respect of the * mining payment.

Note: Section 128V of the Income Tax Assessment Act 1936 deals with mining withholding tax liability.

(1) An entity must withhold an amount from a payment it makes to a foreign resident, or to 2 or more entities at least one of which is a foreign resident, if the payment is worked out wholly or partly by reference to the value or quantity of * natural resources produced or recovered in Australia.

(b) the amount worked out under a certificate in force under section 12-335 that covers the payment;

(a) the Commissioner has notified the entity under section 12-330 that the entity does not need to withhold an amount from the payment; or

(b) a certificate in force under section 12-335 covers the payment and does not require the entity to withhold an amount from it.

(1) An entity must not intentionally make a payment from which section 12-325 requires it to withhold an amount, unless:

(a) the entity has notified the Commissioner in writing of the amount of the proposed payment; and

(b) the Commissioner has later notified the entity in writing of the amount (if any) that the entity must withhold from the payment in respect of tax that is or may become payable by a foreign resident to whom the payment is made;

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

(2) An entity that fails to notify the Commissioner as required by subsection (1) does not commit an offence against section 8C.

(1) The Commissioner may give an entity a written certificate exempting the entity from complying with section 12-330 for specified payments.

(a) a condition that the entity must withhold from a payment covered by the certificate the amount (if any) worked out in accordance with the certificate in respect of tax that is or may become payable by a foreign resident to whom the payment is made; and

However, the entity does not contravene subsection 12-330(1) because it contravenes a condition.

(a) revoke a certificate, whether or not a condition of it has been contravened; or

Note: A person who is dissatisfied with a decision under this section may object against the decision in the manner set out in Part IVC.

12-402A Widely-held requirements for registered MIT--special case for entities covered by subsection 12-402(3)

12-415 Failure to give notice or make information available: administrative penalty

(1) A trustee of a trust that is a * managed investment trust in relation to an income year that makes a * fund payment in relation to that income year to an entity covered by section 12-410 must withhold an amount from the payment.

Note 1: An entity may be covered by section 12-410 if the entity has an address outside Australia or payment is authorised to be made to a place outside Australia.

Note 2: If the payment is made to a recipient not covered by section 12-410, the trustee is required to give a notice to the recipient or publish information on a website setting out certain details about the payment: see section 12-395.

(a) if the address or place for payment of the recipient is in an * information exchange country:

(i) 22.5% for * fund payments in relation to the first income year starting on or after the first 1 July after the day on which the Tax Laws Amendment (Election Commitments No. 1) Act 2008 receives the Royal Assent; or

(4) An information exchange country is a foreign country or foreign territory specified in the regulations for the purposes of this section.

(5) This section does not apply to an amount paid by a * managed investment trust to the extent that no * managed investment trust withholding tax is payable in respect of the payment or an amount reasonably attributable to the payment.

(1) A * custodian must withhold an amount from a payment (the later payment ) it makes if:

(a) all or some of the later payment (the covered part ) is reasonably attributable to the part of an earlier payment received by the custodian that was covered by a notice or information under section 12-395; and

Note 1: The covered part referred to in paragraph (1)(a) is attributable to a fund payment made by a managed investment trust, or 2 or more fund payments made by one or more managed investment trusts.

Note 2: An entity may be covered by section 12-410 if the entity has an address outside Australia or payment is authorised to be made to a place outside Australia.

Note 3: If the payment is made to a recipient not covered by section 12-410, the custodian is required to give a notice to the recipient or publish information on a website setting out certain details about the payment: see section 12-395.

(a) if the address or place for payment of the recipient is in an * information exchange country:

(4) An entity that is not a * managed investment trust or a * custodian must withhold an amount from a payment it receives if:

(a) the payment or part of it (the covered part ) was covered by a notice or information under section 12-395; and

(ii) to have the entity credit to the recipient, or otherwise deal with on the recipient's behalf or as the recipient directs;

an amount (the attributable amount ) reasonably attributable to the covered part.

Note: If the recipient not a foreign resident, the entity is required to give a notice to the recipient or publish information on a website setting out certain details about the payment: see section 12-395.

(a) the entity is a resident of that country for the purposes of the taxation laws of that country; or

(b) if there are no taxation laws of that country applicable to the entity or the entity's residency status cannot be determined under those laws:

(i) for an individual--the individual is ordinarily resident in that country; or

(ii) for another entity--the entity is incorporated or formed in that country and is carrying on a business in that country.

(a) if the recipient is so entitled when the entity receives the payment--immediately after receipt; or

(b) if the recipient becomes so entitled at a later time--immediately after the later time.

(9) An entity is a custodian if the entity is * carrying on a * business that consists predominantly of providing a custodial or depository service (as defined by section 766E of the Corporations Act 2001 ) pursuant to an * Australian financial services licence.

(a) to a company unless the company would, apart from section 12-420, be acting in the capacity as * agent for the recipient; or

(b) to an amount paid or received by an entity to the extent that no * managed investment trust withholding tax is payable in respect of the amount or an amount reasonably attributable to the amount.

(1) An entity that is a * managed investment trust or a * custodian must comply with subsection (2) if:

(a) the entity makes a payment to another entity (the recipient ) from which an amount would have been required to be withheld under section 12-385 or subsection 12-390(1) if the payment had been made to an entity covered by section 12-410; and

(b) an amount is not required to be withheld from the payment because the recipient is not an entity covered by section 12-410.

Note: An entity may be covered by section 12-410 if the entity has an address outside Australia or payment is authorised to be made to a place outside Australia.

(a) give to the recipient a written notice containing the details specified in subsection (3); or

(b) make those details available on a website in a way that the details are readily accessible to the recipient for not less than 5 continuous years.

(3) The notice must be given, or the details must be made available on a website, before or at the time when the payment is made and:

(a) must specify the part of the payment from which an amount would have been so required to have been withheld; and

(b) must specify the income year of the * managed investment trust to which that part relates.

Note: Failure to give the notice or make the details available as required by this section incurs an administrative penalty: see section 12-415.

(4) An entity that is not a * managed investment trust or a * custodian must comply with subsection (5) if:

(ii) to have the entity credit to the recipient, or otherwise deal with on the recipient's behalf or as the recipient directs;

(c) the entity would have been required to withhold an amount from the payment under subsection 12-390(4) if the recipient had been a foreign resident; and

(d) an amount is not required to be withheld from the payment because the recipient is not a foreign resident.

(a) give to the recipient a written notice containing the details specified in subsection (6); or

(b) make those details available on a website in a way that the details are readily accessible to the recipient for not less than 5 continuous years.

(6) The notice must be given, or the details must be made available on a website, before or at the time when the amount is paid or credited to the recipient, or is dealt with on the recipient's behalf or as the recipient directs, and:

(a) must specify the part of the payment referred to in paragraph (4)(a) from which an amount would have been so required to have been withheld; and

(b) must specify the income year of the * managed investment trust to which that part relates.

Note: Failure to give the notice or make the details available as required by this section incurs an administrative penalty: see section 12-415.

(1) A trust is a managed investment trust in relation to an income year if:

(a) at the time the trustee of the trust makes the first * fund payment in relation to the income year, or at an earlier time in the income year:

(b) the trust is not a trust covered by subsection (2) (trading trust etc.) in relation to the income year; and

(c) a substantial proportion of the investment management activities carried out in relation to the trust in respect of all of the following assets of the trust are carried out in Australia throughout the income year:

(ii) assets that are * taxable Australian property at any time in the income year;

(iii) assets that are * shares, units or interests listed for quotation in the official list of an * approved stock exchange in Australia at any time in the income year; and

(d) at the time the payment is made, the trust is a managed investment scheme (within the meaning of section 9 of the Corporations Act 2001 ); and

(i) the trust is covered by section 12-401 (trusts with wholesale membership); or

(ii) if the trust is not covered by section 12-401--the trust is registered under section 601EB of the Corporations Act 2001 ; and

(i) if, at the time the payment is made, the trust is registered under section 601EB of the Corporations Act 2001 and is covered by section 12-401--either or both of the widely-held requirements in subsections 12-402(1) and 12-402A(1); or

(ii) if, at the time the payment is made, the trust is so registered and is not covered by section 12-401--either or both of the widely-held requirements in subsections 12-402(1A) and 12-402A(1); or

(iii) if, at the time the payment is made, the trust is not so registered and is covered by section 12-401--the widely-held requirements in subsection 12-402(1); and

(g) the trust satisfies the closely-held restrictions in subsection 12-402B(1) in relation to the income year; and

(h) if the trust is covered by section 12-401 at the time the payment is made--it satisfies the licensing requirements in section 12-403 in relation to the income year.

Trading unit trust or other trust carrying on trading business etc. cannot be managed investment trust

(a) in the case of a unit trust--the trust is a trading trust for the purposes of Division 6C in Part III of the Income Tax Assessment Act 1936 in relation to the income year; or

(ii) controlled, or was able to control, directly or indirectly, the affairs or operations of another person in respect of the carrying on by that other person of a trading business (within the meaning of that Division).

(3) For the purposes of paragraphs (1)(e) and (f), treat an entity as registered under section 601EB of the Corporations Act 2001 at the time the payment is made if at that time the trust is operated by:

(a) an entity that would, but for subsection 5A(4) of that Act (about the Crown not being bound by Chapter 6CA or 7 of that Act), be required under that Act to be a financial services licensee (within the meaning of section 761A of that Act) whose licence would cover operating such a managed investment scheme; or

(i) is a * wholly-owned subsidiary of an entity of a kind mentioned in paragraph (a); and

(ii) would, but for any instrument issued by ASIC under that Act that has effect in relation to the entity and operation of the scheme mentioned in paragraph 12-400(1)(d), be required under that Act to be a financial services licensee (within the meaning of section 761A of that Act) whose licence would cover operating such a managed investment scheme.

(b) the trust ceases to exist during the income year, and was a * managed investment trust (disregarding paragraph (a)) in relation to the previous income year.

(a) the trust is not required to be registered in accordance with section 601ED of the Corporations Act 2001 (whether or not it is actually so registered) because of subsection 601ED(2) of that Act (no product disclosure statement required) or because it is operated or managed by an entity covered by subsection 12-403(2) (Crown entities); and

(b) the total number of entities that had become a * member of the trust because a financial product or a financial service was provided to, or acquired by, the entity as a retail client (within the meaning of sections 761G and 761GA of the Corporations Act 2001 ) is no more than 20; and

(1) The trust satisfies the requirements in this subsection in relation to the income year if, at the time the payment mentioned in paragraph 12-400(1)(a) is made, the trust has at least 25 * members.

(1A) The trust satisfies the requirements in this subsection in relation to the income year if, at the time the payment mentioned in paragraph 12-400(1)(a) is made:

(a) units in the trust are listed for quotation in the official list of an * approved stock exchange in Australia; or

(2) For the purposes of subsection (1) and paragraph (1A)(b), determine the number of * members of the trust as follows:

(i) the members of the trust that are not entities covered by subsection (3); and

(i) work out the *MIT participation interest in the trust of each entity mentioned in subparagraph (a)(ii); and

(ii) for each of those entities, multiply the total of its MIT participation interest in the trust by 50 and round the result upwards to the nearest whole number; and

(iii) work out the total of the results of subparagraph (ii) for all of those entities;

(b) a * complying superannuation fund, a * complying approved deposit fund or a * foreign superannuation fund, being a fund that has at least 50 * members;

(c) a * pooled superannuation trust that has at least one member that is a complying superannuation fund that has at least 50 members;

(e) an entity that is recognised under a * foreign law as being used for collective investment by means of pooling the contributions of at least 50 members of the entity as consideration to acquire rights to benefits produced by the entity, if the members of the entity do not have day-to-day control over the operation of the entity;

(f) an entity, the principal purpose of which is to fund pensions (including disability and similar benefits) for the citizens or other contributors of a foreign country, if:

(i) the entity is a fund established by an * exempt foreign government agency; or

(ii) the entity is established under a foreign law for an exempt foreign government agency; or

(iii) the entity is a * wholly-owned subsidiary of an entity mentioned in subparagraph (i) or (ii);

(i) the entity is wholly-owned by one or more * foreign government agencies, or is a wholly-owned subsidiary of one or more foreign government agencies;

(ii) the entity is established using only the public money or public property of the foreign government concerned;

(iii) all economic benefits obtained by the entity have passed, or are expected to pass, to the foreign government concerned;

(h) an entity established and wholly-owned by an * Australian government agency, if the capital of the entity, and returns from the investment of that capital, are used for the primary purpose of meeting statutory government liabilities or obligations (such as superannuation liabilities and liabilities arising from compensation or workcover claims);

(i) an entity of a kind similar to an entity mentioned in the preceding paragraphs of this subsection as specified in the regulations.

(a) if an entity that is not a trust holds interests in the trust indirectly, through a * chain of trusts:

(ba) if the trust is mentioned in subparagraph 12-400(1)(e)(i) (trusts with wholesale membership)--do not treat an individual as a member of the trust (other than an individual who became a member of the trust because a financial product or a financial service was provided to, or acquired by, the individual as a wholesale client (within the meaning of section 761G of the Corporations Act 2001 ));

(5) For the purposes of paragraph (4)(a), treat an entity covered by subsection (3) as an entity that is not a trust.

(iii) each entity acting in the capacity of nominee of an individual mentioned in subparagraph (i) or (ii);

(b) treat the following entities as together being one entity (the notional entity ):

(ii) each entity acting in the capacity of nominee of the entity mentioned in subparagraph (i).

(7) For the purposes of subsection (4), if the entity mentioned in subparagraph (6)(b)(i) is an entity covered by subsection (3), treat the notional entity as an entity covered by subsection (3).

(i) an entity covered by subsection 12-402(3) has a * MIT participation interest (the first interest ) in the trust; and

(ii) another entity covered by subsection 12-402(3) also has a MIT participation interest (the second interest ) in the trust;

disregard the second interest to the extent that it arises through the existence of the first interest; and

(b) if an entity that is not a trust has a MIT participation interest in the trust because it holds interests in the trust indirectly, through a * chain of trusts--do not treat a trust in the chain of trusts as having a MIT participation interest in the trust.

(3) For the purposes of paragraph (2)(b), treat an entity covered by subsection 12-402(3) as an entity that is not a trust.

(4) For the purposes of paragraphs (1)(a) and (b), apply the rules in subsection 12-402(6).

(1) The trust satisfies the requirements in this subsection in relation to the income year unless, at any time in the income year, any of the following situations exist:

(a) for a trust mentioned in subparagraph 12-400(1)(e)(i) (trusts with wholesale membership)--10 or fewer persons have a total * MIT participation interest in the trust of 75% or more;

(b) if paragraph (a) does not apply--20 or fewer persons have a total MIT participation interest in the trust of 75% or more;

(a) if an entity covered by subsection 12-402(3) has a * MIT participation interest in the trust--treat that entity as not having a MIT participation interest in the trust; and

(b) if an entity that is not a trust has a MIT participation interest in the trust because it holds interests in the trust indirectly, through a * chain of trusts:

(i) if the entity is covered by subsection 12-402(3)--do not treat it as having a MIT participation interest in the trust; and

(ii) do not treat a trust in the chain of trusts as having a MIT participation interest in the trust.

(3) For the purposes of paragraph (2)(b), treat an entity covered by subsection 12-402(3) as an entity that is not a trust.

(4) For the purposes of paragraphs (1)(a) and (b), apply the rules in subsection 12-402(6).

(1) The trust satisfies the requirements in this section in relation to the income year if, at the time the payment mentioned in paragraph 12-400(1)(a) is made (the time of the first fund payment for the income year):

(i) a financial services licensee (within the meaning of section 761A of the Corporations Act 2001 ) holding an Australian financial services licence whose licence covers it providing financial services (within the meaning of section 766A of that Act) to wholesale clients (within the meaning of section 761G of that Act); or

(ii) an authorised representative (within the meaning of section 761A of that Act) of such a financial services licensee; or

(2) An entity is covered by this subsection if it would, but for subsection 5A(4) of that Act (about the Crown not being bound by Chapter 6CA or 7 of that Act), be required under the Corporations Act 2001 to be a financial services licensee (within the meaning of section 761A of that Act).

(3) An entity is covered by this subsection if it would, but for any instrument issued by ASIC under that Act that has effect in relation to the entity and the operation of the scheme mentioned in paragraph 12-400(1)(d), be required under the Corporations Act 2001 to be a financial services licensee (within the meaning of section 761A of that Act).

(1) An entity has a MIT participation interest in a trust if the entity, directly or indirectly:

(a) holds, or has the right to * acquire, interests representing a percentage of the value of the interests in the trust; or

(b) has the control of, or the ability to control, a percentage of the rights attaching to * membership interests in the trust; or

(2) The MIT participation interest of the entity in the trust is the greatest of the percentages mentioned in paragraphs (1)(a), (b) and (c).

(1) The object of this section is to ensure that the total of the * fund payments that the trustee of a trust makes in relation to an income year equals, as nearly as practicable, the net income of the trust for the income year, disregarding these amounts ( excluded amounts ):

(a) a dividend (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936 ) that is subject to, or exempted from, a requirement to withhold under Subdivision 12-F;

(b) interest (as so defined) that is subject to, or exempted from, such a requirement;

(d) a * capital gain or * capital loss from a * CGT event that happens in relation to a * CGT asset that is not * taxable Australian property;

(2) Work out as follows how much of a payment (the actual payment ) made by the trustee of a trust in relation to an income year is a fund payment in relation to that year:

(3) The expected * net income of the trust and the expected amounts of future * fund payments are to be worked out on the basis of the trustee's knowledge when the actual payment is made.

(4) However, an amount is not a fund payment in relation to the income year unless it is paid:

(c) within a longer period (starting at the end of the period referred to in paragraph (b) and not exceeding 3 months) allowed by the Commissioner.

(5) The Commissioner may allow a longer period as mentioned in paragraph (4)(c) only if the Commissioner is of the opinion that the trustee was unable to make the payment during the income year, or within 3 months after the end of the income year, because of circumstances beyond the influence or control of the trustee.

(1) An entity (the recipient ) is covered by this section for a payment made to it by another entity (the payer ) if:

(a) according to any record that is in the payer's possession, or is kept or maintained on the payer's behalf, the recipient has an address outside Australia; or

(2) However, a recipient is not covered by this section for a payment if, at the time the payment was made, a * business the recipient carries on is carried on at or through an * Australian permanent establishment and the payment is attributable to that establishment.

(a) is required to give a notice, or make details available on a website, under section 12-395 in relation to:

(ii) an amount paid or credited to, or dealt with on behalf of or as directed by, another entity; and

is liable to pay to the Commissioner a penalty equal to the amount that would have been required to be withheld under this Subdivision (disregarding subsection 12-385(5) and paragraph 12-390(10)(b)) in relation to amounts attributable to the payment or amount if the notice had been given or the details had been made available.

Note: Division 298 in this Schedule contains machinery provisions for administrative penalties.

(a) a payment (the first payment ) made to an entity (the first entity ) in the capacity as * agent for another entity; and

(b) another payment made by the first entity to the extent that it is reasonably attributable to the first payment.

(2) This Subdivision has effect as if the first entity were not an * agent in relation to the payments.

Note: As a result of subsection (2), an agent may be required to withhold amounts under this Subdivision.

13-5 Payment to the Commissioner in respect of alienated personal services payments

13-20 Time for payments to Commissioner for alienated personal services payments made during 2000-01

The object of this Division is to ensure the efficient collection of income tax (and other liabilities) on any * personal services income included in an individual's assessable income under Division 86 of the Income Tax Assessment Act 1997 by:

(a) putting * personal services entities receiving * alienated personal services payments in a position similar to their position if amounts were withheld from the payments under Division 12; but

(b) doing so in a way that enables them to comply with their obligations without having to withhold amounts separately from each payment.

Note: Under Division 86 of the Income Tax Assessment Act 1997 (about alienation of personal services income), an individual's personal services income that is gained or produced by another entity is in some cases included in the individual's assessable income. Payments of this income by the entity might not be caught by Division 12.

13-5 Payment to the Commissioner in respect of alienated personal services payments

(1) A * personal services entity must pay an amount of tax to the Commissioner i f:

(a) it receives an * alienated personal services payment that relates to an individual's personal services income; and

(b) it receives the payment during a * PAYG payment period for which it is a * personal services payment remitter.

Example: For the PAYG payment period of 1 April 2001 to 30 June 2001, NewIT Pty. Ltd. received amounts totalling $18,000 that were Ron's personal services income. NewIT does not conduct a personal services business.

During the period, NewIT paid Ron $3,000 in salary. This is a withholding payment covered by section 12-35 (step 1).

$15,000 of the amount NewIT received is included in Ron's assessable income under section 86-15 of the Income Tax Assessment Act 1997 (step 2).

If NewIT had paid the $15,000 in salary to Ron within 14 days after the end of the PAYG payment period, the amount that NewIT would have had to withhold under Division 12 on the total amount of $18,000 would have been $4,000 (step 3).

NewIT withheld $500 from the salary payment of $3,000, as required by section 12-35 (step 4).

On the basis of these facts, the amount NewIT must pay to the Commissioner (step 5) is:

(3) Subject to subsections (4) and (5), the * personal services entity must pay the amount to the Commissioner by the end of the 21st day after the end of the * PAYG payment period.

Note: A different rule applies for alienated personal services payments that large withholders and medium withholders make during the 2000-01 income year. See section 13-20.

(a) the * personal services entity is a * deferred BAS payer on the 21st day after the end of the * PAYG payment period; and

Payments by * deferred BAS payers
1	30 September	the following 28 October
2	31 December	the following 28 February
3	31 March	the following 28 April
4	30 June	the following 28 July

(d) by the end of the 28th day of the next February if the PAYG payment period is a December.

An alienated personal services payment is a payment (including a payment in the form of a * non-cash benefit) that a * personal services entity receives and that relates to an amount that:

(b) would be so included but for the fact that the entity received the income in the course of conducting a * personal services business.

For valuation of non-cash benefits, see sections 21 and 21A of the Income Tax Assessment Act 1936 .

(1) A * personal services entity is a personal services payment remitter for a * PAYG payment period if, in the income year preceding that period:

(a) the entity's * ordinary income or * statutory income included a person's * personal services income; and

(2) A * personal services entity is a personal services payment remitter for a * PAYG payment period if:

(a) the entity's * ordinary income or * statutory income did not include an individual's * personal services income in any income year preceding that period; and

(b) it is reasonable to expect that, in the income year during which the period occurs, the entity's income will include a person's * personal services income that the entity will not have received in the course of conducting a * personal services business.

(3) It is not reasonable to expect that the * personal services entity will receive a person's * personal services income in the course of conducting a * personal services business if it is reasonable to expect that:

(a) the entity will receive at least 80% of that income from the same entity (or one entity and its * associates) ; and

(b) the entity will not meet the results test under section 87-18 of the Income Tax Assessment Act 1997 .

(4) However, a * personal services entity is not a personal services payment remitter for a * PAYG payment period if, during that period or an earlier PAYG payment period in the same income year, a * personal services business determination relating to the entity takes effect.

13-20 Time for payments to Commissioner for alienated personal services payments made during 2000-01

(a) a * personal services entity must, under section 13-5, pay an amount for * alienated personal services payments it received during a particular * PAYG payment period; and

(b) the period ends in a * quarter in the * financial year starting on 1 July 2000;

the payment must be paid to the Commissioner by the end of the 21st day after the end of the quarter.

(a) the * personal services entity is a * deferred BAS payer on the 21st day after the end of the * quarter; and

the payment must be paid to the Commissioner by the end of the 28th day after the end of that quarter.

14-5 Provider of non-cash benefit must pay amount to the Commissioner if payment would be subject to withholding

14-10 Dividend, interest or royalty received, for a foreign resident, in the form of a non-cash benefit

(a) to put entities that provide * non-cash benefits, and entities that receive them, in a position similar to their position under Division 12 if payments of money had been made instead of the non-cash benefits being provided; and

(b) in that way, to prevent entities from avoiding their obligations under Division 12 by providing non-cash benefits.

(1) An entity (the payer ) must pay an amount to the Commissioner before providing a * non-cash benefit to another entity (the recipient ) if Division 12 would require the payer to withhold an amount (the notionally withheld amount ) if, instead of providing the benefit to the recipient, the payer made a payment to the recipient in money equal to the * market value of the benefit when the benefit is provided.

(2) The amount to be paid to the Commissioner is equal to the notionally withheld amount.

Example: Nick is a building contractor who has entered into a voluntary agreement with Mike for the purposes of section 12-55. Nick proposes to give Mike his old utility van (whose market value is $1,000) as payment for work Mike has done for him over a fortnight.

If Nick were instead to pay Mike $1,000, Nick would have had to withhold $203 under Division 12 (in accordance with withholding rates current at the time).

This section requires Nick to pay $203 to the Commissioner before giving the van to Mike.

(c) a benefit that would be an exempt benefit under that Act if paragraphs (d) and (e) of the definition of employer in subsection 136(1) of that Act were omitted; or

(d) a benefit constituted by the acquisition of an * ESS interest * under an employee share scheme to which Subdivision 83A-B or 83A-C of the Income Tax Assessment Act 1997 applies.

(b) section 12-215, 12-250 or 12-285 would have required the payer to withhold an amount if the dividend, interest or royalty had been a payment in money;

the payer must pay that amount to the Commissioner before providing the benefit (or part of it) to another entity.

(1) The payer may recover from the recipient as a debt an amount that the payer has paid to the Commissioner under section 14-5.

(2) If the payer has paid an amount to the Commissioner under section 14-10, the payer may:

(a) if the payer has provided all of the benefit to another entity-- recover the amount from that other entity as a debt; or

(b) if the payer has provided a part of the benefit to another entity--recover from that other entity as a debt the corresponding proportion of the amount paid to the Commissioner.

(3) If the payer can recover an amount from another entity under this section, the payer is entitled to set the amount off against debts due by the payer to the other entity.

The object of this Subdivision is to put the parties to a * Part VA investment with an accruing gain in a position similar to what would have been their position under Subdivision 12-E (Payments where TFN or ABN not quoted) if the * investment body had paid the gain in money to the * investor at the end of the income year.

(a) in relation to a * Part VA investment, an amount (the accrued gain ) is included in the * investor's assessable income for an income year under section 159GQ of the Income Tax Assessment Act 1936 (about gains accruing on securities); and

(i) is of a kind mentioned in item 1 or 2 of the table in subsection 202D(1) of that Act; or

(ii) is of a kind mentioned in item 3 of that table and is non-transferable; and

(d) section 12-140 would have required the * investment body to withhold an amount (the TFN withholding amount ) from a payment of the accrued gain to the investor, if the investment body had made the payment at the end of the income year and section 12-150 had not been enacted.

Note: Section 202D of the Income Tax Assessment Act 1936 lists the investments in connection with which tax file numbers are to be quoted.

(3) The * TFN withholding tax is payable jointly and severally by the * investor and the * investment body.

(4) However, if the * investment body is the Commonwealth or an * untaxable Commonwealth entity:

(b) the investor is taken to have authorised the investment body to pay the TFN withholding tax on the investor's behalf.

(5) The * TFN withholding tax is due and payable at the end of 21 days after the end of the income year referred to in paragraph (1)(a).

Note 1: When it is due and payable, the TFN withholding tax is payable to the Commissioner: see paragraph 255-5(1)(b).

Note 2: An entity by whom it is payable must pay it to the Commissioner in accordance with Subdivision 16-B: see subsection 16-70(3). If any of it remains unpaid, the entity is liable to pay general interest charge: see section 16-80.

Note 3: The Commissioner may defer the time at which TFN withholding tax becomes due and payable: see section 255-10.

(6) The adoption (under section 18 of the Income Tax Assessment Act 1936 ) of an accounting period ending on a day other than 30 June is disregarded for the purposes of:

(b) the application of Division 16E of Part III of that Act for the purposes of this section.

(1) The * investment body may recover from the * investor as a debt any of the * TFN withholding tax that it pays.

(2) The * investment body is entitled to set off an amount that it can recover from the * investor under this section against:

(b) an amount that is accruing to the investor, or stands to the investor's credit, in respect of the * Part VA investment, even if the amount is not yet due.

(a) subsection 18-15(1) and sections 18-20 and 18-25 (about credits for amounts withheld from withholding payments); and

apply as if any of the * TFN withholding tax that has been paid were an amount withheld under subsection 12-140(1) from a * withholding payment covered by that subsection and made to the * investor during:

(c) unless the * investor has adopted (under section 18 of the Income Tax Assessment Act 1936 ) an accounting period ending on a day other than 30 June--the income year referred to in paragraph 14-55(1)(a); or

(d) if the investor has adopted such an accounting period--the income year in which the TFN withholding tax is paid.

Note: Unless the investor has adopted such an accounting period, the credit under section 18-15, 18-20 or 18-25 will be in respect of the income year before the one in which the TFN withholding tax is paid.

(b) the * investor is not entitled to a credit under section 18-15, 18-20 or 18-25 in respect of the amount overpaid.

(1) A provision of a law passed before the commencement of this section that purports to exempt an entity from liability to pay * TFN withholding tax, or to pay taxes that include TFN withholding tax, does not exempt that entity from liability to pay TFN withholding tax.

(2) A provision of a law passed at or after the commencement of this section that purports to exempt an entity from liability to pay taxes under the laws of the Commonwealth, or to pay certain taxes under those laws that include * TFN withholding tax, is not to be interpreted as exempting the entity from liability to pay TFN withholding tax, unless it specifically mentions TFN withholding tax.

(a) a company (the provider ) provides one or more * ESS interests to an individual under an * employee share scheme; and

(b) as a result, an amount is included in the individual's assessable income under Division 83A of the Income Tax Assessment Act 1997 for an income year (taking into account subsection (2) of this section); and

(i) if the individual acquired the interests in relation to any services provided to the provider, or to a * subsidiary of the provider, in the course or furtherance of an * enterprise * carried on by the individual--the individual's * ABN;

(2) For the purposes of paragraph (1)(b), disregard section 83A-35 of the Income Tax Assessment Act 1997 (about reducing the amount included in the individual's assessable income).

Note: Disregard the 30 day rule in subsections 83A-115(3) and 83A-120(3) of the Income Tax Assessment Act 1997 for the purposes of this Subdivision: see subsection 392-5(6) in this Schedule.

(4) The * TFN withholding tax (ESS) is due and payable at the end of 21 days after the end of the income year referred to in paragraph (1)(b).

Note 1: When it is due and payable, the TFN withholding tax (ESS) is payable to the Commissioner: see paragraph 255-5(1)(b).

Note 2: The provider must pay the TFN withholding tax (ESS) to the Commissioner in accordance with Subdivision 16-B: see subsection 16-70(4). If any of it remains unpaid, the provider is liable to pay general interest charge: see section 16-80.

Note 3: The Commissioner may defer the time at which TFN withholding tax (ESS) becomes due and payable: see section 255-10.

(1) The individual is taken to have authorised a * subsidiary (the employer ) of the provider to inform the provider of the individual's * tax file number if:

(a) the individual has made a * TFN declaration in relation to the employer; and

(b) some or all of the * ESS interests mentioned in paragraph 14-155(1)(a) were provided to the individual in relation to the individual's employment by the employer.

(2) If the employer does so, the individual is taken, for the purposes of this Subdivision and Division 392 (Employee share scheme reporting), to have quoted his or her * tax file number to the provider.

(1) The provider may recover from the individual as a debt any of the * TFN withholding tax (ESS) the provider pays.

(2) The provider is entitled to set off an amount that the provider can recover from the individual under this section against a debt due by the provider to the individual.

(a) subsection 18-15(1) (about credits for amounts withheld from withholding payments); and

apply as if any of the * TFN withholding tax (ESS) that has been paid were an amount withheld under section 12-35 from a * withholding payment made to the individual and covered by that section.

(b) the individual is not entitled to a credit under section 18-15 in respect of the amount overpaid.

The following provisions of the Income Tax Assessment Act 1997 have effect for the purposes of this Subdivision in the same way as they have for the purposes of Division 83A of that Act:

(1) The amount that Subdivision 12-B, 12-C or 12-D requires to be withheld from a payment is to be worked out under the withholding schedules made under section 15-25. However, if the regulations prescribe how the amount is to be worked out, then it is to be worked out under the regulations.

Note 1: A TFN declaration, declaration under section 15-50 or voluntary agreement may affect how much is required to be withheld under the withholding schedules or regulations.

Note 2: The Commissioner may vary an amount required to be withheld. See section 15-15.

(2) The amount that Subdivision 12-E, 12-F, 12-FA, 12-FAA, 12-FB or 12-G (except one covered by section 12-325) requires to be withheld from a payment is to be worked out under the regulations.

Note 1: The amount that section 12-325 requires to be withheld is worked out under that section.

Note 2: The Commissioner may vary an amount required to be withheld. See section 15-15.

(3) The amount that Subdivision 12-H requires to be withheld from a payment or receipt is worked out under subsection 12-385(2), 12-390(2) or 12-390(5).

(1) The Commissioner may, for the purposes of meeting the special circumstances of a particular case or class of cases, vary the * amount required to be withheld by an entity from a * withholding payment (except a withholding payment covered by section 12-140, 12-145, 12-175 or 12-180 or Subdivision 12-H). If the Commissioner does so, the amount is varied accordingly.

Note 1: Section 12-140 is about a payment arising from an investment where the recipient does not quote its tax file number (or, in some cases, its ABN).

Note 2: Sections 12-175 and 12-180 are about a payment of the income of a closely held trust to a beneficiary, where the beneficiary does not quote the beneficiary's tax file number.

Note 3: Section 12-145 is about an investor becoming presently entitled to income of a unit trust.

Note 4: Subdivision 12-H is about distributions of managed investment trust income.

(2) The Commissioner's power to vary an amount includes the power to reduce the amount to nil.

(b) if it applies to a class of entities--that is given to each of the entities, or a copy of which is published in the Gazette .

(1) For the purposes of collecting income tax and the other liabilities referred to in paragraphs 11-1(b), (ca), (da) and (db), the Commissioner may make one or more withholding schedules specifying the amounts, formulas and procedures to be used for working out the * amount required to be withheld by an entity:

This subsection does not limit subsection 33(3A) of the Acts Interpretation Act 1901 .

(b) only applies in relation to payments made after the day the notice is published, or after such later day as is specified by the Commissioner in the notice.

The Commissioner must have regard to the following matters when making a withholding schedule:

(ca) the percentages specified in section 154-20 (about repayments of accumulated HELP debt) of the Higher Education Support Act 2003 for any financial year starting on or after 1 July 2005;

(da) the percentages specified in section 1061ZZFD (about repayments of accumulated FS debts) of the Social Security Act 1991 for any financial year starting on or after 1 July 2006;

(db) the percentages specified in section 12ZLC (about repayments of accumulated FS debts) of the Student Assistance Act 1973 for any financial year starting on or after 1 July 2006;

(1) For the purposes of collecting income tax and the other liabilities referred to in section 11-1, the regulations may specify the amounts, formulas and procedures to be used for working out the * amount required to be withheld by an entity from a * withholding payment covered by Division 12 (except one covered by section 12-325).

This subsection does not limit subsection 33(3A) of the Acts Interpretation Act 1901 .

(a) expects to receive a * withholding payment covered by Subdivision 12-B, 12-C or 12-D, or an * alienated personal services payment to which Division 13 applies, from an entity; and

(b) wishes to have a prescribed matter relating to the individual's income tax or other liability referred to in paragraph 11-1(b), (ca), (da) or (db) taken into account by the entity in working out the * amount required to be withheld from the payment;

(a) a * TFN declaration is in effect between the individual and the entity, or a * voluntary agreement covers the payment; and

(b) if the individual has given another entity a declaration on a prescribed matter--that declaration is not in effect.

(b) the individual made a statement about a prescribed matter in the TFN declaration; and

the individual may give the entity a declaration about the matter in the * approved form.

(a) the matters about which a declaration under subsection (1) or (3) may be given; and

(b) when a declaration under subsection (1) or (3) starts or ceases to be in effect; and

(a) an individual gives an entity a declaration under subsection (1) or (3) about a matter; and

the regulations may also prescribe when the individual must give the entity a new declaration about the matter.

16-35 Failure to withhold: administrative penalty for exempt Australian government agency in relation to payment other than dividend, interest or royalty

16-40 Failure to withhold: administrative penalty for exempt Australian government agency in relation to dividend, interest or royalty payment

If Division 12 requires an entity to withhold an amount from a payment, the entity must do so when making the payment.

Note 1: An entity is required to withhold an amount under section 12-145 when an investor becomes presently entitled to income of a unit trust.

Note 1A: A trustee of a closely held trust is required to withhold an amount under section 12-180 when a beneficiary is presently entitled to unpaid income of the trust.

Note 2: If section 12-215, 12-250 or 12-285, or subsection 12-390(4), requires an entity to withhold an amount from a payment received by the entity, the entity must do so at the time required by that provision.

is discharged from all liability to pay or account for that amount to any entity except the Commissioner.

Note: The entity may be required to refund the amount in some circumstances. See Subdivision 18-B.

Note 1: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Note 2: See sections 16-30, 16-35, 16-40 and 16-43 for an alternative administrative penalty.

(2) An entity must not fail to pay to the Commissioner an amount as required by Division 13 or 14.

Note 1: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Note 2: See sections 16-30, 16-35, 16-40 and 16-43 for an alternative administrative penalty.

(a) a failure by that person or someone else to withhold an amount as required by Division 12; or

(b) a failure by that person or someone else to pay to the Commissioner an amount as required by Division 13 or 14;

the court may order the convicted person to pay to the Commissioner an amount up to the * amount required to be withheld. The court may so order in addition to imposing a penalty on the convicted person.

(b) fails to pay an amount to the Commissioner as required by Division 13 or 14;

Note 1: An entity may become liable under this section in respect of a payment it made or received that is taken to have been subject to withholding tax as a result of a Commissioner's determination under subsection 177F(2A) of the Income Tax Assessment Act 1936 (see also subsection 177F(2F) of that Act).

Note 2: Division 298 in this Schedule contains machinery provisions for administrative penalties.

Note 1: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Note 2: Division 298 in this Schedule contains machinery provisions for administrative and civil penalties.

(4) This section does not apply in relation to an * amount required to be withheld from a * withholding payment covered by Subdivision 12-F (about dividend, interest or royalty payment) or by Subdivision 12-FB (about payments to foreign residents).

(a) fails to withhold an amount as required by Division 12 from a * withholding payment covered by Subdivision 12-F (about dividend, interest or royalty payment); or

(b) fails to pay to the Commissioner an amount as required by Division 14 in respect of a withholding payment covered by that Subdivision;

Note 1: An exempt Australian government agency may become liable under this section in respect of a payment it made or received that is taken to have been subject to withholding tax as a result of a Commissioner's determination under subsection 177F(2A) of the Income Tax Assessment Act 1936 (see also subsection 177F(2F) of that Act).

Note 2: Division 298 in this Schedule contains machinery provisions for administrative penalties.

(a) fails to withhold an amount as required by Division 12 from a * withholding payment covered by Subdivision 12-FB (about payments to foreign residents); or

(b) fails to pay to the Commissioner an amount as required by Division 14 in respect of a withholding payment covered by that Subdivision;

Note: Division 298 in this Schedule contains machinery provisions for administrative penalties.

(1) An entity that withholds an amount under Division 12 must pay the amount to the Commissioner in accordance with this Subdivision.

(2) An entity that must pay an amount to the Commissioner under Division 13 or Subdivision 14-A must do so in accordance with section 16-85.

(3) An entity that must pay an amount to the Commissioner under Subdivision 14-B must do so in accordance with sections 16-80 and 16-85.

(4) An entity that must pay an amount to the Commissioner under Subdivision 14-C must do so in accordance with sections 16-80 and 16-85.

Note: For provisions about collection and recovery of amounts payable to the Commissioner under this Part, see Part 4-15.

(1) A * large withholder must pay to the Commissioner as shown in the table an amount it withholds under Division 12 (other than section 12-175 or 12-180) during a month.

Payments by large withholders
1	Saturday or Sunday	The second Monday after that day
2	Monday or Tuesday	The first Monday after that day
3	Wednesday	The second Thursday after that day
4	Thursday or Friday	The first Thursday after that day

(2) Subject to subsection (2A), a * medium withholder must pay to the Commissioner an amount that it withholds during a month under Division 12 (other than section 12-175 or 12-180) by the end of the 21st day of the next month.

(a) withholds an amount during a month under Division 12 (other than section 12-175 or 12-180); and

(b) is a * deferred BAS payer on the 21st day of the month (the next month ) following that month;

the medium withholder must pay that amount to the Commissioner by the end of the 28th day of:

(3) Subject to subsection (4), if a * small withholder withholds an amount under Division 12 (other than section 12-175 or 12-180) during a month in a * quarter, it must pay the amount to the Commissioner by the end of the 21st day of the month after the end of that quarter.

(a) withholds an amount under Division 12 (other than section 12-175 or 12-180) during a month in a * quarter; and

(b) is a * deferred BAS payer on the 21st day of the month after the end of that quarter;

the small withholder must pay that amount to the Commissioner as shown in the table:

Payments by * deferred BAS payers
1	30 September	the following 28 October
2	31 December	the following 28 February
3	31 March	the following 28 April
4	30 June	the following 28 July

(5) A trustee must pay to the Commissioner an amount the trustee withholds under section 12-175 or 12-180 from a payment made during an income year. The trustee must do so:

(a) by the end of the 28th day of the next month following the day by which the trustee was required to give to the Commissioner a report under subsection 16-152(1) for the income year; or

If an amount that an entity must pay to the Commissioner under subsection 16-70(1), (3) or (4) remains unpaid after the time by which it is due to be paid, the entity is liable to pay * general interest charge on the unpaid amount for each day in the period that:

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

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

(1) A * large withholder must pay to the Commissioner by a means of * electronic payment:

Note 1: A different rule applies for some large withholders for July and August 2000. See section 16-130.

Note 2: A penalty applies if a large withholder fails to pay electronically as required--see section 288-20.

Note 3: A large withholder must also pay other tax debts electronically--see section 8AAZMA.

by a means of * electronic payment, or any other means approved in writing by the Commissioner.

(3) The Commissioner may, with an entity's agreement, vary the means by which the withholder pays amounts to the Commissioner under this Subdivision. The variation must be by written notice given to the entity.

(1) An entity is a large withholder for a particular month (the current month ) in a * financial year starting on or after 1 July 2001 if:

(b) the * amounts withheld by the entity during a financial year ending at least 2 months before the current month exceeded $1 million; or

(i) at the end of a financial year (the threshold year ) ending at least 2 months before the current month, the entity was one of a number of companies that were at that time all members of the same * wholly-owned group;

(ii) the amounts withheld by those companies during the threshold year exceeded $1 million; or

(d) the Commissioner determines under section 16-115 that the entity is a large withholder for the current month.

Note: Different rules apply for working out who is a large withholder for a month in 2000-01. See section 16-125.

(2) However, the entity is not a * large withholder if the Commissioner determines under section 16-110 that it is a * medium withholder or a * small withholder for the current month.

(1) An entity is a medium withholder for a particular month (the current month ) in a * financial year starting on or after 1 July 2001 if it is not a * large withholder for that month and:

(b) the * amounts withheld by the entity during a financial year ending before the current month exceeded $25,000; or

(c) the Commissioner determines under section 16-110 or 16-115 that the entity is a medium withholder for the current month.

Note: Different rules apply for working out who is a large withholder for a month in 2000-01. See section 16-125.

(2) However, the entity is not a * medium withholder if the Commissioner determines under section 16-110 or 16-115 that the entity is a * large withholder or a * small withholder for the current month.

(a) there is at least one * amount withheld by the entity during that month; and

(b) the entity is neither a * large withholder nor a * medium withholder for that month.

(i) a determination that a * large withholder is a * medium withholder or a * small withholder;

(3) The determination has no effect for a particular month unless the notice is given before that month.

(4) An entity that would otherwise be a * large withholder or a * medium withholder for a particular month may apply in writing to the Commissioner for a determination under this section.

Note: A person who is dissatisfied with a decision under this section may object against the decision in the manner set out in Part IVC.

(i) a determination that a * small withholder is a * medium withholder or a * large withholder;

(3) A determination that a * small withholder is a * medium withholder has no effect for a particular month unless the notice is given before that month.

(4) Any other determination under this section has no effect for a month that is earlier than the second month after the month in which the notice is given.

(5) The Commissioner may, in making a determination under this section, have regard to the following:

(a) the sum of the amounts that the Commissioner considers to be likely to be the * amounts required to be withheld by the entity in the following 12 months;

(b) the extent (if any) to which the entity makes or receives * withholding payments that were previously made or received by another entity;

(d) any * arrangement that was entered into or carried out for the purpose of lengthening the intervals at which the entity is required to pay to the Commissioner amounts withheld from withholding payments;

Note: A person who is dissatisfied with a decision under this section may object against the decision in the manner set out in Part IVC.

(aa) Division 13 (about payments in respect of alienated personal services payments); or

(2) The entity must apply in the * approved form by the day on which the entity is first required:

(3) An entity that contravenes this section is liable to an administrative penalty of 5 penalty units.

Note 1: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Note 2: Division 298 contains machinery provisions for administrative and civil penalties.

(a) the entity applies, in the * approved form, for registration of the branch; and

(c) the Commissioner is satisfied that the branch maintains an independent system of accounting, and can be separately identified by reference to:

(d) the Commissioner is satisfied that the entity is * carrying on an enterprise through the branch, or intends to carry on an enterprise through the branch, from a particular date specified in the application.

Note: A branch may be both a PAYG withholding branch under this Subdivision and a GST branch under the GST Act.

(2) The Commissioner may register a branch of a * government entity or a * non-profit sub-entity if:

(a) the branch or sub-entity applies, in the * approved form, for registration; and

A branch or sub-entity that is so registered is also a PAYG withholding branch .

(1) If an entity has a * PAYG withholding branch, this Part applies to the entity as if the amounts that it must pay to the Commissioner under this Part were separated into the following classes:

(a) for each such branch of the entity, a class of amounts that relate to the branch; and

Note: This section does not impose any legal obligations on the branches. The entity remains legally responsible under this Part for all amounts that relate to its branches.

(2) Those amounts are worked out as if the branch were a separate entity and as if:

(a) all payments made through the branch, from which amounts are required to be withheld under Division 12, were made by that separate entity; and

(aa) all * alienated personal services payments received through the branch, in respect of which Division 13 requires an amount to be paid to the Commissioner, were received by that separate entity; and

(b) all non-cash benefits provided through the branch, in respect of which Division 14 requires an amount to be paid to the Commissioner, were provided by that separate entity.

The Commissioner must cancel the registration of a * PAYG withholding branch of an entity if the Commissioner is satisfied that the branch does not satisfy paragraph 16-142(c) or (d).

If an entity's registration is cancelled, the registration of any * PAYG withholding branches of the entity ceases to have effect.

16-165 Payment summaries for superannuation lump sums and payments for termination of employment

An entity that must pay an amount (even if it is a nil amount) to the Commissioner under:

(aa) Division 13 (about payments in respect of alienated personal services payments); or

must notify the Commissioner of the amount on or before the day on which the amount is due to be paid (regardless of whether it is paid). The notification must be in the * approved form and lodged with the Commissioner.

(1) A trustee must give a report to the Commissioner in the * approved form if the trustee made any * withholding payments covered by section 12-175 or 12-180 (about payments from the income of certain closely held trusts) during an income year.

(3) A trustee must give a report to the Commissioner in the * approved form if the trustee would be taken to have made any * withholding payments covered by section 12-175 or 12-180 during an income year if the relevant beneficiary had not * quoted the beneficiary's * tax file number as mentioned in paragraph 12-175(2)(a) or 12-180(2)(a).

Note: The effect of subsection (3) is that the trustee must report amounts distributed to beneficiaries even if the trustee was not required to withhold from those distributions.

(a) by the end of the day on which the trustee lodges the trust's * income tax return for the income year; or

(5) Subsections 16-153(5), (6) and (7) apply to this section in the same way as they apply to section 16-153.

(1) An entity must give a report to the Commissioner in the * approved form, not later than 31 October after the end of a * financial year, if during the financial year:

(a) the entity made any payment from which an amount was required to be withheld under section 12-190, Subdivision 12-F (other than section 12-215, 12-250 or 12-285), Subdivision 12-FA, section 12-315 or Subdivision 12-G; or

(b) the entity provided any * non-cash benefit in respect of which an amount was required to be paid to the Commissioner under Division 14 because of the application of that Division in relation to section 12-190, Subdivision 12-F (other than section 12-215, 12-250 or 12-285), Subdivision 12-FA, section 12-315 or Subdivision 12-G; or

(c) the entity received any payment from which an amount was required to be withheld under section 12-215, 12-250, 12-285 or 12-317; or

(d) the entity received any non-cash benefit in respect of which an amount was required to be paid to the Commissioner under Division 14 because of the application of that Division in relation to section 12-215, 12-250, 12-285 or 12-317.

(2) An entity must give a report to the Commissioner in the form required by subsection (3), not later than 14 August after the end of a * financial year, if during the financial year:

(a) the entity made any payment from which an amount was required to be withheld under Subdivision 12-B, 12-C or 12-D; or

(aa) the entity received any * alienated personal services payment in respect of which an amount was required to be paid to the Commissioner under Division 13; or

(c) any person has a * reportable fringe benefit amount for the income year ending at the end of the financial year in respect of the person's employment by the entity; or

(d) the entity made * reportable employer superannuation contributions in respect of a person's employment.

(i) copies of all the summaries that the entity gave in relation to the * financial year under section 16-155 in respect of payments, * non-cash benefits, * alienated personal services payments, * reportable fringe-benefit amounts and * reportable employer superannuation contributions covered by subsection (2) of this section; and

(4) An entity must give a report to the Commissioner in the * approved form if the entity is required to withhold amounts under Subdivision 12-H in relation to * fund payments made by a particular * managed investment trust (the paying trust ) in relation to an income year of that trust.

Note: The entity may be the managed investment trust itself or a custodian or other entity.

(a) not later than 14 days after the end of 6 months after the end of the income year of the * managed investment trust in relation to which the relevant * fund payments were made; or

(a) a requirement to pay a nil amount to the Commissioner is to be treated as a requirement to pay an amount to the Commissioner; and

(b) a requirement to withhold a nil amount is to be treated as a requirement to withhold an amount.

(6) The Commissioner may, to meet the special circumstances of a particular case or class of cases, vary the requirements of this section.

(b) if it applies to a class of entities--that is given to each of the entities, or a copy of which is published in the Gazette .

(1) Within 14 days after the end of a * financial year, an entity (the payer ) must give a * payment summary (and a copy of it) to another entity (the recipient ) if:

(a) during the year the payer made one or more * withholding payments (other than withholding payments covered by section 12-85, 12-175, 12-180, 12-190, 12-215, 12-250, 12-285, 12-317, 12-385 or 12-390) to the recipient; or

(b) during the year the payer received one or more withholding payments covered by section 12-215, 12-250 or 12-285 and, in relation to each of them, the recipient is the foreign resident mentioned in the section; or

(baa) during the year the payer received one or more withholding payments covered by section 12-317 and, in relation to each of them, the recipient is the likely foreign recipient mentioned in the section; or

(ba) during the year the payer received one or more withholding payments covered by Division 13 and, in relation to each of them, an amount is included in the recipient's assessable income under Division 86 of the Income Tax Assessment Act 1997 ; or

(bb) because of section 86-40 of the Income Tax Assessment Act 1997 , the payer is taken to have paid salary to the recipient on the last day of the year; or

(c) the recipient is an individual and has a * reportable fringe benefits amount, for the income year ending at the end of that financial year, in respect of his or her employment (within the meaning of the Fringe Benefits Tax Assessment Act 1986 ) by the payer; or

(d) the recipient is an individual and * reportable employer superannuation contributions have been made by the payer, in respect of the individual's employment, during the year.

(a) if paragraph (1)(a), (b) or (ba) applies--each of the * withholding payments mentioned in that paragraph, except one covered by a previous payment summary (and a copy of it) given by the payer to the recipient under section 16-160; and

(aa) if paragraph (1)(bb) applies--each of the withholding payments constituted by the salary mentioned in that paragraph, except one covered by a previous payment summary (and a copy of it) given by the payer to the recipient under section 16-160; and

(b) if paragraph (1)(c) applies--the * reportable fringe benefits amount, except so much of it as is covered by a previous payment summary (and a copy of it) given by the payer to the recipient under this section; and

(c) if paragraph (1)(d) applies--the total of the * reportable employer superannuation contributions, except so much of those contributions as are covered by a previous payment summary given by the payer to the recipient under section 16-160.

(3) Despite subsection (2), the * payment summary must not cover a * withholding payment if:

(a) the withholding payment is a payment of an amount purported to have been paid by way of * parental leave pay; and

(4) The payer must, within 28 days of becoming aware that the * payment summary covers a * withholding payment to which subsection (3) applies:

(a) give the recipient an amended payment summary that does not cover the withholding payment; or

(c) give the Secretary (within the meaning of the Paid Parental Leave Act 2010 ) notice in writing that the payer does not intend to give the recipient an amended payment summary or notice under this subsection.

(1) An entity (the payer ) must give a * payment summary to another entity (the recipient ) if the payer made * withholding payments covered by section 12-385 or 12-390 to the recipient in relation to * fund payments made by a particular * managed investment trust (the paying trust ) in relation to an income year of that trust.

Note: The entity may be the managed investment trust itself or a custodian or other entity.

(a) must cover each of the * withholding payments mentioned in subsection (1); and

(i) not later than 14 days after the end of 6 months after the end of the income year of the * managed investment trust in relation to which the relevant * fund payments were made; or

(1) An entity (the payer ) must give a * payment summary (and a copy of it) to another entity (the recipient ) if, not later than 21 days before the end of a * financial year, the recipient asks in writing for a payment summary covering:

(a) one or more * withholding payments (other than withholding payments covered by section 12-85, 12-190, 12-215, 12-250, 12-285, 12-317, 12-385 or 12-390) that the payer made to the recipient during the year; or

(b) one or more withholding payments covered by section 12-215, 12-250 or 12-285, or a part of each such payment, that the payer received during the year for the recipient, if the recipient is the foreign resident mentioned in the section; or

(ba) one or more withholding payments covered by section 12-317, or a part of each such payment, that the payer received during the year for the recipient, if the recipient is the likely foreign recipient mentioned in that section; or

(c) one or more withholding payments covered by Division 13 that the payer received during the year and that are included in the recipient's assessable income for the income year under section 86-15 of the Income Tax Assessment Act 1997 ; or

(d) * reportable employer superannuation contributions made by the payer, in respect of the recipient's employment, during the financial year;

other than a payment covered by a previous payment summary (and a copy of it) given under this section.

(2) The payer must comply with the request within 14 days after receiving it, unless the recipient is an individual and has a * reportable fringe benefits amount, for the income year ending at the end of that * financial year, in respect of his or her employment (within the meaning of the Fringe Benefits Tax Assessment Act 1986 ) by the payer.

(3) Despite subsection (1), the * payment summary must not cover a * withholding payment if:

(a) the withholding payment is a payment of an amount purported to have been paid by way of * parental leave pay; and

(b) at the time the recipient asks for the payment summary, the payer is aware that the amount was not lawfully so payable.

(1) Within 14 days after an entity (the payer ) makes a payment covered under subsection (2) to a person (the recipient ), the entity must:

(a) give a * payment summary to the recipient that covers the payment (and no other payments); and

(2) The following payments are covered under this subsection if they are * withholding payments:

(b) a payment that is an * employment termination payment or would be one except that it is received more than 12 months after termination of employment, other than a directed termination payment within the meaning of section 82-10F of the Income Tax (Transitional Provisions) Act 1997 .

Within 14 days after an entity (the payer ) makes a * departing Australia superannuation payment, the payer must:

(a) give a * payment summary that covers the payment to the recipient of the payment; and

(1) An entity (the payer ) that makes a * withholding payment covered by section 12-190 (about payments to recipients who do not quote their ABN) to another entity (the recipient ) must give the recipient a * payment summary (and a copy of it) that covers that payment, unless the * amount required to be withheld from the payment is nil.

(3) The payer must give the summary to the recipient when making the payment, or as soon as practicable afterwards.

(1) A payment summary (except one relating to section 12-175 or 12-180 or Subdivision 12-H) is a written statement that:

(b) if the recipient has given the recipient's * tax file number or * ABN to the payer--states the tax file number or ABN; and

(c) states the total of the * withholding payments (if any) that it covers, and the total of the * amounts withheld by the payer from those withholding payments; and

(d) specifies the * financial year in which the withholding payments were made; and

(e) specifies the * reportable fringe benefits amount (if any) that it covers and the income year to which that amount relates; and

(f) specifies the * reportable employer superannuation contributions (if any) that it covers and the income year to which those contributions relate; and

(1AAA) A payment summary relating to section 12-175 or 12-180 is a statement that:

(b) states the total of the * withholding payments (if any) that it covers, and the total of the * amounts withheld by the trustee from those withholding payments; and

(b) if the recipient has given the recipient's * tax file number or * ABN to the payer--states the tax file number or ABN; and

(c) states the total of the * withholding payments (if any) that it covers, and the total of the * amounts withheld by the payer from those withholding payments; and

(d) specifies the income year of the relevant * managed investment trust to which it relates.

(1A) For any of the * withholding payments to which paragraph 16-155(2)(aa) applies, paragraph (1)(d) is taken to refer to the * financial year preceding the financial year in which the withholding payments were received.

(2) The Commissioner may, in writing, require particular information to be included in a * payment summary or a class of payment summaries.

(3) A * payment summary may consist of 2 or more statements that each complies with subsection (1) and together cover what section 16-155, 16-156, 16-160, 16-165, 16-166 or 16-167 (as appropriate) requires the payment summary to cover.

(4) The Commissioner may vary any requirements under subsection (1), (1AAA), (2) or (3) by written notice given to an entity. The Commissioner may do so in such instances and to such extent as the Commissioner thinks fit.

(1) An entity must not fail to comply with any requirements under section 16-155, 16-156, 16-157, 16-160, 16-165, 16-166 or 16-167, or subsection 16-170(1), (1AAA), (1AA), (2) or (3) (including any requirements varied by the Commissioner under subsection 16-170(4)).

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

(1) The Commissioner may, having regard to the circumstances of a particular case or class of cases, exempt an entity from specified requirements of any of sections 16-155 to 16-167. If the Commissioner does so, the exemption has effect accordingly.

(b) if it applies to a class of entities--that is given to each of the entities, or a copy of which is published in the Gazette .

(1) A reportable employer superannuation contribution , for an individual for an income year, is an amount that has been, is, or will be contributed in respect of the income year:

(a) by an employer of the individual, or an * associate of the employer, for the individual's benefit; and

(c) the individual has or has had, or might reasonably be expected to have or have had, the capacity to influence the size of the amount;

(d) the individual has or has had, or might reasonably be expected to have or have had, the capacity to influence the way the amount was, is or will be contributed so that his or her assessable income is reduced.

(2) However, an amount is not a reportable employer superannuation contribution to the extent that it is included in the individual's assessable income for the income year.

(3) For the purposes of this section, employer has the expanded meaning given by section 12 of the Superannuation Guarantee (Administration) Act 1992 (assuming that subsection 12(11) of that Act had not been enacted).

(4) For the purposes of this section, disregard whether any * superannuation benefits arising from a contribution are payable to a * SIS dependant of the individual if the individual dies before or after becoming entitled to receive the benefits.

(5) For the purposes of paragraph (1)(c), treat the individual as neither having, nor being able reasonably to be expected to have, the capacity to influence the size of the amount if:

(b) the individual does not and did not have, and is not able reasonably to be expected to have or have had, the capacity to influence the content of that instrument or those rules, to the extent that the instrument or rules relate to:

(1) An entity that has paid an amount of penalty under section 16-30, 16-35 or 16-40 for a * withholding payment covered by:

may recover an amount equal to the amount of penalty from the person liable to pay the * withholding tax, or * mining withholding tax, for the withholding payment.

Note Sections 16-30, 16-35 and 16-40 provide for an administrative penalty for failing to comply with Division 12 or 14.

(2) Subsection (3) applies if an entity has paid an amount of penalty under section 12-415 to the Commissioner for a failure to give a notice, or to make details available on a website, as required by section 12-395 in relation to an amount (the relevant amount ).

(3) The entity may recover from another entity that is liable to pay * managed investment trust withholding tax in relation to an amount attributable to the relevant amount the lesser of:

(a) an amount equal to the amount of that tax that the other entity is liable to pay; and

18-A Crediting withheld amounts against liability for income tax, withholding tax or mining withholding tax

Subdivision 18-A -- Crediting withheld amounts against liability for income tax, withholding tax or mining withholding tax

Entitlement to credits: dividend, interest or royalty or amount attributable to fund payment

An entity is not entitled to a credit under this Subdivision for an * amount withheld from a * withholding payment to the extent that the amount must be refunded under Subdivision 18-B.

(1) The rules set out in sections 18-15, 18-20 and 18-25 do not apply to an * amount withheld from a * withholding payment that is covered by Subdivision 12-F (about dividend, interest or royalties), Subdivision 12-FA (about departing Australia superannuation payments), section 12-320 (about mining payments), Subdivision 12-H (about distributions of managed investment trust income) or Division 13 (about alienated personal services payments).

(2) If an entity withholds an amount from a * withholding payment as required by section 12-317, apply sections 18-15, 18-20 and 18-25 in relation to the payment as if the payment had been made to the likely foreign recipient mentioned in section 12-317 (instead of to the intermediary mentioned in that section).

(1) An entity is entitled to a credit equal to the total of the * amounts withheld from * withholding payments made to the entity during an income year if an assessment has been made of the income tax payable, or an assessment has been made that no income tax is payable, by the entity for the income year.

(2) To the extent that the entitlement to a credit is in respect of an * amount withheld from a * withholding payment to which paragraph 16-155(2)(aa) applies, the entitlement is treated as arising for the income year preceding the income year in which the withholding payment is made.

(1) An entity is entitled to a credit in respect of * amounts withheld from * withholding payments made to a partnership during an income year if:

(a) the entity has an individual interest in the net income or partnership loss of the partnership for that income year that is wholly or partly attributable to those withholding payments; and

(b) the * income tax return of the partnership for the income year has been lodged with the Commissioner; and

(c) an assessment has been made of the income tax payable, or an assessment has been made that no income tax is payable, by the entity for the income year.

"amounts withheld" means the sum of the * amounts withheld from the * withholding payments.

"individual interest" means so much of the individual interest of the partner as is attributable to the * withholding payments.

"net income/partnership loss" means so much of the net income or partnership loss for that income year as is attributable to the * withholding payments.

(1) An entity is entitled under subsection (2), (4), (6) or (8) to a credit in respect of * amounts withheld (the amounts withheld ) from * withholding payments made to the trustee of a trust during an income year.

(a) an amount is included in the assessable income of the beneficiary under section 97 of the Income Tax Assessment Act 1936 in respect of a share of the net income of the trust; and

(b) the share is wholly or partly attributable to the * withholding payments; and

(c) an assessment has been made of the income tax payable, or an assessment has been made that no income tax is payable, by the beneficiary for the income year.

"net income" means so much of the net income as is attributable to the * withholding payments.

"share of net income" means so much of that share of the net income as is attributable to the * withholding payments.

(a) under section 98 of the Income Tax Assessment Act 1936 the trustee is liable to be assessed, and to pay income tax, on an amount in respect of a share of the net income of the trust to which a beneficiary is presently entitled; and

(b) the share is wholly or partly attributable to the * withholding payments; and

"net income" means so much of the net income as is attributable to the * withholding payments.

"share of net income" means so much of that share of the net income as is attributable to the * withholding payments.

(a) under section 99 or 99A of the Income Tax Assessment Act 1936 , the trustee is liable to be assessed, and to pay income tax, on the net income of the trust, or on part of it; and

(b) the net income or that part of it is wholly or partly attributable to the * withholding payments; and

"net income" means so much of the net income as is attributable to the * withholding payments.

"part of net income" means so much of the net income, or of that part of it, as is attributable to the * withholding payments.

(8) If there is no net income of the trust for the income year, the trustee is entitled to a credit equal to the sum of the * amounts withheld from the * withholding payments.

An entity is entitled to a credit equal to the total of the amounts paid under Division 13 in respect of amounts included in the entity's assessable income for an income year under section 86-15 of the Income Tax Assessment Act 1997 if an assessment has been made of the income tax payable, or an assessment has been made that no income tax is payable, by the entity for the income year.

Entitlement to credits: dividend, interest or royalty or amount attributable to fund payment

(a) the entity's * ordinary income or * statutory income includes a * dividend (or a part of it), interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936 ) or a * royalty; and

(b) the entity has borne all or part of an * amount withheld from the dividend, interest or royalty.

Note: A taxpayer may also be entitled to a credit in relation to payment of interest under, or in relation to the transfer of, a qualifying security. See section 128NBA of the Income Tax Assessment Act 1936 .

(a) the entity's * ordinary income or * statutory income includes an amount that is represented by or reasonably attributable to a * fund payment; and

(b) the entity has borne all or part of an * amount withheld from the payment under Subdivision 12-H.

(a) an amount of penalty under section 16-30 or 16-40 to the Commissioner for a * withholding payment covered by Subdivision 12-F or 12-H; or

the entity liable to pay the * withholding tax for the withholding payment is entitled to a credit equal to the amount of penalty, or general interest charge, as appropriate.

(a) an amount of penalty under section 12-415 to the Commissioner for a failure to give a notice, or to make details available on a website, as required by section 12-395; or

the entity liable to pay the * managed investment trust withholding tax in relation to the amount (the relevant amount ) giving rise to the penalty is entitled to a credit equal to the lesser of:

(e) the amount of managed investment trust withholding tax (and any general interest charge under section 840-810 of the Income Tax Assessment Act 1997 ) in relation to the relevant amount.

(a) an entity has paid to the Commissioner an amount of penalty mentioned in paragraph (1)(a) or (1A)(a); and

(b) the Commissioner remits the whole or a part of the amount of the penalty under section 298-20;

(c) any credit under subsection (1) or (1A) relating to the amount paid to the Commissioner is reduced by the amount that is remitted; and

(d) the Commissioner must pay to the entity an amount equal to the amount that is remitted.

(b) the Commissioner remits the whole or a part of the amount of the charge under section 8AAG;

(d) the Commissioner must pay to the entity an amount equal to the amount that is remitted.

(a) an amount of penalty under Subdivision 284-C in relation to a * scheme to which section 177CA of the Income Tax Assessment Act 1936 applies for a * withholding payment; or

(b) an amount of * general interest charge under section 298-25 in relation to that amount;

the entity liable to pay the * withholding tax for that withholding payment is entitled to a credit equal to the amount paid by the entity.

(a) an entity has paid an amount under Subdivision 284-C in relation to a penalty mentioned in paragraph (1)(a); and

(b) the Commissioner remits the whole or a part of the amount of the penalty under section 298-20;

(c) any credit under subsection (1) relating to the amount paid by the entity is reduced by the amount that is remitted; and

(d) the Commissioner must pay to the entity an amount equal to the amount that is remitted.

(b) the Commissioner remits the whole or a part of the amount of the charge under section 8AAG;

(d) the Commissioner must pay to the entity an amount equal to the amount that is remitted.

(1) If there is an * amount withheld from a * withholding payment that is covered by section 12-305 (departing Australia superannuation payment), the entity liable to pay * withholding tax under section 301-175 of the Income Tax Assessment Act 1997 on the payment is entitled to a credit of an amount equal to the amount withheld.

(2) If an entity has paid to the Commissioner a penalty amount under section 16-30 or 16-35 in relation to an * amount required to be withheld under section 12-305 (departing Australia superannuation payment), the entity mentioned in subsection (1) is entitled to a credit equal to the penalty amount.

(3) If the Commissioner remits the whole or a part of the amount of penalty under section 298-20 that has been paid to the Commissioner by the entity:

(a) any credit that relates to the amount is reduced by the amount that is remitted; and

(b) the Commissioner must pay to the entity an amount equal to the amount that is remitted.

(1) If there is an * amount withheld from a * withholding payment that is covered by section 12-320 (mining payment):

(a) if paragraph (b) does not apply-- the entity liable to pay * mining withholding tax under section 128V of the Income Tax Assessment Act 1936 on the payment is entitled to a credit of an amount equal to the amount withheld; or

(b) if, under subsection 128U(4) of that Act, separate mining payments are taken to have been made to, or applied for the benefit of, 2 or more entities because of that payment--each of those entities is entitled to a credit equal to the amount worked out using the formula:

(2) If an entity has paid to the Commissioner a penalty amount under section 16-30 or 16-35 in relation to an * amount required to be withheld under section 12-320 (mining payment):

(a) if paragraph (1)(a) applies--the entity mentioned in that paragraph is entitled to a credit equal to the penalty amount; or

(b) if paragraph (1)(b) applies--each of the entities mentioned in that paragraph is entitled to a credit of an amount worked out using the formula:

(3) If the Commissioner remits the whole or a part of the amount of penalty under section 298-20 that has been paid to the Commissioner by the entity:

(a) any credit that relates to the amount is reduced by the amount that is remitted; and

(b) the Commissioner must pay to the entity an amount equal to the amount that is remitted.

18-80 Refund by Commissioner of amount withheld from payment in respect of investment

(1) An entity (the payer ) must refund to another entity (the recipient ) an amount if:

(i) withheld the amount purportedly under Division 12 from a payment made to, or received for, the recipient (whether the amount has been paid to the Commissioner or not); or

(ia) paid the amount to the Commissioner purportedly under Division 13 for an * alienated personal services payment in relation to which an amount is included in the recipient's assessable income year under section 86-15 of the Income Tax Assessment Act 1997 ; or

(ii) paid the amount to the Commissioner purportedly under Division 14 for a * non-cash benefit provided to, or received for, the recipient; and

(ii) in the case of an amount withheld from a payment of an amount purported to have been paid by way of * parental leave pay--the amount paid was not lawfully so payable; and

before the end of the * financial year in which the amount was so withheld or paid to the Commissioner; and

(d) any information requested by the payer under subsection (3) has been given to the payer, or the time for making the request (see subsection (4)) has passed without such a request being made.

(2) The amount that must be refunded under subsection (1) is a debt recoverable by the recipient from the payer.

(b) in any case--evidence of the basis on which the recipient is taken to have quoted its tax file number to the payer; or

(c) if the payment or * non-cash benefit was in respect of a * Part VA investment made by the recipient in the course or furtherance of an * enterprise carried on by it--the recipient's * ABN;

(d) the payment, * alienated personal services payment or non-cash benefit was in respect of any of the following provisions:

(ii) Subdivision 12-C (Payments for retirement or because of termination of employment);

(iv) section 12-140 or 12-145 (recipient does not quote tax file number or ABN);

(v) section 12-175 or 12-180 (Payment of income of closely held trust where TFN not quoted); and

(e) when the application for the refund is made, or when the payer otherwise becomes aware of the matter mentioned in paragraph (1)(b) of this section, the payer has a record of none of the following:

(ii) the basis on which the recipient is taken to have quoted the tax file number to the payer;

(4) The request must be made within 7 working days (of the payer) after the payer receives the application for the refund or after the payer otherwise becomes aware of the matter mentioned in paragraph (1)(b) (as appropriate).

(5) If a payer refunds an amount under subsection (1), the payer may recover from the Commissioner as a debt due to the payer so much of the amount:

(a) which is withheld as mentioned in subparagraph (1)(a)(i) and paid to the Commissioner, or which is paid to the Commissioner as mentioned in subparagraph (1)(a)(ia) or (ii); and

(a) a payer refunds an amount (the refunded amount ) under subsection (1); and

(b) the amount withheld as mentioned in subparagraph (1)(a)(i) that the payer has paid to the Commissioner, or the amount paid to the Commissioner as mentioned in subparagraph (1)(a)(ia) or (ii), is equal to all or a part of the refunded amount; and

(c) apart from this subsection, the payer would be required to pay to the Commissioner another amount or amounts under Division 13 or 14 or subsection 16-70(1) (the payment to the Commissioner ); and

(d) the payer records in writing that it offsets all or a part of the amount paid to the Commissioner (as mentioned in paragraph (b)) against the payment to the Commissioner;

the payment to the Commissioner is reduced by so much of the amount as the payer so recorded as being offset.

(1) An entity (the recipient ) may apply in writing to the Commissioner for the refund of an amount if:

(i) withheld an amount purportedly under Division 12 from a payment made to, or received for, the recipient; or

(ii) paid to the Commissioner an amount purportedly under Division 14 for a * non-cash benefit provided to, or received for, the recipient; and

(ii) in the case of an amount withheld from a payment of an amount purported to have been paid by way of * parental leave--the amount paid was not lawfully so payable; and

(c) section 18-65 does not apply because the payer did not become aware of the matter mentioned in paragraph (b), or the recipient did not apply for a refund, as mentioned in subsection 18-65(1); and

(d) if subparagraph (a)(i) applies--the payer has already paid the withheld amount to the Commissioner.

(b) if the recipient does not have a tax file number but was taken to have quoted a tax file number to the payer before the amount was withheld or paid to the Commissioner--the basis on which the recipient was taken to have quoted the tax file number; or

(c) if the payment or * non-cash benefit was in respect of a * Part VA investment made by the recipient in the course or furtherance of an * enterprise carried on by it--the recipient's * ABN;

and the Commissioner is satisfied that it would be fair and reasonable to refund the amount, having regard to:

(d) the circumstances that gave rise to the withholding obligation (if any); and

Note: A person who is dissatisfied with a decision under this section may object against the decision in the manner set out in Part IVC.

The Commissioner must refund to an entity all or part of an * amount withheld from a * withholding payment covered by section 12-140 or 12-145 that was made to that entity if:

(b) the Commissioner is satisfied that the entity was entitled to give * the investment body a declaration under Division 5 of Part VA of the Income Tax Assessment Act 1936 in relation to the * Part VA investment in respect of which the withholding payment was made, but did not do so; and

(c) the Commissioner is also satisfied it is fair and reasonable to make the refund, having regard to the purposes of this Part and any other matters that the Commissioner considers appropriate.

Note: A person who is dissatisfied with a decision under this section may object against the decision in the manner set out in Part IVC.

(1) An entity that is given a * payment summary and a copy of it in any financial year under this Part must retain the copy for:

(b) a shorter period determined by the Commissioner in writing for the entity; or

(c) a shorter period determined by the Commissioner by legislative instrument for a class of entities that includes the entity.

(1AA) A determination under paragraph (1)(c) may specify different periods for different classes of entities.

20-45 Offences that would otherwise be committed by a partnership or unincorporated company

(a) present a document issued by the Commissioner that specifies a person (the specified person ); and

(b) falsely pretend to be the specified person with the intention of obtaining under this Part a credit for, or a payment of, an * amount withheld from a * withholding payment.

(2) A person must not attempt to obtain for the person a credit under this Part for an * amount withheld from a * withholding payment if:

(a) the payment is not covered by section 12-215, 12-250, 12-285 or 12-317, or subsection 12-390(4), and was made to another person; or

(b) the payment is covered by section 12-215, 12-250, 12-285 or 12-317, or subsection 12-390(4), and the person is not the foreign resident in respect of which all or a part of the payment is received as mentioned in that provision.

(3) A person must not, with the intention of obtaining a credit, a payment or any other benefit, present:

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

(4) A person must not, with the intention of obtaining a credit, a payment or any other benefit, present:

(a) a * payment summary relating to Subdivision 12-H, or a copy of such a payment summary; or

(b) a document purporting to be such a payment summary or a copy of such a payment summary;

which is not a payment summary, or a copy of a payment summary, duly given to the person.

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

(1) Charges against the same person for a number of offences against this Part may be joined in one complaint, information or summons if those charges:

(2) Particulars of each offence charged must be set out in a separate paragraph if 2 or more of the charges are included in the same complaint, information or summons.

(3) If the charges are joined, the charges must be tried together unless the court:

(b) the penalty must not exceed the sum of the maximum penalties that could be imposed in respect of each offence separately.

(1) An offence against this Part that would otherwise be committed by a partnership is taken to have been committed by each partner who:

(b) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly, and whether by any act or omission of the partner).

(2) An offence against this Part that would otherwise be committed by a company that is not incorporated is taken to have been committed by each member of the company's committee of management who:

(b) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly, and whether by any act or omission of the member).

A person who is dissatisfied with any of the following decisions of the Commissioner may object against the decision in the manner set out in Part IVC.

Note: Division 298 also provides review rights about remission of administrative penalties.

Reviewable decisions
1A	Decision not to grant an exemption under subsection 12-319(1) from withholding obligations in relation to sections 12-315 and 12-317
1	Decision not to give a certificate under subsection 12-335(1) exempting an entity from notifying the Commissioner about a natural resource payment
5	Decision to revoke a certificate under subsection 12-335(3)
10	Decision to vary a certificate under subsection 12-335(3)
25	Refusal to determine under subsection 16-110(1) that a large withholder is a * medium withholder or a * small withholder for a particular month or particular months
30	Refusal to determine under subsection 16-110(1) that a medium withholder is a small withholder for a particular month or particular months
35	Decision to revoke a determination made under subsection 16-110(1)
40	Decision to vary a determination made under subsection 16-110(1) for a particular month or particular months
45	Determination under subsection 16-115(1) that a small withholder is a medium withholder or a large withholder for a particular month or particular months
50	Determination under subsection 16-115(1) that a medium withholder is a large withholder
55	Decision not to revoke a determination made under subsection 16-115(1)
60	Decision not to vary a determination made under subsection 16-115(1) for a particular month or particular months
65	Decision not to refund an amount under section 18-70
70	Decision not to refund an amount under section 18-80

(a) an entity's entitlement under Division 2AA of Part II of the Banking Act 1959 to be paid an amount by * APRA in connection with the entity's account with an * ADI is met wholly or partly; or

(b) an entity's entitlement under Part VC of the Insurance Act 1973 to be paid an amount in connection with a * general insurance policy issued by a * general insurance company is met wholly or partly.

Note 1: Division 2AA of Part II of the Banking Act 1959 entitles entities that have certain accounts with certain insolvent ADIs to be paid amounts by APRA worked out by reference to the balance of those accounts.

Note 2: Part VC of the Insurance Act 1973 entitles entities with valid claims against certain insolvent general insurance companies under certain general insurance policies issued by those companies to be paid amounts by APRA.

(2) This Part applies in relation to * APRA and the meeting of the entitlement in a way corresponding to the way in which this Part would have applied in relation to the * ADI or * general insurance company doing, in connection with the account or policy, whatever was done in meeting the entitlement.

Example: APRA (or APRA's agent or delegate) pays an entity an amount of the entity's entitlement relating to an account with an ADI. This Part applies in relation to APRA and the payment in a way corresponding to the way in which this Part would have applied in relation to the ADI had the ADI made a payment at that time of that amount under the arrangements for keeping the account.

Guide to Division 45

45-1 What this Division is about

If you have business or investment income, you must pay instalments towards your income tax liability. However, you do not have to do so unless the Commissioner has given you an instalment rate. Generally, instalments are payable for each quarter of your income year.

Your instalments may be based on your previous year's income tax liability and notified to you by the Commissioner, or on your estimate of your income tax liability for the current income year. (In this case, you are a quarterly payer who pays on the basis of GDP adjusted notional tax). Generally, four quarterly instalments are payable annually on this basis, but you may only be required to pay two.

If you are not eligible to pay instalments on that basis, or if you are so eligible but choose not to do so, you must work out the amount of your quarterly instalment by multiplying your instalment income for an instalment quarter by the rate the Commissioner gave you, or by a rate you choose yourself. (In this case, you are a quarterly payer who pays on the basis of instalment income).

If you are not required to be registered for GST purposes, you may be able to choose to pay an annual instalment after the end of the income year. (In this case, you are an annual payer).

The amount of annual instalment can be your instalment income for the income year multiplied by the rate the Commissioner gave you, or an amount based on your previous year's income tax liability and notified to you by the Commissioner, or your own estimate of your income tax liability for the income year.

Subdivision 45-A -- Basic rules

Table of sections

45-5 Object of this Part

45-10 Application of Part

45-15 Liability for instalments

45-20 Information to be given to the Commissioner by certain payers

45-25 Penalty for failure to notify Commissioner

45-30 Credit for instalments payable

45-5 Object of this Part

(1) The object of this Part is to ensure the efficient collection of:

(a) income tax; and

(b) Medicare levy; and

(ca) amounts of liabilities to the Commonwealth under Chapter 4 of the Higher Education Support Act 2003 ; and

(d) amounts of liabilities to the Commonwealth under Part 2B.3 of the Social Security Act 1991 ; and

(e) amounts of liabilities to the Commonwealth under Division 6 of Part 4A of the Student Assistance Act 1973 ;

through the application of the principles set out in the rest of this section.

(2) As you earn * instalment income, you pay instalments after the end of each * instalment quarter worked out on the basis of your instalment income for that quarter if you are required or choose to work out your instalment on this basis. However, you may be able to pay an amount notified by the Commissioner. (There are exceptions to this).

(3) The total of your instalments for an income year is as close as possible to the total of your liabilities for the income year that are covered by subsection (1), except so far as the amounts of those liabilities are attributable to a * net capital gain. (The exception does not apply to the entities listed in subsections 45-120(2) and (2A) or the net capital gains specified in subsection 45-120(2B).)

(4) Consequently, the additional amounts you have to pay to discharge those liabilities, after an assessment of your income tax for the income year is made, are as low as possible.

(5) If you are a * quarterly payer who pays on the basis of instalment income, the amount of each of your instalments for an income year is the same proportion (as nearly as possible, subject to the principles in subsections (3) and (4)) of the total of those instalments as your * instalment income for that * instalment quarter is of your total instalment income for the income year.

(6) When instalments are payable, and how their amount is calculated, are the same for different kinds of entities, except as expressly provided.

Note: Subdivision 45-P penalises an entity whose tax position, so far as it relates to PAYG instalments and related matters, is altered by a scheme that is inconsistent with the object of this Part.

45-10 Application of Part

This Part applies to individuals, companies, and the entities listed in items 4 to 10, and 12 and 13, of the table in section 9-1 of the Income Tax Assessment Act 1997 (which lists the entities that must pay income tax).

Note 1: Section 45-450 provides for how this Part applies to a trustee covered by any of items 4 to 8, and 12 and 13, of the table in section 9-1 of the Income Tax Assessment Act 1997 . In most respects, the trust is treated like a company.

Note 2: This Part also applies to a trustee covered by item 11 of the table in section 9-1 of the Income Tax Assessment Act 1997 , but only to the extent set out in section 45-455, and the rest of Subdivision 45-N, in this Schedule.

45-15 Liability for instalments

(1) The Commissioner may give you an instalment rate from time to time, by giving you written notice of the rate.

(2) You are liable to pay instalments under this Division if the Commissioner has given you an instalment rate.

Note 1: The instalment rate that the Commissioner gives you is worked out under section 45-320 or 45-775.

Note 2: If your assessable income has always consisted wholly of withholding payments (other than non-quotation withholding payments), the Commissioner will not give you an instalment rate.

Note 3: Work out the amount of your instalments under Subdivision 45-C.

Note 4: If the Commissioner withdraws the rate under section 45-90, you are not liable to pay further instalments.

Note 5: For provisions about collection and recovery of amounts you are liable to pay under this Part, see Part 4-15.

45-20 Information to be given to the Commissioner by certain payers

(1) If you are liable to pay an instalment for a period (even if it is a nil amount), you must notify the Commissioner of the amount of your * instalment income for the period.

(2) You must notify the Commissioner in the * approved form and on or before the day when the instalment is due (regardless of whether it is paid).

Exceptions

(3) Subsection (1) does not apply to:

(a) a quarterly instalment worked out under section 45-112 (on the basis of GDP-adjusted notional tax or estimated benchmark tax); or

(b) an annual instalment, unless it is worked out under paragraph 45-115(1)(a) (based on the Commissioner's rate and your instalment income for the income year).

45-25 Penalty for failure to notify Commissioner

(1) If you fail to notify the Commissioner of an amount as required by section 45-20, or you notify an amount that is less than the correct amount, you are liable to pay the * failure to notify penalty on the amount, or on the shortfall, multiplied by the instalment rate that you are required to use to work out the instalment for the period, for each day in the period that:

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

(b) finishes at the end of the day before you notify the Commissioner of the correct amount, or he or she otherwise becomes aware of it.

(2) This section does not apply to a notification required to be lodged on or after 1 July 2000.

Note: See instead Division 286 in Schedule 1 to the Taxation Administration Act 1953 .

45-30 Credit for instalments payable

(1) You are entitled to a credit when the Commissioner makes an assessment of the income tax you are liable to pay for an income year or an assessment that no income tax is payable by you for an income year.

(2) The credit is equal to:

• the total of each instalment payable by you for the income year (even if you have not yet paid it);

reduced by:

• the total of each credit that you have claimed under section 45-215 or 45-420 in respect of such an instalment.

(3) The making of the assessment, and the resulting credit entitlement, do not affect the liability to pay an instalment.

Note: How the credit is applied is set out in Division 3 of Part IIB.

(4) If:

(a) you are a * subsidiary member of a * consolidated group at any time during a * consolidation transitional year for you; and

(b) an amount of instalment payable by you, or an amount of credit claimed by you under section 45-215 or 45-420, is taken into account in working out a credit to which the * head company of that consolidated group is entitled under section 45-865 for a consolidation transitional year for the head company;

that amount, to the extent to which it is so taken into account under that section, is not to be taken into account in working out any credit to which you are entitled under this section for any year.

Subdivision 45-B -- When instalments are due

Table of sections

45-50 Liability to pay instalments

45-60 Meaning of instalment quarter

45-61 When quarterly instalments are due--payers of quarterly instalments

45-70 When annual instalments are due

45-75 Instalments recoverable in same way as income tax

45-80 General interest charge on late payment

45-90 Commissioner may withdraw instalment rate

45-50 Liability to pay instalments

(1) Subject to subsection (4), you are liable to pay an instalment for an * instalment quarter in an income year if, at the end of that instalment quarter, you are:

(a) a * quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax; or

(b) a * quarterly payer who pays on the basis of instalment income.

(2) Subject to subsection (4), you are liable to pay an instalment for an * instalment quarter that is the third or fourth instalment quarter in an income year if, at the end of that quarter, you are a * quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax.

(3) Subject to subsection (4), you are liable to pay an instalment for an income year if, at the end of the * starting instalment quarter in that year, you are an * annual payer.

(4) You are only liable to pay an instalment for an * instalment quarter or an income year if:

(a) the Commissioner has given you an instalment rate; and

(b) the Commissioner has not withdrawn your instalment rate before the end of that quarter or year.

45-60 Meaning of instalment quarter

For an income year (whether it ends on 30 June or not), the following are the instalment quarters :

(a) your first instalment quarter consists of the first 3 months of the income year; and

(b) your second instalment quarter consists of the fourth, fifth and sixth months of the income year; and

(d) your fourth instalment quarter consists of the tenth, 11th and 12th months of the income year.

45-61 When quarterly instalments are due--payers of quarterly instalments

You are not a deferred BAS payer

(1) Subject to subsection (2), if you are:

(a) a * quarterly payer who pays on the basis of instalment income; or

(b) a * quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax; or

the instalment for an * instalment quarter that you are liable to pay is due on or before the 21st day of the month after the end of that quarter.

Note: You are only liable to pay instalments for the third and fourth instalment quarters in an income year if you are a quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax. See section 45-50.

You are a deferred BAS payer

(2) If:

(a) subsection (1) would, but for this subsection, have applied to you in relation to an * instalment quarter; but

(b) you are a * deferred BAS payer on the 21st day of the month after the end of that quarter;

the instalment for that quarter is instead due on or before:

(c) the 28th day of the month after the end of that quarter unless all or a part of a December falls within the last month of that quarter; or

(d) if all or a part of a December falls within the last month of that quarter--the next 28 February.

Note 1: You are only liable to pay instalments for the third and fourth instalment quarters in an income year if you are a quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax. See section 45-50.

Note 2: If you are the head company of a consolidated group to which Subdivision 45-Q applies, the instalment is due on or before the 21st day of the month after the end of the quarter: see section 45-715.

45-70 When annual instalments are due

(1) This section applies if you are liable to pay an annual instalment for the 2002-03 income year or a later income year.

(2) If the income year ends on 30 June, the instalment is due on or before the next 21 October.

(3) If the income year ends on a day other than 30 June, the instalment is due on or before the 21st day of the fourth month after the end of the income year.

45-75 Instalments recoverable in same way as income tax

Instalments are to be treated as income tax for the purposes of sections 254 and 255 of the Income Tax Assessment Act 1936 .

45-80 General interest charge on late payment

If you fail to pay some or all of an instalment by the time by which the instalment is due to be paid, you are liable to pay the * general interest charge on the unpaid amount for each day in the period that:

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

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

(i) the instalment;

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

45-90 Commissioner may withdraw instalment rate

(1) The Commissioner may:

(a) by giving you written notice, withdraw your instalment rate; or

(b) by notice published in the Gazette , withdraw the instalment rate of a class of entities that includes you.

Note: If the Commissioner does so, you cease to be liable to pay instalments (even if you have chosen a rate under section 45-205). See subsection 45-50(4).

(2) If the Commissioner withdraws your instalment rate and later gives you another one:

(a) you are again liable to pay instalments in accordance with section 45-50; and

(b) this Division has effect as if the Commissioner has given you an instalment rate for the first time.

Subdivision 45-C -- Working out instalment amounts

Table of sections

45-110 How to work out amount of quarterly instalment on instalment income basis

45-112 Amount of instalment for quarterly payer who pays on basis of GDP-adjusted notional tax

45-115 How to work out amount of annual instalment

45-120 Meaning of instalment income

45-110 How to work out amount of quarterly instalment on instalment income basis

(1) Work out the amount of an instalment you are liable to pay for an * instalment quarter as follows if, at the end of that instalment quarter, you are a * quarterly payer who pays on the basis of instalment income:

(2) For the purposes of the formula in subsection (1):

"Applicable instalment rate" means:

(a) unless paragraph (b) or (c) applies--the most recent instalment rate given to you by the Commissioner under section 45-15 before the end of that quarter; or

(b) if you have chosen an instalment rate for that quarter under section 45-205--that rate; or

(c) if you have chosen an instalment rate under section 45-205 for an earlier * instalment quarter in that income year (and paragraph (b) does not apply)--that rate.

Note: If you believe the Commissioner's rate is not appropriate for the current income year, you may choose a different instalment rate under Subdivision 45-F.

45-112 Amount of instalment for quarterly payer who pays on basis of GDP-adjusted notional tax

(1) If, at the end of an * instalment quarter in an income year, you are a * quarterly payer who pays on the basis of GDP-adjusted notional tax who is liable to pay an instalment for that quarter, the amount of your instalment for that quarter is:

(a) unless paragraph (b) or (c) applies--the amount that the Commissioner works out under Subdivision 45-L, and notifies to you, as the amount of the instalment; or

(b) if you choose to work out the amount of the instalment on the basis of your estimate of your * benchmark tax for that income year, and you notify the Commissioner in accordance with subsection (2)--the amount worked out under Subdivision 45-M; or

(c) if paragraph (b) applied to your instalment for an earlier * instalment quarter in that income year--the amount that the Commissioner works out under Subdivision 45-M, and notifies to you, as the amount of the instalment.

(2) If the amount of the instalment is worked out under paragraph (1)(b) on the basis of your estimate of your * benchmark tax for the income year, you must notify the Commissioner in the * approved form, on or before the day when the instalment is due (disregarding subsection (3)), of the amount of that estimate.

(3) If:

(a) after the end of an * instalment quarter the Commissioner notifies you of an amount as the amount of your instalment for that quarter; and

(b) the amount of your instalment for that quarter is not worked out under paragraph (1)(b);

the instalment is due on or before the 21st day after the day on which the notice is given.

45-115 How to work out amount of annual instalment

(1) The amount of an instalment you are liable to pay for the 2002-03 income year or a later income year is whichever of the following you choose:

(a) the amount worked out using the formula:

(b) your most recent * notional tax notified by the Commissioner before the end of the income year;

Note 1: You cannot choose a different instalment rate under Subdivision 45-F if you are an annual payer. Instead you can work out the amount of your instalment under paragraph (c).

Note 2: You may be liable to general interest charge under section 45-235 if working out your instalment under paragraph (c) leads you to pay an instalment that is less than 85% of your benchmark tax for the income year (worked out by the Commissioner under section 45-365).

(2) Commissioner's instalment rate for an income year means the most recent instalment rate given to you by the Commissioner before the end of the income year.

(3) If you choose to work out your instalment under paragraph (1)(c), you must notify the Commissioner, in the * approved form, of the amount of the instalment on or before the day when it is due.

45-120 Meaning of instalment income

General rule

(1) Your instalment income for a period includes your * ordinary income * derived during that period, but only to the extent that it is assessable income of the income year that is or includes that period.

Note 1: No other amount is instalment income unless it is covered by another provision of this section or by Subdivision 45-H or 45-I.

Note 1A: The operation of this section and other provisions relating to instalment income is affected by sections 45-855 and 45-860 (about a member of a consolidated group during a period before the members of the group are treated as a single entity for the purposes of this Part.)

Note 2: If during that period you are a partner in a partnership, or a beneficiary of a trust, your instalment income also includes some of the partnership's or trust's instalment income for the period (except in some cases). See Subdivision 45-H or 45-I.

Statutory income included for some entities

(2) The instalment income of:

(a) a * complying approved deposit fund or a * non-complying approved deposit fund; or

(b) a * complying superannuation fund or a * non-complying superannuation fund; or

(ca) an * FHSA trust;

for a period also includes the entity's * statutory income, to the extent that:

(d) it is reasonably attributable to that period; and

(e) it is assessable income of the income year that is or includes that period.

(2A) The instalment income of a * life insurance company for a period also includes any part of its * statutory income that:

(a) is reasonably attributable to that period; and

(b) is included in the * complying superannuation/FHSA class of its taxable income for the income year that is or includes that period.

Net gains under Subdivision 250-E of the Income Tax Assessment Act 1997 included in instalment income

(2B) Your instalment income for a period also includes the difference between:

(a) a gain (or gains) you make from a * financial arrangement to the extent to which it is (or they are):

(i) assessable under Subdivision 250-E of the Income Tax Assessment Act 1997 ; and

(ii) reasonably attributable to that period; and

(b) a loss (or losses) you make from a financial arrangement to the extent to which it is (or they are):

(i) allowable to you as a deduction under Subdivision 250-E of the Income Tax Assessment Act 1997 ; and

(ii) reasonably attributable to that period.

This is so only if the gain (or gains) referred to in paragraph (a) exceeds the loss (or losses) referred to in paragraph (b).

Effect of Division 230 of the Income Tax Assessment Act 1997 on instalment income

(2C) Your instalment income for a period also includes the difference between:

(a) a gain (or gains) you make from a * financial arrangement to the extent to which it is (or they are):

(i) assessable under Division 230 of the Income Tax Assessment Act 1997 ; and

(ii) reasonably attributable to that period; and

(b) a loss (or losses) you make from a financial arrangement to the extent to which it is (or they are):

(i) allowable to you as a deduction under Division 230 of the Income Tax Assessment Act 1997 ; and

(ii) reasonably attributable to that period.

This is so only if the gain (or gains) referred to in paragraph (a) equals or exceeds the loss (or losses) referred to in paragraph (b).

(2D) However, your instalment income for a period is worked out disregarding subsection (2C) if any of the following apply:

(a) you are an individual;

(b) the only gains and losses that would be taken into account under subsection (2C) for the period are from * financial arrangements that are * qualifying securities.

(2E) A gain or loss that is taken into account under subsection (2C) in working out an amount (including a nil amount) to be included in your instalment income for a period is not to be, to any extent, taken into account again under another provision of this section in calculating your instalment income for the same or any other period.

Exclusion: amounts in respect of withholding payments

(3) Your instalment income for a period does not include amounts in respect of:

(a) * withholding payments (except * non-quotation withholding payments) made to you during that period; and

(b) amounts included in your assessable income under section 86-15 of the Income Tax Assessment Act 1997 for which there are amounts required to be paid under Division 13; and

Farm management deposits: effect of making and repayment

(4) Your instalment income for a period is reduced (but not below nil) by a * farm management deposit made during that period, but only to the extent that, at the end of that period, you can reasonably expect to be able to deduct the deposit under section 393-5 of the Income Tax Assessment Act 1997 for the income year that is or includes that period.

(5) Your instalment income for a period also includes an amount that section 393-10 of the Income Tax Assessment Act 1997 includes in your assessable income, for the income year that is or includes that period, because of a repayment during that period of all or some of a * farm management deposit.

Instalment income of entity that is not liable for instalments

(6) An entity can have * instalment income for a period even if the entity is not liable to pay an instalment for that period.

Note: For example, although a partnership does not pay instalments, it is necessary to work out the partnership's instalment income in order to work out instalments payable by the partners. See Subdivision 45-H.

Subdivision 45-D -- Quarterly payers

Table of sections

45-125 Quarterly payer who pays instalments on the basis of instalment income

45-130 Quarterly payer who pays on the basis of GDP-adjusted notional tax

45-132 Quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax

45-134 Quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax

45-125 Quarterly payer who pays instalments on the basis of instalment income

(1) You are a quarterly payer who pays on the basis of instalment income if:

(a) at the end of the * starting instalment quarter in an income year, you are not a * quarterly payer who pays on the basis of GDP-adjusted notional tax and you are not an * annual payer; or

(b) but for this section, you would be a quarterly payer who pays on the basis of GDP-adjusted notional tax at the end of the starting instalment quarter in an income year but you choose to pay quarterly instalments on the basis of your instalment income.

Note: The entity must make the choice mentioned in paragraph (b) in accordance with subsection (4).

(2) The starting instalment quarter in an income year (the current year ) is:

(a) if the Commissioner gives you an instalment rate for the first time during an * instalment quarter in the current year--that instalment quarter (even if it is not the first instalment quarter in the current year); or

(b) if the Commissioner has given you an instalment rate during a previous income year and your instalment rate has not been withdrawn--the first instalment quarter in the current year.

How and when you become such a payer

(3) You become a * quarterly payer who pays on the basis of instalment income just before the end of the * starting instalment quarter if paragraph (1)(a) or (b) is satisfied.

(4) You must make the choice mentioned in paragraph (1)(b) by notifying the Commissioner in the * approved form on or before the day on which the instalment for that quarter is due (disregarding subsection 45-112(3)).

How and when you stop being such a payer

(5) If you are a * quarterly payer who pays on the basis of instalment income because of paragraph (1)(a), you stop being such a payer at the start of the first * instalment quarter in the next income year if, at the end of that quarter, you become:

(a) a * quarterly payer who pays on the basis of GDP-adjusted notional tax; or

(b) an * annual payer.

(6) If you are a * quarterly payer who pays on the basis of instalment income because of paragraph (1)(b), you stop being such a payer at the start of the first * instalment quarter in the next income year if:

(a) you become an * annual payer at the end of that quarter; or

(b) both of the following conditions apply:

(i) you choose not to be a quarterly payer who pays on the basis of instalment income;

(ii) you become a * quarterly payer who pays on the basis of GDP-adjusted notional tax at the end of that quarter.

(7) You may only make the choice mentioned in paragraph (6)(b) if you would otherwise satisfy paragraph 45-130(1)(a), (b), (c) or (d) at the end of that quarter. You must make that choice by notifying the Commissioner in the * approved form on or before the day on which the instalment for that quarter is due (disregarding subsection 45-112(3)).

45-130 Quarterly payer who pays on the basis of GDP-adjusted notional tax

(1) You are a quarterly payer who pays on the basis of GDP-adjusted notional tax if, at the end of the * starting instalment quarter in an income year:

(a) you are an individual who is not an * annual payer or a * quarterly payer who pays on the basis of instalment income; or

(b) you are a * self-assessment entity:

(i) that is not an * annual payer or a * quarterly payer who pays on the basis of instalment income; and

(ii) your base assessment instalment income (within the meaning of section 45-320) for the * base year is $2 million or less; or

(i) you are a self-assessment entity whose base assessment instalment income (within the meaning of section 45-320) for the * base year is more than $2 million;

(ii) you are not an annual payer, but you satisfy the conditions set out in subsection 45-140(1) for an annual payer;

(iii) you are not a quarterly payer who pays on the basis of instalment income; or

(d) for the 2009-10 income year or a later income year--you are a * small business entity (other than because of subsection 328-110(4) of the Income Tax Assessment Act 1997 ).

Note: Paragraph (a) may apply to you if you are a multi-rate trustee. See section 45-468.

How and when you become such a payer

(2) You become such a payer just before the end of the * starting instalment quarter if paragraph (1)(a), (b), (c) or (d) is satisfied.

(2A) For the purposes of subsection (2), you satisfy proposed paragraph (1)(d) at the end of the * starting instalment quarter in an income year if you are a * small business entity (other than because of subsection 328-110(4) of the Income Tax Assessment Act 1997 ) for the income year that includes that instalment quarter.

How and when you stop being such a payer

(3) You stop being a * quarterly payer who pays on the basis of GDP-adjusted notional tax at the start of the first * instalment quarter in the next income year if you fail to satisfy paragraph (1)(a), (b), (c) or (d) at the end of that quarter.

(3A) For the purposes of subsection (3), you fail to satisfy proposed paragraph (1)(d) at the end of the first * instalment quarter in an income year if you are not a * small business entity (other than because of subsection 328-110(4) of the Income Tax Assessment Act 1997 ) for the income year that includes that instalment quarter.

(4) In addition, you stop being such a payer at the start of the first * instalment quarter in the next income year if, at the end of that quarter, you become:

(a) a * quarterly payer who pays on the basis of instalment income; or

(b) an * annual payer.

45-132 Quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax

(1) You are a quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax if, at the end of the * starting instalment quarter in an income year:

(a) you satisfy the conditions to be a * quarterly payer who pays on the basis of GDP-adjusted notional tax under section 45-130; and

(b) you do not satisfy the conditions to be a * quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax under section 45-134.

How and when you become such a payer

(2) You become such a payer just before the end of the * starting instalment quarter if paragraphs (1)(a) and (b) are satisfied.

How and when you stop being such a payer

(3) You stop being a * quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax at the start of the first * instalment quarter in the next income year if you fail to satisfy paragraphs (1)(a) and (b) at the end of that quarter.

(4) In addition, you stop being such a payer at the start of the first * instalment quarter in the next income year if, at the end of that quarter, you become:

(a) a * quarterly payer who pays on the basis of instalment income; or

(b) an * annual payer.

45-134 Quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax

(1) You are a quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax if, at the end of the * starting instalment quarter in an income year, you are an individual that is a * quarterly payer who pays on the basis of GDP-adjusted notional tax and one or more of the following paragraphs apply:

(a) both of the following conditions are satisfied:

(i) you are carrying on a * primary production business in the income year;

(ii) the assessable income that was * derived from, or resulted from, a primary production business that you carried on in the * base year exceeded the amount of so much of your deductions in that year that are reasonably related to that income;

(b) both of the following conditions are satisfied:

(i) you are a * special professional in the income year;

(ii) your * assessable professional income in the base year exceeded the amount of so much of your deductions in that year that are reasonably related to that income.

Note: This section may apply to you if you are a multi-rate trustee. See section 45-468.

How and when you become such a payer

(2) You become such a payer just before the end of the * starting instalment quarter if subsection (1) is satisfied.

How and when you stop being such a payer

(3) You stop being a * quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax at the start of the first * instalment quarter in the next income year if you fail to satisfy subsection (1) at the end of that quarter.

(4) In addition, you also stop being such a payer at the start of the first * instalment quarter in the next income year if, at the end of that quarter, you become:

(a) a * quarterly payer who pays on the basis of instalment income; or

(b) an * annual payer.

Subdivision 45-E -- Annual payers

Table of sections

When you start and stop being an annual payer

45-140 Choosing to pay annual instalments

45-145 Meaning of instalment group

45-150 Entity stops being annual payer if involved with GST registration or instalment group

45-155 Entity stops being annual payer if notional tax is $8,000 or more, or entity chooses to pay quarterly

45-160 Head company of a consolidated group stops being annual payer

When you start and stop being an annual payer

45-140 Choosing to pay annual instalments

(1) You may choose to pay instalments annually instead of quarterly if, at the end of the * starting instalment quarter, you satisfy the following conditions:

(a) you are neither registered, nor * required to be registered, under Part 2-5 of the * GST Act; and

(b) you are not a partner in a partnership that is registered, or required to be registered, under that Part; and

(d) in the case of a company--the company is not a * participant in a * GST joint venture under Division 51 of that Act; and

(e) in the case of a company--the company is not part of an * instalment group.

Note: You cannot choose to be an annual payer while you are the head company of a consolidated group to which Subdivision 45-Q applies: see section 45-720.

(1A) You may also choose at a time (subject to subsection (2)) to pay instalments annually instead of quarterly if at that time either:

(a) an * annual tax period election of yours has effect and, if you are a partner in one or more partnerships that are registered under Part 2-5 of the * GST Act, an annual tax period election of each of those partnerships has effect; or

(b) all of the following subparagraphs apply:

(i) you are neither registered, nor * required to be registered, under Part 2-5 of the GST Act;

(ii) you are a partner in one or more partnerships that are registered under that Part;

(iii) an annual tax period election of each of those partnerships has effect;

and at the end of the * starting instalment quarter, you satisfy the following conditions:

(d) your most recent * notional tax notified by the Commissioner is less than $8,000;

(e) in the case of a company--the company is not a * participant in a * GST joint venture under Division 51 of that Act;

(f) in the case of a company--the company is not part of an * instalment group.

Note: You cannot choose to be an annual payer while you are the head company of a consolidated group to which Subdivision 45-Q applies: see section 45-720.

(2) You must make the choice under subsection (1) or (1A) by notifying the Commissioner, in the * approved form, on or before the day on which that instalment would otherwise be due.

(3) You become an annual payer just before the end of the * starting instalment quarter if:

(a) you satisfy the conditions in subsection (1) or (1A); and

(b) you choose to pay instalment annually.

45-145 Meaning of instalment group

(1) An instalment group consists of:

(a) a company:

(i) that has * majority control of at least one other company; but

(ii) of which no other company has * majority control; and

(b) any other company of which the first-mentioned company has * majority control.

(2) A company has majority control of another company if, and only if:

(a) the first company is in a position to cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the other company; or

(b) the first company has the power to appoint or remove the majority of the directors of the other company; or

(c) the other company is, or a majority of its directors are, accustomed or under an obligation, whether formal or informal, to act according to the directions, instructions or wishes of the first company.

45-150 Entity stops being annual payer if involved with GST registration or instalment group

(1) You stop being an * annual payer if, during an * instalment quarter that is in an income year that starts after the commencement of this section:

(a) you become * required to be registered under Part 2-5 of the * GST Act; or

(b) you become a partner in a partnership that is required to be registered under that Part; or

(d) in the case of a company--the company becomes a * participant in a * GST joint venture under Division 51 of that Act; or

(e) in the case of a company--the company becomes part of an * instalment group; or

(f) an * annual tax period election of yours, or of a partnership in which you are a partner, ceases to have effect.

(2) If you stop being an * annual payer under subsection (1):

(a) you must still pay an annual instalment for the income year mentioned in that subsection; and

(b) you must pay an instalment for each instalment quarter in the next income year for which subsection 45-50(1) or (2) requires you to do so.

(3) You may again become an * annual payer if:

(a) after you stop being an * annual payer under subsection (1), you satisfy the conditions in subsection 45-140(1) or (1A); and

(b) you again choose under section 45-140 to pay instalments annually.

45-155 Entity stops being annual payer if notional tax is $8,000 or more, or entity chooses to pay quarterly

(1) You stop being an * annual payer at the start of the first * instalment quarter in an income year (the current year ) if:

(a) after the end of the first instalment quarter in the previous income year and before the end of the first instalment quarter in the current year, the Commissioner notifies you of your * notional tax, and it is $8,000 or more; or

(b) you choose to pay instalments quarterly instead of annually.

(1A) You must make the choice by notifying the Commissioner, in the * approved form, on or before the day on which the instalment for the first * instalment quarter for the current year would otherwise be due (disregarding subsection 45-112(3)).

(2) You must pay an instalment for the first * instalment quarter of the next income year, and later instalment quarters, in accordance with Subdivision 45-B.

(3) You must still pay an annual instalment for the previous income year referred to in subsection (1).

(4) You may again become an * annual payer at the end of the first * instalment quarter in a later income year if:

(a) at that time, you satisfy the conditions in subsection 45-140(1) or in paragraphs 45-140(1A)(c), (d), (e) and (f); and

(b) you again choose under section 45-140 to pay annually.

45-160 Head company of a consolidated group stops being annual payer

(1) You stop being an * annual payer at the start of an * instalment quarter if Subdivision 45-Q starts applying to you as the * head company of a * consolidated group during that quarter.

(2) You must pay an instalment for that * instalment quarter and later instalment quarters in accordance with Subdivision 45-B.

(3) You may again become an * annual payer if:

(a) after you stop being an * annual payer under subsection (1), you satisfy the conditions in subsection 45-140(1) or (1A); and

(b) you again choose under section 45-140 to pay instalments annually.

Note: You cannot choose to be an annual payer while you are the head company of a consolidated group to which Subdivision 45-Q applies: see section 45-720.

Subdivision 45-F -- Varying the instalment rate for quarterly payers who pay on the basis of instalment income

Table of sections

45-200 Application

45-205 Choosing a varied instalment rate

45-210 Notifying Commissioner of varied instalment rate

45-215 Credit on using varied rate in certain cases

45-200 Application

This Subdivision applies if you are a * quarterly payer who pays on the basis of instalment income at the end of an * instalment quarter.

45-205 Choosing a varied instalment rate

(1) You may choose an instalment rate for working out under section 45-110 the amount of your instalment for an * instalment quarter in an income year.

(2) If you do so, you must use that instalment rate to work out the amount of that instalment. (You cannot later choose another instalment rate for working out that amount.)

Note 1: If choosing a rate leads you to pay an instalment that is too low, you may be liable to general interest charge under section 45-230.

Note 2: If you choose a rate under this section, you must use it even if the Commissioner later gives you a new instalment rate.

(3) You must also use that instalment rate to work out the amount of the instalment that you are liable to pay for each later * instalment quarter in that income year, unless you choose another instalment rate under subsection (1) for working out that amount.

Note 1: If you choose a rate under this section, you must use it even if the Commissioner later gives you a new instalment rate.

Note 2: If a rate you have chosen for an instalment quarter is not appropriate for a later instalment quarter in the same income year, you should choose another rate under subsection (1) for the later quarter. If the earlier rate is too low, you may be liable to general interest charge under section 45-230.

(4) However, for working out under section 45-110 the amount of your instalment for an * instalment quarter in a later income year, you must use the most recent instalment rate given to you by the Commissioner before the end of that quarter, unless you again choose another instalment rate under subsection (1).

45-210 Notifying Commissioner of varied instalment rate

If you work out the amount of an instalment using an instalment rate you have chosen under section 45-205, you must specify that rate in the notice about your instalment income that you must give the Commissioner under section 45-20.

45-215 Credit on using varied rate in certain cases

(1) You are entitled to claim a credit if:

(a) the amount of your instalment for an * instalment quarter (the current quarter ) in an income year is to be worked out using an instalment rate you chose under section 45-205; and

(b) that rate is lower than the instalment rate you used to work out the amount of your instalment for the previous instalment quarter (if any) in the same income year; and

Method statement

Step 1. Add up the instalments you are liable to pay for the earlier * instalment quarters in the income year (even if you have not yet paid all of them).

Step 2. Subtract from the step 1 amount each earlier credit that you have claimed under this section or section 45-420 in respect of the income year.

Step 3. Multiply the total of your * instalment income for those earlier * instalment quarters by the instalment rate to be used for the current quarter.

Step 4. Subtract the step 3 amount from the step 2 amount.

Step 5. If the result is a positive amount, it is the amount of the credit you can claim.

(2) A claim for a credit must be made in the * approved form on or before the day on which the instalment for the current quarter is due.

Note: How the credit is applied is set out in Division 3 of Part IIB.

(3) The credit entitlement does not affect your liability to pay an instalment.

Subdivision 45-G -- General interest charge payable in certain cases if instalments are too low

Table of sections

45-230 Liability to GIC on shortfall in quarterly instalment worked out on the basis of varied rate

45-232 Liability to GIC on shortfall in quarterly instalment worked out on the basis of estimated benchmark tax

45-233 Reduction in GIC liability under section 45-232 if shortfall is made up in later instalment

45-235 Liability to GIC on shortfall in annual instalment

45-240 Commissioner may remit general interest charge

45-230 Liability to GIC on shortfall in quarterly instalment worked out on the basis of varied rate

(1) You are liable to pay the * general interest charge under this section if:

(a) you use an instalment rate (the varied rate ) under section 45-205 to work out the amount of your instalment for an * instalment quarter (the variation quarter ) in an income year; and

(b) the varied rate is less than 85% of your * benchmark instalment rate for that income year that the Commissioner works out under Subdivision 45-K.

(2) You are liable to pay the * general interest charge on the amount worked out as follows:

where:

"rate discrepancy" means the difference between the varied rate and the lesser of:

(a) the most recent instalment rate given to you by the Commissioner before the end of the variation quarter; and

(b) your * benchmark instalment rate for that income year.

"credit adjustment" means:

(a) if, as a result of using the varied rate for the variation quarter, you claimed a credit under section 45-215--the amount worked out as follows:

or the amount of the credit, whichever is less; and

(b) otherwise--nil.

(2A) If the variation quarter is in a * consolidation transitional year for you as a * subsidiary member of a * consolidated group, a reference in subsection (2) to:

(a) your * instalment income for the variation quarter; or

(b) your instalment income for the earlier instalment quarters in the income year;

is taken to be a reference to so much of that income as is reasonably attributable to the period in that quarter or those quarters (as appropriate) during which you are not a subsidiary member of the group.

(3) You are liable to pay the charge for each day in the period that:

(a) started at the beginning of the day by which the instalment for the variation quarter was due to be paid; and

(b) finishes at the end of the day on which your assessed tax for the income year is due to be paid.

(4) The Commissioner must give you written notice of the * general interest charge to which you are liable under subsection (2). You must pay the charge within 14 days after the notice is given to you.

(5) If any of the * general interest charge to which you are liable under subsection (2) remains unpaid at the end of the 14 days referred to in subsection (4), you are also liable to pay the * general interest charge on the unpaid amount for each day in the period that:

(a) starts at the end of those 14 days; and

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

(i) the unpaid amount;

(ii) general interest charge on the unpaid amount.

45-232 Liability to GIC on shortfall in quarterly instalment worked out on the basis of estimated benchmark tax

(1) You are liable to pay the * general interest charge under this section if:

(a) the amount of your instalment for an * instalment quarter (the variation quarter ) in an income year is worked out under paragraph 45-112(1)(b) or (c) on the basis of your estimate of your * benchmark tax for that income year; and

(b) the estimate used is less than 85% of your * benchmark tax for the income year (which the Commissioner works out under section 45-365).

Amount on which the charge is payable

(2) You are liable to pay the * general interest charge on the amount worked out as follows (if it is a positive amount):

where:

"acceptable amount" , of your instalment for an * instalment quarter in an income year, has the meaning given by subsections (3), (3A), (3B), (3C) and (3D).

"actual amount" means:

(a) the amount of your instalment, as worked out on the basis of the estimate; or

(b) if, as a result of using the estimate, you claimed a credit under section 45-420 for the variation quarter--the amount of the credit, expressed as a negative amount.

(3) If you are a * quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax, the acceptable amount of your instalment for that instalment quarter is:

(a) if the amount of the instalment is worked out under paragraph 45-112(1)(b) or (c)--the amount worked out using the table in this subsection (which can be a negative amount); or

(b) otherwise--the amount notified to you by the Commissioner under paragraph 45-112(1)(a) as the amount of your instalment for that * instalment quarter.

Acceptable amount of an instalment
Item	If the * instalment quarter is:	The acceptable amount of your instalment for that instalment quarter is:
1	the first in that income year for which you are liable to pay an instalment	the lower of: (a) the amount that the Commissioner notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that * instalment quarter; and (b) 25% of your * benchmark tax for the income year (which the Commissioner works out under section 45-365).
2	the second in that income year for which you are liable to pay an instalment	the lower of: (a) the amount that the Commissioner would have notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that * instalment quarter if the amounts of all your instalments for that income year had been required to be worked out under Subdivision 45-L; and (b) the amount worked out by subtracting: • the * acceptable amount of your instalment for the earlier instalment quarter in that income year; from: • 50% of your * benchmark tax for the income year (which the Commissioner works out under section 45-365).
3	the third in that income year for which you are liable to pay an instalment	the lower of: (a) the amount that the Commissioner would have notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that * instalment quarter if the amounts of all your instalments for that income year had been required to be worked out under Subdivision 45-L; and (b) the amount worked out by subtracting: • the total of the * acceptable amounts of your instalments for the earlier instalment quarters in that income year; from: • 75% of your * benchmark tax for the income year (which the Commissioner works out under section 45-365).
4	the fourth in that income year for which you are liable to pay an instalment	the lower of: (a) the amount that the Commissioner would have notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that * instalment quarter if the amounts of all your instalments for that income year had been required to be worked out under Subdivision 45-L; and (b) the amount worked out by subtracting: • the total of the * acceptable amounts of your instalments for the earlier instalment quarters in that income year; from: • 100% of your * benchmark tax for the income year (which the Commissioner works out under section 45-365).

(3A) Subject to subsections (3B), (3C) and (3D), if you are a * quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax, the acceptable amount of your instalment for an * instalment quarter in an income year is:

(a) if the amount of the instalment is worked out under paragraph 45-112(1)(b) or (c)--the amount worked out using the table in this subsection (which can be a negative amount); or

(b) otherwise--the amount notified to you by the Commissioner under paragraph 45-112(1)(a) as the amount of your instalment for that instalment quarter.

Acceptable amount of an instalment
Item	If the * instalment quarter is:	The acceptable amount of your instalment for that instalment quarter is:
1	the third * instalment quarter in that income year	the lower of: (a) the amount that the Commissioner notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that * instalment quarter; and (b) 75% of your * benchmark tax for the income year (which the Commissioner works out under section 45-365).
2	the fourth * instalment quarter in that income year	the lower of: (a) the amount that the Commissioner would have notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that * instalment quarter if the amounts of all your instalments for that income year had been required to be worked out under Subdivision 45-L; and (b) the amount worked out by subtracting: • the * acceptable amount of your instalment for the earlier instalment quarter in that income year; from: • 100% of your * benchmark tax for the income year (which the Commissioner works out under section 45-365).

(3B) If:

(a) you are a * quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax; and

(b) the Commissioner first gives you an instalment rate during the second * instalment quarter in an income year;

the acceptable amount of your instalment for an instalment quarter in that income year is:

(c) if the amount of the instalment is worked out under paragraph 45-112(1)(b) or (c)--the amount worked out using the table in this subsection (which can be a negative amount); or

(d) otherwise--the amount notified to you by the Commissioner under paragraph 45-112(1)(a) as the amount of your instalment for that instalment quarter.

Acceptable amount of an instalment
Item	If the * instalment quarter is:	The acceptable amount of your instalment for that instalment quarter is:
1	the third * instalment quarter in that income year	the lower of: (a) the amount that the Commissioner notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that * instalment quarter; and (b) 50% of your * benchmark tax for the income year (which the Commissioner works out under section 45-365).
2	the fourth * instalment quarter in that income year	the lower of: (a) the amount that the Commissioner would have notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that * instalment quarter if the amounts of all your instalments for that income year had been required to be worked out under Subdivision 45-L; and (b) the amount worked out by subtracting: • the * acceptable amount of your instalment for the earlier instalment quarter in that income year; from: • 75% of your * benchmark tax for the income year (which the Commissioner works out under section 45-365).

(3C) If:

(a) you are a * quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax; and

(b) the Commissioner first gives you an instalment rate during the third * instalment quarter in an income year;

the acceptable amount of your instalment for an instalment quarter in that income year is:

(c) if the amount of the instalment is worked out under paragraph 45-112(1)(b) or (c)--the amount worked out using the table in this subsection (which can be a negative amount); or

(d) otherwise--the amount notified to you by the Commissioner under paragraph 45-112(1)(a) as the amount of your instalment for that instalment quarter.

Acceptable amount of an instalment
Item	If the * instalment quarter is:	The acceptable amount of your instalment for that instalment quarter is:
1	the third * instalment quarter in that income year	the lower of: (a) the amount that the Commissioner notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that * instalment quarter; and (b) 25% of your * benchmark tax for the income year (which the Commissioner works out under section 45-365).
2	the fourth * instalment quarter in that income year	the lower of: (a) the amount that the Commissioner would have notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that * instalment quarter if the amounts of all your instalments for that income year had been required to be worked out under Subdivision 45-L; and (b) the amount worked out by subtracting: • the * acceptable amount of your instalment for the earlier instalment quarter in that income year; from: • 50% of your * benchmark tax for the income year (which the Commissioner works out under section 45-365).

(3D) If:

(a) you are a * quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax; and

(b) the Commissioner first gives you an instalment rate during the fourth * instalment quarter in an income year;

the acceptable amount of your instalment for an instalment quarter in that income year is the lower of the following amounts:

(c) the amount that the Commissioner notified to you under paragraph 45-112(1)(a) as the amount of your instalment for that instalment quarter;

(d) 25% of your * benchmark tax for the income year (which the Commissioner works out under section 45-365).

Period for which the charge is payable

(4) You are liable to pay the charge for each day in the period that:

(a) started at the beginning of the day by which the instalment for the variation quarter was due to be paid; and

(b) finishes at the end of the day on which your assessed tax for the income year is due to be paid.

Commissioner to notify you

(5) The Commissioner must give you written notice of the * general interest charge to which you are liable under subsection (2). You must pay the charge within 14 days after the notice is given to you.

Further charge if charge under subsection (2) remains unpaid

(6) If any of the * general interest charge to which you are liable under subsection (2) remains unpaid at the end of the 14 days referred to in subsection (5), you are also liable to pay the * general interest charge on the unpaid amount for each day in the period that:

(a) starts at the end of those 14 days; and

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

(i) the unpaid amount;

(ii) general interest charge on the unpaid amount.

Modifications for subsidiary member of consolidated group

(7) Subsections (1) to (6) apply to you with the modifications set out in subsections (8) to (10) if the variation quarter is in a * consolidation transitional year for you as a * subsidiary member of a * consolidated group.

(8) For the purposes of subsection (7), a reference in subsection (1), (3), (3A), (3B), (3C) and (3D) to your * benchmark tax for that year is taken to be a reference to the amount worked out as follows:

(9) For the purposes of subsection (7), a reference in this section to:

(a) the acceptable amount of your instalment for an * instalment quarter in an income year; or

(b) the acceptable amount of your instalment for the earlier instalment quarter in an income year; or

is taken to be a reference to so much of the acceptable amount of instalment or acceptable amounts of instalments, worked out under subsection (3), (3A), (3B), (3C) or (3D) for that quarter or those quarters (as appropriate), as is reasonably attributable to the period in that quarter or those quarters (as appropriate) during which you are not a * subsidiary member of the group.

(10) For the purposes of subsection (7), a reference to the actual amount in subsection (2) is taken to be a reference to so much of the actual amount worked out under that subsection as is reasonably attributable to the period in the variation quarter during which you are not a * subsidiary member of the group.

45-233 Reduction in GIC liability under section 45-232 if shortfall is made up in later instalment

(1) This section reduces the amount (the shortfall ) on which you are liable to pay the * general interest charge under subsection 45-232(2) if, for a later * instalment quarter (the later quarter ) that is in the same income year as the variation quarter, the amount worked out as follows is a negative amount:

That amount (expressed as a positive number) is called the top up .

(2) For the purposes of the formula in subsection (1):

"actual amount of your instalment for the later quarter" means:

(a) the amount of your instalment for the later quarter, as worked out under section 45-112; or

(b) if you claimed a credit under section 45-420 for the later quarter--the amount of the credit, expressed as a negative amount.

Amount of the reduction

(3) The shortfall is reduced by applying so much of the top up as does not exceed the shortfall.

(4) However, if some of the top up has already been applied (under any other application or applications of this section) to reduce the amount on which you are liable to pay the * general interest charge under subsection 45-232(2) as it applies to a different * instalment quarter, the shortfall is reduced by applying so much of the top up as has not already been applied, and does not exceed the shortfall.

Period for which reduction has effect

(5) The reduction has effect for each day in the period that:

(a) started at the beginning of the day by which the instalment for the later quarter was due to be paid; and

(b) finishes at the end of the day on which your assessed tax for the income year is due to be paid.

45-235 Liability to GIC on shortfall in annual instalment

(1) You are liable to pay the * general interest charge under this section if:

(a) you choose to estimate the amount of your instalment (the estimated instalment amount ) for an income year under former paragraph 45-115(1)(c) or 45-175(1)(b); and

(b) that amount is less than 85% of your * benchmark tax for the income year (which the Commissioner works out under section 45-365).

(2) If you estimated the amount of the instalment under former paragraph 45-175(1)(b), you are liable to pay the * general interest charge on the difference between the estimated instalment amount and the lower of the following amounts:

(a) your most recent * notional tax notified by the Commissioner at least 30 days before the day on which the instalment was due;

(b) your * benchmark tax for the income year.

(3) If you estimated the amount of the instalment under paragraph 45-115(1)(c), you are liable to pay the * general interest charge on the difference between the estimated instalment amount and the lowest of the following amounts:

(a) the amount of your instalment worked out using the most recent instalment rate given to you by the Commissioner before the end of the income year;

(b) your most recent * notional tax notified by the Commissioner before the end of the income year under subsection 45-320(5);

(4) You are liable to pay the charge for each day in the period that:

(a) started at the beginning of the day by which the instalment for the income year was due to be paid; and

(b) finishes at the end of the day on which your assessed tax for the income year is due to be paid.

(5) The Commissioner must give you written notice of the * general interest charge to which you are liable under subsection (2) or (3). You must pay the charge within 14 days after the notice is given to you.

(6) If any of the * general interest charge to which you are liable under subsection (2) or (3) remains unpaid at the end of the 14 days referred to in subsection (5), you are also liable to pay the * general interest charge on the unpaid amount for each day in the period that:

(a) starts at the end of those 14 days; and

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

(i) the unpaid amount;

(ii) general interest charge on the unpaid amount.

45-240 Commissioner may remit general interest charge

The Commissioner may, if he or she is satisfied that because special circumstances exist it would be fair and reasonable to do so, remit the whole or any part of any * general interest charge payable under subsection 45-230(2) or 45-232(2) or subsection 45-235(2) or (3).

Subdivision 45-H -- Partnership income-/span>

45-260 Instalment income for a period in which you are in a partnership

(1) Your instalment income for a period (the current period ) includes an amount for each partnership in which you are a partner at any time during the current period. The amount is worked out using the formula:

(2) For the purposes of the formula in subsection (1):

"your assessable income from the partnership for the last income year" means so much of your individual interest in the partnership's net income for an income year as was included by section 92 of the Income Tax Assessment Act 1936 in your assessable income for the most recent income year:

(a) that ended before the start of the current period; and

(b) for which you have an assessment, or for which the Commissioner has notified you that you do not have a taxable income.

(3) However, if for any reason the component defined in subsection (2) does not exist or is a nil amount, or the partnership had no * instalment income for that income year, your instalment income for the current period includes, for that partnership, an amount that is fair and reasonable having regard to:

(a) the extent of your interest in the partnership during the current period; and

(b) the partnership's * instalment income for the current period; and

Exception for corporate limited partnerships

(4) Your instalment income for the current period does not include an amount for a partnership that is a * corporate limited partnership for the income year that is or includes that period.

Note: Your instalment income will still include a distribution by the partnership that is ordinary income. See section 45-120.

Subdivision 45-I -- Trust income included in instalment income of beneficiary

Table of sections

45-280 Instalment income for a period in which you are a beneficiary of a trust

45-285 Instalment income includes distributions by certain resident unit trusts

45-286 Instalment income includes distributions by certain managed investment trusts

45-287 When trusts are disqualified due to concentrated ownership

45-288 Resident investment trusts for beneficiaries who are absolutely entitled

45-290 Exceptions to exclusion of trust capital gains from beneficiary's instalment income

45-280 Instalment income for a period in which you are a beneficiary of a trust

(1) Your instalment income for a period (the current period ) includes an amount for each trust of which you are a beneficiary at any time during the current period. The amount is worked out using the formula:

(2) For the purposes of the formula in subsection (1):

"your assessable income from the trust for the last income year" means so much of a share of the trust's net income for an income year as:

(a) Division 6 of Part III of the Income Tax Assessment Act 1936 included in your assessable income for the most recent income year:

(i) that ended before the start of the current period; and

(ii) for which you have an assessment, or for which the Commissioner has notified you that you do not have a taxable income; and

(b) is not attributable to a * capital gain made by the trust.

Note: For exceptions to paragraph (b), see section 45-290.

(3) However, if for any reason the component defined in subsection (2) does not exist or is a nil amount, or the trust had no * instalment income for that income year, your instalment income for the current period includes, for that trust, an amount that is fair and reasonable having regard to:

(a) the extent of your interest in the trust, and your interest in the income of the trust, during the current period; and

(b) the trust's * instalment income for the current period; and

Exception for corporate unit trusts and public trading trusts

(4) Your instalment income for the current period does not include an amount for a trust if the trustee is liable to be assessed, and to pay tax, under section 102K or 102S of the Income Tax Assessment Act 1936 for the income year that is or includes that period.

Note: Your instalment income will still include a distribution by the trust that is ordinary income. See section 45-120.

Exception for certain resident unit trusts

(5) Your instalment income for the current period does not include an amount for a trust under subsection (1) if the conditions in either subsection 45-285(1) or (2) are satisfied for you for that trust for that period.

Note: Your instalment income will instead include a distribution by the trust: see section 45-285.

Exception for trusts whose beneficiary is absolutely entitled

(6) Your instalment income for the current period does not include an amount for a trust under subsection (1) if, throughout the current period:

(a) the trustee of the trust did not have any active duties to perform in the management of the trust (other than the duty to deal with the trust income and capital in accordance with any requests made or directions given by the beneficiary or beneficiaries); and

(b) if there was only one beneficiary, the beneficiary:

(i) was absolutely entitled to the trust assets; and

(ii) had a vested and indefeasible interest in any trust income arising from time to time; and

(i) was absolutely entitled to that beneficiary's interest in the trust assets; and

(ii) had a vested and indefeasible interest in a proportion of any trust income arising from time to time, being a proportion that corresponded to the beneficiary's proportional interest in the trust capital.

Instead, your instalment income for the current period includes the following amount:

45-285 Instalment income includes distributions by certain resident unit trusts

(1) Your instalment income for a period includes trust income or trust capital that a unit trust distributes to you, or applies for your benefit, during that period if:

(a) the unit trust is a resident unit trust (within the meaning of section 102Q of the Income Tax Assessment Act 1936 ) for the income year of the trust that is or includes that period; and

(b) throughout that period:

(i) any of the units in the trust were listed for quotation in the official list of a stock exchange in Australia or elsewhere; or

(ii) any of the units in the trust were offered to the public; or

(iii) the units in the trust were held by at least 50 persons; and

(d) throughout that period, the trust's activities consisted only of activities listed in the definition of eligible investment business in section 102M of the Income Tax Assessment Act 1936 .

(It does not matter whether the trust income or trust capital is included in your assessable income for the income year that is or includes that period.)

(2) Your instalment income for a period also includes trust income or trust capital that a unit trust distributes to you, or applies for your benefit, during that period if:

(a) the income or capital is not included in your instalment income under subsection (1); and

(b) the unit trust is a resident unit trust (within the meaning of section 102Q of the Income Tax Assessment Act 1936 ) for the income year of the trust that is or includes that period; and

(c) throughout that period, the trust's activities consisted only of activities listed in the definition of eligible investment business in section 102M of the Income Tax Assessment Act 1936 ; and

(d) throughout that period, either:

(i) you are yourself the trustee of a unit trust that satisfies each of paragraphs (1)(a) to (d) of this section; or

(ii) you are yourself the trustee of one or more trusts covered by section 45-288; or

(iii) you are exempt from tax; or

(iv) you are a * complying superannuation entity or a statutory fund of a * life insurance company.

(It does not matter whether the trust income or trust capital is included in your assessable income for the income year that is or includes that period.)

Extension--nominee and bare trust situations

(3) In determining, for the purposes of subparagraph (1)(b)(iii), how many persons hold units in a unit trust, if:

(a) another trust (the holding trust ) is a unit holder in the unit trust; and

(b) the holding trust is a trust of the kind covered by subsection 45-280(6); and

(c) the beneficiary's or beneficiaries' absolute entitlement exists at all times while the holding trust is in existence;

the beneficiary or beneficiaries count as persons who hold units in the unit trust, and the trustee of the holding trust does not.

45-286 Instalment income includes distributions by certain managed investment trusts

Your instalment income for a period includes trust income or trust capital that a trust distributes to you, or applies for your benefit, during that period if:

(a) the income or capital is not included in your instalment income under section 45-280 or 45-285; and

(b) the trust satisfies the condition in paragraph 12-400(1)(a) in relation to the income year that is or includes that period; and

(i) a * managed investment trust for that income year; or

(ii) treated as a managed investment trust for that income year for the purposes of Division 275 of the Income Tax Assessment Act 1997 ; and

(d) the trust meets the requirement in section 275-110 of that Act throughout the income year.

(It does not matter whether the trust income or trust capital is included in your assessable income for the income year that is or includes that period.)

45-287 When trusts are disqualified due to concentrated ownership

Concentrated ownership

(1) This section applies to a trust if an individual holds, or up to 20 individuals hold between them directly or indirectly and for their own benefit, interests in the trust:

(a) carrying * fixed entitlements to:

(i) at least 75% of the trust's income; or

(ii) at least 75% of the trust's capital; or

(b) if beneficiaries of the trust have a right to vote in respect of activities of the trust--carrying at least 75% of those voting rights.

Single individual

(2) Subsection (1) operates as if all of these were a single individual:

(a) an individual, whether or not the individual holds interests in the trust; and

(b) the individual's * associates; and

(c) for any interests in respect of which other individuals are nominees of the individual or of the individual's associates--those other individuals.

Concentrated ownership--potential due to possible variation of rights etc.

(3) This section also applies to a trust if, because of:

(a) any provision in the trust's constituent document, or in any contract, agreement or instrument:

(i) authorising the variation or abrogation of rights attaching to any of the interests in the trust; or

(ii) relating to the conversion, cancellation, extinguishment or redemption of any of those interests; or

(b) any contract, * arrangement, option or instrument under which a person has power to acquire any of those interests; or

it is reasonable to conclude that the rights attaching to any of the interests are capable of being varied or abrogated in such a way (even if they are not in fact varied or abrogated in that way) that, directly or indirectly, the trust would be disqualified under subsection (1).

Tracing

(4) In applying this section:

(a) if a * complying superannuation fund, * approved deposit fund or * superannuation fund for foreign residents has more than 50 members and has, directly or indirectly, a * fixed entitlement to any of the trust's income or capital--that entitlement is taken to be held by more than 20 individuals for their own benefit; and

(b) if a complying superannuation fund, approved deposit fund or superannuation fund for foreign residents has 50 or fewer members and has, directly or indirectly, a fixed entitlement to any of the trust's income or capital--each of the members is taken to have a share of that entitlement, in equal proportions, for his or her own benefit.

45-288 Resident investment trusts for beneficiaries who are absolutely entitled

This section covers a trust if:

(a) the trust is a resident unit trust within the meaning of section 102Q of the Income Tax Assessment Act 1936 ; and

(b) the trust is of the kind covered by subsection 45-280(6) in this Schedule; and

(c) the requests or directions that beneficiaries may give the trustee are limited to requests or directions as to which of the activities listed in the definition of eligible investment business in section 102M of the Income Tax Assessment Act 1936 the trustee should engage in; and

(d) all of the trust's beneficiaries became beneficiaries as a result of a public offer to invest in the trust; and

(e) either:

(i) the trust has 50 or more beneficiaries; or

(ii) if the trustee of the trust is also the trustee of one or more other trusts that satisfy paragraphs (a), (b), (c) and (d) of this section--all those trusts together have a total of 50 or more beneficiaries.

45-290 Exceptions to exclusion of trust capital gains from beneficiary's instalment income

(1) This section sets out cases where paragraph (b) of the definition of your assessable income from the trust for the last income year in subsection 45-280(2) does not apply.

(2) It does not apply in the case of:

(a) a * complying approved deposit fund or a * non-complying approved deposit fund for the income year that is or includes the current period; or

(b) a * complying superannuation fund or a * non-complying superannuation fund for that year; or

(d) an * FHSA trust for that year.

(3) It does not apply in the case of a * life insurance company to the extent that the share of the trust's net income is included in the * complying superannuation/FHSA class of its taxable income for the income year that is or includes the current period.

Subdivision 45-J -- How Commissioner works out your instalment rate and notional tax

Table of sections

45-320 Working out instalment rate

45-325 Working out your notional tax

45-330 Working out your adjusted taxable income

45-335 Working out your adjusted withholding income

45-340 Adjusted tax on adjusted taxable income or on adjusted withholding income

45-320 Working out instalment rate

(1) Except as provided by section 45-775, an instalment rate that the Commissioner gives you must be the percentage worked out to 2 decimal places (rounding up if the third decimal place is 5 or more) using the formula:

However, the instalment rate must be a nil rate if either component of the formula is nil.

(2) For the purposes of the formula in subsection (1):

"base assessment instalment income" means so much of your assessable income, as worked out for the purposes of the * base assessment, as the Commissioner determines is * instalment income for the * base year.

(3) The base assessment is the latest assessment for your most recent income year for which an assessment has been made. However, if the Commissioner is satisfied that there is a later income year for which you do not have a taxable income, the base assessment is the latest return or other information from which an assessment for that income year would have been made.

(4) The base year is the income year to which the * base assessment relates.

(5) When the Commissioner gives you the instalment rate, he or she must also notify you of the amount of your * notional tax, as worked out for the purposes of working out the instalment rate.

(6) The Commissioner may incorporate notice of the instalment rate and the amount of your * notional tax in notice of your assessment.

45-325 Working out your notional tax

Notional tax if you have no withholding income

(1) Your notional tax is your * adjusted tax (worked out under section 45-340) on your * adjusted taxable income (worked out under section 45-330) for the * base year.

Notional tax if you have no-TFN contributions income

(1A) In working out the notional tax of a * complying superannuation fund, * non-complying superannuation fund or * RSA provider for the * base year, assume that the entity had no * no-TFN contributions income for the base year and that the entity was not entitled to a * tax offset for the base year under Subdivision 295-J of the Income Tax Assessment Act 1997 .

Notional tax if you have withholding income

(2) However, your notional tax (as worked out under subsection (1)) is reduced if your assessable income for the * base assessment includes amounts in respect of * withholding payments (except * non-quotation withholding payments).

(3) It is reduced (but not below nil) by your * adjusted tax (worked out under section 45-340) on your * adjusted withholding income (worked out under section 45-335) for the * base year.

Commissioner may take into account effect of the law, as applying to income years after base year

(4) For the purposes of working out your * notional tax, the Commissioner may work out an amount as if provisions of an Act or regulations, as they may reasonably be expected to apply for the purposes of your assessment for a later income year, had applied for the purposes of the * base assessment.

Commissioner may take into account proposed changes to the law so as to reduce instalment rate

(5) For the purposes of working out your * notional tax, the Commissioner may work out an amount as if provisions of an Act or regulations that, in the Commissioner's opinion, are likely to be enacted or made had applied for the purposes of the * base assessment. But the Commissioner may do so only if, as a result, the instalment rate given to you is reduced.

(6) If the * base year is the income year immediately preceding the income year in which 1 July 2000 occurred, subsections (4) and (5) apply for the purpose of working out the * base assessment instalment income of a * life insurance company in the same way as they apply for the purpose of working out such a company's * notional tax.

45-330 Working out your adjusted taxable income

(1) Your adjusted taxable income for the * base year is your total assessable income for the * base assessment, reduced by:

(a) any * net capital gain included in that assessable income; and

(b) your deductions for the base year (except * tax losses), as used in making that assessment; and

Exception: superannuation entities and net capital gains

(2) Paragraph (1)(a) does not apply in the case of:

(a) a * complying approved deposit fund or a * non-complying approved deposit fund for the * base year; or

(b) a * complying superannuation fund or a * non-complying superannuation fund for that year; or

(d) an * FHSA trust for that year.

Special rule for some entities

(2A) If an entity:

(a) has * tax losses transferred to it under Subdivision 707-A of the Income Tax Assessment Act 1997 ; or

(b) is a * corporate tax entity at any time during the * base year;

the adjusted taxable income of the entity for the base year is worked out under subsection (1) as if paragraph (1)(c) were replaced by the following provision:

(i) the amount of any tax loss, to the extent that you can carry it forward to the next income year;

(ii) the amount of the deductions for tax losses used in making your * base assessment.

Amounts assessable under Subdivision 250-E of the Income Tax Assessment Act 1997

(2AA) To avoid doubt, paragraph (1)(a) does not apply to a * net capital gain that is included in your assessable income under Subdivision 250-E of the Income Tax Assessment Act 1997 .

Special rule for life insurance companies

(3) The adjusted taxable income of a * life insurance company for the * base year is worked out as follows:

Method statement

Step 1. Recalculate the taxable income of the * ordinary class for the * base assessment on the basis that it did not include any * net capital gain.

Step 2. Add to the step 1 result the deductions for * tax losses of the * ordinary class that were used in making the * base assessment.

Step 3. Reduce the step 2 result by the lesser of the following amounts:

(a) the amount of any * tax losses of the * ordinary class, to the extent that the company can carry them forward to the next income year;

(b) deductions for tax losses of the ordinary class that were used in making the * base assessment.

Step 4. Add to the step 3 result the taxable income of the * complying superannuation/FHSA class for the * base assessment.

Step 5. Add to the step 4 result the deductions for * tax losses of the * complying superannuation/FHSA class that were used in making the * base assessment.

Step 6. Reduce the step 5 result by the lesser of the following amounts:

(a) the amount of any * tax losses of the * complying superannuation/FHSA class, to the extent that the company can carry them forward to the next income year;

(b) deductions for tax losses of the complying superannuation/FHSA class that were used in making the * base assessment.

The result of this step is the adjusted taxable income of the company for the * base year.

45-335 Working out your adjusted withholding income

Your adjusted withholding income for the * base year is:

• the total of the amounts included in your assessable income for the * base assessment in respect of * withholding payments (except * non-quotation withholding payments);

reduced by:

• your deductions for that year, as used in making that assessment, to the extent that they reasonably relate to those amounts.

45-340 Adjusted tax on adjusted taxable income or on adjusted withholding income

Your adjusted tax on your * adjusted taxable income, or on your * adjusted withholding income, for the * base year is worked out as follows:

Method statement

Step 1. The income tax payable on your * adjusted taxable income, or on your * adjusted withholding income, for the * base year is worked out disregarding any * tax offset under:

(a) Subdivision 61-G of the Income Tax Assessment Act 1997 (the private health insurance tax offset); or

(b) Subdivision 61-IA of the Income Tax Assessment Act 1997 (the child care tax offset); or

(d) Subdivision 61-K of the Income Tax Assessment Act 1997 (the mature age worker tax offset); or

(da) Subdivision 61-L of the Income Tax Assessment Act 1997 (tax offset for Medicare levy surcharge (lump sum payments in arrears)); or

(db) Subdivision 61-M of the Income Tax Assessment Act 1997 (the education expenses tax offset); or

(e) section 205-70 of the Income Tax Assessment Act 1997 (the tax offset for * franking deficit tax liabilities); or

(f) section 159N of the Income Tax Assessment Act 1936 (the tax offset for certain low income earners); or

(g) section 290-230 of the Income Tax Assessment Act 1997 (the tax offset for superannuation contributions made for a spouse).

Step 2. The Medicare levy payable on your * adjusted taxable income, or on your * adjusted withholding income, for the * base year is worked out disregarding sections 8B, 8C, 8D, 8E, 8F and 8G of the Medicare Levy Act 1986 (which increase Medicare levy in certain cases).

Step 3. The amount (if any) that you would have been liable to pay for the * base year in respect of an * accumulated HELP debt if your taxable income for the base year had been your * adjusted taxable income, or your * adjusted withholding income, for that year is worked out.

Step 3A. The amount (if any) that you would have been liable to pay for the * base year by way of an * FS assessment debt if your taxable income for the base year had been your * adjusted taxable income, or your * adjusted withholding income, for that year is worked out.

Step 4. The results of steps 1, 2, 3 and 3A are added together, and reduced by what would have been your * FTB amount (if any) for the * base year if your taxable income for the base year had been your * adjusted taxable income, or your * adjusted withholding income, for that year. The result is your adjusted tax on your * adjusted taxable income, or on your * adjusted withholding income.

Subdivision 45-K -- How Commissioner works out your benchmark instalment rate and benchmark tax

Table of sections

45-355 When Commissioner works out benchmark instalment rate and benchmark tax

45-360 How Commissioner works out benchmark instalment rate

45-365 Working out your benchmark tax

45-370 Working out your adjusted assessed taxable income for the variation year

45-375 Adjusted assessed tax on adjusted assessed taxable income

45-355 When Commissioner works out benchmark instalment rate and benchmark tax

(1) The Commissioner may work out your * benchmark instalment rate for an income year (the variation year ) if, under section 45-205, you choose an instalment rate to work out the amount of your instalment for an * instalment quarter in that year.

(1A) The Commissioner may work out your * benchmark tax for an income year (the variation year ) if, under paragraph 45-112(1)(b) or (c), the amount of your instalment for an * instalment quarter in an income year is worked out on the basis of your estimate of your * benchmark tax for that income year.

(2) The Commissioner may work out your * benchmark tax for an income year (the variation year ) if, under paragraph 45-115(1)(c), you estimate the amount of your annual instalment for that year.

45-360 How Commissioner works out benchmark instalment rate

(1) Your benchmark instalment rate for the variation year is the percentage worked out to 2 decimal places (rounding up if the third decimal place is 5 or more) using the formula:

However, your benchmark instalment rate is a nil rate if either component of the formula is nil.

(2) For the purposes of the formula in subsection (1):

"variation year instalment income" means so much of your assessable income for the variation year as the Commissioner determines is * instalment income for that year.

45-365 Working out your benchmark tax

Benchmark tax if you had no withholding income

(1) Your benchmark tax is your * adjusted assessed tax (worked out under section 45-375) on your * adjusted assessed taxable income (worked out under section 45-370) for the variation year.

Benchmark tax if you have no-TFN contributions income

(1A) In working out the benchmark tax of a * complying superannuation fund, * non-complying superannuation fund or * RSA provider for the variation year, assume that the entity had no * no-TFN contributions income for the variation year and that the entity was not entitled to a * tax offset for the variation year under Subdivision 295-J of the Income Tax Assessment Act 1997 .

Benchmark tax if you had withholding income

(2) However, your benchmark tax (as worked out under subsection (1)) is reduced if your assessable income for the variation year includes amounts in respect of * withholding payments.

(3) It is reduced (but not below nil) by the sum of:

(a) the total amount of the credits to which you are entitled for the variation year under section 18-15 (for amounts withheld from withholding payments made to you during the variation year); and

(b) the total amount of the credits to which you are entitled for the variation year under section 18-27 (for amounts paid under Division 13 in respect of amounts included in your assessable income under section 86-15 of the Income Tax Assessment Act 1997 ).

45-370 Working out your adjusted assessed taxable income for the variation year

(1) Your adjusted assessed taxable income for the variation year is your taxable income for the year, reduced by any * net capital gain included in your assessable income for the year.

Exception: superannuation entities and net capital gains

(2) In working out the adjusted assessed taxable income , taxable income is not reduced by any * net capital gain in the case of:

(a) a * complying approved deposit fund or a * non-complying approved deposit fund for the variation year; or

(b) a * complying superannuation fund or a * non-complying superannuation fund for the variation year; or

(d) an * FHSA trust for the variation year.

Special rule for life insurance companies

(3) The adjusted assessed taxable income of a * life insurance company for the variation year is worked out as follows:

Method statement

Step 1. Recalculate the * ordinary class of the taxable income for the variation year on the basis that the assessable income that relates to the class did not include any * net capital gain.

Step 2. Add to the step 1 result the * complying superannuation/FHSA class of the taxable income for the variation year.

45-375 Adjusted assessed tax on adjusted assessed taxable income

Your adjusted assessed tax on your * adjusted assessed taxable income for the variation year is worked out as follows:

Method statement

Step 1. The income tax payable on your * adjusted assessed taxable income for the variation year is worked out disregarding any * tax offset under:

(a) Subdivision 61-G of the Income Tax Assessment Act 1997 (the private health insurance tax offset); or

(b) Subdivision 61-IA of the Income Tax Assessment Act 1997 (the child care tax offset); or

(ca) Subdivision 61-L of the Income Tax Assessment Act 1997 (tax offset for Medicare levy surcharge (lump sum payments in arrears)); or

(cb) Subdivision 61-M of the Income Tax Assessment Act 1997 (the education expenses tax offset); or

(d) section 205-70 of the Income Tax Assessment Act 1997 (the tax offset for * franking deficit tax liabilities); or

(e) section 159N of the Income Tax Assessment Act 1936 (the tax offset for certain low income earners); or

(f) section 290-230 of the Income Tax Assessment Act 1997 (the tax offset for superannuation contributions made for a spouse).

Step 2. The Medicare levy payable on your * adjusted assessed taxable income for the variation year is worked out disregarding sections 8B, 8C, 8D, 8E, 8F and 8G of the Medicare Levy Act 1986 (which increase Medicare levy in certain cases).

Step 3. The amount (if any) that you would have been liable to pay for the variation year in respect of an * accumulated HELP debt if your taxable income for that year had been your * adjusted assessed taxable income for that year is worked out.

Step 3A. The amount (if any) that you would have been liable to pay for the variation year by way of an * FS assessment debt if your taxable income for that year had been your * adjusted assessed taxable income for that year is worked out.

Step 4. The results of steps 1, 2, 3 and 3A are added together, and reduced by what would have been your * FTB amount (if any) for the variation year if your taxable income for that year had been your * adjusted assessed taxable income for that year. The result is your adjusted assessed tax on your * adjusted assessed taxable income for the variation year.

Subdivision 45-L -- How Commissioner works out amount of quarterly instalment on basis of GDP-adjusted notional tax

Table of sections

45-400 Working out amount of instalment--payers of 4 quarterly instalments

45-402 Working out amount of instalment--payers of 2 quarterly instalments

45-405 Working out your GDP-adjusted notional tax

45-400 Working out amount of instalment--payers of 4 quarterly instalments

Scope

(1) This section applies if you are a * quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax at the end of an * instalment quarter in an income year (the current year ).

Working out amount of instalment

(2) The amount of your instalment for that * instalment quarter which the Commissioner must work out and notify to you under paragraph 45-112(1)(a) is:

(a) the amount worked out in accordance with the table if it is positive; or

(b) otherwise--nil.

Amount of quarterly instalment worked out on basis of GDP-adjusted notional tax
Item	If the instalment quarter is:	The amount of the instalment is:
1	the first in that income year for which you are liable to pay an instalment	25% of your * GDP-adjusted notional tax
2	the second in that income year for which you are liable to pay an instalment	50% of your * GDP-adjusted notional tax, reduced by the amount of your instalment for the earlier * instalment quarter in that income year
3	the third in that income year for which you are liable to pay an instalment	75% of your * GDP-adjusted notional tax, reduced by the total of your instalments for earlier * instalment quarters in that income year
4	the fourth in that income year for which you are liable to pay an instalment	100% of your * GDP-adjusted notional tax, reduced by the total of your instalments for earlier * instalment quarters in that income year

Note: Your instalments for earlier instalment quarters may have been worked out on a basis other than GDP-adjusted notional tax.

Amount reduced in circumstances specified by regulations

(3) In the circumstances (if any) specified by the regulations, the amount worked out in accordance with the table in subsection (2) is reduced by the amount worked out under the regulations.

(4) Without limiting subsection (3), the regulations may specify circumstances by:

(a) specifying the particular * instalment quarter to which the reduction applies; or

(b) specifying the kind of payers to whom the reduction applies.

(5) In working out, under subsection (2), the amount of your instalment for an * instalment quarter in an income year, assume that there had not been any reductions under subsection (3) for earlier instalment quarters in that year.

December 2008 reduction for small business entities

(6) If 31 December 2008 occurs in an * instalment quarter in an income year, the amount worked out in accordance with the table in subsection (2) for the instalment quarter is reduced by 20% if you are:

(a) a * small business entity for the 2007-08 or 2008-09 income year; or

(b) a partner of a partnership that is a small business entity for the 2007-08 or 2008-09 income year; or

(7) In working out, under subsection (2), the amount of your instalment for a later * instalment quarter in the income year, assume that the reduction under subsection (6) had not happened.

45-402 Working out amount of instalment--payers of 2 quarterly instalments

(1) This section applies if you are a * quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax at the end of an * instalment quarter in an income year (the current year ).

(2) If you are liable to pay an instalment for that * instalment quarter, the amount of that instalment which the Commissioner must work out and notify to you under paragraph 45-112(1)(a) is:

(a) the amount worked out in accordance with this section if it is positive; or

(b) otherwise--nil.

Amount of instalment

(3) Subject to subsections (4) to (6), the amount of that instalment is worked out in accordance with the following table:

Amount of quarterly instalment
Item	If the * instalment quarter is:	the amount of the instalment is:
1	the third * instalment quarter in the income year	75% of your * GDP-adjusted notional tax
2	the fourth * instalment quarter in the income year	100% of your * GDP-adjusted notional tax, reduced by your instalment for earlier instalment quarter in that income year

You receive instalment rate for the first time in second quarter

(4) If the Commissioner gives you an instalment rate for the first time during the second * instalment quarter in that income year, the amount of the instalment is worked out in accordance with the following table:

Amount of quarterly instalment
Item	If the * instalment quarter is:	the amount of the instalment is:
1	the third * instalment quarter in the income year	50% of your * GDP-adjusted notional tax
2	the fourth * instalment quarter in the income year	75% of your * GDP-adjusted notional tax, reduced by your instalment for the earlier instalment quarter in that income year

You receive instalment rate for the first time in third quarter

(5) If the Commissioner first gives you an instalment rate during the third * instalment quarter in that income year, the amount of the instalment is worked out in accordance with the following table:

Amount of quarterly instalment
Item	If the * instalment quarter is:	the amount of the instalment is:
1	the third * instalment quarter in the income year	25% of your * GDP-adjusted notional tax
2	the fourth * instalment quarter in the income year	50% of your * GDP-adjusted notional tax, reduced by your instalment for the earlier instalment quarter in that income year

You receive instalment rate for the first time in fourth quarter

(6) If the Commissioner first gives you an instalment rate during the fourth * instalment quarter in that income year, the amount of the instalment must be equal to 25% of your * GDP-adjusted notional tax.

45-405 Working out your GDP-adjusted notional tax

(1) Except as provided by section 45-775, your GDP-adjusted notional tax is worked out in the same way as your * notional tax would be worked out for the purposes of working out an instalment rate if that instalment rate were to be given to you at the same time as notice of the amount of the instalment referred to in section 45-400 or 45-402 (as appropriate).

(2) However, for the purposes of subsection (1):

(a) your * adjusted taxable income for the * base year; and

(b) your * adjusted withholding income (if any) for the * base year;

are each increased in accordance with the formula:

(3) For the purposes of the formula in subsection (2):

"original amount" means the amount that, apart from subsection (2), would be your * adjusted taxable income for the * base year, or your * adjusted withholding income for the * base year, as appropriate.

"GDP adjustment" means:

(a) if the current year is the 2009-10 income year--2%; or

(aa) if the current year is the 2011-12 income year--4%; or

(b) otherwise:

(i) the percentage (rounded to the nearest whole number, rounding down a number ending in .5) worked out using the following formula; or

(ii) if the percentage worked out using the formula is negative--0%:

Note 1: Paragraph (a) will be repealed on 1 July 2014: see Part 2 of Schedule 1 to the Tax Laws Amendment (2009 Measures No. 3) Act 2009 .

Note 2: Paragraph (aa) will be repealed on 1 July 2016: see Part 2 of Schedule 1 to the Tax Laws Amendment (2011 Measures No. 4) Act 2011 .

(4) For the purposes of the formula in subsection (3):

"sum of GDP amounts (current year)" means the sum of the * GDP amounts, for the * quarters in the last calendar year (the later calendar year ) ending at least 3 months before the start of the current year, specified in the document referred to in subsection (6).

"sum of GDP amounts (previous year)" means the sum of the * GDP amounts, for the * quarters in the calendar year (the earlier calendar year ) before the later calendar year, specified in the document referred to in subsection (6).

(5) The GDP amount for a * quarter is the amount published by the Australian Statistician as the original gross domestic product at current prices for that quarter.

(6) In a case covered by paragraph (b) of the definition of GDP adjustment in subsection (3), the GDP adjustment must be worked out on the basis of the first document that:

(a) is published by the Australian Statistician after the end of the later calendar year; and

(b) sets out the * GDP amounts for all the * quarters in both the later calendar year and the earlier calendar year.

(7) To avoid doubt, subsections 45-325(4) and (5) also have effect for the purposes of working out your * GDP-adjusted notional tax.

Subdivision 45-M -- How amount of quarterly instalment is worked out on basis of your estimate of your benchmark tax

Table of sections

45-410 Working out amount of instalment--payers of 4 quarterly instalments

45-412 Working out amount of instalment--payers of 2 quarterly instalments

45-415 Estimating your benchmark tax

45-420 Credit in certain cases where amount of instalment is nil

45-410 Working out amount of instalment--payers of 4 quarterly instalments

(1A) This section applies if you are a * quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax at the end of an * instalment quarter in an income year (the current year ).

(1) For the purposes of paragraph 45-112(1)(b) or (c), the amount of your instalment for that * instalment quarter in an income year is:

(a) the amount worked out, in accordance with this section, on the basis of the estimate of your * benchmark tax for that income year that section 45-415 requires to be used, if that amount is positive; or

(b) otherwise--nil.

Note: If the amount is negative, you can claim a credit under section 45-420.

First instalment quarter

(2) If the * instalment quarter is the first in that income year for which you are liable to pay an instalment, the amount is 25% of the estimate of your * benchmark tax.

Second instalment quarter

(3) If the * instalment quarter is the second in that income year for which you are liable to pay an instalment, the amount is worked out by subtracting:

• the amount of your instalment under section 45-112 for the earlier * instalment quarter in that income year;

from:

• 50% of the estimate of your * benchmark tax.

Third instalment quarter

(4) If the * instalment quarter is the third in that income year for which you are liable to pay an instalment, the amount is worked out using this method statement.

Method statement

Step 1. The total of your instalments under section 45-112 for earlier * instalment quarters in that income year is subtracted from 75% of the estimate of your * benchmark tax.

Step 2. If you were entitled to claim a credit under section 45-420 for the second of those earlier * instalment quarters, the amount of the credit is added to the step 1 amount.

Fourth instalment quarter

(5) If the * instalment quarter is the fourth in that income year for which you are liable to pay an instalment, the amount is worked out using this method statement.

Method statement

Step 1. The total of your instalments under section 45-112 for earlier * instalment quarters in that income year is subtracted from the estimate of your * benchmark tax.

Step 2. For each credit that you were entitled to claim under section 45-420 for any of those earlier * instalment quarters, the amount of the credit is added to the step 1 amount.

45-412 Working out amount of instalment--payers of 2 quarterly instalments

(1) This section applies if you are a * quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax at the end of an * instalment quarter in an income year.

(2) If you are liable to pay an instalment for that quarter, the amount of that instalment for the purposes of paragraph 45-112(1)(b) or (c) is:

(b) otherwise--nil.

Note: If the amount is negative, you can claim a credit under section 45-420.

Instalment for third quarter

(3) Subject to subsections (5) to (9), the amount of the instalment for the third * instalment quarter in that year is 75% of the estimate of your * benchmark tax.

Instalment for fourth quarter

(4) Subject to subsections (5) to (9), the amount of the instalment for the fourth * instalment quarter in that year is worked out by subtracting:

(a) the amount of your instalment for the earlier instalment quarter in that year;

from:

(b) the estimate of your * benchmark tax.

You receive instalment rate for the first time in second quarter

(5) If the Commissioner gives you an instalment rate for the first time during the second * instalment quarter in the income year, the amount of the instalment for the third * instalment quarter in that year is 50% of the estimate of your * benchmark tax.

(6) If the Commissioner gives you an instalment rate for the first time during the second * instalment quarter in the income year, the amount of the instalment for the fourth instalment quarter in that year is worked out by subtracting:

(a) the amount of your instalment for the earlier instalment quarter in that year;

from:

(b) 75% of the estimate of your * benchmark tax.

You receive instalment rate for the first time in third quarter

(7) If the Commissioner gives you an instalment rate for the first time during the third * instalment quarter in the income year, the amount of the instalment for the third instalment quarter in that year is 25% of the estimate of your * benchmark tax.

(8) If the Commissioner gives you an instalment rate for the first time during the third * instalment quarter in the income year, the amount of the instalment for the fourth instalment quarter in that year is worked out by subtracting:

(a) the amount of your instalment for the earlier instalment quarter in that year;

from:

(b) 50% of the estimate of your * benchmark tax.

You receive instalment rate for the first time in fourth quarter

(9) If the Commissioner gives you an instalment rate for the first time during the fourth * instalment quarter in the income year, the amount of the instalment for that quarter is 25% of the estimate of your * benchmark tax.

45-415 Estimating your benchmark tax

(1) If you choose under paragraph 45-112(1)(b) to work out the amount of your instalment for an * instalment quarter in an income year on the basis of your estimate of your * benchmark tax for that income year, you must make the estimate on or before the day on which the instalment is due (disregarding subsection 45-112(3)).

(2) Having done so, you must use that estimate to work out the amount of that instalment. (You cannot later make another estimate for working out that amount.)

Note: If your estimate leads you to pay an instalment that is too low, you may be liable to general interest charge under section 45-232.

(3) The Commissioner must also use that estimate to work out under this Subdivision the amount of each instalment:

(a) that you are liable to pay for a later * instalment quarter in that income year; and

(b) whose amount he or she must notify to you under paragraph 45-112(1)(c);

unless a later application of this subsection requires him or her to use a later estimate you make under subsection (1) of this section.

Note: This means that if an estimate you have made is not appropriate for a later instalment quarter in the same income year, you should choose under paragraph 45-112(1)(b) to work out the amount of your instalment for that later quarter on the basis of a new estimate under this section. If the instalment that the Commissioner works out on the basis of the earlier estimate is too low, you may be liable to general interest charge under section 45-232.

45-420 Credit in certain cases where amount of instalment is nil

(1) You are entitled to claim a credit if the amount of your instalment for an * instalment quarter (the current quarter ) in an income year is nil because the amount worked out for the current quarter in accordance with section 45-410 or 45-412 (as appropriate) is negative. The amount of the credit is equal to that amount, expressed as a positive amount.

(2) A claim for a credit must be made in the * approved form on or before the day on which the instalment for the current quarter is due.

Note: How the credit is applied is set out in Division 3 of Part IIB.

Subdivision 45-N -- How this Part applies to the trustee of a trust

Table of sections

Trustees to whom this Part applies

45-450 Trustees to whom a single instalment rate is given

45-455 Trustees to whom several instalment rates are given

45-460 Rest of Subdivision applies only to multi-rate trustees

45-465 Meaning of instalment income

45-468 Multi-rate trustee may pay quarterly instalments

How Commissioner works out instalment rate and notional tax for a multi-rate trustee

45-470 Working out instalment rate

45-473 Commissioner must notify you of notional tax

45-475 Working out your notional tax

45-480 Working out your adjusted taxable income

45-483 Meaning of reduced beneficiary's share and reduced no beneficiary's share

45-485 Working out your adjusted withholding income

How Commissioner works out benchmark instalment rate and benchmark tax for a multi-rate trustee

45-525 When Commissioner works out benchmark instalment rate and benchmark tax

45-530 How Commissioner works out benchmark instalment rate

45-535 Working out your benchmark tax

Trustees to whom this Part applies

45-450 Trustees to whom a single instalment rate is given

(1) This Part applies to a trustee covered by any of items 4 to 8, and 12 and 13, of the table in section 9-1 of the Income Tax Assessment Act 1997 .

(2) Such a trustee is called a single-rate trustee .

(3) This Part applies to the trustee of a trust that is a * corporate unit trust, or a * public trading trust, for an income year as if the trustee had a taxable income for the income year equal to the net income of the trust for the income year.

45-455 Trustees to whom several instalment rates are given

Trustee previously assessed in respect of beneficiary

(1) This Part also applies for an income year (the current year ), to the trustee of a trust, in respect of a beneficiary of the trust, if for a previous income year the trustee of the trust was liable to be assessed, and to pay tax, under subsection 98(1) or (2) of the Income Tax Assessment Act 1936 in respect of that beneficiary.

(2) However, this Part does not apply for the current year to the trustee in respect of that beneficiary if:

(a) for that previous income year the trustee was liable to be assessed, and to pay tax, under subsection 98(1) of the Income Tax Assessment Act 1936 in respect of that beneficiary; and

(b) that beneficiary will no longer be under a legal disability, or it is reasonable to expect that he or she will no longer be under a legal disability, at the end of the current year.

Trustee previously assessed under section 99 or 99A

(3) This Part also applies for an income year to the trustee of a trust if for a previous income year the trustee was liable to be assessed, and to pay tax, under section 99 or 99A of the Income Tax Assessment Act 1936 .

Multiple applications of this Part to the same trustee for the same income year

(4) The application of this Part for an income year, to the trustee of a trust, in respect of a beneficiary of the trust, because of subsection (1), is distinct from, and additional to, each of the following:

(a) the application of this Part for that income year, to the trustee of the trust, in respect of another beneficiary;

(b) the application of this Part for that income year, to the trustee of the trust, because of subsection (3);

(5) The application of this Part for an income year, to the trustee of a trust, because of subsection (3), is distinct from, and additional to, each of the following:

(a) the application of this Part for that income year, to the trustee of the trust, in respect of a beneficiary of the trust, because of subsection (1);

(b) the application of this Part for that income year to a beneficiary of the trust.

(6) A multi-rate trustee is a trustee to whom this Part applies because of this section.

45-460 Rest of Subdivision applies only to multi-rate trustees

The rest of this Subdivision applies to you if, and only if, you are a * multi-rate trustee. (It applies instead of Subdivisions 45-J and 45-K.)

Note: Except as provided in the rest of this Subdivision or elsewhere, this Part applies according to its terms to a multi-rate trustee. For example, a multi-rate trustee can become an annual payer under Subdivision 45-E.

45-465 Meaning of instalment income

Your instalment income for a period is the whole of the trust's * instalment income for that period.

45-468 Multi-rate trustee may pay quarterly instalments

Subdivision 45-D (about quarterly payers) applies to you in the same way as it applies to an individual.

Note: This means that a multi-rate trustee may pay instalments on the basis of GDP-adjusted notional tax if the trustee otherwise satisfies the relevant test that applies to an individual.

How Commissioner works out instalment rate and notional tax for a multi-rate trustee

45-470 Working out instalment rate

(1) An instalment rate that the Commissioner gives you must be the percentage worked out to 2 decimal places (rounding up if the third decimal place is 5 or more) using the formula:

However, the instalment rate must be a nil rate if either component of the formula is nil.

(2) For the purposes of the formula in subsection (1):

"base assessment instalment income" means so much of the assessable income of the trust, as worked out for the purposes of the * base assessment, as the Commissioner determines is * instalment income of the trust for the * base year.

(3) The base assessment is the latest assessment for the most recent income year for which an assessment has been made of the tax payable by you:

(a) under subsection 98(1) or (2) of the Income Tax Assessment Act 1936 in respect of the same beneficiary; or

(b) under section 99 or 99A of the Income Tax Assessment Act 1936 ;

as appropriate.

(4) However, if the Commissioner is satisfied that there is a later income year for which no tax is payable as mentioned in subsection (3), the base assessment is the latest return or other information from which an assessment of tax so payable for that income year would have been made.

(5) The base year is the income year to which the * base assessment relates.

45-473 Commissioner must notify you of notional tax

(1) When the Commissioner gives you the instalment rate, he or she must also notify you of the amount of your * notional tax, as worked out for the purposes of working out the instalment rate.

(2) The Commissioner may incorporate notice of the instalment rate and the amount of your * notional tax in notice of your assessment.

45-475 Working out your notional tax

Notional tax if no withholding income

(1) Your notional tax is your * adjusted tax (worked out under section 45-340) on your * adjusted taxable income (worked out under section 45-480) for the * base year.

Notional tax if trust has withholding income

(2) However, your notional tax (as worked out under subsection (1)) is reduced if the trust's assessable income for the * base assessment includes amounts in respect of * withholding payments (except * non-quotation withholding payments).

(3) It is reduced (but not below nil) by your * adjusted tax (worked out under section 45-340) on your * adjusted withholding income (worked out under section 45-485) for the * base year.

Commissioner may take into account actual and proposed changes to the law

(4) Subsections 45-325(4) and (5) apply for the purposes of working out your * notional tax under this section.

45-480 Working out your adjusted taxable income

(1) Your adjusted taxable income for the * base year is worked out using the formula:

(2) For the purposes of the formula in subsection (1):

"adjusted net income of the trust" means the net income of the trust, as worked out for the purposes of the * base assessment and:

(a) reduced by any * net capital gain included in the trust's assessable income as so worked out; and

(b) increased by any deductions for * tax losses that were made in so working out that net income; and

(c) reduced by the amount of any tax loss, to the extent that it can be carried forward for working out the trust's net income for the next income year.

"reduced net income of the trust" means the net income of the trust, as worked out for the purposes of the * base assessment and reduced by any * net capital gain included in the trust's assessable income as so worked out.

"relevant share" means the * reduced beneficiary's share, or the * reduced no beneficiary's share, as appropriate, of the net income of the trust, as worked out for the purposes of the * base assessment.

45-483 Meaning of reduced beneficiary's share and reduced no beneficiary's share

(1) If the trustee of a trust is liable to be assessed, and to pay tax, for an income year under subsection 98(1) or (2) of the Income Tax Assessment Act 1936 in respect of a particular beneficiary, the reduced beneficiary's share of the net income is the amount on which the trustee is so liable to be assessed and to pay tax, except so much of that amount as is attributable to a * net capital gain included in the trust's assessable income for that income year.

(2) If the trustee of a trust is liable to be assessed, and to pay tax, for an income year under section 99 or 99A of the Income Tax Assessment Act 1936 , the reduced no beneficiary's share of the net income is the amount on which the trustee is so liable to be assessed and to pay tax, except so much of that amount as is attributable to a * capital gain made by the trust during that income year.

45-485 Working out your adjusted withholding income

(1) Your adjusted withholding income for the * base year is worked out using the formula:

(2) For the purposes of the formula in subsection (1):

"net withholding income of the trust" means:

• the total of the amounts included in the trust's assessable income for the * base assessment in respect of * withholding payments (except * non-quotation withholding payments);

reduced by:

• the trust's deductions for that year, as used in making that assessment, to the extent that they reasonably relate to those amounts.

"reduced net income of the trust" has the meaning given by subsection 45-480(2).

"relevant share" has the meaning given by subsection 45-480(2).

How Commissioner works out benchmark instalment rate and benchmark tax for a multi-rate trustee

45-525 When Commissioner works out benchmark instalment rate and benchmark tax

(2) The Commissioner may work out your * benchmark tax for an income year (the variation year ) if, under paragraph 45-112(1)(b) or (c), the amount of your instalment for an * instalment quarter in an income year is worked out on the basis of your estimate of your * benchmark tax for that income year.

(3) The Commissioner may work out your * benchmark tax for an income year (the variation year ) if, under paragraph 45-115(1)(c), you estimate the amount of your annual instalment for that year.

45-530 How Commissioner works out benchmark instalment rate

(1) Your benchmark instalment rate for the variation year is the percentage worked out to 2 decimal places (rounding up if the third decimal place is 5 or more) using the formula:

However, your benchmark instalment rate is a nil rate if either component of the formula is nil.

(2) For the purposes of the formula in subsection (1):

"variation year instalment income" means so much of the trust's assessable income for the variation year as the Commissioner determines is * instalment income for that year.

45-535 Working out your benchmark tax

Benchmark tax if no withholding income

(1) Your benchmark tax is your * adjusted assessed tax (worked out under section 45-375) on the * reduced beneficiary's share, or the * reduced no beneficiary's share, as appropriate, of the net income of the trust for the variation year.

Benchmark tax if you had withholding income

(2) However, your benchmark tax (as worked out under subsection (1)) is reduced if the trust's assessable income for the variation year includes amounts in respect of * withholding payments.

(3) It is reduced (but not below nil) by the total amount of the credits to which you are entitled for the variation year under section 18-25 (for amounts withheld from the withholding payments).

Subdivision 45-P -- Anti-avoidance rules

Table of sections

45-595 Object of this Subdivision

45-600 General interest charge on tax benefit relating to instalments

45-605 When do you get a tax benefit from a scheme?

45-610 What is your tax position for an income year?

45-615 What is your hypothetical tax position for an income year?

45-620 Amount on which GIC is payable, and period for which it is payable

45-625 Credit if you also got a tax detriment from the scheme

45-630 When do you get a tax detriment from a scheme?

45-635 No tax benefit or detriment results from choice for which income tax law expressly provides

45-640 Commissioner may remit general interest charge in special cases

45-595 Object of this Subdivision

(1) The object of this Subdivision is to penalise an entity whose * tax position, so far as it relates to * PAYG instalments (and related credits and * general interest charge), is altered by a * scheme that is inconsistent with:

(a) the purposes and objects of this Part ; or

(b) the purposes and objects of any relevant provisions of this Part;

(whether those purposes and objects are stated expressly or not).

(2) This Subdivision is not intended to apply to a straightforward use of structural features of this Part if that use is consistent with the purposes and objects mentioned in subsection (1).

(3) This Subdivision is to be interpreted and applied accordingly.

45-600 General interest charge on tax benefit relating to instalments

(1) You are liable to pay the * general interest charge under section 45-620 if:

(a) you get a * tax benefit from a * scheme; and

(b) the tax benefit relates to a * component of your * tax position for an income year, and that component is covered by section 45-610; and

(c) having regard to the matters referred to in subsection (3), it would be concluded that an entity that entered into or carried out the scheme (or part of it) did so for the sole or dominant purpose of:

(i) an entity (whether you, that entity or another entity) getting one or more tax benefits from the scheme; or

(ii) 2 or more entities (whether or not including you or that entity) each getting one or more tax benefits from the scheme.

(2) It does not matter:

(a) whether or not you entered into or carried out the * scheme (or part of it); or

(b) whether the entity that entered into or carried out the scheme (or part of it) did so alone or together with one or more others; or

(d) whether or not the * tax benefit you got is of the same kind as a tax benefit mentioned in paragraph (1)(c).

Matters to be considered in determining purpose of scheme

(3) In considering an entity's purpose in entering into or carrying out a * scheme (or part of one), have regard to these matters:

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

(b) the form and substance of the scheme, including:

(i) the legal rights and obligations involved in the scheme; and

(ii) the economic and commercial substance of the scheme;

(c) the purposes and objects of this Part and of any relevant provisions of this Part (whether those purposes and objects are stated expressly or not);

(d) the timing of the scheme;

(e) the period over which the scheme was entered into and carried out;

(f) the effect that this Act would have in relation to the scheme apart from this Subdivision;

(g) any change in your financial position that has resulted from the scheme, or may reasonably be expected to result from it;

(h) any change that has resulted from the scheme, or may reasonably be expected to result from it, in the financial position of an entity that has or had a connection or dealing with you, whether the connection or dealing is or was of a family, business or other nature;

(i) any other consequence for you, or for such an entity, of the scheme having been entered into or carried out;

(j) the nature of the connection between you and such an entity, including the question whether the dealing is or was at * arm's length.

GIC is payable on each of 2 or more tax benefits

(4) If you get 2 or more * tax benefits from the * scheme, this section has a separate application to each of them.

45-605 When do you get a tax benefit from a scheme?

(1) This section describes how to work out whether you get a tax benefit from a * scheme and, if so, the amount of the tax benefit.

(2) First, determine your actual * tax position for an income year (apart from this Subdivision).

(3) Next, determine your * hypothetical tax position for the same income year (apart from this Subdivision).

(4) Then compare each * component of the 2 positions. If the amount of that component of the actual * tax position is lower than the amount of that component of the * hypothetical tax position, the difference between the 2 amounts is a tax benefit that you get from the * scheme.

Note 1: The difference between the 2 amounts is not a tax benefit to the extent that it is attributable to certain things for which the income tax law expressly provides. See section 45-635.

Note 2: An entity may get 2 or more tax benefits from the same scheme. One reason is that the scheme may affect 2 or more components of the entity's tax position for an income year. Another reason is that the scheme may affect the tax position for 2 or more income years.

45-610 What is your tax position for an income year?

Your tax position for an income year consists of a number of components . The table sets out each component, and how to work out the amount of the component.

Components of your tax position that relate to PAYG instalments and credits
Item	*Each of these is a component* :**	The amount of that component is:
1	Your instalment for each * instalment quarter in the income year is a *quarterly instalment component* .	The amount worked out as follows: (a) if you are liable to pay an instalment for that instalment quarter--the amount of the instalment; or (b) if for any reason you are not liable to pay an instalment for that instalment quarter--nil (even if you are an * annual payer or a * quarterly payer who pays 2 instalments annually on the basis of GDP-adjusted notional tax); or (c) if you are entitled to claim a credit for that instalment quarter under section 45-420 (because the instalment for that quarter is to be worked out on the basis of your estimated benchmark tax)--the amount of the credit (expressed as a negative amount).
2	Your annual instalment for the income year is the *annual instalment component* .	The amount worked out as follows: (a) if you are liable to pay an annual instalment for the income year--the amount of the instalment; or (b) if for any reason you are not liable to pay an annual instalment for the income year--nil (even if you are a * quarterly payer).
3	A *variation credit component* is a credit arising under section 45-215 because the amount of your instalment for an * instalment quarter in the income year is to be worked out using an instalment rate you chose under section 45-205.	The amount worked out as follows: (a) if you are entitled to the credit--the amount of the credit (expressed as a negative amount); or (b) otherwise--nil.
4	A *variation GIC component* is the * general interest charge you are liable to pay under: (a) subsection 45-230(2) (varied instalment rate); or (b) subsection 45-232(2) (estimated benchmark tax); or (c) subsection 45-235(2) or (3) (annual instalment); because of how your instalment for an * instalment quarter in the income year, or for the income year, was worked out.	The amount worked out as follows: (a) if you are liable to pay the charge--the amount of the charge; or (b) otherwise--nil.

Example: A scheme results in X Pty Ltd being able to choose to be an annual payer for the 2000-01 income year.

The following table shows the actual tax position of X Pty Ltd for that year, and also its hypothetical tax position as defined in section 45-615. X Pty Ltd has got 4 tax benefits from the scheme: one for each of the 4 instalment quarters.

2000-01 income year
For this component:	The amount of that component of the actual tax position is:	The amount of that component of the hypothetical tax position is:
Quarterly instalment component for first instalment quarter	nil	$3,000
Quarterly instalment component for second instalment quarter	nil	$4,000
Quarterly instalment component for third instalment quarter	nil	$3,000
Quarterly instalment component for fourth instalment quarter	nil	$2,000
Annual instalment component	$12,000	nil

45-615 What is your hypothetical tax position for an income year?

Your hypothetical tax position for an income year is what would have been, or what could reasonably be expected to have been, your * tax position for the income year if the * scheme had not been entered into or carried out.

45-620 Amount on which GIC is payable, and period for which it is payable

(1) You are liable to pay the * general interest charge on twice the * tax benefit mentioned in paragraph 45-600(1)(a).

Note 1: To the extent that you also got a tax detriment from the scheme, you get a credit: see section 45-625.

Note 2: In special circumstances the Commissioner can remit some or all of the general interest charge: see section 45-640.

(2) You are liable to pay the charge for each day in the period that:

(a) started at the beginning of the day by which your instalment for the period mentioned in the applicable item of the table in section 45-610 was due to be paid, or would have been due to be paid if you had been liable to pay an instalment for that period; and

(b) finishes at the end of the day on which your assessed tax for the income year is due to be paid.

(3) The Commissioner must give you written notice of the * general interest charge to which you are liable under subsection (1). You must pay the charge within 14 days after the notice is given to you.

(4) If any of the * general interest charge to which you are liable under subsection (1) remains unpaid at the end of the 14 days referred to in subsection (3), you are also liable to pay the general interest charge on the unpaid amount for each day in the period that:

(a) starts at the end of those 14 days; and

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

(i) the unpaid amount;

(ii) general interest charge on the unpaid amount.

45-625 Credit if you also got a tax detriment from the scheme

(1) You are entitled to a credit if:

(a) you are liable to pay * general interest charge under section 45-620 because you got one or more * tax benefits from the * scheme; and

(b) the Commissioner is satisfied that:

(i) you got a * tax detriment from the scheme; and

(ii) the tax detriment relates to a * component of your * tax position for an income year, and that component is covered by section 45-610.

(It does not matter whether that income year is the same as the one referred to in section 45-600.)

Note: How the credit is applied is set out in Division 3 of Part IIB.

(2) The credit is equal to the * general interest charge on twice the amount of the * tax detriment for each day in the period that:

(a) started at the beginning of the day by which your instalment for the period mentioned in the item of the table in section 45-610 that applies for the purposes of working out the amount of the tax detriment:

(i) was due to be paid; or

(ii) would have been due to be paid if you had been liable to pay an instalment for that period; and

(b) finishes at the end of the day on which your assessed tax for the income year is due to be paid.

(3) However, the credit cannot exceed the total * general interest charge you are liable to pay under section 45-620 because you got one or more * tax benefits from the * scheme.

Credit for each of 2 or more tax detriments

(4) If you get 2 or more * tax detriments from the scheme, subsections (1) and (2) have a separate application to each of them. However, the total of the credits cannot exceed the total * general interest charge referred to in subsection (3).

45-630 When do you get a tax detriment from a scheme?

(1) This section describes how to work out whether you get a tax detriment from a * scheme and, if so, the amount of the tax detriment.

(2) First, determine your actual * tax position for an income year (apart from this Subdivision).

(3) Next, determine your * hypothetical tax position for the same income year (apart from this Subdivision).

(4) Then compare each * component of the 2 positions. If the amount of that component of the actual * tax position is higher than the amount of that component of the * hypothetical tax position, the difference between the 2 amounts is a tax detriment that you get from the * scheme.

Example: In the fact situation in the example in section 45-610, X Pty Ltd gets a tax detriment from the scheme for the annual instalment component of its tax position for the income year.

Note 1: The difference between the 2 amounts is not a tax detriment to the extent that it is attributable to certain things for which the income law expressly provides. See section 45-635.

Note 2: An entity may get 2 or more tax detriments from the same scheme. One reason is that the scheme may affect 2 or more components of the entity's tax position for an income year. Another reason is that the scheme may affect the tax position for 2 or more income years.

45-635 No tax benefit or detriment results from choice for which income tax law expressly provides

Choice under the income tax law generally

(1) The difference between the 2 amounts referred to in subsection 45-605(4) or 45-630(4) is not a * tax benefit or * tax detriment if there would have been no difference between the 2 amounts but for one or more matters covered by subsection (3).

(2) The difference between the 2 amounts is not a * tax benefit or * tax detriment to the extent that the difference between the 2 amounts would have been less but for one or more matters covered by subsection (3).

(3) This subsection covers:

(a) an entity making an agreement, choice, declaration, election or selection; or

(b) an entity giving a notice or exercising an option;

for which this Act expressly provides. However, this subsection does not cover an entity doing such a thing under:

(c) Subdivision 126-B (about CGT roll-overs involving certain companies in the same wholly-owned group) of the Income Tax Assessment Act 1997 ; or

(d) Subdivision 170-B of that Act (about transferring a net capital loss between certain companies in the same wholly-owned group).

Matters excluded in applying subsection (1) or (2)

(4) Subsection (1) or (2) does not apply to a matter covered by subsection (3) if an entity entered into or carried out the * scheme (or part of it) for the sole or dominant purpose of creating a circumstance or state of affairs whose existence is necessary for the entity referred to in subsection (3):

(a) to make the agreement, choice, declaration, election or selection; or

(b) to give the notice or exercise the option.

Choice under some CGT provisions

(5) The difference between the 2 amounts is not a * tax benefit or * tax detriment if:

(a) there would have been no difference between the 2 amounts but for one or more matters covered by subsection (7); and

(b) the * scheme consisted wholly of that matter or those matters.

(6) Also, the difference between the 2 amounts is not a * tax benefit or * tax detriment to the extent that the difference between the 2 amounts would have been less but for one or more matters covered by subsection (7), but only if the * scheme consisted wholly of that matter or those matters.

(7) This subsection covers:

(a) a choice made under Subdivision 126-B (about CGT roll-overs involving certain companies in the same wholly-owned group) of the Income Tax Assessment Act 1997 ; or

(b) an agreement made under Subdivision 170-B of that Act (about transferring a net capital loss between certain companies in the same wholly-owned group);

45-640 Commissioner may remit general interest charge in special cases

(1) The Commissioner may, if he or she is satisfied that because special circumstances exist it would be fair and reasonable to do so, remit the whole or any part of any * general interest charge payable under section 45-620.

(2) If the Commissioner does so, section 45-625 (about credits for tax detriments from schemes) applies, and is taken always to have applied, as if the remitted amount had never been payable.

Subdivision 45-Q -- General rules for consolidated groups

Guide to Subdivision 45-Q

45-700 What this Subdivision is about

This Subdivision allows the members of a consolidated group to be treated as a single entity for the purposes of Pay as you go (PAYG) instalments. Generally, the head company of the group is the entity liable to pay PAYG instalments.

The PAYG instalments provisions in this Part apply to the head company in much the same way as they apply to any other company. However, the operation of some of these provisions is modified by this Subdivision.

This Subdivision also contains special rules to deal with changes in the membership of the group.

Note 1: Subdivision 45-R contains special rules that apply to members of a consolidated group before they are treated as a single entity for the purposes of this Part. It also contains special rules that affect the operation of this Subdivision (see sections 45-880 and 45-885).

Note 2: Subdivision 45-S extends the operation of this Subdivision so that it can apply to members of a MEC group. It contains modifications of this Subdivision for the purposes of that extended operation.

Table of sections

Application of Subdivision

45-705 Application of Subdivision to head company

Usual operation of this Part for consolidated group members

45-710 Single entity rule

45-715 When instalments are due--modification of section 45-61

45-720 Head company cannot be an annual payer--modification of section 45-140

Membership changes

45-740 Change of head company

45-755 Entry rule (for an entity that becomes a subsidiary member of a consolidated group)

45-760 Exit rule (for an entity that ceases to be a subsidiary member of a consolidated group)

45-775 Commissioner's power to work out different instalment rate or GDP-adjusted notional tax

Application of Subdivision

45-705 Application of Subdivision to head company

Period during which Subdivision applies to head company

(1) Subject to sections 45-880 and 45-885, this Subdivision applies to a company as the * head company of a * consolidated group during the period:

(a) starting at the start of the * instalment quarter of the company determined under subsection (2), (3) or (4); and

(b) ending:

(i) at the end of the instalment quarter of the company determined under paragraph (5)(a) or (b); or

(ii) just before the instalment quarter of the company determined under paragraph (5)(c) or (d).

When the period begins--initial head company instalment rate

(2) This Subdivision starts to apply to a company as the * head company of a * consolidated group at the start of an * instalment quarter under this subsection if, during that quarter, the Commissioner gives the company (as that head company) the * initial head company instalment rate.

Note: The operation of this subsection may be affected by section 45-885.

When the period begins--group created from MEC group

(3) This Subdivision starts to apply to a company as the * head company of a * consolidated group at the start of an * instalment quarter (the starting quarter ) under this subsection if all of the following conditions are satisfied:

(a) the consolidated group is * created from a * MEC group during the starting quarter;

(b) the company is the head company of the consolidated group when the consolidated group is created from the MEC group;

(i) this Subdivision applied, in accordance with Subdivision 45-S, to the * provisional head company of the MEC group at the end of the previous instalment quarter;

(ii) the Commissioner gives the * initial head company instalment rate to the provisional head company of the MEC group during the starting quarter.

Note: For the application of this Subdivision to a provisional head company of a MEC group: see section 45-915.

When the period begins--new head company

(4) This Subdivision starts to apply to a company as the * head company of a * consolidated group at the start of an * instalment quarter (the starting quarter ) under this subsection if all of the following conditions are satisfied:

(a) the company is an interposed company mentioned in subsection 124-380(5) of the Income Tax Assessment Act 1997 ;

(b) the company chooses under that subsection that the consolidated group is to continue in existence at and after the completion time mentioned in that subsection;

(d) one of the following subparagraphs applies:

(i) this Subdivision applied to the original company mentioned in that subsection (as the head company of the consolidated group) at the end of the previous instalment quarter;

(ii) the Commissioner gives the * initial head company instalment rate to the original company mentioned in that subsection (as the head company of the consolidated group) during the starting quarter;

(iii) the consolidated group is * created from a * MEC group during the starting quarter and this Subdivision applied to the * provisional head company of the MEC group at the end of the previous instalment quarter;

(iv) the consolidated group is created from a MEC group during the starting quarter and the Commissioner gives the initial head company instalment rate to the provisional head company of the MEC group during the starting quarter.

When the period ends

(5) This Subdivision stops applying to a company as the * head company of a * consolidated group at the earliest of the following times after the company becomes the head company:

(a) the end of the * instalment quarter during which the consolidated group ceases to exist (other than because a * MEC group is * created from the consolidated group);

(b) the end of the instalment quarter during which the Commissioner is notified of the creation of a MEC group from the consolidated group if the MEC group is created during that instalment quarter;

(c) just before the instalment quarter during which the Commissioner is notified of the creation of a MEC group from the consolidated group if the MEC group was created before that instalment quarter;

(d) just before the instalment quarter that includes the completion time mentioned in subsection 124-380(5) of the Income Tax Assessment Act 1997 where an interposed company mentioned in that subsection chooses under that subsection that the consolidated group is to continue in existence.

Note: The operation of this subsection because of paragraph (a) may be affected by section 45-880.

(6) For the purposes of subsection (5), the Commissioner is notified of the creation of a * MEC group from a * consolidated group when the Commissioner receives a notice of the consolidation of the MEC group under subsection 719-40(1) of the Income Tax Assessment Act 1997 .

(7) If this Subdivision stops applying to a company as the * head company of a * consolidated group just before an * instalment quarter under paragraph (5)(c), then, for the purposes of this Part, this Act has effect for the company and other * members of the group as if:

(a) the consolidated group had continued to exist until just before the start of that quarter; and

(b) the company were the head company of the group until just before the start of that quarter.

(8) To avoid doubt, this Subdivision does not apply to a company as the * head company of a * consolidated group for any time at all if:

(a) subsection (2), (3) or (4), and subsection (5), would, apart from this subsection, apply to the company; but

(b) the time at which this Subdivision would stop applying to the company under subsection (5) is before the time at which this Subdivision would start to apply to the company under subsection (2), (3) or (4).

(9) To avoid doubt, and apart from the operation of subsection (7), this Subdivision may apply to a company as the * head company of a * consolidated group at a time when the company is not in fact the head company of the group.

Note: An example of this is when an interposed company becomes the new head company of a consolidated group. Under this section and section 45-740, this Subdivision may start applying to the company as if it had already become the head company when it is not yet such a company.

Usual operation of this Part for consolidated group members

45-710 Single entity rule

If an entity is a * subsidiary member of a * consolidated group for any period during which this Subdivision applies to the * head company of the group:

(a) that entity; and

(b) any other subsidiary member of the group;

are taken for the purposes of this Part to be parts of that head company (rather than separate entities) during that period.

Note: That means, amongst other things, the head company would be liable to pay instalments for that period as if the subsidiary members were parts of the head company.

45-715 When instalments are due--modification of section 45-61

If:

(a) the * head company of a * consolidated group is liable to pay an instalment for an * instalment quarter; and

(b) this Subdivision applies to the head company during that quarter;

then, despite subsection 45-61(2), the instalment is due on or before the 21st day of the month after the end of that quarter whether or not the head company is a * deferred BAS payer on that day.

45-720 Head company cannot be an annual payer--modification of section 45-140

Despite any other provisions in this Part, the * head company of a * consolidated group cannot choose to be an * annual payer under section 45-140 while this Subdivision applies to the head company.

Note: You stop being an annual payer when this Subdivision starts applying to you as the head company of a consolidated group: see section 45-160.

Membership changes

45-740 Change of head company

Object

(1) The object of this section (except subsection (8)) is to ensure that, for the purposes of this Part, when a company becomes the new * head company of a * consolidated group:

(a) the company inherits the history of the former head company of the group; and

(b) the history of the new head company is effectively ignored.

(2) This section applies to a * head company of a * consolidated group if:

(a) the company is an interposed company mentioned in subsection 45-705(4) (an interposed company that chooses under subsection 124-380(5) of the Income Tax Assessment Act 1997 that the consolidated group is to continue in existence at and after the completion time mentioned in that subsection); and

(b) the conditions in subsection 45-705(4) are satisfied in relation to the interposed company (whether or not this Subdivision applies to the company as the head company of the group for any period of time).

(3) Everything that happened before the completion time in relation to the company (the original company ) that was the * head company of the * consolidated group immediately before the completion time:

(a) is taken to have happened in relation to the interposed company instead of in relation to the original company; and

(b) is taken to have happened in relation to the interposed company instead of what would (apart from this section) be taken to have happened in relation to the interposed company before the completion time;

just as if, at all times before the completion time:

(d) the original company had been the interposed company.

(4) To avoid doubt, subsection (3) also covers everything that, immediately before the completion time, was taken to have happened in relation to the original company because of:

(a) section 701-1 of the Income Tax Assessment Act 1997 (single entity rule); or

(b) section 701-5 of that Act (entry history rule); or

(c) section 703-75 of that Act (effects of an interposed company becoming the * head company of a * consolidated group); or

(d) section 719-90 of that Act (effects of a change of head company of a * MEC group); or

(e) section 45-710 in this Schedule (single entity rule for the purposes of this Part), including an application of that section under Subdivision 45-S in this Schedule; or

(f) this section; or

(g) section 45-920 in this Schedule (effects of a change of * provisional head company of a MEC group for the purposes of this Part); or

(h) one or more previous applications of any of the provisions covered by paragraphs (a) to (g).

(5) In addition, and without affecting subsection (3):

(a) an assessment of the original company for an income year that ends before the income year that includes the completion time; or

(b) an amendment of the assessment;

is taken to be something that had happened to the interposed company, whether or not the assessment or amendment is made before the completion time.

(6) This section has effect for the purposes of applying this Part to * members of the * consolidated group in relation to an * instalment quarter of the interposed company that ends after the completion time.

Note: An assessment mentioned in subsection (5) may therefore be taken to be the base assessment of the interposed company for the purposes of this Part.

(7) Subsections (1) to (6) are to be disregarded in applying section 45-705 (about the application of this Subdivision to a company as the * head company of a * consolidated group).

Note: For example, if the Commissioner has given an initial head company instalment rate to the original company during an earlier instalment quarter, the rate is not, despite this section, treated as if it had been given to the interposed company for the purposes of section 45-705. Subject to the other provisions in that section, this Subdivision therefore starts applying to the interposed company under subsection 45-705(4).

Special rule for the original company

(8) A provision of this Part that applies on an entity becoming a * subsidiary member of a * consolidated group does not apply to the original company when it is taken to have become such a member at the completion time as a result of section 703-70 of the Income Tax Assessment Act 1997 .

Note: Section 45-755 (the entry rule) therefore does not apply to the original company on the company becoming a subsidiary member of the consolidated group.

45-755 Entry rule (for a n entity that becomes a subsidiary member of a consolidated group)

(1) Despite any other provisions in this Part, an entity is liable to pay an instalment for an * instalment quarter or income year (as appropriate) during which the entity becomes a * subsidiary member of a * consolidated group if:

(a) this Subdivision applies to the * head company of the group at any time during that quarter or year (as appropriate); and

(b) the entity would otherwise be liable to pay an instalment for that quarter or year (as appropriate) if it had not become a subsidiary member of the group; and

(c) the entity becomes a subsidiary member of the group on a day other than the first day of that quarter or the first day of that year (as appropriate).

Note: Under paragraph (b), this section could apply to an entity that, at the time of becoming a subsidiary member of the group, was not a subsidiary member of another consolidated group, or was a member of another consolidated group but this Subdivision did not apply to the head company of that other group at that time.

Modifications for a quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax

(2) Subsections (3) and (4) apply to the entity if:

(a) the entity would have been a * quarterly payer who pays 4 instalments annually on the basis of GDP-adjusted notional tax at the end of the * instalment quarter mentioned in subsection (1) if it had not become a * subsidiary member of the group; and

(b) the amount of the instalment payable by the entity for that quarter would have been worked out under paragraph 45-112(1)(b); and

(3) For the purposes of working out the amount of the instalment payable by the entity for that * instalment quarter, subsection 45-410(5) applies to the entity as if that quarter were the fourth instalment quarter in the income year for which the entity is liable to pay an instalment.

(4) For the purposes of working out the * acceptable amount of the entity's instalment for that instalment quarter, subsection 45-232(3) applies to the entity as if that quarter were the fourth instalment quarter in the income year for which the entity is liable to pay an instalment.

45-760 Exit rule (for an entity that ceases to be a subsidiary member of a consolidated group)

(1) This section applies to an entity if all of the following conditions are satisfied:

(a) the entity ceases to be a * subsidiary member of a * consolidated group during an * instalment quarter of the * head company of the group;

(b) this Subdivision applies to the head company of the group during that instalment quarter;

(i) a subsidiary member of another consolidated group the head company of which is one to which this Subdivision applies at that time; or

(ii) a member (other than the * provisional head company) of a * MEC group the provisional head company of which is one to which this Subdivision applies, in accordance with Subdivision 45-S, at that time;

(d) this Part applies to the entity under section 45-10.

(2) This Part applies to the entity as if:

(a) the Commissioner had given the entity an instalment rate equal to the most recent instalment rate given to the * head company mentioned in paragraph (1)(a) before the end of the * instalment quarter mentioned in that paragraph; and

(b) the entity were a * quarterly payer who pays on the basis of instalment income at the end of that instalment quarter, and of each subsequent instalment quarter, until:

(i) if the Commissioner first gives the entity an instalment rate worked out on the basis of the * base assessment covered by subsection (3) during the first instalment quarter of an income year--immediately before the end of that first instalment quarter; or

(ii) if that rate is given to the entity during any other instalment quarter of an income year--immediately after the end of the last instalment quarter of that year.

(3) This section only covers the first * base assessment of the entity for an income year that is, or includes, a period after the entity ceases to be a * subsidiary member of the group.

45-775 Commissioner's power to work out different instalment rate or GDP-adjusted notional tax

(1) This section applies if any of the following changes (the membership change ) occurs in relation to a * consolidated group while this Subdivision applies to the * head company of the group:

(a) an entity becomes a * subsidiary member of the group or a number of entities become subsidiary members of the group;

(b) an entity ceases to be a subsidiary member of the group or a number of entities cease to be subsidiary members of the group.

(2) If the Commissioner, having regard to the object of this Part and the membership change, is of the opinion that it would be reasonable to do so, the Commissioner may work out:

(a) an instalment rate that is higher, or lower, than the most recent instalment rate given by the Commissioner to the * head company under section 45-15; or

(b) an amount of * GDP-adjusted notional tax that is higher, or lower, than the amount of GDP-adjusted notional tax worked out for the purposes of the most recent amount of instalment notified by the Commissioner to the head company under paragraph 45-112(1)(a).

(3) The new instalment rate or amount of * GDP-adjusted notional tax must be a rate or amount that, in the opinion of the Commissioner, is reasonable having regard to the object of this Part and the membership change.

Note 1: Subdivision 45-J does not apply for the purpose of working out an instalment rate under this section.

Note 2: Section 45-405 does not apply for the purpose of working out an amount of GDP-adjusted notional tax under this section.

Additional applications of subsection (2)

(4) If, after exercising the power in relation to the membership change under subsection (2) for the first time, and on the basis of an assessment (including an amendment) of the * head company for the income year in which the change occurs, or for an earlier year, the Commissioner has worked out:

(a) another instalment rate under section 45-320 for the company (whether or not the Commissioner has given that rate to the company); or

(b) another amount of * GDP-adjusted notional tax under section 45-405 for the company (whether or not the Commissioner has notified the company an amount of instalment based on that other amount);

the Commissioner may again exercise the power under subsection (2) in relation to the membership change, as if:

(d) the amount of GDP-adjusted notional tax mentioned in paragraph (b) were the amount of GDP-adjusted notional tax worked out for the purposes of the most recent amount of instalment that is mentioned in paragraph (2)(b).

(5) To avoid doubt, in relation to the membership change, the Commissioner:

(a) may exercise the power under subsection (2) by applying subsection (4) more than once; but

(b) must not exercise that power more than once in relation to a particular instalment rate mentioned in paragraph (4)(a) or a particular amount of * GDP-adjusted notional tax mentioned in paragraph (4)(b).

Subdivision 45-R -- Special rules for consolidated groups

Guide to Subdivision 45-R

45-850 What this Subdivision is about

This Subdivision deals with the application of this Part to members of a consolidated group after the group has come into existence but before the members are treated as a single entity for the purposes of this Part.

This Subdivision also contains special rules in relation to the application of Subdivision 45-Q to members of a consolidated group in these circumstances:

(a) a group whose members were treated as a single entity under that Subdivision (a mature group ) is acquired by another group (see section 45-880); or

(b) a member of a mature group ceases to be such a member and becomes the head company of a new group (see section 45-885).

Note: Subdivision 45-S extends the operation of this Subdivision so that it can apply to members of a MEC group. It contains modifications of this Subdivision for the purposes of that extended operation.

Table of sections

Operative provisions

45-855 Section 701-1 disregarded for certain purposes

45-860 Member having a different instalment period

45-865 Credit rule

45-870 Head company's liability to GIC on shortfall in quarterly instalment

45-875 Other rules about the general interest charge

45-880 Continued application of Subdivision 45-Q to the head company of an acquired group

45-885 Early application of Subdivision 45-Q to the head company of a new group

Operative provisions

45-855 Section 701-1 disregarded for certain purposes

If:

(a) an amount is required to be worked out for the purpose of determining the * instalment income of an entity that is a * member of a * consolidated group for a period that is all or a part of a * consolidation transitional year for the entity; and

(b) the period ends before Subdivision 45-Q starts to apply, because of subsection 45-705(2) or subparagraph 45-705(3)(c)(ii), (4)(d)(ii) or (iv), to the * head company of the group;

that amount must be worked out without regard to any application of section 701-1 of the Income Tax Assessment Act 1997 to the entity in relation to the period.

45-860 Member having a different instalment period

Different instalment period--instalment quarter

(1) If:

(a) but for Subdivision 45-Q, a * subsidiary member of a * consolidated group would be liable to pay an instalment for an * instalment quarter of the subsidiary member that includes the starting time; and

(b) that quarter ends before the end of the instalment quarter of the * head company of the group that includes the starting time;

then, despite section 45-710, the subsidiary member is liable to pay an instalment for that quarter.

Different instalment period--income year

(2) If:

(a) but for Subdivision 45-Q, a * subsidiary member of a * consolidated group would be liable to pay an annual instalment for an income year of the subsidiary member that includes the starting time; and

(b) that year ends before the end of the income year of the * head company of the group that includes the starting time;

then, despite section 45-710, the subsidiary member is liable to pay an instalment for that year.

Assumptions for working out amount of instalment

(3) The amount of the instalment must be worked out on the following assumptions:

(a) that the * instalment quarter or income year of the * subsidiary member (as appropriate) consists only of the period that is the part of the quarter or year occurring before the starting time;

(b) that an amount required to be worked out for the purpose of determining the * instalment income of the subsidiary member for that period is worked out under section 45-855.

(4) For the purposes of this section, the starting time is the time at which Subdivision 45-Q starts to apply to the * head company of the group because of subsection 45-705(2) or subparagraph 45-705(3)(c)(ii), (4)(d)(ii) or (iv).

45-865 Credit rule

(1) When the Commissioner makes an assessment:

(a) of the income tax that the * head company of a * consolidated group is liable to pay for a * consolidation transitional year for the head company; or

(b) that no income tax is payable by the head company for that year;

the head company is, in addition to any credit to which it is entitled under section 45-30 for that year, entitled to a credit in relation to instalments payable by an entity that is a * subsidiary member of the group at any time during that year.

(2) The credit is equal to:

(a) the sum of so much of each instalment payable by the entity (even if it has not paid it) for an * instalment quarter of a * consolidation transitional year for the entity, or for that year, as is reasonably attributable to so much of that quarter or year:

(i) which is, or is included in, the consolidation transitional year for the * head company; and

(ii) during which the entity is a * subsidiary member of the group;

minus

(b) the sum of so much of each credit that the entity has claimed under section 45-215 or 45-420 for each instalment quarter covered by paragraph (a) as is reasonably attributable to:

(i) for a credit under section 45-215--so much of the preceding instalment quarters of that consolidation transitional year for the entity which is covered by subparagraphs (a)(i) and (ii); or

(ii) for a credit under section 45-420--so much of that instalment quarter and the preceding instalment quarters of that consolidation transitional year for the entity which is covered by subparagraphs (a)(i) and (ii).

(3) To avoid doubt, if:

(a) during the * instalment quarter or the * consolidation transitional year mentioned in paragraph (2)(a), the entity is a * subsidiary member of:

(i) 2 or more * consolidated groups; or

(ii) one or more consolidated groups and one or more * MEC groups; and

(b) an amount is taken into account under that paragraph or paragraph (2)(b) in working out the credit to which the * head company of one of the groups is entitled under subsection (1);

that amount is not to be taken into account in working out the credit to which the head company of another of those groups is entitled under that subsection.

(4) A reference in subsection (3) to subsection (1) or paragraph (2)(a) or (b) includes a reference to that provision in its extended operation in relation to a * MEC group under Subdivision 45-S.

Note: This section applies to members of a MEC group with the modifications set out in section 45-930.

45-870 Head company's liability to GIC on shortfall in quarterly instalment

Liability for the general interest charge

(1) Subject to subsections (3) and (4), the * head company of a * consolidated group is liable to pay the * general interest charge under this section for an * instalment quarter in a * consolidation transitional year for the head company if:

(a) the instalment payable by at least one * member of the group for that quarter is worked out:

(i) under paragraph 45-112(1)(b) or (c); or

(ii) by using an instalment rate under section 45-205; and

(b) the sum of instalments payable by the members of the group for that quarter, reduced by credits claimed by those members under section 45-215 or 45-420 for that quarter, is less than 17 / 80 of the head company's * benchmark tax for that consolidation transitional year.

Note: 17 / 80 of the head company's benchmark tax represents an amount that is 85% of one quarter of that benchmark tax.

Amount on which the charge is payable

(2) Subject to subsections (3) and (4), the * general interest charge is payable on the amount worked out in accordance with the following method statement (if the amount is a positive amount).

Method statement

Step 1. Work out the amount that is 1 / 4 of the * benchmark tax of the * head company for that * consolidation transitional year of that head company.

Step 2. Work out the sum of instalments that would have been payable by all the * members of the group for that * instalment quarter of that * head company if none of the members had worked out its instalment for that quarter under paragraph 45-112(1)(b) or (c) or by using an instalment rate under section 45-205.

Step 3. Work out the sum of instalments payable by all the * members of the group for that * instalment quarter, reduced by credits claimed by the members under section 45-215 or 45-420 for that quarter.

Step 4. Reduce the lesser of the results of steps 1 and 2 by the result of step 3. The result of this step is the amount on which the * general interest charge is payable if it is a positive amount. No general interest charge is payable if the result of this step is nil or a negative amount.

Amounts of instalments or credits that are taken into account

(3) In working out an amount of instalment or credit for a * subsidiary member of the group for the purposes of any of the following provisions:

(a) paragraph (1)(b);

(b) step 2 or 3 of the method statement;

take into account only an amount of instalment or credit covered by that provision that is reasonably attributable to a period in that * consolidation transitional year of the * head company during which it is a subsidiary member of the group.

Members having different instalment quarters

(4) In working out an amount of instalment or credit for a * subsidiary member whose * instalment quarters differ from those of the * head company for the purposes of any of the following provisions:

(a) paragraph (1)(a) or (b);

(b) step 2 or 3 of the method statement;

a reference to an instalment quarter in a * consolidation transitional year of the head company in any of those provisions includes a reference to the last instalment quarter of that subsidiary member ending before the end of that instalment quarter of the head company.

45-875 Other rules about the general interest charge

(1) The * general interest charge under section 45-870 for an * instalment quarter in an income year is payable by the * head company for each day in the period that:

(a) started at the beginning of the day by which the instalment for that quarter was due to be paid; and

(b) finishes at the end of the day on which the head company's assessed tax for that income year is due to be paid.

(2) The Commissioner must give the * head company written notice of the * general interest charge. The head company must pay the charge within 14 days after the notice is given to the head company.

(3) If any of the * general interest charge remains unpaid at the end of the 14 days, the * head company is also liable to pay the general interest charge on the unpaid amount for each day in the period that:

(a) starts at the end of those 14 days; and

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

(i) the unpaid amount;

(ii) general interest charge on the unpaid amount.

(4) The Commissioner may, if he or she is satisfied that because special circumstances exist it would be fair and reasonable to do so, remit the whole or any part of any * general interest charge payable under section 45-870.

45-880 Continued application of Subdivision 45-Q to the head company of an acquired group

(1) This section applies to a company for which all of the following conditions are satisfied in relation to a particular time (the takeover time ):

(a) just before the takeover time, Subdivision 45-Q applied to the company as the * head company of a * consolidated group;

(b) at the takeover time, the company becomes a * wholly-owned subsidiary of a * member of another consolidated group or * MEC group;

(c) that other group is consolidated at or before the takeover time under section 703-50 or 719-50 of the Income Tax Assessment Act 1997 ;

(d) the Commissioner receives the choice (or notice) under that section for the consolidation of that other group not later than 28 days after the takeover time, or within such further period (if any) as the Commissioner allows;

(e) at the takeover time, Subdivision 45-Q (including that Subdivision as applied under Subdivision 45-S) does not apply to the head company or the * provisional head company of that other group.

(2) For the purposes of this Part only, this Act has effect in relation to the company and the other * members of the * consolidated group mentioned in paragraph (1)(a) (the preserved group ) as if, during the period covered by subsection (5):

(a) the preserved group had continued to exist as a consolidated group; and

(b) the company were still the * head company of the preserved group; and

(d) an entity, while being a * subsidiary member of the preserved group, were not treated as a member of the group mentioned in paragraph (1)(b) (the new group ).

(3) Subsection (2) does not stop the company from being a member of the new group for the purposes of this Part during the period covered by subsection (5).

Note: This means, for example, sections 45-855 and 45-860 apply to the head company as a member of the new group.

(4) However, for the purposes of applying section 45-855 to the company, a reference in that section to an application of section 701-1 of the Income Tax Assessment Act 1997 to the company in relation to the period mentioned in section 45-855 is taken to be:

(a) a reference only to an application of section 701-1 of that Act to the company as a member of the new group during that period; and

(b) not a reference to an application (because of subsection (2) of this section) of section 701-1 of that Act to the company as the * head company of the preserved group during that period.

(5) This subsection covers the period that starts from the start of the * instalment quarter of the company that includes the takeover time and ends at the earlier of the following times:

(a) the end of the instalment quarter of the company during which the company ceases to be a member of the new group;

(b) just before the instalment quarter of the company during which the Commissioner gives the * initial head company instalment rate to the * head company, or the * provisional head company, of the new group.

(6) The Commissioner may, on the application of the company made not later than 28 days after the takeover time, allow such extension of time for the purposes of paragraph (1)(d) as he or she considers appropriate.

(7) To avoid doubt, nothing in this section prevents the operation of section 45-755 or 45-760 to * members of the preserved group while it continues to exist under subsection (2).

45-885 Early application of Subdivision 45-Q to the head company of a new group

(1) This section applies to a company for which all of the following conditions are satisfied in relation to a particular time (the starting time ):

(a) just before the starting time, the company was a * subsidiary member of a * consolidated group, or a member of a * MEC group;

(b) just before the starting time, the consolidated group or MEC group was a mature group (see subsection (4));

(i) the company ceases to be a subsidiary member of the consolidated group, or a member of the MEC group;

(ii) the group ceases to exist (otherwise than because a MEC group or consolidated group is * created from the group, or because its * head company or * provisional head company becomes a * wholly-owned subsidiary of a member of another mature group);

(d) at the starting time, the company is the head company of another consolidated group;

(e) within 28 days after the starting time, or within such further period (if any) as the Commissioner allows, the Commissioner receives the notice under section 703-58 of the Income Tax Assessment Act 1997 in relation to the choice to consolidate, at and after the starting time, that other consolidated group under section 703-50 of the Income Tax Assessment Act 1997 .

(2) For the purposes of this Part:

(a) the instalment rate that the Commissioner is taken to have given to the company under paragraph 45-760(2)(a) has effect as if it were the * initial head company instalment rate for the company as the * head company of the * consolidated group mentioned in paragraph (1)(d); and

(b) an instalment rate that would otherwise be the initial head company instalment rate for the company as the head company of that consolidated group is not to be treated as that initial head company instalment rate.

Note: This means, subject to the provisions in section 45-705, Subdivision 45-Q starts applying to the company as the head company of the consolidated group at the start of the instalment quarter that includes the starting time: see subsection (2) of that section and paragraph 45-760(2)(a).

(3) The Commissioner may, on the application of the company made within 28 days after the starting time, allow such extension of time for the purposes of paragraph (1)(e) as he or she considers appropriate.

Mature group

(4) For the purposes of this section, a * consolidated group or a * MEC group is a mature group at a particular time if:

(a) for a consolidated group--Subdivision 45-Q applies to its * head company at that time; or

(b) for a MEC group--Subdivision 45-Q, as applied under Subdivision 45-S, applies to its * provisional head company at that time.

Subdivision 45-S -- MEC groups

Guide to Subdivision 45-S

45-900 What this Subdivision is about

This Subdivision sets out how this Part applies in relation to MEC groups and their members.

Table of sections

Preliminary

45-905 Objects of Subdivision

General modification rules

45-910 Extended operation of Part to cover MEC groups

Extended operation of Subdivision 45-Q

45-913 Sections 45-705 and 45-740 do not apply to members of MEC groups

45-915 Application of Subdivision 45-Q to provisional head company

45-917 Assumption for applying section 45-710 (single entity rule)

45-920 Change of provisional head company

45-922 Life insurance company

Extended operation of Subdivision 45-R

45-925 Additional modifications of sections 45-855 and 45-860

45-930 Modifications of sections 45-865 and 45-870 and a related provision

45-935 Additional modifications of section 45-885

Preliminary

45-905 Objects of Subdivision

The objects of this Subdivision are to:

(a) extend the operation of this Part (except sections 45-705 and 45-740 and this Subdivision) so that it can apply in relation to * MEC groups and their members; and

(b) modify the rules in this Part for that extended operation so that they take account of the special characteristics of MEC groups.

General modification rules

45-910 Extended operation of Part to cover MEC groups

(1) This Part (except sections 45-705 and 45-740 and this Subdivision) has effect in relation to members of a * MEC group in the same way in which it has effect in relation to * members of a * consolidated group.

(2) However, that effect is subject to the modifications set out in the following table and elsewhere in this Subdivision.

Modifications of this Part
Item	A reference in this Part to:	Is taken to be a reference to:
1	a * consolidated group	a * MEC group
2	the * head company of a * consolidated group	the * provisional head company of a * MEC group
3	a * subsidiary member of a * consolidated group	a member (other than the * provisional head company) of a * MEC group

Exceptions

(3) The modifications set out in the table do not apply to the following provisions:

(a) this Subdivision;

(b) subsection 45-30(4) (see section 45-930);

(d) note 2 at the end of section 45-700;

(e) sections 45-705 and 45-740 (see sections 45-913, 45-915 and 45-920);

(f) subparagraphs 45-760(1)(c)(i) and (ii);

(g) the note at the end of section 45-850;

(h) sections 45-865 and 45-870 (see section 45-930);

(i) paragraphs (1)(b), (c), (d) and (e), and subsection (5), of section 45-880;

(j) paragraphs (1)(a), (b) and (c), and subsection (4), of section 45-885.

Note: The provisions covered by paragraphs (c), (d), (f), (g), (i) and (j) apply to members of a MEC group without any modifications.

Extended operation of Subdivision 45-Q

45-913 Sections 45-705 and 45-740 do not apply to members of MEC groups

In applying Subdivision 45-Q to members of a * MEC group, the Subdivision has effect as if:

(a) section 45-705 had no effect and section 45-915 had effect instead; and

(b) section 45-740 had no effect and section 45-920 had effect instead.

45-915 Application of Subdivision 45-Q to provisional head company

Period during which Subdivision applies to provisional head company

(1) Subject to sections 45-880 and 45-885 (as applied under this Subdivision), Subdivision 45-Q applies to a company as the * provisional head company of a * MEC group during the period:

(a) starting at the start of the * instalment quarter of the company determined under subsection (2), (3) or (4); and

(b) ending:

(i) at the end of the instalment quarter of the company determined under paragraph (6)(a) or (b); or

(ii) just before the instalment quarter of the company determined under paragraph (6)(c).

Note: The application of Subdivision 45-Q to the provisional head company is subject to the modifications set out in this section and elsewhere in this Subdivision.

When the period begins--initial head company instalment rate

(2) Subdivision 45-Q starts to apply to a company as the * provisional head company of a * MEC group at the start of an * instalment quarter under this subsection if, during that quarter, the Commissioner gives the company (as that provisional head company) the * initial head company instalment rate.

Note: The operation of this subsection may be affected by section 45-885 (as applied under this Subdivision).

When the period begins--group created from consolidated group

(3) Subdivision 45-Q starts to apply to a company as the * provisional head company of a * MEC group at the start of an * instalment quarter (the starting quarter ) under this subsection if all of the following conditions are satisfied:

(a) during the starting quarter, the Commissioner is notified of the creation of the MEC group from a * consolidated group (see subsection (5));

(b) the company is the provisional head company of the MEC group when the Commissioner is so notified;

(i) Subdivision 45-Q applied to the * head company of the consolidated group at the end of the previous instalment quarter;

(ii) the Commissioner gives the * initial head company instalment rate to the head company of the consolidated group during the starting quarter.

Note: For the application of Subdivision 45-Q to a head company of a consolidated group: see section 45-705.

When the period begins--new provisional head company

(4) Subdivision 45-Q starts to apply to a company as the * provisional head company of a * MEC group at the start of an * instalment quarter (the starting quarter ) under this subsection if both of the following conditions are satisfied:

(a) the company is appointed as the provisional head company of the MEC group under subsection 719-60(3) of the Income Tax Assessment Act 1997 during the starting quarter;

(b) one of the following applies:

(i) Subdivision 45-Q applied to the former provisional head company of the MEC group at the end of the previous instalment quarter;

(ii) the Commissioner gives the * initial head company instalment rate to the former provisional head company of the MEC group during the starting quarter;

(iii) the Commissioner is notified during the starting quarter of the creation of the MEC group from a * consolidated group and Subdivision 45-Q applied to the * head company of the consolidated group at the end of the previous instalment quarter;

(iv) the Commissioner is notified during the starting quarter of the creation of the MEC group from a consolidated group and the Commissioner gives the initial head company instalment rate to the head company of the consolidated group during the starting quarter.

Notification of creation of MEC group from consolidated group

(5) For the purposes of subsections (3) and (4), the Commissioner is notified of the creation of a * MEC group from a * consolidated group when the Commissioner receives a notice of the consolidation of the MEC group under subsection 719-40(1) of the Income Tax Assessment Act 1997 .

When the period ends

(6) Subdivision 45-Q stops applying to a company as the * provisional head company of a * MEC group at the earliest of the following times after the company becomes the provisional head company:

(a) the end of the * instalment quarter during which the MEC group ceases to exist (other than because a * consolidated group is * created from the MEC group);

(b) the end of the instalment quarter during which a consolidated group is created from the MEC group;

(c) just before the instalment quarter during which another company is appointed as the provisional head company of the MEC group under subsection 719-60(3) of the Income Tax Assessment Act 1997 .

Note: The operation of this subsection because of paragraph (a) may be affected by section 45-880 (as applied under this Subdivision).

(7) To avoid doubt, Subdivision 45-Q does not apply to a company as the * provisional head company of a * MEC group for any time at all if:

(a) subsection (2), (3) or (4), and subsection (6), would, apart from this subsection, apply to the company; but

(b) the time at which Subdivision 45-Q would stop applying to the company under subsection (6) is before the time at which that Subdivision would start to apply to the company under subsection (2), (3) or (4).

(8) To avoid doubt, Subdivision 45-Q may apply to a company as the * provisional head company of a * MEC group at a time when the company is not in fact the provisional head company of the group.

Note: An example of this is when a company replaces another company as the provisional head company of a MEC group. Under this section and section 45-920, Subdivision 45-Q may start applying to the company as if it had already become the provisional head company when it is not yet such a company.

45-917 Assumption for applying section 45-710 (single entity rule)

In applying section 45-710 to members of a * MEC group at a particular time, the company that is the * provisional head company of the group at that time must be assumed to be the * head company of the group at all times during the period:

(a) throughout which the group is in existence; and

(b) that is all or a part of the income year of the company that includes that particular time.

45-920 Change of provisional head company

Object

(1) The object of this section (except subsection (9)) is to ensure that, for the purposes of this Part, when a company becomes the new * provisional head company of a * MEC group:

(a) the company inherits the history of the former provisional head company; and

(b) the history of the new provisional head company is effectively ignored.

(2) This section applies to a * provisional head company of a * MEC group (the new provisional head company ) that is appointed under subsection 719-60(3) of the Income Tax Assessment Act 1997 if one of the following conditions is satisfied:

(a) the conditions in subsection 45-915(4) are satisfied in relation to the new provisional head company (whether or not Subdivision 45-Q applies to the company as the provisional head company of the group for any period of time);

(b) the new provisional head company is so appointed during the * instalment quarter of the company in which the MEC group is * created from a * consolidated group and either:

(i) the Commissioner gives the * initial head company instalment rate to the * head company of the consolidated group during that instalment quarter; or

(ii) Subdivision 45-Q applied to the head company of the consolidated group at the end of the previous instalment quarter.

(3) Everything that happened before the starting time in relation to the company (the former company ) that was the * provisional head company of the * MEC group immediately before the starting time:

(a) is taken to have happened in relation to the new provisional head company instead of in relation to the former company; and

(b) is taken to have happened in relation to the new provisional head company instead of what would (apart from this section) be taken to have happened in relation to the new provisional head company before the starting time;

just as if, at all times before the starting time:

(d) the former company had been the new provisional head company.

(4) For the purposes of this section, the starting time is the time at which the * cessation event happened to the former company (the event that results in the appointment of the new provisional head company).

(5) To avoid doubt, subsection (3) also covers everything that, immediately before the starting time, was taken to have happened in relation to the former company because of:

(a) section 701-1 of the Income Tax Assessment Act 1997 (single entity rule); or

(b) section 701-5 of that Act (entry history rule); or

(c) section 703-75 of that Act (effects of an interposed company becoming the * head company of a * consolidated group); or

(d) section 719-90 of that Act (effects of a change of head company of a * MEC group); or

(e) section 45-710 in this Schedule (single entity rule for the purposes of this Part), including an application of that section under this Subdivision; or

(f) section 45-740 in this Schedule (effects of an interposed company becoming the head company of a consolidated group for the purposes of this Part); or

(g) this section; or

(h) one or more previous applications of any of the provisions covered by paragraphs (a) to (g).

(6) In addition, and without affecting subsection (3):

(a) an assessment of the former company for an income year that ends before the income year that includes the starting time; or

(b) an amendment of the assessment;

is taken to be something that had happened to the new provisional head company, whether or not the assessment or amendment is made before the starting time.

(7) This section has effect for the purposes of applying this Part to members of the * MEC group in relation to an * instalment quarter of the new provisional head company that ends after the starting time.

Note: An assessment mentioned in subsection (6) may therefore be taken to be the base assessment of the new provisional head company for the purposes of this Part.

(8) Subsections (1) to (7) are to be disregarded in applying section 45-915 (about the application of Subdivision 45-Q to a company as the * provisional head company of a * MEC group).

Note: For example, if the Commissioner has given an initial head company instalment rate to the former company during an earlier instalment quarter, the rate is not, despite this section, treated as if it had been given to the new provisional head company for the purposes of section 45-915. Subject to the other provisions in that section, Subdivision 45-Q therefore starts applying to the new provisional head company under subsection 45-915(4).

Special rule for the former company

(9) A provision of this Part that applies on an entity becoming a member (other than the * provisional head company) of a * MEC group does not apply to the former company when it becomes such a member at the starting time.

Note: Section 45-755 (the entry rule, as applied under this Subdivision) therefore does not apply to the former company on the company becoming such a member of the MEC group.

45-922 Life insurance company

In applying Subdivision 45-Q to members of a * MEC group for an * instalment quarter of the * provisional head company of the group in an income year of the provisional head company, the company is taken to be a * life insurance company for that quarter if:

(a) one or more life insurance companies are members of the group at any time during that quarter; or

(b) one or more life insurance companies were members of the group at any time during a previous instalment quarter of the company in that year.

Extended operation of Subdivision 45-R

45-925 Additional modifications of sections 45-855 and 45-860

In applying sections 45-855 and 45-860 to members of a * MEC group, those sections have effect as if, in addition to the modifications set out in the table in section 45-910:

(a) a reference in those sections to subsection 45-705(2) were a reference to subsection 45-915(2); and

(b) a reference in those sections to subparagraph 45-705(3)(c)(ii), (4)(d)(ii) or (iv) were a reference to subparagraph 45-915(3)(c)(ii), (4)(b)(ii) or (iv).

45-930 Modifications of sections 45-865 and 45-870 and a related provision

(1) In applying sections 45-865 and 45-870, and subsection 45-30(4) (which is related to section 45-865), to members of a * MEC group, those provisions have effect as if:

(a) a reference in those provisions to a * consolidated group were a reference to a * MEC group; and

(b) a reference in those provisions to a MEC group were a reference to a consolidated group.

Note: This means a reference in those provisions to the head company of a consolidated group has effect as if it were a reference to the head company of a MEC group. Similarly, a reference in those provisions to a subsidiary member of a consolidated group has effect as if it were a reference to a subsidiary member of a MEC group.

(2) However, the modifications in subsection (1) do not apply to subsection 45-865(4) and the note at the end of section 45-865.

Note: This means subsection 45-865(4) and the note apply to members of a MEC group without any modifications.

45-935 Additional modifications of section 45-885

In applying section 45-885 to members of a * MEC group, that section has effect as if, in addition to the modifications set out in the table in section 45-910, it had been modified as set out in the following table:

Modifications of section 45-885
Item	Provision:	Modification:
1	Paragraph 45-885(1)(e)	The paragraph is taken to have been replaced by the following paragraph: (e) within 28 days after the starting time, or within such further period (if any) as the Commissioner allows, the Commissioner receives a notice under section 719-76 of the Income Tax Assessment Act 1997 in relation the consolidation of that other MEC group, at and after the starting time, under section 719-50 of the Income Tax Assessment Act 1997 .
2	Subsection 45-885(2) (including the note at the end of the subsection)	A reference to paragraph 45-760(2)(a) is taken to be a reference to that paragraph as applied under this Subdivision
3	The note at the end of subsection 45-885(2)	The reference to section 45-705 is taken to be a reference to section 45-915

Part 2-30 -- Collecting Medicare levy with income tax

Division 90 -- Medicare levy and Medicare levy surcharge

Table of Subdivisions

90-A Treatment like income tax

Subdivision 90-A -- Treatment like income tax

Table of sections

90-1 Laws apply in relation to Medicare levy and Medicare levy surcharge as they apply in relation to income tax

Except so far as the contrary intention appears, this Schedule and the Income Tax Assessment Act 1997 apply, and are taken always to have applied, in relation to the following in the same way as they apply in relation to income tax and * tax:

(a) Medicare levy (as defined in section 251R of the Income Tax Assessment Act 1936 );

(b) * Medicare levy surcharge.

Chapter 3 -- Collection, recovery and administration of other taxes

Part 3-10 -- Indirect taxes

Division 105 -- General rules for indirect taxes

Table of Subdivisions

Guide to Division 105

105-A Assessments

105-B Review of indirect tax decisions

105-C Limits on credits, refunds and recovering amounts

105-D General interest charge and penalties

105-E Evidence

105-F Indirect tax refund schemes

105-G Other administrative provisions

Guide to Division 105

105-1 What this Division is about

This Division contains rules relating to the administration of the indirect tax laws.

Note: Administration rules relevant to particular indirect tax laws are in Divisions 110, 111 and 112.

The rules in this Division deal with the following:

(a) how assessments are made or amended and their effect;

(b) review of assessments;

(e) the effect of not passing on refunds of overpaid amounts;

(f) charges and penalties;

(g) the evidentiary effect of official indirect tax documents;

(h) refunding indirect tax because of Australia's international obligations;

(i) your address for service of documents and requirements for notifications.

Subdivision 105-A -- Assessments

Table of sections

105-5 Commissioner may make assessment of indirect tax

105-10 Request for assessment

105-15 Indirect tax liabilities do not depend on assessment

105-20 Commissioner must give notice of the assessment

105-25 Amendment of assessment

105-30 Later assessment prevails in case of inconsistency

105-5 Commissioner may make assessment of indirect tax

(1) The Commissioner may at any time make an assessment of:

(a) your * net amount, or any part of your net amount, for a * tax period; or

(b) your * net fuel amount, or any part of your net fuel amount, for a tax period or * fuel tax return period.

(2) The Commissioner may at any time make an assessment of the amount of * indirect tax payable by you on an importation of goods.

(3) The Commissioner may make an assessment under this section even if he or she has already made an assessment for the * tax period, * fuel tax return period or importation concerned.

Note: An assessment made under this section is a reviewable indirect tax decision: see Subdivision 105-B.

105-10 Request for assessment

(1) You may request the Commissioner in the * approved form to make an assessment of:

(a) your * net amount for a * tax period; or

(b) your * net fuel amount for a tax period or * fuel tax return period; or

(2) The Commissioner must comply with the request if it is made within:

(a) 4 years after:

(i) the end of the * tax period or * fuel tax return period; or

(ii) the importation; or

(b) such further period as the Commissioner allows.

105-15 Indirect tax liabilities do not depend on assessment

(1) Your liability to pay * indirect tax or a * net fuel amount, and the time by which a * net amount, a net fuel amount or an amount of indirect tax must be paid, do not depend on, and are not in any way affected by, the making of an assessment under this Subdivision.

(2) The Commissioner's obligation to pay:

(a) a * net amount under section 35-5 of the * GST Act; or

(b) a * net fuel amount under section 61-5 of the Fuel Tax Act 2006 ;

and the time by which it must be paid, do not depend on, and are not in any way affected by, the making of an assessment under this Subdivision.

Note: However, a notice of assessment can be used as evidence of liability: see section 105-100.

105-20 Commissioner must give notice of the assessment

(1) The Commissioner must give you notice of an assessment as soon as practicable after the assessment is made. However, failing to do so does not affect the validity of the assessment.

(2) The Commissioner may give you the notice electronically if you are required to lodge or have lodged your * GST returns electronically.

105-25 Amendment of assessment

The Commissioner may amend an assessment at any time. An amended assessment is an assessment for all purposes of any * indirect tax law.

Note 1: However, there is a time limit on the recovery of overpaid or underpaid net amounts, net fuel amounts and indirect tax: see sections 105-50 and 105-55.

Note 2: An amendment under this section is a reviewable indirect tax decision: see Subdivision 105-B.

105-30 Later assessment prevails in case of inconsistency

If there is an inconsistency between assessments that relate to the same * tax period, * fuel tax return period or importation of goods, the later assessment prevails to the extent of the inconsistency.

Subdivision 105-B -- Review of indirect tax decisions

Table of sections

105-40 Reviewable indirect tax decisions

(1) You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that is a * reviewable indirect tax decision relating to you.

(2) A decision under section 105-5 or 105-25 involving an assessment of a * net amount, a * net fuel amount or an amount of * indirect tax is a reviewable indirect tax decision .

Subdivision 105-C -- Limits on credits, refunds and recovering amounts

Table of sections

105-50 Time limit on recovery by the Commissioner

105-55 Time limit on refunds etc. from the Commissioner

105-65 Restriction on GST refunds

105-50 Time limit on recovery by the Commissioner

(1) Any unpaid * net amount, * net fuel amount or amount of * indirect tax (together with any relevant * general interest charge under this Act) ceases to be payable 4 years after it became payable by you.

(2) If:

(a) an amount was paid to you, or applied under Division 3 of Part IIB of this Act, as:

(i) a refund in relation to a * net amount, * net fuel amount or amount of * indirect tax; or

(ii) an amount of indirect tax that was overpaid or wrongly paid; and

(b) that amount exceeded the amount (if any) that you were entitled to be paid, or to have applied under Division 3 of Part IIB of this Act;

the amount of the excess (together with any relevant * general interest charge under this Act) ceases to be payable 4 years after it became payable by you.

(3) However, subsection (1) does not apply to an amount, and subsection (2) does not apply to an amount of an excess, if:

(a) within those 4 years the Commissioner has required payment of the amount or the amount of excess by giving a notice to you; or

(b) the Commissioner is satisfied that:

(i) the payment of the amount was avoided by fraud or evaded; or

(ii) the payment of the amount of excess, or its application under Division 3 of Part IIB of this Act, was brought about by fraud or evasion.

105-55 Time limit on refunds etc. from the Commissioner

(1) You are not entitled to a refund, other payment or credit to which this subsection applies in respect of a * tax period or importation unless:

(a) within 4 years after:

(i) the end of the tax period; or

(ii) the importation;

as the case requires, you notify the Commissioner (in a * GST return or otherwise) that you are entitled to the refund, other payment or credit; or

(b) within that period the Commissioner notifies you (in a notice of assessment or otherwise) that you are entitled to the refund, other payment or credit; or

(i) a * net amount or * net fuel amount that the Commissioner may recover from you only because of subparagraph 105-50(3)(b)(i); or

(ii) an amount of excess referred to in subsection 105-50(2) that the Commissioner may recover from you only because of subparagraph 105-50(3)(b)(ii).

Note: Division 93 of the GST Act puts a time limit on your entitlement to an input tax credit. Division 47 of the Fuel Tax Act 2006 puts a time limit on your entitlement to a fuel tax credit.

(2) Subsection (1) applies to:

(a) a refund in relation to a * net amount or * net fuel amount in respect of a particular * tax period; or

(aa) another payment that represents some or all of an amount:

(i) that you paid as an amount of * indirect tax payable by you in respect of a particular tax period; and

(ii) that exceeded the amount (if any) of such tax that you were liable to pay in respect of that tax period; or

(b) an * input tax credit or * fuel tax credit that is attributable to a particular tax period; or

(c) a * wine tax credit the amount of which could have been included in a reduction of your * net amount for a tax period under section 21-15 of the * Wine Tax Act; or

(d) a refund of an amount of * indirect tax relating to an importation.

(2A) A request by you to the Commissioner to treat a document as a * tax invoice for the purposes of attributing a credit to a * tax period is taken to be a notification, for the purposes of paragraph (1)(a), of your entitlement to the credit if:

(a) you made the request within the 4 year period referred to in that paragraph in relation to the credit; and

(b) the Commissioner agrees to the request (whether or not within that period).

Fuel tax--non-business taxpayers

(3) If you are neither * registered for GST nor * required to be registered for GST, you are not entitled to a refund, other payment or * fuel tax credit to which this subsection applies in respect of a * fuel tax return period, acquisition, manufacture or importation unless:

(a) within 4 years after:

(i) the end of the fuel tax return period; or

(ii) the acquisition, manufacture or importation;

(as the case requires) you notify the Commissioner that you are entitled to the refund, other payment or credit; or

(b) within that period the Commissioner notifies you (in a notice of assessment or otherwise) that you are entitled to the refund, other payment or credit; or

(i) a * net fuel amount that the Commissioner may recover from you only because of subparagraph 105-50(3)(b)(i); or

(ii) an amount of excess referred to in subsection 105-50(2) that the Commissioner may recover from you only because of subparagraph 105-50(3)(b)(ii).

Note: Division 47 of the Fuel Tax Act 2006 puts a time limit on your entitlement to a fuel tax credit.

(4) Subsection (3) applies to:

(a) a refund in relation to a * net fuel amount attributable to a * fuel tax return period; or

(b) a * fuel tax credit for * taxable fuel that you acquire, manufacture or import.

(5) To avoid doubt, if, under subsection (3), you are not entitled to a * fuel tax credit, then you are not entitled to a refund or other payment in relation to the credit.

105-65 Restriction on GST refunds

(1) The Commissioner need not give you a refund of an amount to which this section applies, or apply (under Division 3 or 3A of Part IIB) an amount to which this section applies, if:

(a) you overpaid the amount, or the amount was not refunded to you, because a * supply was treated as a * taxable supply, or an * arrangement was treated as giving rise to a taxable supply, to any extent; and

(b) the supply is not a taxable supply, or the arrangement does not give rise to a taxable supply, to that extent (for example, because it is * GST-free); and

(i) the Commissioner is not satisfied that you have reimbursed a corresponding amount to the recipient of the supply or (in the case of an arrangement treated as giving rise to a taxable supply) to an entity treated as the recipient;

(ii) the recipient of the supply, or (in the case of an arrangement treated as giving rise to a taxable supply) the entity treated as the recipient, is * registered or * required to be registered.

Note: Divisions 3 and 3A of Part IIB deal with payments, credits and RBA surpluses.

(2) This section applies to the following amounts:

(a) in the case of a * supply:

(i) so much of any * net amount or amount of * GST as you have overpaid (as mentioned in paragraph (1)(a)); or

(ii) so much of any net amount that is payable to you under section 35-5 of the * GST Act as the Commissioner has not refunded to you (as mentioned in paragraph (1)(a)), either by paying it to you or by applying it under Division 3 of Part IIB of this Act;

(b) in the case of an * arrangement:

(i) so much of any net amount or amount of GST to which subparagraph (a)(i) would apply if the arrangement were a supply; or

(ii) so much of any net amount to which subparagraph (a)(ii) would apply if the arrangement were a supply.

Note: Division 3 of Part IIB deals with payments, credits and RBA surpluses.

Subdivision 105-D -- General interest charge and penalties

Table of sections

105-80 General interest charge

105-85 Amending Acts cannot impose penalties or general interest charge earlier than 28 days after Royal Assent

105-80 General interest charge

(1) If any of an amount (the liability ) to which this section applies remains unpaid after the time by which it is due to be paid, you are liable to pay the * general interest charge on the unpaid amount of the liability for each day in the period that:

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

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

(i) the liability;

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

Note: The general interest charge is worked out under Division 1 of Part IIA.

(2) This section applies to either of the following amounts that you are liable to pay:

(a) a * net fuel amount;

(b) an amount of * indirect tax.

105-85 Amending Acts cannot impose penalties or general interest charge earlier than 28 days after Royal Assent

(1) An Act that amends an * indirect tax law does not have the effect of making you liable to:

(a) a penalty for an offence against an indirect tax law; or

(b) * general interest charge under section 105-80;

for any act or omission that happens before the 28th day (the postponed day ) after the day on which the amending Act receives the Royal Assent.

(2) If the amending Act would (apart from this section) have the effect of making you liable to such a penalty or charge because you contravened a requirement to do something:

(a) within a specified period ending before the postponed day; or

(b) before a specified time happening before the postponed day;

the requirement has effect instead by reference to a period ending at the start of the postponed day, or by reference to the start of the postponed day, as the case requires.

(3) This section does not relieve you from liability to such a penalty or charge to the extent to which the liability would have existed if the amending Act had not been enacted.

Subdivision 105-E -- Evidence

Table of sections

105-100 Production of assessment or declaration is conclusive evidence

105-105 Certificate of amount payable is prima facie evidence

105-110 Signed copies are evidence

105-100 Production of assessment or declaration is conclusive evidence

The production of:

(a) a notice of assessment under this Part; or

(b) a declaration under:

(i) section 165-40 or subsection 165-45(3) of the * GST Act; or

(ii) section 75-40 or subsection 75-45(3) of the Fuel Tax Act 2006 ;

is conclusive evidence:

(d) except in proceedings under Part IVC of this Act on a review or appeal relating to the assessment or declaration--that the amounts and particulars in the assessment or declaration are correct.

105-105 Certificate of amount payable is prima facie evidence

The presentation of a certificate signed by the Commissioner or a Deputy Commissioner certifying that, from the time specified in the certificate, an amount was payable under an * indirect tax law (whether to or by the Commissioner) is prima facie evidence:

(a) that the amount is payable from that time; and

(b) that the particulars stated in the certificate are correct.

105-110 Signed copies are evidence

(1) The production of a document signed by the Commissioner or a Deputy Commissioner that appears to be a copy of, or extract from, any document made or given by or to an entity for the purposes of an * indirect tax law is evidence of the matters set out in the document to the same extent as the original document would have been evidence of those matters.

(2) To avoid doubt, subsection (1) applies to a copy or extract of a document that was given by or to the Commissioner on a data processing device or by way of electronic transmission, unless it is shown that the document was not authorised.

Subdivision 105-F -- Indirect tax refund schemes

Table of sections

105-120 Refund scheme--defence related international obligations

105-125 Refund scheme--international obligations

105-120 Refund scheme--defence related international obligations

(1) The Commissioner must, on behalf of the Commonwealth, pay you an amount equal to the amount of * indirect tax borne by you in respect of an acquisition (within the meaning of the * GST Act) if:

(a) you are in a class of entities determined by the * Defence Minister; and

(b) the acquisition is covered by a determination of the Defence Minister; and

(i) by or on behalf of a * visiting force that is; or

(ii) by a member (within the meaning of the Defence (Visiting Forces) Act 1963 ) of the visiting force who is; or

(iii) by any other entity that is;

covered by a determination of the Defence Minister; and

(d) at the time of the acquisition, it was intended for:

(i) the official use of the visiting force; or

(ii) the use of a member (within the meaning of the Defence (Visiting Forces) Act 1963 ) of the visiting force; or

(iii) any other use;

and that use is covered by a determination of the Defence Minister; and

(e) you claim the amount in the * approved form.

(2) The amount is payable:

(a) in accordance with the conditions and limitations; and

(b) within the period and manner;

determined by the * Defence Minister.

(3) The * Defence Minister may only determine an entity under subparagraph (1)(c)(iii) or a use under subparagraph (1)(d)(iii) if the Commonwealth is under an international obligation to grant * indirect tax concessions in relation to the kind of entity or the kind of use.

(4) A determination under this section is a legislative instrument.

105-125 Refund scheme--international obligations

(1) The Commissioner must, on behalf of the Commonwealth, pay you, or an entity in a class of entities determined by the Commissioner, an amount equal to the amount of * indirect tax borne by you in respect of an acquisition (within the meaning of the * GST Act) made by you if:

(a) you are a kind of entity specified in the regulations; and

(b) the acquisition is of a kind specified in the regulations; and

(2) The amount is payable:

(a) in accordance with the conditions and limitations; and

(b) within the period and manner;

set out in the regulations.

(3) The regulations may only specify a kind of entity for the purposes of paragraph (1)(a) or a kind of acquisition for the purposes of paragraph (1)(b) if the Commonwealth is under an international obligation to grant * indirect tax concessions in relation to the kind of entity or the kind of acquisition.

(4) A determination by the Commissioner under subsection (1) is not a legislative instrument.

Subdivision 105-G -- Other administrative provisions

Table of sections

105-140 Address for service

105-145 Commissioner must give things in writing

105-140 Address for service

(1) Your address for service for the purposes of an * indirect tax law is:

(a) if you are registered in the * Australian Business Register--the address shown in the Register under subsection 25(2) of the A New Tax System (Australian Business Number) Act 1999 as your address for service; or

(b) if you are not registered in that Register--the address last notified by you in a document under an indirect tax law; or

(c) if you have not notified an address in a document under an indirect tax law--your Australian place of business or residence last known to the Commissioner; or

(d) any other address that the Commissioner reasonably believes to be your address for service.

Note: If you are a company, see also sections 444-10 and 444-15.

(2) If:

(a) under an * indirect tax law, you are:

(i) liable to pay an amount of * indirect tax; or

(ii) entitled to a credit; and

(b) you change your address for service;

you must notify the Commissioner in writing of the new address within 28 days after the change.

(3) If:

(a) a notice or other document must be served on you:

(i) under an * indirect tax law; or

(ii) in proceedings for recovery of an amount under an indirect tax law; and

(b) you have notified the Commissioner of an Australian address for service;

the Commissioner may serve the notice or document by post to that address.

(4) However, if:

(a) you must lodge or have lodged * GST returns electronically; and

(b) you notify the Commissioner of an address for effecting service by way of electronic transmission;

the Commissioner may serve a notice of assessment, or notice of penalty or * general interest charge under an * indirect tax law, on you by electronic transmission to that address.

105-145 Commissioner must give things in writing

(1) Any notice, approval, direction, authority or declaration that the Commissioner may give, or must give, to you under an * indirect tax law must be in writing.

(2) However, this does not prevent the Commissioner giving any of those things to you by electronic transmission if a provision of an * indirect tax law allows the Commissioner to do so.

Division 110 -- Goods and services tax

Table of Subdivisions

Guide to Division 110

110-F Review of GST decisions

Guide to Division 110

110-1 What this Division is about

This Division gives you the right to object against reviewable GST decisions that relate to you. Section 110-50 sets out the reviewable GST decisions.

Subdivision 110-F -- Review of GST decisions

Table of sections

110-50 Reviewable GST decisions

(1) You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that is:

(a) a * reviewable GST decision relating to you; or

(b) a * reviewable GST transitional decision relating to you.

Note: You may object to a decision relating to you under section 105-5 or 105-25 involving an assessment of a net amount or indirect tax: see Subdivision 105-B.

(2) Each of the following decisions is a reviewable GST decision :

Reviewable GST decisions under GST Act
Item	Decision	Provision of GST Act under which decision is made
1	refusing to register you	subsection 25-5(1)
2	registering you	subsection 25-5(2)
3	deciding the date of effect of your registration	section 25-10
4	refusing to cancel your registration	subsection 25-55(1)
5	cancelling your registration	subsection 25-55(2)
6	refusing to cancel your registration	section 25-57
7	deciding the date on which the cancellation of your registration takes effect	section 25-60
8	determining that the * tax periods that apply to you are each individual month	subsection 27-15(1)
9	deciding the date of effect of a determination	subsection 27-15(2)
10	refusing to revoke your election under section 27-10	subsection 27-22(1)
11	deciding the date of effect of a revocation	subsection 27-22(3)
12	refusing to revoke a determination under section 27-15	subsection 27-25(1)
13	deciding the date of effect of a revocation	subsection 27-25(2)
14	determining that a specified period is a * tax period that applies to you	section 27-30
15	refusing a request for a determination	section 27-37
16	revoking a determination under section 27-37	subsection 27-38(1)
17	deciding the date of a revocation	subsection 27-38(2)
18	refusing to permit you to account on a cash basis	subsection 29-45(1)
19	deciding the date of effect of your permission to account on a cash basis	subsection 29-45(2)
20	revoking your permission to account on a cash basis	subsection 29-50(3)
21	deciding the date of effect of the revocation of your permission to account on a cash basis	subsection 29-50(4)
22	refusing an application for a decision that an event is a * fund-raising event	paragraph 40-165(1)(c)
23	approving another day of effect	paragraph 48-71(1)(b)
24	revoking an approval of a day of effect	subsection 48-71(2)
29	refusing an application for approval	section 49-5
30	refusing an application for approval or revocation	subsection 49-70(1)
31	revoking an approval under Division 49	subsection 49-70(2)
32	refusing an application for revocation	subsection 49-75(1)
33	revoking the approval of a * GST religious group	subsection 49-75(2)
34	deciding the date of effect of any approval, or any revocation of an approval, under Division 49	section 49-85
35	approving another day of effect	paragraph 51-75(1)(b)
36	revoking an approval of a day of effect	subsection 51-75(2)
42	refusing an application for registration	section 54-5
43	deciding the date of effect of registration as a * GST branch	section 54-10
44	refusing to cancel the registration of a * GST branch	subsection 54-75(1)
45	cancelling the registration of a * GST branch	subsection 54-75(2)
46	deciding the date of effect of the cancellation of the registration of a * GST branch	section 54-80
47	cancelling the registration of an Australian resident agent	subsection 57-25(1)
48	determining that the * tax periods that apply to a resident agent are each individual month	subsection 57-35(1)
49	deciding the date of effect of a determination	subsection 57-35(2)
49A	cancelling the registration of a * representative of an * incapacitated entity	subsection 58-25(1)
49B	deciding to direct a * representative of an * incapacitated entity to give to the Commissioner a * GST return	paragraph 58-50(1)(b)
50	cancelling the registration of a * non-profit sub-entity	subsection 63-35(1)
51	refusing to allow, or allowing, a further period within which to make an agreement that the margin scheme is to apply	paragraph 75-5(1A)(b)
52	refusing a request to allow an annual apportionment election to take effect from the start of another * tax period	paragraph 131-10(2)(b)
53	disallowing an annual apportionment election	subsection 131-20(3)
55	refusing a request to allow an annual * tax period election to take effect from the start of another tax period	paragraph 151-10(2)(b)
56	refusing a request to be allowed to make an annual * tax period election on a specified day	subsection 151-20(3)
57	disallowing an annual * tax period election	subsection 151-25(3)
58	refusing a request to allow an election to pay * GST by instalments to take effect from the start of another * tax period	paragraph 162-15(2)(b)
59	refusing a request to be allowed to make an election on a specified day	subsection 162-25(3)
60	disallowing an election to pay * GST by instalments	subsection 162-30(3)
61	making a declaration to negate a GST benefit	section 165-40
62	making a declaration to negate or reduce a GST disadvantage	subsection 165-45(3)
63	deciding whether to grant a request for a declaration to negate or reduce a GST disadvantage	subsection 165-45(5)

(3) A decision under section 24B of the A New Tax System (Goods and Services Tax Transition) Act 1999 refusing an application for a determination under that section, or making a determination under that section, is a reviewable GST transitional decision .

Division 111 -- Wine tax and luxury car tax

Table of Subdivisions

Guide to Division 111

111-C Review of wine tax decisions

111-D Effect on contracts from amendments to laws

Guide to Division 111

111-1 What this Division is about

This Division gives you the right to object against decisions that relate to you disallowing the whole or part of a claim for a wine tax credit.

It also explains how contracts to supply wine or a luxury car are affected if a wine tax law or luxury car tax law changes.

Subdivision 111-C -- Review of wine tax decisions

Table of sections

111-50 Reviewable wine tax decisions

(1) You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that is a * reviewable wine tax decision relating to you.

Note: You may object to a decision relating to you under section 105-5 or 105-25 involving an assessment of a net amount or indirect tax: see Subdivision 105-B.

(2) Each of the following decisions is a reviewable wine tax decision :

Reviewable wine tax decisions
Item	Decision	Provision of Wine Tax Act under which decision is made
1	disallowing the whole or a part of your claim for a * wine tax credit	section 17-45
2	deciding the date of effect of your approval as a New Zealand participant	section 19-7
3	refusing to approve you as a New Zealand participant	section 19-7
4	revoking your approval as a New Zealand participant	section 19-8
5	deciding the date of effect of revocation of your approval as a New Zealand participant	section 19-8

Subdivision 111-D -- Effect on contracts from amendments to laws

Table of sections

111-60 Alteration of contracts if cost of complying with agreement is affected by later alteration to wine tax or luxury car tax laws

(1) If, after a contract involving a * supply or a * wine taxable dealing has been made, an alteration to the * wine tax law or the * luxury car tax law happens and the alteration directly causes an increase or decrease in the cost to a party to the agreement of complying with the agreement, then the contract is altered as follows:

(a) if the cost is increased--by allowing the party to add the increase to the contract price;

(b) if the cost is decreased--by allowing the other party to deduct the decrease from the contract price.

(2) The contract is not altered if:

(a) the contract has express written provision to the contrary; or

(b) it is clear from the terms of the contract that the alteration of the * wine tax law or the * luxury car tax law has been taken into account in the agreed contract price.

Division 112 -- Fuel tax

Table of Subdivisions

Guide to Division 112

112-E Review of fuel tax decisions

Guide to Division 112

112-1 What this Division is about

This Division gives you the right to object against reviewable fuel tax decisions that relate to you. Section 112-50 sets out the reviewable fuel tax decisions.

Subdivision 112-E -- Review of fuel tax decisions

Table of sections

112-50 Reviewable fuel tax decisions

(1) You may object, in the manner set out in Part IVC, against a decision you are dissatisfied with that is a * reviewable fuel tax decision relating to you.

Note: You may object to a decision relating to you under section 105-5 or 105-25 involving an assessment of a net fuel amount: see Subdivision 105-B.

(2) Each of the following decisions is a reviewable fuel tax decision :

Reviewable fuel tax decisions
Item	Decision	*Provision of the Fuel Tax Act 2006* under which decision is made**
1	making a declaration to negate a * fuel tax benefit	section 75-40
2	making a declaration to negate or reduce a * fuel tax disadvantage	subsection 75-45(3)
3	deciding whether or not to grant a request to negate or reduce a * fuel tax disadvantage	subsection 75-45(5)

Chapter 4 -- Generic collection and recovery rules

Part 4-15 -- Collection and recovery of tax-related liabilities and other amounts

Division 250 -- Introduction

Table of Subdivisions

250-A Guide to Part 4-15

250-B Object of this Part

Subdivision 250-A -- Guide to Part 4-15

250-1 What this Part is about

This Part deals with the methods by which the Commissioner may collect and recover amounts of taxes and other liabilities.

These rules may affect you if you are liable to pay an amount of a tax-related liability (see, for example, Division 255). Some of the rules may also affect you because of your relationship with someone else who is liable for such an amount (see Division 260).

Table of sections

250-5 Some important concepts about tax-related liabilities

250-10 Summary of tax-related liabilities

250-5 Some important concepts about tax-related liabilities

(1) A tax-related liability may arise for an entity before it becomes due and payable by that entity.

Example: Under Part 2-5, an entity's liability to pay a withheld amount may arise before the amount is due and payable.

(2) For some tax-related liabilities, an assessment needs to be made before the amount of the relevant liability becomes due and payable.

Example: Under Division 5 of the Income Tax Assessment Act 1997 , an amount of income tax needs to be assessed before it becomes due and payable.

(3) An amount of a tax-related liability may become payable by an entity (for example, when the amount has been assessed) before it is due and payable by that entity.

250-10 Summary of tax-related liabilities

(1) The following table is an index of each tax-related liability under the Income Tax Assessment Act 1936 . The key provision for the liability, as set out in the table, specifies when the liability becomes due and payable.

Note 1: The Commissioner may vary the time at which the amount becomes due and payable. See Subdivision 255-B.

Note 2: Members and former members of consolidated groups and MEC groups may be jointly and severally liable to pay certain tax-related liabilities related to the group's activities (see Division 721 of the Income Tax Assessment Act 1997 ).

Tax-related liabilities under the Income Tax Assessment Act 1936
Item	Topic	Provision
5	trustee beneficiary non-disclosure tax	102UO
10	withholding tax on dividend, interest or royalty	128C(1)
15	special tax payable on dealings by offshore banking units	128NB(3)
20	mining withholding tax	128W(1)
50	late lodgment penalty	163A(3)
90	family trust distribution tax	271-75 in Schedule 2F
100	interest payable under section 102AAM (about distributions from non-resident trust estates)	5-5 of the Income Tax Assessment Act 1997
105	tax payable under section 159GZZZZH (Tax payable where infrastructure borrowing certificate cancelled)	5-5 of the Income Tax Assessment Act 1997

(2) The following table is an index of each tax-related liability under other Acts. The key provision for the liability, as set out in the table, specifies when the liability becomes due and payable.

Note 1: The Commissioner may vary the time at which the amount becomes due and payable. See Subdivision 255-B.

Note 3: Companies that are or were members of the same wholly-owned group as an NZ franking company may be jointly and severally liable to pay certain tax-related liabilities of the NZ franking company (see Division 220 of the Income Tax Assessment Act 1997 ).

Tax-related liabilities under other legislation
Item	Topic	Provision	Act
5	net amount, including amounts in respect of luxury car tax and wine equalisation tax	33-3, 33-5	A New Tax System (Goods and Services Tax) Act 1999
10	amount of GST on importations	33-15	A New Tax System (Goods and Services Tax) Act 1999
12	excess refund of GST	35-5(2)	A New Tax System (Goods and Services Tax) Act 1999
13	repayments of amounts paid under tourist refund scheme	168-10	A New Tax System (Goods and Services Tax) Act 1999
15	amount of luxury car tax on importation	13-20	A New Tax System (Luxury Car Tax) Act 1999
16	excess luxury car tax credits	17-15	A New Tax System (Luxury Car Tax) Act 1999
18	excess wine tax credits	17-25	A New Tax System (Wine Equalisation Tax) Act 1999
20	amount of wine tax on customs dealings	23-5	A New Tax System (Wine Equalisation Tax) Act 1999
21	repayments of amounts paid under tourist refund scheme	25-10	A New Tax System (Wine Equalisation Tax) Act 1999
22A	amount of advance to be repaid	14A	Diesel and Alternative Fuels Grants Scheme Act 1999
22B	amount payable as a result of an amended assessment	15E	Diesel and Alternative Fuels Grants Scheme Act 1999
24	excise duty	54	Excise Act 1901
24A	accounting for excisable goods	60(1), (1A), (1B) and (1C)	Excise Act 1901
24B	tobacco leaf stock deficiency	77AA	Excise Act 1901
24C	accounting for spirit	77FH	Excise Act 1901
24CA	penalty for using LPG for excisable LPG use	77M	Excise Act 1901
24D	returnable Government FHSA contributions	43	First Home Saver Accounts Act 2008
24E	returnable underpaid amounts in relation to Government FHSA contributions	47	First Home Saver Accounts Act 2008
25	fringe benefits tax	90(1)	Fringe Benefits Tax Assessment Act 1986
30	additional tax under Part VIII	90(2)	Fringe Benefits Tax Assessment Act 1986
35	fringe benefits tax instalments	103	Fringe Benefits Tax Assessment Act 1986
36	net fuel amount	61-5(3), 61-10	Fuel Tax Act 2006
36A	compulsory repayment amount under the Higher Education Support Act 2003	5-5	Income Tax Assessment Act 1997
37	income tax	5-5	Income Tax Assessment Act 1997
37A	untainting tax	197-70	Income Tax Assessment Act 1997
38	franking tax	214-150(1), (2), (3) and (4)	Income Tax Assessment Act 1997
38A	excess concessional contributions tax	292-385	Income Tax Assessment Act 1997
38B	excess non-concessional contributions tax	292-385	Income Tax Assessment Act 1997
38C	FHSA misuse tax	section 345-110	Income Tax Assessment Act 1997
39	TSA liability	721-30	Income Tax Assessment Act 1997
39A	managed investment trust withholding tax	840-810(1)	Income Tax Assessment Act 1997
39B	managed investment trust withholding tax	840-810(1)	Income Tax (Transitional Provisions) Act 1997
40	petroleum resource rent tax and additional tax	82	Petroleum Resource Rent Tax Assessment Act 1987
45	petroleum resource rent tax instalments	95	Petroleum Resource Rent Tax Assessment Act 1987
45A	instalment transfer interest charge	98C(4)	Petroleum Resource Rent Tax Assessment Act 1987
46	amount of advance to be repaid	13	Product Grants and Benefits Administration Act 2000
47	amount payable as a result of an amended assessment	20	Product Grants and Benefits Administration Act 2000
48	penalty under section 35	36	Product Grants and Benefits Administration Act 2000
50	superannuation contributions surcharge	15(3)	Superannuation Contributions Tax (Assessment and Collection) Act 1997
55	superannuation contributions surcharge	15(8)	Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997
60	superannuation guarantee charge	46	Superannuation Guarantee (Administration) Act 1992
65	additional superannuation guarantee charge	47	Superannuation Guarantee (Administration) Act 1992
67	Superannuation (Self Managed Funds) Levy	15DB	Superannuation (Self Managed Superannuation Funds) Taxation Act 1987
67A	payment of unclaimed money to the Commissioner	17	Superannuation (Unclaimed Money and Lost Members) Act 1999
67B	payment from Commissioner that cannot be credited	18C	Superannuation (Unclaimed Money and Lost Members) Act 1999
68	payment in respect of a superannuation interest to the Commissioner	20F	Superannuation (Unclaimed Money and Lost Members) Act 1999
69	repayment of Commissioner's payment	20M	Superannuation (Unclaimed Money and Lost Members) Act 1999
69A	payment of value of lost member accounts to the Commissioner	24E	Superannuation (Unclaimed Money and Lost Members) Act 1999
69B	payment from Commissioner that cannot be credited	24L	Superannuation (Unclaimed Money and Lost Members) Act 1999
70	general interest charge	8AAE	Taxation Administration Act 1953
73	shortfall interest charge	Division 280 in Schedule 1	Taxation Administration Act 1953
85	RBA deficit debt	8AAZH(1)	Taxation Administration Act 1953
90	administrative overpayment made by Commissioner	8AAZN	Taxation Administration Act 1953
95	TFN withholding tax	14-55 in Schedule 1	Taxation Administration Act 1953
100	TFN withholding tax (ESS)	14-155 in Schedule 1	Taxation Administration Act 1953
105	payment of withheld amount to Commissioner	16-75 in Schedule 1	Taxation Administration Act 1953
115	quarterly PAYG instalment	45-61 in Schedule 1	Taxation Administration Act 1953
120	annual PAYG instalment	45-70 in Schedule 1	Taxation Administration Act 1953
125	general interest charge on shortfall in quarterly instalment worked out on basis of varied rate	45-230(4) in Schedule 1	Taxation Administration Act 1953
130	general interest charge on shortfall in quarterly instalment worked out on basis of estimated benchmark tax	45-232 in Schedule 1	Taxation Administration Act 1953
135	general interest charge on shortfall in annual instalment	45-235(5) in Schedule 1	Taxation Administration Act 1953
137	amount to be recovered from a debtor under a registered foreign revenue claim	263-30 in Schedule 1	Taxation Administration Act 1953
138	estimate of payable amounts	268-20 in Schedule 1	Taxation Administration Act 1953
139	penalty under Subdivision 269-B	269-20 in Schedule 1	Taxation Administration Act 1953
140	administrative penalties	298-15 in Schedule 1	Taxation Administration Act 1953
142	tax bonus overpayments	subsection 8(3)	Tax Bonus for Working Australians Act (No. 2) 2009
145	termination payment surcharge	11(2)	Termination Payments Tax (Assessment and Collection) Act 1997

Subdivision 250-B -- Object of this Part

250-25 Object

The object of this Part is to ensure that unpaid amounts of * tax-related liabilities and other related amounts are collected or recovered in a timely manner.

Division 255 -- General rules about collection and recovery

Table of Subdivisions

255-A Tax-related liabilities

255-B Commissioner's power to vary payment time

255-C Recovery proceedings

255-D Security deposits

Subdivision 255-A -- Tax-related liabilities

Table of sections

255-1 Meaning of tax-related liability

255-5 Recovering a tax-related liability that is due and payable

255-1 Meaning of tax-related liability

(1) A tax-related liability is a pecuniary liability to the Commonwealth arising directly under a * taxation law (including a liability the amount of which is not yet due and payable).

Note 1: See section 250-10 for an index of tax-related liabilities.

Note 2: A taxation law, or a provision of it, may be excluded from being applied to this Part. See section 265-65.

(2) A civil penalty under Division 290 of this Schedule or Part 5 of the Tax Agent Services Act 2009 is not a tax-related liability .

255-5 Recovering a tax-related liability that is due and payable

(1) An amount of a * tax-related liability that is due and payable:

(a) is a debt due to the Commonwealth; and

(b) is payable to the Commissioner.

(2) The Commissioner, a Second Commissioner or a Deputy Commissioner may sue in his or her official name in a court of competent jurisdiction to recover an amount of a * tax-related liability that remains unpaid after it has become due and payable.

Note: The tables in section 250-10 set out each provision that specifies when an amount of a tax-related liability becomes due and payable. The Commissioner may vary that time under Subdivision 255-B.

Subdivision 255-B -- Commissioner's power to vary payment time

Table of sections

255-10 To defer the payment time

255-15 To permit payments by instalments

255-20 To bring forward the payment time in certain cases

255-10 To defer the payment time

Deferrals for particular taxpayers

(1) The Commissioner may, having regard to the circumstances of your particular case, defer the time at which an amount of a * tax-related liability is, or would become, due and payable by you (whether or not the liability has already arisen). If the Commissioner does so, that time is varied accordingly.

Note: General interest charge or any other relevant penalty, if applicable for any unpaid amount of the liability, will begin to accrue from the time as varied. See, for example, paragraph 5-15(a) of the Income Tax Assessment Act 1997 .

(2) The Commissioner must do so by written notice given to you.

Deferrals for classes of taxpayers

(2A) The Commissioner, having regard to the circumstances of the case, may, by notice published on the Australian Taxation Office website, defer the time at which amounts of * tax-related liabilities are, or would become, due and payable by a class of taxpayers (whether or not the liabilities have already arisen).

(2B) If the Commissioner does so, that time is varied accordingly.

Note: General interest charge and any other relevant penalties, if applicable for any unpaid amounts of the liabilities, will begin to accrue from the time as varied. See, for example, paragraph 5-15(a) of the Income Tax Assessment Act 1997 .

(2C) A notice published under subsection (2A) is not a legislative instrument.

Deferral does not affect time for giving form

(3) A deferral under this section does not defer the time for giving an * approved form to the Commissioner.

Note: Section 388-55 allows the Commissioner to defer the time for giving an approved form.

255-15 To permit payments by instalments

(1) The Commissioner may, having regard to the circumstances of your particular case, permit you to pay an amount of a * tax-related liability by instalments under an * arrangement between you and the Commissioner (whether or not the liability has already arisen).

(2) The * arrangement does not vary the time at which the amount is due and payable.

Note: Despite an arrangement under this section, any general interest charge or other relevant penalty, if applicable for any unpaid amount of the liability, begins to accrue when the liability is due and payable under the relevant taxation law, or at that time as varied under section 255-10 or 255-20.

255-20 To bring forward the payment time in certain cases

(1) If the Commissioner reasonably believes that you may leave Australia before the time at which an amount of a * tax-related liability becomes due and payable by you, the Commissioner may bring that time forward. If the Commissioner does so, that time is varied accordingly.

(2) The Commissioner must do so by written notice given to you.

Subdivision 255-C -- Recovery proceedings

Guide to Subdivision 255-C

255-35 What this Subdivision is about

This Subdivision deals with procedural and evidentiary matters relating to proceedings to recover an amount of a tax-related liability.

Table of sections

Operative provisions

255-40 Service of documents if person absent from Australia or cannot be found

255-45 Evidentiary certificate

255-50 Certain statements or averments

255-55 Evidence by affidavit

Operative provisions

255-40 Service of documents if person absent from Australia or cannot be found

(1) This section applies if a document needs to be served on a person in respect of a proceeding to recover an amount of a * tax-related liability, and the Commissioner, after making reasonable inquiries, is satisfied that:

(a) the person is absent from Australia and does not have any agent in Australia on whom the document can be served; or

(b) the person cannot be found.

(2) The Commissioner may, without the court's leave, serve the document by posting it, or a sealed copy of it, in a letter addressed to the person at any Australian address of the person (including the person's Australian place of business or residence) that is last known to the Commissioner.

(3) For the purposes of giving effect to a provision of an international agreement of a kind referred to in Subdivision 263-A (about foreign revenue claims), if a document needs to be served on a person and the Commissioner, after making reasonable inquiries, is satisfied that:

(a) the person is absent from Australia and does not have an agent in Australia on whom the document can be served; and

(b) the person has an address in a foreign country, a constituent part of a foreign country or a foreign territory;

the Commissioner may serve the document on the person at the address mentioned in paragraph (b).

255-45 Evidentiary certificate

(1) A certificate:

(a) stating one or more of the matters covered by subsection (2) or (3); and

(b) signed by the Commissioner, a Second Commissioner or a Deputy Commissioner;

is prima facie evidence of the matter or matters in a proceeding to recover an amount of a * tax-related liability.

(2) A certificate may state:

(a) that a person named in the certificate has a * tax-related liability; or

(b) that an * assessment relating to a tax-related liability has been made, or is taken to have been made, under a * taxation law; or

(c) that notice of an assessment, or any other notice required to be served on a person in respect of an amount of a tax-related liability, was, or is taken to have been, served on the person under a * taxation law; or

(d) that the particulars of a notice covered by paragraph (c) are as stated in the certificate; or

(e) that a sum specified in the certificate is, as at the date specified in the certificate, a debt due and payable by a person to the Commonwealth.

(3) A certificate may state:

(a) that a * foreign revenue claim for an amount specified in the certificate has been made by the competent authority under the relevant international agreement; or

(b) that the relevant requirements of the relevant international agreement have been complied with in relation to the foreign revenue claim; or

(d) that, as at the date of the certificate, the Commissioner has or has not received advice from the competent authority under the relevant international agreement about the reduction or discharge of an amount to be recovered under the claim; or

(e) that the particulars of any reduction or discharge of an amount to be recovered under the claim are as specified in the certificate.

255-50 Certain statements or averments

(1) In a proceeding to recover an amount of a * tax-related liability, a statement or averment about a matter in the plaintiff's complaint, claim or declaration is prima facie evidence of the matter.

(2) This section applies even if the matter is a mixed question of law and fact. However, the statement or averment is prima facie evidence of the fact only.

(3) This section applies even if evidence is given in support or rebuttal of the matter or of any other matter.

(4) Any evidence given in support or rebuttal of the matter stated or averred must be considered on its merits. This section does not increase or diminish the credibility or probative value of the evidence.

(5) This section does not lessen or affect any onus of proof otherwise falling on a defendant.

255-55 Evidence by affidavit

In a proceeding to recover an amount of a * tax-related liability:

(a) a person may give evidence by affidavit; and

(b) the court may require the person to attend before it:

(i) to be cross-examined on that evidence; or

(ii) to give other evidence relating to the proceedings.

Subdivision 255-D -- Security deposits

Table of sections

255-100 Commissioner may require security deposit

255-105 Notice of requirement to give security

255-110 Offence

255-100 Commissioner may require security deposit

(1) The Commissioner may require you to give security for the due payment of an existing or future * tax-related liability of yours if:

(a) the Commissioner has reason to believe that:

(i) you are establishing or * carrying on an * enterprise in Australia; and

(ii) you intend to carry on that enterprise for a limited time only; or

(b) the Commissioner reasonably believes that the requirement is otherwise appropriate, having regard to all relevant circumstances.

Note: A requirement to give security under this section is not a tax-related liability. As such, the collection and recovery provisions in this Part do not apply to it.

(2) The Commissioner may require you to give the security:

(a) by way of a bond or deposit (including by way of payments in instalments); or

(b) by any other means that the Commissioner reasonably believes is appropriate.

(3) The Commissioner may require you to give security under this section:

(a) at any time the Commissioner reasonably believes is appropriate; and

(b) as often as the Commissioner reasonably believes is appropriate.

Example: The Commissioner may require additional security if he or she reasonably believes that the original security requirement underestimated the amount of the likely tax-related liability.

255-105 Notice of requirement to give security

Commissioner must give notice of requirement to give security

(1) If the Commissioner requires you to give security under section 255-100, he or she must give you written notice of the requirement.

Content of notice

(2) The notice must:

(a) state that you are required to give the security to the Commissioner; and

(b) explain why the Commissioner requires the security; and

(d) describe the means by which you are required to give the security under subsection 255-100(2); and

(e) specify the time by which you are required to give the security; and

(f) explain how you may have the Commissioner's decision to require you to give the security reviewed.

(3) To avoid doubt, a single notice may relate to security for the payment of 2 or more existing or future * tax-related liabilities, but must comply with subsection (2) in relation to each of them.

When notice is given

(4) Despite section 29 of the Acts Interpretation Act 1901 , a notice under subsection (1) is taken to be given at the time the Commissioner leaves or posts it.

Note: Section 28A of the Acts Interpretation Act 1901 may be relevant to giving a notice under subsection (1).

Miscellaneous

(5) A failure to comply with this section does not affect the validity of the requirement to give the security under section 255-100.

255-110 Offence

You commit an offence if:

(a) the Commissioner requires you to give security under section 255-100; and

(b) you fail to give that security as required.

Penalty: 100 penalty units.

Division 260 -- Special rules about collection and recovery

Table of Subdivisions

Guide to Division 260

260-A From third party

260-B From liquidator

260-C From receiver

260-D -- From agent winding up business for foreign resident principal

260-E From deceased person's estate

Guide to Division 260

260-1 What this Division is about

This Division deals with the collection and recovery of an amount from a person who is not personally liable to pay that amount. Apart from Subdivision 260-A, which covers a wider range of amounts, this Division primarily deals with amounts of tax-related liabilities.

Subdivision 260-A -- From third party

Table of sections

260-5 Commissioner may collect amounts from third party

260-10 Notice to Commonwealth, State or Territory

260-15 Indemnity

260-20 Offence

260-5 Commissioner may collect amounts from third party

Amount recoverable under this Subdivision

(1) This Subdivision applies if any of the following amounts (the debt ) is payable to the Commonwealth by an entity (the debtor ) (whether or not the debt has become due and payable):

(a) an amount of a * tax-related liability;

(b) a judgment debt for a * tax-related liability;

(d) an amount that a court has ordered the debtor to pay to the Commissioner following the debtor's conviction for an offence against a * taxation law.

Commissioner may give notice to an entity

(2) The Commissioner may give a written notice to an entity (the third party ) under this section if the third party owes or may later owe money to the debtor.

Third party regarded as owing money in these circumstances

(3) The third party is taken to owe money (the available money ) to the debtor if the third party:

(a) is an entity by whom the money is due or accruing to the debtor; or

(b) holds the money for or on account of the debtor; or

(d) has authority from some other entity to pay the money to the debtor.

The third party is so taken to owe the money to the debtor even if:

(e) the money is not due, or is not so held, or payable under the authority, unless a condition is fulfilled; and

(f) the condition has not been fulfilled.

How much is payable under the notice

(4) A notice under this section must:

(a) require the third party to pay to the Commissioner the lesser of, or a specified amount not exceeding the lesser of:

(i) the debt; or

(ii) the available money; or

(b) if there will be amounts of the available money from time to time--require the third party to pay to the Commissioner a specified amount, or a specified percentage, of each amount of the available money, until the debt is satisfied.

When amount must be paid

(5) The notice must require the third party to pay an amount under paragraph (4)(a), or each amount under paragraph (4)(b):

(a) immediately after; or

(b) at or within a specified time after;

the amount of the available money concerned becomes an amount owing to the debtor.

Debtor must be notified

(6) The Commissioner must send a copy of the notice to the debtor.

Setting-off amounts

(7) If an entity other than the third party has paid an amount to the Commissioner that satisfies all or part of the debt:

(a) the Commissioner must notify the third party of that fact; and

(b) any amount that the third party is required to pay under the notice is reduced by the amount so paid.

260-10 Notice to Commonwealth, State or Territory

If the third party is the Commonwealth, a State or a Territory, the Commissioner may give the notice to a person who:

(a) is employed by the Commonwealth, or by the State or Territory (as appropriate); and

(b) has the duty of disbursing public money under a law of the Commonwealth, or of the State or Territory (as appropriate).

260-15 Indemnity

An amount that the third party pays to the Commissioner under this Subdivision is taken to have been authorised by:

(a) the debtor; and

(b) any other person who is entitled to all or a part of the amount;

and the third party is indemnified for the payment.

260-20 Offence

(1) The third party must not fail to comply with the Commissioner's notice.

Penalty: 20 penalty units

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

Note 2: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

(2) The court may, in addition to imposing a penalty on a person convicted of an offence against subsection (1) in relation to failing to pay an amount under the notice, order the person to pay to the Commissioner an amount not exceeding that amount.

Subdivision 260-B -- From liquidator

Table of sections

260-40 Subdivision does not apply to superannuation guarantee charge

260-45 Liquidator's obligation

260-50 Offence

260-55 Joint liability of 2 or more liquidators

260-60 Liquidator's other obligation or liability

260-40 Subdivision does not apply to superannuation guarantee charge

This Subdivision does not apply to a * tax-related liability that is superannuation guarantee charge imposed by the Superannuation Guarantee Charge Act 1992 .

260-45 Liquidator's obligation

(1) This Subdivision applies to a person who becomes a liquidator of a company.

(2) Within 14 days after becoming liquidator, the liquidator must give written notice of that fact to the Commissioner.

(3) The Commissioner must, as soon as practicable, notify the liquidator of the amount (the notified amount ) that the Commissioner considers is enough to discharge any * outstanding tax-related liabilities that the company has when the notice is given.

(4) The liquidator must not, without the Commissioner's permission, part with any of the company's assets before receiving the Commissioner's notice.

(5) However, subsection (4) does not prevent the liquidator from parting with the company's assets to pay debts of the company not covered by either of the following paragraphs:

(a) the * outstanding tax-related liabilities;

(b) any debts of the company which:

(i) are unsecured; and

(ii) are not required, by an * Australian law, to be paid in priority to some or all of the other debts of the company.

(6) After receiving the Commissioner's notice, the liquidator must set aside, out of the assets available for paying amounts covered by paragraph (5)(a) or (b) (the ordinary debts ), assets with a value calculated using the following formula:

where:

"amount of remaining ordinary debts" means the sum of the company's ordinary debts other than the * outstanding tax-related liabilities.

(7) The liquidator must, in his or her capacity as liquidator, discharge the * outstanding tax-related liabilities, to the extent of the value of the assets that the liquidator is required to set aside.

(8) The liquidator is personally liable to discharge the liabilities, to the extent of that value, if the liquidator contravenes this section.

260-50 Offence

The liquidator must not fail to comply with subsection 260-45(2), (4), (5), (6) or (7).

Penalty: 10 penalty units.

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

Note 2: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

260-55 Joint liability of 2 or more liquidators

If there are 2 or more persons who become liquidators of the company, the obligations and liabilities under this Subdivision:

(a) apply to all the liquidators; but

(b) may be discharged by any of them.

260-60 Liquidator's other obligation or liability

This Subdivision does not reduce any obligation or liability of a liquidator arising elsewhere.

Subdivision 260-C -- From receiver

Table of sections

260-75 Receiver's obligation

260-80 Offence

260-85 Joint liability of 2 or more receivers

260-90 Receiver's other obligation or liability

260-75 Receiver's obligation

(1) This Subdivision applies to a person (the receiver ) who, in the capacity of receiver, or of receiver and manager, takes possession of a company's assets for the company's debenture holders.

(2) Within 14 days after taking possession of the assets, the receiver must give written notice of that fact to the Commissioner.

(3) The Commissioner must, as soon as practicable, notify the receiver of the amount (the notified amount ) that the Commissioner considers is enough to discharge any * outstanding tax-related liabilities that the company has when the notice is given.

(4) The receiver must not, without the Commissioner's permission, part with any of the company's assets before receiving the Commissioner's notice.

(5) However, subsection (4) does not prevent the receiver from parting with the company's assets to pay debts of the company not covered by either of the following paragraphs:

(a) the * outstanding tax-related liabilities;

(b) any debts of the company which:

(i) are unsecured; and

(ii) are not required, by an * Australian law, to be paid in priority to some or all of the other debts of the company.

(6) After receiving the Commissioner's notice, the receiver must set aside, out of the assets available for paying amounts covered by paragraph (5)(a) or (b) (the ordinary debts ), assets with a value calculated using the following formula:

where:

"amount of remaining ordinary debts" means the sum of the company's ordinary debts other than the * outstanding tax-related liabilities.

(7) The receiver must, in his or her capacity as receiver, or as receiver and manager, discharge the * outstanding tax-related liabilities, to the extent of the value of the assets that the receiver is required to set aside.

(8) The receiver is personally liable to discharge the liabilities, to the extent of that value, if the receiver contravenes this section.

260-80 Offence

The receiver must not fail to comply with subsection 260-75(2), (4), (5), (6) or (7).

Penalty: 10 penalty units.

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

Note 2: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

260-85 Joint liability of 2 or more receivers

If 2 or more persons (the receivers ) take possession of a company's assets, for the company's debenture holders, in the capacity of receiver, or of receiver and manager, the obligations and liabilities under this Subdivision apply to:

(a) all the receivers; but

(b) may be discharged by any of them.

260-90 Receiver's other obligation or liability

This Subdivision does not reduce any obligation or liability of the receiver or receivers arising elsewhere.

Subdivision 260-D -- From agent winding up business for foreign resident principal

Table of sections

260-105 Obligation of agent winding up business for foreign resident principal

260-110 Offence

260-115 Joint liability of 2 or more agents

260-120 Agent's other obligation or liability

260-105 Obligation of agent winding up business for foreign resident principal

(1) This Subdivision applies to an agent whose principal:

(a) is a foreign resident; and

(b) has instructed the agent to wind up so much of the principal's business as is carried on in Australia.

(2) Within 14 days after receiving the instructions, the agent must give written notice of that fact to the Commissioner.

(3) The Commissioner must, as soon as practicable after receiving the notice, notify the agent of the amount (the notified amount ) that the Commissioner considers is enough to discharge any * outstanding tax-related liabilities that the principal has when the notice is given.

(4) Before receiving the Commissioner's notice, the agent must not, without the Commissioner's permission, part with any of the principal's assets that are available for discharging the * outstanding tax-related liabilities.

(5) After receiving the notice, the agent must set aside:

(a) out of the assets available for discharging the * outstanding tax-related liabilities, assets to the value of the notified amount; or

(b) all of the assets so available, if their value is less than the notified amount.

(6) The agent must, in that capacity, discharge the * outstanding tax-related liabilities, to the extent of the value of the assets that the agent is required to set aside.

(7) The agent is personally liable to discharge the liabilities, to the extent of that value, if the agent contravenes this section.

260-110 Offence

A person must not fail to comply with subsection 260-105(2), (4), (5) or (6).

Penalty: 10 penalty units.

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

Note 2: See section 4AA of the Crimes Act 1914 for the current value of penalty units.

260-115 Joint liability of 2 or more agents

If 2 or more agents are jointly instructed by the principal to wind up the business, the obligations and liabilities under this Subdivision:

(a) apply to all the agents; but

(b) may be discharged by any of them.

260-120 Agent's other obligation or liability

This Subdivision does not reduce any obligation or liability of the agent or agents arising elsewhere.

Subdivision 260-E -- From deceased person's estate

Table of sections

260-140 Administered estate

260-145 Unadministered estate

260-150 Commissioner may authorise amount to be recovered

260-140 Administered estate

(1) This section applies if:

(a) a person has an * outstanding tax-related liability when the person dies; and

(b) either of the following is granted after the death:

(i) probate of the person's will;

(ii) letters of administration of the person's estate.

(2) The Commissioner may, in respect of the liability, deal with the trustee of the deceased person's estate as if:

(a) the deceased person were still alive; and

(b) the trustee were the deceased person.

(3) Without limiting subsection (2), the trustee must:

(a) provide any returns and other information that the deceased person was liable to provide, or would have been liable to provide if he or she were still alive; and

(b) provide any additional returns or other information relating to the liability that the Commissioner requires; and

(c) in the trustee's representative capacity, discharge the liability and any penalty imposed in respect of the liability under a * taxation law (including any * general interest charge) for which the deceased person would be liable if he or she were still alive.

(4) If:

(a) the amount of the liability requires an * assessment under a * taxation law but the assessment has not been made; and

(b) the trustee fails to provide a return or other information in relation to assessing that amount as required by the Commissioner;

the Commissioner may assess that amount. If the Commissioner does so, the assessment has the same effect as if it were made under that taxation law.

(5) A trustee who is dissatisfied with an * assessment under subsection (4) may object in the manner set out in Part IVC.

(6) Part IVC applies in relation to the objection as if the trustee were the deceased person.

260-145 Unadministered estate

(1) This section applies if neither of the following is granted within 6 months after a person's death:

(a) probate of the person's will;

(b) letters of administration of the person's estate.

(2) The Commissioner may determine the total amount of * outstanding tax-related liabilities that the person had at the time of death.

(3) The Commissioner must publish notice of the determination twice in a daily newspaper circulating in the State or Territory in which the person resided at the time of death.

(4) A notice of the determination is conclusive evidence of the * outstanding tax-related liabilities, unless the determination is amended.

(5) A person who is dissatisfied with the determination may object in the manner set out in Part IVC if the person:

(a) claims an interest in the estate; or

(b) is granted probate of the deceased person's will or letters of administration of the estate.

(6) Part IVC applies in relation to the objection as if the person making it were the deceased person.

260-150 Commissioner may authorise amount to be recovered

(1) The Commissioner may, in writing, authorise a person (the authorised person ) who is:

(a) a member or a special member of the Australian Federal Police; or

(b) a member of the police force of a State or Territory; or

to recover:

(d) the total amount of the * outstanding tax-related liabilities of a deceased person as determined under section 260-145 (about unadministered estates); and

(e) any reasonable costs incurred by the authorised person in recovering that amount;

by seizing and disposing of any property of the deceased person.

(2) The authorised person may seize and dispose of the property as prescribed by the regulations.

Division 263 -- Mutual assistance in collection of foreign tax debts

Table of Subdivisions

263-A Foreign revenue claims

Subdivision 263-A -- Foreign revenue claims

Guide to Subdivision 263-A

263-5 What this Subdivision is about

This Subdivision can be activated if there is in force an agreement between Australia and a foreign country or territory that contains an article relating to assistance in collection of foreign tax debts.

The Commissioner can collect from an entity an amount in respect of a tax debt that the person owes to such a country or territory or take action to conserve assets of the entity.

The Commissioner is required to remit amounts collected to the foreign country or territory concerned.

Table of sections

Operative provisions

263-10 Meaning of foreign revenue claim

263-15 Requirements for foreign revenue claims

263-20 Foreign Revenue Claims Register

263-25 Registering claims

263-30 When amount is due and payable

263-35 Amending the Register etc.

263-40 Payment to competent authority

Operative provisions

263-10 Meaning of foreign revenue claim

A foreign revenue claim is a claim made to the Commissioner:

(a) in accordance with an agreement (the international agreement ) between Australia and:

(i) a foreign country or a constituent part of a foreign country; or

(ii) an overseas territory;

(the overseas entity ); and

(b) for one or both of these purposes:

(i) the recovery by the Commissioner of an amount from an entity (the debtor ) in respect of taxes imposed otherwise than by an * Australian law (including any associated amounts);

(ii) the conserving of assets for the purposes of a recovery of that kind.

263-15 Requirements for foreign revenue claims

A * foreign revenue claim must:

(a) be made by or on behalf of an entity that is, under the relevant international agreement, the competent authority; and

(b) be consistent with the provisions of that agreement; and

(d) specify the amount owed by the debtor in Australian currency (calculated as at the day the claim is made); and

(e) be accompanied by a declaration by the competent authority stating that the claim fulfils the requirements of that agreement.

263-20 Foreign Revenue Claims Register

(1) The Commissioner must keep a register called the Foreign Revenue Claims Register (the Register ).

(2) The regulations may make provision in relation to the form in which the Register may be kept.

(3) The register is not a legislative instrument.

263-25 Registering claims

If the Commissioner is satisfied that a * foreign revenue claim has been made in accordance with section 263-15, the Commissioner must register the claim by entering particulars of it in the Register within 90 days after receiving the claim.

263-30 When amount is due and payable

(1) When particulars of a * foreign revenue claim are entered in the Register, the amount owed by the debtor becomes a pecuniary liability to the Commonwealth by the debtor.

Note 1: The amount to be recovered from the debtor will be a primary tax debt for the purposes of Part IIB and the Commissioner may allocate the debt to a running balance account under that Part.

Note 2: For provisions about collection and recovery of the debt, see Part 4-15.

(1A) To avoid doubt, the amount owed by the debtor may not be the same as the amount (if any) entered in the Register.

(2) The amount owed by the debtor becomes due and payable 30 days after notice of the particulars of the * foreign revenue claim is given to the debtor or on a later day specified in the notice.

(3) If that amount remains unpaid after it is due and payable, the debtor is liable to pay * general interest charge on the unpaid amount for each day in the period that:

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

(b) finishes at the end of the last day at the end of which either of the following remains unpaid:

(i) the amount;

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

263-35 Amending the Register etc.

(1) The Commissioner may, with the agreement of the relevant competent authority, amend the Register to correct an error.

(2) The Commissioner may, with the agreement of the relevant competent authority:

(a) remove from the Register the particulars of a * foreign revenue claim; or

(b) reduce an amount to be recovered from a debtor under the claim.

(2A) To avoid doubt, the Commissioner may reduce an amount to be recovered from a debtor under paragraph (2)(b) without amending the Register.

(3) A debtor may, after receiving a copy of the particulars of a * foreign revenue claim entered in the Register, apply to the Commissioner in the * approved form to have those particulars removed from the Register.

(4) The Commissioner may, after considering the application, remove those particulars from the Register.

(5) If the Commissioner removes particulars of a * foreign revenue claim relating to the recovery of an amount from the Register under paragraph (2)(a) or subsection (4), the debtor is entitled to a credit for the purposes of Part IIB equal to the sum of:

(a) the amount (as reduced by any previous application of subsection (6)); and

(b) any * general interest charge for which the debtor is liable as a result of the foreign revenue claim.

Note: How the credit is applied is set out in Part IIB.

(6) If the Commissioner reduces the amount to be recovered from a debtor under a * foreign revenue claim under paragraph (2)(b), the debtor is entitled to a credit for the purposes of Part IIB equal to the amount of the reduction.

Note: How the credit is applied is set out in Part IIB.

263-40 Payment to competent authority

(1) The Commissioner must, if the Commissioner recovers all or part of an amount to be recovered from a debtor under a registered * foreign revenue claim, pay that amount to the competent authority concerned or to another entity on behalf of that competent authority.

(2) The Commissioner may also pay to the competent authority all or part of an amount that the Commissioner has received and that is attributable to * general interest charge in relation to the claim.

(3) The Commissioner may also pay to the competent authority all or part of an amount that the Commissioner has received and that is attributable to any of the following in relation to the claim:

(a) judgment interest;

(b) costs that:

(i) have been recovered in the course of legal proceedings; and

(ii) represent an amount that has previously been paid by the competent authority to the Commonwealth in relation to the recovery of the claim.

Division 265 -- Other matters

Table of Subdivisions

265-A Right of person to seek recovery or contribution

265-B Application of laws

Subdivision 265-A -- Right of person to seek recovery or contribution

Guide to Subdivision 265-A

265-35 What this Subdivision is about

This Division deals with a person's right to recover from another person an amount paid in discharge of a tax-related liability if:

• the person has paid the amount for or on behalf of the other person;

• the persons are jointly liable to pay the amount.

Table of sections

Operative provisions

265-40 Right of recovery if another person is liable

265-45 Right of contribution if persons are jointly liable

Operative provisions

265-40 Right of recovery if another person is liable

A person who has paid an amount of a * tax-related liability for or on behalf of another person may:

(a) recover that amount from the other person as a debt (together with the costs of recovery) in a court of competent jurisdiction; or

(b) retain or deduct the amount out of money held by the person that belongs to, or is payable to, the other person.

265-45 Right of contribution if persons are jointly liable

(1) If 2 or more persons are jointly liable to pay an amount of a * tax-related liability, they are each liable for the whole of the amount.

(2) If one of the persons has paid an amount of the liability, the person may recover in a court of competent jurisdiction, as a debt, from another of those persons:

(a) an amount equal to so much of the amount paid; and

(b) an amount equal to so much of the costs of recovery under this section;

as the court considers just and equitable.

Note: Item 15 of Schedule 6 to the Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006 has the effect that, in addition to its normal application in relation to tax-related liabilities arising on or after 1 July 2000, subsection (2) also applies to such liabilities arising before that date, where amounts of the liabilities are paid after the commencement of that item.

Subdivision 265-B -- Application of laws

Table of sections

265-65 Non-application of certain taxation laws

This Part does not apply in relation to a * taxation law, or a provision of a taxation law, that is prescribed by the regulations.

Division 268 -- Estimates and recovery of PAYG withholding liabilities

Table of Subdivisions

Guide to Division 268

268-A Object

268-B Making estimates

268-C Liability to pay estimates

268-D Reducing and revoking estimates

268-E Late payment of estimates

268-F Miscellaneous

Guide to Division 268

268-1 What this Division is about

This Division enables the Commissioner to make an estimate of amounts not paid as required by Part 2-5 (Pay as you go (PAYG) withholding), and to recover the amount of the estimate.

If you are given an estimate, you are liable to pay the amount of the estimate. That liability is distinct from your liability to pay the amounts required by Part 2-5. However, you can ensure that the Commissioner does not require you to pay more than the amounts not paid under that Part.

Other Divisions of this Part provide for the recovery of amounts payable under this Division.

Subdivision 268-A -- Object

Table of sections

268-5 Object of Division

The object of this Division is to enable the Commissioner to take prompt and effective action to recover amounts not paid as required by Part 2-5 (Pay as you go (PAYG) withholding).

Subdivision 268-B -- Making estimates

Table of sections

268-10 Commissioner may make estimate

268-15 Notice of estimate

268-10 Commissioner may make estimate

Estimate

(1) The Commissioner may estimate the unpaid and overdue amount of a liability (the underlying liability ) of yours under section 16-70.

Note: Section 16-70 requires you to pay to the Commissioner amounts you have withheld under the Pay as you go withholding rules.

Amount of estimate

(2) The amount of the estimate must be what the Commissioner thinks is reasonable.

(3) In making the estimate, the Commissioner may have regard to anything he or she thinks relevant.

Example: The Commissioner may have regard to information about amounts you withheld under the Pay as you go rules before the period in relation to which the underlying liability arose.

Only one estimate for each liability

(4) While the estimate is in force, the Commissioner cannot make another estimate relating to the underlying liability.

(5) For the purposes of subsection (4), the estimate is in force if:

(a) the Commissioner has given you notice of the estimate; and

(b) the estimate has not been revoked; and

268-15 Notice of estimate

Commissioner must give notice of estimate

(1) The Commissioner must give you written notice of the estimate.

Content of notice

(2) The notice must:

(a) identify the underlying liability; and

(b) specify the date of the estimate; and

(d) state that the amount of the estimate is due and payable; and

(e) explain how you may have the amount of the estimate reduced or the estimate revoked.

(3) To avoid doubt, a single notice may relate to 2 or more estimates, but must comply with subsection (2) in relation to each of them.

When notice is given

(4) Despite section 29 of the Acts Interpretation Act 1901 , a notice under subsection (1) is taken to be given at the time the Commissioner leaves or posts it.

Note: Section 28A of the Acts Interpretation Act 1901 may be relevant to giving a notice under subsection (1).

Subdivision 268-C -- Liability to pay estimates

Table of sections

268-20 Nature of liability to pay estimate

268-25 Accuracy of estimate irrelevant to liability to pay

268-30 Estimate provable in bankruptcy or winding up

268-20 Nature of liability to pay estimate

Liability to pay amount of estimate

(1) You must pay to the Commissioner the amount of the estimate if the Commissioner gives you notice of the estimate in accordance with section 268-15. The amount is due and payable when the Commissioner gives you the notice.

Note: The amount of the estimate may be reduced, or the estimate revoked, under Subdivision 268-D.

Liability to pay amount of estimate is distinct from underlying liability

(2) Your liability to pay the amount of the estimate is separate and distinct from the underlying liability. It is separate and distinct for all purposes.

Example: The Commissioner may take:

(a) proceedings to recover the unpaid amount of the estimate; or

(b) proceedings to recover the unpaid amount of the underlying liability; or

Discharging one liability discharges other liabilities

(3) Despite subsection (2), if, at a particular time, one of the liabilities to which this subsection applies is discharged, to the extent of an amount, for either of the following reasons, each of the other liabilities to which this subsection applies is discharged to the extent of the same amount:

(a) an amount is paid or applied towards discharging the liability;

(b) the liability is discharged because of section 269-40 (Effect of director paying penalty or company discharging liability).

(4) Subsection (3) applies to whichever of the following liabilities are in existence at the particular time:

(a) your liability to pay the amount of the estimate;

(b) the underlying liability;

(c) a liability of yours under a judgment, to the extent that it is based on a liability referred to in paragraph (a) or (b).

(5) Subsection (3) does not discharge a liability to a greater extent than the amount of the liability.

268-25 Accuracy of estimate irrelevant to liability to pay

You are liable to pay the unpaid amount of the estimate even if:

(a) the underlying liability never existed or has been discharged in full; or

(b) the unpaid amount of the underlying liability is less than the unpaid amount of the estimate.

Note 1: Section 268-40 revokes the estimate if you give the Commissioner a statutory declaration, or file an affidavit, to the effect that the underlying liability never existed.

Note 2: Subdivision 268-D provides ways in which you can challenge the estimate or its amount.

268-30 Estimate provable in bankruptcy or winding up

(1) Your liability (the estimate liability ) to pay the unpaid amount of the estimate is provable in a bankruptcy or winding up, even if the estimate was made after:

(a) the date of the bankruptcy; or

(b) the relevant date (within the meaning of the Corporations Act 2001 ).

(2) However, the estimate liability is provable only to the extent that the underlying liability would be provable if the unpaid amount of the underlying liability were the same as the unpaid amount of the estimate.

Example: Subsection (2) prevents proof of the estimate liability if the underlying liability could not be proved because, for example, of when it arose.

(3) Subsections (1) and (2) do not apply if:

(a) the underlying liability has already been admitted to proof; and

(b) the proof has not been set aside.

(4) If the estimate liability has been admitted to proof at a particular amount, the underlying liability is provable only to the extent the unpaid amount of the underlying liability exceeds that particular amount.

(5) To the extent that a liability is provable because of this section, it is taken, for the purposes of the Bankruptcy Act 1966 , to be provable in bankruptcy under that Act.

Subdivision 268-D -- Reducing and revoking estimates

Table of sections

268-35 How estimate may be reduced or revoked--Commissioner's powers

268-40 How estimate may be reduced or revoked--statutory declaration or affidavit

268-45 How estimate may be reduced or revoked--rejection of proof of debt

268-50 How estimate may be reduced--amount paid or applied

268-55 When reduction or revocation takes effect

268-60 Consequences of reduction or revocation--refund

268-65 Consequences of reduction or revocation--statutory demand changed or set aside

268-70 Consequences of reduction or revocation--underlying liability

268-35 How estimate may be reduced or revoked--Commissioner's powers

Reduction

(1) The Commissioner may at any time reduce the amount of the estimate, but is not obliged to consider whether or not to do so.

(2) If the Commissioner reduces the amount of the estimate under subsection (1), he or she must give you a written notice that:

(a) identifies the underlying liability; and

(b) sets out the reduced amount of the estimate.

Note: The estimate is taken always to have had effect as reduced: see section 268-55.

Revocation

(3) The Commissioner may at any time revoke the estimate, but is not obliged to consider whether or not to do so.

(4) If the Commissioner revokes the estimate under subsection (3), he or she must give you a written notice that:

(a) identifies the underlying liability; and

(b) states that the estimate has been revoked.

Note: The estimate is taken never to have been made: see section 268-55.

Matters for Commissioner to consider

(5) In exercising his or her power under this section to reduce the amount of the estimate, or to revoke the estimate, the Commissioner must have regard to:

(a) the following principles:

(i) the estimate is of the unpaid amount of the underlying liability as at a particular time;

(ii) the purpose of reducing the amount of the estimate is to bring it closer to the unpaid amount of the underlying liability as at the time the estimate was made;

(iii) reductions of the unpaid amount of the underlying liability that happen after the time the estimate was made are dealt with by section 268-20 (Nature of liability to pay estimate) and so should not be taken into account in exercising such a power; and

(b) the effects of sections 268-55 and 268-70 (effect of reduction or revocation on liabilities).

268-40 How estimate may be reduced or revoked--statutory declaration or affidavit

Scope

(1) This section applies as set out in the following table:

Statutory declaration or affidavit
Item	This section applies if ...	and ...	within ...
1	the Commissioner gives you notice of the estimate	you give the Commissioner a statutory declaration for the purposes of this section	(a) 7 days after the Commissioner gives you the notice; or (b) a longer period allowed by the Commissioner.
2	you are a party to proceedings before a court that relate to the recovery of the unpaid amount of the estimate	you: (a) file an affidavit for the purposes of this section; and (b) serve a copy on the Commissioner	(a) 14 days after you first take a procedural step as a party to the proceedings; or (b) a longer period allowed by the court.
3	(a) the estimate is of the unpaid amount of a liability of a company; and (b) the Commissioner serves on the company a * statutory demand relating to the company's liability to pay the unpaid amount of the estimate; and (c) an application is made to a court under section 234, 459P, 462 or 464 of the Corporations Act 2001 for the company to be wound up	the company: (a) files an affidavit for the purposes of this section; and (b) serves a copy on the applicant	(a) 14 days after notice of the application was served on the company; or (b) a longer period allowed by the court.

Example: For the purposes of item 2 of the table, taking a procedural step as a party to proceedings includes entering an appearance, filing a notice of intention to defend, or applying to set aside judgment entered in default of appearance.

Note 1: Section 459C of the Corporations Act 2001 creates a presumption that a company is insolvent, and may be wound up, if the company fails to comply with a statutory demand.

Note 2: See section 268-90 for what the statutory declaration or affidavit must contain and who must make, swear or affirm it.

Reduction

(2) The amount of the estimate is reduced if the statutory declaration is to the effect, or the affidavit verifies facts sufficient to prove, that a specified lesser amount is the unpaid amount of the underlying liability.

Example: Subsection (2) will apply if the statutory declaration etc. is to the effect that the underlying liability has been discharged in full (and therefore the unpaid amount of the liability is nil).

(3) The amount of the reduction is the amount by which the unpaid amount of the estimate (just before the reduction) exceeds the amount specified.

Note: The effect of subsection (3) is to reduce the unpaid amount of the estimate to the amount specified.

Revocation

(4) The estimate is revoked if the statutory declaration is to the effect, or the affidavit verifies facts sufficient to prove, that the underlying liability never existed.

268-45 How estimate may be reduced or revoked--rejection of proof of debt

Scope

(1) This section applies if:

(a) the Commissioner lodges a proof of debt relating to the unpaid amount of the estimate; and

(b) section 268-95 applies to an entity (your supervising entity ) in relation to you.

Rejection of proof of debt

(2) Your supervising entity may give the Commissioner a statutory declaration to the effect that:

(a) the underlying liability has been discharged in full; or

(b) the unpaid amount of the underlying liability is a specified, lesser amount; or

Note: See section 268-90 for what the statutory declaration must contain and who must make it.

(3) If your supervising entity does so, he or she may reject the proof of debt (in whole or in part) on the ground made out in the statutory declaration.

(4) If the Commissioner appeals, or applies for review of, your supervising entity's decision to reject the proof of debt, nothing in subsection (2) or (3) prevents evidence being adduced to contradict statements in the declaration.

Note: Such evidence might also be relevant to a prosecution for an offence, such as an offence against section 11 of the Statutory Declarations Act 1959 (False declarations).

Revocation or reduction of estimate

(5) The following table applies in relation to the outcome following all (if any) appeals from, and applications for review of, your supervising entity's decision to reject the proof of debt. (If there are no appeals or applications for review, the outcome is your supervising entity's decision as originally made.)

Rejecting proof of debt
Item	If the outcome is that ...	then ...
1	the proof is rejected in whole on the ground that the estimate has been discharged in full	the amount of the estimate is reduced by the unpaid amount of the estimate (just before the reduction).
2	the proof is rejected in part	the amount of the estimate is reduced by so much of the unpaid amount of the estimate (just before the reduction) as is rejected.
3	the proof is rejected in whole on the ground that the underlying liability never existed	the estimate is revoked.

Note 1: The effect of item 1 of the table is to reduce the unpaid amount of the estimate to nil.

Note 2: The effect of item 2 of the table is to reduce the unpaid amount of the estimate to the amount admitted to proof.

268-50 How estimate may be reduced--amount paid or applied

(1) This section applies if:

(a) an amount is paid or applied towards discharging your liability to pay the amount of the estimate; and

(b) the amount paid or applied exceeds the unpaid amount of the underlying liability as at the time just before the payment or application.

(2) The amount of the estimate is reduced so that it does not exceed the unpaid amount, at the time mentioned in paragraph (1)(b), of the underlying liability.

268-55 When reduction or revocation takes effect

Scope

(1) This section applies for the purposes of the following:

(a) Subdivision 268-C (Liability to pay estimates);

(b) section 268-60 (refund of overpayments);

(d) Division 269 (Penalties for directors of non-complying companies).

When reduction or revocation takes effect

(2) If the amount of the estimate is reduced, the estimate has effect, and is taken always to have had effect, as if the original amount of the estimate had been the reduced amount.

(3) If the estimate is revoked, the estimate is taken never to have been made.

268-60 Consequences of reduction or revocation--refund

(1) This section applies if:

(a) an amount is paid or applied towards discharging your liability to pay the amount of the estimate; and

(b) the amount paid or applied exceeds the unpaid amount of the estimate as at the time just before the payment or application.

Example: You pay an amount towards discharging the estimate and the estimate is later reduced to a lesser amount.

Note: Section 268-50 provides for the reduction of the amount of the estimate in the case of overpayment.

(2) The Commissioner must pay you the excess.

Note: See Division 3A of Part IIB of this Act for the rules about how the Commissioner must pay you. Division 3 of that Part allows the Commissioner to apply the amount owing as a credit against tax debts that you owe the Commonwealth.

268-65 Consequences of reduction or revocation--statutory demand changed or set aside

Scope

(1) This section applies if:

(a) the estimate is of the unpaid amount of a liability of a company; and

(b) the Commissioner has served a * statutory demand on the company relating to the company's liability to pay the unpaid amount of the estimate; and

Statutory demand changed

(2) The * statutory demand is changed accordingly.

(3) The * statutory demand is taken to have had effect (as so changed) from the time the Commissioner served it on the company.

Statutory demand set aside

(4) The * statutory demand is set aside if subsection (2) reduces the amount of the debt (or the total of the amounts of the debts) below the statutory minimum (within the meaning of the Corporations Act 2001 ).

268-70 Consequences of reduction or revocation--underlying liability

Reduction of the amount of the estimate, or revocation of the estimate, does not affect the Commissioner's rights or remedies in relation to the underlying liability (except to the extent that this Division expressly provides otherwise).

Subdivision 268-E -- Late payment of estimates

Table of sections

268-75 Liability to pay the general interest charge

268-80 Effect of paying the general interest charge

268-75 Liability to pay the general interest charge

(1) This section applies if your liability to pay the amount of the estimate remains undischarged at the end of 7 days after the Commissioner gives you notice of the estimate.

(2) You are liable to pay the * general interest charge on the unpaid amount of the estimate for each day in the period that:

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

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

(i) the amount of the estimate;

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

Note: The general interest charge is worked out under Part IIA of this Act.

268-80 Effect of paying the general interest charge

Scope

(1) If you are liable to pay the * general interest charge under section 268-75 in relation to the estimate, this section applies to the following liabilities:

(a) your liability to pay the general interest charge;

(b) a liability of yours to pay a general interest charge, under a corresponding provision of Subdivision 16-B, because the underlying liability remains undischarged;

(d) a liability of yours to pay interest carried by a judgment debt, to the extent that the judgment debt is based on:

(i) the liability to pay the estimate; or

(ii) the liability to pay the general interest charge under section 268-75 on an unpaid amount of the estimate.

Discharging one liability discharges other liabilities

(2) If, at a particular time, an amount is paid or applied towards discharging one of the liabilities, each of the other liabilities that is in existence at that time is discharged to the extent of the same amount.

(3) However, this section does not discharge a liability to a greater extent than the amount of the liability.

(4) If, because a judgment debt carries interest, section 8AAH of this Act reduces the amount of a * general interest charge payable as mentioned in paragraph (1)(b) of this section, the amount of the reduction is taken, for the purposes of subsection (2) of this section, to have been applied towards discharging your liability to the charge.

Subdivision 268-F -- Miscellaneous

Table of sections

268-85 Effect of judgment on liability on which it is based

268-90 Requirements for statutory declaration or affidavit

268-95 Liquidators, receivers and trustees in bankruptcy

268-100 Division not to limit or exclude Corporations or Bankruptcy Act

268-85 Effect of judgment on liability on which it is based

Estimate payable despite judgment

(1) The unpaid amount of the estimate, or of the underlying liability, does not stop being payable merely because a judgment has been given by, or entered in, a court.

Division applies to liability under judgment

(2) This Division applies in relation to liability under a judgment, to the extent that it is based on your liability to pay the amount of the estimate, in the same way as this Division applies to that estimate liability.

(3) This Division applies in relation to liability under a judgment, to the extent that it is based on the underlying liability, in the same way as this Division applies to the underlying liability.

(4) Subsections (2) and (3) do not apply for the purposes of the following:

(a) section 268-20 (Nature of liability to pay estimate);

(b) section 268-30 (Estimate provable in bankruptcy or winding up);

Judgment conclusive as to amount of liability

(5) Nothing in this Division affects the conclusiveness of a judgment as to the amount of a liability on which it is based.

268-90 Requirements for statutory declaration or affidavit

Scope

(1) This section applies to a statutory declaration given, or an affidavit filed, for the purposes of section 268-40 or 268-45 in relation to the estimate.

Content

(2) The statutory declaration or affidavit must verify the following facts:

(a) whichever of the following are applicable:

(i) the sum of all amounts you withheld under Division 12 during the relevant period, or the fact that you did not withhold any such amounts during the period;

(ii) the sum of all amounts you were required to pay under Division 13 (Alienated personal services payments) during the relevant period, or the fact that you were not required to pay any such amounts during the period;

(iii) the sum of all amounts you were required to pay under Division 14 (non-cash benefits and accruing gains) during the relevant period, or the fact that you were not required to pay any such amounts during the period;

(b) what has been done to comply with Division 16 (Payer's obligations and rights) in relation to the amounts referred to in paragraph (a).

Maker or deponent

(3) The statutory declaration or affidavit must be made, sworn or affirmed by:

(a) an individual specified in the following table; or

(b) your liquidator, receiver or trustee in bankruptcy (if and as applicable).

Who must make the statutory declaration or swear or affirm the affidavit
Item	A statutory declaration or affidavit in relation to an estimate of a liability of ...	must be made, sworn or affirmed by ...
1	an individual	that individual.
2	a body corporate	(a) in the case of a company that has a director or a company secretary (within the meaning of the Corporations Act 2001 )--a director of the company or the company secretary; or (b) in the case of an * Australian government agency--an individual prescribed by the regulations; or (c) in any case--the public officer of the body corporate (for the purposes of the Income Tax Assessment Act 1936 ).
3	a body politic	an individual prescribed by the regulations.
4	a partnership	a partner of the partnership.
5	any other unincorporated association or body of persons	(a) a member of the association's or body's committee of management; or (b) the public officer of the association or body (for the purposes of the Income Tax Assessment Act 1936 ).
6	a trust	(a) the trustee of the trust; or (b) the public officer of the trust (for the purposes of the Income Tax Assessment Act 1936 ).
7	a * superannuation fund or an * approved deposit fund	(a) the trustee of the fund; or (b) if the fund does not have a trustee--the entity managing the fund.

(4) If the entity specified in the table in subsection (3) is not an individual, the table is taken to specify the individual who, under that subsection, would be eligible to make a statutory declaration in relation to an estimate of a liability of that entity.

268-95 Liquidators, receivers and trustees in bankruptcy

Scope

(1) This section applies to an entity (your supervising entity ), in relation to you, if:

(a) the entity is your liquidator, receiver, trustee in bankruptcy or administrator, or the administrator of a deed of company arrangement executed by you; or

(b) your property is vested in the entity, or the entity has control of your property.

(2) For the purposes of this Division, this section applies to an entity in relation to a partnership if it applies to the entity in relation to a partner of the partnership.

Notices from the Commissioner

(3) For the purposes of this Division, a notice given by the Commissioner to your supervising entity is taken to have been given to you.

(4) You must give your supervising entity a copy of any notice given to you by the Commissioner under this Division. You must do so as soon as practicable, and in any event within 7 days, after:

(a) if the Commissioner gave you the notice before the day when your property vested in, or control of your property passed to, the supervising entity--that day; or

(b) if subsection (2) applies and the Commissioner gave you the notice before the day when the relevant partner's property vested in, or control of the relevant partner's property passed to, the supervising entity--that day; or

(5) If the Commissioner gives you and your supervising entity a notice at different times, each notice is taken to have been given at the later of those times.

Action taken by your supervising entity

(6) For the purposes of this Division, a statutory declaration given to the Commissioner by your supervising entity is taken to have been given by you.

(7) For the purposes of this Division, an affidavit filed by your supervising entity is taken to have been filed by you.

(8) For the purposes of item 2 in the table in subsection 268-40(1) (recovery proceedings), a procedural step taken by your supervising entity is taken to have been taken by you.

Multiple supervising entities

(9) If you have 2 or more supervising entities, anything this Division provides for to be done by or in relation to your supervising entity may be done by or in relation to any of them.

268-100 Division not to limit or exclude Corporations or Bankruptcy Act

This Division is not intended to limit or exclude the operation of Chapter 5 of the Corporations Act 2001 (External administration), or the Bankruptcy Act 1966 , to the extent that Chapter or Act can operate concurrently with this Division.

Note: Section 268-30 and Subdivision 268-D affect the operation of Chapter 5 of the Corporations Act 2001 and the Bankruptcy Act 1966 .

Division 269 -- Penalties for directors of non-complying companies

Table of Subdivisions

Guide to Division 269

269-A Object and scope

269-B Obligations and penalties

269-C Discharging liabilities

269-D Miscellaneous

Guide to Division 269

269-1 What this Division is about

The directors of a company have a duty to ensure that the company either:

(a) meets its obligations under Subdivision 16-B (obligation to pay withheld amounts to the Commissioner) and Division 268; or

(b) goes promptly into voluntary administration under the Corporations Act 2001 or into liquidation.

The directors' duties are enforced by penalties.

Note: The duties this Division imposes on the directors of the company are in addition to the similar duties imposed on the public officer of the company. See subsection 252(1) of the Income Tax Assessment Act 1936 .

Subdivision 269-A -- Object and scope

Table of sections

269-5 Object of Division

269-10 Scope of Division

269-5 Object of Division

The object of this Division is to ensure that a company either:

(a) meets its obligations under Subdivision 16-B (obligation to pay withheld amounts to the Commissioner) and Division 268; or

(b) goes promptly into voluntary administration under the Corporations Act 2001 or into liquidation.

Note: The directors' duties are enforced by penalties on the directors. A penalty recovered under this Division is applied towards meeting the company's obligation.

269-10 Scope of Division

(1) This Division applies as set out in the following table:

Obligations that directors must cause company to comply with
Item	*This Division applies if, on a particular day (the initial day* ), a company registered under the Corporations Act 2001 ...**	*and the company is obliged to pay to the Commissioner on or before a particular day (the due day* ) ...**
1	withholds an amount under Division 12	that amount in accordance with Subdivision 16-B.
2	receives an * alienated personal services payment	an amount in respect of that alienated personal services payment in accordance with Division 13 and Subdivision 16-B.
3	provides a * non-cash benefit	an amount in respect of that benefit in accordance with Subdivision 16-B.
4	is given notice of an estimate under Division 268	the amount of the estimate.

Note: In a case covered by item 2, 3 or 4 of the table, the due day is the same as the initial day.

(2) This Division applies in relation to an amount that the company purports to withhold under Division 12, but is not required to withhold, as if the company were required to withhold the amount.

Subdivision 269-B -- Obligations and penalties

Table of sections

269-15 Directors' obligations

269-20 Penalty

269-25 Notice

269-30 Remission of penalty before end of notice period

269-35 Defences

269-15 Directors' obligations

Directors' obligations

(1) The directors (within the meaning of the Corporations Act 2001 ) of the company (from time to time) on or after the initial day must cause the company to comply with its obligation.

(2) The directors of the company (from time to time) continue to be under their obligation until:

(a) the company complies with its obligation; or

(b) an administrator of the company is appointed under section 436A, 436B or 436C of the Corporations Act 2001 ; or

Instalment arrangements

(3) The Commissioner must not commence, or take a procedural step as a party to, proceedings to enforce an obligation, or to recover a penalty, of a director under this Division if an * arrangement that covers the company's obligation is in force under section 255-15 (Commissioner's power to permit payments by instalments).

Note 1: The arrangement may also cover other obligations of the company.

Note 2: Subsection (3) does not prevent the Commissioner from giving a director a notice about a penalty under section 269-25.

269-20 Penalty

Penalty for director on or before due day

(1) You are liable to pay to the Commissioner a penalty if:

(a) at the end of the due day, the directors of the company are still under an obligation under section 269-15; and

(b) you were under that obligation at or before that time (because you were a director).

Note: Paragraph (1)(b) applies even if you stopped being a director before the end of the due day: see subsection 269-15(2).

(2) The penalty is due and payable at the end of the due day.

Note: The Commissioner must not commence proceedings to recover the penalty until the end of 21 days after the Commissioner gives you notice of the penalty under section 269-25.

Penalty for new director

(3) You are also liable to pay to the Commissioner a penalty if:

(a) after the due day, you became a director of the company and began to be under an obligation under section 269-15; and

(b) 14 days later, you are still under that obligation.

(4) The penalty is due and payable at the end of that 14th day.

Note: The Commissioner must not commence proceedings to recover the penalty until the end of 21 days after the Commissioner gives you notice of the penalty under section 269-25.

Amount of penalty

(5) The amount of a penalty under this section is equal to the unpaid amount of the company's liability under its obligation.

Note 1: See section 269-40 for the effect on your penalty of the company discharging its obligation, or of another director paying his or her penalty.

Note 2: See section 269-45 for your rights of indemnity and contribution.

269-25 Notice

Commissioner must give notice of penalty

(1) The Commissioner must not commence proceedings to recover from you a penalty payable under this Subdivision until the end of 21 days after the Commissioner gives you a written notice under this section.

Content of notice

(2) The notice must:

(a) set out what the Commissioner thinks is the unpaid amount of the company's liability under its obligation; and

(b) state that you are liable to pay to the Commissioner, by way of penalty, an amount equal to that unpaid amount because of an obligation you have or had under this Division; and

(3) To avoid doubt, a single notice may relate to 2 or more penalties, but must comply with subsection (2) in relation to each of them.

When notice is given

(4) Despite section 29 of the Acts Interpretation Act 1901 , a notice under subsection (1) is taken to be given at the time the Commissioner leaves or posts it.

Note 1: Section 28A of the Acts Interpretation Act 1901 may be relevant to giving a notice under subsection (1).

Note 2: Section 269-50 of this Act is also relevant to giving a notice under subsection (1).

269-30 Remission of penalty before end of notice period

A penalty of yours under this Division is remitted if the directors of the company stop being under the relevant obligation under section 269-15:

(a) before the Commissioner gives you notice of the penalty under section 269-25; or

(b) within 21 days after the Commissioner gives you notice of the penalty under that section.

269-35 Defences

Scope

(1) This section applies in relation to:

(a) proceedings to recover from you a penalty payable under this Division; or

(b) proceedings against you in relation to a right referred to in paragraph 269-45(2)(b) (directors jointly and severally liable as guarantors).

Illness

(2) It is a defence in the proceedings if it is proved that, because of illness or for some other good reason, it would have been unreasonable to expect you to take part, and you did not take part, in the management of the company at any time when:

(a) you were a director of the company; and

(b) the directors were under the relevant obligations under section 269-15.

All reasonable steps

(3) It is a defence in the proceedings if it is proved that:

(a) you took all reasonable steps to ensure that the directors complied with their relevant obligations under section 269-15; or

(b) there were no such steps that you could have taken.

(4) In determining what are reasonable steps for the purposes of subsection (3), have regard to:

(a) when, and for how long, you were a director and took part in the management of the company; and

(b) all other relevant circumstances.

Power of courts to grant relief

(5) Section 1318 of the Corporations Act 2001 does not apply to an obligation or liability of a director under this Division.

Subdivision 269-C -- Discharging liabilities

Table of sections

269-40 Effect of director paying penalty or company discharging liability

269-45 Directors' rights of indemnity and contribution

269-40 Effect of director paying penalty or company discharging liability

Liabilities

(1) This section applies to the following liabilities:

(a) the liability of the company under its obligation referred to in section 269-10;

(b) the liability of each director (or former director) to pay a penalty under this Division in relation to the liability of the company referred to in paragraph (a);

Discharging one liability discharges other liabilities

(2) If an amount is paid or applied at a particular time towards discharging one of the liabilities, each of the other liabilities in existence at that time is discharged to the extent of the same amount.

(3) If, because of section 268-20 (Nature of liability to pay estimate), one of the liabilities is discharged at a particular time to the extent of a particular amount, each of the other liabilities in existence at that time is discharged to the extent of the same amount.

(4) This section does not discharge a liability to a greater extent than the amount of the liability.

269-45 Directors' rights of indemnity and contribution

(1) This section applies if you pay a penalty under this Division in relation to a liability of the company under an obligation referred to in section 269-10.

(2) You have the same rights (whether by way of indemnity, subrogation, contribution or otherwise) against the company or anyone else as if:

(a) you made the payment under a guarantee of the liability of the company; and

(b) under the guarantee you and every other person who has paid, or from whom the Commissioner is entitled to recover, a penalty under this Division in relation to the company's obligation were jointly and severally liable as guarantors.

Subdivision 269-D -- Miscellaneous

Table of sections

269-50 How notice may be given

269-55 Division not to limit or exclude Corporations Act

269-50 How notice may be given

The Commissioner may give you a notice under section 269-25 by leaving it at, or posting it to, an address that appears, from information held by the Australian Securities and Investments Commission, to be, or to have been within the last 7 days, your place of residence or * business.

269-55 Division not to limit or exclude Corporations Act

To avoid doubt, this Division is not intended to limit or exclude the operation of Chapter 5 of the Corporations Act 2001 (External administration), to the extent that Chapter can operate concurrently with this Division.

Part 4-25 -- Charges and penalties

Division 280 -- Shortfall interest charge

Table of Subdivisions

Guide to Division 280

280-A Object of Division

280-B Shortfall interest charge

280-C Remitting shortfall interest charge

Guide to Division 280

280-1 Guide to Division 280

The shortfall interest charge applies to shortfalls of income tax, petroleum resource rent tax or excess contributions tax that are revealed when the Commissioner amends your assessment.

The charge is applied at a uniform rate that is lower than the general interest charge rate.

The Commissioner has a discretion to remit shortfall interest charge.

Subdivision 280-A -- Object of Division

Table of sections

280-50 Object of Division

The object of this Division is to neutralise benefits that taxpayers could otherwise receive from shortfalls of income tax, * petroleum resource rent tax or * excess contributions tax, so that they do not receive an advantage in the form of a free loan over those who assess correctly.

Subdivision 280-B -- Shortfall interest charge

Table of sections

280-100 Liability to shortfall interest charge--income tax

280-102 Liability to shortfall interest charge--petroleum resource rent tax

280-102A Liability to shortfall interest charge--excess contributions tax

280-103 Liability to shortfall interest charge--general

280-105 Amount of shortfall interest charge

280-110 Notification by Commissioner

280-100 Liability to shortfall interest charge--income tax

(1) You are liable to pay * shortfall interest charge on an additional amount of income tax that you are liable to pay because the Commissioner amends your assessment for an income year.

(2) The liability is for each day in the period:

(a) beginning at the start of the day on which income tax under your first assessment for that income year was due to be paid, or would have been due to be paid if there had been any; and

(b) ending at the end of the day before the day on which the Commissioner gave you notice of the amended assessment.

(3) However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which income tax under the earlier amended assessment was due to be paid, or would have been due to be paid if there had been any.

Note: See Division 5 of the Income Tax Assessment Act 1997 for when the amount of income tax and shortfall interest charge becomes due and payable. That Division also provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.

280-102 Liability to shortfall interest charge--petroleum resource rent tax

(1) You are liable to pay * shortfall interest charge on an additional amount of * petroleum resource rent tax that you are liable to pay because the Commissioner amends your assessment under the Petroleum Resource Rent Tax Assessment Act 1987 for a year of tax (within the meaning of that Act).

(2) The liability is for each day in the period:

(a) beginning at the start of the day on which * petroleum resource rent tax under your first assessment for that year of tax was due to be paid, or would have been due to be paid if there had been any; and

(b) ending at the end of the day before the day on which the Commissioner gave you notice of the amended assessment.

(3) However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which * petroleum resource rent tax under the earlier amended assessment was due to be paid, or would have been due to be paid if there had been any.

Note: See section 82 of the Petroleum Resource Rent Tax Assessment Act 1987 for when the amount of petroleum resource rent tax and shortfall interest charge becomes due and payable. Section 85 of that Act provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.

280-102A Liability to shortfall interest charge--excess contributions tax

(1) You are liable to pay * shortfall interest charge on an additional amount of * excess contributions tax that you are liable to pay because the Commissioner amends your * excess contributions tax assessment for a financial year.

(2) The liability is for each day in the period:

(a) beginning at the start of the day on which * excess contributions tax under your first * excess contributions tax assessment for that year was due to be paid; and

(b) ending at the end of the day before the day on which the Commissioner gave you notice of the amended assessment.

(3) However, if an amended assessment reinstates all or part of a liability in relation to a particular that had been reduced by an earlier amended assessment, the period for the reinstated liability begins at the start of the day on which * excess contributions tax under the earlier amended assessment was due to be paid.

Note: See section 292-385 of the Income Tax Assessment Act 1997 for when the amount of excess contributions tax becomes due and payable. See section 5-10 of that Act for when the amount of shortfall interest charge becomes due and payable. Section 292-390 of that Act provides for general interest charge on any part of the additional amount (plus any shortfall interest charge) that remains unpaid after the additional amount is due and payable.

280-103 Liability to shortfall interest charge--general

(1) Your liability to pay * shortfall interest charge exists whether or not you are liable to any penalty under this Act.

(2) Neither the Commonwealth nor an authority of the Commonwealth is liable to pay * shortfall interest charge.

280-105 Amount of shortfall interest charge

(1) The * shortfall interest charge for a day is worked out by multiplying the rate worked out under subsection (2) for that day by the sum of these amounts:

(a) the additional amount of income tax, * petroleum resource rent tax or * excess contributions tax; and

(b) the shortfall interest charge on that amount from previous days.

(2) The rate is:

280-110 Notification by Commissioner

(1) The Commissioner must give you a notice stating the amount of the * shortfall interest charge you are liable to pay for the period applicable under section 280-100, 280-102 or 280-102A.

(2) The notice may be included in any other notice given to you by the Commissioner.

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

Subdivision 280-C -- Remitting shortfall interest charge

Table of sections

280-160 Remitting shortfall interest charge

280-165 Commissioner must give reasons for not remitting in certain cases

280-170 Objecting against remission decision

280-160 Remitting shortfall interest charge

(1) The Commissioner may remit all or a part of an amount of * shortfall interest charge you are liable to pay if the Commissioner considers it fair and reasonable to do so.

(2) Without limiting subsection (1), in deciding whether to remit, the Commissioner must have regard to:

(a) the principle that remission should not occur just because the benefit you received from the temporary use of the shortfall amount is less than the * shortfall interest charge; and

(b) the principle that remission should occur where the circumstances justify the Commonwealth bearing part or all of the cost of delayed payments.

280-165 Commissioner must give reasons for not remitting in certain cases

The Commissioner must give you a written statement of the reasons for a decision not to remit an amount of * shortfall interest charge you are liable to pay if you requested the Commissioner, in the * approved form, to remit the amount.

Note: Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons.

280-170 Objecting against remission decision

You may object, in the manner set out in Part IVC, against a decision of the Commissioner not to remit an amount of * shortfall interest charge you are liable to pay on an additional amount of income tax, * petroleum resource rent tax or * excess contributions tax, if the amount of the charge that was not remitted is more than 20% of the additional amount.

Division 284 -- Administrative penalties for statements, unarguable positions and schemes

Table of Subdivisions

Guide to Division 284

284-A General provisions

284-B Penalties relating to statements

284-C Penalties relating to schemes

284-D Provisions common to Subdivisions 284-B and 284-C

Guide to Division 284

284-5 What this Division is about

This Division sets out the circumstances in which administrative penalties apply for:

(a) making false or misleading statements; and

(b) taking a position that is not reasonably arguable; and

It also sets out the amounts of those penalties.

Subdivision 284-A -- General provisions

Table of sections

284-10 Object of Division

284-15 When a matter is reasonably arguable

284-20 Which statements this Division applies to

284-25 Statements by agents

284-30 Application of Division to trusts

284-35 Application of Division to partnerships

284-10 Object of Division

The object of this Division is to provide a uniform administrative penalty regime for all * taxation laws to enable administrative penalties to apply to entities that fail to meet their obligations under those laws in relation to:

(a) making false or misleading statements; and

(b) taking a position that is not reasonably arguable; and

(d) refusing to provide documents to the Commissioner.

284-15 When a matter is reasonably arguable

(1) A matter is reasonably arguable if it would be concluded in the circumstances, having regard to relevant authorities, that what is argued for is about as likely to be correct as incorrect, or is more likely to be correct than incorrect.

(2) To the extent that a matter involves an assumption about the way in which the Commissioner will exercise a discretion, the matter is only reasonably arguable if, had the Commissioner exercised the discretion in the way assumed, a court would be about as likely as not to decide that the exercise of the discretion was in accordance with law.

(3) Without limiting subsection (1), these authorities are relevant:

(a) a * taxation law;

(b) material for the purposes of subsection 15AB(1) of the Acts Interpretation Act 1901 ;

(d) a * public ruling.

284-20 Which statements this Division applies to

This Division applies to a statement made orally, in a document or in any other way (including electronically) for a purpose connected with a * taxation law.

284-25 Statements by agents

This Division applies to a statement made by your agent as if it had been made by you.

284-30 Application of Division to trusts

If you are a trustee of a trust and:

(a) you make a statement to the Commissioner or to an officer who is exercising powers or performing functions under a * taxation law about the trust; and

(b) the statement:

(i) is false or misleading in a material particular, whether because of things in it or omitted from it; or

(ii) treated an * income tax law as applying to a matter or identical matters in a particular way that was not * reasonably arguable; or

(iii) treated a taxation law as applying in a particular way to a * scheme;

this Division applies to you as if any * shortfall amount or * scheme shortfall amount of a beneficiary of the trust as a result of the statement were your shortfall amount or scheme shortfall amount.

284-35 Application of Division to partnerships

(1) If you are a partner in a partnership and:

(a) a statement about the partnership net income or partnership loss is made by a partner or the partnership's agent to the Commissioner or to an entity who is exercising powers or performing functions under a * taxation law about the partnership; and

(b) the statement:

(i) is false or misleading in a material particular, whether because of things in it or omitted from it; or

(ii) treated an * income tax law as applying to a matter or identical matters in a particular way that was not * reasonably arguable;

this Division applies to you as if you had made the statement.

(2) If you are a partner in a partnership and:

(a) the partnership participated in a * scheme; and

(b) the partnership net income would have been greater, or the partnership loss would have been smaller, apart from the scheme;

this Division applies to you as if the proportion of the * scheme benefit that is the same as your share of the partnership net income or partnership loss were your scheme benefit.

Subdivision 284-B -- Penalties relating to statements

Guide to Subdivision 284-B

284-70 What this Subdivision is about

You are liable to an administrative penalty if:

(a) you make a false or misleading statement about a tax-related matter; or

(b) you take a position that is not reasonably arguable about a tax-related matter; or

This Subdivision sets out when the penalties apply and how the amounts of the penalties are calculated.

Table of sections

Operative provisions

284-75 Liability to penalty

284-80 Shortfall amounts

284-85 Amount of penalty

284-90 Base penalty amount

284-95 Joint and several liability of directors of corporate trustee that makes a false or misleading statement

Operative provisions

284-75 Liability to penalty

(1) You are liable to an administrative penalty if:

(a) you make a statement to the Commissioner or to an entity that is exercising powers or performing functions under a * taxation law (other than the * Excise Acts); and

(b) the statement is false or misleading in a material particular, whether because of things in it or omitted from it.

Note: This section applies to a statement made by your agent as if it had been made by you: see section 284-25.

(2) You are liable to an administrative penalty if:

(a) you make a statement to the Commissioner or to an entity that is exercising powers or performing functions under an * income tax law; and

(b) in the statement, you treated an * income tax law as applying to a matter or identical matters in a particular way that was not * reasonably arguable; and

(d) item 4, 5 or 6 of the table in subsection 284-90(1) applies to you.

(3) You are liable to an administrative penalty if:

(a) you fail to give a return, notice or other document to the Commissioner by the day it is required to be given; and

(b) that document is necessary for the Commissioner to determine a * tax-related liability of yours accurately; and

Note: You are also liable to an administrative penalty for failing to give the document on time: see Subdivision 286-C.

(4) You are liable to an administrative penalty if:

(a) you make a statement to an entity other than:

(i) the Commissioner; and

(ii) an entity exercising powers or performing functions under a * taxation law (other than the * Excise Acts); and

(b) the statement is, or purports to be, one required or permitted by a taxation law (other than the Excise Acts); and

Exceptions to subsections (1) and (4)

(5) You are not liable to an administrative penalty under subsection (1) or (4) for a statement that is false or misleading in a material particular if you, and your * agent (if relevant), took reasonable care in connection with the making of the statement.

(6) You are not liable to an administrative penalty under subsection (1) or (4) if:

(a) you engage a * registered tax agent or BAS agent; and

(b) you give the registered tax agent or BAS agent all relevant taxation information; and

(d) the false or misleading nature of the statement did not result from:

(i) intentional disregard by the registered tax agent or BAS agent of a * taxation law (other than the * Excise Acts); or

(ii) recklessness by the agent as to the operation of a taxation law (other than the Excise Acts).

(7) If you wish to rely on subsection (6), you bear an evidential burden in relation to paragraph (6)(b).

284-80 Shortfall amounts

(1) You have a shortfall amount if an item in this table applies to you. That amount is the amount by which the relevant liability, or the payment or credit, is less than or more than it would otherwise have been.

*Shortfall amounts*
Item	*You have a shortfall amount* in this situation:**
1	A * tax-related liability of yours for an accounting period, or for a * taxable importation, or under the Superannuation (Unclaimed Money and Lost Members) Act 1999 , worked out on the basis of the statement is less than it would be if the statement were not false or misleading
2	An amount that the Commissioner must pay or credit to you under a * taxation law (other than the * Excise Acts) for an accounting period, or under a tourist refund scheme under Division 168 of the * GST Act or Division 25 of the A New Tax System (Wine Equalisation Tax) Act 1999 , worked out on the basis of the statement is more than it would be if the statement were not false or misleading
3	A * tax-related liability of yours for an accounting period worked out on the basis of the statement is less than it would be if the statement did not treat an * income tax law as applying in a way that was not * reasonably arguable
4	An amount that the Commissioner must pay or credit to you under an * income tax law for an accounting period worked out on the basis of the statement is more than it would be if the statement did not treat an * income tax law as applying in a way that was not * reasonably arguable

(2) However, if:

(a) your shortfall amount arises in the situation covered by both item 1 in the table and item 1, 2 or 3 in the table in subsection 284-90(1); and

(b) the statement is false or misleading because of errors mentioned in section 705-315 of the Income Tax Assessment Act 1997 that were made in it and it was made before the Commissioner became aware of the errors, your shortfall amount is instead the amount worked out using the formula:

where:

"adjusted reset cost base asset setting amount" means:

(a) the * tax cost setting amount, worked out under Division 705 of the Income Tax Assessment Act 1997 , for all assets of a kind referred to in section 705-35 of that Act as reset cost base assets that the * head company of the relevant group held continuously from the time when the * subsidiary member referred to in subsection 705-315(2) of that Act joined the group until the start of the head company's income year in which the Commissioner became aware of the errors mentioned in section 705-315 of that Act;

less:

(b) the head company's deductions under Division 40 (except under Subdivision 40-F, 40-G, 40-H or 40-I) or Subdivision 328-D of the Income Tax Assessment Act 1997 for those assets for all income years before the income year in which the Commissioner became aware of the errors.

"original reset cost base asset setting amount" means the * tax cost setting amount, worked out under Division 705 of the Income Tax Assessment Act 1997 , for all reset cost base assets that the * subsidiary member held at the time it joined the group, other than assets that the * head company no longer held at the start of the earliest income year for which the Commissioner could amend the head company's assessment to correct any of the errors.

"tax on capital gain" means the product of:

(a) the * capital gain that the * head company makes as a result of * CGT event L6 happening as mentioned in section 104-525 of the Income Tax Assessment Act 1997 ; and

(b) the * corporate tax rate in respect of taxable income for the income year in which that CGT event happens.

284-85 Amount of penalty

(1) Work out the * base penalty amount under section 284-90. If the base penalty amount is not increased under section 284-220 or reduced under section 284-225, this is the amount of the penalty.

(2) Otherwise, use this formula:

where:

"BPA" is the * base penalty amount.

increase % is the percentage increase (if any) under section 284-220.

reduction % is the percentage reduction (if any) under section 284-225.

284-90 Base penalty amount

(1) The base penalty amount under this Subdivision is worked out using this table and section 284-224 if relevant:

*Base penalty amount*
Item	In this situation:	*The base penalty amount* is:**
1	You have a * shortfall amount as a result of a statement described in subsection 284-75(1) or (4) and the amount, or part of the amount, resulted from intentional disregard of a * taxation law (other than the * Excise Acts) by you or your agent	75% of your * shortfall amount or part
2	You have a * shortfall amount as a result of a statement described in subsection 284-75(1) or (4) and the amount, or part of the amount, resulted from recklessness by you or your agent as to the operation of a * taxation law (other than the * Excise Acts)	50% of your * shortfall amount or part
3	You have a * shortfall amount as a result of a statement described in subsection 284-75(1) or (4) and the amount, or part of the amount, resulted from a failure by you or your agent to take reasonable care to comply with a * taxation law (other than the * Excise Acts)	25% of your * shortfall amount or part
3A	A statement described in subsection 284-75(1) or (4) was false or misleading because of intentional disregard of a * taxation law (other than the * Excise Acts) by you or your * agent but did not result in you having a * shortfall amount	60 penalty units
3B	A statement described in subsection 284-75(1) or (4) was false or misleading because of recklessness by you or your * agent as to the operation of a * taxation law (other than the * Excise Acts) but did not result in you having a * shortfall amount	40 penalty units
3C	A statement described in subsection 284-75(1) or (4) was false or misleading because of a failure by you or your * agent to take reasonable care to comply with a * taxation law (other than the * Excise Acts) but did not result in you having a * shortfall amount	20 penalty units
4	You have a * shortfall amount, all or part of which resulted from you or your agent treating an * income tax law as applying to a matter or identical matters in a particular way that was not * reasonably arguable, and that amount is more than the greater of $10,000 or 1% of the income tax payable by you for the income year, worked out on the basis of your * income tax return	25% of your * shortfall amount or part
5	You have a * shortfall amount because of section 284-30 (about trusts) and: (a) your shortfall amount or part of it resulted from you or your agent treating an * income tax law as applying to a matter or identical matters in a particular way that was not * reasonably arguable; and (b) because of that treatment, the trust's net income would have been reduced, or the trust's * tax loss would have been increased, for the income year by more than the greater of $20,000 or 2% of the trust's net income (if any) for that year worked out on the basis of the trust's * income tax return	25% of your * shortfall amount or part
6	You have a * shortfall amount because of section 284-35 (about partnerships) and: (a) your shortfall amount or part of it resulted from you or your agent treating an * income tax law as applying to a matter or identical matters in a particular way that was not * reasonably arguable; and (b) because of that treatment, the partnership net income would have been reduced, or the partnership loss would have been increased, for the income year by more than the greater of $20,000 or 2% of the partnership net income (if any) for that year, worked out on the basis of the partnership's * income tax return	25% of your * shortfall amount or part
7	You are liable to an administrative penalty under subsection 284-75(3)	75% of the tax-related liability concerned

(2) If 2 or more items in that table apply and one of them produces a greater * base penalty amount than any of the others, use that item.

284-95 Joint and several liability of directors of corporate trustee that makes a false or misleading statement

(1) This section applies if a trustee of a * self managed superannuation fund, or of a fund that is treated as a self managed superannuation fund under subsection 10(4) of the Superannuation Industry (Supervision) Act 1993 :

(a) is liable to an administrative penalty under subsection 284-75(1) or (4); and

(b) is a body corporate.

(2) The directors of the body corporate at the time it becomes liable to the penalty are jointly and severally liable to pay the amount of the * tax-related liability in respect of the penalty.

Note: See section 265-45 for rules on joint liability.

Subdivision 284-C -- Penalties relating to schemes

Guide to Subdivision 284-C

284-140 What this Subdivision is about

You are liable to an administrative penalty if you attempt to reduce your tax-related liabilities or increase your credits through a scheme.

This Subdivision sets out when the penalties apply and how the amounts of the penalties are calculated.

Table of sections

Operative provisions

284-145 Liability to penalty

284-150 Scheme benefits and scheme shortfall amounts

284-155 Amount of penalty

284-160 Base penalty amount : schemes

Operative provisions

284-145 Liability to penalty

(1) You are liable to an administrative penalty if:

(a) you would, apart from a provision of a * taxation law or action taken under such a provision (the adjustment provision ), get a * scheme benefit from a * scheme; and

(b) having regard to any relevant matters, it is reasonable to conclude that:

(i) an entity that (alone or with others) entered into or carried out the scheme, or part of it, did so with the sole or dominant purpose of that entity or another entity getting a scheme benefit from the scheme; or

(ii) for a scheme referred to in Division 165 of the * GST Act or Division 75 of the Fuel Tax Act 2006 --the principal effect of the scheme, or of part of the scheme, is that you would, apart from the adjustment provision, get the scheme benefit from the scheme directly or indirectly.

(2) You are also liable to an administrative penalty if:

(a) you would, apart from section 136AD or 136AE of the Income Tax Assessment Act 1936 , or the application of the International Tax Agreements Act 1953 to those sections, (also the adjustment provision ) get a * scheme benefit from a * scheme; and

(b) subparagraph (1)(b)(i) is not satisfied for the scheme.

(3) It does not matter whether the * scheme, or any part of the scheme, was entered into or carried out inside or outside Australia.

284-150 Scheme benefits and scheme shortfall amounts

(1) An entity gets a scheme benefit from a * scheme if:

(a) a * tax-related liability of the entity for an accounting period is, or could reasonably be expected to be, less than it would be apart from the scheme or a part of the scheme; or

(b) an amount that the Commissioner must pay or credit to the entity under a * taxation law for an accounting period is, or could reasonably be expected to be, more than it would be apart from the scheme or a part of the scheme.

(2) The amount of the * scheme benefit that you would, apart from the adjustment provision, have got from the * scheme is called your scheme shortfall amount .

(3) However, to the extent that your scheme shortfall amount is due to errors mentioned in section 705-315 of the Income Tax Assessment Act 1997 that were made in a statement that was made before the Commissioner became aware of the errors, your scheme shortfall amount is instead the amount worked out using the formula:

where:

"adjusted reset cost base asset setting amount" means:

less:

"original reset cost base asset setting amount" means the * tax cost setting amount, worked out under Division 705 of the Income Tax Assessment Act 1997 , for all reset cost base assets that the * subsidiary member held at the joining time, other than assets that the * head company no longer held at the start of the earliest income year for which the Commissioner could amend the head company's assessment to correct any of the errors.

"tax on capital gain" means the product of:

(a) the * capital gain that the * head company makes as a result of * CGT event L6 happening as mentioned in section 104-525 of the Income Tax Assessment Act 1997 ; and

(b) the * corporate tax rate in respect of taxable income for the income year in which that CGT event happens.

284-155 Amount of penalty

(1) Work out the * base penalty amount under section 284-160. If the base penalty amount is not increased under section 284-220 or reduced under section 284-225, this is the amount of the penalty.

(2) Otherwise, use this formula:

where:

"BPA" is the * base penalty amount.

increase % is the percentage increase (if any) under section 284-220.

reduction % is the percentage reduction (if any) under section 284-225.

284-160 Base penalty amount : schemes

The base penalty amount for a * scheme is, subject to section 284-224:

(a) for a scheme to which subsection 284-145(1) applies:

(i) 50% of your * scheme shortfall amount; or

(ii) 25% of your scheme shortfall amount if it is * reasonably arguable that the adjustment provision does not apply; or

(b) for a scheme to which subsection 284-145(2) applies:

(i) 25% of your * scheme shortfall amount; or

(ii) 10% of your scheme shortfall amount if it is * reasonably arguable that the adjustment provision does not apply.

Subdivision 284-D -- Provisions common to Subdivisions 284-B and 284-C

Table of sections

284-220 Increase in base penalty amount

284-224 Reduction of base penalty amount if law was applied in an accepted way

284-225 Reduction of base penalty amount if you voluntarily tell the Commissioner

284-220 Increase in base penalty amount

(1) The * base penalty amount is increased by 20% if:

(a) you took steps to prevent or obstruct the Commissioner from finding out about a * shortfall amount, or the false or misleading nature of a statement, in relation to which the base penalty amount was calculated; or

(b) you:

(i) became aware of such a shortfall amount after a statement had been made to the Commissioner about the relevant * tax-related liability; or

(ii) became aware of the false or misleading nature of a statement made to the Commissioner or another entity after the statement had been made;

and you did not tell the Commissioner or other entity about it within a reasonable time; or

(c) the base penalty amount was worked out using item 1, 2 or 3 of the table in subsection 284-90(1) and a base penalty amount for you was worked out under one of those items previously; or

(ca) the base penalty amount was worked out using item 3A, 3B or 3C of the table in subsection 284-90(1) and a base penalty amount for you was worked out under one of those items previously; or

(d) the base penalty amount was worked out using item 4, 5 or 6 of that table and a base penalty amount for you was worked out under that item previously; or

(e) your liability to a penalty arises under subsection 284-75(3) and you were previously liable to a penalty under that subsection.

(2) The * base penalty amount for your * scheme shortfall amount, or for part of it, for an accounting period is increased by 20% if:

(a) you took steps to prevent or obstruct the Commissioner from finding out about the scheme shortfall amount or the part; or

(b) a base penalty amount for you was worked out under section 284-160 for a previous accounting period.

284-224 Reduction of base penalty amount if law was applied in an accepted way

(1) If, apart from this section, you would have a * base penalty amount because you or your * agent treated a * taxation law as applying in a particular way, and that way agreed with:

(a) advice given to you or your agent by or on behalf of the Commissioner; or

(b) general administrative practice under that law; or

your base penalty amount is reduced to the extent that it was caused by that treatment.

(2) For the purposes of subsection (1) it does not matter whether the * base penalty amount also relates to:

(a) a statement; or

(b) a failure to give the Commissioner a return, notice or other document when required; or

284-225 Reduction of base penalty amount if you voluntarily tell the Commissioner

(1) The * base penalty amount for your * shortfall amount or * scheme shortfall amount, for part of it or for your false or misleading statement is reduced by 20% if:

(a) the Commissioner tells you that an examination is to be made of your affairs relating to a * taxation law for a relevant period; and

(b) after that time, you voluntarily tell the Commissioner, in the * approved form, about the shortfall, the part of it or the false or misleading nature of the statement; and

(c) telling the Commissioner can reasonably be estimated to have saved the Commissioner a significant amount of time or significant resources in the examination.

(2) The * base penalty amount for your * shortfall amount or * scheme shortfall amount, for part of it or for your false or misleading statement is reduced under subsection (3), (4) or (4A) if you voluntarily tell the Commissioner, in the * approved form, about the shortfall amount, the part of it or the false or misleading nature of the statement before :

(a) the day the Commissioner tells you that an examination is to be made of your affairs relating to a * taxation law for a relevant period; or

(b) if the Commissioner makes a public statement requesting entities to make a voluntary disclosure by a particular earlier day about a * scheme or transaction that applies to your affairs--that earlier day.

(3) The * base penalty amount for your * shortfall amount, or for part of it, is:

(a) reduced by 80% if the shortfall amount, or the part of it, is $1,000 or more; or

(b) reduced to nil if the shortfall amount, or the part of it, is less than $1,000.

(4) The * base penalty amount for your * scheme shortfall amount, or for part of it, is reduced by 80%.

(4A) The * base penalty amount for your false or misleading statement that does not result in you having a * shortfall amount is reduced to nil.

(5) If you voluntarily tell the Commissioner, in the * approved form, about your * shortfall amount or * scheme shortfall amount, part of it or the false or misleading nature of the statement after the Commissioner tells you that an examination is to be conducted of your affairs relating to a * taxation law for a relevant period, the Commissioner may treat you as having done so before being told about the examination if the Commissioner considers it appropriate to do so in the circumstances.

Division 286 -- Penalties for failing to lodge documents on time

Table of Subdivisions

286-A Guide to Division 286

286-B Object of Division

286-C Penalties for failing to lodge documents on time

Subdivision 286-A -- Guide to Division 286

286-1 What this Division is about

You are liable to an administrative penalty if you are required to give a return, statement, notice or other document by a particular time and you do not do so.

This Division sets out when the penalty applies and how the amounts of the penalty are calculated.

Subdivision 286-B -- Object of Division

Table of sections

286-25 Object of Division

The object of this Division is to provide a uniform administrative penalty regime for all * taxation laws to enable administrative penalties to apply for failure to give returns, notices, statements or other documents on time.

Subdivision 286-C -- Penalties for failing to lodge documents on time

Table of sections

286-75 Liability to penalty

286-80 Amount of penalty

286-75 Liability to penalty

(1) You are liable to an administrative penalty if:

(a) you are required under a * taxation law to give a return, notice, statement or other document to the Commissioner in the * approved form by a particular day; and

(b) you do not give the return, notice, statement or document to the Commissioner in the approved form by that day.

(1A) However, you are not liable to an administrative penalty under subsection (1) if:

(a) you engage a * registered tax agent or BAS agent; and

(b) you give the registered tax agent or BAS agent all relevant taxation information to enable the agent to give a return, notice, statement or other document to the Commissioner in the * approved form by a particular day; and

(c) the registered tax agent or BAS agent does not give the return, notice, statement or other document to the Commissioner in the approved form by that day; and

(d) the failure to give the return, notice, statement or other document to the Commissioner did not result from:

(i) intentional disregard by the registered tax agent or BAS agent of a * taxation law; or

(ii) recklessness by the agent as to the operation of a taxation law.

(1B) If you wish to rely on subsection (1A), you bear an evidential burden in relation to paragraph (1A)(b).

(2) Subsection (1) does not apply to a return, notice, statement or other document under any of these Acts:

(a) the Superannuation Contributions Tax (Assessment and Collection) Act 1997 ;

(b) the Superannuation Guarantee (Administration) Act 1992 ; or

(2A) You are also liable to an administrative penalty if:

(a) you are required under Division 390 to give a statement to an entity (other than the Commissioner) in the * approved form by a particular day; and

(b) you do not give the statement in the approved form to the other entity by that day.

(2B) You are also liable to an administrative penalty if:

(a) you are required under Division 391 to give a statement to an entity (other than the Commissioner) in the * approved form by a particular day; and

(b) you do not give the statement in the approved form to the entity by that day.

(2BA) You are also liable to an administrative penalty if:

(a) you are required under Division 392 (Employee share scheme reporting) to give a statement to an entity (other than the Commissioner) in the * approved form by a particular day; and

(b) you do not give the statement in the approved form to the entity by that day.

(2C) You are also liable to an administrative penalty if:

(a) you are required under section 20 of the First Home Saver Accounts Act 2008 to give a notice to an entity in the * approved form by a particular day; and

(b) you do not give the notice in the approved form to the entity by that day.

(4) You are also liable to an administrative penalty if:

(a) you are required under section 713-540 of the Income Tax (Transitional Provisions) Act 1997 to notify another entity of the happening of an event by a particular day; and

(b) you do not notify the other entity of the happening of that event by that day.

(5) Subsection (6) applies if:

(a) an entity is liable to an administrative penalty under subsection (1) or (2A) as the * superannuation provider in relation to a * self managed superannuation fund; and

(b) the entity is a body corporate.

(6) The directors of the body corporate at the time it becomes liable to the penalty are jointly and severally liable to pay the amount of the * tax-related liability in respect of the penalty.

Note: See section 265-45 for rules on joint liability.

286-80 Amount of penalty

(1) The amount of the penalty is worked out in this way:

(a) work out the * base penalty amount under subsection (2); and

(b) work out whether the base penalty amount is increased under subsection (3) or (4).

(2) The base penalty amount is:

(a) for failing to give a return, notice or other document on time or in the * approved form, as mentioned in subsection 286-75(1), (2A), (2B), (2BA) or (2C)--1 penalty unit for each period of 28 days or part of a period of 28 days starting on the day when the document is due and ending when you give it (up to a maximum of 5 penalty units); or

(c) for failing to notify the happening of an event as mentioned in subsection 286-75(4)--1 penalty unit for each period of 28 days or part of a period of 28 days starting on the day when the notification is due and ending when you notify the happening of the event (up to a maximum of 5 penalty units).

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Example: An entity lodges a return 31 days late. The base penalty amount under subsection (2) is 2 penalty units.

(3) The * base penalty amount is multiplied by 2 if:

(a) the entity concerned is a * medium withholder for the month in which the return, notice or other document was required to be given; or

(b) the entity's assessable income for the income year in which the return, notice or other document is required to be given is more than $1 million but less than $20 million; or

(c) the entity's * current GST turnover worked out at a time in the month in which the return, notice or other document was required to be given is more than $1 million but less than $20 million.

(4) The * base penalty amount is multiplied by 5 if:

(a) the entity concerned is a * large withholder for the month when the return, notice or other document was required to be given; or

(b) the entity's assessable income for the income year in which the return, notice or other document is required to be given is $20 million or more; or

(c) the entity's * current GST turnover worked out at a time in the month in which the return, notice or other document was required to be given is $20 million or more.

(5) In working out the * base penalty amount, the amount of a penalty unit is the amount applying at the start of the relevant 28 day period.

(6) The fact that you have not yet given the relevant return, notice or other document does not prevent the Commissioner notifying you that you are liable to an administrative penalty under this Subdivision. That penalty may be later increased under this section.

Note: The Commissioner is required to notify you of an administrative penalty: see section 298-10.

Division 288 -- Miscellaneous administrative penalties

Table of sections

288-10 Penalty for non-electronic notification

288-20 Penalty for non-electronic payment

288-25 Penalty for failure to keep or retain records

288-30 Penalty for failure to retain or produce declarations

288-35 Penalty for preventing access etc.

288-40 Penalty for failing to register or cancel registration

288-45 Penalty for failing to issue tax invoice etc.

288-50 Penalty for both principal and agent issuing certain documents

288-70 Administrative penalties for life insurance companies

288-75 Administrative penalty for a copyright or resale royalty collecting society

288-80 Administrative penalty for over declaring conduit foreign income

288-90 Failing to give release authority for excess non-concessional contributions tax

288-95 Failing to comply etc. with release authority

288-100 Excess money paid under release authority

288-105 Superannuation provider to calculate crystallised pre-July 83 amount of superannuation interest by 30 June 2008

288-10 Penalty for non-electronic notification

An entity that:

(a) under subsection 31-25(2) of the * GST Act, is required to * lodge a * GST return electronically; or

(b) under section 388-80 in this Schedule, is required to notify another * BAS amount electronically;

but lodges or notifies it in another way, is liable to an administrative penalty of 5 penalty units.

Note 1: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Note 2: Division 298 contains machinery provisions for administrative and civil penalties.

288-20 Penalty for non-electronic payment

An entity that:

(a) under subsection 33-10(2) of the * GST Act, is required to pay a * net amount for a tax period electronically; or

(b) under section 8AAZMA, or subsection 16-85(1) in this Schedule, is required to pay an amount electronically;

but pays it another way, is liable to an administrative penalty of 5 penalty units for each payment of one or more such amounts.

Note 1: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Note 2: Division 298 contains machinery provisions for administrative and civil penalties.

288-25 Penalty for failure to keep or retain records

(1) You are liable to an administrative penalty of 20 penalty units if:

(a) a provision of a * taxation law requires you to keep or retain a record; and

(b) you do not keep or retain that record in the manner required by that law.

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

(a) documents required to be retained under Part X of the Fringe Benefits Tax Assessment Act 1986 (about statutory evidentiary documents); or

(b) documents required to be kept or retained under Division 900 of the Income Tax Assessment Act 1997 (about substantiation of expenses).

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

288-30 Penalty for failure to retain or produce declarations

You are liable to an administrative penalty of 20 penalty units if:

(a) a provision of a * taxation law requires you to retain or produce a declaration you made about an agent giving an * approved form to the Commissioner on your behalf; and

(b) you do not retain or produce that declaration in the manner required by that law.

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

288-35 Penalty for preventing access etc.

You are liable to an administrative penalty of 20 penalty units if:

(a) a provision of a * taxation law confers a power on an officer authorised under that law:

(i) to enter or remain on land, premises or a place that you occupy; or

(ii) to have access to documents, goods or other property in your possession; or

(iii) to inspect, copy or take extracts from documents in your possession; or

(iv) to inspect, examine, count, measure, weigh, gauge, test or analyse any goods or other property in your possession and, to that end, take samples; and

(b) you refuse to provide the officer with all reasonable facilities for the officer effectively to exercise that power in accordance with that law.

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

288-40 Penalty for failing to register or cancel registration

You are liable to an administrative penalty of 20 penalty units if you fail to apply for registration, or to apply for cancellation of registration, as required by the * GST Act.

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

288-45 Penalty for failing to issue tax invoice etc.

(1) You are liable to an administrative penalty of 20 penalty units if you fail to issue a tax invoice as required by section 29-70 of the * GST Act.

(2) You are liable to an administrative penalty of 20 penalty units if you fail to issue an adjustment note as required by section 29-75 of the * GST Act.

(3) You are liable to an administrative penalty of 20 penalty units if you fail to issue a third party adjustment note as required by section 134-20 of the * GST Act.

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

288-50 Penalty for both principal and agent issuing certain documents

An entity is liable to an administrative penalty of 20 penalty units if both the entity and its agent issue:

(a) separate tax invoices relating to the same taxable supply, contrary to subsection 153-15(2) of the * GST Act; or

(b) separate adjustment notes, or third party adjustment notes, for the same decreasing adjustment, contrary to subsection 153-20(2) of that Act.

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

288-70 Administrative penalties for life insurance companies

Complying superannuation/FHSA asset pool--calculation of an amount

(1) A * life insurance company is liable to an administrative penalty if the company:

(a) is required to calculate a particular amount under section 320-175 of the Income Tax Assessment Act 1997 ; but

(b) fails to do so within the period of 60 days that is required by that section.

Complying superannuation/FHSA asset pool--transfer following valuation

(2) A * life insurance company is liable to an administrative penalty if the company:

(a) is required to transfer assets having a particular * transfer value from its * complying superannuation/FHSA assets under subsection 320-180(1) of the Income Tax Assessment Act 1997 ; but

(b) fails to do so within the period of 30 days that is required by subsection 320-180(2) of that Act.

Segregated exempt assets--calculation of an amount

(3) A * life insurance company is liable to an administrative penalty if the company:

(a) is required to calculate a particular amount under section 320-230 of the Income Tax Assessment Act 1997 ; but

(b) fails to do so within the period of 60 days that is required by that section.

Segregated exempt assets--transfer following valuation

(4) A * life insurance company is liable to an administrative penalty if the company:

(a) is required to transfer assets having a particular * transfer value from its * segregated exempt assets under subsection 320-235(1) of the Income Tax Assessment Act 1997 ; but

(b) fails to do so within the period of 30 days that is required by subsection 320-235(2) of that Act.

How to work out the administrative penalty

(5) The administrative penalty under subsection (1), (2), (3) or (4) for a failure to make a calculation or transfer is equal to 5 penalty units for each period of 28 days or part of a period of 28 days:

(a) starting immediately after the end of the period mentioned in paragraph (b) of that subsection; and

(b) ending at the end of the day on which the calculation or transfer is made.

However, the maximum penalty for that failure must not exceed 25 penalty units.

Note 1: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Note 2: Division 298 contains machinery provisions for the penalties provided by this section.

288-75 Administrative penalty for a copyright or resale royalty collecting society

(1) A * copyright collecting society is liable to an administrative penalty of 20 penalty units if the society fails to give a notice as required by section 410-5 of the Income Tax Assessment Act 1997 .

(2) The * resale royalty collecting society is liable to an administrative penalty of 20 penalty units if the society fails to give a notice as required by section 410-50 of the Income Tax Assessment Act 1997 .

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

288-80 Administrative penalty for over declaring conduit foreign income

(1) An * Australian corporate tax entity is liable to an administrative penalty if:

(a) the entity makes a * frankable distribution that has an * unfranked part; and

(b) the entity declares an amount of the unfranked part to be * conduit foreign income; and

(i) if the entity declares the distribution before making the distribution--the time of the declaration; or

(ii) otherwise--the time the distribution is made.

(2) The amount of the penalty is the sum of the amounts worked out under subsections (3) and (4).

(3) The amount is:

where:

"Australian membership interests" means the number of * membership interests or * non-share equity interests in the entity that are not covered by the definition of foreign membership interests in subsection (4).

"total membership interests" means the number of * membership interests or * non-share equity interests in the entity held by entities that are entitled to receive the * distribution.

(4) The amount is:

where:

"applicable withholding tax rate" means 50% of the rate of tax set out in paragraph 7(a) of the Income Tax (Dividends, Interest and Royalties Withholding Tax) Act 1974 .

"foreign membership interests" means the number of * membership interests or * non-share equity interests in the entity held by entities that are entitled to receive the * distribution and in relation to whom the entity is required to withhold amounts under section 12-210 disregarding the operation of section 12-300 (about limits on the amount withheld).

"total membership interests" means the number of * membership interests or * non-share equity interests in the entity held by entities that are entitled to receive the * distribution.

288-90 Failing to give release authority for excess non-concessional contributions tax

A person to whom the Commissioner has given a release authority in accordance with paragraph 292-405(1)(b) of the Income Tax Assessment Act 1997 and who fails to comply with subsection 292-410(2) of that Act in relation to the release authority is liable to an administrative penalty of 20 penalty units.

288-95 Failing to comply etc. with release authority

(1) A * superannuation provider that has been given a release authority in accordance with section 292-410 of the Income Tax Assessment Act 1997 and that fails to comply with subsection 292-415(1) of that Act is liable to an administrative penalty of 20 penalty units.

(2) A * superannuation provider that has been given a transitional release authority in accordance with section 292-80B of the Income Tax (Transitional Provisions) Act 1997 and that fails to comply with subsection 292-80C(1) of that Act is liable to an administrative penalty of 20 penalty units.

288-100 Excess money paid under release authority

A person is liable for an administrative penalty of 20 penalty units if:

(a) the person gives one or more * superannuation providers a release authority in accordance with:

(i) section 292-410 of the Income Tax Assessment Act 1997 ; or

(ii) section 292-80B of the Income Tax (Transitional Provisions) Act 1997 ; and

(b) the total of the amounts paid by the superannuation provider or providers to the person and the Commissioner as a result of being given the release authority exceeds the amount required to be paid in respect of the release authority under:

(i) if subparagraph (a)(i) applies--subsection 292-415(1) of the Income Tax Assessment Act 1997 ; or

(ii) if subparagraph (a)(ii) applies--section 292-80C of the Income Tax (Transitional Provisions) Act 1997 .

288-105 Superannuation provider to calculate crystallised pre-July 83 amount of superannuation interest by 30 June 2008

(1) An entity is liable to an administrative penalty of 5 penalty units if:

(a) the entity is the * superannuation provider in relation to a * superannuation plan (other than a * constitutionally protected fund) on 30 June 2008; and

(b) the entity has not ensured that the crystallised pre-July 83 amount in relation to each superannuation interest in the plan has been calculated on or before that day.

(2) For the purpose of paragraph (1)(b), disregard a * superannuation interest unless the * element taxed in the fund of the * taxable component of the interest exceeds nil just before 1 July 2007.

(3) For the purpose of paragraph (1)(b), disregard a * superannuation interest that supported a * superannuation income stream just before 1 July 2007.

Division 290 -- Promotion and implementation of schemes

Table of Subdivisions

290-A Objects of this Division

290-B Civil penalties

290-C Injunctions

290-D Voluntary undertakings

Subdivision 290-A -- Objects of this Division

Table of sections

290-5 Objects of this Division

The objects of this Division are:

(a) to deter the promotion of tax avoidance * schemes and tax evasion schemes; and

(b) to deter the implementation of schemes that have been promoted on the basis of conformity with a * product ruling in a way that is materially different from that described in the product ruling.

Subdivision 290-B -- Civil penalties

Table of sections

290-50 Civil penalties

290-55 Exceptions

290-60 Meaning of promoter

290-65 Meaning of tax exploitation scheme

290-50 Civil penalties

Promoter of tax exploitation scheme

(1) An entity must not engage in conduct that results in that or another entity being a * promoter of a * tax exploitation scheme.

Implementing scheme otherwise than in accordance with ruling

(2) An entity must not engage in conduct that results in a * scheme that has been promoted on the basis of conformity with a * product ruling being implemented in a way that is materially different from that described in the product ruling.

Note: A scheme will not have been implemented in a way that is materially different from that described in a product ruling if the tax outcome for participants in the scheme is the same as that described in the ruling.

(2A) For the purposes of subsection (2), disregard:

(a) subsection 82KZMGA(1A) of the Income Tax Assessment Act 1936 ; and

(b) subsection 394-10(5A) of the Income Tax Assessment Act 1997 .

Note 1: Those 2 subsections relate to forestry managed investment schemes.

Note 2: The effect of this subsection is that a scheme will have been implemented in a way that is materially different from that described in a product ruling if the tax outcome for participants in the scheme is the same as that described in the ruling only because of the operation of the subsections mentioned in paragraphs (a) and (b).

Civil penalty

(3) If the Federal Court of Australia is satisfied, on application by the Commissioner, that an entity has contravened subsection (1) or (2), the Court may order the entity to pay a civil penalty to the Commonwealth.

Amount of penalty

(4) The maximum amount of the penalty is the greater of:

(a) 5,000 penalty units (for an individual) or 25,000 penalty units (for a body corporate); and

(b) twice the consideration received or receivable (directly or indirectly) by the entity and * associates of the entity in respect of the * scheme.

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Principles relating to penalties

(5) In deciding what penalty is appropriate for a contravention of subsection (1) or (2) by an entity, the Federal Court of Australia may have regard to all matters it considers relevant, including:

(a) the amount of the consideration received or receivable (directly or indirectly) by the entity and * associates of the entity in respect of the * scheme; and

(b) the deterrent effect that any penalty may have; and

(d) the nature and extent of the contravention; and

(e) the circumstances in which the contravention took place, including the deliberateness of the entity's conduct and whether there was an honest and reasonable mistake of law; and

(f) the period over which the conduct extended; and

(g) whether the entity took any steps to avoid the contravention; and

(h) whether the entity has previously been found by the Court to have engaged in the same or similar conduct; and

(i) the degree of the entity's cooperation with the Commissioner.

Recovery of penalty

(6) The penalty is a civil debt payable to the Commonwealth, and the Commissioner may, on behalf of the Commonwealth, enforce an order for an entity to pay the penalty as if it were an order made in civil proceedings against the entity to recover a debt due by the entity. The debt arising from the order is taken to be a judgment debt.

290-55 Exceptions

Reasonable mistake or reasonable precautions

(1) The Federal Court of Australia must not order the entity to pay a civil penalty if the entity satisfies the Court:

(a) that the conduct in respect of which the proceedings were instituted was due to a reasonable mistake of fact; or

(b) that:

(i) the conduct in respect of which the proceedings were instituted was due to the act or default of another entity, to an accident or to some other cause beyond the entity's control; and

(ii) the entity took reasonable precautions and exercised due diligence to avoid the conduct.

(2) The other entity referred to in paragraph (1)(b) does not include someone who was an employee or agent of the entity when the alleged conduct occurred.

Reliance on advice from the Commissioner

(3) The Commissioner must not make an application under section 290-50 for conduct referred to in subsection 290-50(1) in relation to an entity's involvement in a * scheme if:

(a) the scheme is based on treating a * taxation law as applying in a particular way; and

(b) that way agrees with:

(i) advice given to the entity or the entity's agent by or on behalf of the Commissioner; or

(ii) a statement in a publication approved in writing by the Commissioner.

Time limitation

(4) The Commissioner must not make an application under section 290-50 in relation to an entity's involvement in a * tax exploitation scheme more than 4 years after the entity last engaged in conduct that resulted in the entity or another entity being a * promoter of the tax exploitation scheme.

(5) The Commissioner must not make an application under section 290-50 in relation to an entity's involvement in a * scheme that has been promoted on the basis of conformity with a * product ruling more than 4 years after the entity last engaged in conduct in relation to implementation of the scheme.

(6) However, the limitation in subsection (4) or (5) does not apply to a * scheme involving tax evasion.

Exception where entity does not know result of conduct

(7) The Federal Court of Australia must not order an entity to pay a civil penalty in relation to the entity's engaging in conduct:

(a) that results in another entity being a * promoter of a * tax exploitation scheme; or

(b) that results in a * scheme that has been promoted on the basis of conformity with a * product ruling being implemented in a way that is materially different from that described in the product ruling;

if the entity satisfies the Court that the entity did not know, and could not reasonably be expected to have known, that the entity's conduct would produce that result.

Employees

(8) The Commissioner must not make an application under section 290-50 in relation to an individual's involvement in a * scheme as an employee if the Federal Court of Australia has ordered the individual's employer to pay a civil penalty under this Division in relation to the same scheme.

290-60 Meaning of promoter

(1) An entity is a promoter of a * tax exploitation scheme if:

(a) the entity markets the scheme or otherwise encourages the growth of the scheme or interest in it; and

(b) the entity or an * associate of the entity receives (directly or indirectly) consideration in respect of that marketing or encouragement; and

(c) having regard to all relevant matters, it is reasonable to conclude that the entity has had a substantial role in respect of that marketing or encouragement.

(2) However, an entity is not a promoter of a * tax exploitation scheme merely because the entity provides advice about the * scheme.

(3) An employee is not to be taken to have had a substantial role in respect of that marketing or encouragement merely because the employee distributes information or material prepared by another entity.

290-65 Meaning of tax exploitation scheme

(1) A * scheme is a tax exploitation scheme if, at the time of the conduct mentioned in subsection 290-50(1):

(a) one of these conditions is satisfied:

(i) if the scheme has been implemented--it is reasonable to conclude that an entity that (alone or with others) entered into or carried out the scheme did so with the sole or dominant purpose of that entity or another entity getting a * scheme benefit from the scheme;

(ii) if the scheme has not been implemented--it is reasonable to conclude that, if an entity (alone or with others) had entered into or carried out the scheme, it would have done so with the sole or dominant purpose of that entity or another entity getting a scheme benefit from the scheme; and

(b) one of these conditions is satisfied:

(i) if the scheme has been implemented--it is not * reasonably arguable that the scheme benefit is available at law;

(ii) if the scheme has not been implemented--it is not reasonably arguable that the scheme benefit would be available at law if the scheme were implemented.

Note: The condition in paragraph (b) would not be satisfied if the implementation of the scheme for all participants were in accordance with binding advice given by or on behalf of the Commissioner of Taxation (for example, if that implementation were in accordance with a public ruling under this Act, or all participants had private rulings under this Act and that implementation were in accordance with those rulings).

(2) In deciding whether it is * reasonably arguable that a * scheme benefit would be available at law, take into account any thing that the Commissioner can do under a * taxation law.

Example: The Commissioner may cancel a tax benefit obtained by a taxpayer in connection with a scheme under section 177F of the Income Tax Assessment Act 1936 .

Subdivision 290-C -- Injunctions

Table of sections

290-120 Conduct to which this Subdivision applies

290-125 Injunctions

290-130 Interim injunctions

290-135 Delay in making ruling

290-140 Discharge etc. of injunctions

290-145 Certain limits on granting injunctions not to apply

290-150 Other powers of the Federal Court unaffected

290-120 Conduct to which this Subdivision applies

This Subdivision applies to conduct of the kind referred to in subsection 290-50(1) or (2).

290-125 Injunctions

If an entity has engaged, is engaging or is proposing to engage in conduct to which this Subdivision applies or would apply, the Federal Court of Australia may, on the application of the Commissioner, grant an injunction:

(a) restraining the entity from engaging in the conduct; and

(b) if, in the Court's opinion, it is desirable to do so--requiring the entity to do something.

290-130 Interim injunctions

The Federal Court of Australia may, before considering an application for an injunction under section 290-125, grant an interim injunction restraining an entity from engaging in conduct to which this Subdivision applies.

290-135 Delay in making ruling

If:

(a) an entity applied in writing to the Commissioner for a * product ruling in relation to a * scheme; and

(b) the Commissioner has neither made the ruling nor told the entity in writing that the Commissioner has declined to make the ruling;

the Commissioner must not make an application under section 290-125 in relation to conduct or proposed conduct by an entity in relation to the scheme until the Commissioner makes the ruling or tells the entity in writing that the Commissioner has declined to make the ruling.

290-140 Discharge etc. of injunctions

The Federal Court of Australia may discharge or vary an injunction granted under this Subdivision.

290-145 Certain limits on granting injunctions not to apply

Restraining injunctions

(1) The power of the Federal Court of Australia under this Subdivision to grant an injunction restraining an entity from engaging in conduct of a particular kind may be exercised:

(a) if the Court is satisfied that the entity has engaged in conduct of that kind--whether or not it appears to the Court that the entity intends to engage again, or to continue to engage, in conduct of that kind; or

(b) if it appears to the Court that, if an injunction is not granted, it is likely that the entity will engage in conduct of that kind--whether or not the entity has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to anyone if the entity engages in conduct of that kind.

Performance injunctions

(2) The power of the Federal Court of Australia under this Subdivision to grant an injunction requiring an entity to do something may be exercised:

(a) if the Court is satisfied that the entity has refused or failed to do that thing--whether or not it appears to the Court that the entity intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or

(b) if it appears to the Court that, if an injunction is not granted, it is likely that the entity will refuse or fail to do that thing--whether or not the entity has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to anyone if the entity refuses or fails to do that act or thing.

290-150 Other powers of the Federal Court unaffected

The powers conferred on the Federal Court of Australia under this Subdivision are in addition to, and not instead of, any other powers of the Court, however conferred.

Subdivision 290-D -- Voluntary undertakings

Table of sections

290-200 Voluntary undertakings

(1) The Commissioner may accept a written undertaking given by an entity for the purposes of this section in connection with furthering the objects of this Division.

(2) The entity may withdraw or vary the undertaking at any time, but only with the consent of the Commissioner.

(3) If the Commissioner considers that the entity that gave the undertaking has breached any of its terms, the Commissioner may apply to the Federal Court of Australia for an order under subsection (4).

(4) If the Court is satisfied that the entity has breached a term of the undertaking, the Court may make one or both of the following orders:

(a) an order directing the entity to comply with that term of the undertaking;

(b) any other order that the Court considers appropriate.

Division 298 -- Machinery provisions for penalties

Subdivision 298-A -- Administrative penalties

Table of sections

298-5 Scope of Subdivision

298-10 Notification of liability

298-15 Due date for penalty

298-20 Remission of penalty

298-25 General interest charge on unpaid penalty

298-30 Assessment of penalties under Division 284

298-5 Scope of Subdivision

This Subdivision applies if:

(a) an administrative penalty is imposed on an entity by another Division in this Part; or

(b) a penalty is imposed on an entity by Subdivision 162-D of the * GST Act; or

(c) an administrative penalty is imposed on an entity by a provision of Subdivision 12-H, Division 16 or section 426-120 in this Schedule.

298-10 Notification of liability

The Commissioner must give written notice to the entity of the entity's liability to pay the penalty and of the reasons why the entity is liable to pay the penalty. The Commissioner may do so in any other notice he or she gives to the entity. The Commissioner is not required to give reasons if he or she decides to remit all of the penalty.

Note: Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons.

298-15 Due date for penalty

The penalty becomes due for payment on the day specified in the notice, which must be at least 14 days after the notice is given to the entity.

Note: For provisions about collection and recovery of the penalty, see Part 4-15.

298-20 Remission of penalty

(1) The Commissioner may remit all or a part of the penalty.

(2) If the Commissioner decides:

(a) not to remit the penalty; or

(b) to remit only part of the penalty;

the Commissioner must give written notice of the decision and the reasons for the decision to the entity.

Note: Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons.

(3) If:

(a) the Commissioner refuses to any extent to remit an amount of penalty; and

(b) the amount of penalty payable after the refusal is more than 2 penalty units; and

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

the entity may object against the decision in the manner set out in Part IVC.

298-25 General interest charge on unpaid penalty

If any of the penalty remains unpaid after it is due, the entity is liable to pay the * general interest charge on the unpaid amount of the penalty for each day in the period that:

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

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

(i) the amount;

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

Note: The general interest charge is worked out under Part IIA.

298-30 Assessment of penalties under Division 284

(1) The Commissioner must make an assessment of the amount of an administrative penalty under Division 284.

(2) An entity that is dissatisfied with such an assessment made about the entity may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953 .

(3) The production of a notice of such an assessment, or of a copy of it certified by or on behalf of the Commissioner, is conclusive evidence of the making of the assessment and of the particulars in it.

(4) Subsection (3) does not apply to proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment.

Subdivision 298-B -- Civil penalties

Table of sections

298-80 Application of Subdivision

298-85 Civil evidence and procedure rules for civil penalty orders

298-90 Civil proceedings after criminal proceedings

298-95 Criminal proceedings during civil proceedings

298-100 Criminal proceedings after civil proceedings

298-105 Evidence given in proceedings for penalty not admissible in criminal proceedings

298-110 Civil double jeopardy

298-80 Application of Subdivision

This Subdivision applies for the purposes of the following provisions (the civil penalty provisions ):

(a) Division 290 of this Schedule (civil penalties for the promotion and implementation of schemes);

(b) Part 5 of the Tax Agent Services Act 2009 (civil penalties for providing tax agent services while unregistered and for certain conduct when providing tax agent services).

298-85 Civil evidence and procedure rules for civil penalty orders

The Federal Court of Australia must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order under the civil penalty provisions.

298-90 Civil proceedings after criminal proceedings

The Court must not make a civil penalty order under the civil penalty provisions against an entity if the entity has been convicted of an offence constituted by conduct that is substantially the same as the conduct in relation to which the civil penalty order would be made.

298-95 Criminal proceedings during civil proceedings

(1) Proceedings for a civil penalty order under the civil penalty provisions against an entity are stayed if:

(a) criminal proceedings are started or have already been started against the entity for an offence; and

(b) the offence is constituted by conduct that is substantially the same as the conduct in relation to which the civil penalty order would be made.

(2) The proceedings for the order may be resumed if the entity is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.

298-100 Criminal proceedings after civil proceedings

Criminal proceedings may be started against an entity for conduct that is substantially the same as conduct in relation to which a civil penalty order under the civil penalty provisions could be made regardless of whether a civil penalty order has been made against the entity.

298-105 Evidence given in proceedings for penalty not admissible in criminal proceedings

Evidence of information given or evidence of production of documents by an entity is not admissible in criminal proceedings against the entity if:

(a) the entity previously gave the evidence or produced the documents in proceedings for a civil penalty order under the civil penalty provisions against the entity (whether or not the order was made); and

(b) the conduct alleged to constitute the offence is substantially the same as the conduct in relation to which the civil penalty order was sought.

However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the entity in the proceedings for the civil penalty order.

298-110 Civil double jeopardy

If an entity is ordered to pay a civil penalty under the civil penalty provisions in respect of particular conduct, the entity is not liable to a civil penalty under some other provision of a * Commonwealth law in respect of that conduct.

Part 4-50 -- Release from particular liabilities

Division 340 -- Commissioner's power in cases of hardship

Guide to Division 340

340-1 What this Division is about

The Commissioner may release you from a particular liability that you have incurred if you are an individual, or a trustee of the estate of a deceased person, and satisfying the liability would cause serious hardship.

Table of sections

Operative provisions

340-5 Release from particular liabilities in cases of serious hardship

340-10 Liabilities to which this section applies

340-15 Commissioner may take action to give effect to a release decision

340-20 Extinguishing your liability to pay a fringe benefits tax instalment if you are released

340-25 Extinguishing your liability to pay a PAYG instalment if you are released

Operative provisions

340-5 Release from particular liabilities in cases of serious hardship

Applying for release

(1) You may apply to the Commissioner to release you, in whole or in part, from a liability of yours if section 340-10 applies to the liability.

(2) The application must be in the * approved form.

(3) The Commissioner may release you, in whole or in part, from the liability if you are an entity specified in the column headed "Entity" of the following table and the condition specified in the column headed "Condition" of the table is satisfied.

Entity and condition
Item	Entity	Condition
1	an individual	you would suffer serious hardship if you were required to satisfy the liability
2	a trustee of the estate of a deceased individual	the dependants of the deceased individual would suffer serious hardship if you were required to satisfy the liability

Effect of the Commissioner's decision

(4) If the Commissioner:

(a) refuses to release you in whole from the liability; or

(b) releases you in part from the liability;

nothing in this section prevents you from making a further application or applications under subsection (1) in relation to the liability.

Notification of the Commissioner's decision

(5) The Commissioner must notify you in writing of the Commissioner's decision within 28 days after making the decision.

(6) A failure to comply with subsection (5) does not affect the validity of the Commissioner's decision.

Objections against the Commissioner's decision

(7) If you are dissatisfied with the Commissioner's decision, you may object against the decision in the manner set out in Part IVC.

340-10 Liabilities to which this section applies

(1) This section applies to a liability if it is a liability of the following kind:

(a) fringe benefits tax;

(b) an instalment of fringe benefits tax;

(d) Medicare levy surcharge;

(e) a * PAYG instalment.

(2) This section also applies to a liability if it is a liability that is specified in the column headed "Liabilities" of the following table and the liability is a liability under a provision or provisions of an Act specified in the column headed "Provision(s)" of the table:

Liabilities and provision(s)
Item	Liabilities	Provision(s)
1	additional tax	(a) section 93 or 112B or Part VIII of the Fringe Benefits Tax Assessment Act 1986 ; or (b) section 163B or subsection 221YDB(1), (1AAA), (1AA) or (1ABA) or Part VII of the Income Tax Assessment Act 1936
2	administrative penalty in relation to fringe benefits tax or * tax	Part 4-25 in this Schedule
3	general interest charge	(a) section 163AA or 170AA, former subsection 204(3) or former subsection 221AZMAA(1), 221AZP(1), 221YD(3) or 221YDB(3) of the Income Tax Assessment Act 1936 ; or (aa) section 5-15 in the Income Tax Assessment Act 1997 ; or (b) section 45-80 or 45-620 or subsection 45-230(2), 45-232(2), 45-235(2) or 45-235(3) in this Schedule
3A	shortfall interest charge	Division 280 in this Schedule
4	interest	section 102AAM of the Income Tax Assessment Act 1936
5	penalty	section 163A of the Income Tax Assessment Act 1936
6	* tax	(a) section 128B of the Income Tax Assessment Act 1936 ; or (b) section 128V of the Income Tax Assessment Act 1936 ; or (c) section 4-1 of the Income Tax Assessment Act 1997 ; or (d) section 840-805 of the Income Tax Assessment Act 1997 ; or (e) section 840-805 of the Income Tax (Transitional Provisions) Act 1997

340-15 Commissioner may take action to give effect to a release decision

(1) If the Commissioner decides to release you from a liability to which section 340-10 applies, the Commissioner may take such action as is necessary to give effect to the decision.

(2) Without limiting subsection (1), the Commissioner may amend an assessment within the meaning of the following provisions:

(a) subsection 6(1) of the Income Tax Assessment Act 1936 ;

(b) subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 ;

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

(3) Subsection (2) does not limit the power of the Commissioner to amend the assessment in accordance with any other provision of the Income Tax Assessment Act 1936 or the Fringe Benefits Tax Assessment Act 1986 .

340-20 Extinguishing your liability to pay a fringe benefits tax instalment if you are released

(1) This section applies if the Commissioner releases you from a liability to pay an instalment of fringe benefits tax.

(2) If your liability to pay the instalment is released in whole, you are taken, for the purposes of Division 2 of Part VII of the Fringe Benefits Tax Assessment Act 1986 , not to be liable to pay the instalment.

Note: This means that for the purposes of section 105 of that Act you are not entitled to a credit for the instalment.

(3) If your liability to pay the instalment is released in part, you are taken, for the purposes of Division 2 of Part VII of the Fringe Benefits Tax Assessment Act 1986 , to be liable to pay the instalment to the extent to which your liability has not been released.

Note: This means that for the purposes of section 105 of that Act you are entitled to a credit for the instalment to the extent to which your liability to pay the instalment has not been released.

340-25 Extinguishing your liability to pay a PAYG instalment if you are released

(1) This section applies if the Commissioner releases you from a liability to pay a * PAYG instalment.

(2) If your liability to pay the instalment is released in whole, you are taken, for the purposes of Division 45 of Part 2-10, not to be liable to pay the instalment.

Note: This means that for the purposes of section 45-30 you are not entitled to a credit for the instalment.

(3) If your liability to pay the instalment is released in part, you are taken, for the purposes of Division 45 of Part 2-10, to be liable to pay the instalment to the extent to which your liability has not been released.

Note: This means that for the purposes of section 45-30 you are entitled to a credit for the instalment to the extent to which your liability to pay the instalment has not been released.

Division 342 -- Commissioner's power relating to proceeds of crime proceedings

Table of Subdivisions

Guide to Division 342

342-A Power to waive right to payment of tax-related liabilities

Guide to Division 342

342-1 What this Division is about

To facilitate the starting, conduct and ending of proceedings under the Proceeds of Crime Act 2002 , the Commissioner may waive the right to payment of certain tax-related liabilities.

Subdivision 342-A -- Power to waive right to payment of tax-related liabilities

Table of sections

342-5 Object of this Subdivision

342-10 Power to waive right to payment of tax-related liability

342-5 Object of this Subdivision

The object of this Subdivision is to facilitate the starting, conduct and ending of proceedings under the Proceeds of Crime Act 2002 by allowing the Commissioner to waive the right to payment of certain liabilities to the Commonwealth arising under * taxation laws.

Note: The Commissioner may also exercise other powers so as to facilitate the starting, conduct and ending of proceedings under the Proceeds of Crime Act 2002 . Examples of those other powers include:

(a) the power under section 255-10 to defer the time a tax-related liability is due and payable; and

(b) the power under section 8AAG to remit general interest charge.

342-10 Power to waive right to payment of tax-related liability

(1) The Commissioner may waive the Commonwealth's right to payment of all or part of a * tax-related liability if the Commissioner is satisfied that:

(a) the waiver will facilitate the starting, conduct or ending (by settlement or otherwise) of proceedings under the Proceeds of Crime Act 2002 ; and

(b) the liability is connected with circumstances associated with the proceedings.

Note: The Commissioner may waive the right to payment only after the liability has arisen, but may do so whether or not the liability is due and payable.

Example: A liability is connected with circumstances associated with the proceedings if the liability arose because of activities constituting an offence to which the proceedings relate.

(2) In deciding whether to waive the right, the Commissioner must consider:

(a) the amount the Commonwealth will forgo as a result of the waiver and the time the Commonwealth could reasonably be expected to receive that amount apart from the waiver; and

(b) the amount the Commonwealth could reasonably be expected to receive as a result of the proceedings and the time the Commonwealth could reasonably be expected to receive that amount.

(3) Subsection (2) does not limit the matters that the Commissioner may consider in making the decision.

Extended operation of this section

(4) This section (except this subsection) applies in relation to a pecuniary liability to the Commonwealth that arises directly under a * taxation law, but is not a * tax-related liability, in the same way as this section applies in relation to a tax-related liability.

Example: This section applies to a civil penalty under Division 290 (which penalises certain conduct involving promotion of schemes) in the same way as this section applies to a tax-related liability.

Chapter 5 -- Administration

Part 5-1 -- The Australian Taxation Office

Division 352 -- Accountability of the Commissioner

Table of Subdivisions

Guide to Division 352

352-A Accountability of the Commissioner in respect of indirect tax laws

Guide to Division 352

352-1 What this Division is about

This Division requires the Commissioner to prepare an annual report on the working of the indirect tax laws.

Subdivision 352-A -- Accountability of the Commissioner in respect of indirect tax laws

Table of sections

352-5 Commissioner must prepare annual report on indirect tax laws

(1) As soon as practicable after 30 June in each year, the Commissioner must prepare and give to the Minister a report on the working of the * indirect tax laws during the year ending on that 30 June.

(2) The report must include a report on any breaches or evasions of the * indirect tax laws that the Commissioner knows about.

(3) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

Division 353 -- Powers to obtain information and evidence

353-10 Commissioner's power

(1) The Commissioner may by notice in writing require you to do all or any of the following:

(a) to give the Commissioner any information that the Commissioner requires for the purpose of:

(i) the application of an * indirect tax law in relation to you or any other entity; or

(ii) the administration or operation of this Schedule (other than Division 340);

(b) to attend and give evidence before the Commissioner, or an individual authorised by the Commissioner, for the purpose of:

(i) the application of an indirect tax law in relation to you or any other entity; or

(ii) the administration or operation of this Schedule (other than Division 340);

(i) the application of an indirect tax law in relation to you or any other entity; or

(ii) the administration or operation of this Schedule.

Note: Failing to comply with a direction can be an offence against section 8C.

(2) The Commissioner may require the information or evidence:

(a) to be given on oath or affirmation; and

(b) to be given orally or in writing.

For that purpose, the Commissioner or the officer may administer an oath or affirmation.

(3) The regulations may prescribe scales of expenses to be allowed to entities required to attend before the Commissioner or the officer.

353-15 Access to premises for the purposes of the indirect tax laws

(1) For the purposes of an * indirect tax law, the Commissioner, or an individual authorised by the Commissioner for the purposes of this section:

(a) may at all reasonable times enter and remain on any land or premises; and

(b) is entitled to full and free access at all reasonable times to any documents, goods or other property; and

(d) may inspect, examine, count, measure, weigh, gauge, test or analyse any goods or other property and, to that end, take samples.

(2) An individual authorised by the Commissioner for the purposes of this section is not entitled to enter or remain on any land or premises if, after having been requested by the occupier to produce proof of his or her authority, the individual does not produce an authority signed by the Commissioner stating that the individual is authorised to exercise powers under this section.

(3) You commit an offence if:

(a) you are the occupier of land or premises; and

(b) an individual enters, or proposes to enter, the land or premises under this section; and

(d) you do not provide the individual with all reasonable facilities and assistance for the effective exercise of powers under this section.

Penalty: 30 penalty units.

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

Note 2: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

(4) Strict liability applies to paragraphs (3)(a) and (c).

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

353-20 Checking status of specifically listed deductible gift recipients

(1) The Commissioner may require a * deductible gift recipient covered by this section to give the Commissioner information or a document that is relevant to the deductible gift recipient's status as a deductible gift recipient. The deductible gift recipient must comply with the requirement.

Note: Failure to comply with this subsection is an offence against section 8C.

(2) If the Commissioner is satisfied of any of the matters set out in subsection (4) in relation to a * deductible gift recipient covered by this section, the Commissioner must, within 28 days, give written notice to the Minister about that fact.

(3) The Minister may only disclose information provided under subsection (2) for a purpose relating to the removal of the name of the * deductible gift recipient from Division 30 of the Income Tax Assessment Act 1997 .

(4) The matters are as follows:

(a) the * deductible gift recipient fails or ceases to use gifts, contributions or money received solely for the principal purpose of the relevant fund, authority or institution;

(b) there is a change in the principal purpose of the relevant fund, authority or institution;

(c) the deductible gift recipient fails or ceases to comply with any rules or conditions made by the Prime Minister or any other Minister relating to the recipient being or becoming a deductible gift recipient.

(5) The requirement in subsection (1):

(a) is to be made by notice in writing to the * deductible gift recipient; and

(b) may ask the deductible gift recipient to give the information in writing; and

(i) the information or document the deductible gift recipient is to give; and

(ii) the period within which the deductible gift recipient is to give the information or document.

The period specified under subparagraph (c)(ii) must end at least 28 days after the notice is given.

(6) This section covers * deductible gift recipients, other than:

(a) an entity or * government entity that is endorsed under Subdivision 30-BA of the Income Tax Assessment Act 1997 as a deductible gift recipient; and

(b) an entity or government entity that is endorsed under that Subdivision as a deductible gift recipient for the operation of a fund, authority or institution.

(7) In a prosecution of a person for an offence against section 8C of this Act because of this section as it applies because of Division 444, it is a defence if the person proves that the person:

(a) did not aid, abet, counsel or procure the act or omission because of which the offence is taken to have been committed; and

(b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission because of which the offence is taken to have been committed.

Division 355 -- Confidentiality of taxpayer information

Table of Subdivisions

Guide to Division 355

355-A Objects and application of Division

355-B Disclosure of protected information by taxation officers

355-C On-disclosure of protected information by other people

355-D Disclosure of protected information that has been unlawfully acquired

355-E Other matters

Guide to Division 355

355-1 What this Division is about

The disclosure of information about the tax affairs of a particular entity is prohibited, except in certain specified circumstances.

Those exceptions are designed having regard to the principle that disclosure of information should be permitted only if the public benefit derived from the disclosure outweighs the entity's privacy.

Note: This Division contains the main circumstances in which protected tax information can be disclosed. A number of other Commonwealth laws also allow for the disclosure of, or access to, such information in limited circumstances. Some of these other laws are as follows:

* sections 32 and 33 of the Auditor-General Act 1997 ;

* section 15 of the Inspector-General of Taxation Act 2003 ;

* section 9 of the Ombudsman Act 1976 ;

* section 44 of the Privacy Act 1988 .

Subdivision 355-A -- Objects and application of Division

Table of sections

355-10 Objects of Division

355-15 Application of Division

355-10 Objects of Division

The objects of this Division are:

(a) to protect the confidentiality of taxpayers' affairs by imposing strict obligations on * taxation officers (and others who acquire protected tax information), and so encourage taxpayers to provide correct information to the Commissioner; and

(b) to facilitate efficient and effective government administration and law enforcement by allowing disclosures of protected tax information for specific, appropriate purposes.

355-15 Application of Division

This Division applies in relation to the following entities in the same way as it applies in relation to * taxation officers:

(a) an entity engaged to provide services relating to the Australian Taxation Office;

(b) an individual employed by, or otherwise performing services for, an entity referred to in paragraph (a);

(i) appointed or employed by, or performing services for, the Commonwealth or an authority of the Commonwealth; and

(ii) performing functions or exercising powers under or for the purposes of a * taxation law.

Subdivision 355-B -- Disclosure of protected information by taxation officers

Guide to Subdivision 355-B

355-20 What this Subdivision is about

The main protection for taxpayer confidentiality is in this Subdivision. It is an offence for taxation officers to disclose tax information that identifies an entity, or is reasonably capable of being used to identify an entity, except in certain specified circumstances.

Table of sections

Operative provisions

355-25 Offence--disclosure of protected information by taxation officers

355-30 Meaning of protected information and taxation officer

355-35 Consent is not a defence

355-40 Generality of Subdivision not limited

355-45 Exception--disclosure of publicly available information

355-50 Exception--disclosure in performing duties

355-55 Exception--disclosure to Ministers

355-60 Limits on disclosure to Ministers

355-65 Exception--disclosure for other government purposes

355-70 Exception--disclosure for law enforcement and related purposes

355-75 Limits on disclosure to courts and tribunals

Operative provisions

355-25 Offence--disclosure of protected information by taxation officers

(1) An entity commits an offence if:

(a) the entity is or was a * taxation officer; and

(b) the entity:

(i) makes a record of information; or

(ii) discloses information to another entity (other than the entity to whom the information relates or an entity covered by subsection (2)) or to a court or tribunal; and

(d) the information was acquired by the first-mentioned entity as a taxation officer.

Penalty: Imprisonment for 2 years.

(2) An entity (the covered entity ) is covered by this subsection in relation to * protected information that relates to another entity (the primary entity ) if:

(a) the covered entity is the primary entity's * registered tax agent or BAS agent; or

(b) the covered entity is a * legal practitioner representing the primary entity in relation to the primary entity's * tax affairs; or

(c) the primary entity is an * incapacitated entity and the covered entity is a * representative of the incapacitated entity; or

(d) the covered entity is the primary entity's * legal personal representative; or

(e) the covered entity is the primary entity's guardian where the primary entity is a minor or suffers from mental incapacity; or

(f) the covered entity and the primary entity are members of the same * consolidated group or * MEC group; or

(g) the covered entity is a representative of the primary entity who has been nominated by the primary entity in the * approved form to act on that entity's behalf with respect to protected information.

355-30 Meaning of protected information and taxation officer

(1) Protected information means information that:

(a) was disclosed or obtained under or for the purposes of a law that was a * taxation law (other than the Tax Agent Services Act 2009 ) when the information was disclosed or obtained; and

(b) relates to the affairs of an entity; and

Note: Tax file numbers do not constitute protected information because they are not, by themselves, reasonably capable of being used to identify an entity. For offences relating to tax file numbers, see Subdivision BA of Division 2 of Part III.

(2) Taxation officer means:

(a) the Commissioner or a Second Commissioner of Taxation; or

(b) an individual appointed or engaged under the Public Service Act 1999 and performing duties in the Australian Taxation Office.

Note: This Division applies to certain other entities as if they were taxation officers: see section 355-15.

355-35 Consent is not a defence

It is not a defence to a prosecution for an offence against section 355-25 that the entity to whom the information relates has consented to:

(a) the making of the record; or

(b) the disclosure of the information.

355-40 Generality of Subdivision not limited

Except as provided by section 355-60, nothing in this Subdivision limits the generality of anything else in it.

Note: This means that each provision in this Subdivision (other than section 355-60) has an independent operation and is not to be interpreted by reference to any other provision within the Subdivision.

355-45 Exception--disclosure of publicly available information

Section 355-25 does not apply if the information was already available to the public (otherwise than as a result of a contravention of section 355-25, 355-155 or 355-265).

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

355-50 Exception--disclosure in performing duties

(1) Section 355-25 does not apply if:

(a) the entity is a * taxation officer; and

(b) the record or disclosure is made in performing the entity's duties as a taxation officer.

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

(2) Without limiting subsection (1), records or disclosures made in performing duties as a * taxation officer include those mentioned in the following table:

Records or disclosures in performing duties
Item	The record is made for or the disclosure is to ...	and the record or disclosure ...
1	any entity, court or tribunal	is for the purpose of administering any * taxation law.
2	any entity, court or tribunal	is for the purpose of the making, or proposed or possible making, of an order under the Proceeds of Crime Act 2002 that is related to a * taxation law.
3	any entity, court or tribunal	is for the purpose of criminal, civil or administrative proceedings (including merits review or judicial review) that are related to a * taxation law.
4	any entity	is for the purpose of responding to a request for a statement of reasons under the Administrative Decisions (Judicial Review) Act 1977 in relation to a decision made under a * taxation law.
5	any entity	is for the purpose of: (a) determining whether to make an ex gratia payment; or (b) administering such a payment; in connection with administering a * taxation law.
6	any entity	is for the purpose of enabling the entity to understand or comply with its obligations under a * taxation law.
7	the Secretary of the Department of the Treasury	(a) is of information that does not include the name, contact details or * ABN of any entity; and (b) is for the purpose of: (i) the design of a * taxation law; or (ii) the amendment of a taxation law.
8	any board or member of a board performing a function or exercising a power under a * taxation law	is for the purpose of performing that function or exercising that power.
9	a competent authority referred to in an international agreement (within the meaning of section 23 of the International Tax Agreements Act 1953 )	is for the purpose of exchanging information under such an international agreement.

355-55 Exception--disclosure to Ministers

(1) Section 355-25 does not apply if:

(a) the entity is a * taxation officer; and

(b) an item in the table in this subsection covers the making of the record or the disclosure; and

(c) if the entity is not the Commissioner, a Second Commissioner or an SES employee or acting SES employee of the Australian Taxation Office--one of the following has agreed that the record or disclosure is covered by the item:

(i) the Commissioner;

(ii) a Second Commissioner;

(iii) an SES employee or acting SES employee of the Australian Taxation Office who is not a direct supervisor of the taxation officer.

Records or disclosures to Ministers
Item	The record is made for or the disclosure is to ...	and the record or disclosure ...
1	any Minister	is for the purpose of enabling the Minister to exercise a power or perform a function under a * taxation law.
2	the Minister	(a) is about an entity; and (b) is for the purpose of enabling the Minister to respond directly to the entity in relation to a representation made by the entity to: (i) the Minister; or (ii) another member of a House of the Parliament.
3	the Minister	is for the purpose of informing decisions made under the scheme known as the Compensation for Detriment Caused by Defective Administration Scheme.
4	the * Finance Minister	is for the purpose of: (a) the making, or possible making, of a payment referred to in section 33 of the Financial Management and Accountability Act 1997 (about act of grace payments) in connection with administering a * taxation law; or (b) the waiver, or possible waiver, of a * tax debt under section 34 of that Act.
5	any Minister	is for the purpose of: (a) determining whether to make an ex gratia payment; or (b) administering such a payment.

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

Note 2: Section 19A of the Acts Interpretation Act 1901 provides that the expression "the Minister", as used in table items 2 and 3, refers to the Minister or Ministers administering the relevant provision.

(2) The * taxation officer is entitled to rely on the exception in subsection (1) even if the agreement referred to in paragraph (1)(c) has not been obtained in relation to the record or disclosure.

355-60 Limits on disclosure to Ministers

(1) Sections 355-45 and 355-55 are the only exceptions to the prohibition in section 355-25 on which an entity who has acquired * protected information as a * taxation officer can rely in making a record of the information for, or disclosing the information to, a Minister, whether or not provided to a Minister in the course of, or for the purposes of or incidental to, the transacting of the business of a House of the Parliament or of a committee of one or both Houses of the Parliament.

Note: Disclosures that are not prohibited by section 355-25 are not affected by this subsection. For example, a taxation officer may disclose information to a Minister if the Minister is the entity to whom the information relates, or is an entity covered by subsection 355-25(2) in relation to the information.

(2) Subsection (1) has effect despite section 16 of the Parliamentary Privileges Act 1987 , and that section does not operate to the extent that it would otherwise apply to a disclosure of * protected information by a * taxation officer to a Minister.

Note: This subsection does not limit the operation of section 16 of the Parliamentary Privileges Act 1987 in any other respect. That section continues to operate, for example, to enable taxation officers to disclose protected information to a committee of one or both Houses of the Parliament.

355-65 Exception--disclosure for other government purposes

(1) Section 355-25 does not apply if:

(a) the entity is a * taxation officer; and

(b) an item in a table in this section covers the making of the record or the disclosure.

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

Table 1--Records or disclosures relating to social welfare, health or safety

(2) Table 1 is as follows:

Table 1: Records or disclosures relating to social welfare, health or safety
Item	The record is made for or the disclosure is to ...	and the record or disclosure ...
1	an Agency Head (within the meaning of the Public Service Act 1999 ) of an agency (within the meaning of that Act) dealing with matters relating to the social security law (within the meaning of subsection 23(17) of the S ocial Security Act 1991 )	is for the purpose of administering that law.
2	the * Health Secretary	is for the purpose of administering any law of the Australian Capital Territory or of the Northern Territory which is administered by the * Health Minister.
3	the Repatriation Commission	is for the purpose of administering any * Commonwealth law relating to pensions.
4	the * Education Secretary or the * Employment Secretary	is for the purpose of administering any * Commonwealth law relating to pensions, allowances or benefits.
5	the * Education Secretary	is for the purpose of administering any * Commonwealth law relating to financial assistance to students.
5A	(a) the * Families Secretary; or (b) the Chief Executive Officer of Centrelink	is for the purpose of administering the Paid Parental Leave Act 2010 .
6	the * Families Secretary or the Chief Executive Centrelink (within the meaning of the Human Services (Centrelink) Act 1997 )	is for the purpose of administering the A New Tax System (Family Assistance) (Administration) Act 1999 .
7	the Child Support Registrar	is for the purpose of administering the Child Support (Registration and Collection) Act 1988 or the Child Support (Assessment) Act 1989 .
8	the Chief Executive Medicare (within the meaning of the Human Services (Medicare) Act 1973 )	is for the purpose of administering Part 2-2 (about premiums reduction and incentive payment schemes) or 6-4 (about administration of those schemes) of the Private Health Insurance Act 2007 .
9	an * Australian government agency	is necessary for the purpose of preventing or lessening: (a) a serious threat to an individual's life, health or safety; or (b) a serious threat to public health or public safety.

Table 2--Records or disclosures relating to superannuation or finance

(3) Table 2 is as follows:

Table 2: Records or disclosures relating to superannuation or finance
Item	The record is made for or the disclosure is to ...	and the record or disclosure ...
1	a financial sector supervisory agency (within the meaning of section 3 of the Australian Prudential Regulation Authority Act 1998 )	(a) is of information that was obtained under or in relation to the Superannuation (Unclaimed Money and Lost Members) Act 1999 ; and (b) is for the purpose of the agency performing any of its functions or exercising any of its powers.
2	(a) an agency having the function, in Australia or in a foreign country, of supervising or regulating * financial institutions; or (b) any other agency (including a foreign agency) specified in the regulations	(a) is of information that was obtained under or in relation to the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 or the Superannuation Industry (Supervision) Act 1993 ; and (b) is for the purpose of performing any of its functions or exercising any of its powers; and (c) is made in accordance with the conditions (if any) imposed by the regulations in relation to the disclosure of information under this item.
3	the Superannuation Complaints Tribunal established by section 6 of the Superannuation (Resolution of Complaints) Act 1993	(a) is of information that was obtained under or in relation to the Superannuation (Unclaimed Money and Lost Members) Act 1999 ; and (b) is for the purpose of the Tribunal performing any of its functions or exercising any of its powers.
4	the Australian Prudential Regulation Authority ( *APRA* )	is for the purpose of administering: (a) the Financial Institutions Supervisory Levies Collection Act 1998 ; or (b) the Superannuation Industry (Supervision) Act 1993 .
5	APRA	(a) is of information that was obtained under or in relation to the Superannuation (Unclaimed Money and Lost Members) Act 1999 ; and (b) is for the purpose of APRA performing any of its functions or exercising any of its powers.
6	APRA	is for the purpose of APRA performing any of its functions or exercising any of its powers in relation to * FHSAs.
7	an individual who is or was an employee (within the meaning of the Superannuation Guarantee (Administration) Act 1992 )	(a) is of information that relates to the Commissioner's response to a complaint by the individual about a failure by the individual's employer or former employer to comply with the employer's obligations under the Superannuation Guarantee (Administration) Act 1992 in relation to the employee; and (b) does not relate to the general financial affairs of the employer.
8	any entity, court or tribunal	is of information that was obtained under, or for the purposes of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 or the Superannuation Industry (Supervision) Act 1993 and is for the purpose of all or any of the following: (a) identifying a particular self-managed superannuation fund; (b) enabling members of the public to contact persons who perform functions in relation to a particular self-managed superannuation fund; (c) enabling the Commissioner to provide an opinion to members of the public as to whether or not a particular self-managed superannuation fund is a complying superannuation fund in relation to a particular income year for the purposes of Division 2 of Part 5 of the Superannuation Industry (Supervision) Act 1993 ; (d) describing activity engaged in, or proposed to be engaged in, by the Commissioner in relation to a breach or suspected breach by a person of a provision of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 or the Superannuation Industry (Supervision) Act 1993 .
9	an approved clearing house (within the meaning of the Superannuation Guarantee (Administration) Act 1992 )	is for the purposes of that body performing its functions in relation to superannuation contributions.

Table 3--Records or disclosures relating to corporate regulation, business, research or policy

(4) Table 3 is as follows:

Table 3: Records or disclosures relating to corporate regulation, business, research or policy
Item	The record is made for or the disclosure is to ...	and the record or disclosure ...
1	the Australian Securities and Investments Commission ( *ASIC* )	is for the purpose of investigation or enforcement activities relating to a provision of a law that: (a) is administered by ASIC; and (b) imposes a pecuniary penalty or creates an offence.
2	ASIC	(a) is of information that was obtained under or in relation to the Superannuation (Unclaimed Money and Lost Members) Act 1999 ; and (b) is for the purpose of ASIC performing any of its functions or exercising any of its powers.
3	ASIC	is of information relating to superannuation and is for the purpose of administering: (a) the Superannuation Industry (Supervision) Act 1993 ; or (b) Chapter 7 of the Corporations Act 2001 (about financial services and markets); or (c) Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001 (about unconscionable conduct and consumer protection in relation to financial services).
4	ASIC	is for the purpose of administering Chapter 5A of the Corporations Act 2001 (relating to deregistration, and transfer of registration, of companies).
5	ASIC	is for the purpose of ASIC performing any of its functions or exercising any of its powers in relation to * FHSAs.
6	Innovation Australia established under section 6 of the Industry Research and Development Act 1986	is for the purpose of administering any * Commonwealth law relating to venture capital.
7	the Secretary of the Department of the Treasury	is for the purpose of briefing the Treasurer in relation to a decision that the Treasurer may make under the Foreign Acquisitions and Takeovers Act 1975 .
8	the Secretary of the Department of the Treasury	(a) is of information that does not include the name, contact details or * ABN of any entity; and (b) is for the purpose of that Department estimating or analysing taxation revenue or estimating the cost of policy proposals.

Table 4--Records or disclosures relating to other taxation matters

(5) Table 4 is as follows:

Table 4: Records or disclosures relating to other taxation matters
Item	The record is made for or the disclosure is to ...	and the record or disclosure ...
1	a State taxation officer, or a Territory taxation officer, within the meaning of subsection 13D(1) of this Act	is for the purpose of administering a * State law or * Territory law relating to taxation, if a State taxation officer or a Territory taxation officer is authorised by law to communicate information obtained under the State law or Territory law to the Commissioner.
2	a State taxation officer, or a Territory taxation officer, within the meaning of subsection 13D(1) of this Act	is of: (a) information obtained under or in relation to the First Home Saver Accounts Act 2008 ; or (b) rental information, residential address information or spousal information; and is for the purpose of administering the First Home Owner Grant Act 2000 of New South Wales, or a similar * State law or * Territory law.
3	the Development Allowance Authority established by section 94 of the Development Allowance Authority Act 1992	is for the purpose of: (a) administering that Act; or (b) Part III of this Act (prosecutions and offences), in so far as that Part applies in relation to the Development Allowance Authority Act 1992 .
4	an individual who holds an office of a State or Territory, being an office prescribed for the purpose of this table item	(a) is of information that relates to alcoholic beverages; and (b) is for the purpose of the individual administering an * arrangement for the rebate, refund or other payment or credit by a State or Territory in respect of alcoholic beverages.

Table 5--Records or disclosures relating to rehabilitation or compensation

(6) Table 5 is as follows:

Table 5: Records or disclosures relating to rehabilitation or compensation
Item	The record is made for or the disclosure is to ...	and the record or disclosure ...
1	an authority of the Commonwealth established under a * Commonwealth law relating to rehabilitation or compensation	is for the purpose of performing any of its functions or exercising any of its powers under that law.
2	the * Defence Secretary	is for the purpose of administering any * Commonwealth law relating to payments in respect of dependants of members of the Defence Force.
3	an authority of a State or Territory that administers a * workers' compensation law	(a) is of information that relates to amounts withheld under Part 2-5 in Schedule 1 to this Act (about PAYG withholding); and (b) is for the purpose of ensuring that employers comply with their obligations relating to insurance or the imposition of a levy under that law.

Table 6--Records or disclosures relating to the environment

(7) Table 6 is as follows:

Table 6: Records or disclosures relating to the environment
Item	The record is made for or the disclosure is to...	and the record or disclosure...
1	the * Environment Secretary	is for the purpose of administering cleaner fuel grants.
2	the * Environment Secretary	is for the purpose of administering product stewardship (oil) benefits.

Table 7--Records or disclosures relating to miscellaneous matters

(8) Table 7 is as follows:

Table 7: Records or disclosures relating to miscellaneous matters
Item	The record is made for or the disclosure is to ...	and the record or disclosure ...
1	the Australian Statistician	is for the purpose of administering the Census and Statistics Act 1905 .
2	the Chief Executive Officer of Customs	is for the purpose of administering a law of customs (within the meaning of the Customs Administration Act 1985 ).
3	the * Immigration Secretary	is for the purpose of assisting in locating persons who are unlawfully in Australia.
4	the * Immigration Secretary	(a) is of information that relates to a holder or former holder of a visa, or an approved sponsor (within the meaning of the Migration Act 1958 ) or former approved sponsor of a person for a visa, whose identity is disclosed to a * taxation officer under section 140V of that Act; and (b) is for a purpose that is relevant to: (i) the exercise of the Minister's powers under Division 3A of Part 2 of that Act or regulations made under that Division; or (ii) the exercise of the Minister's powers under Part 8D of that Act, to the extent that it relates to a contravention of a civil penalty provision in Division 3A of Part 2 of that Act; or (iii) the administration of Division 3A of Part 2 of that Act or regulations made under that Division.
5	the Fair Work Ombudsman (within the meaning of the Fair Work Act 2009 )	(a) is of the fact of an entity's actual or reasonably suspected non-compliance with a * taxation law; and (b) is for the purpose of ensuring the entity's compliance with the Fair Work Act 2009 .
6	the Attorney-General of a State or Territory	(a) is of information that relates to non-compliance of a * ancillary fund or charity with an * Australian law; and (b) is for the purpose of the administration of an Australian law governing trusts and charities.

(9) To avoid doubt, the exception in table item 7 in table 2 in subsection (3) has effect even if at the time the complaint referred to in that item is made it is in dispute or uncertain whether the individual is an employee or former employee of the employer.

355-70 Exception--disclosure for law enforcement and related purposes

(1) Section 355-25 does not apply if:

(a) the entity is the Commissioner or a * taxation officer authorised by the Commissioner to make the record or disclosure; and

(b) an item in the table in this subsection covers the making of the record or the disclosure; and

(i) the Commissioner;

(ii) a Second Commissioner;

(iii) an SES employee or acting SES employee of the Australian Taxation Office who is not a direct supervisor of the taxation officer.

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

Note 2: The Commissioner is required to include in an annual report information about disclosures made under this subsection: see section 3B.

Records or disclosures for law enforcement and related purposes
Item	The record is made for or the disclosure is to ...	and the record or disclosure ...
1	an * authorised law enforcement agency officer, or a court or tribunal	is for the purpose of: (a) investigating a * serious offence; or (b) enforcing a law, the contravention of which is a serious offence; or (c) the making, or proposed or possible making, of a * proceeds of crime order.
2	an * authorised ASIO officer	is for the purpose of performing ASIO's functions under subsection 17(1) of the Australian Security Intelligence Organisation Act 1979 .
3	a * Project Wickenby officer, or a court or tribunal	(a) is for or in connection with a * purpose of the Project Wickenby taskforce; and (b) is made before 1 July 2013, or a later prescribed day.
4	a * taskforce officer of a prescribed taskforce, or a court or tribunal	(a) is for or in connection with a purpose of the prescribed taskforce; and (b) is made within the time limit, if any, prescribed by the regulations.
5	a Royal Commission in respect of which Letters Patent issued by the Governor-General declare that the Royal Commission is a Royal Commission to which this table item applies, or a member of such a Royal Commission	is for the purpose of the Royal Commission conducting its inquiry.
6	one or more of the following bodies: (a) a Royal Commission of a State or a Territory prescribed by the regulations for the purposes of this table item; (b) a commission of inquiry of a State or a Territory prescribed by the regulations for the purposes of this table item; (c) a board of inquiry of a State or a Territory prescribed by the regulations for the purposes of this table item	is for the purpose of: (a) investigating a * serious offence; or (b) enforcing a law, the contravention of which is a serious offence; or (c) the making, or proposed or possible making, of a * proceeds of crime order.

(2A) The * taxation officer is entitled to rely on the exception in subsection (1) even if the agreement referred to in paragraph (1)(c) has not been obtained in relation to the record or disclosure.

Meaning of various terms

(2) Authorised ASIO officer means:

(a) the Director-General of Security holding office under the Australian Security Intelligence Organisation Act 1979 ; or

(b) any other individual employed under paragraph 84(1)(a) or (b) of that Act who has been authorised in writing by the Director-General of Security to perform the functions of an authorised ASIO officer under this Act.

(3) Authorised law enforcement agency officer means:

(a) the head of a * law enforcement agency; or

(b) an officer of a law enforcement agency, or a person engaged by, or otherwise performing services for, a law enforcement agency, authorised in writing by the head of the agency to perform the functions of an authorised law enforcement agency officer under this Act.

(4) Law enforcement agency means:

(a) the Australian Federal Police; or

(b) the police force of a State or Territory; or

(c) the Office of the Director of Public Prosecutions established by section 5 of the Director of Public Prosecutions Act 1983 ; or

(d) the Australian Commission for Law Enforcement Integrity; or

(e) the Australian Crime Commission; or

(f) the Independent Commission Against Corruption established by the Independent Commission Against Corruption Act 1988 of New South Wales; or

(g) the New South Wales Crime Commission; or

(h) the Police Integrity Commission of New South Wales; or

(i) the Office of Police Integrity of Victoria; or

(j) the Crime and Misconduct Commission of Queensland; or

(k) the Corruption and Crime Commission of Western Australia; or

(l) the Australian Securities and Investments Commission.

(5) Proceeds of crime order means:

(a) an order, relating to an entity's commission of a * serious offence, under:

(i) Chapter 2 (about confiscation of property in relation to certain offences) or Division 1 of Part 3-1 (about examination orders) of the Proceeds of Crime Act 2002 ; or

(ii) Part II (about confiscation) or III (about control of property liable to confiscation) of the Proceeds of Crime Act 1987 ; or

(iii) a * State law or * Territory law corresponding to a law referred to in subparagraph (i) or (ii); or

(iv) Division 3 of Part XIII (about recovery of pecuniary penalties for dealings in narcotic goods) of the Customs Act 1901 ; or

(b) an unexplained wealth order (within the meaning of the Proceeds of Crime Act 2002 ); or

(6) An entity is a Project Wickenby officer if the entity:

(a) holds an office in, is employed in, or is performing services for:

(i) a * Project Wickenby taskforce agency; or

(ii) a * Project Wickenby taskforce supporting agency; and

(b) performs duties that relate to a * purpose of the Project Wickenby taskforce.

(7) The following agencies are Project Wickenby taskforce agencies :

(a) the Australian Taxation Office;

(b) the Australian Crime Commission;

(d) the Australian Securities and Investments Commission;

(e) the Office of the Director of Public Prosecutions;

(f) a prescribed agency.

(8) The following agencies are Project Wickenby taskforce supporting agencies :

(a) the Attorney-General's Department;

(b) the Australian Transaction Reports and Analysis Centre;

(d) a prescribed agency.

(9) The purposes of the Project Wickenby taskforce are to:

(a) detect; and

(b) deter; and

(d) enforce the law relating to;

the promotion of or participation in * arrangements of an international character, or purported international character, that relate to one or more of the following:

(e) tax avoidance or evasion;

(f) breaches of laws regulating financial markets and corporations;

(g) criminal activity in the nature of fraud or obtaining benefits by deception (including deceiving investors or creditors);

(h) money laundering;

(i) concealing income or assets.

(10) Serious offence means an offence against an * Australian law that is punishable by imprisonment for a period exceeding 12 months.

(11) An entity is a taskforce officer of a prescribed taskforce if:

(a) the entity holds an office in, is employed in, or is performing services for, an agency in the prescribed taskforce; and

(b) the entity's duties relate to a purpose of the prescribed taskforce.

(12) The regulations may prescribe a taskforce for the purposes of item 4 of the table in subsection (1). A major purpose of the taskforce must be protecting the public finances of Australia.

(13) Without limiting subsection (12), regulations made for the purposes of item 4 of the table in subsection (1) may deal with the following matters:

(a) the purposes of the taskforce;

(b) the agencies in the taskforce.

355-75 Limits on disclosure to courts and tribunals

An entity who is or was a * taxation officer is not to be required to disclose to a court or tribunal * protected information that was acquired by the entity as a taxation officer except where it is necessary to do so for the purpose of carrying into effect the provisions of a * taxation law.

Note: See also section 8ZK of this Act (about protection of witnesses).

Subdivision 355-C -- On-disclosure of protected information by other people

Guide to Subdivision 355-C

355-150 What this Subdivision is about

Someone who is not a taxation officer is prohibited from disclosing protected information, except in certain specified circumstances.

Table of sections

Operative provisions

355-155 Offence--on-disclosure of protected information by other people

355-160 Consent is not a defence

355-165 Generality of Subdivision not limited

355-170 Exception--on-disclosure of publicly available information

355-175 Exception--on-disclosure for original purpose

355-180 Exception--on-disclosure to Ministers in relation to statutory powers or functions

355-185 Exception--on-disclosure in relation to IGIS

355-190 Exception--on-disclosure in relation to ASIO

355-195 Exception--on-disclosure by Royal Commissions

355-200 Exception--records made in compliance with Australian laws

355-205 Limits on on-disclosure to courts or tribunals

355-210 Limits on on-disclosure to Ministers

Operative provisions

355-155 Offence--on-disclosure of protected information by other people

An entity commits an offence if:

(a) the entity:

(i) makes a record of information; or

(ii) discloses information to another entity (other than the entity to whom the information relates or that entity's agent in relation to the information) or to a court or tribunal; and

(b) the information was acquired by the first-mentioned entity under an exception in this Subdivision or in Subdivision 355-B; and

Penalty: Imprisonment for 2 years.

Note: This section also covers information acquired by an entity (other than as a taxation officer) before the commencement of this section under certain repealed or amended provisions: see item 124 of Schedule 2 to the Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010 .

355-160 Consent is not a defence

It is not a defence to a prosecution for an offence against section 355-155 that the entity to whom the information relates has consented to:

(a) the making of the record; or

(b) the disclosure of the information.

355-165 Generality of Subdivision not limited

Except as provided in section 355-210 (about limits on disclosure to Ministers), nothing in this Subdivision limits the generality of anything else in it.

Note: This means that each provision in this Subdivision (other than section 355-210) has an independent operation and is not to be interpreted by reference to any other provision within the Subdivision.

355-170 Exception--on-disclosure of publicly available information

Section 355-155 does not apply if the information was already available to the public (otherwise than as a result of a contravention of section 355-25, 355-155 or 355-265).

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

355-175 Exception--on-disclosure for original purpose

(1) Section 355-155 does not apply if:

(a) the information was originally disclosed under an exception in Subdivision 355-B for a purpose specified in that exception (the original purpose ); and

(b) the information was acquired by the entity under this section or an exception in Subdivision 355-B; and

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

Instances of disclosures in connection with the original purpose

(2) Without limiting subsection (1), a record or disclosure is made by the entity in connection with the original purpose if:

(a) the record is made for, or the disclosure is to, any entity, court or tribunal; and

(b) the record or disclosure is for the purpose of criminal, civil or administrative proceedings (including merits review or judicial review) that are related to the original purpose.

Multiple purposes

(3) Subsection (1) has effect as if a record or disclosure made by the entity for a purpose specified in column 3 of the following table were made in connection with the original purpose:

Records or disclosures for purpose connected with the original purpose
Item	Original purpose	Purpose connected with the original purpose
1	a * purpose of the Project Wickenby taskforce	another purpose of that taskforce.
2	a purpose of a prescribed taskforce	another purpose of that taskforce.
3	one of the purposes specified in column 3 of item 1 of the table in subsection 355-70(1)	the other of those purposes.
4	one of the purposes specified in column 3 of item 6 of the table in subsection 355-70(1)	one of the other purposes specified in column 3 of item 6 of that table.

355-180 Exception--on-disclosure to Ministers in relation to statutory powers or functions

Section 355-155 does not apply if:

(a) the information was originally disclosed under an exception in Subdivision 355-B for a purpose specified in that exception (the original purpose ); and

(b) the record is made for, or the disclosure is to, a Minister who has a statutory power or function in relation to the original purpose; and

(i) decide whether to exercise the power or perform the function; or

(ii) exercise the power or perform the function.

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

355-185 Exception--on-disclosure in relation to IGIS

(1) Section 355-155 does not apply if:

(a) the entity is an * authorised ASIO officer; and

(b) the record is made for, or the disclosure is to, the Inspector-General of Intelligence and Security holding office under the Inspector-General of Intelligence and Security Act 1986 or a member of staff appointed to assist the Inspector-General under that Act; and

(c) the record or disclosure is for the purpose of performing the Inspector-General's, or the member of staff's, duties in relation to ASIO or officers or employees of ASIO.

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

(2) Section 355-155 does not apply if:

(a) the entity is the Inspector-General of Intelligence and Security holding office under the Inspector-General of Intelligence and Security Act 1986 or a member of staff appointed to assist the Inspector-General under that Act; and

(b) the information was acquired by the entity under subsection (1) or this paragraph; and

(c) the record or disclosure is for the purpose of performing the Inspector-General's, or the officer's, duties in relation to ASIO or officers or employees of ASIO.

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

355-190 Exception--on-disclosure in relation to ASIO

(1) Section 355-155 does not apply if:

(a) the entity is an * authorised ASIO officer; and

(b) the record is made for, or the disclosure is to, an officer of a * law enforcement agency; and

(i) investigating a * serious offence; or

(ii) enforcing a law, the contravention of which is a serious offence; or

(iii) the making, or proposed or possible making, of a * proceeds of crime order.

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

(2) Section 355-155 does not apply if:

(a) the entity is an officer of a * law enforcement agency; and

(b) the information was acquired by the entity under subsection (1) or this paragraph; and

(i) investigating a * serious offence; or

(ii) enforcing a law, the contravention of which is a serious offence; or

(iii) the making, or proposed or possible making, of a * proceeds of crime order.

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

355-195 Exception--on-disclosure by Royal Commissions

(1) Section 355-155 does not apply if:

(a) the entity is a member of a Royal Commission to which column 2 of item 5 of the table in subsection 355-70(1) relates; and

(b) the information was acquired by the entity under item 5 of the table in subsection 355-70(1); and

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

Note 2: Section 6P of the Royal Commissions Act 1902 sets out the circumstances in which a Royal Commission covered by that Act may disclose information it acquires in the course of its inquiry.

(2) Section 355-155 does not apply to particular information if the information was disclosed under subsection (1).

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

355-200 Exception--records made in compliance with Australian laws

Section 355-155 does not apply if the record is made in compliance with a requirement of an * Australian law.

Example: The Australian Taxation Office obtains information about an entity from a credit reporting agency by giving a notice under section 264 of the Income Tax Assessment Act 1936 . The agency is not committing an offence under section 355-155 by making a record of the disclosure in the entity's credit information file, as required by subsection 18K(5) of the Privacy Act 1988 .

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

355-205 Limits on on-disclosure to courts or tribunals

An entity is not to be required to disclose to a court or tribunal * protected information that was acquired by the entity under Subdivision 355-B or this Subdivision, except where it is necessary to do so for the purpose of carrying into effect the provisions of a * taxation law.

Note: See also section 8ZK of this Act (about protection of witnesses).

355-210 Limits on on-disclosure to Ministers

(1) Sections 355-170, 355-180 and 355-195 are the only exceptions to the prohibition in section 355-155 on which an entity who has acquired * protected information (otherwise than as a * taxation officer) can rely in making a record of the information for, or disclosing the information to, a Minister, whether or not provided to a Minister in the course of, or for the purposes of or incidental to, the transacting of the business of a House of the Parliament or of a committee of one or both Houses of the Parliament.

Note: Disclosures that are not prohibited by section 355-155 are not affected by this subsection. For example, an entity may disclose information to a Minister if the Minister is the entity to whom the information relates, or is another entity's agent in relation to the information.

Note: This subsection does not limit the operation of section 16 of the Parliamentary Privileges Act 1987 in any other respect. That section continues to operate, for example, to enable an entity to disclose protected information to a committee of one or both Houses of the Parliament.

Subdivision 355-D -- Disclosure of protected information that has been unlawfully acquired

Guide to Subdivision 355-D

355-260 What this Subdivision is about

The disclosure of protected tax information that has been unlawfully acquired is prohibited.

Table of sections

Operative provisions

355-265 Offence--disclosure of protected information acquired in breach of a taxation law

355-270 Exception--disclosure of publicly available information

355-275 Exception--disclosure in relation to a taxation law

355-280 Limits on disclosure to courts and tribunals

Operative provisions

355-265 Offence--disclosure of protected information acquired in breach of a taxation law

An entity commits an offence if:

(a) the entity:

(i) makes a record of information; or

(ii) discloses information to another entity (other than the entity to whom the information relates or that entity's agent in relation to the information) or to a court or tribunal; and

(b) the information is * protected information; and

(c) the information was acquired by the entity in breach of a provision of a * taxation law (including this provision); and

(d) the information was not acquired by the entity as a * taxation officer.

Penalty: Imprisonment for 2 years.

355-270 Exception--disclosure of publicly available information

Section 355-265 does not apply if the information was already available to the public (otherwise than as a result of a contravention of that section, or section 355-25 or 355-155).

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

355-275 Exception--disclosure in relation to a taxation law

Section 355-265 does not apply:

(a) to the extent that the entity's actions are required or permitted by a * taxation law or reasonably necessary in order to comply with an obligation imposed by a taxation law; or

(b) if the record was made for or the information was disclosed:

(i) to a * taxation officer; and

(ii) for a purpose connected with administering a * taxation law.

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

355-280 Limits on disclosure to courts and tribunals

An entity is not to be required to disclose to a court or tribunal * protected information that was acquired by the entity under this Subdivision, except where it is necessary to do so for the purpose of carrying into effect the provisions of a * taxation law.

Note: See also section 8ZK of this Act (about protection of witnesses).

Subdivision 355-E -- Other matters

Guide to Subdivision 355-E

355-320 What this Subdivision is about

The Commissioner may require a taxation officer to make an oath of affirmation to protect information.

The Federal Court has power to grant an injunction restraining an entity from engaging in conduct that would constitute an offence against this Division.

The Commissioner must issue instructions relating to the disclosure of protected tax information.

Table of sections

Operative provisions

355-325 Oath or affirmation to protect information

355-330 Injunctions to prevent contravention of non-disclosure provisions

355-335 Procedures for disclosing protected information

Operative provisions

355-325 Oath or affirmation to protect information

(1) A * taxation officer must, if and when required by the Commissioner to do so, make an oath or affirmation to protect information in accordance with this Division.

(2) The Commissioner may determine, in writing:

(a) the form of the oath or affirmation; and

(b) the manner in which the oath or affirmation must be made.

355-330 Injunctions to prevent contravention of non-disclosure provisions

Injunctions

(1) If an entity has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute an offence against this Division, the Federal Court of Australia may, on the application of the Commissioner, grant an injunction:

(a) restraining the entity from engaging in the conduct; and

(b) if in the court's opinion it is desirable to do so--requiring the entity to do any act or thing.

Interim injunctions

(2) If an application is made to the court for an injunction under subsection (1), the court may, before considering the application, grant an interim injunction restraining an entity from engaging in conduct of the kind referred to in that subsection pending the determination of the application.

Discharge or variation of injunctions

(3) The court may discharge or vary an injunction granted under this section.

Exercise of power to grant injunctions

(4) If an application is made to the court for the grant of an injunction restraining an entity from engaging in conduct of a particular kind, the power of the court to grant the injunction may be exercised:

(a) if the court is satisfied that the entity has engaged in conduct of that kind--whether or not it appears to the court that the entity intends to engage again, or to continue to engage, in conduct of that kind; or

(b) if it appears to the court that, in the event that an injunction is not granted, it is likely that the entity will engage in conduct of that kind--whether or not the entity has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any other entity if the entity engages in conduct of that kind.

(5) The power of the court to grant an injunction requiring an entity to do a particular act or thing may be exercised:

(a) if the court is satisfied that the entity has refused or failed to do that act or thing--whether or not it appears to the court that the entity intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

(b) if it appears to the court that, in the event that an injunction is not granted, it is likely that the entity will refuse or fail to do that act or thing--whether or not the entity has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any other entity if the entity refuses or fails to do that act or thing.

No undertakings as to damages

(6) If the Commissioner makes an application to the court for the grant of an injunction under this section, the court must not require the Commissioner or any other entity, as a condition of the granting of an interim injunction, to give any undertakings as to damages.

Other powers of the court unaffected

(7) The powers conferred on the court under this section are in addition to, and not in derogation of, any other powers of the court, whether conferred by this Act or otherwise.

355-335 Procedures for disclosing protected information

(1) The Commissioner must issue instructions in relation to the procedures to be followed by * taxation officers in disclosing * protected information under the exceptions in sections 355-55 (about disclosures to Ministers), 355-65 (about disclosures for other government purposes) and 355-70 (about disclosures for law enforcement and related purposes).

(2) The instructions must:

(a) be issued within 6 months after the commencement of this section; and

(b) be in writing; and

(d) be published on the Australian Taxation Office website.

(3) The matters are:

(a) the processes to be followed before * protected information can be disclosed by a * taxation officer under the exceptions in sections 355-55, 355-65 and 355-70; and

(b) the processes involved in obtaining and giving the agreement mentioned in paragraphs 355-55(1)(c) and 355-70(1)(c); and

(4) Without limiting subsection 33(3) of the Acts Interpretation Act 1901 , the Commissioner may vary or revoke the instructions.

(5) A failure to comply with the time limit in paragraph (2)(a) does not:

(a) prevent the Commissioner from issuing the instructions after this time; or

(b) affect the validity of the instructions when issued.

(6) A failure to comply with the instructions does not, of itself, mean that a * taxation officer is not entitled to rely on the exceptions in sections 355-55, 355-65 and 355-70.

(7) The instructions are not a legislative instrument.

Division 356 -- General administration of tax laws

Table of Subdivisions

Guide to Division 356

356-A Indirect tax laws

Guide to Division 356

356-1 What this Division is about

This Division gives the Commissioner the general administration of the indirect tax laws.

Subdivision 356-A -- Indirect tax laws

Table of sections

356-5 Commissioner has general administration of indirect tax laws

The Commissioner has the general administration of each * indirect tax law.

Part 5-5 -- Rulings

Division 357 -- Object and common rules

Table of Subdivisions

Guide to Division 357

357-A Object of this Part

357-B Common rules for rulings

Guide to Division 357

357-1 What this Division is about

This Division sets out the object of this Part, and common rules that apply to public, private and oral rulings. (For the rules specific to each of those kinds of ruling, see Divisions 358, 359 and 360.)

A ruling is an expression of the Commissioner's opinion of the way in which a relevant provision applies, or would apply, to you.

A ruling binds the Commissioner if it applies to you and you act in accordance with it. If you do act in accordance with it and the law turns out to be less favourable to you than the ruling provides, you are protected by the ruling from any adverse consequences.

The Division also sets out some other general rules for rulings.

Subdivision 357-A -- Object of this Part

Table of sections

357-5 Object of this Part

(1) The object of this Part is to provide a way for you to find out the Commissioner's view about how certain laws administered by the Commissioner apply to you so that the risks to you of uncertainty when you are self assessing or working out your tax obligations or entitlements are reduced.

(2) This object is achieved by:

(a) making advice in the form of rulings by the Commissioner available on a wide range of matters and to many taxpayers; and

(b) ensuring that the Commissioner provides rulings in a timely manner; and

(d) protecting you from increases in tax and from penalties and interest where you rely on rulings; and

(e) protecting you from decreases in entitlements where you rely on rulings; and

(f) limiting the ways the Commissioner can alter rulings to your detriment; and

(g) giving you protection from interest charges where you rely on other advice from the Commissioner, or on the Commissioner's general administrative practice.

Subdivision 357-B -- Common rules for rulings

Table of sections

Rules for all rulings

357-50 Scope of Division

357-55 The provisions that are relevant for rulings

357-60 When rulings are binding on the Commissioner

357-65 Stopping relying on a ruling

357-70 Commissioner may apply the law if more favourable than the ruling

357-75 Inconsistent rulings

357-80 Contracts for schemes

357-85 Effect on ruling if relevant provision re-enacted

357-90 Validity of ruling not affected by formal defect

Common rules for public and private rulings

357-95 Electronic communications

357-100 Evidence

Common rules for private and oral rulings

357-105 Further information must be sought

357-110 Assumptions in making private or oral ruling

357-115 Additional information provided by applicant

357-120 Commissioner may take into account information from third parties

357-125 Applications and objections not to affect obligations and powers

Rules for all rulings

357-50 Scope of Division

This Division applies to * public rulings, * private rulings and * oral rulings.

357-55 The provisions that are relevant for rulings

Provisions of Acts and regulations of which the Commissioner has the general administration are relevant for rulings if the provisions are about any of the following:

(a) * tax;

(b) Medicare levy;

(d) * franking tax;

(e) * withholding tax;

(f) * mining withholding tax;

(fa) * petroleum resource rent tax;

(fb) * indirect tax;

(fc) * excise duty;

(g) the administration or collection of those taxes, levies and duties;

(h) a grant or benefit mentioned in section 8 of the Product Grants and Benefits Administration Act 2000 , or the administration or payment of such a grant or benefit;

(i) a * net fuel amount, or the administration, collection or payment of a net fuel amount;

(j) a * net amount, or the administration, collection or payment of a net amount;

(k) a * wine tax credit, or the administration or payment of a wine tax credit.

357-60 When rulings are binding on the Commissioner

(1) Subject to subsection (5), a ruling binds the Commissioner in relation to you (whether or not you are aware of the ruling) if:

(a) the ruling applies to you; and

(b) you rely on the ruling by acting (or omitting to act) in accordance with the ruling.

Example 1: A public ruling is expressed to apply to a class of entities in relation to a particular scheme. Tim is a member of that class of entities and he is one of a number of taxpayers who enter into that scheme. The ruling applies to Tim.

Tim relies on the ruling by lodging an income tax return that is in accordance with the ruling.

Under the ruling, Tim's deductions in relation to the scheme are worked out to be a particular amount. Because Tim has relied on the ruling, the Commissioner must use that amount in making Tim's assessment (unless Tim stops relying on the ruling or the law is more favourable to him: see sections 357-65 and 357-70).

Example 2: Cecelia applies for, and obtains, a private ruling that, when she makes a payment in specified circumstances, she would not have to withhold an amount under a relevant provision. Cecelia makes the payment in the circumstances specified in the ruling, so the ruling applies to her.

Cecelia relies on the ruling by not withholding an amount from the payment. The Commissioner must not apply the provision in relation to Cecelia in a way that is inconsistent with the ruling (unless Cecelia stops relying on the ruling or the law is more favourable to her: see sections 357-65 and 357-70).

Example 3: Cathie obtains a private ruling that a type of supply she makes is GST-free. She relies on the ruling by:

(a) giving her customers invoices that show no GST payable on the supplies; and

(b) lodging her GST return on the basis that the supplies are GST-free.

The Commissioner must administer the GST law in relation to Cathie on the basis that the supplies to which the ruling relates are GST-free. This does not apply if Cathie stops relying on the ruling, such as by issuing tax invoices that show GST payable on the supplies: see paragraph (1)(b).

Note 1: A ruling about the amount of tax payable that binds the Commissioner provides protection in relation to that amount. There is no shortfall interest charge or tax shortfall penalty payable in respect of that amount as there can be no shortfall in tax payable.

Note 2: A ruling about the operation of a provision would stop applying to you if the provision is repealed, or is amended to have a different effect. However, if the provision is re-enacted and expresses the same ideas as the old provision, the ruling would still apply: see section 357-85.

(2) You may rely on the ruling at any time unless prevented from doing so by a time limit imposed by a * taxation law. It is not necessary to do so at the first opportunity.

GST rulings

(3) The * GST payable on a * supply or importation is the amount worked out in accordance with a ruling (if any) that:

(a) relates to the GST payable on the supply or importation; and

(b) binds the Commissioner in relation to the supplier or importer.

Note: The ruling will stop affecting the GST payable if the supplier or importer stops relying on the ruling: see paragraph (1)(b).

(4) Subsection (3) does not apply for the purposes of an objection to the ruling under section 359-60.

Indirect tax rulings

(5) An * indirect tax or excise ruling (except to the extent that the ruling relates to an * excise law) binds the Commissioner in relation to:

(a) an entity (the representative entity ) that is:

(i) the * representative member of a * GST group; or

(ii) the * joint venture operator of a * GST joint venture; or

(iii) the * representative of an * incapacitated entity; and

(b) an entity (the member entity ) that is:

(i) a * member of the GST group; or

(ii) a * participant in the GST joint venture; or

(iii) the incapacitated entity;

if, and only if, both the representative entity and the member entity rely on the ruling by acting (or omitting to act) in accordance with the ruling.

(6) Subsection (5) applies if:

(a) the ruling applies to the member entity; and

(b) the ruling relates to what would be:

(i) a liability of the member entity to * indirect tax; or

(ii) an entitlement of the member entity to a credit (other than a * fuel tax credit) under an * indirect tax law; or

(iii) an * increasing adjustment, a * decreasing adjustment, or a luxury car tax adjustment (within the meaning of the * Luxury Car Tax Act), that the member entity has;

if the rules in the indirect tax law relating to * GST groups, * GST joint ventures or * incapacitated entities did not apply; and

(i) if that indirect tax were payable, it would be payable by the representative entity; or

(ii) if there was an entitlement to that credit, it would be an entitlement of the representative entity; or

(iii) if any entity had that adjustment, it would be an adjustment that the representative entity had.

357-65 Stopping relying on a ruling

(1) You can stop relying on a ruling. You do this by acting (or omitting to act) in a way that is not in accordance with the ruling.

Note: There is no penalty for a shortfall resulting from failing to follow a ruling. However, there are penalties for shortfalls resulting from failing to take reasonable care, and from taking a position about a large income tax item that is not reasonably arguable: see Division 284.

(2) You may stop relying on a ruling at any time unless prevented from doing so by a time limit imposed by a * taxation law.

(3) Having stopped relying on a ruling, you may rely on the ruling again unless prevented from doing so by a time limit imposed by a * taxation law.

357-70 Commissioner may apply the law if more favourable than the ruling

(1) The Commissioner may apply a relevant provision to you in the way it would apply if you had not relied on a ruling if:

(a) doing so would produce a more favourable result for you; and

(b) the Commissioner is not prevented from doing so by a time limit imposed by a * taxation law.

(2) The Commissioner does not have a duty to consider whether to apply subsection (1) to you, whether he or she is requested to do so by you or by any other entity.

357-75 Inconsistent rulings

(1) The rules in this table have effect if:

(a) a ruling and a later ruling both apply to you; and

(b) the 2 rulings are inconsistent.

However, the rules in the table only apply to the extent of the inconsistency, and do not apply to * indirect tax or excise rulings.

Inconsistent rulings (other than indirect tax or excise rulings)
Item	If the earlier ruling is:	And the later inconsistent ruling is:	The result is:
1	A * public ruling	Any ruling	You may rely on either ruling.
2	A * private ruling or an * oral ruling	A private ruling or an oral ruling	If you informed the Commissioner about the existence of the earlier ruling when you applied for the later ruling, the earlier ruling is taken not to have been made. Otherwise, the later ruling is taken not to have been made.
3	A * private ruling or an * oral ruling	A * public ruling	The earlier ruling is taken not to have been made if, when the later ruling is made: (a) the income year or other period to which the rulings relate has not begun; and (b) the * scheme to which the rulings relate has not begun to be carried out. Otherwise, you may rely on either ruling.

(1A) If:

(a) 2 inconsistent * indirect tax or excise rulings apply to you; and

(b) the rulings are both * public rulings;

then, to the extent of the inconsistency, you may rely on either of the rulings.

(1B) If:

(a) 2 inconsistent * indirect tax or excise rulings apply to you; and

(b) at least one of the rulings is not a * public ruling;

then, to the extent of the inconsistency:

(i) the time it is made; and

(ii) the time (if any) specified in the ruling as being the time from which it begins to apply; and

(d) the earlier ruling is taken to cease to apply at that later time.

(2) If 3 or more rulings apply to you and the rulings are inconsistent, apply the rules in this section to each combination of 2 rulings in the order in which they were made.

357-80 Contracts for schemes

For the purposes of this Part, if a contract requiring a * scheme has been entered into, the scheme is taken to have begun to be carried out.

357-85 Effect on ruling if relevant provision re-enacted

If:

(a) the Commissioner makes a ruling about a relevant provision (the old provision ); and

(b) that provision is re-enacted or remade (with or without modifications, and whether or not the old provision is repealed);

the ruling is taken also to be a ruling about that provision as re-enacted or remade (the new provision ), but only so far as the new provision expresses the same ideas as the old provision.

Note 1: Section 357-55 specifies the relevant provisions.

Note 2: Ideas in taxation provisions are not necessarily different just because different forms of words are used: see section 15AC of the Acts Interpretation Act 1901 and section 1-3 of the Income Tax Assessment Act 1997 .

357-90 Validity of ruling not affected by formal defect

The validity of a ruling is not affected merely because a provision of this Part relating to the form of the ruling or the procedure for making it has not been complied with.

Common rules for public and private rulings

357-95 Electronic communications

A communication between the Commissioner and another entity made for the purposes of a * public ruling or * private ruling may be made electronically.

357-100 Evidence

The production of:

(a) a * public ruling or * private ruling; or

(b) a document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner, purporting to be a copy of the ruling or of a notice of withdrawal of a public ruling;

is conclusive evidence of the proper making of the ruling, or of the withdrawal of the public ruling.

Common rules for private and oral rulings

357-105 Further information must be sought

(1) If the Commissioner considers that further information is required to make a * private ruling or an * oral ruling, the Commissioner must request the applicant to give that information to him or her.

Note: The Commissioner should make a private ruling within 60 days. However, if the Commissioner requests further information under this section, that period is extended: see subsection 359-50(2).

(2) The Commissioner may decline to make the ruling if the applicant does not give the information to the Commissioner within a reasonable time.

Note: The Commissioner must give the applicant written reasons for declining to make a private ruling: see section 359-35.

357-110 Assumptions in making private or oral ruling

(1) If the Commissioner considers that the correctness of a * private ruling or an * oral ruling would depend on which assumptions were made about a future event or other matter, the Commissioner may:

(a) decline to make the ruling; or

(b) make such of the assumptions as the Commissioner considers to be most appropriate.

(2) Before making the ruling, the Commissioner must:

(a) tell the applicant which assumptions (if any) the Commissioner proposes to make; and

(b) give the applicant a reasonable opportunity to respond.

Note: The Commissioner should make a private ruling within 60 days. However, if the Commissioner tells the applicant about assumptions the Commissioner proposes to make under this section, that period is extended: see subsection 359-50(2).

357-115 Additional information provided by applicant

In considering an application for a * private ruling or an * oral ruling, the Commissioner may take into account additional information provided by the applicant after the application was made (whether in response to a request under section 357-105 or otherwise).

357-120 Commissioner may take into account information from third parties

In making a * private ruling or an * oral ruling, the Commissioner may take into account any relevant information provided by an entity other than the applicant (whenever it was provided) if the Commissioner:

(a) tells the applicant what that information is and that the Commissioner intends to take the information into account; and

(b) gives the applicant a reasonable opportunity to respond before making the ruling.

Note: The Commissioner should make a private ruling within 60 days. However, if the Commissioner tells the applicant about third party information under this section, that period is extended: see subsection 359-50(2).

357-125 Applications and objections not to affect obligations and powers

The fact that you have applied for a * private ruling or an * oral ruling, or have made an objection against a private ruling, does not affect:

(a) your obligation to lodge a return or do anything else; or

(b) the Commissioner's power to make or amend an assessment or do anything else.

Division 358 -- Public rulings

Guide to Division 358

358-1 What this Division is about

A public ruling is an expression of the Commissioner's opinion of the way in which a relevant provision applies, or would apply, to entities generally or a class of entities.

The Commissioner must publish the ruling.

A public ruling may be withdrawn.

Note: Division 357 has some rules that relate to rulings generally.

Table of sections

Making public rulings

358-5 What is a public ruling?

358-10 Application of public rulings

358-15 When a public ruling ceases to apply

Withdrawing public rulings

358-20 Withdrawing public rulings

Making public rulings

358-5 What is a public ruling?

(1) The Commissioner may make a written ruling on the way in which the Commissioner considers a relevant provision applies or would apply to:

(a) entities generally or a class of entities; or

(b) entities generally, or a class of entities, in relation to a class of * schemes; or

Note: Section 357-55 specifies the relevant provisions.

(2) Such a ruling may cover any matter involved in the application of the provision.

(3) Such a ruling is a public ruling if it:

(a) is published; and

(b) states that it is a public ruling.

(4) The Commissioner must publish notice of the making of a * public ruling in the Gazette .

Note: The validity of a ruling is not affected merely because a provision of this Part relating to the form of the ruling or the procedure for making it has not been complied with: see section 357-90.

358-10 Application of public rulings

(1) A * public ruling applies from the time it is published or from such earlier or later time as is specified in the ruling.

(2) A * public ruling, other than an * indirect tax or excise ruling, that relates to a * scheme does not apply to you if the scheme has begun to be carried out when the ruling is published and:

(a) the ruling changes the Commissioner's general administrative practice; and

(b) the ruling is less favourable to you than the practice.

358-15 When a public ruling ceases to apply

(1) A * public ruling may specify the time at which it ceases to apply.

(2) If a * public ruling does not do this, it applies until it is withdrawn.

Withdrawing public rulings

358-20 Withdrawing public rulings

(1) The Commissioner may withdraw a * public ruling, either wholly or to an extent, by publishing notice of the withdrawal.

(2) The withdrawal takes effect from the time specified in the notice. That time must not be before the time the notice is published.

(3) To the extent that a * public ruling, other than an * indirect tax or excise ruling, is withdrawn, it continues to apply to * schemes to which it applied that had begun to be carried out before the withdrawal but does not apply to schemes that begin to be carried out after the withdrawal.

Note: A scheme is taken to have begun to be carried out if a contract requiring the scheme has been entered into: see section 357-80.

(4) The Commissioner must publish notice of the withdrawal of a * public ruling in the Gazette .

Division 359 -- Private rulings

Guide to Division 359

359-1 What this Division is about

A private ruling is an expression of the Commissioner's opinion of the way in which a relevant provision applies, or would apply, to you in relation to a specified scheme. Private rulings are usually made on application by you, your agent or your legal personal representative.

The Commissioner must make the ruling applied for, except in certain cases. If you are entitled to receive a ruling, you can object if the Commissioner takes too long to make it.

The Commissioner must record the ruling in writing and give a copy of it to you. The ruling must include certain details.

If you are dissatisfied with the ruling, you may object to it.

Note: Division 357 has some common rules that affect private rulings.

Table of sections

Private rulings

359-5 Private rulings

359-10 Applying for a private ruling

359-15 Private rulings to be given to applicants

359-20 Private rulings must contain certain details

359-25 Time of application of private rulings

359-30 Ruling for trustee of a trust

359-35 Dealing with applications

359-40 Valuations

359-45 Related rulings

359-50 Delays in making private rulings

359-55 Revised private rulings

359-60 Objections, reviews and appeals relating to private rulings

359-65 Commissioner may consider new information on objection

359-70 Successful objection decision alters ruling

Private rulings

359-5 Private rulings

(1) The Commissioner may, on application, make a written ruling on the way in which the Commissioner considers a relevant provision applies or would apply to you in relation to a specified * scheme. Such a ruling is called a private ruling .

Note: Section 357-55 specifies the relevant provisions.

(2) A * private ruling may cover any matter involved in the application of the provision.

359-10 Applying for a private ruling

(1) You, your * agent or your * legal personal representative may apply to the Commissioner for a * private ruling.

(2) An application for a * private ruling must be made in the * approved form.

(3) You, your * agent or your * legal personal representative may withdraw the application at any time before the ruling is made. The Commissioner must confirm the withdrawal in writing.

359-15 Private rulings to be given to applicants

The Commissioner makes a * private ruling by recording the ruling in writing and giving a copy of it to the applicant. The copy may be given electronically.

359-20 Private rulings must contain certain details

(1) A * private ruling must state that it is a private ruling.

(2) A * private ruling must identify the entity to whom it applies and specify the relevant * scheme and the relevant provision to which it relates.

Note 1: The Commissioner must tell the applicant which assumptions the Commissioner made in making the ruling: see section 357-110.

Note 2: Section 357-55 specifies the relevant provisions.

359-25 Time of application of private rulings

(1) A * private ruling may specify the time from which it begins to apply and the time at which it ceases to apply.

(2) The specified start time, or end time, may be before, when, or after the * private ruling is made and may be determined by reference to a specified event.

(3) A * private ruling that does not specify a start time applies from the time when it is made.

(4) A * private ruling, other than an * indirect tax or excise ruling, that does not specify an end time ceases to apply at the end of the income year or other accounting period in which it started to apply.

Note: A private ruling that:

(a) is an indirect tax or excise ruling; and

(b) does not specify an end time;

continues to apply until it is overridden by a later indirect tax or excise ruling: see subsection 357-75(1B).

359-30 Ruling for trustee of a trust

A * private ruling given to or for the trustee of a trust and relating to the affairs of the trust also applies to:

(a) if the ruling is not an * indirect tax or excise ruling--the beneficiaries of the trust; and

(b) in any case--another trustee who is appointed to replace a trustee.

359-35 Dealing with applications

(1) The Commissioner must comply with an application for a * private ruling and make the ruling. However, this obligation is subject to subsections (2) and (3).

(2) The Commissioner may decline to make a * private ruling if:

(a) the Commissioner considers that making the ruling would prejudice or unduly restrict the administration of a * taxation law; or

(b) the matter sought to be ruled on is already being, or has been, considered by the Commissioner for you.

(3) The Commissioner may also decline to make a * private ruling if the matter sought to be ruled on is how the Commissioner would exercise a power under a relevant provision and the Commissioner has decided or decides whether or not to exercise the power.

Example: Michael applies for a private ruling on the way in which the Commissioner might exercise the Commissioner's discretion under section 255-10 (deferring the payment time). Rather than make the ruling, the Commissioner decides to defer the time at which an amount would otherwise be payable by Michael.

Note: The Commissioner may also decline to make a private ruling if:

(a) the Commissioner has requested the applicant to give further information under section 357-105 and the applicant has not given it to the Commissioner within a reasonable time; or

(b) the Commissioner considers that the correctness of a private ruling would depend on which assumptions were made about a future event or other matter (see section 357-110).

(4) The Commissioner must give the applicant written reasons for declining to make a * private ruling.

359-40 Valuations

(1) If making a * private ruling would require determining the value of any thing, the Commissioner may:

(a) refer the valuation to a valuer; or

(b) refer a valuation provided by the applicant to a valuer for review.

Note: The Commissioner may request further information: see section 357-105.

(2) If the Commissioner refers the valuation to a valuer, the Commissioner must tell the applicant that he or she has done so.

(3) When the valuer has completed its work in relation to the valuation, the Commissioner must tell the applicant that it has done so.

Note: The Commissioner should make a private ruling within 60 days. However, if the Commissioner refers a valuation to a valuer under this section, that period is extended: see subsection 359-50(2).

(4) The Commissioner may charge the applicant an amount in accordance with the regulations for the valuer making or reviewing the valuation.

(5) This section does not apply to a valuation of a gift or contribution for the purposes of Division 30 of the Income Tax Assessment Act 1997 .

359-45 Related rulings

If the Commissioner is making a * private ruling (the first ruling ) you sought on the way in which, in the Commissioner's opinion, a relevant provision applies or would apply to you, the Commissioner may:

(a) make the first ruling a ruling on the way in which another relevant provision applies or would apply to you; or

(b) make an additional private ruling on the way in which:

(i) another relevant provision applies or would apply; or

(ii) a relevant provision applies or would apply to you in relation to a * scheme related to the scheme to which the first ruling applies.

Note: Section 357-55 specifies the relevant provisions.

359-50 Delays in making private rulings

(1) The applicant for a * private ruling may give the Commissioner a written notice requiring him or her to make the ruling if, at the end of 60 days after the application was made, the Commissioner has neither:

(a) made the ruling; nor

(b) told the applicant that the Commissioner has declined to make the ruling.

(2) The 60 day period mentioned in subsection (1) is extended in a circumstance applicable under the table by the extension period applicable to that circumstance. If 2 or more circumstances are applicable, ignore any overlap between the periods of extension.

Extending the 60 day period
Item	If the Commissioner, during the 60 day period:	The 60 day period is extended by the number of days in this period:
1	requests further information under section 357-105	the period starting on the day the information was requested and ending on the day it is received by the Commissioner
2	tells the applicant about assumptions the Commissioner proposes to make under section 357-110	the period starting on the day the Commissioner tells the applicant and ending on the day on which the Commissioner receives the applicant's response about the assumptions
3	tells the applicant about information provided by a third party that the Commissioner proposes to take into account under section 357-120	the period starting on the day the Commissioner tells the applicant and ending on the day on which the Commissioner receives the applicant's response about the information
4	refers a valuation to a valuer under section 359-40	the period starting on the day the Commissioner tells the applicant about the referral and ending on the day on which the Commissioner tells the applicant that the valuer has completed its work in relation to the valuation

(3) The applicant may object, in the manner set out in Part IVC, against the Commissioner's failure to make the ruling if the Commissioner:

(a) does not make the ruling within 30 days of the notice under subsection (1) being given; and

(b) has not otherwise declined to make the ruling by the end of that period.

(4) The applicant must lodge with the objection a draft * private ruling.

359-55 Revised private rulings

(1) The Commissioner may make a revised * private ruling that applies to you if:

(a) the Commissioner had previously made a private ruling that applies to you; and

(b) if the ruling is not an * indirect tax or excise ruling--when the Commissioner makes the revised private ruling:

(i) the * scheme to which the earlier ruling relates has not begun to be carried out; and

(ii) if the earlier ruling relates to an income year or other accounting period--that year or period has not begun.

Note: Your private ruling may be affected by a later inconsistent ruling: see section 357-75.

(2) The Commissioner must give you a copy of the revised * private ruling. The copy may be given electronically.

(3) The Commissioner may make the revised * private ruling whether or not there is an application for the revised ruling.

(4) When the revised * private ruling is made, the ruling in its initial form stops applying to you.

(5) However, if:

(a) the * private ruling is an * indirect tax or excise ruling; and

(b) the revised private ruling specifies the time from which the revision begins to apply (being a time after the time the revision is made);

the ruling in its initial form stops applying to you at the time so specified.

359-60 Objections, reviews and appeals relating to private rulings

(1) You may object against a * private ruling that applies to you in the manner set out in Part IVC if you are dissatisfied with it.

(2) The ruling is taken to be a taxation decision (within the meaning of that Part).

(3) However, you cannot object against a * private ruling if:

(a) there is an assessment for you for the income year or other accounting period to which the ruling relates; or

(b) the ruling relates to * withholding tax or * mining withholding tax that has become due and payable; or

(i) the ruling relates to * excise duty, or another amount, payable in relation to the goods under an * excise law;

(ii) the Commissioner has made a decision about the excise duty, or other amount, payable in relation to those goods;

(iii) the decision is reviewable under an excise law.

359-65 Commissioner may consider new information on objection

(1) In deciding whether to allow (wholly or in part), or to disallow, an objection under Part IVC against a * private ruling, the Commissioner may consider any additional information that the Commissioner did not consider when making the ruling.

(2) For information you do not have, the Commissioner must tell you what the information is and give you a reasonable opportunity to respond before allowing or disallowing the objection.

(3) However, if the Commissioner considers that the additional information is such that the * scheme to which the application related is materially different from the scheme to which the ruling relates:

(a) the Commissioner must request the applicant to make an application for another * private ruling; and

(b) the objection is taken not to have been made.

359-70 Successful objection decision alters ruling

A * private ruling has effect as altered by an objection decision (within the meaning of Part IVC) made by the Commissioner if:

(a) the Commissioner made the decision allowing, wholly or in part, a taxation objection (within the meaning of that Part) against the ruling; and

(b) the period in which an appeal against, or an application for the review of, the decision may be made has ended without such an appeal or application being made.

Note: See sections 14ZZC and 14ZZN for the time limits.

Division 360 -- Oral rulings

Guide to Division 360

360-1 What this Division is about

An oral ruling is an expression of the Commissioner's opinion of the way in which a relevant provision applies, or would apply, to you. Oral rulings are given on oral application by you or your legal personal representative.

Oral rulings can only be given for individuals.

The Commissioner must give the ruling unless he or she considers that the advice you are seeking relates to a business matter or a complex matter.

The Commissioner must give the ruling orally and must give you a registration identifier for the ruling.

Note: Division 357 has some common rules that affect oral rulings.

Table of sections

Oral rulings

360-5 Applying for and making of oral rulings

360-10 Withdrawing an application for an oral ruling

360-15 Commissioner determinations

Oral rulings

360-5 Applying for and making of oral rulings

Applying for oral rulings

(1) If you are an individual, you or your * legal personal representative may apply to the Commissioner for advice on the way in which the Commissioner considers a relevant provision applies or would apply to you in relation to a specified * scheme.

Note: Section 357-55 specifies the relevant provisions.

(2) An application under this section must be made orally and in the manner determined under section 360-15.

(2A) You or your * legal personal representative must not apply for advice under this section in relation to:

(a) an * indirect tax law (other than the * fuel tax law); or

(b) an * excise law.

Making of oral rulings

(3) The Commissioner must give you or your * legal personal representative that advice unless:

(a) the Commissioner considers that the advice sought relates to a * business matter or a complex matter; or

(b) the matter sought to be ruled on is already being, or has been, considered by the Commissioner for you.

That advice is an oral ruling .

Note: The Commissioner may also decline to make an oral ruling if:

(a) the Commissioner has requested you to give further information under section 357-105 and you have not given it to the Commissioner; or

(b) the Commissioner considers that the correctness of an oral ruling would depend on which assumptions were made about a future event or other matter (see section 357-110).

(4) The Commissioner must give that advice orally and in the manner determined under section 360-15. That advice must include a registration identifier for the ruling.

Note: The Commissioner must tell you which assumptions the Commissioner made in making the ruling: see section 357-110.

(5) You are not entitled to receive a written record of that advice.

Note: However, you may be able to apply for a private ruling on the matter under Division 359.

360-10 Withdrawing an application for an oral ruling

(1) You or your * legal personal representative may withdraw an application under section 360-5 before the Commissioner makes the * oral ruling.

(2) The withdrawal must be done orally and in the manner determined under section 360-15.

360-15 Commissioner determinations

The Commissioner must, by writing, determine:

(a) the manner in which oral applications are to be made under section 360-5 or are to be withdrawn; and

(b) the manner in which the Commissioner is to give oral advice under that section.

Division 361 -- Non-ruling advice and general administrative practice

Table of sections

361-5 Non-ruling advice and general administrative practice

(1) You are not liable to pay the * general interest charge or the * shortfall interest charge under a relevant provision to the extent that the charge would relate to a * shortfall amount or a * scheme shortfall amount that was caused by:

(a) you reasonably relying in good faith on:

(i) advice (other than a ruling) given to you or your * agent by the Commissioner; or

(ii) a statement in a publication approved in writing by the Commissioner;

unless the advice, or the statement or publication, is labelled as non-binding; or

(b) you reasonably relying in good faith on the Commissioner's general administrative practice.

Note: Section 357-55 specifies the relevant provisions.

(2) However, subsection (1) does not apply to any * general interest charge accruing more than 21 days after the Commissioner notifies you of the correct position.

Part 5-25 -- Record-keeping and other obligations of taxpayers

Division 382 -- Record-keeping

Table of Subdivisions

Guide to Division 382

382-A Keeping records of indirect tax transactions

382-B Record keeping obligations of deductible gift recipients

Guide to Division 382

382-1 What this Division is about

You are required to keep records of indirect tax transactions in accordance with this Division.

Deductible gift recipients are required to keep records in accordance with this Division.

Subdivision 382-A -- Keeping records of indirect tax transactions

Table of sections

382-5 Keeping records of indirect tax transactions

Records of transactions

(1) You must:

(a) keep records that record and explain all transactions and other acts you engage in that are relevant to a * supply, importation, acquisition, dealing, manufacture or entitlement to which this subsection applies; and

(b) retain those records for at least 5 years after the completion of the transactions or acts to which they relate.

(2) Subsection (1) applies to:

(a) a * taxable supply, * taxable importation, * creditable acquisition or * creditable importation made by you; or

(b) a * supply made by you that is * GST-free or * input taxed; or

(d) any other assessable dealing within the meaning of the * Wine Tax Act made by you; or

(e) your entitlement to a * wine tax credit; or

(f) a * taxable supply of a luxury car, or a * taxable importation of a luxury car, made by you; or

(g) your entitlement to a special credit under the A New Tax System (Goods and Services Tax Transition) Act 1999 or the A New Tax System (Wine Equalisation Tax and Luxury Car Tax Transition) Act 1999 ; or

(h) if you are entitled to a * fuel tax credit for fuel that you acquire, manufacture or import--the acquisition, manufacture or importation; or

(i) if you are liable, as a recipient of a taxable supply, to pay the * GST on a taxable supply because of section 15C of the A New Tax System (Goods and Services Tax Transition) Act 1999 --the taxable supply.

(3) If you give the Commissioner a return that takes into account:

(a) an * input tax credit that is attributable to a * tax period under subsection 29-10(4) of the * GST Act; or

(b) a * fuel tax credit that is attributable to a tax period or * fuel tax return period under subsection 65-5(4) of the Fuel Tax Act 2006 ;

you must:

(c) keep records that record and explain all transactions and other acts you engage in that are relevant to the acquisition or importation in question; and

(d) retain those records for at least 5 years after the return was given to the Commissioner.

Records of elections, choices, estimates, determinations and calculations

(4) If you make any election, choice, estimate, determination or calculation under an * indirect tax law, you must:

(a) keep records containing particulars of:

(i) the election, choice, estimate, determination or calculation; and

(ii) in the case of an estimate, determination or calculation--the basis on which, and the method by which, the estimate, determination or calculation was made; and

(b) retain those records:

(i) if the indirect tax law specifies circumstances in which the election, choice, estimate, determination or calculation ceases to have effect--for at least 5 years after the election, choice, estimate, determination or calculation ceased to have effect; or

(ii) in any other case--for at least 5 years after the election, choice, estimate, determination or calculation was made.

(5) This section requires a record of an * arrangement entered into under section 153-50 of the * GST Act to be kept and retained by the party entering into the arrangement as principal. It does not require such a record to be kept or retained by the party entering into the arrangement as intermediary (within the meaning of that section).

(6) This section requires records of a notice given under subsection 153-65(2) of the * GST Act to be kept and retained by both the entity giving the notice and the entity receiving it.

(7) Without limiting subsection (4), if you choose to apply Division 63 (non-profit sub-entities) of the * GST Act, you must:

(a) keep records that record:

(i) your choice to apply that Division; and

(ii) each branch that is treated as a separate entity for the purposes of the * GST law; and

(iii) each branch that has ceased to be treated as a separate entity for the purposes of the GST law; and

(b) retain those records for at least 5 years after you revoke the choice.

Requirements of records

(8) The records must be:

(a) in English, or readily accessible and easily convertible into English; and

(b) such as to enable your liabilities and entitlements under an * indirect tax law to be readily ascertained.

Offence

(9) An entity commits an offence if:

(a) the entity is required to keep or retain a record under this section; and

(b) the entity does not keep or retain the record in accordance with this section.

Penalty: 30 penalty units.

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

Note 2: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Note 3: Section 288-25 imposes an administrative penalty if an entity does not keep or retain records as required by this section.

(10) Subsection (9) is an offence of strict liability.

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

Defence

(11) Subsection (9) does not apply if:

(a) the Commissioner notifies the entity that the entity does not need to retain the record; or

(b) the entity is a company that has been finally dissolved.

Note: A defendant bears an evidential burden in relation to the matters in subsection (10): see subsection 13.3(3) of the Criminal Code .

(12) For the purposes of section 288-25, this section does not require an entity to retain a record if:

(a) the Commissioner notifies the entity that the entity does not need to retain the record; or

(b) the entity is a company that has been finally dissolved.

Note: Section 288-25 imposes an administrative penalty if an entity does not keep or retain records as required by this section.

Subdivision 382-B -- Record keeping obligations of deductible gift recipients

Table of sections

382-15 Deductible gift recipients to keep records

(1) A * deductible gift recipient must:

(a) keep records that record and explain all transactions and other acts the deductible gift recipient engages in that are relevant to the deductible gift recipient's status as a deductible gift recipient; and

(b) retain those records for at least 5 years after the completion of the transactions or acts to which they relate.

Note 1: Section 288-25 imposes an administrative penalty if an entity does not keep or retain records as required by this section.

Note 2: The Commissioner may request information from certain deductible gift recipients: see sections 353-20 and 426-40.

Requirements of records

(2) The records must be:

(a) in English, or readily accessible and easily convertible into English; and

(b) such as to show that the * deductible gift recipient uses each of the following only for the principal purpose of the fund, authority or institution:

(i) gifts of money or property for that purpose;

(ii) contributions described in item 7 or 8 of the table in section 30-15 of the Income Tax Assessment Act 1997 in relation to a * fund-raising event held for that purpose;

(iii) money received by the deductible gift recipient because of such gifts or contributions.

Exception

(3) For the purposes of section 288-25, this section does not require a * deductible gift recipient to retain a record if:

(a) the Commissioner notifies the deductible gift recipient that the deductible gift recipient does not need to retain the record; or

(b) the deductible gift recipient is a company that has been finally dissolved.

Division 388 -- Requirements about giving material to the Commissioner

Table of Subdivisions

388-A Object of Division

388-B General provisions

Subdivision 388-A -- Object of Division

388-5 Object of Division

The object of this Division is to set out requirements to ensure the integrity and efficiency of giving material to the Commissioner.

Subdivision 388-B -- General provisions

Table of sections

388-50 Approved forms

388-52 Saturdays, Sundays and public holidays

388-55 Commissioner may defer time for lodgment

388-60 Declaration by entity

388-65 Declaration by entity where agent gives document

388-70 Declaration by agent

388-75 Signing declarations

388-80 Electronic notification of BAS amounts

388-85 Truncating amounts

388-50 Approved forms

(1) A return, notice, statement, application or other document under a * taxation law is in the approved form if, and only if:

(a) it is in the form approved in writing by the Commissioner for that kind of return, notice, statement, application or other document; and

(b) it contains a declaration signed by a person or persons as the form requires (see section 388-75); and

(c) it contains the information that the form requires, and any further information, statement or document as the Commissioner requires, whether in the form or otherwise; and

(d) for a return, notice, statement, application or document that is required to be given to the Commissioner--it is given in the manner that the Commissioner requires (which may include electronically).

(1A) Despite subsection (1), a document that satisfies paragraphs (1)(a), (b) and (d) but not paragraph (1)(c) is also in the approved form if it contains the information required by the Commissioner. The Commissioner must specify the requirement in writing.

(2) The Commissioner may combine in the same * approved form more than one return, notice, statement, application or other document.

(3) The Commissioner may approve a different * approved form for different entities.

Example: The Commissioner may require high wealth individuals to lodge a different income tax return to that required to be lodged by an individual whose only income is a salary.

388-52 Saturdays, Sundays and public holidays

Where an * approved form is required to be given to the Commissioner or to another entity by, or on, a day (the lodgment day ) that is not a * business day, the approved form may be given on the first business day after the lodgment day.

388-55 Commissioner may defer time for lodgment

(1) The Commissioner may defer the time within which an * approved form is required to be given to the Commissioner or to another entity.

(2) A deferral under subsection (1) does not defer the time for payment of any amount to the Commissioner.

Note: Section 255-10 allows the Commissioner to defer the time for payment of an amount of a tax-related liability.

388-60 Declaration by entity

If you give a return, notice, statement, application or other document to the Commissioner in the * approved form, you must make a declaration in the approved form that any information in the document is true and correct.

388-65 Declaration by entity where agent gives document

(1) If a return, notice, statement, application or other document of yours is to be given to the Commissioner in the * approved form by an agent on your behalf, you must make a declaration in writing:

(a) stating that you have authorised the agent to give the document to the Commissioner; and

(b) declaring that any information you provided to the agent for the preparation of the document is true and correct.

(2) You must give the declaration to the agent.

(3) You must retain the declaration or a copy of it for:

(a) 5 years after it is made; or

(b) a shorter period determined by the Commissioner in writing for you; or

(3A) A determination under paragraph (3)(c) may specify different periods for different classes of entities.

(4) You must produce the declaration or copy if requested to do so within that period by the Commissioner.

(5) The agent must not give the document to the Commissioner before you make the declaration.

(6) You must sign the declaration.

388-70 Declaration by agent

If an agent gives a return, notice, statement, application or other document to the Commissioner in the * approved form on behalf of another entity, the agent must, if the document so requires, make a declaration in the approved form stating that:

(a) the document has been prepared in accordance with the information supplied by the other entity; and

(b) the agent has received a declaration from the other entity stating that the information provided to the agent is true and correct; and

388-75 Signing declarations

(1) You must sign a declaration in a return, notice, statement, application or other document you give to the Commissioner in paper form.

(2) If your agent gives a return, notice, statement, application or other document to the Commissioner on your behalf in paper form, the document must contain:

(a) if the document so requires--a declaration made by you with your signature; and

(b) if the document so requires--a declaration made by your agent with the agent's signature.

(3) Any return, notice, statement, application or other document of yours that is * lodged electronically:

(a) if you give it to the Commissioner--must contain your declaration (see section 388-60) with your * electronic signature; or

(b) if your agent gives it to the Commissioner--must contain the agent's declaration (see section 388-70) with the agent's electronic signature.

(4) Any return, notice, statement, application or other document of yours that is given by telephone:

(a) if you give it--must contain your * telephone signature; or

(b) if your agent gives it--must contain your agent's telephone signature.

388-80 Electronic notification of BAS amounts

An entity that, under section 31-25 of the * GST Act, chooses or is required to * lodge a * GST return electronically must also electronically notify the Commissioner of all other * BAS amounts whose notification is required on the same day as the GST return (ignoring any extension allowed by the Commissioner under section 31-10 of that Act or a deferral under section 388-55).

388-85 Truncating amounts

If an * approved form that you are required to give the Commissioner specifies that amounts set out in the form are to be expressed in whole dollars, you truncate the amounts to the nearest whole dollar.

Example: Stefan Pty Ltd calculates that its PAYG instalment for a quarter is $8,496.73. Because the approved form requires amounts to be truncated, the amount would be reported in its BAS as $8,496.

Division 390 -- Superannuation reporting

Table of Subdivisions

Guide to Division 390

390-A Contributions statements and roll-over superannuation benefit statements etc.

390-B Statements relating to release authorities

390-C Other statements

Guide to Division 390

390-1 What this Division is about

Superannuation providers must give the Commissioner information about superannuation plans (such as contributions to superannuation plans) periodically.

Superannuation providers are also required to give information about roll-over superannuation benefits paid from superannuation plans.

Note: For requirements for payment summaries in relation to superannuation lump sums, see section 16-165.

Subdivision 390-A -- Contributions statements and roll-over superannuation benefit statements etc.

390-5 Contributions statements

(1) A * superannuation provider in relation to a * superannuation plan must give the Commissioner a statement in relation to contributions (if any) made to the plan in respect of an individual during a period specified in a determination under subsection (6) if:

(a) for a superannuation plan that is a * self managed superannuation fund--either or both of these conditions are satisfied:

(i) the individual held a * superannuation interest in the plan at the end of the period;

(ii) the individual held a superannuation interest in the plan at any time during the period and received one or more * superannuation benefits from the plan during the period; or

(b) for a superannuation plan that is not a self managed superannuation fund:

(i) contributions were made to the plan in respect of the individual during the period; and

(ii) either or both of the conditions in subparagraphs (a)(i) and (ii) are satisfied.

Note 1: Section 286-75 provides an administrative penalty for breach of this subsection.

Note 2: A person may make a complaint to the Superannuation Complaints Tribunal under section 15CA of the Superannuation (Resolution of Complaints) Act 1993 if the person is dissatisfied with a statement given to the Commissioner by a superannuation provider under this section.

(2) Treat the following as contributions for the purposes of this section:

(a) * notional taxed contributions in relation to a * defined benefit interest in the * superannuation plan;

(b) amounts mentioned in subsection 292-25(3) of the Income Tax Assessment Act 1997 allocated by the * superannuation provider in relation to the superannuation plan.

(3) For the purposes of subparagraph (1)(a)(ii), disregard * roll-over superannuation benefits that the individual is taken to receive under section 307-15 of the Income Tax Assessment Act 1997 .

(4) A statement under subsection (1) must be in the * approved form.

(5) The statement must be given to the Commissioner on a day specified in the determination under subsection (6).

Note: Section 388-55 allows the Commissioner to defer the time for giving an approved form.

(6) The Commissioner may determine, by legislative instrument:

(a) the period mentioned in subsection (1); and

(b) the day on which a statement must be given to the Commissioner.

(7) The period specified in the determination:

(a) may be:

(i) all or part of an income year; or

(ii) all or part of a financial year; or

(iii) any other period; and

(b) may be different:

(i) for different kinds of * superannuation provider; and

(ii) in relation to any other matter.

(8) Subsection (7) does not limit the way in which the determination may specify the period.

(9) The * approved form may require the statement to contain the following information:

(a) information relating to the contributions, including the amount and type of the contributions;

(b) if the plan is a * self managed superannuation fund and no contributions were made to the plan in respect of the individual during the period--a statement to that effect.

(10) Subsection (9) does not limit the information that the * approved form may require the statement to contain.

(11) The * approved form may require the statement to contain the * tax file number of:

(a) the * superannuation provider; and

(b) the * superannuation plan; and

(i) the individual has quoted the individual's tax file number to the superannuation provider; or

(ii) a person who made at least some of the contributions has quoted the individual's tax file number to the superannuation provider (and had authority to do so).

390-10 Statements about roll-over superannuation benefits etc.

(1) This section applies if:

(a) a * superannuation provider (the first provider ) in relation to a * superannuation plan (the first plan ) pays a * roll-over superannuation benefit to another superannuation provider in relation to another superannuation plan; or

(b) a superannuation provider (also the first provider ) in relation to a superannuation plan (also the first plan ) pays to another superannuation provider in relation to another superannuation plan a * superannuation benefit (other than a roll-over superannuation benefit) in these circumstances:

(i) the first plan or the other superannuation plan is, or both are, a * non-complying superannuation plan for the income year in which the benefit is paid; or

(ii) the first plan or the other superannuation plan was, or both were, a non-complying superannuation plan for the previous income year.

(2) The first provider in relation to the first plan must:

(a) give the other superannuation provider a statement in relation to the benefit within 7 days after the day on which the benefit is paid; and

(b) give the individual in respect of whom the benefit is paid a statement in relation to the benefit within 30 days after the day on which the benefit is paid.

Note: Section 286-75 provides an administrative penalty for breach of this subsection.

(3) A statement under subsection (2) must be in the * approved form.

Note: Section 388-55 allows the Commissioner to defer the time for giving an approved form.

(4) The * approved form may require the statement to contain the following information:

(a) information relating to contributions made to the first plan in respect of the individual during the period specified in a determination under subsection (5) in which the benefit is paid, to the extent those contributions are reflected in that benefit;

(b) other information relating to the benefit, including the * tax free component, * taxable component, * element taxed in the fund and * element untaxed in the fund (as applicable) of the benefit.

(5) The Commissioner may determine, by legislative instrument, the period mentioned in paragraph (4)(a).

(6) The period specified in the determination:

(a) may be:

(i) all or part of an income year; or

(ii) all or part of a financial year; or

(iii) any other period; and

(b) may be different:

(i) for different kinds of * superannuation provider; and

(ii) in relation to any other matter.

(7) Subsection (6) does not limit the way in which the determination may specify the period.

(8) The * approved form may require the statement to contain different information depending on whether paragraph (1)(a) or (b) applies.

(9) Subsections (4) and (8) do not limit the information that the * approved form may require the statement to contain.

(10) The * approved form may require the statement to contain the * tax file number of:

(a) the first provider; and

(b) the first plan; and

(i) the individual has quoted the individual's tax file number to the first provider; or

(ii) a person who made at least some of the contributions mentioned in paragraph (4)(a) has quoted the individual's tax file number to the first provider (and had authority to do so).

390-15 Superannuation statements to members

(1) An individual, or the trustee of an individual's estate:

(a) may ask a * superannuation provider who has given information in a statement under section 390-5 or 390-10 in relation to the individual to give the individual or the trustee the same information; and

(b) may ask the superannuation provider to give the information in writing.

(2) The * superannuation provider must:

(a) comply with the request within 30 days after receiving the request; and

(b) if the individual or the trustee asked for the information to be given in writing--give the information in the * approved form.

Note 1: Section 286-75 provides an administrative penalty for breach of this subsection.

Note 2: Section 388-55 allows the Commissioner to defer the time for giving an approved form.

(3) Subsection (2) does not apply if the * superannuation provider has given the same information to the individual or the trustee previously (whether or not on request by the individual or trustee).

(4) If the individual or the trustee does not ask for the information to be given in writing, the * superannuation provider may give the information to the individual or trustee in a way that the provider considers appropriate.

Subdivision 390-B -- Statements relating to release authorities

390-65 Statements relating to release authorities

(1) A * superannuation provider in relation to a * superannuation plan must give the Commissioner a statement under this section if the superannuation provider has:

(a) been given a release authority in accordance with section 292-410 of the Income Tax Assessment Act 1997 or section 292-80B of the Income Tax (Transitional Provisions) Act 1997 ; and

(b) paid an amount out of the plan in accordance with the release authority.

Note: Section 286-75 provides an administrative penalty for breach of this subsection.

(2) The statement must be given within 30 days after the amount is paid out of the plan.

(3) A statement under subsection (1) must be in the * approved form.

Note: Section 388-55 allows the Commissioner to defer the time for giving an approved form.

(4) The * approved form must require the statement to contain information relating to the release authority.

(5) The * approved form may require the statement to contain the following information:

(a) the amount paid;

(b) details relating to the * superannuation provider in relation to the * superannuation plan;

(6) Subsection (5) does not limit the information that the * approved form may require the statement to contain.

(7) The * superannuation provider must also give the individual to whom the release authority relates a copy of the statement within 30 days after the amount is paid out of the plan.

Note: Section 286-75 provides an administrative penalty for breach of this subsection.

Summary of withholding payments
Item	Withholding payment	Section
1	A payment of salary etc. to an employee	12-35
2	A payment of remuneration to the director of a company	12-40
3	A payment of salary etc. to an office holder (e.g. a member of the Defence Force)	12-45
3A	a payment to a * religious practitioner	12-47
4	A return to work payment to an individual	12-50
5	A payment that is covered by a voluntary agreement	12-55
6	A payment under a labour hire arrangement or a payment specified by regulations	12-60
7	A * superannuation income stream or an annuity	12-80
8	A * superannuation lump sum or a payment for termination of employment	12-85
9	An unused leave payment	12-90
10	A social security or similar payment (e.g. old age pension)	12-110
11	A Commonwealth education or training payment	12-115
12	A compensation, sickness or accident payment	12-120
13	A payment arising from an investment where the recipient does not quote its tax file number, or in some cases, its ABN	12-140
14	Investor becoming presently entitled to income of a unit trust	12-145
14A	A trustee of a closely held trust distributing an amount from the trust income to a beneficiary, where the beneficiary does not quote its tax file number	12-175
14B	A beneficiary of a closely held trust becoming presently entitled to income of the trust, where the beneficiary does not quote its tax file number	12-180
15	A payment for a supply where the recipient of the payment does not quote its ABN	12-190
16	A dividend payment to an overseas person	12-210
17	A dividend payment received for a foreign resident	12-215
18	An interest payment to an overseas person	12-245
19	An interest payment received for a foreign resident	12-250
20	An interest payment derived by a lender in carrying on business through overseas permanent establishment	12-255
21	A royalty payment to an overseas person	12-280
22	A royalty payment received for a foreign resident	12-285
22A	A departing Australia superannuation payment	12-305
22AA	An * excess untaxed roll-over amount	12-312
22B	A payment (of a kind set out in the regulations) to a foreign resident	12-315
22C	A payment (of a kind set out in the regulations) received for a foreign resident	12-317
23	A mining payment	12-320
24	A natural resource payment	12-325
25	A payment by a managed investment trust	12-385
26	A payment by a * custodian or other entity	12-390

Specific rules for determining priority among withholding provisions
Item	Apply:	Which is about:	In priority to:
1AA	section 12-385 or 12-390	distributions to foreign residents from * managed investment trusts	each other withholding provision
1	section 12-35, 12-40, 12-45, 12-47 or 12-50	a payment for work or services	section 12-60 (payment under a labour hire arrangement or specified by regulations); or section 12-190 (payment for a supply where recipient does not quote its ABN)
1A	section 12-35 or 12-45	a payment for work or services	section 12-47 (a payment to a * religious practitioner)
2	section 12-80, 12-85 or 12-90	a * superannuation benefit, an annuity, a payment for termination of employment or an unused leave payment	section 12-60 (payment under a labour hire arrangement or specified by regulations); or section 12-190 (payment for a supply where recipient does not quote its ABN)
3	section 12-110, 12-115 or 12-120	a payment of benefit or compensation	section 12-60 (payment under a labour hire arrangement or specified by regulations); or section 12-190 (payment for a supply where recipient does not quote its ABN)
4	section 12-60	a payment under a labour hire arrangement or specified by regulations	section 12-190 (payment for a supply where recipient does not quote its ABN)
5	section 12-140 or 12-145	a payment arising from investment where the recipient does not quote tax file number	section 12-175 or 12-180 (Payment of income of closely held trust where TFN not quoted) or section 12-210, 12-215, 12-245, 12-250 or 12-255 (payment of a dividend or interest)
6	section 12-280 or 12-285	a payment of royalty	section 12-325 (natural resource payment)

Payments by * deferred BAS payers
Item	If paragraph (4)(a) applies to the * quarter ending on:	the amount for this quarter must be paid by the end of:
1	30 September	the following 28 October
2	31 December	the following 28 February
3	31 March	the following 28 April
4	30 June	the following 28 July

Payments by large withholders
Item	If the amount is withheld on this day of week:	It must be paid to the Commissioner on or before:
1	Saturday or Sunday	The second Monday after that day
2	Monday or Tuesday	The first Monday after that day
3	Wednesday	The second Thursday after that day
4	Thursday or Friday	The first Thursday after that day

Payments by * deferred BAS payers
Item	If the amount is withheld during the * quarter ending on:	the amount must be paid to the Commissioner by the end of:
1	30 September	the following 28 October
2	31 December	the following 28 February
3	31 March	the following 28 April
4	30 June	the following 28 July

Reviewable decisions
Item	Description
1A	Decision not to grant an exemption under subsection 12-319(1) from withholding obligations in relation to sections 12-315 and 12-317
1	Decision not to give a certificate under subsection 12-335(1) exempting an entity from notifying the Commissioner about a natural resource payment
5	Decision to revoke a certificate under subsection 12-335(3)
10	Decision to vary a certificate under subsection 12-335(3)
25	Refusal to determine under subsection 16-110(1) that a large withholder is a * medium withholder or a * small withholder for a particular month or particular months
30	Refusal to determine under subsection 16-110(1) that a medium withholder is a small withholder for a particular month or particular months
35	Decision to revoke a determination made under subsection 16-110(1)
40	Decision to vary a determination made under subsection 16-110(1) for a particular month or particular months
45	Determination under subsection 16-115(1) that a small withholder is a medium withholder or a large withholder for a particular month or particular months
50	Determination under subsection 16-115(1) that a medium withholder is a large withholder
55	Decision not to revoke a determination made under subsection 16-115(1)
60	Decision not to vary a determination made under subsection 16-115(1) for a particular month or particular months
65	Decision not to refund an amount under section 18-70
70	Decision not to refund an amount under section 18-80

Commonwealth Consolidated Acts

TAXATION ADMINISTRATION ACT 1953 - SCHEDULE 1