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This is a Bill, not an Act. For current law, see the Acts databases.
1998
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
A New Tax
System (Goods and Services Tax Administration) Bill
1998
No. ,
1998
(Treasury)
A Bill
for an Act to implement A New Tax System by providing for the administration of
the goods and services tax, and for related purposes
ISBN: 0642
379459
Contents
A Bill for an Act to implement A New Tax System by
providing for the administration of the goods and services tax, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the A New Tax System (Goods and Services Tax
Administration) Act 1998.
This Act commences on 1 July 2000.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1
Subsection 3C(9) (at the end of the definition of
this Act)
Add “, and does not include Part VI”.
2 At the end of
paragraphs 8C(1)(a) to (d)
Add “or”.
Insert:
or (g) to apply for registration or cancellation of registration under the
A New Tax System (Goods and Services Tax) Act 1998;
Insert:
(pa) paragraph 65(1)(c) of this Act; or
Insert:
(aa) made in a tax invoice, or adjustment note, (within the meaning of the
A New Tax System (Goods and Services Tax) Act 1998) given to the
person;
Insert:
(1AA) The person must lodge the taxation objection against a decision
mentioned in item 1 or 2 of the table in subsection 62(3) of this Act before the
end of whichever of the following ends last:
(a) the 60 days after notice of the decision was served on the
person;
(b) the 4 years after the end of the tax period, or after the importation
of goods, to which the decision relates.
Add:
This Part sets out administrative provisions for the GST and should be read
in conjunction with the A New Tax System (Goods and Services Tax) Act
1998.
Other provisions of this Act can also affect the way the GST is
administered.
Example: It is an offence under section 8C to fail to
notify the Commissioner of a change of address as required by subsection
67(2).
(1) In this Part:
GST Act means the A New Tax System (Goods and Services
Tax) Act 1998.
authorised officer, when used in a particular provision,
means a person the Commissioner has authorised to exercise powers or perform
functions under that provision.
(2) Other expressions in this Part have the same meaning as in the GST
Act.
The Criminal Code applies to all offences against this
Part.
(1) The Commissioner may at any time make an assessment of your net amount
for a tax period.
(2) The Commissioner may at any time make an assessment of the amount of
GST 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 or importation
concerned.
Note: An assessment made under this section is a reviewable
GST decision (see Division 7).
(1) You may request the Commissioner in the approved form to make an
assessment of your net amount for a tax period or of an amount of GST payable by
you on an importation of goods.
(2) The Commissioner must comply with the request if it is made
within:
(a) 4 years after the end of the tax period or the time of the
importation; or
(b) such further period as the Commissioner allows.
(1) Your liability to pay GST, and the time by which a net amount or an
amount of GST must be paid, do not depend on, and are not in any way affected
by, the making of an assessment under this Division.
(2) The Commissioner’s obligation to pay a net amount under section
35-5 of the GST Act, 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
Division.
Note: However, an assessment can be used as evidence of
liability: see section 59.
(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.
The Commissioner may at any time amend an assessment. An amended
assessment is an assessment for all purposes of the GST law.
Note: However, there is a time limit on the recovery of
overpaid or underpaid GST: see sections 35 and 36.
If there is an inconsistency between assessments that relate to the same
tax period or importation of goods, the later assessment prevails to the extent
of the inconsistency.
(1) The Commissioner or a Deputy Commissioner may, in his or her official
name, sue for and recover in a court of competent jurisdiction a net amount or
an amount of GST that remains unpaid after the time by which it must be paid, or
an amount of penalty under this Part.
(2) Section 8ZL (which deals with averments) applies in proceedings for
the recovery of the amount in a corresponding way to the way in which it applies
to a prosecution for a prescribed taxation offence within the meaning of Part
III.
(3) A notice under section 47 that the Commissioner gives to an entity is
prima facie evidence of the matters stated in the notice.
(1) This section applies if an entity must pay 2 or more of any of the
following:
(a) net amounts;
(b) amounts of GST;
(c) amounts of penalty under this Part;
and the total of those amounts is more than a payment that the entity makes
to the Commissioner in respect of one or more of the amounts, or a net amount
under section 35-5 of the GST Act that the Commissioner must pay to the
entity.
(2) The Commissioner may:
(a) apply the payment or amount in partial discharge of the total of the
amounts payable by the entity, in the order in which they became payable unless
the Commissioner determines a different order; and
(b) recover the remaining balance as a debt due to the
Commonwealth.
(3) The Commissioner may do those things despite any direction by or on
behalf of the entity who is liable to pay the amounts or the entity who makes
the payment.
If you pay a net amount, amount of GST or amount of penalty under this
Part for or on behalf of another entity you may:
(a) recover the amount from the other entity as a debt (together with the
cost of recovery) in any court of competent jurisdiction; or
(b) retain or deduct the amount out of money in your hands that belongs
to, or is payable to, the other entity.
(1) If 2 or more entities are jointly liable to pay a net amount, amount
of GST or amount of penalty under this Part, they are each liable for the whole
of the amount.
(2) However, any of them who has paid the amount may recover the following
contribution from any other entity jointly liable to pay the
amount:
where:
interest means:
(a) if the amount is a net amount—interest in the taxable supplies,
creditable acquisitions, creditable importations and acquisitions and
importations of diesel or like fuel from which that amount is worked out;
and
(b) if the amount is an amount of GST—interest in the taxable
importation that gave rise to the amount; and
(c) if the amount is an amount of penalty—interest in the event, or
unsatisfied obligation, that gave rise to the penalty.
(3) The entity entitled to the contribution:
(a) may recover it as a debt in any court of competent jurisdiction;
or
(b) may retain or deduct it out of money in the entity’s hands that
belongs to, or is payable to, the contributor.
(1) This section applies if, at the time of a person’s death, a net
amount or amount of GST that the person must pay has not been paid.
(2) The Commissioner has the same powers and remedies for the assessment
and recovery of the amount from the trustee of the person’s estate as the
Commissioner would have had against the person if he or she were still
alive.
(3) The trustee must provide any GST returns and other information that
the person was required to provide, or would have been required to provide if he
or she had not died. The trustee must also provide any other GST returns or
other information that the Commissioner requires.
(4) If the trustee fails to provide any GST return or other information,
the Commissioner may make an assessment of a net amount or amount of GST in
relation to the deceased person.
Note: An assessment made under this subsection is a
reviewable GST decision (see Division 7).
(5) The trustee is liable to penalty under this Part for an unpaid net
amount or unpaid GST to the same extent as the deceased person would be if he or
she were still alive.
(6) Any amount payable by the trustee is a charge on all of the deceased
person’s estate in the trustee’s hands in priority to any other
encumbrance (other than a charge in relation to a debt payable to the
Commissioner).
(1) This section applies if neither of the following are 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 make an assessment of a net amount or amount of
GST in relation to the deceased person. If the person resided in a State or
Territory at the time of death, the Commissioner must publish notice of the
assessment twice in a daily newspaper circulating in the State or
Territory.
(3) Anyone who:
(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;
and who is dissatisfied with the assessment, may object in the manner set
out in Part IVC. That Part applies in relation to the objection as if the person
were the deceased person.
(1) The Commissioner may direct an entity (the third party)
who owes, or may later owe, money (the available money) to another
entity that has a GST debt (the GST debtor) to pay some or all of
the available money to the Commissioner in accordance with the
direction.
(2) The Commissioner must give a copy of the direction to the GST
debtor.
(3) The direction cannot require an amount to be paid to the Commissioner
at a time before it becomes owing by the third party to the GST
debtor.
(4) The third party is guilty of an offence if the third party fails to
comply with the direction, so far as the third party is able to do so.
Maximum 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.
(5) If an entity is convicted of an offence in relation to a refusal or
failure of the third party to comply with subsection (4), the court may (in
addition to imposing a penalty on the convicted entity) order the convicted
entity to pay to the Commissioner an amount up to the amount involved in the
refusal or failure.
(6) Any payment made by the third party under this section is taken to
have been made with the authority of the GST debtor and of all other entities
concerned, and the third party is indemnified for the payment.
(7) If the whole of the GST debt of the GST debtor is discharged before
any payment is made by the third party, the Commissioner must immediately
withdraw the direction and notify the third party that it has been
withdrawn.
(8) For the purposes of this section, the third party is taken to owe
money to the GST debtor if:
(a) money is due or accruing by the third party to the GST debtor;
or
(b) the third party holds money for or on account of the GST debtor;
or
(c) the third party holds money on account of some other entity for
payment to the GST debtor; or
(d) the third party has authority from some other entity to pay money to
the GST debtor;
even if the payment of the money to the GST debtor is dependent on a
pre-condition that has not been fulfilled.
(9) For the purposes of this section, money that has been paid by an
entity to a building society for the issue of withdrawable shares in the capital
of the society, but has not been repaid, is taken to be:
(a) if the money is repayable on demand—money due by the building
society to the entity;
(b) if the money is not repayable on demand—money that may become
due by the building society to the entity.
(10) In this section:
building society means a society registered or incorporated
as a building society, co-operative housing society or other similar society
under the law in force in a State or Territory.
GST debt means any of the following amounts payable by an
entity (whether or not the amount has become due for payment):
(a) a net amount or amount of GST;
(b) penalty under this Part;
(c) a judgment debt, or costs, for GST or penalty under this
Part;
(d) a fine, or costs, that a court has imposed for an offence against the
GST law;
(e) an amount that a court has ordered the entity to pay to the
Commissioner, following conviction of the entity for an offence against the GST
law.
A net amount or an amount of GST that has not been paid within 4 years
after the time when it became payable by you (together with any relevant penalty
under section 40 for unpaid GST) ceases to be payable at the end of that period,
unless:
(a) within that period the Commissioner has required payment of the amount
by giving a notice to you; or
(b) the Commissioner is satisfied that the payment of the amount was
avoided by fraud or evaded.
You are not entitled to a refund under section 35-5 of the GST Act, an
input tax credit or a diesel fuel credit, that is attributable to a particular
tax period, unless:
(a) within 4 years after the end of the tax period you notify the
Commissioner (in a GST return or otherwise) that you are entitled to the refund
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 or credit;
or
(c) in the case of a credit—the credit is taken into account in
working out a net amount that the Commissioner may recover from you only because
of paragraph 35(b) of this Act.
(1) This section applies to you if:
(a) the Commissioner alters a previous ruling that applied to you;
and
(b) relying on the previous ruling, you have underpaid a net amount or an
amount of GST, or the Commissioner has overpaid an amount under section 35-5 of
the GST Act, in respect of one or more taxable supplies or taxable importations
that happened before the alteration.
(2) Unless the Commissioner is satisfied that you contributed to the
giving, or continuing in force, of the earlier ruling by a misstatement or by
suppressing a material fact:
(a) the underpaid GST ceases to be payable; or
(b) the overpaid amount under section 35-5 of the GST Act is taken to have
been payable in full;
from when the previous ruling was made.
(3) The following rules apply in deciding whether a ruling applies to you,
or whether a ruling has been altered:
(a) a private ruling applies only to the entity to whom it was
given;
(b) so far as a private ruling conflicts with an earlier public ruling,
the private ruling prevails;
(c) so far as a public ruling conflicts with an earlier private ruling,
the public ruling prevails;
(d) an alteration that a later ruling makes to an earlier ruling is
disregarded so far as the alteration results from a change in the law that came
into operation after the earlier ruling was given.
(4) In this section:
private ruling means a ruling given to a particular
entity.
public ruling means a ruling other than a private
ruling.
ruling means any ruling or advice given or published by the
Commissioner, including one that has been previously altered, but not
including:
(a) one given orally; or
(b) an assessment.
(1) The Commissioner may withhold a net amount for a tax period that he or
she must pay to you under section 35-5 of the GST Act, if you have not given the
Commissioner:
(a) a GST return for an earlier tax period that you must give to the
Commissioner; or
(b) a further or fuller GST return for the first-mentioned tax period or
an earlier tax period if the Commissioner has asked you to provide it under
section 31-20 of the GST Act.
(2) The Commissioner must pay the amount within 14 days after you give the
Commissioner the GST return or further or fuller GST return (and no interest is
payable on the amount in the meantime).
(3) However, if the Commissioner makes an assessment of your net amount
for the tax period to which the GST return relates, or further or fuller GST
return relates, at any time before the GST return, or further or fuller GST
return, is given to the Commissioner, he or she must pay the withheld amount to
you when the assessment is made.
Note: The Commissioner may apply the amount against other
liabilities that you have: see subsection 35-5(2) of the GST
Act.
(1) The Commissioner must refund to you:
(a) so much of any net amount or amount of GST as you have overpaid;
and
(b) so much of any net amount that is payable to you under section 35-5 of
the GST Act as the Commissioner has not paid to you.
(2) However, if you have a liability to the Commonwealth under a taxation
law, the Commissioner may:
(a) apply that amount against the liability; and
(b) pay to you any part of that amount not so applied.
(3) The
Commissioner need not give you the refund, or apply the amount under subsection
(2), if:
(a) you overpaid the amount, or the amount was not refunded to you,
because a supply was treated as a taxable supply to any extent; and
(b) the supply is not a taxable supply to that extent (for example,
because it is GST-free);
unless:
(c) the Commissioner is satisfied that you have reimbursed a corresponding
amount to the recipient of the supply; and
(d) the recipient is neither registered nor required to be
registered.
(1) If a net amount or an amount of GST that is payable by you remains
unpaid after the day by which it must be paid, you are liable to a penalty at
the rate of 16% per year on the unpaid amount.
(2) The penalty is calculated from:
(a) the day on which the amount becomes due to be paid, ignoring any
extension of time to pay the amount given by the Commissioner under section
33-20 of the GST Act; or
(b) a later day determined by the Commissioner if the Commissioner has
extended the time to pay the amount, or permitted it to be paid by instalments,
under that section.
(3) The fact that a judgment is entered or given in a court for the
payment of a net amount or amount of GST, or of a composite amount that includes
a net amount or an amount of GST, does not of itself cause the net amount or
amount of GST to stop being unpaid for the purposes of this section.
(4) If the judgment debt bears interest, the penalty payable under this
section is reduced (but not beyond nil) by the following amount:
net amount or GST component means the net amount, or GST,
component of the judgment debt.
If you must pay a net amount by electronic payment under subsection
33-10(2) of the GST Act and you pay it in some other way, you are liable to a
penalty of 5 penalty units.
Note: See
section 4AA of the Crimes Act 1914 for the current
value of a penalty unit.
If you fail to apply for registration, or to apply for cancellation of
registration, as required by the GST Act, you are liable to a penalty of 20
penalty units.
Note: See section 4AA of the Crimes Act 1914 for the
current value of a penalty unit.
(1) You are liable to a penalty if you fail to give the Commissioner on
time a GST return that you are required to give by Division 31 of the GST Act.
The penalty is $10 for each week (or part of a week) in the period
that:
(a) starts on the day by which you must give the GST return to the
Commissioner; and
(b) ends on the day before you give the GST return to the
Commissioner.
However, the penalty for a particular GST return cannot exceed
$200.
(2) You are liable to a penalty if you fail to give the Commissioner on
time any information (other than information you are required to give in a GST
return) on a taxable supply or taxable importation that you are required to give
under the GST law. The penalty is equal to double the amount of GST payable on
the taxable supply or taxable importation.
(3) You are liable to a penalty if:
(a) you fail to give the Commissioner on time any information (other than
information you are required to give in a GST return) on a creditable
acquisition, a creditable importation or an acquisition or importation of diesel
or like fuel for creditable diesel fuel consumption; and
(b) the net amount for the tax period concerned, worked out without
knowing that information, is less than it would be if the information had been
known.
The penalty is equal to double the difference.
(1) If you fail to issue a tax invoice as required by section 29-70 of the
GST Act, you are liable to a penalty of 20 penalty units.
(2) If you fail to issue an adjustment note as required by section 29-75
of the GST Act, you are liable to a penalty of 20 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the
current value of a penalty unit.
An entity is liable to a penalty 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 for the same decreasing adjustment, contrary
to subsection 153-20(2) of that Act.
The penalty is 20 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the
current value of a penalty unit.
(1) You are liable to a penalty if you make a false statement:
(a) to a tax officer; or
(b) to another entity who is not a tax officer, for a purpose in
connection with the operation of the GST law;
(whether or not you know that it is a false statement) and either of these
cases applies:
(c) the net amount or amount of GST properly payable by you, or by the
other entity, exceeds the net amount or amount of GST that would have been
payable if the statement was not false;
(d) the net amount or amount of GST that would have been payable, if the
statement was not false, to you or to the other entity exceeds the net amount or
amount of GST properly payable to you or to the other entity.
(2) The amount of the penalty is double the excess.
(3) In this section:
false statement means a statement (whether made orally, in a
document or in any other way) that:
(a) is false or misleading in a material particular; or
(b) omits any matter or thing without which the statement is misleading in
a material particular;
but does not include a statement made in a document produced under
paragraph 65(1)(c).
tax officer means a person who is exercising powers, or
performing functions, under or in connection with the GST law.
(1) The Commissioner must notify an entity that is liable to a penalty
under this Part (other than a penalty under section 40 for unpaid GST) of the
amount of the penalty.
(2) The notice may be included in any other notice the Commissioner gives
to the entity.
(3) Unless the Commissioner has extended the time to pay the penalty, or
permitted it to be paid by instalments, 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: The Commissioner may extend the time to pay, or allow
payment by instalments, under section 33-20 of the GST Act.
(1) The Commissioner may remit some or all of the penalty that an entity
is liable to under this Part if the Commissioner is satisfied that it is fair
and reasonable to do so.
Note: A refusal to remit an amount of penalty under this
section may be a reviewable GST decision (see Division 7).
(2) The Commissioner must decide whether to do this before notifying the
entity of the amount of the penalty, and state the decision in the
notice.
(3) The Commissioner may also remit penalty under subsection (1) at any
time after giving the notice.
Nothing in this Division makes it an offence to do or omit to do
anything.
Note: However, some of the conduct covered by this Division
might constitute an offence against a provision outside this Division. An entity
that is prosecuted for such an offence is not liable to pay any penalty under
this Division: see section 8ZE.
(1) Obligations that are imposed under the GST law on a partnership are
imposed on each partner, but may be discharged by any of the partners.
(2) The partners are jointly and severally liable to pay any amount that
is payable under the GST law by the partnership.
(3) Any offence against the GST law that is committed by a partnership is
taken to have been committed by each of the partners.
(4) In a prosecution of an entity for an offence that the entity is taken
to have committed because of subsection (3), it is a defence if the entity
proves that the entity:
(a) did not aid, abet, counsel or procure the relevant act or omission;
and
(b) was not 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 entity).
(1) The participants in a GST joint venture are jointly and severally
liable to pay any amount that is payable under the GST law by the joint venture
operator of the joint venture, to the extent that the amount relates to the
joint venture.
(2) Any offence against the GST law that:
(a) is committed by the joint venture operator of a GST joint venture;
and
(b) relates to the joint venture;
is taken to have been committed by each of the participants in the joint
venture.
(3) In a prosecution of a person for an offence that the person is taken
to have committed because of subsection (2), it is a defence if the person
proves that the person:
(a) did not aid, abet, counsel or procure the relevant act or omission;
and
(b) was not 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 person).
(1) Obligations that would be imposed under the GST law on an
unincorporated association or body of persons are imposed on each member of the
committee of management of the association or body, but may be discharged by any
of those members.
(2) Any offence against the GST law that is committed by the association
or body is taken to have been committed by each member of its committee of
management.
(3) In a prosecution of an entity for an offence that the entity is taken
to have committed because of subsection (2), it is a defence if the entity
proves that the entity:
(a) did not aid, abet, counsel or procure the relevant act or omission;
and
(b) was not 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 entity).
(1) The members of a GST group are jointly and severally liable to pay any
amount that is payable under the GST law by the representative member of the
group.
(2) Any offence against the GST law that is committed by the
representative member of a GST group is taken to have been committed by each of
the members of the group.
(3) In a prosecution of an entity for an offence that the entity is taken
to have committed because of subsection (2), it is a defence if the entity
proves that the entity:
(a) did not aid, abet, counsel or procure the relevant act or omission;
and
(b) was not 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 entity).
(1) If there are 2 or more representatives of the same incapacitated
entity, the representatives are jointly and severally liable to pay any amount
that is payable under the GST law by any of the representatives in relation to
that same incapacitated entity.
(2) If there are 2 or more representatives of the same incapacitated
entity, any offence against the GST law that is committed by one of the
representatives is taken to have been committed by each of the
representatives.
(3) In a prosecution of a person for an offence that the person is taken
to have committed because of subsection (2), it is a defence if the person
proves that the person:
(a) did not aid, abet, counsel or procure the relevant act or omission;
and
(b) was not 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 person).
(1) This section applies to a person (the asset holder)
who:
(a) becomes a liquidator of a company; or
(b) in the capacity of a receiver, or a receiver and manager, for
debenture holders of a company, takes possession of assets of the
company.
(2) The asset holder must, within 14 days after becoming liquidator or
taking possession of the assets, give written notice of that fact to the
Commissioner.
(3) The Commissioner must as soon as practicable notify the asset holder
of the amount (the notified GST amount) that the Commissioner
considers is enough to cover any net amount, amount of GST and penalty under
this Part that the company is liable to pay or may become liable to
pay.
(4) The asset holder must not, without the Commissioner’s
permission, part with any of the company’s assets before receiving the
notice from the Commissioner. However, this does not prevent the asset holder
from parting with the company’s assets to pay debts of the company that
are not ordinary debts.
(5) After receiving the Commissioner’s notice, the asset holder must
set aside, out of the assets available for paying the company’s ordinary
debts, assets with a value calculated using the following formula: 
where:
notified other taxes means the total of any amounts that the
Commissioner has notified in relation to the company under another section of
this Act, or a section of another Act, that corresponds to this
section.
(6) The asset holder is liable as trustee to pay the net amounts, amounts
of GST and penalties under this Part payable by the company, to the extent of
the value of assets that the asset holder is required to set aside.
(7) If the asset holder contravenes this section or fails as trustee to
pay the net amounts, amounts of GST or penalties for which the asset holder is
liable under subsection (6), the asset holder:
(a) is personally liable to pay the net amounts, amounts of GST or
penalties, to the extent of the value of the assets that the asset holder is
required to set aside under subsection (5); and
(b) is guilty of an offence punishable on conviction by a fine of no more
than 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.
(8) This section does not reduce any obligation or liability of the asset
holder that arises outside this section.
(9) In this section:
ordinary debt means a debt that is unsecured and is not
required, by a law of the Commonwealth or of a State or Territory, to be paid in
priority to some or all of the company’s other debts.
(1) The person who is the public officer of a company for the purposes of
the Income Tax Assessment Act 1936 is also the public officer of the
company for the purposes of the GST law. The public officer’s address for
service under that Act is also the public officer’s address for service
for the same purposes.
(2) The public officer is answerable for doing everything required to be
done by the company under the GST law, and in case of default is liable to the
same penalties.
(3) A proceeding under the GST law that is brought against the public
officer is taken to have been brought against the company, and the company is
liable jointly with the public officer for any penalty imposed on the public
officer.
(4) Everything done by the public officer that the public officer is
required to do in that capacity is taken to have been done by the
company.
(5) Service of a notice or other document on the public officer or at the
public officer’s address for service is sufficient service on the company
for the purposes of the GST law. If at any time there is no public officer,
service on a person who is acting or appears to be acting in the business of the
company is sufficient.
(6) This section does not, by implication, reduce any of the obligations
or liabilities of the company.
(1) Any notice, process or proceeding that may be given to, served on or
taken against a company or its public officer under the GST law may, if the
Commissioner considers it appropriate, be given to, served on, or taken against
an entity (the representative) who is:
(a) a director, secretary or other officer of the company; or
(b) an attorney or agent of the company.
(2) The representative has the same liability in respect of the notice,
process or proceeding as the company or public officer would have had if it had
been given to, served on or taken against the company or public
officer.
(3) This section does not, by implication, reduce any of the obligations
or liabilities of the company or public officer.
(1) This section applies to an agent for a non-resident principal who is
affected by the GST law and has instructed the agent to wind up so much of the
principal’s business as is carried on in Australia.
(2) The agent must give written notice to the Commissioner of the
instruction, within 14 days after receiving the instruction.
(3) The Commissioner must as soon as practicable notify the agent of the
amount that the Commissioner considers is enough to cover any net amount, amount
of GST and penalty under this Part that the principal is liable to pay or may
become liable to pay.
(4) The agent must not (without the Commissioner’s permission) part
with any of the assets of the principal before receiving the
Commissioner’s notice.
(5) After receiving the Commissioner’s notice, the agent must set
aside, out of the assets available for paying the net amounts, amounts of GST
and penalties under this Part, assets to the value of the amount notified, or
the whole of the assets so available if they are less than that value.
(6) The agent is liable as trustee to pay the net amounts, amounts of GST
and penalties under this Part payable by the principal, to the extent of the
value of assets that the agent is required to set aside.
(7) If the agent contravenes this section or fails as trustee to pay the
net amounts, amounts of GST or penalties for which the agent is liable under
subsection (6), the agent:
(a) is personally liable to pay the net amounts, amounts of GST or
penalties, to the extent of the value of the assets that the agent is required
to set aside under subsection (5); and
(b) is guilty of an offence punishable on conviction by a fine of no more
than 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.
(8) If 2 or more agents are instructed by the same principal to wind up
the business, the obligations and liabilities under this section apply to all of
those agents jointly.
(9) In a prosecution of an entity for an offence that the entity is taken
to have committed because of subsection (8), it is a defence if the entity
proves that the entity:
(a) did not aid, abet, counsel or procure the relevant act or omission;
and
(b) was not 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 entity).
(10) This section does not reduce any obligation or liability of the agent
that arises outside this section.
The production of a notice of assessment under this Part or of a
declaration under section 165-40 or subsection 165-45(3) of the GST Act is
conclusive evidence:
(a) that the assessment or declaration was properly made; and
(b) except in proceedings under Part IVC on a review or appeal relating to
the assessment or declaration—that the amounts and particulars in the
assessment or declaration are correct.
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 the GST law (whether to or by the Commissioner) is
prima facie evidence:
(a) that the amount is payable from that time; and
(b) the particulars stated in the certificate are correct.
(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 the GST 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.
(1) If you are dissatisfied with a reviewable GST decision relating to
you, you may object against the decision in the manner set out in Part
IVC.
Note: Subsection (2) lists reviewable GST decisions under
the GST Act and subsection (3) lists reviewable GST decisions under this
Part.
(2) Each of the following decisions is a reviewable GST
decision under the GST Act:
|
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 |
deciding the date on which the cancellation of your registration takes
effect |
section 25-60 |
|
7 |
determining that the tax periods that apply to you are each individual
calendar month |
subsection 27-15(1) |
|
8 |
deciding the date of effect of a determination |
subsection 27-15(2) |
|
9 |
refusing to revoke a determination under section 27-10 |
subsection 27-25(1) |
|
10 |
deciding the date of effect of a revocation |
subsection 27-25(2) |
|
11 |
determining that a specified period is a tax period that applies to
you |
section 27-30 |
|
12 |
refusing to permit you to account on a cash basis |
subsection 29-45(1) |
|
13 |
deciding the date of effect of your permission to account on a cash
basis |
subsection 29-45(2) |
|
14 |
revoking your permission to account on a cash basis |
subsection 29-50(3) |
|
15 |
deciding the date of effect of the revocation of your permission to account
on a cash basis |
subsection 29-50(4) |
|
16 |
refusing an application for approval |
section 48-5 |
|
17 |
refusing an application for approval or revocation |
subsection 48-70(1) |
|
18 |
revoking an approval under Division 410 |
subsection 48-70(2) |
|
19 |
refusing an application for revocation |
subsection 48-75(1) |
|
20 |
revoking the approval of a GST group |
subsection 48-75(2) |
|
21 |
deciding the date of effect of any approval, or any revocation of an
approval, under Division 410 |
section 48-85 |
|
22 |
refusing an application for approval |
section 51-5 |
|
23 |
refusing an application for approval or revocation |
subsection 51-70(1) |
|
24 |
revoking an approval under Division 411 |
subsection 51-70(2) |
|
25 |
refusing an application for revocation |
subsection 51-75(1) |
|
26 |
revoking the approval of a GST joint venture |
subsection 51-75(2) |
|
27 |
deciding the date of effect of any approval, or any revocation of an
approval, under Division 411 |
section 51-85 |
|
28 |
cancelling the registration of an Australian resident agent |
subsection 57-25(1) |
|
29 |
cancelling the registration of a representative of an incapacitated
entity |
subsection 147-10(1) |
|
30 |
refusing an application for registration |
section 54-5 |
|
31 |
deciding the date of effect of registration as a GST branch |
section 54-10 |
|
32 |
refusing to cancel the registration of a GST branch |
subsection 54-75(1) |
|
33 |
cancelling the registration of a GST branch |
subsection 54-75(2) |
|
34 |
deciding the date of effect of the cancellation of the registration of a
GST branch |
section 54-80 |
|
35 |
making a declaration to negate a GST benefit |
section 165-40 |
|
36 |
making a declaration to negate or reduce a GST disadvantage |
subsection 165-45(3) |
|
37 |
deciding whether to grant a request for a declaration to negate or reduce a
GST disadvantage |
subsection 165-45(5) |
(3) Each of the following decisions is a reviewable GST
decision under this Part:
|
Reviewable GST decisions under this Part |
||
|---|---|---|
|
Item |
Decision |
Provision of this Part under which decision is made |
|
1 |
making an assessment |
section 22 |
|
2 |
making an assessment where there is a trustee of a deceased
estate |
subsection 32(4) |
|
3 |
refusing to any extent to remit an amount of penalty (other than penalty
under section 40 for unpaid GST), but only if the amount of penalty payable
after the refusal is more than $200 |
subsection 48(1) |
Note: In cases where there is an unadministered deceased
estate, certain persons may object against an assessment made in relation to the
deceased person: see subsection 33(3).
The Commissioner has the general administration of the GST law.
(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 GST law
during the year ending on that 30 June.
(2) The report must include a report on any breaches or evasions of the
GST law 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.
(1) The Commissioner may direct a person to do all or any of the
following:
(a) to give the Commissioner any information that the Commissioner
requires;
(b) to attend and give evidence before the Commissioner or an authorised
officer;
(c) to produce to the Commissioner any documents in the custody or under
the control of the person;
for the purpose of enabling the Commissioner to apply the GST law in
relation to the person or any other person.
Note: Failing to comply with a direction can be an offence
against section 8C.
(2) The Commissioner may direct that:
(a) the information or answers to questions be given either orally or in
writing (as the Commissioner requires); or
(b) the information or answers to questions be verified or given on oath
or affirmation.
(3) The Commissioner or an authorised officer may administer the oath or
affirmation.
(4) The regulations may prescribe scales of expenses to be allowed to
persons who are required to attend under this section.
(1) For the purposes of the GST law, an authorised officer:
(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
(c) may inspect, examine, make copies of, or take extracts from, any
documents; 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 authorised officer 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 officer does not produce an authority signed by the
Commissioner stating that the officer is authorised to exercise powers under
this section.
(3) If an authorised officer enters, or proposes to enter, land or
premises under this section, the occupier must provide the officer with all
reasonable facilities and assistance for the effective exercise of powers under
this section.
(4) An occupier who contravenes subsection (3) is guilty of an
offence.
Maximum 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.
(1) An entity’s address for service for the purposes of the GST law
is:
(a) if the entity is registered in the Australian Business
Register—the address shown in the Register as the entity’s address
for service; or
(b) if the entity is not registered in that Register—the address
last notified by the entity in a GST return, application for registration or any
other document under the GST law; or
(c) if the entity has not notified an address in a GST return, application
or other document under the GST law—the entity’s Australian place of
business or residence last known to the Commissioner; or
(d) any other address that the Commissioner reasonably believes to be the
entity’s address for service.
Note: In the case of a company, see also section
56.
(2) If an entity that is liable to pay GST changes its address for
service, the entity must notify the Commissioner in writing of the new address
within 28 days after the change.
(3) If an entity on whom a notice or other document must be served under
the GST law, or in proceedings for recovery of a net amount, amount of GST or
penalty under this Part, has 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 an entity that must lodge or has lodged GST returns
electronically notifies 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 under this Part, on the entity by electronic
transmission to that address.
(1) This section restricts what a person (the entrusted
person) may do with protected information, or protected documents, that
the person has obtained in the course of official employment.
(2) The entrusted person:
(a) must not make a record of protected information; and
(b) must not disclose it to anyone else;
if the recording or disclosure is not in accordance with subsection
(3).
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(3) It is not an offence against subsection (2) if any of the following
apply to the recording or disclosure:
(a) the recording or disclosure is for the purposes of the GST
law;
(b) the recording or disclosure happens in the course of the performance
of the duties of the entrusted person’s official employment;
(c) the entrusted person is the Commissioner or a Deputy Commissioner and
the disclosure is to:
(i) the Chief Executive Officer of Customs; or
(ii) the Australian Statistician and is of information to be used for the
purposes of the Census and Statistics Act 1905; or
(iii) another person for the purpose of that other person carrying out
functions under a taxation law; or
(iv) the Administrative Appeals Tribunal in connection with proceedings
under a taxation law;
(d) the disclosure is by a person authorised by the Commissioner or a
Deputy Commissioner to disclose the information and the disclosure is
to:
(i) the Chief Executive Officer of Customs; or
(ii) the Australian Statistician and is of information to be used for the
purposes of the Census and Statistics Act 1905; or
(iii) another person for the purpose of that other person carrying out
functions under a taxation law.
(4) Subsection (3) does not authorise the disclosure of information to a
Minister.
(5) Unless it is necessary for the purposes of the GST law, the entrusted
person is not to be required:
(a) to produce any protected document to a court; or
(b) to disclose protected information to a court.
(6) In this section:
disclose means divulge or communicate.
official employment means:
(a) appointment or employment by the Commonwealth, or the performance of
services for the Commonwealth; or
(b) the exercise of powers or performance of functions under a delegation
by the Commissioner.
protected document means any document made or given under, or
for the purposes of, the GST law (for example, a GST return).
protected information means information that meets all the
following conditions:
(a) it relates to the affairs of a person other than the entrusted
person;
(b) it was obtained by the entrusted person, or by any other person, in
the course of official employment;
(c) it was disclosed or obtained under the GST law.
(1) Any notice, approval, direction, authority or declaration that the
Commissioner may give, or must give, to you under the GST 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 the GST law allows
the Commissioner to do so.
(1) If you make a taxable supply, taxable importation, creditable
acquisition or creditable importation or acquire or import diesel or like fuel
for creditable diesel fuel consumption, you must:
(a) keep records that record and explain all transactions and other acts
you engage in that are relevant to that supply, importation or acquisition;
and
(b) retain those records for at least 5 years after the completion of the
transactions or acts to which they relate.
(2) The records must be:
(a) in English, or readily accessible and easily convertible into English;
and
(b) such as to enable your liability under the GST law to be readily
ascertained.
(3) However, it is not necessary to retain records:
(a) if the Commissioner notifies you that you do not need to retain them;
or
(b) for a company that has been finally dissolved.
(4) If you contravene this section, you are guilty of an
offence.
Maximum 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.