Taxation Administration Act 1953

No. 1, 1953

Compilation No. 209

Compilation date: 1 July 2024

Includes amendments: Act No. 141, 2020, Act No. 23, 2024, Act No.
37, 2024 and Act No. 51, 2024

Registered: 17 July 2024

This compilation is in 4 volumes

Volume 1: sections 1–18

Schedule 1 (sections 6-1 to 21-5)
Volume 2: Schedule 1 (sections 45-1 to 298-110)
Volume 3: Schedule 1 (sections 308-1 to 990-5)
Volume 4: Endnotes
Each volume has its own contents

Prepared by the Office of Parliamentary Counsel, Canberra

Authorised Version C2024C00292 registered 17/07/2024

About this compilation
This compilation
This is a compilation of the Taxation Administration Act 1953 that shows the
text of the law as amended and in force on 1 July 2024 (the compilation date).
The notes at the end of this compilation (the endnotes) include information
about amending laws and the amendment history of provisions of the compiled
law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the
compiled law. Any uncommenced amendments affecting the law are accessible
on the Register (www.legislation.gov.au). The details of amendments made up
to, but not commenced at, the compilation date are underlined in the endnotes.
For more information on any uncommenced amendments, see the Register for
the compiled law.
Application, saving and transitional provisions for provisions and
amendments
If the operation of a provision or amendment of the compiled law is affected by
an application, saving or transitional provision that is not included in this
compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see
the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as
modified but the modification does not amend the text of the law. Accordingly,
this compilation does not show the text of the compiled law as modified. For
more information on any modifications, see the Register for the compiled law.
Self-repealing provisions
If a provision of the compiled law has been repealed in accordance with a
provision of the law, details are included in the endnotes.

Authorised Version C2024C00292 registered 17/07/2024

Contents
Part I—Preliminary 1
1 Short title ............................................................................1
2 Interpretation ......................................................................1
2A Application of the Criminal Code ......................................3
2B Act binds the Crown...........................................................4
3 Application .........................................................................4
3AA Schedule 1 ..........................................................................4

Part IA—Administration 5
3A General administration of Act ............................................5
3B Annual report......................................................................5
3C Reporting of information about corporate tax
entity with reported total income of $100 million
or more ...............................................................................6
3CA Reporting of information by corporate country by
country reporting entities....................................................8
3E Reporting of information about entity with PRRT
payable..............................................................................10
3F Reporting of information about junior minerals
exploration incentive offset ..............................................11
3G Electronic invoicing .........................................................11
3H Reporting of information about research and
development tax offset .....................................................12

Part II—Commissioner of Taxation, Second Commissioner of

Taxation and Deputy Commissioner of Taxation 14
4 Commissioner and Second Commissioners of
Taxation............................................................................14
4A Statutory Agency etc. for purposes of Public
Service Act .......................................................................14
5 Tenure of Commissioner and Second
Commissioners .................................................................14
5A Remuneration and allowances of Commissioner
and Second Commissioners..............................................14
6 Leave of absence ..............................................................15
6A Resignation .......................................................................15
6B Acting appointments.........................................................15
6C Suspension and removal from office of
Commissioner or Second Commissioner .........................16

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 6D Powers of Second Commissioner.....................................18
7 Deputy Commissioners of Taxation.................................18
8 Delegation ........................................................................19

Part IIA—The general interest charge 20

8AAA Overview ..........................................................................20
8AAB When the general interest charge applies .........................20
8AAC Amount of the general interest charge .............................26
8AAD What is the general interest charge rate? ........................27
8AAE When the charge is due and payable ................................28
8AAF Notification by Commissioner .........................................28
8AAG Remission of the charge ...................................................28
8AAGA Rounding of the charge ....................................................29
8AAH Judgment for payment of an unpaid amount ....................29

Part IIB—Running balance accounts, application of payments

and credits, and related matters 31
Division 1—Preliminary 31
8AAZA Definitions ........................................................................31
8AAZAA Amounts relating to Coronavirus economic
response payments............................................................34
8AAZB Trustee to be treated as separate entity for each
capacity.............................................................................34
Division 2—Running Balance Accounts (or RBAs) 35
8AAZC Establishment of RBAs ....................................................35
8AAZD Allocation of tax debts to RBAs.......................................35
8AAZF General interest charge on RBA deficit debt....................36
8AAZG RBA statements ................................................................36
8AAZH Liability for RBA deficit debt ..........................................36
8AAZI RBA statement to be evidence .........................................37
8AAZJ Evidentiary certificate about RBA transactions etc. ........37
Division 3—Treatment of payments, credits and RBA surpluses 39
8AAZL Amounts covered by this Division ...................................39
8AAZLA Method 1—allocating the amount first to an RBA ..........40
8AAZLB Method 2—applying the amount first against a
non-RBA tax debt.............................................................40
8AAZLC RBA surplus and related credits must remain
equivalent if one or the other is applied ...........................41
8AAZLD Special priority credits......................................................41

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 8AAZLE Instructions to Commissioner not binding .......................42
Division 3A—Refunds of RBA surpluses and credits 43
8AAZLF Commissioner must refund RBA surpluses and
credits ...............................................................................43
8AAZLG Retaining refunds until information or notification
given .................................................................................44
8AAZLGA Retaining refunds while Commissioner verifies
information .......................................................................44
8AAZLGB Retaining refunds until notification under
Division 389 or ascertainment of liability ........................47
8AAZLH How refunds are made......................................................49
Division 4—Miscellaneous provisions about tax debts 50
8AAZM When payments are treated as received ...........................50
8AAZMA Electronic payment of tax debts .......................................50
8AAZMB Saturdays, Sundays and public holidays ..........................50
8AAZN Overpayments made by the Commissioner under
taxation laws.....................................................................51

Part III—Prosecutions and offences 52

Division 1—Preliminary 52
8A Interpretation ....................................................................52
8AC Application of Part to the Tax Agent Services Act
2009 ..................................................................................53
Division 2—Offences 54
Subdivision A—Failure to comply with taxation requirements 54
8B Interpretation ....................................................................54
8C Failure to comply with requirements under
taxation law ......................................................................55
8D Failure to answer questions when attending before
the Commissioner etc. ......................................................56
8E Penalties for failure to comply with requirements
under taxation law ............................................................57
8F Election to treat offence otherwise than as
prescribed taxation offence ..............................................57
8G Order to comply with requirement ...................................58
8H Penalty for failure to comply with order to comply .........58
8HA Court may order payment of amount in addition to
penalty ..............................................................................59

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 Subdivision B—Offences relating to statements, records and
certain other Acts 59
8J Interpretation ....................................................................59
8K False or misleading statements.........................................66
8L Incorrectly keeping records etc. .......................................68
8M Penalties for offences against subsections 8K(1)
and (1B) and 8L(1) and (1A)............................................69
8N Recklessly making false or misleading statements ..........69
8Q Recklessly incorrectly keeping records etc. .....................71
8R Penalties for offences against sections 8N and 8Q...........71
8S Election to treat offence otherwise than as
prescribed taxation offence ..............................................72
8T Incorrectly keeping records with intention of
deceiving or misleading etc. .............................................72
8U Falsifying or concealing identity with intention of
deceiving or misleading etc. .............................................73
8V Penalties for offences against sections 8T and 8U ...........74
8W Court may order payment of amount in addition to
penalty ..............................................................................74
Subdivision BAA—Offences relating to electronic sales
suppression tools 78
8WAA Object of this Subdivision ................................................78
8WAB Interpretation ....................................................................78
8WAC Producing or supplying electronic sales
suppression tools ..............................................................79
8WAD Possessing electronic sales suppression tools ..................80
8WAE Incorrectly keeping records using electronic sales
suppression tools ..............................................................80
Subdivision BA—Offences relating to tax file numbers 81
8WA Unauthorised requirement etc. that tax file number
be quoted ..........................................................................81
8WB Unauthorised recording etc. of tax file number................82
8WC Conducting affairs so as to avoid tax file number
requirements .....................................................................84
Subdivision C—Miscellaneous 85
8XA Unauthorised access to taxation records ..........................85
8Y Liability of officers etc. of corporations...........................85
8Z Evidentiary certificate relating to previous
convictions........................................................................86

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 Division 3—Prosecution of taxation offences 88
8ZA Prosecution of taxation offences ......................................88
8ZB Prosecution may be commenced at any time ...................89
8ZC Place where offence committed .......................................89
8ZD Conduct by employees or agents of corporations ............90
8ZE Civil penalty not payable if prosecution instituted...........90
8ZF Penalties for corporations .................................................91
8ZG Enforcement of orders for payment..................................91
8ZH Penalties not to relieve from tax.......................................92
Division 4—Prescribed taxation offences 93
8ZJ Prosecution of prescribed taxation offences.....................93
8ZK Protection of witnesses .....................................................94
8ZL Averment ..........................................................................95
8ZM Evidence of authority to institute proceedings .................95
8ZN Costs .................................................................................96
Division 5—Service of summons for prescribed taxation offences 97
9 Interpretation ....................................................................97
10 Service of summons by post.............................................97
11 Notice of conviction in absentia ......................................98
12 Notice of intention to issue warrant in default of
payment ............................................................................98
13 Limitation of action to enforce payment of fine...............99
13A Setting aside of conviction or order .................................99
13B Proof of service of summons or notice...........................102
13C Application of other laws ...............................................102
Division 6—Setting aside etc. of conviction or order on
application of Commissioner 103
13CA Setting aside etc. of conviction or order on
application of Commissioner..........................................103

Part IIIA—Co-operation between Commonwealth and State

taxation authorities 105
Division 1—Interpretation 105
13D Interpretation ..................................................................105
Division 2—Trans-border investigations 107
13E State taxation officers may refer matters to
Commissioner for investigation .....................................107
13F Access to documents etc.................................................107

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 13G Commissioner may obtain information and
evidence..........................................................................108
Division 4—Certification by State taxation officer of copies of,
and extracts from, documents 110
13K Certification by State taxation officer of copies of,
and extracts from, documents.........................................110
Division 5—Australian Taxation Office may perform functions
under State/Territory debits tax laws 112
13L Australian Taxation Office may perform functions
under State/Territory debits tax laws..............................112

Part IVA—Departure from Australia of certain tax debtors 114

Division 1—Interpretation 114
14Q Interpretation ..................................................................114
Division 2—Prohibition and authorisation of departure of
certain tax debtors 115
14R Departure from Australia of certain tax debtors
prohibited........................................................................115
14S Departure prohibition orders ..........................................115
14T Revocation and variation of departure prohibition
orders ..............................................................................116
14U Departure authorisation certificates................................117
Division 3—Appeals from, and review of, decisions of the
Commissioner 120
14V Appeals to courts against making of departure
prohibition orders ...........................................................120
14W Jurisdiction of courts ......................................................120
14X Orders of court on appeal ...............................................120
14Y Applications for review of certain decisions ..................121
Division 4—Enforcement 122
14Z Powers of authorised officers .........................................122
14ZA Certain tax debtors to produce authority to depart
etc. ..................................................................................123

Part IVC—Taxation objections, reviews and appeals 124

Division 1—Introduction 124
14ZL Part applies to taxation objections..................................124
14ZM Division 2—Interpretive.................................................124
14ZN Division 3—Taxation objections....................................124

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 14ZO Division 4—Tribunal review..........................................124
14ZP Division 5—Federal Court appeals ................................124
Division 2—Interpretive provisions 125
14ZQ General interpretation provisions ...................................125
14ZR Taxation decisions covered by single notice to be
treated as single decision ................................................126
14ZS Ineligible income tax remission decisions......................127
Division 3—Taxation objections 128
14ZU How taxation objections are to be made ........................128
14ZV Limited objection rights in the case of certain
amended taxation decisions............................................128
14ZVA Limited objection rights because of other
objections........................................................................128
14ZVB Objections relating to excess concessional
contributions ...................................................................129
14ZVC Objections relating to non-concessional
contributions ...................................................................130
14ZW When taxation objections are to be made.......................131
14ZX Commissioner to consider applications for
extension of time ............................................................137
14ZY Commissioner to decide taxation objections..................138
14ZYA Person may require Commissioner to make an
objection decision...........................................................138
14ZYB Requiring Commissioner to make a private ruling ........139
14ZZ Person may seek review of, or appeal against,
Commissioner’s decision ...............................................140
Division 4—AAT review of objection decisions and extension of
time refusal decisions 141
14ZZA Modified AAT Act to apply ...........................................141
14ZZB Sections 27, 28, 41 and 44A of the AAT Act not to
apply to certain decisions ...............................................141
14ZZC Modification of section 29 of the AAT Act ...................141
14ZZD Modification of section 30 of the AAT Act ...................142
14ZZE Hearings before Tribunal to be held in private if
applicant so requests.......................................................142
14ZZF Modification of section 37 of the AAT Act ...................143
14ZZG Modification of section 38 of the AAT Act ...................144
14ZZH Modification of section 41 of the AAT Act ...................144
14ZZJ Modification of section 43 of the AAT Act ...................145
14ZZK Grounds of objection and burden of proof .....................146

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 14ZZL Implementation of Tribunal decisions............................146
14ZZM Pending review not to affect implementation of
taxation decisions ...........................................................146
Division 5—Court appeals against objection decisions 148
14ZZN Time limit for appeals ....................................................148
14ZZO Grounds of objection and burden of proof .....................148
14ZZP Order of court on objection decision ..............................148
14ZZQ Implementation of court order in respect of
objection decision...........................................................148
14ZZR Pending appeal not to affect implementation of
taxation decisions ...........................................................149
14ZZS Transfer of certain proceedings to Federal Circuit
and Family Court of Australia (Division 1) ...................149

Part IVD—Protection for whistleblowers 152

14ZZT Disclosures qualifying for protection under this
Part..................................................................................152
14ZZTA Information disclosed for the purpose of assisting
the Tax Practitioners Board ............................................154
14ZZU Eligible whistleblowers ..................................................155
14ZZV Eligible recipients...........................................................155
14ZZW Confidentiality of whistleblower’s identity....................156
14ZZX Disclosure that qualifies for protection not
actionable etc. .................................................................157
14ZZXA Claims for protection......................................................158
14ZZY Victimisation prohibited.................................................159
14ZZZ Compensation and other remedies—circumstances
in which an order may be made......................................160
14ZZZAA Detriment........................................................................163
14ZZZA Compensation and other remedies—orders that
may be made...................................................................163
14ZZZB Identifying information not to be disclosed etc. to
courts or tribunals ...........................................................165
14ZZZC Costs only if proceedings instituted vexatiously
etc. ..................................................................................166
14ZZZD Interaction between civil proceedings and criminal
offences ..........................................................................166
14ZZZE Compensation for acquisition of property......................166

Part V—Miscellaneous 168

15 Appearance by Commissioner etc. .................................168

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 15A Certification by Commissioner of copies of, and
extracts from, documents ...............................................169
15B Recoverable advances ....................................................171
15C Recoverable payments....................................................172
15D Reports about recoverable advances and
recoverable payments .....................................................174
16 Payments out of Consolidated Revenue Fund................176
16A Regulations may provide for methods of payment
of tax liabilities etc. ........................................................177
16B Certain liabilities to be reduced to nearest multiple
of 5 cents ........................................................................178
17 Powers of taxation officers in relation to
references to currency etc...............................................178
17A Powers of Federal Court and Federal Circuit and
Family Court of Australia (Division 2) in respect
of taxation matters ..........................................................179
18 Regulations .....................................................................180

Schedule 1—Collection and recovery of income tax

and other liabilities 181

Chapter 2—Collection, recovery and administration of income

tax 181
Part 2-1—Introduction to the Pay as you go (PAYG) system 181
Division 6—Guide to Parts 2-5 and 2-10 181
6-1 What Parts 2-5 and 2-10 are about .................................181
6-5 The Pay as you go (PAYG) system................................181
6-10 How the amounts collected are dealt with......................182
Part 2-5—Pay as you go (PAYG) withholding 183
Division 10—Guide to Part 2-5 183
10-1 What this Part is about....................................................183
10-5 Summary of withholding payments ...............................183
Division 11—Preliminary matters 186
11-1 Object of this Part...........................................................186
11-5 Constructive payment.....................................................187
Division 12—Payments from which amounts must be withheld 188
Subdivision 12-A—General rules 188
12-1 General exceptions .........................................................189

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 12-5 What to do if more than one provision requires a
withholding.....................................................................190
12-7 Division does not apply to alienated personal
services payments...........................................................192
12-10 Division does not apply to non-cash benefits.................192
12-20 Application of Division and regulations to
non-share dividends........................................................192
Subdivision 12-B—Payments for work and services 193
12-35 Payment to employee .....................................................193
12-40 Payment to company director.........................................193
12-45 Payment to office holder ................................................193
12-47 Payment to religious practitioners ..................................194
12-50 Return to work payment .................................................194
12-55 Voluntary agreement to withhold...................................195
12-60 Payment under labour hire arrangement, or
specified by regulations..................................................196
Subdivision 12-C—Payments for retirement or because of
termination of employment 197
12-80 Superannuation income streams and annuities...............197
12-85 Superannuation lump sums and payments for
termination of employment ............................................197
12-90 Unused leave payments ..................................................197
Subdivision 12-D—Benefit and compensation payments 197
12-110 Social Security or other benefit payment .......................198
12-115 Commonwealth education or training payment .............198
12-120 Compensation, sickness or accident payment ................199
Subdivision 12-E—Payments where TFN or ABN not quoted 199
Payment in respect of investment 200
12-140 Recipient does not quote tax file number .......................200
12-145 Investor becoming presently entitled to income of
a unit trust.......................................................................201
12-150 Limited application of section 12-140 to payment
under financial arrangement ...........................................202
12-152 Limited application of section 12-140 to payment
covered by section 12A-205...........................................203
12-155 When investor may quote ABN as alternative ...............203
12-160 Investment body unaware that exemption from
quoting TFN has stopped applying ................................203
12-165 Exception for fully franked dividend .............................204

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 12-170 Exception for payments below thresholds set by
regulations ......................................................................204
Payment of income of closely held trust where TFN not quoted 204
12-175 Trustee distributes income of closely held trust .............204
12-180 Beneficiary becomes presently entitled to income
of closely held trust ........................................................206
12-185 Exception for payments below thresholds set by
regulations ......................................................................207
Payment for a supply 208
12-190 Recipient does not quote ABN .......................................208
Subdivision 12-F—Dividend, interest and royalty payments 211
Dividends 212
12-210 Dividend payment to overseas person............................212
12-215 Dividend payment received for foreign resident ............212
12-220 Application to part of a dividend....................................213
12-225 Application to distribution by a liquidator or other
person .............................................................................213
Interest 213
12-245 Interest payment to overseas person...............................213
12-250 Interest payment received for foreign resident...............214
12-255 Interest payment derived by lender in carrying on
business through overseas permanent
establishment ..................................................................214
12-260 Lender to notify borrower if interest derived
through overseas permanent establishment ....................215
Royalties 215
12-280 Royalty payment to overseas person ..............................215
12-285 Royalty payment received for foreign resident ..............216
General 217
12-300 Limits on amount withheld under this Subdivision........217
Subdivision 12-FA—Departing Australia superannuation
payments 217
12-305 Departing Australia superannuation payment ................217
12-310 Limits on amount withheld under this Subdivision........217
Subdivision 12-FAA—Excess untaxed roll-over amount 218
12-312 Untaxed roll-over superannuation benefits ....................218
12-313 Limits on amount withheld under this Subdivision........218

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 Subdivision 12-FB—Payments to foreign residents etc. 219
12-315 Payment to foreign resident etc. .....................................219
12-317 Payment received for foreign resident etc. .....................220
12-319 Exemptions from withholding obligations under
this Subdivision ..............................................................221
Subdivision 12-FC—Labour mobility programs 223
12-319A Payment to employee .....................................................223
Subdivision 12-G—Payments in respect of mining on Aboriginal
land, and natural resources 223
Mining on Aboriginal land 224
12-320 Mining payment .............................................................224
Natural resources 224
12-325 Natural resource payment...............................................224
12-330 Payer must ask Commissioner how much to
withhold..........................................................................225
12-335 Commissioner may exempt from section 12-330,
subject to conditions .......................................................225
Subdivision 12-H—Distributions of withholding MIT income 226
Guide to Subdivision 12-H 226
12-375 What this Subdivision is about .......................................226
Operative provisions 228
12-383 Meaning of withholding MIT .........................................228
12-385 Withholding by withholding MITs.................................229
12-390 Withholding by custodians and other entities ................230
12-395 Requirement to give notice or make information
available..........................................................................233
12-405 Meaning of fund payment—general case .......................236
12-410 Entity to whom payment is made ...................................239
12-415 Failure to give notice or make information
available: administrative penalty....................................239
12-420 Agency rules...................................................................240
12-425 Meaning of clean building managed investment
trust.................................................................................240
12-430 Meaning of clean building .............................................241
12-435 Meaning of non-concessional MIT income ....................242
12-436 Meaning of asset entity, operating entity, cross
staple arrangement and stapled entity............................243
12-437 Meaning of MIT cross staple arrangement income .......244

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 12-438 MIT cross staple arrangement income—de
minimis exception ..........................................................246
12-439 MIT cross staple arrangement income—approved
economic infrastructure facility exception .....................248
12-440 Transitional—MIT cross staple arrangement
income ............................................................................249
12-441 Integrity rule—concessional cross staple rent cap .........252
12-442 Meaning of excepted MIT CSA income ..........................253
12-443 Concessional cross staple rent cap—existing lease
with specified rent or rent method..................................253
12-444 Concessional cross staple rent cap—general..................254
12-445 Asset entity to allocate deductions first against
rental income that is not MIT cross staple
arrangement income .......................................................256
12-446 Meaning of MIT trading trust income ............................257
12-447 Transitional—MIT trading trust income ........................258
12-448 Meaning of MIT agricultural income, Australian
agricultural land for rent and Division 6C land ............259
12-449 Transitional—MIT agricultural income .........................260
12-450 Meaning of MIT residential housing income .................261
12-451 Transitional—MIT residential housing income .............262
12-452 Meaning of residential dwelling asset............................264
12-453 MIT agricultural income and MIT residential
housing income—capital gains in relation to
membership interests ......................................................264
Subdivision 12-J—FHSS released amounts 266
12-460 FHSS released amounts..................................................266
Division 12A—Distributions by AMITs (including deemed
payments) 267
Guide to Division 12A 267
12A-1 What this Division is about ............................................267
Subdivision 12A-A—Distributions by AMITs relating to dividend,
interest and royalties 268
Guide to Subdivision 12A-A 268
12A-5 What this Subdivision is about .......................................268
Operative provisions 268
12A-10 Deemed payments—no obligation to withhold
under Subdivision 12-F (dividend, interest and
royalty payments) ...........................................................268

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 12A-15 Dividend, interest or royalty payments relating to
AMIT—requirement to give notice or make
information available......................................................269
12A-20 Failure to give notice or make information
available under section 12A-15: administrative
penalty ............................................................................272
12A-25 Meaning of AMIT DIR payment .....................................272
12A-30 Meaning of AMIT dividend payment..............................273
12A-35 Meaning of AMIT interest payment................................274
12A-40 Meaning of AMIT royalty payment ................................275
Subdivision 12A-B—Distributions by AMITs relating to
Subdivision 12-H fund payments 276
Guide to Subdivision 12A-B 276
12A-100 What this Subdivision is about .......................................276
Operative provisions 276
12A-105 Deemed payments—no obligation to withhold
under Subdivision 12-H..................................................276
12A-110 Meaning of fund payment—AMITs ...............................277
Subdivision 12A-C—Deemed payments by AMITs etc. 281
Guide to Subdivision 12A-C 281
12A-200 What this Subdivision is about .......................................281
Operative provisions 282
12A-205 Issue of AMMA statement etc. deemed to be
payment ..........................................................................282
12A-210 Post-AMMA actual payment and pre-AMMA
actual payment in respect of deemed payment ..............284
12A-215 AMIT payment to the Commissioner in respect of
deemed payments to offshore entities etc.......................285
12A-220 Custodian payment to the Commissioner in respect
of deemed payments to offshore entities etc. .................286
Division 13—Alienated personal services payments 289
13-1 Object of this Division ...................................................289
13-5 Payment to the Commissioner in respect of
alienated personal services payments.............................289
13-10 Alienated personal services payments............................292
13-15 Personal services payment remitters ..............................293
13-20 Time for payments to Commissioner for alienated
personal services payments made during 2000-01.........294

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 Division 14—Benefits, gains and taxable supplies for which
amounts must be paid to the Commissioner 295
Subdivision 14-A—Non-cash benefits 295
14-1 Object of this Subdivision ..............................................295
14-5 Provider of non-cash benefit must pay amount to
the Commissioner if payment would be subject to
withholding.....................................................................295
14-10 Dividend, interest or royalty received, for a foreign
resident, in the form of a non-cash benefit .....................296
14-15 Payer can recover amount paid to the
Commissioner.................................................................297
Subdivision 14-B—Accruing gains 297
14-50 Object of this Subdivision ..............................................297
14-55 Liability for TFN withholding tax..................................298
14-60 Investment body may recover TFN withholding
tax from investor ............................................................299
14-65 Application of rules in Division 18 ................................299
14-75 Overpayment of TFN withholding tax ...........................300
14-85 Other laws do not exempt from TFN withholding
tax ...................................................................................300
Subdivision 14-C—Shares and rights under employee share
schemes 301
14-155 Liability for TFN withholding tax (ESS) .......................301
14-160 Employer may give individual tax file numbers to
provider ..........................................................................302
14-165 Provider may recover TFN withholding tax (ESS)
from individual ...............................................................302
14-170 Application of rules in Division 18 ................................303
14-175 Overpayment of TFN withholding tax (ESS).................303
14-180 Application of certain provisions of Division 83A
of the Income Tax Assessment Act 1997 ........................303
Subdivision 14-D—Capital proceeds involving foreign residents
and taxable Australian property 304
14-200 Certain acquisitions of taxable Australian property
from foreign residents ....................................................304
14-205 Effect of look-through earnout rights .............................305
14-210 Whether an entity is a relevant foreign resident.............306
14-215 Excluded transactions.....................................................308
14-220 Commissioner clearance certificates ..............................310
14-225 Entity declarations ..........................................................310

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 14-230 Administrative penalties for false or misleading
declarations.....................................................................311
14-235 Varying amounts to be paid to the Commissioner .........312
Subdivision 14-E—GST payable on taxable supplies of certain
real property 313
14-250 Recipients of certain taxable supplies of real
property must pay amounts to Commissioner ................314
14-255 Notification by suppliers of residential premises
etc. ..................................................................................316
Division 15—Working out the amount to withhold 319
Guide to Division 15 319
15-1 What this Division is about ............................................319
Subdivision 15-A—Working out how much to withhold 319
15-10 How much to withhold ...................................................320
15-15 Variation of amounts required to be withheld................320
Subdivision 15-B—Withholding schedules and regulations 321
15-25 Commissioner’s power to make withholding
schedules ........................................................................321
15-30 Matters to be considered when making
withholding schedules ....................................................322
15-35 Regulations about withholding.......................................323
Subdivision 15-C—Declarations 324
15-50 Declarations....................................................................324
Division 16—Payer’s obligations and rights 326
Guide to Division 16 326
16-1 What this Division is about ............................................326
Subdivision 16-A—To withhold 326
When to withhold 327
16-5 When to withhold an amount .........................................327
16-7 Treat entity obliged to pay under
Subdivision 12A-C as having withheld amount
under Division 12 ...........................................................327
16-20 Payer discharged from liability to recipient for
amount withheld .............................................................328
Penalties for not withholding 328
16-25 Failure to withhold: offence ...........................................328

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 16-30 Failure to withhold: administrative penalty for
entity other than exempt Australian government
agency.............................................................................329
16-35 Failure to withhold: administrative penalty for
exempt Australian government agency in relation
to payment other than dividend, interest or royalty........330
16-40 Failure to withhold: administrative penalty for
exempt Australian government agency in relation
to dividend, interest or royalty payment.........................331
16-43 Failure to withhold: administrative penalty for
exempt Australian government agency in relation
to payment to foreign resident etc. .................................331
Subdivision 16-B—To pay withheld amounts to the Commissioner 332
When and how to pay amounts to the Commissioner 332
16-70 Entity to pay amounts to Commissioner ........................332
16-75 When amounts must be paid to Commissioner ..............333
16-80 Penalty for failure to pay within time.............................335
16-85 How amounts are to be paid ...........................................335
Who is a large, medium or small withholder 336
16-95 Meaning of large withholder..........................................336
16-100 Meaning of medium withholder .....................................337
16-105 Meaning of small withholder .........................................337
16-110 Commissioner may vary withholder’s status
downwards......................................................................337
16-115 Commissioner may vary withholder’s status
upwards ..........................................................................338
Subdivision 16-BA—To be registered 339
Registration of withholders 340
16-140 Withholders must be registered ......................................340
16-141 Registration and cancellation .........................................341
Branch registration 341
16-142 Branches may be registered............................................341
16-143 Separate amounts for entities and branches ...................342
16-144 Cancellation of branch registration ................................342
16-145 Effect on branches of cancelling the entity’s
registration......................................................................342
Registration of employers of working holiday makers 343
16-146 Employers of working holiday makers must be
registered ........................................................................343

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 16-147 Registering employers of working holiday makers........343
16-148 Cancelling the registration of employers of
working holiday makers .................................................345
Subdivision 16-C—To provide information 347
To the Commissioner 347
16-150 Commissioner must be notified of amounts...................347
16-152 Annual reports—Withholding payments covered
by section 12-175 ...........................................................348
16-153 Annual reports—other payments....................................349
To recipients of withholding payments 352
16-155 Annual payment summary..............................................352
16-156 Annual payment summary for sections 12-175 and
12-180.............................................................................354
16-157 Payment summary for Subdivision 12-H .......................354
16-160 Part-year payment summary...........................................355
16-165 Payment summaries for superannuation lump sums
and payments for termination of employment ...............356
16-166 Payment summary for a departing Australia
superannuation payment.................................................357
16-167 Payment summary for payment to recipient who
does not quote ABN .......................................................357
16-170 Form and content of payment summary.........................358
16-175 Penalty for not providing payment summary .................359
16-180 Commissioner may exempt entity from giving
payment summary ..........................................................360
16-182 Definition of reportable employer superannuation
contribution ....................................................................360
Subdivision 16-D—Additional rights and obligations of entity that
makes a payment 361
16-195 Payer’s right to recover amounts of penalty:
certain withholding taxes................................................361
Division 18—Recipient’s entitlements and obligations 363
Subdivision 18-A—Crediting withheld amounts 363
Guide to Subdivision 18-A 363
18-1 What this Subdivision is about .......................................363
General exception 365
18-5 No credit for refunded amount .......................................365

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 Entitlement to credits: income tax liability 365
18-10 Application of sections 18-15, 18-20 and 18-25 ............365
18-15 Tax credit for recipient of withholding payments ..........366
18-20 Tax credit where recipient is a partnership ....................366
18-25 Tax credit where recipient is a trust ...............................367
18-27 Tax credit for alienated personal services
payments.........................................................................369
Entitlement to credits: dividend, interest or royalty, amount
attributable to fund payment or labour mobility
program 369
18-30 Credit: dividend, interest or royalty ...............................369
18-32 Credit: amount attributable to fund payment .................370
18-33 Credit: labour mobility programs ...................................371
18-35 Credit: penalty under section 12-415, 16-30, 16-35
or 16-40 or related general interest charge .....................371
18-40 Credit: liability under Part 4-25......................................373
Entitlement to credit: departing Australia superannuation
payment 375
18-42 Credit—departing Australia superannuation
payment ..........................................................................375
Entitlement to credit: mining payment 376
18-45 Credit—mining payment ................................................376
Entitlement to credit: Petroleum resource rent tax 377
18-55 Credit—Natural resource payments ...............................377
Entitlement to credit: taxable supply of real property 377
18-60 Credit—payment relating to taxable supply of real
property ..........................................................................377
Subdivision 18-B—Refund of certain withheld amounts 378
18-65 Refund of withheld amounts by the payer to the
recipient ..........................................................................378
18-70 Refund of withheld amounts by the Commissioner
to the recipient ................................................................381
18-80 Refund by Commissioner of amount withheld
from payment in respect of investment ..........................383
18-85 Refund by Commissioner of amount withheld
from payment in respect of supply of real property .......384
Subdivision 18-C—Recipient’s obligations 384
18-100 Obligation to keep payment summary............................384

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 Subdivision 18-D—Directors etc. of non-complying companies 385
Object of Subdivision 386
18-120 Object of Subdivision .....................................................386
PAYG withholding non-compliance tax 386
18-125 Directors of non-complying companies .........................386
18-130 Directors of non-complying companies—tax
reduced in certain circumstances....................................388
18-135 Associates of directors of non-complying
companies .......................................................................390
18-140 Notices............................................................................393
18-145 When PAYG withholding non-compliance tax
must be paid....................................................................395
18-150 General interest charge payable on unpaid PAYG
withholding non-compliance tax ....................................395
18-155 Validity of decisions and evidence.................................396
18-160 Rights of indemnity and contribution.............................396
Credits for later compliance 397
18-165 Credits for later compliance—scope ..............................397
18-170 Credits for later compliance—Commissioner must
give notice in certain circumstances...............................398
18-175 Credits for later compliance—Commissioner may
give notice ......................................................................399
18-180 Effect of earlier credits ...................................................400
Other provisions 401
18-185 When Commissioner may give notice............................401
18-190 Review of decisions........................................................402
Division 20—Other matters 403
Subdivision 20-B—Offences 403
20-35 Offences..........................................................................403
20-40 Joining of charges...........................................................404
20-45 Offences that would otherwise be committed by a
partnership or unincorporated company.........................405
Subdivision 20-D—Review of decisions 406
20-80 Reviewable decisions .....................................................406
Division 21—Entitlements relating to insolvent ADIs and general
insurers 408
Guide to Division 21 408
21-1 What this Division is about ............................................408

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 Subdivision 21-A—Treatment of some payments by APRA 408
21-5 APRA treated like ADI or general insurance
company .........................................................................408

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 Preliminary Part I

Section 1

An Act to provide for the administration of certain

Acts relating to Taxation, and for other purposes

Part I—Preliminary

1 Short title
This Act may be cited as the Taxation Administration Act 1953.

2 Interpretation
(1) In this Act (except Schedule 1), unless the contrary intention
appears:
approved form has the meaning given by Schedule 1.
ASIO means the Australian Security Intelligence Organisation.
assessable amount has the meaning given by subsection 155-5(2)
in Schedule 1.
Australia, when used in a geographical sense, has the same
meaning as in the Income Tax Assessment Act 1997.
Commissioner means the Commissioner of Taxation.
Deputy Commissioner means any Deputy Commissioner of
Taxation.
Director-General of Security means the Director-General of
Security holding office under the Australian Security Intelligence
Organisation Act 1979.
eligible recipient has the meaning given by section 14ZZV.
eligible whistleblower has the meaning given by section 14ZZU.
engage in conduct means:
(a) do an act; or

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Section 2

(b) omit to perform an act.

excess concessional contributions determination has the same
meaning as in subsection 995-1(1) of the Income Tax Assessment
Act 1997.
excise law has the meaning given by the Income Tax Assessment
Act 1997.
exempt Australian government agency has the meaning given by
subsection 995-1(1) of the Income Tax Assessment Act 1997.
failure to notify penalty means the penalty worked out under
Division 2 of Part IIA.
fuel tax law has the meaning given by the Fuel Tax Act 2006.
general interest charge means the charge worked out under
Part IIA.
Immigration Department has the meaning given by the Income
Tax Assessment Act 1997.
Immigration Secretary has the meaning given by the Income Tax
Assessment Act 1997.
indirect tax law has the meaning given by the Income Tax
Assessment Act 1997.
ineligible income tax remission decision has the meaning given by
section 14ZS.
Laminaria and Corallina decommissioning levy has the same
meaning as in the Income Tax Assessment Act 1997.
late reconciliation statement penalty means the penalty worked
out under Division 3 of Part IIA.
migration officer means:
(a) the Immigration Secretary; or
(b) an employee of the Immigration Department.

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Section 2A

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

officer means a person appointed or engaged under the Public
Service Act 1999.
private indirect tax ruling means a private ruling, to the extent that
it relates to an indirect tax law (other than the fuel tax law).
private ruling has the meaning given by section 359-5 in
Schedule 1.
registered tax agent or BAS agent has the same meaning as in the
Tax Agent Services Act 2009.
Second Commissioner means a Second Commissioner of
Taxation.
taxation law has the meaning given by the Income Tax Assessment
Act 1997.
Note: See also subsection (2).

tax liability means a liability to the Commonwealth arising under,

or by virtue of, a taxation law.
Tax Practitioners Board means the Tax Practitioners Board
established by section 60-5 of the Tax Agent Services Act 2009.
Tribunal means the Administrative Appeals Tribunal.
(2) Despite the definition of taxation law in subsection (1), an Excise
Act (as defined in subsection 4(1) of the Excise Act 1901) is not a
taxation law for the purposes of Part III of this Act.

2A Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this
Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.

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Part I Preliminary

Section 2B

2B Act binds the Crown

This Act binds the Crown in each of its capacities. However, it
does not make the Crown liable to a pecuniary penalty or to be
prosecuted for an offence.

3 Application
This Act extends to every external Territory referred to in the
definition of Australia.

3AA Schedule 1
(1) Schedule 1 has effect.

Definitions in Schedule 1 do not apply to rest of Act

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

Application of interpretation provisions of Income Tax Assessment

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

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 Administration Part IA

Section 3A

Part IA—Administration

3A General administration of Act

The Commissioner has the general administration of this Act.
Note: An effect of this provision is that people who acquire information
under this Act are subject to the confidentiality obligations and
exceptions in Division 355 in Schedule 1.

3B Annual report
(1) The Commissioner shall, as soon as practicable after 30 June in
each year, prepare and furnish to the Minister a report on the
working of this Act.
(1AA) A report under subsection (1) in relation to a year ending on
30 June shall:
(b) set out:
(i) the number of occasions (if any) during the year on
which a request was made to disclose information under
subsection 355-55(1) in Schedule 1 (about disclosures
to Ministers); and
(ii) the number of occasions (if any) during the year on
which information was disclosed under that subsection;
and
(iii) the Ministers to whom the information was disclosed;
and
(c) set out:
(i) the number of occasions (if any) during the year on
which a request was made to disclose information under
subsection 355-70(1) in Schedule 1 (about disclosures
for law enforcement and related purposes); and
(ii) the number of occasions (if any) during the year on
which information was disclosed under that subsection;
and

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Section 3C

(iii) the types of entities and the names of the courts and
tribunals to which the information was disclosed; and
(iv) if the information was disclosed under table item 1 or 6
in subsection 355-70(1)—the general categories of
offences in relation to which the information was
disclosed; and
(d) set out the number (if any) of taxation officers (within the
meaning of the Income Tax Assessment Act 1997) found
guilty of the offence in section 355-25 in Schedule 1 (about
disclosure of protected information); and
(e) set out information on the exercise during the year of the
Commissioner’s powers under Subdivision 370-A in
Schedule 1 (Commissioner’s remedial power).
(1C) Subsection (1) does not apply in relation to Part III and sections 15
and 15A insofar as that Part and those sections apply in relation to
the Tax Agent Services Act 2009.
(2) The Minister shall cause a copy of a report furnished under
subsection (1) to be laid before each House of the Parliament
within 15 sitting days of that House after the day on which the
Minister receives the report.
(3) For the purposes of section 34C of the Acts Interpretation Act
1901, a report that is required by subsection (1) to be furnished as
soon as practicable after 30 June in a year shall be taken to be a
periodic report relating to the working of this Act during the year
ending on that 30 June.
(4) In this section:
this Act does not include Part IVC.

3C Reporting of information about corporate tax entity with

reported total income of $100 million or more
(1) This section applies to an entity for an income year if:
(a) the entity is a corporate tax entity; and

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Section 3C

(b) the entity has total income equal to or exceeding

$100 million for the income year, according to information
reported to the Commissioner in the entity’s income tax
return for the income year.
An expression used in this subsection that is also used in the
Income Tax Assessment Act 1997 has the same meaning as in that
Act.
(2) The Commissioner must, as soon as practicable after the end of the
income year, make publicly available the information mentioned in
subsection (3).
(3) The information is as follows:
(a) the entity’s ABN (within the meaning of the Income Tax
Assessment Act 1997) and name;
(b) the entity’s total income for the income year, according to
information reported to the Commissioner in the entity’s
income tax return (within the meaning of that Act) for the
income year;
(c) the entity’s taxable income or net income (if any) for the
income year, according to information reported to the
Commissioner in that income tax return;
(d) the entity’s income tax payable (if any) for the financial year
corresponding to the income year, according to information
reported to the Commissioner in that income tax return.
(4) Subsection (5) applies if:
(a) the entity gives the Commissioner a notice in writing that the
return mentioned in paragraph (3)(b) contains an error; and
(b) the notice contains information that corrects the error.
(5) The Commissioner may at any time make the information
mentioned in paragraph (4)(b) publicly available, in accordance
with subsection (2), in order to correct the error.
(6) To avoid doubt, if the Commissioner considers that information
made publicly available under subsection (2) fails to reflect all of
the information required to be made publicly available under that

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Section 3CA

subsection, the Commissioner may at any time make publicly

available other information in order to remedy the failure.

3CA Reporting of information by corporate country by country

reporting entities
(1) This section applies to a corporate tax entity for an income year if:
(a) the entity is a country by country reporting entity for the
income year; and
(b) at the end of the income year, the entity is:
(i) an Australian resident; or
(ii) a foreign resident who operates an Australian permanent
establishment (within the meaning of Part IVA of the
Income Tax Assessment Act 1936); and
(c) the entity does not lodge a general purpose financial
statement for the financial year most closely corresponding to
the income year:
(i) with the Australian Securities and Investments
Commission; and
(ii) within the time provided under subsection 319(3) of the
Corporations Act 2001 for lodgement of a report for
that financial year.
(1A) However, this section does not apply to a corporate tax entity for
an income year if:
(a) the entity is a government related entity (within the meaning
of the A New Tax System (Goods and Services Tax) Act
1999); and
(b) the Commissioner has given notice to the entity for the
income year under subsection (1B).
(1B) For the purposes of paragraph (1A)(b), the Commissioner may give
notice in writing to a government related entity (within the
meaning of the A New Tax System (Goods and Services Tax) Act
1999) for one or more specified income years if the Commissioner
considers that it is appropriate to do so.

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Section 3CA

(2) A corporate tax entity to which this section applies for an income
year must, on or before the day by which the entity is required to
lodge its income tax return for the income year with the
Commissioner, give to the Commissioner in the approved form a
general purpose financial statement for the financial year most
closely corresponding to the income year.
Note: Section 286-75 in Schedule 1 provides an administrative penalty for
breach of this subsection.

(3) The Commissioner must give a copy of the statement to the

Australian Securities and Investments Commission.
(4) The giving of the copy to the Australian Securities and Investments
Commission under subsection (3) is taken, for the purposes of the
Corporations Act 2001, to be lodgement of the document with the
Australian Securities and Investments Commission.
Note: Under section 1274 of the Corporations Act 2001, a person may
inspect, and require to be given a copy or extract of, any document
lodged with the Australian Securities and Investments Commission.

(5) For the purposes of this section, a general purpose financial

statement in relation to an entity:
(a) must be prepared in accordance with:
(i) the accounting principles; or
(ii) if accounting principles do not apply in relation to the
entity—commercially accepted principles relating to
accounting; and
(b) if the entity is a member of a group of entities that are
consolidated for accounting purposes as a single group—
must relate to:
(i) the entity; or
(ii) the entity and some or all of the other members of the
group.
(6) An expression used in this section that is also used in the Income
Tax Assessment Act 1997 has the same meaning as in that Act.

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Section 3E

3E Reporting of information about entity with PRRT payable

(1) This section applies to an entity if the entity has an amount of
PRRT payable for a year of tax, according to information reported
to the Commissioner in the entity’s PRRT return for the year of
tax.
(2) The Commissioner must, as soon as practicable after the end of the
year of tax, make publicly available the information mentioned in
subsection (3).
(3) The information is as follows:
(a) the entity’s ABN (within the meaning of the Income Tax
Assessment Act 1997) and name;
(b) the PRRT payable by the entity in respect of the year of tax,
according to information reported to the Commissioner in the
entity’s PRRT return for the year of tax.
(4) Subsection (5) applies if:
(a) the entity gives the Commissioner a notice in writing that the
return mentioned in paragraph (3)(b) contains an error; and
(b) the notice contains information that corrects the error.
(5) The Commissioner may at any time make the information
mentioned in paragraph (4)(b) publicly available, in accordance
with subsection (2), in order to correct the error.
(6) To avoid doubt, if the Commissioner considers that information
made publicly available under subsection (2) fails to reflect all of
the information required to be made publicly available under that
subsection, the Commissioner may at any time make publicly
available other information in order to remedy the failure.
(7) In this section:
PRRT return means a return under section 59 or 60 of the
Petroleum Resource Rent Tax Assessment Act 1987.
year of tax has the meaning given by the Petroleum Resource Rent
Tax Assessment Act 1987.

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Section 3F

3F Reporting of information about junior minerals exploration

incentive offset
(1) This section applies if the Commissioner makes a determination
under section 418-101 of the Income Tax Assessment Act 1997
allocating exploration credits to an entity for an income year.
(2) The Commissioner must, as soon as practicable after making the
determination, make publicly available:
(a) the ABN and name of the entity; and
(b) the amount of the entity’s exploration credits allocation for
the income year.
(3) An expression used in this section that is also used in the Income
Tax Assessment Act 1997 has the same meaning as in that Act.

3G Electronic invoicing
(1) The Commissioner’s functions include the function of developing
and/or administering a framework or system for electronic
invoicing.
(2) Without limiting subsection (1), the Commissioner may develop
the framework or system by adopting (with appropriate
modifications) a framework or system for electronic invoicing
operating outside Australia.
(3) The Commissioner has power to do all things that are necessary or
convenient to be done for or in connection with the performance of
the Commissioner’s functions under this section.
(4) Without limiting subsection (3), the Commissioner’s powers under
that subsection include:
(a) entering into agreements for integrating the framework or
system for electronic invoicing mentioned in subsection (1)
with frameworks or systems for electronic invoicing that
operate outside Australia; and

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Section 3H

(b) entering into agreements for accessing the framework or

system for electronic invoicing mentioned in subsection (1);
and
(c) liaising with:
(i) foreign countries; and
(ii) agencies, and other entities, of foreign countries;
to develop common approaches to electronic invoices
between countries.
(5) This section does not limit any functions or powers the
Commissioner has apart from this section.

3H Reporting of information about research and development tax

offset
(1) This section applies to an R&D entity in relation to an income year
if, according to information the entity gave the Commissioner, the
entity is entitled under Division 355 of the Income Tax Assessment
Act 1997 to a tax offset for amounts it can deduct under that
Division for the income year.
(2) The Commissioner must, as soon as practicable after the second
30 June after the financial year corresponding to the income year,
make publicly available the information mentioned in
subsection (3).
(3) The information is as follows:
(a) the entity’s name;
(b) the entity’s ABN or, if the first information the entity gave
the Commissioner indicating the entity’s entitlement to the
tax offset does not include the entity’s ABN but does include
the entity’s ACN (within the meaning of the Corporations
Act 2001), the entity’s ACN;
(c) if, according to the first information the entity gave the
Commissioner indicating the entity’s entitlement to the tax
offset, the total described in paragraph (4)(a) exceeds the
total described in paragraph (4)(b)—the excess.

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Section 3H

(4) For the purposes of paragraph (3)(c), the totals are as follows:
(a) the total of what the entity can deduct for the income year as
described in subsection (1) of this section;
(b) the total of the amounts the entity has under section 355-445
of the Income Tax Assessment Act 1997 for the income year.
(5) Subsection (6) applies if:
(a) the entity gives the Commissioner a notice in writing that the
information mentioned in paragraph (3)(c) contains an error;
and
(b) the notice contains information that corrects the error.
(6) The Commissioner may at any time make the information
mentioned in paragraph (5)(b) publicly available, in accordance
with subsection (2), in order to correct the error.
(7) To avoid doubt, if the Commissioner considers that information
made publicly available under subsection (2) fails to reflect all of
the information required to be made publicly available under that
subsection, the Commissioner may at any time make publicly
available other information in order to remedy the failure.
(8) An expression used in this section and in the Income Tax
Assessment Act 1997 has the same meaning in this section as in
that Act.

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

Section 4

Part II—Commissioner of Taxation, Second

Commissioner of Taxation and Deputy
Commissioner of Taxation

4 Commissioner and Second Commissioners of Taxation

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

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

(1) The staff necessary to assist the Commissioner are to be persons
engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the Commissioner and the APS employees assisting the
Commissioner together constitute a Statutory Agency; and
(b) the Commissioner is the Head of that Statutory Agency.

5 Tenure of Commissioner and Second Commissioners

(1) The Commissioner of Taxation and each Second Commissioner of
Taxation shall be appointed for terms of 7 years respectively and
shall be eligible for re-appointment.
(3) The Commissioner of Taxation and the Second Commissioners of
Taxation are not subject to the Public Service Act 1999.

5A Remuneration and allowances of Commissioner and Second

Commissioners
(1) The Commissioner of Taxation and the Second Commissioners of
Taxation shall be paid such remuneration as is determined by the
Remuneration Tribunal but, if no determination of that

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Section 6
remuneration by the Tribunal is in operation, they shall be paid
remuneration at the respective rates that were applicable
immediately before the commencement of this section.
(2) The Commissioner of Taxation and the Second Commissioners of
Taxation shall be paid such allowances as are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.

6 Leave of absence
(1) The Commissioner and a Second Commissioner have such
recreation leave entitlements as are determined by the
Remuneration Tribunal.
(2) The Minister may grant the Commissioner and a Second
Commissioner leave of absence, other than recreation leave, on
such terms and conditions as to remuneration or otherwise as the
Minister determines.

6A Resignation
The Commissioner or a Second Commissioner may resign his or
her office by writing signed by the Commissioner or Second
Commissioner, as the case may be, and delivered to the
Governor-General.

6B Acting appointments
(1) The Minister may appoint a person to act in the office of
Commissioner of Taxation:
(a) during a vacancy in that office; or
(b) during any period, or during all periods, when the person
holding that office is absent from duty or from Australia or
is, for any other reason, unable to perform the functions of
that office.

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Section 6C
Note: For rules that apply to acting appointments, see section 33A of the
Acts Interpretation Act 1901.

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

Commissioner of Taxation:
(a) during a vacancy in that office; or
(b) during any period, or during all periods, when the person
holding the office of Second Commissioner of Taxation is
absent from duty or from Australia, is acting in the office of
Commissioner of Taxation or is, for any other reason, unable
to perform the functions of the office of Second
Commissioner of Taxation.
Note: For rules that apply to acting appointments, see section 33A of the
Acts Interpretation Act 1901.

(6) While a person is acting in the office of Commissioner of Taxation,

the person has and may exercise all the powers, and shall perform
all the functions, of the Commissioner under this Act or any other
law.
(6A) For the purposes of subsection (6), the Commissioner’s powers and
functions include powers and functions given to the Commissioner
in his or her capacity as Registrar of the Australian Business
Register.
(7) While a person is acting in an office of Second Commissioner of
Taxation, the person has and may exercise all the powers, and shall
perform all the functions, of the Second Commissioner under this
Act or any other law.

6C Suspension and removal from office of Commissioner or Second

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

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Section 6C
(2) The Governor-General may suspend the Commissioner or a
Second Commissioner from office on the ground of misbehaviour
or physical or mental incapacity.
(3) Where the Governor-General suspends the Commissioner or a
Second Commissioner, the Minister shall cause a statement of the
grounds of the suspension to be laid before each House of the
Parliament within 7 sitting days of that House after the suspension.
(4) If, at the expiration of 15 sitting days of a House of the Parliament
after the day on which the statement was laid before that House, an
address under subsection (1) has not been presented to the
Governor-General by each House of the Parliament, the suspension
terminates.
(5) The suspension of the Commissioner or a Second Commissioner
from office under this section does not affect any entitlement of the
Commissioner or Second Commissioner, as the case may be, to be
paid remuneration and allowances.
(6) If:
(a) the Commissioner or a Second Commissioner becomes
bankrupt, applies to take the benefit of any law for the relief
of bankrupt or insolvent debtors, compounds with his or her
creditors or makes an assignment of his or her remuneration
for their benefit;
(b) the Commissioner or a Second Commissioner engages,
except with the approval of the Minister, in paid employment
outside the duties of the office of Commissioner or Second
Commissioner, as the case may be; or
(c) the Commissioner or a Second Commissioner is absent from
duty, except on leave of absence, for 14 consecutive days or
28 days in any 12 months;
the Governor-General shall remove the Commissioner or Second
Commissioner, as the case may be, from office.
(7) The Governor-General may, with the consent of the Commissioner
or a Second Commissioner, retire the Commissioner or Second

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Section 6D
Commissioner, as the case may be, from office on the ground of
physical or mental incapacity.
(8) The Commissioner or a Second Commissioner shall not be
suspended, removed or retired from office except as provided by
this section.

6D Powers of Second Commissioner

(1) Subject to subsection (2) and to the regulations, a Second
Commissioner has all the powers, and may perform all the
functions, of the Commissioner under a taxation law.
(2) Subsection (1) does not apply in relation to:
(a) section 8 of this Act; or
(b) a provision of a taxation law that:
(i) provides that the Commissioner has the general
administration of the taxation law; or
(ii) requires the Commissioner to furnish to the Minister a
report on the working of the taxation law during any
period.
(3) When a power or function of the Commissioner under a taxation
law is exercised or performed by a Second Commissioner, the
power or function shall, for the purposes of the taxation law, be
deemed to have been exercised or performed by the Commissioner.
(4) The exercise of a power, or the performance of a function, of the
Commissioner under a taxation law by a Second Commissioner
does not prevent the exercise of the power, or the performance of
the function, by the Commissioner.

7 Deputy Commissioners of Taxation

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

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Section 8
8 Delegation
(1) The Commissioner may, either generally or as otherwise provided
by the instrument of delegation, by writing signed by the
Commissioner, delegate to a Deputy Commissioner or any other
person all or any of the Commissioner’s powers or functions under
a taxation law or any other law of the Commonwealth or a
Territory, other than this power of delegation.
(1A) For the purposes of this section, the Commissioner’s powers and
functions include powers and functions given to the Commissioner
in his or her capacity as Registrar of the Australian Business
Register.
(2) Subject to subsection (5), a power or function so delegated, when
exercised or performed by the delegate, shall, for the purposes of
the taxation law or the other law, as the case may be, be deemed to
have been exercised or performed by the Commissioner.
(4) A delegation under this section does not prevent the exercise of a
power or the performance of a function by the Commissioner.
(5) A delegation under this section may be made subject to a power of
review and alteration by the Commissioner, within a period
specified in the instrument of delegation, of acts done in pursuance
of the delegation.
(6) A delegation under this section continues in force notwithstanding
a change in the occupancy of, or a vacancy in, the office of
Commissioner, but, for the purposes of the application of
subsection 33(3) of the Acts Interpretation Act 1901 to a delegation
under this section, nothing in any law shall be taken to preclude the
revocation or variation of the delegation by the same or a
subsequent holder of that office.

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Part IIA The general interest charge

Section 8AAA

Part IIA—The general interest charge

8AAA Overview

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

Usually, a person is liable to pay the charge if an amount that the

person must pay to the Commissioner is not paid on time. But there
are also other circumstances in which a person can be liable.

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

makes the person liable.

8AAB When the general interest charge applies

(1) There are certain provisions of this Act and other Acts that make
persons liable to pay the general interest charge. Subsection (4)
lists the provisions.
(2) A person is only liable to pay the charge on an amount if a
provision specifies that the person is liable to pay the charge on the
amount.
(3) The charge does not apply to the Commonwealth or an authority of
the Commonwealth.
(4) The following table is an index of the laws that deal with liability
to the charge.

Liability to general interest charge

Item Column 1 Column 2 Column 3
Section Act Topic
1 162-100 A New Tax System (Goods payment of GST instalments
and Services Tax) Act 1999

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Liability to general interest charge

Item Column 1 Column 2 Column 3
Section Act Topic
2 168-10 A New Tax System (Goods supplies later found to be
and Services Tax) Act 1999 GST-free supplies
3 25-10 A New Tax System (Wine purchases later found to be GST
Equalisation Tax) Act 1999 free supplies
3A 175-65 Australian Charities and payment of administrative
Not-for-profits Commission penalty
Act 2012
3B 67 Excise Act 1901 payment of excise duty for
tobacco goods
5 93 Fringe Benefits Tax payment of fringe benefits tax
Assessment Act 1986
6 112B Fringe Benefits Tax payment of fringe benefits tax
Assessment Act 1986 instalments
7 102UP Income Tax Assessment Act payment of trustee beneficiary
1936 non-disclosure tax
8 128C Income Tax Assessment Act payment of withholding tax
1936
9 former Income Tax Assessment Act returns by instalment taxpayers
section 1936
163AA
10 former Income Tax Assessment Act returns by persons other than
section 163B 1936 instalment taxpayers
10A 172A Income Tax Assessment Act repayments of excessive tax
1936 offset refunds
11 271-80 in Income Tax Assessment Act payment of family trust
Schedule 2F 1936 distribution tax
12 5-15 Income Tax Assessment Act unpaid income tax or shortfall
1997 interest charge
13 197-75 Income Tax Assessment Act payment of untainting tax
1997
14 214-155 Income Tax Assessment Act payment of franking tax by a
1997 corporate tax entity

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Liability to general interest charge

Item Column 1 Column 2 Column 3
Section Act Topic
15 292-390 Income Tax Assessment Act payment of excess
1997 non-concessional contributions
tax or shortfall interest charge
15A 293-75 Income Tax Assessment Act payment of Division 293 tax or
1997 shortfall interest charge
15B 294-250 Income Tax Assessment Act payment of excess transfer
1997 balance tax
16A 418-170 Income Tax Assessment Act payment of excess exploration
1997 credit tax or shortfall interest
charge
17 721-30 Income Tax Assessment Act liability of members of
1997 consolidated groups
18 840-810 Income Tax Assessment Act payment of managed investment
1997 trust withholding tax
18A 840-910 Income Tax Assessment Act payment of labour mobility
1997 program withholding tax
19 214-105 Income Tax (Transitional payment of franking deficit tax
Provisions) Act 1997
19A 10 Boosting Cash Flow for wrong payment or overpayment
Employers (Coronavirus of a cash flow boost
Economic Response
Package) Act 2020
19B 10 Coronavirus Economic wrong payment or overpayment
Response Package of a Coronavirus economic
(Payments and Benefits) response payment
Act 2020
20 85 Petroleum Resource Rent payment of petroleum resource
Tax Assessment Act 1987 rent tax, shortfall interest charge
or instalment transfer interest
charge
20A 282-19 Private Health Insurance repayment of private health
Act 2007 insurance premium reduction or
refund

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Liability to general interest charge

Item Column 1 Column 2 Column 3
Section Act Topic
21 35 Product Grants and payment of a designated scheme
Benefits Administration Act debt
2000
22 21 Superannuation increase in liability to pay
Contributions Tax superannuation contributions
(Assessment and surcharge because of amendment
Collection) Act 1997 of assessment
23 22 Superannuation liability to pay superannuation
Contributions Tax contributions surcharge because
(Assessment and of new assessment
Collection) Act 1997
24 25 Superannuation payment of superannuation
Contributions Tax contributions surcharge or
(Assessment and advance instalment
Collection) Act 1997
25 18 Superannuation increase in liability to pay
Contributions Tax superannuation contributions
(Members of surcharge because of amendment
Constitutionally Protected of assessment
Superannuation Funds)
Assessment and Collection
Act 1997
26 21 Superannuation payment of superannuation
Contributions Tax contributions surcharge
(Members of
Constitutionally Protected
Superannuation Funds)
Assessment and Collection
Act 1997
27 25 Superannuation repayments or underpayments of
(Government Government co-contributions that
Co-contribution for Low cannot be credited to an account
Income Earners) Act 2003

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Liability to general interest charge

Item Column 1 Column 2 Column 3
Section Act Topic
28 49 Superannuation Guarantee payment of superannuation
(Administration) Act 1992 guarantee charge
29 15DC Superannuation (Self payment of superannuation (self
Managed Superannuation managed superannuation funds)
Funds) Taxation Act 1987 supervisory levy
30 17A Superannuation payment of unclaimed money
(Unclaimed Money and
Lost Members) Act 1999
31 18C Superannuation repayment of Commissioner’s
(Unclaimed Money and payment that cannot be credited
Lost Members) Act 1999 to an account
32 20F Superannuation payment of unclaimed
(Unclaimed Money and superannuation of former
Lost Members) Act 1999 temporary residents
33 20M Superannuation repayment of Commissioner’s
(Unclaimed Money and payment for former temporary
Lost Members) Act 1999 resident that cannot be credited to
an account
33A 20QE Superannuation payment in respect of inactive
(Unclaimed Money and low-balance accounts
Lost Members) Act 1999
33B 20QL Superannuation repayment of Commissioner’s
(Unclaimed Money and payment in respect of inactive
Lost Members) Act 1999 low-balance accounts that cannot
be credited to an account
33C 21D Superannuation payment in respect of eligible
(Unclaimed Money and rollover fund accounts
Lost Members) Act 1999
33D 21H Superannuation repayment of Commissioner’s
(Unclaimed Money and payment in respect of eligible
Lost Members) Act 1999 rollover fund accounts that
cannot be credited to an account

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Liability to general interest charge

Item Column 1 Column 2 Column 3
Section Act Topic
33E 22F Superannuation repayment of Commissioner’s
(Unclaimed Money and payment in respect of payments
Lost Members) Act 1999 that cannot be credited to an
account
34 24F Superannuation payment in respect of lost
(Unclaimed Money and member accounts
Lost Members) Act 1999
35 24L Superannuation repayment of Commissioner’s
(Unclaimed Money and payment for former lost member
Lost Members) Act 1999 that cannot be credited to an
account
35A 24NB Superannuation repayment of Commissioner’s
(Unclaimed Money and payment for inactive low-balance
Lost Members) Act 1999 accounts that cannot be credited
to an active account
36 8AAZF Taxation Administration RBA deficit debts
Act 1953
37 8AAZN Taxation Administration overpayments made by the
Act 1953 Commissioner
38 16-80 in Taxation Administration payment of PAYG withholding
Schedule 1 Act 1953 amounts
38A 18-150 in Taxation Administration PAYG withholding
Schedule 1 Act 1953 non-compliance tax
39 45-80 in Taxation Administration payment of PAYG instalments
Schedule 1 Act 1953
40 45-230 in Taxation Administration shortfall in quarterly PAYG
Schedule 1 Act 1953 instalments worked out on the
basis of a varied rate
41 45-232 in Taxation Administration shortfall in quarterly PAYG
Schedule 1 Act 1953 instalments worked out on the
basis of estimated benchmark tax
42 45-235 in Taxation Administration shortfall in annual PAYG
Schedule 1 Act 1953 instalments

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Liability to general interest charge

Item Column 1 Column 2 Column 3
Section Act Topic
43 45-600 and Taxation Administration tax benefits relating to PAYG
45-620 in Act 1953 instalments
Schedule 1
44 45-870 and Taxation Administration head company’s liability on
45-875 in Act 1953 shortfall in quarterly PAYG
Schedule 1 instalments
45 105-80 in Taxation Administration payment of a net fuel amount or
Schedule 1 Act 1953 an amount of indirect tax
45A 115-10 in Taxation Administration payment of major bank levy
Schedule 1 Act 1953
45B 125-10 in Taxation Administration Act payment of Laminaria and
Schedule 1 1953 Corallina decommissioning levy
or shortfall interest charge
45C 133-115 in Taxation Administration payment of debt account
Schedule 1 Act 1953 discharge liability
46 263-30 in Taxation Administration payment of a foreign revenue
Schedule 1 Act 1953 claim
47 268-75 in Taxation Administration late payment of estimate
Schedule 1 Act 1953
48 298-25 in Taxation Administration payment of administrative
Schedule 1 Act 1953 penalty

8AAC Amount of the general interest charge

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

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(3) If the charge is not payable under section 8AAZF, but applies to an
amount that remains unpaid (the original unpaid amount), then the
charge is worked out by multiplying the general interest charge rate
for that day by the sum of so much of the following amounts as
remains unpaid:
(a) the charge from previous days;
(b) the original unpaid amount.
(4) If the charge applies to an amount that is specified in the provision
that imposes the charge, but neither subsection (2) nor (3) applies,
then the charge is worked out by multiplying the general interest
charge rate for that day by the sum of the following amounts:
(a) so much of the charge from previous days as remains unpaid;
(b) the specified amount.

8AAD What is the general interest charge rate?

(1) The general interest charge rate for a day is the rate worked out
by adding 7 percentage points to the base interest rate for that day,
and dividing that total by the number of days in the calendar year.
(2) The base interest rate for a day depends on which quarter of the
year the day is in. For each day in a quarter in the second column
of the table, it is the monthly average yield of 90-day Bank
Accepted Bills published by the Reserve Bank of Australia for the
month in the third column of the table.

Base interest rate

Item For days in this quarter... the monthly average yield of 90-day Bank
Accepted Bills for this month applies...
1 1 January to 31 March the preceding November
2 1 April to 30 June the preceding February
3 1 July to 30 September the preceding May
4 1 October to 31 December the preceding August

(3) If the monthly average yield of 90-day Bank Accepted Bills for a
particular month in the third column of the table in subsection (2)

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Section 8AAE

is not published by the Reserve Bank of Australia before the

beginning of the relevant quarter, assume that it is the same as the
last monthly average yield of 90-day Bank Accepted Bills
published by the Reserve Bank of Australia before that month.
(4) The base interest rate must be rounded to the second decimal place
(rounding .005 upwards).

8AAE When the charge is due and payable

The general interest charge for a day is due and payable to the
Commissioner at the end of that day.
Note: For provisions about collection and recovery of the charge, see
Part 4-15 in Schedule 1.

8AAF Notification by Commissioner

(1) The Commissioner may give notice to a person liable to pay the
charge of the amount of the charge for a particular day or days.
(4) A notice given to a person by the Commissioner under this section
is prima facie evidence of the matters stated in the notice.

8AAG Remission of the charge

(1) The Commissioner may remit all or a part of the charge payable by
a person.
(2) However, if a person is liable to pay the charge because an amount
remains unpaid after the time by which it is due to be paid, the
Commissioner may only remit all or a part of the charge in the
circumstances set out in subsection (3), (4) or (5).
(3) The Commissioner may remit all or a part of the charge referred to
in subsection (2) if the Commissioner is satisfied that:
(a) the circumstances that contributed to the delay in payment
were not due to, or caused directly or indirectly by, an act or
omission of the person; and

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(b) the person has taken reasonable action to mitigate, or

mitigate the effects of, those circumstances.
(4) The Commissioner may remit all or a part of the charge referred to
in subsection (2) if the Commissioner is satisfied that:
(a) the circumstances that contributed to the delay in payment
were due to, or caused directly or indirectly by, an act or
omission of the person; and
(b) the person has taken reasonable action to mitigate, or
mitigate the effects of, those circumstances; and
(c) having regard to the nature of those circumstances, it would
be fair and reasonable to remit all or a part of the charge.
(5) The Commissioner may remit all or a part of the charge referred to
in subsection (2) if the Commissioner is satisfied that:
(a) there are special circumstances because of which it would be
fair and reasonable to remit all or a part of the charge; or
(b) it is otherwise appropriate to do so.

8AAGA Rounding of the charge

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

8AAH Judgment for payment of an unpaid amount

(1) This section applies if judgment is given by, or entered in, a court
for the payment of:
(a) all or a part of an amount in respect of which a person is, or
was, liable to pay the charge because the amount remains
unpaid after the time by which it is due to be paid; or
(b) an amount that includes all or a part of the unpaid amount.
(2) The consequences of judgment being given or entered are:
(a) the unpaid amount is not taken, for the purposes of a
provision that makes, or would make, the person liable to pay
the charge on the unpaid amount, to have ceased to be due

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and payable by reason only of the giving or entering of the

judgment; and
(b) if the judgment debt carries interest, the amount of the charge
that the person would, if not for this paragraph, be liable to
pay on the unpaid amount is reduced by:
(i) in a case to which paragraph (1)(a) applies—the amount
of the interest; or
(ii) in a case to which paragraph (1)(b) applies—the amount
worked out using the formula:
Unpaid amount or
part of unpaid amount
 Interest
Judgment debt

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 Running balance accounts, application of payments and credits, and related matters
Part IIB
Preliminary Division 1

Section 8AAZA

Part IIB—Running balance accounts, application

of payments and credits, and related
matters
Division 1—Preliminary

8AAZA Definitions
In this Part, unless the contrary intention appears:
company includes any body or association (whether or not it is
incorporated), but does not include a partnership or a non-entity
joint venture.
compulsory AASL repayment amount has the same meaning as in
the Australian Apprenticeship Support Loans Act 2014.
compulsory ABSTUDY SSL repayment amount has the same
meaning as in the Student Assistance Act 1973.
compulsory repayment amount has the same meaning as in the
Higher Education Support Act 2003.
compulsory SSL repayment amount has the same meaning as in
Chapter 2AA of the Social Security Act 1991.
compulsory VETSL repayment amount has the same meaning as
in the VET Student Loans Act 2016.
credit includes:
(a) an amount that the Commissioner must pay to a taxpayer
under a taxation law, whether or not described as a credit,
other than the following amounts:
(i) an amount paid under the Product Grants and Benefits
Administration Act 2000;
(ii) an amount paid under Division 18 (refunds) of the A
New Tax System (Luxury Car Tax) Act 1999;

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Division 1 Preliminary

Section 8AAZA
(iii) an amount paid under the Coronavirus Economic
Response Package (Payments and Benefits) Act 2020 to
an entity, unless a determination of the Commissioner
under section 8AAZAA specifies that the amount is a
credit for the purposes of this subparagraph; and
(b) an amount received by the Commissioner in respect of a
taxpayer as a result of the Commissioner having made a
claim that is similar in nature to a foreign revenue claim (as
defined in section 263-10 in Schedule 1).
entity means any of the following:
(a) a company;
(b) a partnership;
(c) a person in a particular capacity of trustee;
(d) a body politic;
(e) a corporation sole;
(f) any other person.
excess non-RBA credit means a credit that arises under
section 8AAZLA or 8AAZLB.
FS assessment debt means an FS assessment debt under:
(a) subsection 19AB(2) of the Social Security Act 1991; or
(b) the Student Assistance Act 1973 as in force at a time on or
after 1 July 1998.
non-entity joint venture has the meaning given by
subsection 995-1(1) of the Income Tax Assessment Act 1997.
non-RBA tax debt means a tax debt other than an RBA deficit
debt.
primary tax debt means any amount due to the Commonwealth
directly under a taxation law (other than, except in Division 4, the
Product Grants and Benefits Administration Act 2000), including
any such amount that is not yet payable.

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Part IIB
Preliminary Division 1

Section 8AAZA
RBA means a running balance account established under
section 8AAZC.
RBA deficit debt, in relation to an RBA of an entity, means a
balance in favour of the Commissioner, based on:
(a) primary tax debts that have been allocated to the RBA and
that are currently payable; and
(b) payments made in respect of current or anticipated primary
tax debts of the entity, and credits to which the entity is
entitled under a taxation law, that have been allocated to the
RBA.
RBA group means a GST group under Division 48 of the A New
Tax System (Goods and Services Tax) Act 1999.
RBA statement means a statement prepared by the Commissioner
under section 8AAZG.
RBA surplus, in relation to an RBA of an entity, means a balance
in favour of the entity, based on:
(a) primary tax debts that have been allocated to the RBA; and
(b) payments made in respect of current or anticipated primary
tax debts of the entity, and credits to which the entity is
entitled under a taxation law, that have been allocated to the
RBA.
secondary tax debt means an amount that is not a primary tax debt,
but is due to the Commonwealth in connection with a primary tax
debt.
Note: An example of a secondary tax debt is an amount due to the
Commonwealth under an order of a court made in a proceeding for
recovery of a primary tax debt.

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

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

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Division 1 Preliminary

Section 8AAZAA
(b) in relation to an RBA—the person or persons who are liable
for the tax debts that are allocated to the RBA.

8AAZAA Amounts relating to Coronavirus economic response

payments
(1) The Commissioner may make a written determination that
specifies that an amount paid under the Coronavirus Economic
Response Package (Payments and Benefits) Act 2020 to an entity is
a credit for the purposes of subparagraph (a)(iii) of the definition of
credit in section 8AAZA.
(2) A determination under subsection (1) is not a legislative
instrument.

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

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

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Part IIB
Running Balance Accounts (or RBAs) Division 2

Section 8AAZC

Division 2—Running Balance Accounts (or RBAs)

8AAZC Establishment of RBAs

(1) The Commissioner may establish one or more systems of accounts
for primary tax debts.
Note: This section does not prevent the Commissioner from establishing
other accounts that are not RBAs.

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

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

(4) RBAs for entities may be established on any basis that the
Commissioner determines.
(4A) Without limiting subsection (4), separate RBAs may be established
for different types of primary tax debts.
(5) Without limiting subsection (4), separate RBAs may be established
for:
(a) different businesses or undertakings conducted by the same
entity; or
(b) different parts of the same business or undertaking; or
(c) different periods.

8AAZD Allocation of tax debts to RBAs

(1) The Commissioner may allocate a primary tax debt to an RBA that
has been established for that type of tax debt.
Note: General interest charge on an RBA deficit debt is not allocated to the
RBA: it accrues automatically under section 8AAZF.

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Division 2 Running Balance Accounts (or RBAs)

Section 8AAZF
Separate RBAs for one entity
(1A) If 2 or more RBAs for an entity have been established for that kind
of tax debt, the Commissioner may allocate the debt to any one of
those RBAs, or between any 2 or more of those RBAs, in the
manner the Commissioner determines.
Note: Separate RBAs may be established for different businesses or
undertakings conducted by the same entity, for different parts of the
same business or undertaking or for different periods: see
subsection 8AAZC(5).

Definition
(2) In this section:
primary tax debt does not include:
(a) general interest charge; or
(b) an RBA deficit debt.

8AAZF General interest charge on RBA deficit debt

(1) If there is an RBA deficit debt at the end of a day, then general
interest charge is payable by the tax debtor on that RBA deficit
debt for that day.
(2) The balance of the RBA is altered in the Commissioner’s favour by
the amount of the general interest charge payable.

8AAZG RBA statements

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

8AAZH Liability for RBA deficit debt

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

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Part IIB
Running Balance Accounts (or RBAs) Division 2

Section 8AAZI
Note: For provisions about collection and recovery of the amount, see
Part 4-15 in Schedule 1.

(2) If there are several tax debtors, their liability for the debt is of the
same kind as their liability for the tax debts that were allocated to
the RBA.
Example: If the tax debtors are jointly and severally liable for the tax debts that
were allocated to the RBA, they will also be jointly and severally
liable for the RBA deficit debt.

8AAZI RBA statement to be evidence

(1) The production of an RBA statement:
(a) is prima facie evidence that the RBA was duly kept; and
(b) is prima facie evidence that the amounts and particulars in
the statement are correct.
(2) In this section:
RBA statement includes a document that purports to be a copy of
an RBA statement and is signed by the Commissioner or a delegate
of the Commissioner or by a Second Commissioner or Deputy
Commissioner.

8AAZJ Evidentiary certificate about RBA transactions etc.

(1) In proceedings for recovery of an RBA deficit debt, a
Commissioner’s certificate stating any of the following matters in
respect of a specified RBA is prima facie evidence of those
matters:
(a) that no tax debts (other than general interest charge on the
RBA deficit debt) were allocated to the RBA after the
balance date shown on a specified RBA statement for the
RBA;
(b) that general interest charge is payable on the RBA deficit
debt, as specified in the certificate;
(c) that payments and credits were allocated to the RBA, as
specified in the certificate;

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Division 2 Running Balance Accounts (or RBAs)

Section 8AAZJ
(d) that a specified amount was the RBA deficit debt on the date
of the certificate.
(2) In this section:
Commissioner’s certificate means a certificate signed by the
Commissioner or a delegate of the Commissioner, or by a Second
Commissioner or Deputy Commissioner.

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Part IIB
Treatment of payments, credits and RBA surpluses Division 3

Section 8AAZL

Division 3—Treatment of payments, credits and RBA

surpluses

8AAZL Amounts covered by this Division

(1) This Division sets out how the Commissioner must treat the
following kinds of amount:
(a) a payment the Commissioner receives in respect of a current
or anticipated tax debt or tax debts of an entity;
(b) a credit (including an excess non-RBA credit) that an entity
is entitled to under a taxation law;
(c) an RBA surplus of an entity.
(2) The Commissioner must treat each such amount using the method
set out in section 8AAZLA or 8AAZLB (but not both).
Note: In either case, section 8AAZLC has some additional rules that apply
to RBA surpluses and to certain excess non-RBA credits.

(3) However, the Commissioner does not have to treat an amount

using either of those methods if doing so would require the
Commissioner to apply the amount against a tax debt:
(a) that is due but not yet payable; or
(b) in respect of which the taxpayer has complied with an
arrangement under section 255-15 to pay the debt by
instalments; or
(c) in respect of which the Commissioner has agreed to defer
recovery under section 255-5.
(4) Furthermore, the Commissioner does not have to treat an amount
using either of those methods if:
(a) doing so would require the Commissioner to apply the
amount against a tax debt; and
(b) the tax debt is a penalty that is due and payable under
section 269-20 in Schedule 1 (penalties for directors of
non-complying companies).

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Division 3 Treatment of payments, credits and RBA surpluses

Section 8AAZLA
8AAZLA Method 1—allocating the amount first to an RBA
(1) The Commissioner may, in the manner he or she determines,
allocate the amount to an RBA of the entity or, if the entity is a
member of an RBA group, to an RBA of another member of the
group.
(2) The Commissioner must then also apply the amount against the
following kinds of debts (if there are any):
(a) tax debts that have been allocated to that RBA;
(b) general interest charge on such tax debts.
(3) To the extent that the amount is not applied under subsection (2), it
gives rise to an excess non-RBA credit in favour of the entity that:
(a) is equal to the part of the amount that is not applied; and
(b) relates to the RBA to which the amount was allocated.

8AAZLB Method 2—applying the amount first against a non-RBA

tax debt
(1) The Commissioner may, in the manner he or she determines, apply
the amount against a non-RBA tax debt of the entity or, if the
entity is a member of an RBA group, against a non-RBA tax debt
of another member of the group.
(2) If the non-RBA tax debt is:
(a) a tax debt that has been allocated to an RBA; or
(b) general interest charge on such a tax debt;
the Commissioner must then also allocate the amount to that RBA.
(3) To the extent that the amount is not applied under subsection (1), it
gives rise to an excess non-RBA credit in favour of the entity that
is equal to the part of the amount that is not applied.
(4) The excess non-RBA credit relates to the RBA (if any) that the
Commissioner determines and the balance of that RBA is adjusted
in the entity’s favour by the amount of that credit.

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Part IIB
Treatment of payments, credits and RBA surpluses Division 3

Section 8AAZLC
Separate RBAs for one entity
(5) If the non-RBA tax debt mentioned in subsection (1) has been
allocated to 2 or more RBAs, the Commissioner must allocate the
amount applied between those RBAs in the proportions in which
the tax debt was allocated.
Note: Separate RBAs may be established for different businesses or
undertakings conducted by the same entity, for different parts of the
same business or undertaking or for different periods: see
subsection 8AAZC(5).

8AAZLC RBA surplus and related credits must remain equivalent if

one or the other is applied

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

Excess non-RBA credits

(2) If, under this Division, an excess non-RBA credit that relates to an
RBA (the related RBA) is:
(a) allocated to an RBA; or
(b) applied against a non-RBA tax debt;
the related RBA is adjusted in the Commissioner’s favour by the
same amount.

8AAZLD Special priority credits

If, under this Division, the Commissioner is to apply a credit that
arises under Schedule 1 to this Act (the PAYG system), the
Commissioner must apply it, whether under section 8AAZLA or
8AAZLB:
(aa) first, against any compulsory repayment amount of the entity;
and

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Division 3 Treatment of payments, credits and RBA surpluses

Section 8AAZLE
(aaa) then against any compulsory VETSL repayment amount of
the entity; and
(ab) then against any compulsory SSL repayment amount of the
entity; and
(ac) then against any compulsory ABSTUDY SSL repayment
amount of the entity; and
(ad) then against any compulsory AASL repayment amount of the
entity; and
(b) then against any FS assessment debt of the entity;
before applying it against other non-RBA tax debts of the entity.

8AAZLE Instructions to Commissioner not binding

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

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Part IIB
Refunds of RBA surpluses and credits Division 3A

Section 8AAZLF

Division 3A—Refunds of RBA surpluses and credits

8AAZLF Commissioner must refund RBA surpluses and credits

(1) The Commissioner must refund to an entity so much of:
(a) an RBA surplus of the entity; or
(b) a credit (including an excess non-RBA credit) in the entity’s
favour;
as the Commissioner does not allocate or apply under Division 3.

Voluntary payments only to be refunded on request

(2) However, the Commissioner is not required to refund an RBA
surplus or excess non-RBA credit that arises because a payment is
made in respect of an anticipated tax debt of an entity unless the
entity later requests, in the approved manner, that the
Commissioner do so.
(3) On receiving such a request, the Commissioner must refund so
much of the amount as the Commissioner does not allocate or
apply under Division 3.

Effect of refunding RBA surplus

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

Effect of refunding credit that relates to an RBA

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

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Division 3A Refunds of RBA surpluses and credits

Section 8AAZLG
8AAZLG Retaining refunds until information or notification given
(1) The Commissioner may retain an amount that he or she otherwise
would have to refund to an entity under section 8AAZLF, if the
entity has not given the Commissioner a notification:
(a) that affects or may affect the amount that the Commissioner
refunds to the entity; and
(b) that the entity is required to give the Commissioner under:
(i) any of the BAS provisions (as defined in
subsection 995-1(1) of the Income Tax Assessment Act
1997); or
(ii) any of the petroleum resource rent tax provisions (as
defined in that subsection); or
(iii) any provision of a taxation law (other than a provision
mentioned in subparagraph (i) or (ii)).
(2) The Commissioner may retain the amount until the entity has given
the Commissioner that notification or the Commissioner makes or
amends an assessment of the amount, whichever happens first.
Note: Interest is payable under the Taxation (Interest on Overpayments and
Early Payments) Act 1983 if the Commissioner is late in making the
payment under subsection (2).

8AAZLGA Retaining refunds while Commissioner verifies

information

Commissioner may retain an amount

(1) The Commissioner may retain an amount that he or she otherwise
would have to refund to an entity under section 8AAZLF, if the
entity has given the Commissioner a notification that affects or
may affect the amount that the Commissioner refunds to the entity,
and:
(a) it would be reasonable to require verification of information
(the notified information) that:
(i) is contained in the notification; and

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Refunds of RBA surpluses and credits Division 3A

Section 8AAZLGA
(ii) relates to the amount that the Commissioner would have
to refund; or
(b) the entity has requested the Commissioner to retain the
amount for verification of the notified information, and the
request has not been withdrawn.
(2) In deciding whether to retain the amount under this section, the
Commissioner must, as far as the information available to the
Commissioner at the time of making the decision reasonably
allows, have regard to the following:
(a) the likely accuracy of the notified information;
(b) the likelihood that the notified information was affected by:
(i) fraud or evasion; or
(ii) intentional disregard of a taxation law; or
(iii) recklessness as to the operation of a taxation law;
(c) the impact of retaining the amount on the entity’s financial
position;
(d) whether retaining the amount is necessary for the protection
of the revenue, including the likelihood that the
Commissioner could recover any of the amount if the
notified information were found to be incorrect after the
amount had been refunded;
(e) any complexity that would be involved in verifying the
notified information;
(f) the time for which the Commissioner has already retained the
amount;
(g) what the Commissioner has already done to verify the
notified information;
(h) whether the Commissioner has enough information to make
an assessment relating to the amount (including information
obtained from making further requests for information);
(i) the extent to which the notified information is consistent with
information that the entity previously provided;
(j) any other relevant matter.

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Division 3A Refunds of RBA surpluses and credits

Section 8AAZLGA
Informing the entity of the retention of the amount
(3) The Commissioner must inform the entity (by serving a document
on the entity or by other means) that he or she has retained the
amount under this section. He or she must do so by the end of:
(a) in a case to which paragraph 8AAZLF(1)(a) applies—the
RBA interest day (within the meaning of section 12AF of the
Taxation (Interest on Overpayments and Early Payments)
Act 1983) for the RBA surplus of the entity; or
(b) in any other case—the 30th day after the entity gives to the
Commissioner the notification mentioned in subsection (1) of
this section.
(4) In informing the entity that the amount is retained, the
Commissioner may request information that he or she is aware will
be required for the purposes of verifying the notified information.

How long the amount may be retained

(5) The Commissioner may retain the amount under this section only
until:
(a) if paragraph (1)(a) applies—it would no longer be reasonable
to require verification of the information; or
(b) if the Commissioner fails to inform the entity, in accordance
with subsection (3), that he or she has retained the amount
under this section—the end of the day after the time by
which, under that subsection, the Commissioner is required
to inform the entity; or
(c) in any case—there is a change to how much the
Commissioner is required to refund, as a result of:
(i) the Commissioner amending an assessment relating to
the amount; or
(ii) the Commissioner making or amending an assessment,
under Division 105 in Schedule 1, relating to the
amount;
whichever happens first.

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Part IIB
Refunds of RBA surpluses and credits Division 3A

Section 8AAZLGB
Objecting to the decision to retain the amount
(6) The entity may object to a decision of the Commissioner to retain
the amount under this section in the manner set out in Part IVC, if
the entity is dissatisfied with the decision.
Note: Interest on the amount may be payable under the Taxation (Interest on
Overpayments and Early Payments) Act 1983.

(7) Before the end of the 7 days after the start of the period during
which, under section 14ZW, the entity may object to the decision,
the Commissioner must notify the entity, in writing, that the entity
may object to the decision.
Note: For the start of the period for objecting to the decision, see
paragraph 14ZW(1)(aad) and subsection 14ZW(4).

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

8AAZLGB Retaining refunds until notification under Division 389

or ascertainment of liability

Commissioner may retain an amount

(1) The Commissioner may retain an amount that he or she otherwise
would have to refund to an entity under section 8AAZLF, if:
(a) the Commissioner reasonably believes that the entity has
made a payment as a result of which the entity is, or will be,
required to notify the Commissioner under section 389-5 in
Schedule 1; and
(b) the entity has not notified the Commissioner of the amount
under that section; and
(c) the notification affects or may affect the amount that the
Commissioner refunds to the entity.
(2) The Commissioner must inform the entity that he or she has
retained the amount under this section. He or she must do so within
14 days after the day on which the relevant RBA surplus or credit
arose.

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Division 3A Refunds of RBA surpluses and credits

Section 8AAZLGB
How long the amount may be retained
(3) The Commissioner may retain the amount until:
(a) the entity has given the Commissioner that notification
(including notification of a nil amount); or
(b) the Commissioner becomes reasonably satisfied that the
entity is not required to give that notification; or
(c) the Commissioner becomes reasonably satisfied that the
entity does not have a liability (a PAYGW liability) to pay to
the Commissioner an amount of a kind referred to in item 1
of the table in subsection 389-5(1) in Schedule 1; or
(d) the Commissioner ascertains (including as a result of making
an estimate) the total amount of the entity’s outstanding
PAYGW liabilities;
whichever happens first.
Note: Interest is payable under the Taxation (Interest on Overpayments and
Early Payments) Act 1983 if the Commissioner is late in making the
payment under subsection (3).

Objecting to the decision to retain the amount

(4) The entity may object to a decision of the Commissioner to retain
the amount under this section in the manner set out in Part IVC, if
the entity is dissatisfied with the decision.
Note: For the start of the period for objecting to the decision, see
paragraph 14ZW(1)(aae).

(5) Before the end of the 7 days after the start of the period during
which, under section 14ZW, the entity may object to the decision,
the Commissioner must notify the entity, in writing, that the entity
may object to the decision.
(6) A failure to comply with subsection (5) does not affect the validity
of the decision.

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Part IIB
Refunds of RBA surpluses and credits Division 3A

Section 8AAZLH
8AAZLH How refunds are made
(1) This section applies to refunds payable to an entity of RBA
surpluses, or excess non-RBA credits that relate to an RBA, if
primary tax debts arising under:
(a) any of the BAS provisions (as defined in subsection 995-1(1)
of the Income Tax Assessment Act 1997); or
(b) any of the petroleum resource rent tax provisions (as defined
in that subsection);
have been allocated to that RBA.
(2) The Commissioner must pay those refunds to the credit of a
financial institution account nominated in the approved form by the
entity. The account nominated must be maintained at a branch or
office of the institution that is in Australia.
(2A) The account must be one held by:
(a) the entity, or the entity and some other entity; or
(b) the entity’s registered tax agent or BAS agent; or
(c) a legal practitioner as trustee or executor for the entity.
(3) However, the Commissioner may direct that any such refunds be
paid to the entity in a different way.
(4) If an entity has not nominated a financial institution account for the
purposes of this section and the Commissioner has not directed that
any such refunds be paid in a different way, the Commissioner is
not obliged to refund any amount to the entity until the entity does
so.
(5) If the Commissioner pays a refund to the credit of an account
nominated by an entity, the Commissioner is taken to have paid the
refund to the entity.

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Part IIB Running balance accounts, application of payments and credits, and related
matters
Division 4 Miscellaneous provisions about tax debts

Section 8AAZM

Division 4—Miscellaneous provisions about tax debts

8AAZM When payments are treated as received

For the purposes of taxation laws, a payment in respect of a tax
debt is taken not to have been made until it is received by:
(a) the Commissioner; or
(b) a person acting on behalf of the Commissioner.

8AAZMA Electronic payment of tax debts

(1) An entity that, under subsection 33-10(2) of the A New Tax System
(Goods and Services Tax) Act 1999, is required to pay an assessed
net amount for a tax period electronically must also electronically
pay the Commissioner all of its other tax debts that are due to be
paid during that period.
(2) A large withholder that, under subsection 16-85(1) in Schedule 1,
is required to pay an amount electronically in a particular month
must also electronically pay the Commissioner all of its other tax
debts that are due to be paid during that month.

8AAZMB Saturdays, Sundays and public holidays

(1) Where, apart from this section, an amount in respect of a tax debt
is due and payable by, or on, a day (the payment day) that is not a
business day, the payment is due and payable on the first business
day after the payment day.
(2) In this section:
business day means a day other than:
(a) a Saturday or a Sunday; or
(b) a day which is a public holiday for the whole of:
(i) any State; or
(ii) the Australian Capital Territory; or
(iii) the Northern Territory.

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 Running balance accounts, application of payments and credits, and related matters
Part IIB
Miscellaneous provisions about tax debts Division 4

Section 8AAZN
tax debt does not include general interest charge.

8AAZN Overpayments made by the Commissioner under taxation

laws
(1) An administrative overpayment (the overpaid amount):
(a) is a debt due to the Commonwealth by the person to whom
the overpayment was made (the recipient); and
(b) is payable to the Commissioner; and
(c) may be recovered in a court of competent jurisdiction by the
Commissioner, or by a Deputy Commissioner, suing in his or
her official name.
(2) If:
(a) the Commissioner has given a notice to the recipient in
respect of the overpaid amount, specifying a due date for
payment that is at least 30 days after the notice is given; and
(b) any of the overpaid amount remains unpaid at the end of that
due date;
then the recipient is liable to pay the general interest charge on the
unpaid amount for each day in the period that:
(c) started at the beginning of that due date; and
(d) finishes at the end of the last day on which, at the end of the
day, any of the following remains unpaid:
(i) the overpaid amount;
(ii) general interest charge on any of the overpaid amount.
(3) In this section:
administrative overpayment means an amount that the
Commissioner has paid to a person by mistake, being an amount to
which the person is not entitled.

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Part III Prosecutions and offences
Division 1 Preliminary

Section 8A

Part III—Prosecutions and offences

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

Division 1—Preliminary

8A Interpretation
(1) In this Part, unless the contrary intention appears:
corporation means any body corporate.
director, in relation to a corporation, includes:
(a) any person occupying or acting in the position of director of
the corporation, by whatever name called and whether or not
validly appointed to occupy, or duly authorized to act in, the
position; and
(b) any person in accordance with whose directions or
instructions the directors of the corporation are accustomed
to act.
instrument includes any document.
prescribed offence means:
(a) an offence against section 8C, subsection 8D(1) or (2) or
section 8N or 8Q, or against Division 136 or 137 of the
Criminal Code in relation to a taxation law; or
(b) an offence against section 11.1 of the Criminal Code that
relates to an offence of a kind referred to in paragraph (a).
prescribed taxation offence means:
(a) a taxation offence (other than a prescribed offence) that is
committed by a natural person and punishable by a fine and
not by imprisonment;
(b) a prescribed offence (other than a prescribed offence that the
Commissioner has elected under subsection 8F(1) or 8S(1) to

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 Prosecutions and offences Part III
Preliminary Division 1

Section 8AC

treat otherwise than as a prescribed taxation offence) that is

committed by a natural person; or
(c) a taxation offence that is committed by a corporation.
produce, in relation to a book, paper, record or other document,
includes permit access to.
taxation offence means:
(a) an offence against a taxation law; or
(b) an offence against:
(i) section 6 of the Crimes Act 1914; or
(ii) section 11.1, 11.4 or 11.5 of the Criminal Code;
being an offence that relates to an offence against a taxation
law.
tax file number means a tax file number as defined in
section 202A of the Income Tax Assessment Act 1936.
(2) For the purposes of the definition of director in subsection (1), a
person shall not be regarded as a person in accordance with whose
directions or instructions the directors of a corporation are
accustomed to act by reason only that the directors act on advice
given by that person in the proper performance of the functions
attaching to the person’s professional capacity or to the person’s
business relationship with the directors.

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

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

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Part III Prosecutions and offences
Division 2 Offences

Section 8B

Division 2—Offences
Subdivision A—Failure to comply with taxation requirements

8B Interpretation
(1) A reference in this Subdivision to a relevant offence is a reference
to:
(a) an offence against section 8C, subsection 8D(1) or (2) or
section 8H; or
(b) an offence against:
(i) section 6 of the Crimes Act 1914; or
(ii) section 11.1, 11.4 or 11.5 of the Criminal Code;
being an offence that relates to an offence of a kind referred
to in paragraph (a) of this subsection.
(2) For the purposes of this Subdivision, a person who is convicted of
an offence against section 8C or subsection 8D(1) or (2) (in this
subsection referred to as the subsequent offence) shall be treated
as having been previously convicted of a relevant offence (in this
subsection referred to as the earlier offence) if:
(a) the person was convicted of the earlier offence on an
occasion earlier than, but not more than 5 years earlier than,
the person’s conviction of the subsequent offence; or
(b) the person is convicted of the earlier offence and the
subsequent offence before the same court at the same sitting
and the earlier offence was committed:
(i) at a time or on a day earlier than, but not more than
5 years earlier than, the subsequent offence; or
(ii) at the same time, or on the same day, as the subsequent
offence.
(3) A reference in subsection 8E(2) or (3) or 8F(1) or subsection (2) of
this section to an offence against section 8C or subsection 8D(1) or
(2) includes a reference to an offence against section 11.1 of the

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Offences Division 2

Section 8C

Criminal Code that relates to an offence against section 8C or

subsection 8D(1) or (2), as the case may be.
(4) Unless the contrary intention appears, a reference in
paragraph (2)(a) or (b) to a conviction of a person of an offence
includes a reference to the making of an order under section 19B of
the Crimes Act 1914 in relation to the person in respect of the
offence.

8C Failure to comply with requirements under taxation law

(1) A person who refuses or fails, when and as required under or
pursuant to a taxation law to do so:
(a) to give any information or document to the Commissioner or
another person; or
(aa) to give information to the Commissioner in the manner in
which it is required under a taxation law to be given; or
(b) to lodge an instrument with the Commissioner or another
person for assessment; or
(d) to notify the Commissioner or another person of a matter or
thing; or
(e) to produce a book, paper, record or other document to the
Commissioner or another person; or
(f) to attend before the Commissioner or another person; or
(fa) to comply with a superannuation guarantee education
direction in accordance with subsection 384-17(1) in
Schedule 1; or
(g) to apply for registration or cancellation of registration under
the A New Tax System (Goods and Services Tax) Act 1999; or
(h) to comply with a requirement under subsection 45A(2) of the
Product Grants and Benefits Administration Act 2000; or
(i) to comply with subsection 82-10F(4) of the Income Tax
(Transitional Provisions) Act 1997;
commits an offence.
(1A) An offence under subsection (1) is an offence of absolute liability.
Note: For absolute liability, see section 6.2 of the Criminal Code.

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Division 2 Offences

Section 8D

(1B) Subsection (1) does not apply to the extent that the person is not
capable of complying with the relevant paragraph.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (1B), see subsection 13.3(3) of the Criminal Code.

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

8D Failure to answer questions when attending before the

Commissioner etc.
(1) A person who, when attending before the Commissioner or another
person pursuant to a taxation law, refuses or fails, when and as
required pursuant to a taxation law to do so:
(a) to answer a question asked of the person; or
(b) to produce a book, paper, record or other document;
commits an offence.
(1A) An offence under subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

(1B) Subsection (1) does not apply to the extent that the person is not
capable of complying with the relevant paragraph.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (1B), see subsection 13.3(3) of the Criminal Code.

(2) A person who, when attending before the Commissioner or another

person pursuant to a taxation law, refuses or fails, when and as
required pursuant to a taxation law to do so, either to take an oath
or make an affirmation commits an offence.

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Section 8E

8E Penalties for failure to comply with requirements under taxation

law
(1) Subject to subsections (2) and (3), an offence against section 8C or
subsection 8D(1) or (2) is punishable on conviction by a fine not
exceeding 20 penalty units.
(2) Subject to subsection (3), where:
(a) a person is convicted of an offence against section 8C or
subsection 8D(1) or (2); and
(b) the court before which the person is convicted is satisfied that
the person has previously been convicted of a relevant
offence;
the penalty that the court may impose in respect of the
first-mentioned offence is a fine not exceeding 40 penalty units.
(3) Where:
(a) a person is convicted of an offence against section 8C or
subsection 8D(1) or (2);
(b) in a case where the person is a natural person—the
Commissioner has elected under subsection 8F(1) to treat the
offence otherwise than as a prescribed taxation offence; and
(c) the court before which the person is convicted is satisfied that
the person has previously been convicted of 2 or more
relevant offences;
the penalty that the court may impose in respect of the
first-mentioned offence is a fine not exceeding 50 penalty units or
imprisonment for a period not exceeding 12 months, or both.

8F Election to treat offence otherwise than as prescribed taxation

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

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Division 2 Offences

Section 8G

(2) Where a prosecution is instituted for an offence in relation to

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

8G Order to comply with requirement

(1) Where:
(a) a person is convicted before a court of an offence against
section 8C or subsection 8D(1) or (2); or
(b) a court makes an order under section 19B of the Crimes Act
1914 in relation to a person in respect of an offence against
section 8C or subsection 8D(1) or (2);
in relation to the refusal or failure of the person to comply (whether
in whole or in part) with a requirement made under or pursuant to a
taxation law, the court may, in addition to imposing a penalty on
the person or making such an order in relation to the person, as the
case may be, and notwithstanding that the time for complying with
the requirement or any other such requirement has passed, order
the person to comply with:
(c) the requirement; and
(d) such other requirements made, or that could be made, in
relation to the person under or pursuant to the taxation law as
the court considers necessary to ensure the effectiveness of
the first-mentioned requirement;
within a specified time or at a specified place and time.
(2) Where an order under subsection (1) is not given orally by the
court to the person to whom the order is addressed, the proper
officer of the court shall cause a copy of the order to be served on
the person in the prescribed manner.

8H Penalty for failure to comply with order to comply

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

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Section 8HA

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

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

(3) Subsection (1) does not apply to the extent that the person is not
capable of complying with the relevant paragraph.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (3), see subsection 13.3(3) of the Criminal Code.

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

(1) If:
(a) a person (the convicted person) is convicted before a court of
an offence against section 8C, 8D or 8H in relation to a
refusal or failure to do a particular thing; and
(b) the court is satisfied that the purpose of, or one of the
purposes of, the refusal or failure was to facilitate the
avoidance of an amount of a tax liability of the convicted
person or another person;
the court may, in addition to imposing a penalty on the convicted
person, order the convicted person to pay to the Commissioner an
amount not exceeding:
(c) if the offence is an offence to which subsection 8E(2) or (3)
applies—3 times that amount; or
(d) in any other case—2 times that amount.
(2) A reference in this section to a conviction of a person for an
offence includes a reference to the making of an order under
section 19B of the Crimes Act 1914 in relation to the person in
respect of the offence.

Subdivision B—Offences relating to statements, records and

certain other Acts

8J Interpretation
(1) In this Subdivision:

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Section 8J

accounting records includes invoices, receipts, orders for the

payment of money, bills of exchange, cheques, promissory notes,
vouchers and other documents of prime entry and also includes:
(a) such working papers and other documents as are necessary to
explain the methods and calculations by which accounts are
made up; and
(b) such other documents (if any) as are prescribed.
accounts means ledgers, journals, profit and loss accounts and
balance-sheets, and includes statements, reports and notes attached
to, or intended to be read with, any of the foregoing.
data processing device means any article or material from which
information is capable of being reproduced with or without the aid
of any other article or device.
taxation officer means a person exercising powers or performing
functions under, pursuant to or in relation to a taxation law.
(2) A reference in this Subdivision to a statement made to a taxation
officer is a reference to a statement made to a taxation officer
orally, in writing, in a data processing device, by way of electronic
transmission or in any other form and, without limiting the
generality of the foregoing, includes a statement:
(a) made in an application, certificate, declaration, notification,
objection, return, claim or other document made, prepared,
given or furnished, or purporting to be made, prepared, given
or furnished, under or pursuant to a taxation law; or
(b) made in an instrument lodged for assessment under or
pursuant to a taxation law; or
(c) made in answer to a question asked of a person under or
pursuant to a taxation law; or
(d) made in any information furnished, or purporting to be
furnished, under or pursuant to a taxation law; or
(e) made in a document furnished to a taxation officer otherwise
than under or pursuant to a taxation law;
but does not include a statement made in a document produced
pursuant to:

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Section 8J

(kaa) subparagraph 451(2)(c)(ii) or paragraph 453(1)(e) of the

Income Tax Assessment Act 1936;
(p) paragraph 13G(1)(c) of this Act; or
(pa) paragraph 353-10(1)(c) in Schedule 1 to this Act; or
(q) paragraph 353-25(1)(b) or (c) in Schedule 1 to this Act.
(2A) If a document is given on a data processing device, or by way of
electronic transmission, by a registered tax agent or BAS agent on
behalf of a taxpayer, then, for the purposes of this Subdivision,
each statement in the document is taken to have been made by the
taxpayer unless the taxpayer can show that the taxpayer did not
authorise the statement.
(3) A reference in this Subdivision to a relevant offence is a reference
to:
(a) an offence against:
(i) subsection 8K(1) or (1B) or 8L(1) or (1A) or
section 8N, 8Q, 8T or 8U; or
(ii) the Crimes (Taxation Offences) Act 1980;
(b) an offence against:
(i) section 6 of the Crimes Act 1914; or
(ii) section 11.1, 11.4 or 11.5 of the Criminal Code;
being an offence that relates to an offence of a kind referred
to in paragraph (a) of this subsection; or
(c) an offence against section 134.1, 134.2, 135.1, 135.2 or 135.4
of the Criminal Code, being an offence that relates to a tax
liability.
(4) For the purposes of this Subdivision, a person who is convicted of
an offence against subsection 8K(1) or (1B) or 8L(1) or (1A) or
section 8N, 8Q, 8T or 8U (in this subsection referred to as the
subsequent offence) shall be treated as having been previously
convicted of a relevant offence (in this subsection referred to as the
earlier offence) if:
(a) the person was convicted of the earlier offence on an
occasion earlier than, but not more than 10 years earlier than,
the person’s conviction of the subsequent offence; or

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Section 8J

(b) the person is convicted of the earlier offence and the

subsequent offence before the same court at the same sitting
and the earlier offence was committed:
(i) at a time or on a day earlier than, but not more than
10 years earlier than, the subsequent offence; or
(ii) at the same time, or on the same day, as the subsequent
offence.
(5) Unless the contrary intention appears, a reference in
paragraph (4)(a) or (b) to a conviction of a person for an offence
includes a reference to the making of an order under section 19B of
the Crimes Act 1914 in relation to the person in respect of the
offence.
(6) A reference in subsection (4) of this section or subsection 8M(2) to
an offence against subsection 8K(1) or (1B) or 8L(1) or (1A)
includes a reference to an offence against section 11.1 of the
Criminal Code that relates to an offence against subsection 8K(1)
or (1B) or 8L(1) or (1A), as the case may be.
(7) A reference in subsection 8R(2) or 8S(1) or subsection (4) of this
section to an offence against section 8N or 8Q includes a reference
to an offence against section 11.1 of the Criminal Code that relates
to an offence against section 8N or 8Q, as the case may be.
(8) A reference in subsection 8V(2) or subsection (4) of this section to
an offence against section 8T or 8U includes a reference to an
offence against section 11.1 of the Criminal Code that relates to an
offence against section 8T or 8U, as the case may be.
(9) A reference in this Subdivision to a statement made to a taxation
officer includes a reference to a statement made to a person other
than a taxation officer for a purpose in connection with the
operation of a taxation law.
(10) A reference in subsection (9) to a statement made to a person other
than a taxation officer for a purpose in connection with the
operation of a taxation law is a reference to such a statement made
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Section 8J

and, without limiting the generality of the foregoing, includes such

a statement:
(a) made in an application, certificate, declaration, notification or
other document, made, given or furnished to the person; or
(aa) made in:
(i) a tax invoice (within the meaning of the A New Tax
System (Goods and Services Tax) Act 1999); or
(ii) an adjustment note (within the meaning of that Act); or
(iii) a third party adjustment note (within the meaning of that
Act);
given to the person; or
(b) made in answer to a question asked by the person; or
(c) made in any information furnished to the person.
(11) Where a person omits from a return furnished under or pursuant to
the Income Tax Assessment Act 1936 or the regulations under that
Act, being a return of income derived by the person, a partnership
or a trust estate during a period, any assessable income derived by
the person, partnership or the trust estate, as the case may be,
during the period, the person shall, for the purposes of this
Subdivision, be taken to have made a statement in the return to the
effect that the person, the partnership or the trust estate, as the case
requires, did not derive the assessable income during the period.
(12) Where:
(a) a person issues a notice to another person under section 265B
of the Income Tax Assessment Act 1936;
(b) a person to whom a notice is issued under that section gives
the notice to another person in connection with the transfer of
a qualifying security to the other person; or
(c) a person gives advice in writing to another person, in
connection with the transfer of a qualifying security, of a
variation or partial redemption of the qualifying security;
any statement in the notice when so issued or given, or in the
advice when so given, to the other person shall, for the purposes of
this Division, be taken to have been made by the issuer or person

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Section 8J

giving the notice or advice, as the case may be, to the other person
for a purpose in connection with the operation of a taxation law.
(13) Where:
(a) the holder of a qualifying security transfers the security to
another person;
(b) by virtue of the application of section 128AA of the Income
Tax Assessment Act 1936, the holder is liable to pay
withholding tax in relation to the transfer of the qualifying
security;
(c) before the security was transferred, the holder gave to the
transferee, in connection with the transfer, a notice issued to
the holder under section 265B of that Act identifying the
security;
(d) after the notice was issued to the holder, the security was
varied or partially redeemed; and
(e) the holder did not advise the transferee in writing of the
variation or partial redemption;
the holder shall, for the purposes of this Division, be taken to have
made for a purpose in connection with the operation of a taxation
law a statement that the qualifying security was not so varied or
partially redeemed.
(14) Where:
(a) the holder of a qualifying security who acquired the security
on transfer (in this subsection referred to as the current
acquisition transfer) transfers the security to another person;
(b) by virtue of the application of section 128AA of the Income
Tax Assessment Act 1936, the holder is liable to pay
withholding tax in relation to the transfer of the security;
(c) before the security was transferred, the holder gave to the
transferee, in connection with the transfer, a certificate issued
to the holder under section 128AB of that Act identifying the
security; and
(d) the holder had acquired the security on transfer on any
occasion before the current acquisition transfer;

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Section 8J

the holder shall, for the purposes of this Division, be taken to have
made for a purpose in connection with the operation of a taxation
law a statement that the certificate relates to the current acquisition
transfer.
(15) Where:
(a) a qualifying security is redeemed or partially redeemed from
the holder;
(b) the holder acquired the security on transfer (in this subsection
referred to as the current acquisition transfer);
(c) the holder is liable to pay withholding tax in relation to the
redemption or partial redemption of the security;
(d) before the security was redeemed or partially redeemed, the
holder gave to the issuer, in connection with the redemption
or partial redemption, a certificate issued to the holder under
section 128AB of the Income Tax Assessment Act 1936
identifying the security; and
(e) the holder had acquired the security on transfer on any
occasion before the current acquisition transfer;
the holder shall, for the purposes of this Division, be taken to have
made for a purpose in connection with the operation of a taxation
law a statement that the certificate relates to the current acquisition
transfer.
(16) Subject to subsection (17), for the purposes of subsections (12) to
(15) (inclusive):
(a) expressions used in those subsections that are also used in
Division 16E of Part III of the Income Tax Assessment Act
1936 have the same respective meanings as in that Division;
and
(b) sections 159GV (other than subsection 159GV(2)) and
159GZ of the Income Tax Assessment Act 1936 apply as if
references in those sections to “this Division” were
references to “section 8J of the Taxation Administration Act
1953”.

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Section 8K

(17) Subsection (16) applies as if paragraph (c) of the definition of

qualifying security in subsection 159GP(1) of the Income Tax
Assessment Act 1936 were omitted.

8K False or misleading statements

(1) A person commits an offence if:
(a) the person makes a statement to a taxation officer; and
(b) the statement is false or misleading in a material particular.
(1A) In subsection (1), absolute liability applies to the circumstance, that
the statement is false or misleading in a material particular.
Note: For absolute liability, see section 6.2 of the Criminal Code.

(1B) A person commits an offence if:

(a) the person makes a statement to a taxation officer; and
(b) the person omits any matter or thing from the statement; and
(c) the statement is misleading in a material particular because of
the omission.
(1C) In subsection (1B), absolute liability applies to:
(a) the conduct, that the person omits a matter or thing; and
(b) the circumstance, that the statement is misleading in a
material particular.
Note: For absolute liability, see section 6.2 of the Criminal Code.

(2) In a prosecution of a person for an offence against subsection (1) or

(1B), it is a defence if the person proves that the person:
(a) did not know; and
(b) could not reasonably be expected to have known;
that the statement to which the prosecution relates was false or
misleading.
Note: The defendant bears a legal burden in relation to the matter in
subsection (2), see section 13.4 of the Criminal Code.

(2A) Subsection (1) or (1B) does not apply if:

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Section 8K

(a) the statement (the original statement) was made under

section 389-5 in Schedule 1 notifying an amount under
item 1, 2 or 2A of the table in subsection 389-5(1) in that
Schedule (and no other item in that table); and
(b) the original statement related to the financial year in which it
was made; and
(c) the person who made the original statement makes a further
statement to a taxation officer that corrects the original
statement in each of the respects in which it is false or
misleading in a material particular; and
(d) the further statement:
(i) is in the approved form; and
(ii) if subsection 389-25(1) in that Schedule provides for a
period for correcting the original statement—is made
within that period; and
(iii) without limiting subparagraph (ii), is made within 14
days after the end of the financial year in which the
original statement was made.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (2A), see subsection 13.3(3) of the Criminal Code.

(2B) Subsection (1) or (1B) does not apply if:

(a) the statement (the original statement) was made under
section 390-5 in Schedule 1; and
(b) the person who made the original statement makes a further
statement to a taxation officer that corrects the original
statement in each of the respects in which it is false or
misleading in a material particular; and
(c) subsection 390-7(1) in Schedule 1 provides for a period for
correcting the original statement; and
(d) the further statement:
(i) is in the approved form; and
(ii) is made within the period referred to in paragraph (c) of
this subsection.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2B): see subsection 13.3(3) of the Criminal Code.

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Section 8L

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

8L Incorrectly keeping records etc.

(1) A person commits an offence if:
(a) the person is required under, or pursuant to, a taxation law to
keep any accounts, accounting records or other records; and
(b) the person keeps the accounts or records; and
(c) the accounts or records do not correctly record and explain
the matters, transactions, acts or operations to which they
relate.
(1A) A person commits an offence if:
(a) the person is required under, or pursuant to, a taxation law to
make a record of any matter, transaction, act or operation;
and
(b) the person makes the record; and
(c) the record does not correctly record the matter, transaction,
act or operation.
(1B) An offence under subsection (1) or (1A) is an offence of absolute
liability.
Note: For absolute liability, see section 6.2 of the Criminal Code.

(2) In a prosecution of a person for an offence against subsection (1) or

(1A), it is a defence if the person proves that the person:
(a) did not know; and
(b) could not reasonably be expected to have known;
that:
(c) in the case of a prosecution for an offence against
subsection (1)—the accounts, accounting records or other
records to which the prosecution relates did not correctly
record and explain the matters, transactions, acts or
operations to which they relate; or

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Section 8M

(d) in the case of a prosecution for an offence against

subsection (1A)—the record to which the prosecution relates
did not correctly record the matter, transaction, act or
operation to which the record relates.
Note: The defendant bears a legal burden in relation to the matter in
subsection (2), see section 13.4 of the Criminal Code.

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

8L(1) and (1A)
(1) Subject to subsection (2), an offence against subsection 8K(1) or
(1B) or 8L(1) or (1A) is punishable on conviction by a fine not
exceeding 20 penalty units.
(2) Where:
(a) a person is convicted of an offence against subsection 8K(1)
or (1B) or 8L(1) or (1A); and
(b) the court before which the person is convicted is satisfied that
the person has previously been convicted of a relevant
offence;
the penalty that the court may impose in respect of the
first-mentioned offence is a fine not exceeding 40 penalty units.

8N Recklessly making false or misleading statements

(1) A person commits an offence if:
(a) the person makes a statement (whether orally, in a document
or in any other way) to a taxation officer; and
(b) the statement:
(i) is false or misleading in a material particular; or
(ii) omits any matter or thing without which the statement is
misleading in a material particular; and
(c) the person is reckless as to whether the statement:
(i) is false or misleading in a material particular; or
(ii) omits any matter or thing without which the statement is
misleading in a material particular.

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Section 8N

(2) This section does not apply if:

(a) the statement (the original statement) was made under
section 389-5 in Schedule 1 notifying an amount under
item 1, 2 or 2A of the table in subsection 389-5(1) in that
Schedule (and no other item in that table); and
(b) the original statement related to the financial year in which it
was made; and
(c) the person who made the original statement makes a further
statement to a taxation officer that corrects the original
statement in each of the respects in which it is false or
misleading in a material particular; and
(d) the further statement:
(i) is in the approved form; and
(ii) if subsection 389-25(1) in that Schedule provides for a
period for correcting the original statement—is made
within that period; and
(iii) without limiting subparagraph (ii), is made within 14
days after the end of the financial year in which the
original statement was made.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (2), see subsection 13.3(3) of the Criminal Code.

(3) This section does not apply if:

(a) the statement (the original statement) was made under
section 390-5 in Schedule 1; and
(b) the person who made the original statement makes a further
statement to a taxation officer that corrects the original
statement in each of the respects in which it is false or
misleading in a material particular; and
(c) subsection 390-7(1) in Schedule 1 provides for a period for
correcting the original statement; and
(d) the further statement:
(i) is in the approved form; and
(ii) is made within the period referred to in paragraph (c) of
this subsection.

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Section 8Q

Note: A defendant bears an evidential burden in relation to the matter in

subsection (3): see subsection 13.3(3) of the Criminal Code.

8Q Recklessly incorrectly keeping records etc.

(1) A person commits an offence if:
(a) the person is required under, or pursuant to, a taxation law to
keep any accounts, accounting records or other records; and
(b) the person keeps the accounts or records; and
(ba) the accounts or records do not correctly record and explain
the matters, transactions, acts or operations to which they
relate; and
(c) the person is reckless as to whether the accounts or records
correctly record and explain the matters, transactions, acts or
operations to which they relate.
(2) A person commits an offence if:
(a) the person is required under, or pursuant to, a taxation law to
make a record of any matter, transaction, act or operation;
and
(b) the person makes the record; and
(ba) the record does not correctly record the matter, transaction,
act or operation; and
(c) the person is reckless as to whether the record correctly
records the matter, transaction, act or operation.
(3) In subsections (1) and (2), strict liability applies to the
circumstance, that the person is required under, or pursuant to, a
taxation law to keep the accounts, accounting records or other
records.
Note: For strict liability, see section 6.1 of the Criminal Code.

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

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

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Section 8S

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

(b) in a case where the person is a natural person—the
Commissioner has elected under subsection 8S(1) to treat the
offence otherwise than as a prescribed taxation offence; and
(c) the court before which the person is convicted is satisfied that
the person has previously been convicted of a relevant
offence;
the penalty that the court may impose in respect of the
first-mentioned offence is a fine not exceeding 50 penalty units or
imprisonment for a period not exceeding 12 months, or both.

8S Election to treat offence otherwise than as prescribed taxation

offence
(1) The Commissioner may, before the institution of a prosecution of a
natural person for an offence against section 8N, or 8Q, or against
Division 136 or 137 of the Criminal Code in relation to a taxation
law, elect, in writing, to treat the offence otherwise than as a
prescribed taxation offence.
(2) Where a prosecution is instituted for an offence in relation to
which an election under subsection (1) has been made, the
Commissioner shall cause a copy of the election to be filed in the
court in which the prosecution is instituted.

8T Incorrectly keeping records with intention of deceiving or

misleading etc.
A person who:
(a) keeps any accounts, accounting records or other records in
such a way that they:
(i) do not correctly record and explain the matters,
transactions, acts or operations to which they relate; or
(ii) are (whether in whole or in part) illegible,
indecipherable, incapable of identification or, if they are
kept in the form of a data processing device, incapable
of being used to reproduce information;

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Section 8U

(b) makes a record of any matter, transaction, act or operation in

such a way that it does not correctly record the matter,
transaction, act or operation;
(c) engages in conduct that results in the alteration, defacing,
mutilation, falsification, damage, removal, concealing or
destruction of any accounts, accounting records or other
records (whether in whole or in part); or
(d) does or omits to do any other act or thing to any accounts,
accounting records or other records;
with any of the following intentions, namely:
(e) deceiving or misleading the Commissioner or a particular
taxation officer;
(f) hindering or obstructing the Commissioner or a particular
taxation officer (otherwise than in the investigation of a
taxation offence);
(g) hindering or obstructing the investigation of a taxation
offence;
(h) hindering, obstructing or defeating the administration,
execution or enforcement of a taxation law; or
(j) defeating the purposes of a taxation law;
(whether or not the person had any other intention) commits an
offence.

8U Falsifying or concealing identity with intention of deceiving or

misleading etc.
A person who:
(a) engages in conduct that results in the falsification or
concealing of the identity of, or the address or location of a
place of residence or business of, the person or another
person; or
(b) does or omits to do any act or thing the doing or omission of
which facilitates the falsification or concealment of the
identity of, or the address or location of a place of residence
or business of, the person or another person;
with any of the following intentions, namely:

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Section 8V

(c) deceiving or misleading the Commissioner or a particular

taxation officer;
(d) hindering or obstructing the Commissioner or a particular
taxation officer (otherwise than in the investigation of a
taxation offence);
(e) hindering or obstructing the investigation of a taxation
offence;
(f) hindering, obstructing or defeating the administration,
execution or enforcement of a taxation law; or
(g) defeating the purposes of a taxation law;
(whether or not the person had any other intention) commits an
offence.

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

(1) Subject to subsection (2), an offence against section 8T or 8U is
punishable on conviction by a fine not exceeding 50 penalty units
or imprisonment for a period not exceeding 12 months, or both.
(2) Where:
(a) a person is convicted of an offence against section 8T or 8U;
and
(b) the court before which the person is convicted is satisfied that
the person has previously been convicted of a relevant
offence;
the penalty that the court may impose in respect of the
first-mentioned offence is a fine not exceeding 100 penalty units or
imprisonment for a period not exceeding 2 years, or both.

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

(1) Where:
(a) a person (in this subsection referred to as the convicted
person) is convicted before a court of:
(i) an offence against subsection 8K(1) or (1B) or
section 8N, or against Division 136 or 137 of the

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Section 8W

Criminal Code in relation to a taxation law, in relation

to a statement made to a taxation officer; or
(ii) an offence against subsection 8L(1) or (1A) or
section 8Q in relation to the keeping of any accounts,
accounting records or other records (in paragraph (b)
referred to as the relevant accounts) or the making of a
record; and
(b) the court is satisfied that the proper amount of a tax liability
of the convicted person or another person exceeds the
amount that would have been the amount of the tax liability
if it were assessed or determined, as the case requires, on the
basis that the statement were not false or misleading, on the
basis of the relevant accounts as they were kept or on the
basis that the record were correct, as the case may be;
the court may, in addition to imposing a penalty on the convicted
person, order the convicted person to pay to the Commissioner an
amount not exceeding:
(c) in a case where the offence is an offence to which
subsection 8R(2) applies or that is against Division 136 or
137 of the Criminal Code in relation to a taxation law—3
times the amount of the excess; or
(d) in any other case—double the amount of the excess.
(1C) If the conditions in section 705-315 of the Income Tax Assessment
Act 1997 are satisfied, then for the purposes of any application of
subsection (1) of this section in relation to the errors mentioned in
that section that were made in a statement that was made before the
Commissioner became aware of the errors, the references in
paragraphs (1)(c) and (d) of this section to the excess are taken
instead to be references to the amount worked out using the
formula:
 Adjusted reset cost base asset 
Tax on  setting amount 
 1 
capital gain Original reset cost base asset 
 setting amount 
 
where:
adjusted reset cost base asset setting amount means:

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Section 8W

(a) the tax cost setting amount, worked out under Division 705
of the Income Tax Assessment Act 1997, for all assets of a
kind referred to in section 705-35 of that Act as reset cost
base assets that the head company of the relevant group held
continuously from the time when the subsidiary member
referred to in subsection 705-315(2) of that Act joined the
group until the start of the head company’s income year in
which the Commissioner became aware of the errors
mentioned in section 705-315 of that Act;
less:
(b) the head company’s deductions under Division 40 (except
under Subdivision 40-F, 40-G, 40-H or 40-I) or
Subdivision 328-D of the Income Tax Assessment Act 1997
for those assets for all income years before the earliest
income year for which the Commissioner could amend the
head company’s assessment to correct any of the errors.
original reset cost base asset setting amount means the tax cost
setting amount, worked out under Division 705 of the Income Tax
Assessment Act 1997, for all reset cost base assets that the
subsidiary member held at the time it joined the group, other than
assets that the head company no longer held at the start of the
earliest income year for which the Commissioner could amend the
head company’s assessment to correct any of the errors.
tax on capital gain means the product of:
(a) the capital gain (within the meaning of the Income Tax
Assessment Act 1997) that the head company makes as a
result of CGT event L6 happening as mentioned in
section 104-525 of that Act; and
(b) the corporate tax rate (within the meaning of that Act) in
respect of taxable income for the income year in which that
CGT event happens.
(2) Where:
(a) a person (in this subsection referred to as the convicted
person) is convicted before a court of an offence against
section 8T or 8U in relation to an act or omission; and

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Section 8W

(b) the court is satisfied that the purpose of, or one of the
purposes of, the act or omission was to facilitate the
avoidance of an amount of a tax liability of the convicted
person or another person;
the court may, in addition to imposing a penalty on the convicted
person, order the convicted person to pay to the Commissioner an
amount not exceeding:
(c) in a case where the offence is an offence to which
subsection 8V(2) applies—3 times that amount; or
(d) in any other case—double that amount.
(2A) If:
(a) a person (the convicted person) is convicted before a court
of:
(i) an offence against subsection 8K(1) or (1B) or
section 8N, or against Division 136 or 137 of the
Criminal Code in relation to a taxation law, in relation
to a statement made to a taxation officer; or
(ii) an offence against subsection 8L(1) or (1A) or
section 8Q in relation to the keeping of any records; and
(b) the offence relates to the Product Grants and Benefits
Administration Act 2000; and
(c) the court is satisfied that the amount that would have been
the amount of a product grant or benefit payable to the
convicted person or another person, determined on the basis
that:
(i) the statement were not false or misleading; or
(ii) on the basis of those records as they were kept;
as the case may be, exceeds the proper amount of the product
grant or benefit payable to the convicted person or the other
person;
the court may, in addition to imposing a penalty on the convicted
person, order the convicted person to pay to the Commissioner an
amount not exceeding:
(d) in a case where the offence is an offence to which
subsection 8R(2) applies, or that is against Division 136 or

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Section 8WAA

137 of the Criminal Code in relation to a taxation law—3

times the amount of the excess; or
(e) in any other case—double the amount of the excess.
(3) A reference in this section to a conviction of a person for an
offence includes a reference to the making of an order under
section 19B of the Crimes Act 1914 in relation to the person in
respect of the offence.
(4) In this section:
CGT event has the same meaning as in the Income Tax Assessment
Act 1997.
head company has the same meaning as in the Income Tax
Assessment Act 1997.
product grant or benefit means a grant or benefit payable under
the Product Grants and Benefits Administration Act 2000.
subsidiary member has the same meaning as in the Income Tax
Assessment Act 1997.
tax cost setting amount has the same meaning as in the Income
Tax Assessment Act 1997.

Subdivision BAA—Offences relating to electronic sales

suppression tools

8WAA Object of this Subdivision

The object of this Subdivision is to deter the production, use and
distribution of tools to manipulate or falsify electronic point of sale
records to facilitate tax evasion.

8WAB Interpretation
In this Subdivision:

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Section 8WAC

electronic sales suppression tool means a device, software

program or other thing, a part of any such thing, or a combination
of any such things or parts, that meets the following conditions:
(a) it is capable of falsifying, manipulating, hiding, obfuscating,
destroying, or preventing the creation of, a record that:
(i) an entity is required by a taxation law to keep or make;
and
(ii) is, or would be, created by a system that is or includes
an electronic point of sale system;
(b) a reasonable person would conclude that one of its principal
functions is to falsify, manipulate, hide, obfuscate, destroy,
or prevent the creation of, such records.
right to use includes right to possess.
supply has the meaning given by section 9-10 of the A New Tax
System (Goods and Services Tax) Act 1999.

8WAC Producing or supplying electronic sales suppression tools

(1) A person commits an offence if the person manufactures, develops
or publishes an electronic sales suppression tool.
Penalty: 5,000 penalty units.
(2) A person commits an offence if the person:
(a) makes a supply of, or makes available for use, an electronic
sales suppression tool or a right to use an electronic sales
suppression tool; or
(b) provides a service to an entity that involves the use of an
electronic sales suppression tool.
Penalty: 5,000 penalty units.
(3) Subsections (1) and (2) do not apply to conduct undertaken by the
person for the purpose of preventing or deterring tax evasion or
enforcing a taxation law.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (3) (see subsection 13.3(3) of the Criminal Code).

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Section 8WAD

(4) An offence against subsection (1) or (2) is an offence of strict

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

(5) Section 15.4 (extended geographical jurisdiction—category D) of

the Criminal Code applies to an offence against subsection (1) if
the electronic sales suppression tool is, at any time, used to modify
records that a taxation law requires an entity to keep or make.
(6) Section 15.4 (extended geographical jurisdiction—category D) of
the Criminal Code applies to an offence against subsection (2) if
the person makes a supply of, or makes available for use, the
electronic sales suppression tool or the right to use the tool to an
entity that is required by a taxation law to keep or make any record.

8WAD Possessing electronic sales suppression tools

(1) A person commits an offence if:
(a) the person is required under, or pursuant to, a taxation law to
keep or make a record; and
(b) the person acquires, or has possession or control of, an
electronic sales suppression tool or a right to use an
electronic sales suppression tool.
Penalty: 500 penalty units.
(2) Subsection (1) does not apply to conduct undertaken by a person
for the purpose of preventing or deterring tax evasion or enforcing
a taxation law.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) An offence against subsection (1) is an offence of strict liability.

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

8WAE Incorrectly keeping records using electronic sales

suppression tools
(1) A person commits an offence if:

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Section 8WA

(a) the person is required under, or pursuant to, a taxation law to

keep or make a record; and
(b) the record is kept, made or altered with the use of an
electronic sales suppression tool, or is prevented by the use
of an electronic sales suppression tool from being kept, made
or altered; and
(c) as a result of the use:
(i) the record does not correctly record and explain the
matter, transaction, act or operation to which it relates;
or
(ii) the person does not keep or make the record in
accordance with the taxation law.
Penalty: 1,000 penalty units.
(2) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

Subdivision BA—Offences relating to tax file numbers

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

(1) A person must not require or request another person to quote the
other person’s tax file number.
Penalty: 100 penalty units or imprisonment for 2 years, or both.
(1AA) Subsection (1) does not apply if:
(a) provision is made by or under a taxation law or legislation
described in paragraph 202(e) of the Income Tax Assessment
Act 1936 for the person to quote the number; or
(b) the first-mentioned person requires or requests the number to
be quoted in connection with that person exercising powers
or performing functions under, or in relation to, or complying
with an obligation imposed by, a taxation law or a law of the
Commonwealth of the kind referred to in paragraph 202(c),
(d), (g), (ga), (gaa), (h), (hab), (hac), (ha), (hb), (hc), (i), (ia),

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Section 8WB

(j), (kb), (la), (m), (r), (s), (sa), (t) or (u) of the Income Tax
Assessment Act 1936; or
(c) the first-mentioned person requires or requests the number to
be quoted in connection with the first-mentioned person
acting on the other person’s behalf in the conduct of the other
person’s affairs.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (1AA), see subsection 13.3(3) of the Criminal Code.

(1A) A person does not contravene subsection (1) by asking another

person to quote the other person’s tax file number if the request is
made so that the number can be included in an application for the
registration of an entity under the A New Tax System (Australian
Business Number) Act 1999.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (1A), see subsection 13.3(3) of the Criminal Code.

(2) Nothing in subsection (1) shall be read as prohibiting a person

from requesting the production of a document, or a copy of a
document, on which another person’s tax file number is recorded if
the other person is not prevented from removing the tax file
number from the document.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (2), see subsection 13.3(3) of the Criminal Code.

(3) For the purposes of this section, a person who makes to another
person a statement that the other person could reasonably
understand to mean that the other person is required or requested to
quote the other person’s tax file number shall be taken to require or
request the other person to quote the number.
(4) Nothing in this section shall be read as imposing on a person an
obligation to require another person to quote a tax file number.

8WB Unauthorised recording etc. of tax file number

(1) A person must not:
(a) record another person’s tax file number or maintain such a
record; or

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Section 8WB

(b) use another person’s tax file number in a manner connecting

it with the other person’s identity; or
(c) divulge or communicate another person’s tax file number to a
third person.
Penalty: 100 penalty units or imprisonment for 2 years, or both.
(1A) Subsection (1) does not apply:
(a) to the extent required or permitted by, or reasonably
necessary in order to comply with an obligation imposed by,
a taxation law or a law of the Commonwealth of a kind
referred to in paragraph 202(c), (d), (e), (g), (ga), (gaa), (h),
(hab), (hac), (ha), (hb), (hc), (i), (ia), (j), (ka), (kb), (la), (m),
(o), (q), (r), (s), (sa), (t) or (u) of the Income Tax Assessment
Act 1936; or
(b) in connection with the first-mentioned person exercising
powers or performing functions under, or in relation to, a
taxation law or a law of the Commonwealth of a kind
referred to in paragraph 202(c), (d), (e), (g), (ga), (gaa), (h),
(hab), (hac), (ha), (hb), (hc), (i), (ia), (j), (ka), (kb), (la), (m),
(o), (q), (r), (s), (sa), (t) or (u) of the Income Tax Assessment
Act 1936; or
(ba) in connection with the first-mentioned person exercising
powers or performing functions of a registrar specified in
subsection 355-67(2) in Schedule 1; or
(c) in connection with the first-mentioned person acting on the
other person’s behalf in the conduct of the other person’s
affairs.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (1A), see subsection 13.3(3) of the Criminal Code.

(2) Without affecting any obligation imposed by or under a law of the

Commonwealth other than this section, nothing in subsection (1A)
shall be read as imposing on a person an obligation to do an act
referred to in paragraph (1)(a), (b), (ba) or (c).

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Section 8WC

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

(1) Where:
(a) a person is an investor in relation to 2 or more investments of
a similar kind; and
(b) having regard to:
(i) the manner in which the person became an investor in
relation to the investments; and
(ii) any explanation made by the person as to becoming
such an investor in that manner;
it would be reasonable to conclude that the person became
such an investor in that manner for the sole or dominant
purpose of ensuring, or attempting to ensure that:
(iii) although the person has not, under Part VA of the
Income Tax Assessment Act 1936, quoted the person’s
tax file number in connection with those investments (in
this subparagraph called the non-TFN investments):
(A) amounts would not be deducted under
Division 3B of that Act, or withheld under
section 12-140 or 12-145 in Schedule 1 to this
Act, from income in respect of one or more of
the non-TFN investments; and
(B) amounts would not be paid to the
Commissioner under section 14-5 in Schedule 1
to this Act, in relation to income in respect of
one or more of the non-TFN investments; and
(C) TFN withholding tax would not be payable
under section 14-55 in Schedule 1 to this Act in
respect of one or more of the non-TFN
investments; or
(iv) the investments are not referred to in a report under the
regulations made under that Act;
the person commits an offence.
Penalty: 100 penalty units or imprisonment for 2 years, or both.

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Section 8XA

(2) In this section:

investment means an investment of a kind mentioned in
section 202D of the Income Tax Assessment Act 1936.
investor means an investor within the meaning of that section.

Subdivision C—Miscellaneous

8XA Unauthorised access to taxation records

A person must not take action with the intention of obtaining
information about another person’s affairs that:
(a) is contained in records in the possession of the
Commissioner; and
(b) is held or was obtained by the Commissioner under or for the
purposes of a taxation law;
unless the person takes the action:
(c) under the Freedom of Information Act 1982; or
(d) in accordance with the processes of a court or the Tribunal;
or
(e) in the course of exercising powers or performing functions
under or in relation to a taxation law.
Penalty: 100 penalty units or imprisonment for 2 years, or both.

8Y Liability of officers etc. of corporations

(1) Where a corporation does or omits to do an act or thing the doing
or omission of which constitutes a taxation offence, a person (by
whatever name called and whether or not the person is an officer of
the corporation) who is concerned in, or takes part in, the
management of the corporation shall be deemed to have committed
the taxation offence and is punishable accordingly.
(2) In a prosecution of a person for a taxation offence by virtue of
subsection (1), it is a defence if the person proves that the person:

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Section 8Z

(a) did not aid, abet, counsel or procure the act or omission of
the corporation concerned; and
(b) was not in any way, by act or omission, directly or indirectly,
knowingly concerned in, or party to, the act or omission of
the corporation.
Note 1: A defendant bears a legal burden in relation to the matters in
subsection (2), see section 13.4 of the Criminal Code.
Note 2: Subsection (2) does not apply in relation to a prosecution under
Part 2.4 of the Criminal Code.

(3) For the purposes of subsection (1), an officer of a corporation shall

be presumed, unless the contrary is proved, to be concerned in, and
to take part in, the management of the corporation.
(4) In this section, officer, in relation to a corporation, means:
(a) a director or secretary of the corporation;
(b) a receiver and manager of property of the corporation;
(ba) an administrator, within the meaning of the Corporations Act
2001, of the corporation;
(bb) an administrator of a deed of company arrangement executed
by the corporation under Part 5.3A of that Act;
(d) a liquidator of the corporation appointed in a voluntary
winding up of the corporation; or
(e) a trustee or other person administering a compromise or
arrangement made between the corporation and another
person or other persons.

8Z Evidentiary certificate relating to previous convictions

(1) The Commissioner may, for the purposes of subsection 8E(2) or
(3), 8M(2), 8R(2) or 8V(2), issue a certificate setting out such facts
as the Commissioner considers relevant with respect to:
(a) the conviction of a person of an offence against a provision
of Subdivision A or B or against Division 136 or 137 of the
Criminal Code in relation to a taxation law; or
(b) the conviction of a person of an offence against the Crimes
(Taxation Offences) Act 1980; or

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Section 8Z

(c) the conviction of a person of an offence against:

(i) section 6 of the Crimes Act 1914; or
(ii) section 11.1, 11.4 or 11.5 of the Criminal Code;
being an offence that relates to an offence of a kind referred
to in paragraph (a) or (b) of this subsection; or
(d) the conviction of a person of an offence against
section 134.1, 134.2, 135.1, 135.2 or 135.4 of the Criminal
Code, being an offence that relates to a tax liability; or
(e) the making of an order under section 19B of the Crimes Act
1914 in relation to a person in respect of an offence of a kind
referred to in paragraph (a), (b), (c) or (d) of this subsection;
or
(f) the conviction of a person of an offence against Division 136
or 137 of the Criminal Code, being an offence that relates to
a taxation law.
(2) A document purporting to be a certificate issued under
subsection (1) shall be received in evidence in a court without
further proof and is, for those purposes, prima facie evidence of the
facts stated in it.
(3) The provisions of this section are in addition to, and not in
derogation of, any other law of the Commonwealth or any law of a
State or Territory.

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Section 8ZA

Division 3—Prosecution of taxation offences

8ZA Prosecution of taxation offences

(1) A taxation offence that is punishable by imprisonment for a period
exceeding 12 months is, when committed by a natural person, an
indictable offence.
(2) A taxation offence that is punishable by imprisonment for a period
not exceeding 12 months is, when committed by a natural person,
punishable on summary conviction.
(3) A prescribed taxation offence, when committed by a natural
person, is punishable on summary conviction.
(4) A taxation offence, when committed by a corporation, is
punishable on summary conviction.
(5) In spite of anything in the preceding provisions of this section, if:
(a) a person is convicted of 2 or more offences against
section 8T or 8U, or both, before the same court at the same
sitting; and
(b) assuming that the person had only been convicted of one of
those offences, that offence would have been punishable on
summary conviction;
all those offences are punishable on summary conviction.
(6) A reference in subsection (5) to a conviction of a person for an
offence includes a reference to the making of an order under
section 19B of the Crimes Act 1914 in relation to the person in
respect of the offence.
(7) A reference in subsection (5) to an offence against section 8T or
8U includes a reference to an offence against section 11.1 of the
Criminal Code that relates to an offence against section 8T or 8U,
as the case may be.

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Section 8ZB

8ZB Prosecution may be commenced at any time

(1) A prosecution for a taxation offence may be commenced at any
time.
(2) Subsection (1) has effect notwithstanding anything contained in
section 15B of the Crimes Act 1914.

8ZC Place where offence committed

(1) Where a person commits a taxation offence by doing an act, the
taxation offence may be taken to have been committed at:
(a) the place where the act was done;
(b) if the person is a natural person—the usual place of residence
or business of the person or the place of residence or business
of the person last known to the Commissioner; or
(c) if the person is a corporation—the head office, a registered
office or a principal office of the corporation;
and the person may be charged with, and convicted of, the taxation
offence as if it had been committed at any of those places.
(2) Where a person commits a taxation offence by omitting to do an
act, the taxation offence may be taken to have been committed at:
(a) the place where the act should have been done;
(b) if the person is a natural person—the usual place of residence
or business of the person or the place of residence or business
of the person last known to the Commissioner; or
(c) if the person is a corporation—the head office, a registered
office or a principal office of the corporation;
and the person may be charged with, and convicted of, the taxation
offence as if it had been committed at any of those places.
(3) This section has effect subject to section 80 of the Constitution.
Note: This section does not apply as an averment. For averments, see
section 8ZL of this Act and section 13.6 of the Criminal Code.

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Section 8ZD

8ZD Conduct by employees or agents of corporations

(1) Where, in a prosecution for a taxation offence constituted by an act
done, or omitted to be done, by a corporation, it is necessary to
establish the intention of the corporation, it is sufficient to show
that an employee or agent of the corporation by whom the act was
done or omitted to be done, as the case may be, had the intention.
(2) In a prosecution for a taxation offence, any act done, or omitted to
be done, on behalf of a corporation by:
(a) a director, employee or agent of the corporation; or
(b) any other person:
(i) at the direction; or
(ii) with the consent or agreement (whether express or
implied);
of a director, employee or agent of the corporation;
shall be deemed to have been done, or omitted to have been done,
as the case may be, also by the corporation.
(3) Part 2.5 of the Criminal Code does not apply to taxation offences.

8ZE Civil penalty not payable if prosecution instituted

If:
(a) a person is liable to pay by way of penalty (other than for an
offence) an amount under a taxation law because of an act or
omission of the person; and
(b) a prosecution is instituted against the person for a taxation
offence constituted by the act or omission;
then (whether or not the prosecution is withdrawn):
(c) the person is not liable to pay the amount; and
(d) any amount paid, or applied by the Commissioner, in total or
partial discharge of that liability is to be refunded to the
person, or applied by the Commissioner in total or partial
discharge of another tax liability of the person.
Note: An example of a penalty referred to in paragraph (a) is a penalty
payable under section 284-75 in Schedule 1.

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Section 8ZF

8ZF Penalties for corporations

Where a corporation is convicted of:
(a) a taxation offence (other than a prescribed offence) that, if
committed by a natural person, is punishable by
imprisonment; or
(b) a prescribed offence to which subsection 8E(3) or 8R(2)
applies;
the penalty that the court before which the corporation is convicted
may impose is a fine not exceeding 5 times the maximum fine that,
but for this section, the court could impose as a penalty for the
taxation offence.

8ZG Enforcement of orders for payment

(1) Where:
(a) upon the conviction of a person for a taxation offence, the
court before which the person is convicted, in addition to
imposing a penalty on the person, orders the person to pay an
amount to the Commissioner; and
(b) the court has civil jurisdiction to the extent of the amount;
the order is enforceable in all respects as a final judgment of the
court in favour of the Commissioner.
(2) Where:
(a) upon conviction of a person for a taxation offence, the court
before which the person is convicted, in addition to imposing
a penalty on the person, orders the person to pay an amount
to the Commissioner; and
(b) the court:
(i) does not have civil jurisdiction; or
(ii) has civil jurisdiction, but does not have civil jurisdiction
to the extent of the amount;
the proper officer of the court shall issue to the Commissioner a
certificate in the prescribed form containing the prescribed
particulars.

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Section 8ZH

(3) The certificate may, in the prescribed manner and subject to the
prescribed conditions (if any), be registered in a court having civil
jurisdiction to the extent of the amount ordered to be paid to the
Commissioner.
(4) Upon registration under subsection (3), the certificate is
enforceable in all respects as a final judgment of the court in favour
of the Commissioner.
(5) The costs of registration of the certificate and other proceedings
under this section shall, subject to the prescribed conditions (if
any), be deemed to be payable under the certificate.

8ZH Penalties not to relieve from tax

The adjudgment or payment of:
(a) a penalty in respect of a taxation offence; or
(b) an amount ordered by a court, upon the conviction of a
person for a taxation offence, to be paid by the person to the
Commissioner;
does not relieve any person from liability to assessment or payment
of any amount (whether by way of tax, duty, charge or otherwise)
for which the person would otherwise be liable.

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Section 8ZJ

Division 4—Prescribed taxation offences

8ZJ Prosecution of prescribed taxation offences

(1) A prosecution for a prescribed taxation offence shall take the form
of a proceeding by the Commonwealth for the recovery of a
pecuniary penalty.
(2) A prosecution for a prescribed taxation offence may be instituted
by a person authorized under subsection (8) on behalf of, and in the
official name of, the Commissioner by information or complaint in
a court of summary jurisdiction.
(3) A prosecution of a person for a prescribed taxation offence that is
punishable by a fine exceeding the prescribed amount in relation to
the person may be instituted by a person authorized under
subsection (8) on behalf of, and in the official name of, the
Commissioner by action in the Supreme Court of a State or
Territory.
(4) Where a court of summary jurisdiction convicts a person of a
prescribed taxation offence, the penalty that the court may impose
is a fine not exceeding the prescribed amount in relation to the
person.
(5) Where:
(a) a prosecution of a person for a prescribed taxation offence
that is punishable by a fine exceeding the prescribed amount
in relation to the person is instituted in accordance with
subsection (2); and
(b) before the expiration of the period of 14 days after service of
process on the person in respect of the prescribed taxation
offence, the person elects, in the prescribed manner, to have
the case tried in the Supreme Court of the State or Territory
in which the prosecution was instituted;
the prosecution shall, by force of this subsection and without any
order of the Supreme Court, be removed to the Supreme Court.

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Section 8ZK

(6) Where a prosecution for a prescribed taxation offence is instituted

in the Supreme Court of a State or Territory in accordance with
subsection (3) or is removed to the Supreme Court of a State or
Territory by force of subsection (5), the prosecution may be
conducted in accordance with:
(a) the usual practice and procedure of the Supreme Court in
civil cases; or
(b) the directions of the Supreme Court or a Justice or Judge of
the Supreme Court.
(7) The jurisdiction of the Supreme Court of a State or Territory under
this section shall be exercised by a single Justice or Judge of the
Supreme Court.
(8) The Commissioner may, by writing, authorize a person to institute
a prosecution for:
(a) a specified prescribed taxation offence;
(b) a prescribed taxation offence included in a specified class of
prescribed taxation offences; or
(c) any prescribed taxation offence.
(9) A reference in this section to the prescribed amount in relation to a
person is a reference to:
(a) if the person is a natural person—$5,000; or
(b) if the person is a corporation—$25,000.

8ZK Protection of witnesses

A witness called on behalf of the Commissioner in any prosecution
for a prescribed taxation offence shall not be compelled:
(a) to disclose:
(i) the fact that the witness received any information;
(ii) the nature of any information received by the witness;
or
(iii) the name of any person from whom the witness received
any information; or

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Section 8ZL

(b) if the witness is an officer, to produce any reports:

(i) made or received by the witness confidentially in the
witness’ official capacity; or
(ii) containing confidential information.

8ZL Averment
(1) In a prosecution for a prescribed taxation offence, a statement or
averment contained in the information, claim or complaint is prima
facie evidence of the matter so stated or averred.
(2) This section applies in relation to any matter so stated or averred
although:
(a) evidence in support or rebuttal of the matter stated or averred,
or of any other matter, is given; or
(b) the matter averred is a mixed question of law and fact, but, in
that case, the statement or averment is prima facie evidence
of the fact only.
(3) Any evidence given in support or rebuttal of a matter so stated or
averred shall be considered on its merits, and the credibility and
probative value of such evidence shall be neither increased nor
diminished by reason of this section.
(4) This section:
(a) does not apply to any fault element of an offence; and
(aa) does not apply in relation to any offence for which
imprisonment is a penalty; and
(b) does not lessen or affect any onus of proof otherwise falling
on a defendant.

8ZM Evidence of authority to institute proceedings

(1) Where a prosecution for a prescribed taxation offence is instituted
by a person in the official name of the Commissioner, the
prosecution shall be presumed, unless the contrary is proved, to
have been instituted with the authority of the Commissioner.

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Section 8ZN

(2) In a prosecution for a prescribed taxation offence, the mere

production of an instrument, telegram or copy of a telex message
purporting to have been issued or sent by the Commissioner, a
Second Commissioner or a Deputy Commissioner and purporting
to notify a person that the person is authorized by the
Commissioner to institute the prosecution, to institute prosecutions
for a class of prescribed taxation offences in which the prescribed
taxation offence is included or to institute prosecutions for any
prescribed taxation offence is conclusive evidence of the authority
of the person to institute the prosecution on behalf of, and in the
official name of, the Commissioner.

8ZN Costs
In a prosecution for a prescribed taxation offence, the court may
award costs against any party.

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Section 9

Division 5—Service of summons for prescribed taxation

offences

9 Interpretation
In this Division, unless the contrary intention appears:
defendant, in relation to a prescribed taxation offence, means a
person to whom a summons has been sent in the manner permitted
by subsection 10(1) in relation to the prescribed taxation offence
(whether or not the summons has been delivered to, or received by,
the person).
summons, in relation to a person, means a writ or process notifying
or directing the person to appear on a designated day before a
specified court.

10 Service of summons by post

(1) A summons for the appearance before a court of summary
jurisdiction of a person charged with having committed a
prescribed taxation offence may be served upon the person to
whom it is directed by sending a copy of the summons, not less
than 21 days before the day on which the person is required by the
summons to appear before the court, by ordinary prepaid post
addressed to the person at the person’s last known place of
residence or last known place of business.
(1A) Subsection (1) has effect without prejudice to any other method of
service provided for under any other law of the Commonwealth or
under a law of a State or Territory.
(2) Where a summons is served in the manner permitted by
subsection (1), the court may require the summons to be re-served
if the court has reasonable cause to believe that the summons has
not come to the notice of the person to whom it is directed.

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Section 11

11 Notice of conviction in absentia

(1) Where a defendant who has not entered a plea in relation to a
prescribed taxation offence is, in the defendant’s absence,
convicted of the prescribed taxation offence, the proper officer of
the court concerned shall cause to be served on the defendant
notice in writing of:
(a) the conviction;
(b) the order of the court;
(c) where the order of the court includes the imposition of a
fine—the time allowed by the court for payment of the fine;
and
(d) the right of the defendant to make an application under
section 13A for an order setting aside the conviction.
(2) Without prejudice to any other method of service provided for
under any other law of the Commonwealth or under a law of a
State or Territory, a notice under subsection (1) may be served on
the defendant by sending the notice to the defendant by ordinary
prepaid post addressed to the defendant at the defendant’s last
known place of residence or last known place of business.

12 Notice of intention to issue warrant in default of payment

Where:
(a) a defendant, not being a body corporate, has been served with
a notice under subsection 11(1), being a notice that includes
notice of a fine imposed on him or her in consequence of a
conviction;
(b) the fine is not paid in full within the time allowed by the
court for payment of the fine; and
(c) a period of not less than 21 days has elapsed after the date of
service of the notice;
the proper officer of the court concerned may cause to be served
personally on the defendant a notice (in this section referred to as
the personal notice) informing the defendant that unless:

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Section 13

(d) the fine is paid in full before the expiration of 21 days after
the date of service of the personal notice; or
(e) an application in accordance with section 13A for the setting
aside of the conviction is made before the expiration of
14 days after the date of service of the personal notice;
a warrant for his or her commitment to prison may be issued.

13 Limitation of action to enforce payment of fine

Notwithstanding anything contained in any other law of the
Commonwealth or in a law of a State or Territory, where a
defendant who has not entered a plea in relation to a prescribed
taxation offence is, in the defendant’s absence, convicted of the
prescribed taxation offence and the order of the court includes the
imposition of a fine:
(a) a warrant for commitment of the defendant to prison for
failure to pay the fine shall not be issued unless:
(i) a notice has been served on the defendant under
section 12 in relation to the fine; and
(ii) a period of not less than 21 days has elapsed after the
date of service of the notice; and
(b) no other action for enforcement of payment of the fine shall
be taken unless:
(i) a notice has been served on the defendant in relation to
the conviction under subsection 11(1); and
(ii) a period of not less than 21 days has elapsed after the
date of service of the notice.

13A Setting aside of conviction or order

(1) Where a defendant has been served with a notice under section 11
in relation to a conviction or order of a court, the defendant may:
(a) where a fine was imposed by the court—before the
expiration of:
(i) the period allowed by the court for payment of the fine;
or

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Division 5 Service of summons for prescribed taxation offences

Section 13A

(ii) a period of 21 days after the date of service of the

notice;
whichever is the longer; or
(b) where no fine was imposed by the court—within 21 days
after the date of service of the notice;
make an application in writing to the court, or to another court of
summary jurisdiction that would have had jurisdiction to make the
conviction or order, for an order setting aside the conviction or
order.
(2) Where a defendant has been served with a notice under section 12
in relation to a conviction or order of a court, the defendant may,
within 14 days after the date of service of the notice, make an
application in writing to the court, or to another court of summary
jurisdiction that would have had jurisdiction to make the
conviction or order, for an order setting aside the conviction or
order.
(3) Any person who was a party to the proceedings in which the
conviction or order to which an application under subsection (1) or
(2) relates was made shall be a party to proceedings in respect of
the application.
(4) Where a court is satisfied, on an application made by a defendant
in accordance with subsection (1) or (2) in relation to a conviction
or order, that:
(a) in the case of an application under subsection (1):
(i) the defendant did not receive notice of the proceedings
in which the conviction or order was made, or did not
receive such notice in sufficient time to enable the
defendant to attend the proceedings; or
(ii) the defendant failed to attend the proceedings in which
the conviction or order was made for reasons that, in the
opinion of the court, render it desirable, in the interests
of justice, that the conviction or order be set aside and
the matter re-heard; or
(b) in the case of an application under subsection (2):
(i) the defendant:

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Service of summons for prescribed taxation offences Division 5

Section 13A

(A) did not receive notice of the proceedings in

which the conviction or order was made, or did
not receive such notice in sufficient time to
enable the defendant to attend the proceedings;
and
(B) did not receive notice of the conviction or
order, or did not receive such notice in
sufficient time to enable the defendant to apply,
within the time specified in paragraph (1)(a),
for an order setting aside the conviction or
order; or
(ii) the defendant failed to attend the proceedings in which
the conviction or order was made, and failed to make an
application in accordance with subsection (1) in relation
to the notice served on the defendant under section 11 in
relation to the conviction or order, for reasons that, in
the opinion of the court, render it desirable, in the
interests of justice, that the conviction or order be set
aside and the matter re-heard;
the court shall set aside the conviction or order and shall:
(c) proceed forthwith to re-hear and determine the matter; or
(d) adjourn the proceedings for re-hearing the matter to such
time and place as the court thinks fit.
(5) Where an application is made to a court (in this subsection referred
to as the relevant court) under this section for the setting aside of a
conviction or order of a court, the proper officer of the relevant
court shall forthwith:
(a) cause notice of the making of the application to be given to
each party to the application other than the defendant; and
(b) where the conviction or order was made by a court other than
the relevant court—cause notice of the making of the
application to be given to that other court.
(6) Where, under subsection (4), a court sets aside a conviction or
order of another court, the proper officer of the first-mentioned
court shall forthwith cause notice of the setting aside of that
conviction or order to be given to the other court.

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Division 5 Service of summons for prescribed taxation offences

Section 13B

13B Proof of service of summons or notice

Service of a summons in accordance with section 10 or of a notice
in accordance with section 11 or 12 may be proved by the oath of
the person who served it or by affidavit or otherwise.

13C Application of other laws

(1) The provisions of this Division have effect in addition to, and not
in derogation of, any other law of the Commonwealth or a State or
Territory that makes provision for, or in relation to, the service of
summonses.
(2) Without limiting the generality of section 79 of the Judiciary Act
1903, the laws (if any) of a State or Territory relating to any
procedure whereby a person may, without appearing in court in
obedience to a summons, enter a plea in relation to a charge of
having committed an offence apply in like manner, mutatis
mutandis, to a defendant charged with having committed a
prescribed taxation offence.

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

Section 13CA

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

application of Commissioner

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

Commissioner
(1) Where a person has been convicted in his or her absence of a
prescribed taxation offence (whether before or after the
commencement of this section), the Commissioner may apply to a
court (in this section called the quashing court) for:
(a) an order setting aside the conviction or setting aside the order
of the convicting court in respect of the conviction; or
(b) an order varying the order of the convicting court in respect
of the conviction so as to reduce its severity.
(2) The application shall be made in writing:
(a) to the convicting court; or
(b) to any other court of summary jurisdiction that would have
had jurisdiction to make the conviction or order.
(3) The proper officer of the quashing court shall, without delay, cause
notice of the making of the application to be given to each party to
the application (other than the Commissioner).
(4) Any person who was a party to the proceedings in which the
defendant was convicted shall be made a party to the proceedings
in respect of the application.
(5) If the quashing court is satisfied that:
(a) the conviction or order was made in circumstances that, in
the opinion of the court, make it desirable, in the interests of
justice, that:
(i) the conviction or order be set aside; or
(ii) the order be varied by reducing its severity; or
(b) because of other special circumstances (whether or not
existing at the time the conviction or order was made) it is

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Section 13CA

desirable, in the interests of justice, or in order to avoid

undue hardship, that:
(i) the order be set aside; or
(ii) the order be varied so as to reduce its severity;
the court may set aside the conviction, or set aside or vary the
order, as the case may be, on such terms as to costs or otherwise as
the court thinks just.
(6) If the court sets aside the conviction, or sets aside or varies the
order in respect of the conviction, the court shall also set aside any
warrant issued in consequence of the conviction.
(7) If the quashing court:
(a) is not the convicting court; and
(b) sets aside the conviction, or sets aside or varies the order, of
the convicting court;
the proper officer of the quashing court shall without delay cause
notice of the setting aside or variation to be given to the convicting
court.
(8) A reference in this section to a conviction includes a reference to
the making of an order under section 19B of the Crimes Act 1914.
(9) The setting aside of a conviction or order under this section is a bar
to any further legal proceeding against the defendant for the same
matter in any court (other than on appeal).
(10) This section is in addition to, and not in derogation of, any other
law of the Commonwealth or any law of a State or Territory.

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Interpretation Division 1

Section 13D

Part IIIA—Co-operation between Commonwealth

and State taxation authorities
Division 1—Interpretation

13D Interpretation
(1) In this Part, unless the contrary intention appears:
Australian Capital Territory includes the Jervis Bay Territory.
officer means:
(a) a person appointed or engaged under the Public Service Act
1999; or
(b) a State taxation officer.
State includes the Northern Territory.
State Minister means:
(a) in relation to a State other than the Northern Territory—a
Minister of the Crown of the State; or
(b) in relation to the Northern Territory—a Minister of the
Northern Territory.
State taxation officer means:
(a) a person or authority, not being a State Minister, who or
which is for the time being authorised under a law of a State
to perform the functions of a State taxation officer under this
Part; or
(b) a person, not being a State Minister, authorised by writing
signed by a person or authority referred to in paragraph (a) to
act under this Part.
State tax law means a law of a State relating to taxation.
Territory means the Australian Capital Territory.

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Division 1 Interpretation

Section 13D

Territory taxation officer means:

(a) a person or authority, not being a Minister of State of the
Commonwealth, who or which is for the time being
authorised under a law of the Territory to perform the
functions of a Territory taxation officer under this Part; or
(b) a person, not being a Minister of State of the Commonwealth,
authorised by writing signed by a person or authority referred
to in paragraph (a) to act under this Part.
Territory tax law means a law of the Territory relating to taxation.
(2) A reference in Division 3 or 4 to a State tax law includes a
reference to a Territory tax law.
(3) A reference in Division 3 or 4 to a State taxation officer includes a
reference to a Territory taxation officer.

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Trans-border investigations Division 2

Section 13E

Division 2—Trans-border investigations

13E State taxation officers may refer matters to Commissioner for

investigation
A State taxation officer may, by writing signed by the officer, refer
a matter arising under a State tax law to the Commissioner for
investigation in the Territory.

13F Access to documents etc.

(1) Where, under section 13E, a matter is referred to the Commissioner
for investigation, the Commissioner may, by writing signed by the
Commissioner, authorise an officer to conduct an investigation into
that matter.
(2) For the purposes of conducting an investigation into a matter
referred to the Commissioner under section 13E, an officer
authorised under subsection (1) of this section to conduct the
investigation:
(a) may, at all reasonable times, enter upon any land in the
Territory;
(b) shall have full and free access at all reasonable times to all
documents in the Territory; and
(c) may take extracts from, and make copies of, any documents
in the Territory.
(3) An officer who enters upon land pursuant to subsection (2) is not
authorised to remain on the land if, on request by the occupier of
the land, the officer does not produce a certificate issued by the
Commissioner stating that he or she is an officer authorised under
subsection (1) to conduct an investigation into a matter specified in
the certificate.
(4) The occupier of land entered or proposed to be entered by an
officer under subsection (2) shall provide the officer with all

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Division 2 Trans-border investigations

Section 13G

reasonable facilities and assistance for the effective exercise of

powers under this section.
Penalty for a contravention of this subsection: 10 penalty units.

13G Commissioner may obtain information and evidence

(1) Where, under section 13E, a matter is referred to the Commissioner
for investigation, the Commissioner may, for the purposes of
conducting the investigation in the Territory, by notice in writing,
require any person, including any officer employed in or in
connection with any department of a government or by any public
authority:
(a) to furnish the Commissioner with such information as the
Commissioner requires;
(b) to attend before the Commissioner, or before an officer
authorised by the Commissioner for the purpose, at a time
and place specified in the notice and there answer questions;
and
(c) to produce to the Commissioner, or to an officer authorised
by the Commissioner for the purpose, any documents in the
custody or under the control of the person.
(2) The Commissioner may require the information or answers to be
verified or furnished, as the case may be, on oath or affirmation
and either orally or in writing, and for that purpose the
Commissioner or an officer authorised by the Commissioner may
administer an oath or affirmation.
(3) The oath or affirmation to be taken or made by a person for the
purposes of this section is an oath or affirmation that the
information is or the answers will be true.
(4) The Commissioner may cause copies to be made of, or extracts to
be taken from, any documents that are produced pursuant to
paragraph (1)(c).
(5) A person required pursuant to paragraph (1)(b) to attend before the
Commissioner or an officer authorised by the Commissioner is

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Section 13G

entitled to payment of an allowance in respect of his or her

expenses of an amount determined by the Commissioner in
accordance with the regulations.

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Part IIIA Co-operation between Commonwealth and State taxation authorities
Division 4 Certification by State taxation officer of copies of, and extracts from,
documents

Section 13K

Division 4—Certification by State taxation officer of copies

of, and extracts from, documents

13K Certification by State taxation officer of copies of, and extracts

from, documents
(1) Where a document is obtained pursuant to a State tax law, a State
taxation officer may certify a copy of the document to be a true
copy.
(2) Where, pursuant to a State tax law, a copy is made of a document,
a State taxation officer may certify the copy to be a true copy.
(3) Where a document is obtained pursuant to a State tax law, a State
taxation officer may certify an extract taken from the document to
be a true extract.
(4) Where, pursuant to a State tax law, an extract is taken from a
document, a State taxation officer may certify the extract to be a
true extract.
(5) Subject to subsection (6), a document purporting to be a copy or
extract certified under subsection (1), (2), (3) or (4) shall be
received in all courts and tribunals in proceedings arising out of a
taxation law as evidence as if it were the original.
(6) Subsection (5) does not apply in relation to a document if:
(a) in the case of proceedings for an offence—evidence is
adduced that the document is not a true copy or a true extract;
or
(b) in any other case—it is proved that the document is not a true
copy or a true extract.
(7) Where:
(a) pursuant to a State tax law, a copy (in this section referred to
as the primary copy) is made of, or an extract (in this section

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Division 4

Section 13K
referred to as the primary extract) is taken from, a document
(in this section referred to as the original document); and
(b) pursuant to subsection (2) or (4), a State taxation officer has
certified the primary copy to be a true copy of, or the primary
extract to be a true extract taken from, the original document;
a State taxation officer may:
(c) certify a copy of the primary copy or primary extract to be a
true copy; or
(d) certify an extract taken from the primary copy or primary
extract to be a true extract.
(8) Subject to subsection (9), a document purporting to be:
(a) a copy, certified under subsection (7), of a primary copy of,
or a primary extract taken from, an original document; or
(b) an extract, certified under subsection (7), taken from a
primary copy of, or a primary extract taken from, an original
document;
shall be received in all courts and tribunals in proceedings arising
out of a taxation law as evidence as if it were the original
document.
(9) Subsection (8) does not apply in relation to a document if:
(a) in the case of proceedings for an offence, evidence is
adduced that:
(i) the document is not a true copy of, or a true extract
taken from, the primary copy or primary extract; or
(ii) the primary copy is not a true copy of, or the primary
extract is not a true extract taken from, the original
document; or
(b) in any other case, it is proved that:
(i) the document is not a true copy of, or a true extract
taken from, the primary copy or primary extract; or
(ii) the primary copy is not a true copy of, or the primary
extract is not a true extract taken from, the original
document.

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Part IIIA Co-operation between Commonwealth and State taxation authorities
Division 5 Australian Taxation Office may perform functions under State/Territory
debits tax laws

Section 13L

Division 5—Australian Taxation Office may perform

functions under State/Territory debits tax laws

13L Australian Taxation Office may perform functions under

State/Territory debits tax laws
(1) In this section:
accounts, in relation to a financial institution, includes accounts
kept by way of withdrawable share capital in, or money deposited
with, the financial institution.
co-operative housing society means a society registered or
incorporated as a co-operative housing society or similar society
under a law of a State or Territory.
financial institution includes:
(a) a body corporate that is an ADI (authorised deposit-taking
institution) for the purposes of the Banking Act 1959; and
(b) a co-operative housing society; and
(c) a registered entity under the Financial Sector (Collection of
Data) Act 2001.
State/Territory debits tax law means:
(a) a State tax law; or
(b) a Territory tax law;
relating to the taxation of debits made to accounts kept with
financial institutions.
(2) The Commissioner may make an arrangement with an appropriate
officer or authority of a State or the Territory about any matter in
connection with the administration of a State/Territory debits tax
law.
(3) In particular, an arrangement may provide:

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Section 13L
(a) for the Commissioner or the Second Commissioners to
perform functions, or exercise powers, conferred on them by
a State/Territory debits tax law; or
(b) for the services of officers or employees under the control of
the Commissioner to be made available to the State or the
Territory or to an authority of the State or of the Territory for
the purposes of matters relating to the administration of a
State/Territory debits tax law.

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Part IVA Departure from Australia of certain tax debtors
Division 1 Interpretation

Section 14Q

Part IVA—Departure from Australia of certain tax

debtors
Division 1—Interpretation

14Q Interpretation
(1) In this Part, unless the contrary intention appears:
authorized officer means a person who is:
(a) an officer for the purposes of the Customs Act 1901; or
(b) a member of the Australian Federal Police.
departure authorization certificate means a certificate under
subsection 14U(1).
departure prohibition order means an order under
subsection 14S(1).
(2) A reference in this Part to the departure of a person from Australia
for a foreign country is a reference to the departure of the person
from Australia for a foreign country, whether or not the person
intends to return to Australia.

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Prohibition and authorisation of departure of certain tax debtors Division 2

Section 14R

Division 2—Prohibition and authorisation of departure of

certain tax debtors

14R Departure from Australia of certain tax debtors prohibited

(1) A person in respect of whom a departure prohibition order is in
force, and who knows that such an order is in force in respect of
him or her, shall not depart from Australia for a foreign country.
Penalty: 50 penalty units or imprisonment for 12 months, or both.
(2) Subsection (1) does not apply if the departure is authorised by a
departure authorization certificate.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (2), see subsection 13.3(3) of the Criminal Code.

14S Departure prohibition orders

(1) Where:
(a) a person is subject to a tax liability; and
(b) the Commissioner believes on reasonable grounds that it is
desirable to do so for the purpose of ensuring that the person
does not depart from Australia for a foreign country without:
(i) wholly discharging the tax liability; or
(ii) making arrangements satisfactory to the Commissioner
for the tax liability to be wholly discharged;
the Commissioner may, by order in accordance with the prescribed
form, prohibit the departure of the person from Australia for a
foreign country.
(2) Subject to subsection (3), a departure prohibition order remains in
force unless and until revoked under section 14T or set aside by a
court.
(3) A departure prohibition order made in respect of a person shall be
taken, by virtue of this subsection, not to be in force in respect of

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Division 2 Prohibition and authorisation of departure of certain tax debtors

Section 14T

the person during any period during which an order is in force

under the Migration Act 1958 for the deportation of the person.
(4) Where a departure prohibition order is made in respect of a person,
the Commissioner shall forthwith:
(a) cause the person to be informed, as prescribed, of the making
of the order; and
(b) subject to subsection (5), cause a copy of the order, and such
information as the Commissioner considers is likely to
facilitate the identification of the person, to be given to:
(i) the Immigration Secretary; and
(ii) such other persons as the Commissioner considers
appropriate, being persons prescribed, or included in a
class of persons prescribed, for the purposes of this
paragraph.
(5) Where a departure prohibition order is made in respect of a person
whom the Commissioner is satisfied is an Australian citizen, the
Commissioner shall not cause a copy of the order, or any
information likely to facilitate the identification of the person, to be
given to the Immigration Secretary unless the Commissioner is of
the opinion that it is desirable to do so.

14T Revocation and variation of departure prohibition orders

(1) Where a departure prohibition order is in force in respect of a
person and:
(a) the tax liabilities to which the person is subject have been
wholly discharged and the Commissioner is satisfied that it is
likely that the tax liabilities to which the person may become
subject in respect of, or arising out of, matters that have
occurred will be:
(i) wholly discharged; or
(ii) completely irrecoverable; or
(b) the Commissioner is satisfied that the tax liabilities to which
the person is subject are completely irrecoverable;

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Section 14U

the Commissioner shall, on application being made to the

Commissioner by the person to do so or on the Commissioner’s
own motion, revoke the departure prohibition order.
(2) Where a departure prohibition order is in force in respect of a
person, the Commissioner may, in the Commissioner’s discretion
and on application being made to the Commissioner to do so or on
the Commissioner’s own motion, revoke or vary the departure
prohibition order.
(3) A reference in paragraph (1)(a) to tax liabilities having been
wholly discharged includes a reference to arrangements
satisfactory to the Commissioner having been made for those tax
liabilities to be wholly discharged and a reference in that paragraph
to the Commissioner being satisfied that it is likely that tax
liabilities to which a person may become subject will be wholly
discharged includes a reference to the Commissioner being
satisfied that it is likely that arrangements satisfactory to the
Commissioner will be made for those tax liabilities to be wholly
discharged.
(4) As soon as practicable after a departure prohibition order made in
respect of a person is revoked or varied under this section, the
Commissioner shall:
(a) cause to be served, as prescribed, on the person; and
(b) cause to be given to each person to whom a copy of the
departure prohibition order was given;
notification of the revocation or variation of the departure
prohibition order.
(5) As soon as practicable after a decision is made under
subsection (1) or (2) refusing to revoke a departure prohibition
order made in respect of a person, the Commissioner shall cause to
be served, as prescribed, on the person notification of the decision.

14U Departure authorisation certificates

(1) Where, on application made by a person in respect of whom a
departure prohibition order is in force:

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Division 2 Prohibition and authorisation of departure of certain tax debtors

Section 14U

(a) the Commissioner is satisfied:

(i) that, if a departure authorization certificate is issued in
respect of the person, it is likely that:
(A) the person will depart from Australia and will
return to Australia within such period as the
Commissioner considers to be appropriate in
relation to the person; and
(B) circumstances of the kind referred to in
paragraph 14T(1)(a) will come into existence
within such period as the Commissioner
considers to be appropriate in relation to the
person; and
(ii) that it is not necessary or desirable for the person to give
security under subsection (2) for the person’s return to
Australia; or
(b) in a case where the Commissioner is not satisfied with
respect to the matters referred to in paragraph (a):
(i) the person has given security under subsection (2) to the
satisfaction of the Commissioner for the person’s return
to Australia; or
(ii) if the person is unable to give such security, the
Commissioner is satisfied that:
(A) a departure authorization certificate should be
issued in respect of the person on humanitarian
grounds; or
(B) a refusal to issue a departure authorization
certificate in respect of the person would be
detrimental to the interests of Australia;
the Commissioner shall issue a certificate authorizing the person to
depart from Australia for a foreign country on or before the
seventh day after a day (being a day later than, but not more than
7 days later than, the day on which the certificate is issued)
specified in the certificate.
(2) For the purposes of this section:

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Prohibition and authorisation of departure of certain tax debtors Division 2

Section 14U

(a) a person may give security, by bond, deposit or any other

means, for the person’s return to Australia by such day as is
agreed between the person and the Commissioner;
(b) the Commissioner may, in the Commissioner’s discretion and
on application by the person or on the Commissioner’s own
motion, substitute a later day for the day so agreed (including
a day substituted by virtue of a previous application of this
paragraph); and
(c) the Commissioner may refuse to substitute such a later day
unless the person:
(i) increases, to the satisfaction of the Commissioner, the
value of the security given by the person under this
subsection; or
(ii) gives a further security, to the satisfaction of the
Commissioner, by bond, deposit or any other means, for
the person’s return to Australia by that later day.
(3) As soon as practicable after a departure authorization certificate is
issued in respect of a person, the Commissioner shall:
(a) cause a copy of the departure authorization certificate to be
served, as prescribed, on the person; and
(b) cause a copy of the departure authorization certificate to be
given to each person to whom a copy of the departure
prohibition order made in respect of the person was given.
(4) As soon as practicable after a decision is made under
subsection (1) refusing to issue a departure authorization certificate
in respect of a person or a decision is made under subsection (2)
refusing to substitute a later day in relation to the return of a person
to Australia, the Commissioner shall cause to be served, as
prescribed, on the person notification of the decision.

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Part IVA Departure from Australia of certain tax debtors
Division 3 Appeals from, and review of, decisions of the Commissioner

Section 14V

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

Commissioner

14V Appeals to courts against making of departure prohibition

orders
(1) A person aggrieved by the making of a departure prohibition order
may appeal to the Federal Court of Australia or the Supreme Court
of a State or Territory against the making of the departure
prohibition order.
(2) This section has effect:
(a) subject to chapter III of the Constitution; and
(b) notwithstanding anything contained in section 9 of the
Administrative Decisions (Judicial Review) Act 1977.

14W Jurisdiction of courts

(1) The jurisdiction of a court under section 14V shall be exercised by
a single Judge or Justice.
(2) An appeal lies to the Federal Court of Australia from a judgment or
order of the Supreme Court of a State or Territory exercising
jurisdiction under section 14V.
(3) An appeal lies to the High Court, with special leave of the High
Court, from a judgment or order referred to in subsection (2).
(4) Except as provided in subsection (2) or (3), no appeal lies from a
judgment or order referred to in subsection (2).

14X Orders of court on appeal

A court hearing an appeal under section 14V against the making of
a departure prohibition order may, in its discretion:
(a) make an order setting aside the departure prohibition order;
or

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

Section 14Y

(b) dismiss the appeal.

14Y Applications for review of certain decisions

(1) Applications may be made to the Tribunal for review of decisions
of the Commissioner under section 14T or 14U.
(2) In subsection (1), decision has the same meaning as in the
Administrative Appeals Tribunal Act 1975.

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Part IVA Departure from Australia of certain tax debtors
Division 4 Enforcement

Section 14Z

Division 4—Enforcement

14Z Powers of authorised officers

(1) Where an authorized officer believes on reasonable grounds that:
(a) a person is about to depart from Australia for a foreign
country;
(b) a departure prohibition order is in force in respect of the
person; and
(c) the departure is not authorized by a departure authorization
certificate;
the authorized officer may:
(d) take such steps as are reasonably necessary to prevent the
departure of the person, including, but without limiting the
generality of the foregoing, steps to prevent the person going
on board, or steps to remove the person from, a vessel or
aircraft in which the authorized officer believes on
reasonable grounds the departure will take place; and
(e) require the person to answer questions or produce documents
to the authorized officer, or both, for the purposes of
ascertaining whether:
(i) a departure prohibition order is in force in respect of the
person; and
(ii) if a departure prohibition order is in force in respect of
the person—the departure of the person from Australia
for a foreign country is authorized by a departure
authorization certificate.
(2) A person who refuses or fails, when and as required to do so
pursuant to subsection (1), to answer a question or produce a
document, commits an offence punishable on conviction by a fine
not exceeding 10 penalty units.
(2A) Subsection (2) does not apply to the extent that the person has a
reasonable excuse.

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 Departure from Australia of certain tax debtors Part IVA
Enforcement Division 4

Section 14ZA

Note: A defendant bears an evidential burden in relation to the matters in

subsection (2A), see subsection 13.3(3) of the Criminal Code.

(4) Section 8C does not apply in relation to a requirement made

pursuant to subsection (1) of this section.
(5) Subsection 8K(1) and (1B) and section 8N do not apply in relation
to an answer given to a question asked, or a document produced,
pursuant to subsection (1).

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

(1) Where:
(a) a person in respect of whom a departure prohibition order is
in force is about to depart from Australia for a foreign
country; and
(b) the departure is authorized by a departure authorization
certificate;
the person shall, if required to do so pursuant to this subsection by
an authorized officer, produce a copy of the departure authorization
certificate for inspection by the authorized officer.
Penalty: 5 penalty units.
(1A) An offence under subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

(2) Section 8C does not apply in relation to a requirement made

pursuant to subsection (1) of this section.

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Part IVC Taxation objections, reviews and appeals
Division 1 Introduction

Section 14ZL

Part IVC—Taxation objections, reviews and

appeals
Division 1—Introduction

14ZL Part applies to taxation objections

(1) This Part applies if a provision of an Act or a legislative instrument
(including the provision as applied by another Act) provides that a
person who is dissatisfied with an assessment, determination,
notice or decision, or with a failure to make a private ruling, may
object against it in the manner set out in this Part.
(2) Such an objection is in this Part called a taxation objection.

14ZM Division 2—Interpretive

Division 2 contains interpretive provisions necessary for this Part.

14ZN Division 3—Taxation objections

Division 3 describes how taxation objections are to be made and
how they are to be dealt with by the Commissioner.

14ZO Division 4—Tribunal review

Division 4 contains provisions about applications to the Tribunal
for review of decisions by the Commissioner in relation to certain
taxation objections and requests for extension of time.

14ZP Division 5—Federal Court appeals

Division 5 contains provisions about appeals to the Federal Court
against decisions by the Commissioner in relation to certain
taxation objections.

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 Taxation objections, reviews and appeals Part IVC
Interpretive provisions Division 2

Section 14ZQ

Division 2—Interpretive provisions

14ZQ General interpretation provisions

In this Part:
AAT means the Administrative Appeals Tribunal.
AAT Act means the Administrative Appeals Tribunal Act 1975.
AAT extension application means an application under
subsection 29(7) of the AAT Act that relates to a review of a
reviewable objection decision or an extension of time refusal
decision.
delayed administration (beneficiary) objection means a taxation
objection made under:
(b) subsection 220(3) of the Income Tax Assessment Act 1936
(including that subsection as applied by any other Act); or
(g) subsection 260-145(5) in Schedule 1 (because of
paragraph (a) of that subsection).
delayed administration (trustee) objection means a taxation
objection made under:
(a) subsection 220(7) of the Income Tax Assessment Act 1936
(including that subsection as applied by any other Act); or
(b) subsection 260-145(5) in Schedule 1 (because of
paragraph (b) of that subsection).
extension of time refusal decision means a decision of the
Commissioner under subsection 14ZX(1) to refuse a request by a
person.
Federal Court means the Federal Court of Australia.
reviewable objection decision means an objection decision that is
not an ineligible income tax remission decision.

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Part IVC Taxation objections, reviews and appeals
Division 2 Interpretive provisions

Section 14ZR

small business taxation assessment decision means a taxation

decision that is:
(a) an assessment of tax-related liabilities (as defined in
section 255-1 in Schedule 1) relating in whole or in part to
carrying on a business; and
(b) made in relation to a small business entity (within the
meaning of the Income Tax Assessment Act 1997).
taxation decision means the assessment, determination, notice or
decision against which a taxation objection may be, or has been,
made.
taxation objection has the meaning given by section 14ZL.

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

single decision
(1) If:
(a) a provision of an Act (including a provision as applied by
another Act) provides that a person who is dissatisfied with a
taxation decision may object against it in the manner set out
in this Part; and
(b) a notice incorporates notice of 2 or more such taxation
decisions;
then, for the purposes of the provision and of this Part, the taxation
decisions are taken to be one taxation decision.
(2) If:
(a) under subsection (1), 2 or more taxation decisions are taken
to be a single taxation decision (in this subsection called the
deemed single taxation decision); and
(b) the Commissioner makes an objection decision in relation to
the deemed single taxation decision; and
(c) the objection decision is to any extent an ineligible income
tax remission decision;
then, this Part has effect, in relation to any review or appeal, as if
so much of the objection decision as consists of one or more

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 Taxation objections, reviews and appeals Part IVC
Interpretive provisions Division 2

Section 14ZS

ineligible income tax remission decisions were taken to be a

separate objection decision.

14ZS Ineligible income tax remission decisions

(1) An objection decision is an ineligible income tax remission
decision if it relates to the remission of additional tax payable by a
taxpayer under the Income Tax Assessment Act 1936 (other than
Division 11 of former Part IIIAA), except where the additional tax
is payable under former section 163B, 224, 225, 226, 226G, 226H,
226J, 226K, 226L or 226M of that Act, whatever its amount, or is
payable under a provision of former Part VII of that Act other than
any of the preceding sections and its amount, after the decision is
made, exceeds:
(a) in the case of additional tax payable under former section 222
of that Act because of the refusal or failure to furnish a
return, or any information, relating to a year of income—the
amount calculated, in respect of the period commencing on
the last day allowed for furnishing the return or information
and ending on:
(i) the day on which the return or information is furnished;
or
(ii) the day on which the assessment of the additional tax is
made;
whichever first happens, at the rate of 20% per year of the tax
properly payable by the taxpayer in respect of the year of
income; or
(d) if the amount calculated in accordance with paragraph (a) is
less than $20—$20.
(2) A reference in this section to a provision of the Income Tax
Assessment Act 1936 includes a reference to that provision as
applied by any other Act.

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Part IVC Taxation objections, reviews and appeals
Division 3 Taxation objections

Section 14ZU

Division 3—Taxation objections

14ZU How taxation objections are to be made

A person making a taxation objection must:
(a) make it in the approved form; and
(b) lodge it with the Commissioner within the period set out in
section 14ZW; and
(c) state in it, fully and in detail, the grounds that the person
relies on.
Note: A person who objects against the Commissioner’s failure to make a
private ruling must lodge a draft private ruling with the objection: see
subsection 359-50(4).

14ZV Limited objection rights in the case of certain amended

taxation decisions
If the taxation objection is made against a taxation decision, being
an assessment or determination that has been amended in any
particular, then a person’s right to object against the amended
assessment or amended determination is limited to a right to object
against alterations or additions in respect of, or matters relating to,
that particular.

14ZVA Limited objection rights because of other objections

If there has been a taxation objection against:
(a) a private ruling; or
(aa) a determination under subsection 820-423D(2) of the Income
Tax Assessment Act 1997; or
(b) a determination under subsection 960-555(3) of the Income
Tax Assessment Act 1997; or
(c) a determination under subsection 136-10(1) in Schedule 1 to
this Act (about excess transfer balance);
the right of objection under this Part against an assessment, or
against a decision made under an indirect tax law or an excise law,

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 Taxation objections, reviews and appeals Part IVC
Taxation objections Division 3

Section 14ZVB

relating to the matter ruled or determined is limited to a right to

object on grounds that neither were, nor could have been, grounds
for the taxation objection against the ruling or determination.

14ZVB Objections relating to excess concessional contributions

Taxation decisions to which section applies

(1) This section applies to the following taxation decisions:
(a) an assessment against which a taxation objection may be
made under section 175A of the Income Tax Assessment Act
1936;
(b) an excess concessional contributions determination;
(c) a determination under section 291-465 of the Income Tax
Assessment Act 1997;
(d) a decision not to make a determination under that section;
(e) 2 or more taxation decisions that are taken to be a single
taxation decision under subsection (2).

Decisions treated as single decision for common objection ground

(2) If:
(a) a person makes a taxation objection at a particular time, on a
particular ground, against a taxation decision to which this
section applies; and
(b) at that time, the person also objects, or could also object, on
that ground, against another taxation decision to which this
section applies;
then, for the purposes of this Part, those taxation decisions are
taken to be one taxation decision.

Limited objection rights because of earlier objection

(3) A person cannot object under this Part against a taxation decision
to which this section applies on a particular ground if:

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Part IVC Taxation objections, reviews and appeals
Division 3 Taxation objections

Section 14ZVC

(a) the ground was a ground for an objection the person has
made against another decision to which this section applies;
or
(b) the ground could have been a ground for an objection the
person has made against another decision to which this
section applies.

14ZVC Objections relating to non-concessional contributions

Taxation decisions to which section applies

(1) This section applies to the following taxation decisions:
(a) an assessment against which a taxation objection may be
made under section 175A of the Income Tax Assessment Act
1936;
(b) an excess non-concessional contributions determination
(within the meaning of the Income Tax Assessment Act
1997);
(c) an assessment against which a taxation objection may be
made under section 292-245 of the Income Tax Assessment
Act 1997;
(d) a determination under section 292-465 of the Income Tax
Assessment Act 1997, or a decision not to make a
determination under that section;
(e) a direction under section 292-467 of the Income Tax
Assessment Act 1997, or a decision not to make a direction
under that section;
(f) 2 or more taxation decisions that are taken to be a single
taxation decision under subsection (2).

Decisions treated as single decision for common objection ground

(2) If:
(a) a person makes a taxation objection at a particular time, on a
particular ground, against a taxation decision to which this
section applies; and

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 Taxation objections, reviews and appeals Part IVC
Taxation objections Division 3

Section 14ZW

(b) at that time, the person also objects, or could also object, on
that ground, against another taxation decision to which this
section applies;
then, for the purposes of this Part, those taxation decisions are
taken to be a single taxation decision.

Limited objection rights because of earlier objection

(3) A person cannot object under this Part against a taxation decision
to which this section applies on a particular ground if:
(a) the ground was a ground for an objection the person has
made against another decision to which this section applies;
or
(b) the ground could have been a ground for an objection the
person has made against another decision to which this
section applies.

14ZW When taxation objections are to be made

(1) Subject to this section, the person must lodge the taxation objection
with the Commissioner within:
(aa) if the taxation objection is made under section 175A of the
Income Tax Assessment Act 1936:
(i) if item 1, 2 or 3 of the table in subsection 170(1) of that
Act applies to the assessment concerned—2 years after
notice of the assessment is given to the person; or
(ii) otherwise—4 years after notice of the assessment
concerned is given to the person; or
(aaa) if the taxation objection is made under section 78A of the
Fringe Benefits Tax Assessment Act 1986 or former
section 160AL of the Income Tax Assessment Act 1936—
4 years after notice of the taxation decision to which it relates
has been given to the person; or
(aaaa) if the taxation objection is made under subsection 112-36(5)
or 116-120(5) of the Income Tax Assessment Act 1997—60
days after the notice mentioned in paragraph (b) of that
subsection is given to the person; or

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Part IVC Taxation objections, reviews and appeals
Division 3 Taxation objections

Section 14ZW

(aab) if the taxation objection is made under section 292-245 of the

Income Tax Assessment Act 1997—4 years after notice of the
assessment concerned is given to the person; or
(aac) if the taxation objection is made under section 97-10 in
Schedule 1 on a particular ground—within the same period
that the person:
(i) must lodge a taxation objection on that ground under
section 175A of the Income Tax Assessment Act 1936;
or
(ii) would be required to lodge such a taxation objection, if,
disregarding subsection 175A(2) of that Act, one could
be made; or
(aaca) if the taxation objection is made on a particular ground under
any of the following provisions:
(i) section 175A of the Income Tax Assessment Act 1936;
(ii) section 97-35 in Schedule 1 to this Act;
(iii) section 292-245, 292-465 or 292-467 of the Income Tax
Assessment Act 1997;
within the same period that the person must lodge a taxation
objection on that ground under section 292-245 of the
Income Tax Assessment Act 1997; or
(aad) if the taxation objection is made under
subsection 8AAZLGA(6) of this Act (retaining refunds while
Commissioner verifies information)—the period:
(i) starting at the end of the 60 day period after the end of
the day before which, under subsection 8AAZLGA(3),
the Commissioner is required to inform the entity
mentioned in section 8AAZLGA that the Commissioner
has retained an amount under that section; and
(ii) ending on the day (if any) on which there is a change, of
a kind mentioned in paragraph 8AAZLGA(5)(c), to how
much the Commissioner is required to refund in relation
to the amount; or
(aae) if the taxation objection is made under
subsection 8AAZLGB(4) of this Act (retaining refunds until

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 Taxation objections, reviews and appeals Part IVC
Taxation objections Division 3

Section 14ZW

notification under Division 389 or ascertainment of

liability)—the period:
(i) starting at the end of the 60 day period after the end of
the day before which, under subsection 8AAZLGB(2),
the Commissioner is required to inform the entity
mentioned in section 8AAZLGB that the Commissioner
has retained an amount under that section; and
(ii) ending on the day (if any) on which, under
subsection 8AAZLGB(3), the Commissioner ceases to
be entitled to retain the amount; or
(ab) if the taxation objection is a delayed administration
(beneficiary) objection made under subsection 260-145(5) in
Schedule 1 (because of paragraph (a) of that subsection) or
subsection 220(3) of the Income Tax Assessment Act 1936
(not including that subsection as applied by any other Act)—
4 years after notice of the taxation decision to which it relates
has been first published; or
(ac) if the taxation objection is a delayed administration (trustee)
objection made under subsection 260-145(5) in Schedule 1
(because of paragraph (b) of that subsection) or
subsection 220(7) of the Income Tax Assessment Act 1936
(not including that subsection as applied by any other Act)—
4 years after probate of the will, or letters of administration
of the estate, of the deceased person concerned has been
granted; or
(a) if the taxation objection is a delayed administration
(beneficiary) objection to which paragraph (ab) does not
apply—60 days after notice of the taxation decision to which
it relates has been first published; or
(b) if the taxation objection is a delayed administration (trustee)
objection to which paragraph (ac) does not apply—60 days
after probate of the will, or letters of administration of the
estate, of the deceased person concerned has been granted; or
(ba) if the taxation objection is an objection under
subsection 359-50(3) in Schedule 1 against the
Commissioner’s failure to make a private ruling—60 days

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Part IVC Taxation objections, reviews and appeals
Division 3 Taxation objections

Section 14ZW

after the end of the period of 30 days referred to in that

subsection; or
(bb) if the taxation objection is made under section 66 of the
Petroleum Resource Rent Tax Assessment Act 1987 to an
assessment under that Act—4 years after notice of the
assessment is given to the person; or
(bd) if the taxation objection is made under section 20P of the
Superannuation (Unclaimed Money and Lost Members) Act
1999 against a notice given to a superannuation provider
under section 20C of that Act and the person is not the
superannuation provider—2 years after the notice was given
to the superannuation provider; or
(be) if the taxation objection is made under section 20P of the
Superannuation (Unclaimed Money and Lost Members) Act
1999 against a decision under Division 4 or 5 of Part 3A of
that Act and the person is not a superannuation provider (as
defined in that Act)—2 years after the person was given
notice of the decision; or
(bf) if the taxation objection is made under subsection 155-30(2)
in Schedule 1 to this Act—60 days after the end of the period
of 30 days mentioned in that subsection; or
(bg) if the taxation objection is made under Subdivision 155-C in
Schedule 1 to this Act and paragraph (bga) does not apply to
the objection—the period mentioned in
paragraph 155-35(2)(a) in that Schedule in relation to the
assessment concerned; or
(bga) if the taxation objection is made under Subdivision 155-C in
Schedule 1 to this Act in relation to an assessment of an
amount of Laminaria and Corallina decommissioning levy—
60 days after notice of the assessment has been given to the
person; or
(bi) if the taxation objection is made under section 265-110 in
Schedule 1 to this Act (about directions to pay
superannuation guarantee charge)—the period specified for
the purposes of paragraph 265-90(3)(c) in the direction given
to the person (subject to subsection 265-115(2)); or

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 Taxation objections, reviews and appeals Part IVC
Taxation objections Division 3

Section 14ZW

(bj) if the taxation objection is made under section 384-40 in

Schedule 1 to this Act (about education directions)—the
period specified for the purposes of subsection 384-15(2) in
the direction given to the person (subject to
subsection 384-35(7)); or
(c) in any other case—60 days after notice of the taxation
decision to which it relates has been served on the person.
(1AAC) The person cannot lodge a taxation objection against a private
indirect tax ruling after the end of whichever of the following ends
last:
(a) 60 days after the ruling was made;
(b) 4 years after the last day allowed to the person for lodging a
return relating to the assessment of the assessable amount to
which the ruling relates.
(1A) The person cannot lodge a taxation objection against a private
ruling (other than a private indirect tax ruling, or a ruling that
relates to an excise law) that relates to a year of income after the
end of whichever of the following ends last:
(a) 60 days after the ruling was made;
(b) whichever of the following is applicable:
(i) if item 1, 2 or 3 of the table in subsection 170(1) of the
Income Tax Assessment Act 1936 applies to the person’s
assessment for that income year—2 years after the last
day allowed to the person for lodging a return in relation
to the person’s income for that year of income;
(ii) otherwise—4 years after that day.
(1AA) The person cannot lodge a taxation objection against a private
ruling that relates to a year of tax and a petroleum project under the
Petroleum Resource Rent Tax Assessment Act 1987 after the end of
whichever of the following ends last:
(a) the 60 days after the ruling was made;
(b) the 4 years after the last day allowed to the person for
lodging a return in relation to the year of tax and the project.

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Part IVC Taxation objections, reviews and appeals
Division 3 Taxation objections

Section 14ZW

(1B) If:
(a) section 14ZV applies to a taxation objection; and
(b) apart from this subsection, subparagraph (1)(aa)(ii) or
paragraph (1)(aaa), (aab), (ab), (ac), (bb), (bf) or (bg) would
apply to the taxation objection;
the person must lodge the taxation objection before the end of
whichever of the following ends last:
(c) the 4 years after notice of the assessment or determination
that has been amended by the amended assessment or
amended determination to which the taxation objection
relates has been served on the person;
(d) the 60 days after the notice of the amended assessment or
amended determination to which the taxation objection
relates has been served on the person.
(1BA) If:
(a) section 14ZV applies to a taxation objection; and
(b) apart from this subsection, subparagraph (1)(aa)(i) would
apply to the taxation objection;
the person must lodge the taxation objection before the end of
whichever of the following ends last:
(c) 2 years after notice of the assessment or determination that
has been amended by the amended assessment or amended
determination to which the taxation objection relates has
been served on the person;
(d) 60 days after the notice of the amended assessment to which
the taxation objection relates has been served on the person.
(1BB) If:
(a) the taxation objection is against an assessment by the
Commissioner of the amount of an administrative penalty
under Division 284; and
(b) that penalty relates to an assessment of the person; and
(c) the person has longer than 60 days to lodge a taxation
objection against the assessment referred to in paragraph (b);

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 Taxation objections, reviews and appeals Part IVC
Taxation objections Division 3

Section 14ZX

the person must lodge the taxation objection within that longer
period.
(1C) For the purposes of paragraph (1B)(c), if an assessment or
determination has been amended more than once, the notice is the
notice of the first assessment or determination in relation to the
year of income, franking year or year of tax, as the case requires.
(2) If the period within which an objection by a person is required to
be lodged has passed, the person may nevertheless lodge the
objection with the Commissioner together with a written request
asking the Commissioner to deal with the objection as if it had
been lodged within that period.
(3) The request must state fully and in detail the circumstances
concerning, and the reasons for, the person’s failure to lodge the
objection with the Commissioner within the required period.
(4) The 60 day period mentioned in subparagraph (1)(aad)(i)
(including the period as extended by a previous application of this
subsection) is extended by the number of days during that period in
relation to which the following paragraphs apply:
(a) on or before the day, but during the period, the
Commissioner requests information from the entity for the
purposes of verifying the notified information mentioned in
section 8AAZLGA;
(b) the Commissioner does not receive the requested information
before the day.

14ZX Commissioner to consider applications for extension of time

(1) After considering the request, the Commissioner must decide
whether to agree to it or refuse it.
(2) The Commissioner must give the person written notice of the
Commissioner’s decision.
(3) If the Commissioner decides to agree to the request, then, for the
purposes of this Part, the objection is taken to have been lodged
with the Commissioner within the required period.

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Division 3 Taxation objections

Section 14ZY

(4) If the Commissioner decides to refuse the request, the person may
apply to the Tribunal for review of the decision.

14ZY Commissioner to decide taxation objections

(1) Subject to subsection (1A), if the taxation objection has been
lodged with the Commissioner within the required period, the
Commissioner must decide whether to:
(a) allow it, wholly or in part; or
(b) disallow it.
(1A) If the taxation objection is an objection under subsection 359-50(3)
in Schedule 1 against the Commissioner’s failure to make a private
ruling, the Commissioner must:
(a) make a private ruling in the same terms as the draft ruling
lodged with the objection; or
(b) make a different private ruling.
(1B) If the taxation objection is an objection under subsection 155-30(2)
in Schedule 1 against the Commissioner’s failure to make an
assessment of an assessable amount, the Commissioner must
decide to make an assessment of the assessable amount.
(2) A decision of the Commissioner mentioned in subsection (1), (1A)
or (1B) is an objection decision.
(3) The Commissioner must cause to be served on the person written
notice of the Commissioner’s objection decision.

14ZYA Person may require Commissioner to make an objection

decision
(1) This section applies if the taxation objection (other than one under
subsection 155-30(2) or 359-50(3) in Schedule 1) has been lodged
with the Commissioner within the required period and the
Commissioner has not made an objection decision by whichever is
the later of the following times:

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Section 14ZYB

(a) the end of the period (in this section called the original
60-day period) of 60 days after whichever is the later of the
following days:
(i) the day on which the taxation objection is lodged with
the Commissioner;
(ii) if the Commissioner decides under section 14ZX to
agree to a request in relation to the taxation objection—
the day on which the decision is made;
(b) if the Commissioner, by written notice served on the person
within the original 60-day period, requires the person to give
information relating to the taxation objection—the end of the
period of 60 days after the Commissioner receives that
information.
(2) The person may give the Commissioner a written notice requiring
the Commissioner to make an objection decision.
(3) If the Commissioner has not made an objection decision by the end
of the period of 60 days after being given the notice, then, at the
end of that period, the Commissioner is taken to have made a
decision under subsection 14ZY(1) to disallow the taxation
objection.

14ZYB Requiring Commissioner to make a private ruling

(1) This section applies if the taxation objection is an objection under
subsection 155-30(2) or 359-50(3) in Schedule 1 and the
Commissioner has not made an objection decision by the end of 60
days after the later of these days:
(a) the day on which the taxation objection was lodged with the
Commissioner;
(b) if the Commissioner decides under section 14ZX to agree to
a request in relation to the taxation objection—the day on
which the decision was made.
Note 1: Subsection 155-30(2) provides for objections against the
Commissioner’s failure to make an assessment of an assessable
amount.

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Division 3 Taxation objections

Section 14ZZ

Note 2: Subsection 359-50(3) provides for objections against the

Commissioner’s failure to make a private ruling.

(2) The Commissioner is taken, at the end of that 60 day period, to

have disallowed the objection.

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

decision
(1) If the person is dissatisfied with the Commissioner’s objection
decision (including a decision under paragraph 14ZY(1A)(b) to
make a different private ruling), the person may:
(a) if the decision is a reviewable objection decision—either:
(i) apply to the Tribunal for review of the decision; or
(ii) appeal to the Federal Court against the decision; or
(b) otherwise—appeal to the Federal Court against the decision.
(2) Treat a reference in subsection (1) to appealing to the Federal
Court as being a reference to appealing to a designated court
(within the meaning of the Australian Charities and Not-for-profits
Commission Act 2012) if:
(a) the person may appeal to the designated court against an
objection decision under that Act (the ACNC objection
decision); and
(b) the objection decision mentioned in subsection (1) (the
taxation objection decision) and the ACNC objection
decision are related, or it would be efficient for the
designated court to consider the decisions together.
Note: In the Australian Charities and Not-for-profits Commission Act 2012,
designated court means the Federal Court of Australia or a Supreme
Court of a State or Territory that has jurisdiction in relation to matters
arising under that Act.

(3) An appeal to the designated court against the taxation objection

decision must be made together with the appeal against the ACNC
objection decision as mentioned in section 170-30 of the
Australian Charities and Not-for-profits Commission Act 2012, if
the designated court is not the Federal Court.

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Section 14ZZA

Division 4—AAT review of objection decisions and

extension of time refusal decisions

14ZZA Modified AAT Act to apply

The AAT Act applies in relation to:
(a) the review of reviewable objection decisions; and
(b) the review of extension of time refusal decisions; and
(c) AAT extension applications;
subject to the modifications set out in this Division.

14ZZB Sections 27, 28, 41 and 44A of the AAT Act not to apply to
certain decisions
(1) Sections 27 and 41 of the AAT Act do not apply in relation to:
(a) a reviewable objection decision; or
(b) an extension of time refusal decision.
(2) Sections 28 and 44A of the AAT Act do not apply in relation to a
reviewable objection decision.
(3) However, despite subsection (1), section 41 of the AAT Act
applies in relation to a reviewable objection decision that relates to
a small business taxation assessment decision, subject to the
modifications set out in section 14ZZH.

14ZZC Modification of section 29 of the AAT Act

Section 29 of the AAT Act applies in relation to a reviewable
objection decision as if subsections (1) to (6) (inclusive) of that
section were omitted and the following subsection were
substituted:
“(1) An application to the Tribunal for a review of a decision:
(a) must be in writing; and

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Section 14ZZD

(c) must set out a statement of the reasons for the application;
and
(d) must be lodged with the Tribunal within 60 days after the
person making the application is served with notice of the
decision.”.

14ZZD Modification of section 30 of the AAT Act

Section 30 of the AAT Act applies in relation to a reviewable
objection decision or an extension of time refusal decision as if
subsection (1A) of that section were omitted and the following
subsection were substituted:
“(1A) If an application has been made by a person to the Tribunal for the
review of a reviewable objection decision or an extension of time
refusal decision:
(a) any other person whose interests are affected by the decision
may apply, in writing, to the Tribunal to be made a party to
the proceeding; and
(b) the Tribunal may, in its discretion, by order, if it is satisfied
that the person making the application consents to the order,
make that person a party to the proceeding.”.

14ZZE Hearings before Tribunal to be held in private if applicant so

requests
Despite section 35 of the AAT Act, the hearing of a proceeding
before the Tribunal for:
(a) a review of a reviewable objection decision; or
(b) a review of an extension of time refusal decision; or
(c) an AAT extension application;
is to be in private if the party who made the application requests
that it be in private.

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Section 14ZZF

14ZZF Modification of section 37 of the AAT Act

(1) Section 37 of the AAT Act applies in relation to an application for
review of a reviewable objection decision as if:
(a) the requirement in subsection (1) of that section to lodge with
the Tribunal a copy of:
(i) a statement giving the reasons for the decision; and
(ii) the notice of the taxation decision concerned; and
(iii) the taxation objection concerned; and
(iv) the notice of the objection decision; and
(v) every other document that is in the Commissioner’s
possession or under the Commissioner’s control and is
considered by the Commissioner to be necessary to the
review of the objection decision concerned; and
(vi) a list of the documents (if any) being lodged under
subparagraph (v); and
(b) the power of the Tribunal under subsection (2) of that section
to cause a notice to be served containing a statement and
imposing a requirement on a person were instead:
(i) a power to make such a statement and impose such a
requirement orally at a conference held in accordance
with subsection 34(1) of the AAT Act; and
(ii) a power, by such a notice, to make such a statement and
impose a requirement that the person lodge with the
Tribunal, within the time specified in the notice, a copy
of each of those other documents that is in the person’s
possession or under the person’s control; and
(iii) a power, by such a notice, to make such a statement and
impose a requirement that the person lodge with the
Tribunal, within the time specified in the notice, a copy
of a list of the documents in the person’s possession or
under the person’s control considered by the person to
be relevant to the review of the objection decision
concerned.
(2) Paragraph (1)(b) does not affect any powers that the Tribunal has
apart from that paragraph.

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Section 14ZZG

(3) The imposition of a requirement covered by

subparagraph (1)(b)(iii) does not prevent the subsequent imposition
of a requirement covered by subparagraph (1)(b)(ii).

14ZZG Modification of section 38 of the AAT Act

Section 38 of the AAT Act applies in relation to an application for
a review of a reviewable objection decision as if the reference to
paragraph 37(1)(a) of that Act were instead a reference to
subparagraph 14ZZF(1)(a)(i) of this Act.

14ZZH Modification of section 41 of the AAT Act

Section 41 of the AAT Act applies in relation to a reviewable
objection decision that relates to a small business taxation
assessment decision as if the following subsection were inserted
after subsection (3):
“(3A) The Tribunal must not make an order under subsection (2), or an
order varying or revoking an order in force under subsection (2),
unless:
(a) the proceeding before the Tribunal is in the Small Business
Taxation Division of the Tribunal; and
(b) if the party requesting the order is not the Commissioner of
Taxation—the party satisfies the Tribunal that, when
considered in the context of both the particular circumstances
of the decision under review and the overall taxation system,
the application for review and the request for making the
order are not frivolous, vexatious, misconceived, lacking in
substance or otherwise intended to unduly impede, prejudice
or restrict the proper administration or operation of a taxation
law.
Note 1: The kind of orders that the Tribunal may make under this section as
modified by section 14ZZH of the Taxation Administration Act 1953
include the following:
(a) an order directing the Commissioner not to sue in a court to
recover a specified amount relating to the reviewable objection
decision (see subsection 255-5(2) in Schedule 1 to the Taxation
Administration Act 1953);

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(b) an order directing the Commissioner to offer or accept payment

of a liability relating to the reviewable objection decision by
instalments under a specified arrangement (see section 255-15 in
Schedule 1 to the Taxation Administration Act 1953);
(c) an order directing the Commissioner not to issue one or more
written notices to specified third parties who owe or may later
owe money to the applicant as a means of recovering a liability
relating to the reviewable objection decision (see section 260-5
in Schedule 1 to the Taxation Administration Act 1953).
Note 2: However, an order that would materially and permanently alter the
decision under review would not be an order staying or otherwise
affecting the operation or implementation of such a decision for the
purpose of securing the effectiveness of the hearing and determination
of the application for review. For example:
(a) an order directing the Commissioner to defer the time at which a
tax liability becomes due and payable; or
(b) an order directing the Commissioner to remit the imposition of
interest charges on unpaid liabilities that are due and payable.”.

14ZZJ Modification of section 43 of the AAT Act

Section 43 of the AAT Act applies in relation to:
(a) a review of a reviewable objection decision; and
(b) a review of an extension of time refusal decision; and
(c) an AAT extension application;
as if the following subsections were inserted after subsection (2B):
“(2C) If a hearing of a proceeding for the review of a decision or an AAT
extension application is not conducted in public, that fact does not
prevent the Tribunal from publishing its reasons for the decision.
“(2D) If:
(a) a hearing of a proceeding for the review of a decision or an
AAT extension application is not conducted in public; and
(b) a notice of appeal has not been lodged with the Federal
Court;
the Tribunal must ensure, as far as practicable, that its reasons for
the decision are framed so as not to be likely to enable the
identification of the person who applied for the review.
“(2E) In subsections (2C) and (2D):

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Section 14ZZK

reasons for decision includes findings on material questions of fact

and references to the evidence or other material on which those
findings were based.”.

14ZZK Grounds of objection and burden of proof

On an application for review of a reviewable objection decision:
(a) the applicant is, unless the Tribunal orders otherwise, limited
to the grounds stated in the taxation objection to which the
decision relates; and
(b) the applicant has the burden of proving:
(i) if the taxation decision concerned is an assessment—
that the assessment is excessive or otherwise incorrect
and what the assessment should have been; or
(ii) in any other case—that the taxation decision concerned
should not have been made or should have been made
differently.

14ZZL Implementation of Tribunal decisions

(1) When the decision of the Tribunal on the review of a reviewable
objection decision or an extension of time refusal decision
becomes final, the Commissioner must, within 60 days, take such
action, including amending any assessment or determination
concerned, as is necessary to give effect to the decision.
(2) For the purposes of subsection (1), if no appeal is lodged against
the Tribunal’s decision within the period for lodging an appeal, the
decision becomes final at the end of the period.

14ZZM Pending review not to affect implementation of taxation

decisions
(1) The fact that a review is pending in relation to a taxation decision
does not in the meantime interfere with, or affect, the decision and
any tax, additional tax or other amount may be recovered as if no
review were pending.

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Section 14ZZM

(2) However, the application of subsection (1) in relation to a small

business taxation assessment decision is subject to any order made
under section 41 of the AAT Act (as modified by section 14ZZH of
this Act) in relation to the decision.

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Part IVC Taxation objections, reviews and appeals
Division 5 Court appeals against objection decisions

Section 14ZZN

Division 5—Court appeals against objection decisions

14ZZN Time limit for appeals

An appeal to the Federal Court against an objection decision must
be lodged with the Court within 60 days after the person appealing
is served with notice of the decision.

14ZZO Grounds of objection and burden of proof

In proceedings on an appeal under section 14ZZ to a court against
an objection decision:
(a) the appellant is, unless the court orders otherwise, limited to
the grounds stated in the taxation objection to which the
decision relates; and
(b) the appellant has the burden of proving:
(i) if the taxation decision concerned is an assessment—
that the assessment is excessive or otherwise incorrect
and what the assessment should have been; or
(ii) in any other case—that the taxation decision should not
have been made or should have been made differently.

14ZZP Order of court on objection decision

Where a court hears an appeal against an objection decision under
section 14ZZ, the court may make such order in relation to the
decision as it thinks fit, including an order confirming or varying
the decision.

14ZZQ Implementation of court order in respect of objection

decision
(1) When the order of the court in relation to the decision becomes
final, the Commissioner must, within 60 days, take such action,
including amending any assessment or determination concerned, as
is necessary to give effect to the decision.

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Section 14ZZR

(2) For the purposes of subsection (1):

(a) if the order is made by the court constituted by a single Judge
and no appeal is lodged against the order within the period
for lodging an appeal—the order becomes final at the end of
the period; and
(b) if the order is made by the court constituted other than as
mentioned in paragraph (a) and no application for special
leave to appeal to the High Court against the order is made
within the period of 30 days after the order is made—the
order becomes final at the end of the period.

14ZZR Pending appeal not to affect implementation of taxation

decisions
The fact that an appeal is pending in relation to a taxation decision
does not in the meantime interfere with, or affect, the decision and
any tax, additional tax or other amount may be recovered as if no
appeal were pending.

14ZZS Transfer of certain proceedings to Federal Circuit and

Family Court of Australia (Division 1)
(1) If:
(a) a proceeding is pending in the Federal Court on an appeal
under section 14ZZ in relation to an objection decision; and
(b) the taxation decision to which the objection decision relates
was made under the Income Tax Assessment Act 1936;
the Federal Court may, on the application of a party to the
proceeding or on its own initiative, transfer the proceeding to the
Federal Circuit and Family Court of Australia (Division 1).
(2) Subject to subsection (3), if the proceeding is transferred to the
Federal Circuit and Family Court of Australia (Division 1):
(a) the Federal Circuit and Family Court of Australia
(Division 1) has jurisdiction to hear and determine the
proceeding; and

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Section 14ZZS

(b) the Federal Circuit and Family Court of Australia

(Division 1) also has jurisdiction to hear and determine
matters not otherwise within its jurisdiction (whether because
of paragraph (a) or otherwise):
(i) that are associated with matters arising in the
proceeding; or
(ii) that, apart from subsection 32(1) of the Federal Court of
Australia Act 1976, the Federal Court would have had
jurisdiction to hear and determine in the proceeding; and
(c) the Federal Circuit and Family Court of Australia
(Division 1) may, in and in relation to the proceeding:
(i) grant such remedies; and
(ii) make orders of such kinds; and
(iii) issue, and direct the issue of, writs of such kinds;
as the Federal Court could have granted, made, issued or
directed the issue of, as the case may be, in and in relation to
the proceeding; and
(d) remedies, orders and writs granted, made or issued by the
Federal Circuit and Family Court of Australia (Division 1) in
and in relation to the proceeding have effect, and may be
enforced by the Federal Circuit and Family Court of
Australia (Division 1), as if they had been granted, made or
issued by the Federal Court; and
(e) appeals lie from judgments of the Federal Circuit and Family
Court of Australia (Division 1) given in and in relation to the
proceeding as if the judgments were judgments of the Federal
Court constituted by a single Judge of that Court, and do not
otherwise lie; and
(f) subject to paragraphs (a) to (e) (inclusive), this Act, the
regulations, the Federal Court of Australia Act 1976, the
Rules of the Court made under that Act, and other laws of the
Commonwealth, apply in and in relation to the proceeding as
if:
(i) a reference to the Federal Court (other than in the
expression “the Court or a Judge”) included a reference

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Section 14ZZS

to the Federal Circuit and Family Court of Australia

(Division 1); and
(ii) a reference to a Judge of the Federal Court (other than
in the expression “the Court or a Judge”) included a
reference to a Judge of the Federal Circuit and Family
Court of Australia (Division 1); and
(iii) a reference to the expression “the Court or a Judge”
when used in relation to the Federal Court included a
reference to a Judge of the Federal Circuit and Family
Court of Australia (Division 1) sitting in Chambers; and
(iv) a reference to a Registrar of the Federal Court included
a reference to a Registrar of the Federal Circuit and
Family Court of Australia (Division 1); and
(v) any other necessary changes were made.
(3) If any difficulty arises in the application of paragraphs (2)(c), (d)
and (f) in or in relation to a particular proceeding, the Federal
Circuit and Family Court of Australia (Division 1) may, on the
application of a party to the proceeding or on its own initiative,
give such directions, and make such orders, as it considers
appropriate to resolve the difficulty.
(4) An appeal does not lie from a decision of the Federal Court in
relation to the transfer of a proceeding under this Part to the
Federal Circuit and Family Court of Australia (Division 1).

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Part IVD Protection for whistleblowers

Section 14ZZT

Part IVD—Protection for whistleblowers

14ZZT Disclosures qualifying for protection under this Part

(1) A disclosure of information by an individual (the discloser)
qualifies for protection under this Part if:
(a) the discloser is an eligible whistleblower in relation to an
entity (within the meaning of the Income Tax Assessment Act
1997); and
(b) the disclosure is made to the Commissioner; and
(c) the discloser considers that the information may assist the
Commissioner to perform his or her functions or duties under
a taxation law in relation to the entity or an associate (within
the meaning of section 318 of the Income Tax Assessment Act
1936) of the entity.
(1A) A disclosure of information by an individual (the discloser)
qualifies for protection under this Part if:
(a) the discloser is an eligible whistleblower in relation to an
entity (within the meaning of the Income Tax Assessment Act
1997); and
(b) the disclosure is made to:
(i) the Tax Practitioners Board; or
(ii) the Commissioner; and
(c) the discloser considers that the information may assist the
Tax Practitioners Board to perform its functions or duties
under the Tax Agent Services Act 2009, or an instrument
made under that Act, in relation to the entity or an associate
(within the meaning of section 318 of the Income Tax
Assessment Act 1936) of the entity.
(2) A disclosure of information by an individual (the discloser)
qualifies for protection under this Part if:

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Section 14ZZT

(a) the discloser is an eligible whistleblower in relation to an

entity (within the meaning of the Income Tax Assessment Act
1997); and
(b) the disclosure is made to an eligible recipient in relation to
the entity; and
(c) the discloser has reasonable grounds to suspect that the
information indicates misconduct, or an improper state of
affairs or circumstances, in relation to the tax affairs of the
entity or an associate (within the meaning of section 318 of
the Income Tax Assessment Act 1936) of the entity; and
(d) the discloser considers that the information may assist the
eligible recipient to perform functions or duties in relation to
the tax affairs of the entity or an associate (within the
meaning of section 318 of the Income Tax Assessment Act
1936) of the entity.
(3) A disclosure of information by an individual qualifies for
protection under this Part if the disclosure is made to a legal
practitioner for the purpose of obtaining legal advice or legal
representation in relation to the operation of this Part.
(3A) A disclosure of information by an individual (the discloser)
qualifies for protection under this Part if the disclosure is made:
(a) to an entity (within the meaning of the Income Tax
Assessment Act 1997) that has one or more members, if:
(i) the entity is prescribed by the regulations; and
(ii) the discloser is a member of the entity; and
(b) for the purpose of obtaining assistance in relation to the
operation of this Part.
(3B) A disclosure of information by an individual (the discloser)
qualifies for protection under this Part if the disclosure is made to a
medical practitioner or psychologist for the purpose of obtaining
medical or psychiatric care, treatment or counselling (including
psychological counselling).
(4) In this section:

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Section 14ZZTA

medical practitioner means a person registered or licensed as a

medical practitioner under a law of a State or Territory that
provides for the registration or licensing of medical practitioners.
psychologist means a person registered or licensed as a
psychologist under a law of a State or Territory that provides for
the registration or licensing of psychologists.
tax affairs means affairs relating to any tax imposed by or under,
or assessed or collected under, a law administered by the
Commissioner.
Note: There is no requirement for a discloser to identify himself or herself in
order for a disclosure to qualify for protection under this Part.

14ZZTA Information disclosed for the purpose of assisting the Tax

Practitioners Board
(1) If information is disclosed to the Commissioner in accordance with
subsection 14ZZT(1A) then, for the purposes of the following
provisions:
(a) paragraph 355-30(1)(a) in Schedule 1;
(b) paragraph (a) of the definition of official information in
subsection 90-1(1) of the Tax Agent Services Act 2009;
the information is taken to have been disclosed or obtained under
or for the purposes of this Act, and not the Tax Agent Services Act
2009.
(2) If information is disclosed to the Tax Practitioners Board in
accordance with subsection 14ZZT(1A) then, for the purposes of
the following provisions:
(a) paragraph 355-30(1)(a) in Schedule 1;
(b) paragraph (a) of the definition of official information in
subsection 90-1(1) of the Tax Agent Services Act 2009;
the information is taken to have been disclosed or obtained under
or for the purposes of the Tax Agent Services Act 2009, and not this
Act.

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14ZZU Eligible whistleblowers

An individual is an eligible whistleblower in relation to an entity
(within the meaning of the Income Tax Assessment Act 1997) if the
individual is, or has been, any of the following:
(a) an officer (within the meaning of the Corporations Act 2001)
of the entity;
(b) an employee of the entity;
(c) an individual who supplies services or goods to the entity
(whether paid or unpaid);
(d) an employee of a person that supplies services or goods to
the entity (whether paid or unpaid);
(e) an individual who is an associate (within the meaning of
section 318 of the Income Tax Assessment Act 1936) of the
entity;
(f) a spouse or child of an individual referred to in any of
paragraphs (a) to (e);
(g) a dependant of an individual referred to in any of
paragraphs (a) to (e), or of such an individual’s spouse;
(h) an individual prescribed by the regulations for the purposes
of this paragraph in relation to the entity.

14ZZV Eligible recipients

(1) Each of the following is an eligible recipient in relation to an entity
(within the meaning of the Income Tax Assessment Act 1997):
(a) an auditor, or a member of an audit team conducting an audit,
of the entity;
(b) a registered tax agent or BAS agent (within the meaning of
the Tax Agent Services Act 2009) who provides tax agent
services (within the meaning of that Act) or BAS services
(within the meaning of that Act) to the entity;
(c) a person authorised by the entity to receive disclosures that
may qualify for protection under this Part;
(d) a person or body prescribed for the purposes of this
paragraph in relation to the entity.

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(2) If the entity is a body corporate, each of the following is an eligible

recipient in relation to the entity:
(a) a director, secretary or senior manager (within the meaning
of the Corporations Act 2001) of the body corporate;
(b) any other employee or officer (within the meaning of the
Corporations Act 2001) of the body corporate who has
functions or duties that relate to the tax affairs (within the
meaning of section 14ZZT) of the body corporate.
(3) If the entity is a trust, each of the following is an eligible recipient
in relation to the entity:
(a) a trustee of the trust;
(b) a person authorised by a trustee of the trust to receive
disclosures that may qualify for protection under this Part.
(4) If the entity is a partnership, each of the following is an eligible
recipient in relation to the entity:
(a) a partner in the partnership;
(b) a person authorised by a partner in the partnership to receive
disclosures that may qualify for protection under this Part.
(5) Subsections (1), (2), (3) and (4) do not limit each other.

14ZZW Confidentiality of whistleblower’s identity

(1) A person (the first person) commits an offence if:
(a) another person (the discloser) makes a disclosure of
information (the qualifying disclosure) that qualifies for
protection under this Part; and
(b) the first person discloses any of the following (the
confidential information):
(i) the identity of the discloser;
(ii) information that is likely to lead to the identification of
the discloser; and
(c) the confidential information is information that the first
person obtained directly or indirectly because of the
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(d) the disclosure referred to in paragraph (b) is not authorised

under subsection (2).
Penalty: Imprisonment for 6 months or 60 penalty units, or both.
(2) A disclosure referred to in paragraph (1)(b) is authorised under this
subsection if it:
(a) is made to the Commissioner; or
(b) is made to a member of the Australian Federal Police (within
the meaning of the Australian Federal Police Act 1979); or
(c) is made to a legal practitioner for the purpose of obtaining
legal advice or legal representation in relation to the
operation of this Part; or
(d) is made to a person or body prescribed by the regulations for
the purposes of this paragraph; or
(e) is made with the consent of the discloser.
(3) Subsection (1) does not apply if:
(a) the disclosure referred to in paragraph (1)(b):
(i) is not of the identity of the discloser; and
(ii) is reasonably necessary for the purposes of investigating
misconduct, or an improper state of affairs or
circumstances, to which the qualifying disclosure
relates; and
(b) the first person takes all reasonable steps to reduce the risk
that the discloser will be identified as a result of the
disclosure referred to in paragraph (1)(b).
Note: A defendant bears an evidential burden in relation to the matter in
subsection (3): see subsection 13.3(3) of the Criminal Code.

14ZZX Disclosure that qualifies for protection not actionable etc.

(1) If a person makes a disclosure that qualifies for protection under
this Part:
(a) the person is not subject to any civil, criminal or
administrative liability (including disciplinary action) for
making the disclosure; and

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(b) no contractual or other remedy may be enforced, and no

contractual or other right may be exercised, against the
person on the basis of the disclosure; and
(c) if the disclosure was a disclosure of information to the
Commissioner or the Tax Practitioners Board—the
information is not admissible in evidence against the person
in criminal proceedings or in proceedings for the imposition
of a penalty, other than proceedings in respect of the falsity
of the information.
Note: Except as provided for by paragraph (c), this subsection does not
prevent the person being subject to any civil, criminal or
administrative liability for conduct of the person that is revealed by
the disclosure.

(2) Without limiting subsection (1):

(a) the person has qualified privilege in respect of the disclosure;
and
(b) a contract to which the person is a party may not be
terminated on the basis that the disclosure constitutes a
breach of the contract.

14ZZXA Claims for protection

(1) If, in civil or criminal proceedings (the primary proceedings)
instituted against an individual in a court, the individual makes a
claim (relevant to the proceedings) that, because of section 14ZZX,
the individual is not subject to any civil, criminal or administrative
liability for making a particular disclosure:
(a) the individual bears the onus of adducing or pointing to
evidence that suggests a reasonable possibility that the claim
is made out; and
(b) if the individual discharges that onus—the party instituting
the primary proceedings against the individual bears the onus
of proving that the claim is not made out; and
(c) the court must deal with the claim in separate proceedings;
and
(d) the court must adjourn the primary proceedings until the
claim has been dealt with; and

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(e) none of the following:

(i) any admission made by the individual in the separate
proceedings;
(ii) any information given by the individual in the separate
proceedings;
(iii) any other evidence adduced by the individual in the
separate proceedings;
is admissible in evidence against the individual except in
proceedings in respect of the falsity of the admission,
information or evidence; and
(f) if the individual or another person gives evidence in the
separate proceedings in support of the claim—giving that
evidence does not amount to a waiver of privilege for the
purposes of the primary proceedings or any other
proceedings.
(2) To avoid doubt, a right under section 126K of the Evidence Act
1995 not to be compelled to give evidence is a privilege for the
purposes of paragraph (1)(f) of this section.

14ZZY Victimisation prohibited

Actually causing detriment to another person

(1) A person (the first person) commits an offence if:
(a) the first person engages in conduct; and
(b) the first person’s conduct causes any detriment to another
person (the second person); and
(c) when the first person engages in the conduct, the first person
believes or suspects that the second person or any other
person made, may have made, proposes to make or could
make a disclosure that qualifies for protection under this Part;
and
(d) the belief or suspicion referred to in paragraph (c) is the
reason, or part of the reason, for the conduct.
Penalty: Imprisonment for 2 years or 240 penalty units, or both.

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Threatening to cause detriment to another person

(2) A person (the first person) commits an offence if:
(a) the first person makes to another person (the second person)
a threat to cause any detriment to the second person or to a
third person; and
(b) the first person:
(i) intends the second person to fear that the threat will be
carried out; or
(ii) is reckless as to causing the second person to fear that
the threat will be carried out; and
(c) the first person makes the threat because a person:
(i) makes a disclosure that qualifies for protection under
this Part; or
(ii) may make a disclosure that would qualify for protection
under this Part.
Penalty: Imprisonment for 2 years or 240 penalty units, or both.

Threats
(3) For the purposes of subsection (2), a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(4) In a prosecution for an offence against subsection (2), it is not
necessary to prove that the person threatened actually feared that
the threat would be carried out.

14ZZZ Compensation and other remedies—circumstances in which

an order may be made
(1) A court may make an order under section 14ZZZA in relation to a
person (the first person) if:
(a) the first person engages in conduct (detrimental conduct)
that:

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(i) causes any detriment to another person (the second

person); or
(ii) constitutes the making of a threat to cause any such
detriment to another person (the second person); and
(b) when the first person engages in the detrimental conduct, the
first person believes or suspects that the second person or any
other person made, may have made, proposes to make or
could make a disclosure that qualifies for protection under
this Part; and
(c) the belief or suspicion referred to in paragraph (b) is the
reason, or part of the reason, for the detrimental conduct.
(2) A court may make an order under section 14ZZZA in relation to a
person (the first person) if:
(a) the first person is or was an officer (within the meaning of
the Corporations Act 2001) or employee of a body corporate;
and
(b) paragraphs (1)(a), (b) and (c) of this section apply to the body
corporate because of detrimental conduct engaged in by the
body corporate; and
(c) the first person:
(i) aided, abetted, counselled or procured the detrimental
conduct; or
(ii) induced, whether by threats or promises or otherwise,
the detrimental conduct; or
(iii) was in any way, by act or omission, directly or
indirectly, knowingly concerned in, or party to, the
detrimental conduct; or
(iv) conspired with others to effect the detrimental conduct.
(2A) A court may make an order under section 14ZZZA in relation to a
person (the first person) that is a body corporate if:
(a) another person (the third person) engages in conduct
(detrimental conduct) that:
(i) causes any detriment to a person (the second person)
other than the first person or the third person; or

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(ii) constitutes the making of a threat to cause any such

detriment to a person (the second person) other than the
first person or the third person; and
(b) when the third person engages in the detrimental conduct, the
third person believes or suspects that the second person or
any other person made, may have made, proposes to make or
could make a disclosure that qualifies for protection under
this Part; and
(c) the belief or suspicion referred to in paragraph (b) is the
reason, or part of the reason, for the detrimental conduct; and
(d) the first person is under a duty to prevent the third person
engaging in the detrimental conduct, or a duty to take
reasonable steps to ensure that the third person does not
engage in the detrimental conduct; and
(e) the first person fails in part or whole to fulfil that duty.

Burden of proof
(2B) In proceedings where a person seeks an order under
section 14ZZZA in relation to another person:
(a) the person seeking the order bears the onus of adducing or
pointing to evidence that suggests a reasonable possibility of
the matters in:
(i) if subsection (1) of this section applies—
paragraph (1)(a); or
(ii) if subsection (2) of this section applies—
paragraph (1)(a), as mentioned in paragraph (2)(b); or
(iii) if subsection (2A) of this section applies—
paragraphs (2A)(a) and (d); and
(b) if that onus is discharged—the other person bears the onus of
proving that the claim is not made out.

Threats
(3) For the purposes of this section, a threat may be:
(a) express or implied; or
(b) conditional or unconditional.

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(4) In proceedings for the purposes of section 14ZZZA, it is not

necessary to prove that the person threatened actually feared that
the threat would be carried out.

14ZZZAA Detriment
In sections 14ZZY and 14ZZZ, detriment includes (without
limitation) any of the following:
(a) dismissal of an employee;
(b) injury of an employee in his or her employment;
(c) alteration of an employee’s position or duties to his or her
disadvantage;
(d) discrimination between an employee and other employees of
the same employer;
(e) harassment or intimidation of a person;
(f) harm or injury to a person, including psychological harm;
(g) damage to a person’s property;
(h) damage to a person’s reputation;
(i) damage to a person’s business or financial position;
(j) any other damage to a person.

14ZZZA Compensation and other remedies—orders that may be

made
(1) For the purposes of subsections 14ZZZ(1), (2) and (2A), a court
may make any of the following orders:
(a) an order requiring the first person to compensate the second
person, or any other person, for loss, damage or injury
suffered as a result of the detrimental conduct;
(b) if the court is satisfied that the first person engaged in the
detrimental conduct in connection with the first person’s
position as an employee:
(i) an order requiring the first person to compensate the
second person, or any other person, for a part of loss,
damage or injury as a result of the detrimental conduct,
and an order requiring the first person’s employer to

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compensate the second person, or any other person, for

a part of loss, damage or injury as a result of the
detrimental conduct; or
(ii) an order requiring the first person and the first person’s
employer jointly to compensate the second person, or
any other person, for loss, damage or injury suffered as
a result of the detrimental conduct; or
(iii) an order requiring the first person’s employer to
compensate the second person, or any other person, for
loss, damage or injury as a result of the detrimental
conduct;
(c) an order granting an injunction, on such terms as the court
thinks appropriate, to prevent, stop or remedy the effects of
the detrimental conduct;
(d) an order requiring the first person to apologise to the second
person, or any other person, for engaging in the detrimental
conduct;
(e) if the second person is or was employed in a particular
position and the detrimental conduct wholly or partly
consists, or consisted, of the termination, or purported
termination, of the second person’s employment—an order
that the second person be reinstated in that position or a
position at a comparable level;
(f) if the court thinks it is appropriate—an order requiring the
first person to pay exemplary damages to the second person,
or any other person;
(g) any other order the court thinks appropriate.
(2) If the detrimental conduct wholly or partly consists, or consisted,
of terminating or purporting to terminate a person’s employment
(including detrimental conduct that forces or forced the person to
resign), the court must, in making an order mentioned in
paragraph (1)(a) or (b), consider the period, if any, the person is
likely to be without employment as a result of the detrimental
conduct. This subsection does not limit any other matter the court
may consider.

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(3) In deciding whether to make an order under paragraph (1)(b) in

relation to the first person’s employer, the court may have regard to
the following:
(a) whether the employer took reasonable precautions, and
exercised due diligence, to avoid the detrimental conduct;
(b) if the employer has a policy dealing with any or all of the
matters referred to in subsection 1317AI(5) of the
Corporations Act 2001 (whether or not section 1317AI of
that Act requires the employer to have such a policy)—the
extent to which the employer gave effect to that policy;
(c) any duty that the employer was under to prevent the
detrimental conduct, or to take reasonable steps to ensure that
the detrimental conduct was not engaged in.
(4) If the court makes an order under subparagraph (1)(b)(ii), the first
person and the first person’s employer are jointly and severally
liable to pay the compensation concerned.

14ZZZB Identifying information not to be disclosed etc. to courts or

tribunals
If a person (the discloser) makes a disclosure of information that
qualifies for protection under this Part, the discloser or any other
person is not to be required:
(a) to disclose to a court or tribunal:
(i) the identity of the discloser; or
(ii) information that is likely to lead to the identification of
the discloser; or
(b) to produce to a court or tribunal a document containing:
(i) the identity of the discloser; or
(ii) information that is likely to lead to the identification of
the discloser;
except where:
(c) it is necessary to do so for the purposes of giving effect to
this Part; or

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(d) the court or tribunal thinks it necessary in the interests of

justice to do so.
Note: A discloser may also be able to apply to the court or tribunal, in
accordance with the rules of the court or tribunal, for an order
protecting the discloser’s identity.

14ZZZC Costs only if proceedings instituted vexatiously etc.

(1) This section applies to a proceeding (including an appeal) in a
court in relation to a matter arising under section 14ZZZA in which
a person (the claimant) is seeking an order under
subsection 14ZZZA(1).
(2) The claimant must not be ordered by the court to pay costs incurred
by another party to the proceedings, except in accordance with
subsection (3) of this section.
(3) The claimant may be ordered to pay the costs only if:
(a) the court is satisfied that the claimant instituted the
proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the claimant’s unreasonable act or
omission caused the other party to incur the costs.

14ZZZD Interaction between civil proceedings and criminal

offences
To avoid doubt, a person may bring civil proceedings under
section 14ZZZA in relation to conduct even if a prosecution for a
criminal offence against section 14ZZY in relation to the conduct
has not been brought, or cannot be brought.

14ZZZE Compensation for acquisition of property

(1) If the operation of this Part would result in an acquisition of
property (within the meaning of paragraph 51(xxxi) of the
Constitution) from a person otherwise than on just terms (within
the meaning of that paragraph), the Commonwealth is liable to pay
a reasonable amount of compensation to the person.

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(2) If the Commonwealth and the person do not agree on the amount
of the compensation, the person may institute proceedings in the
Federal Court of Australia or the Supreme Court of a State or
Territory for the recovery from the Commonwealth of such
reasonable amount of compensation as the court determines.
(3) Payments under this section are to be made out of money
appropriated by the Parliament by another Act.
(4) To avoid doubt, section 16 does not apply to a payment under this
section.

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Part V Miscellaneous

Section 15

Part V—Miscellaneous

15 Appearance by Commissioner etc.

(1) In any action, prosecution or other proceeding under, or arising out
of, a taxation law instituted by or on behalf of the Commissioner, a
Second Commissioner or a Deputy Commissioner, to which the
Commissioner, a Second Commissioner or a Deputy
Commissioner is a party or in which the Commissioner, a Second
Commissioner or a Deputy Commissioner intervenes or seeks to
intervene, the Commissioner, Second Commissioner or Deputy
Commissioner, as the case may be, may appear personally or may
be represented by:
(a) a person enrolled as a barrister, solicitor, barrister and
solicitor or legal practitioner of a federal court or of the
Supreme Court of a State or Territory; or
(b) a person authorized by the Commissioner, a Second
Commissioner or a Deputy Commissioner, by instrument in
writing, to appear.
(2) The appearance of a person, and the statement of the person that
the person appears by authority of the Commissioner, a Second
Commissioner or a Deputy Commissioner, is prima facie evidence
of that authority.
(3) This section applies in relation to the Tax Agent Services Act 2009
as if:
(a) references in this section to the Commissioner were
references to the Tax Practitioners Board; and
(b) references in this section to a Second Commissioner or to a
Deputy Commissioner were omitted.

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Section 15A

15A Certification by Commissioner of copies of, and extracts from,

documents
(1) Where a document is obtained pursuant to a taxation law, the
Commissioner may certify a copy of the document to be a true
copy.
(2) Where, pursuant to a taxation law, a copy is made of a document,
the Commissioner may certify the copy to be a true copy.
(3) Where a document is obtained pursuant to a taxation law, the
Commissioner may certify an extract taken from the document to
be a true extract.
(4) Where, pursuant to a taxation law, an extract is taken from a
document, the Commissioner may certify the extract to be a true
extract.
(5) Subject to subsection (6), a document purporting to be a copy or
extract certified under subsection (1), (2), (3) or (4) shall be
received in all courts and tribunals in proceedings arising out of a
taxation law as evidence as if it were the original.
(6) Subsection (5) does not apply in relation to a document if:
(a) in the case of proceedings for an offence—evidence is
adduced that the document is not a true copy or a true extract;
or
(b) in any other case—it is proved that the document is not a true
copy or a true extract.
(7) Where:
(a) pursuant to a taxation law, a copy (in this section referred to
as the primary copy) is made of, or an extract (in this section
referred to as the primary extract) is taken from, a document
(in this section referred to as the original document); and
(b) pursuant to subsection (2) or (4), the Commissioner has
certified the primary copy to be a true copy of, or the primary
extract to be a true extract taken from, the original document;
the Commissioner may:

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(c) certify a copy of the primary copy or primary extract to be a

true copy; or
(d) certify an extract taken from the primary copy or primary
extract to be a true extract.
(8) Subject to subsection (9), a document purporting to be:
(a) a copy, certified under subsection (7), of a primary copy of,
or a primary extract taken from, an original document; or
(b) an extract, certified under subsection (7), taken from a
primary copy of, or a primary extract taken from, an original
document;
shall be received in all courts and tribunals in proceedings arising
out of a taxation law as evidence as if it were the original
document.
(9) Subsection (8) does not apply in relation to a document if:
(a) in the case of proceedings for an offence, evidence is
adduced that:
(i) the document is not a true copy of, or a true extract
taken from, the primary copy or primary extract; or
(ii) the primary copy is not a true copy of, or the primary
extract is not a true extract taken from, the original
document; or
(b) in any other case, it is proved that:
(i) the document is not a true copy of, or a true extract
taken from, the primary copy or primary extract; or
(ii) the primary copy is not a true copy of, or the primary
extract is not a true extract taken from, the original
document.
(12) This section applies in relation to the Tax Agent Services Act 2009
as if references in this section to the Commissioner were references
to the Chair of the Tax Practitioners Board.

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Section 15B

15B Recoverable advances

(1) The Commissioner may make an advance to a person (the
recipient) on account of an amount to which the recipient may
become entitled under a taxation law.
(2) The Commissioner must not make an advance under subsection (1)
unless:
(a) if the advance is made in conjunction with other advances
under that subsection—the Commissioner is satisfied that the
total of the costs that would be likely to be incurred by:
(i) the Commonwealth; and
(ii) the recipients; and
(iii) persons other than the Commonwealth or the recipients;
if the advance and the other advances were not made is likely
to exceed the total of the advance and the other advances; or
(b) otherwise—the Commissioner is satisfied that the total of the
costs that would be likely to be incurred by:
(i) the Commonwealth; and
(ii) the recipient; and
(iii) persons other than the Commonwealth or the recipient;
if the advance were not made is likely to exceed the amount
of the advance.
(3) An advance under subsection (1) may:
(a) be recovered under subsection (4); or
(b) be the subject of a determination under subsection (5).
(4) If an advance is made under subsection (1) to a person (the
recipient), the advance:
(a) is a debt due to the Commonwealth by the recipient; and
(b) is payable to the Commissioner; and
(c) may be recovered in a court of competent jurisdiction by the
Commissioner, or by a Deputy Commissioner, suing in his or
her official name;
whether or not the recipient has become entitled to an amount
under a taxation law.

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Section 15C

Advance may discharge Commonwealth liability

(5) If:
(a) an advance is made to a person (the recipient) under
subsection (1); and
(b) the advance has not been fully recovered under
subsection (4); and
(c) an amount is payable to the recipient by the Commonwealth
under a taxation law (the Commonwealth liability);
the Commissioner may, by written notice given to the recipient,
determine that the making of the advance is taken to have
discharged so much of the Commonwealth liability as equals the
whole, or a specified part, of the amount of the advance.
(6) A part of an advance must not be specified in a determination
under subsection (5) if it has already been specified in a previous
determination under subsection (5).
(7) If the whole, or a part, of an advance is the subject of a
determination under subsection (5), the whole, or the part, as the
case may be, of the advance is not recoverable under
subsection (4).
(8) Subsection (5) does not limit Part IIB.
(9) For the purposes of any rules made for the purposes of
paragraph 103(c) of the Public Governance, Performance and
Accountability Act 2013, a determination under subsection (5) of
this section is taken to be a method of debt recovery.

15C Recoverable payments

(1) If, apart from this subsection, the Commissioner does not have
power under a taxation law to pay an amount (the relevant
amount) to a person (the recipient) purportedly as an amount to
which the recipient is entitled to under a taxation law, then the
Commissioner may pay the relevant amount to the recipient.

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Section 15C

Recovery
(2) If a payment is made under subsection (1) to the recipient, the
relevant amount:
(a) is a debt due to the Commonwealth by the recipient; and
(b) is payable to the Commissioner; and
(c) may be recovered in a court of competent jurisdiction by the
Commissioner, or by a Deputy Commissioner, suing in his or
her official name.
(3) If:
(a) a payment is made under subsection (1) to the recipient; and
(b) an amount is payable to the recipient by the Commonwealth
under a taxation law (the Commonwealth liability);
then:
(c) the relevant amount; or
(d) such part of the relevant amount as the Commissioner
determines;
may, if the Commissioner so directs, be recovered by deduction
from the Commonwealth liability.
(4) For the purposes of a designated recovery provision, in
determining whether an amount is payable, disregard
subsection (1) of this section.
(5) If the relevant amount is recovered under a designated recovery
provision, the relevant amount cannot be recovered under
subsection (2) or (3) of this section.
(6) If the relevant amount is recovered under subsection (2) or (3) of
this section, the relevant amount cannot be recovered under a
designated recovery provision.
(7) Except as provided by subsection (6), subsection (3) does not limit
Part IIB.

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Section 15D

Designated recovery provisions

(8) For the purposes of this section, each of the following provisions is
a designated recovery provision:
(a) section 8AAZN of this Act;
(b) section 70 of the Superannuation Guarantee (Administration)
Act 1992;
(d) section 24 of the Superannuation (Government
Co-contribution for Low Income Earners) Act 2003;
(e) a similar provision of a taxation law.
(9) For the purposes of a designated recovery provision, in
determining:
(a) whether a person is entitled to an amount; or
(b) whether an amount is payable;
disregard subsection (1).

15D Reports about recoverable advances and recoverable payments

(1) During the applicable publication period for a reporting period, the
Commissioner must publish, in such manner as the Commissioner
thinks fit, a report that sets out:
(a) both:
(i) the number of advances made under subsection 15B(1)
during the reporting period; and
(ii) the total amount of those advances; and
(b) both:
(i) the number of payments made under subsection 15C(1)
during the reporting period; and
(ii) the total amount of those payments.
(2) However, a report is not required if:
(a) the number mentioned in subparagraph (1)(a)(i) is zero; and
(b) the number mentioned in subparagraph (1)(b)(i) is zero.

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Section 15D

Deferred reporting
(3) Paragraph (1)(b) of this section does not require a report to deal
with a payment unless, before the preparation of the report, an
Australian Taxation Office official was aware the payment was
made under subsection 15C(1).
(4) For the purposes of this section, if:
(a) a payment was made under subsection 15C(1) in a reporting
period; and
(b) because of subsection (3) of this section, paragraph (1)(b) of
this section did not require a report to deal with the payment;
and
(c) during a later reporting period, an Australian Taxation Office
official becomes aware that the payment was made under
subsection 15C(1);
the payment is subject to a deferred reporting obligation in
relation to the later reporting period.
(5) If one or more payments made under subsection 15C(1) during a
reporting period are subject to a deferred reporting obligation in
relation to a later reporting period, the Commissioner must, during
the applicable publication period for the later reporting period:
(a) prepare a report that sets out:
(i) the number of those payments; and
(ii) the total amount of those payments; and
(iii) the reporting period during which the payments were
made; and
(b) if a report is required under subsection (1) in relation to the
later reporting period—include the paragraph (a) report in the
subsection (1) report; and
(c) if paragraph (b) does not apply—publish, in such manner as
the Commissioner thinks fit, the paragraph (a) report.

Reporting period
(6) For the purposes of this section, a reporting period is:

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Section 16

(a) a financial year; or

(b) if a shorter recurring period is specified in a legislative
instrument made by the Minister—that period.

Applicable publication period

(7) For the purposes of this section, the applicable publication period
for a reporting period is the period of:
(a) 4 months; or
(b) if a lesser number of months is specified, in relation to the
reporting period, in a legislative instrument made by the
Minister—that number of months;
beginning immediately after the end of the reporting period.

Australian Taxation Office official

(8) For the purposes of this section, Australian Taxation Office
official means an official (within the meaning of the Public
Governance, Performance and Accountability Act 2013) of the
Australian Taxation Office.

16 Payments out of Consolidated Revenue Fund

(1) Where the Commissioner is required or permitted to pay an amount
to a person by or under a provision of a taxation law other than:
(a) a general administration provision; or
(b) a provision prescribed for the purposes of this paragraph;
the amount is payable out of the Consolidated Revenue Fund,
which is appropriated accordingly.
(2) Where:
(a) an amount is required or permitted to be paid to a person:
(i) by or under a provision of a taxation law other than:
(A) a general administration provision; or
(B) a provision prescribed for the purposes of this
sub-subparagraph; or

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Section 16A

(ii) by way of the repayment, whether in whole or in part, to

the person of an amount paid to the Commonwealth;
(b) except as mentioned in paragraph (c), there is no provision of
a taxation law by or under which the Commissioner is
required or permitted to pay the amount; and
(c) the Commissioner is required or permitted to pay the amount
by or under a general administration provision;
the amount shall be taken, for the purposes of subsection (1), to be
an amount that the Commissioner is required or permitted to pay to
the person by or under a provision of a taxation law of the kind
referred to in that subsection.
(3) In this section, general administration provision means a
provision of a taxation law that provides that the Commissioner has
the general administration of the taxation law.

16A Regulations may provide for methods of payment of tax

liabilities etc.
(1) This section applies to a liability to or of the Commonwealth
arising under, or by virtue of, any of the following laws:
(a) this Act;
(b) any other Act of which the Commissioner has the general
administration;
(c) regulations under an Act covered by paragraph (a) or (b).
(2) The regulations may make provision for and in relation to the
methods by which the amount of the liability may be paid.
(3) Without limiting subsection (2), the regulations may make
provision for and in relation to the making of payments using:
(a) collection agents; or
(b) electronic funds transfer systems; or
(c) credit cards; or
(d) debit cards.

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Section 16B

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

If the amount of a tax-related liability that arises by way of penalty
or because it is assessed by the Commissioner (other than an RBA
deficit or a liability to pay the general interest charge) is not a
multiple of 5 cents, the amount is decreased to the nearest multiple
of 5 cents.

17 Powers of taxation officers in relation to references to currency

etc.
(1) In this section:
decimal currency means the currency provided for by the
Currency Act 1965.
law of the Commonwealth has the same meaning as in section 10
of the Currency Act 1965.
officer includes the Commissioner and a Second Commissioner.
taxation law means any law of the Commonwealth of which the
Commissioner has the general administration.
the previous currency means the currency provided for by the
Coinage Act 1909.
(2) An officer may, in the exercise of, or for the purpose of exercising,
any power under a taxation law or in the performance of, or for the
purpose of performing, any function under a taxation law:
(a) treat:
(i) a reference in a law of the Commonwealth;
(ii) a reference in a bill of exchange, promissory note,
security for money, contract or agreement (whether the
contract or agreement is in writing or not), deed or other
instrument; or
(iii) a reference in any other manner;
to an amount of money in the previous currency as a
reference to a corresponding amount of money in decimal

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Section 17A

currency and treat such a reference to an amount of money in

decimal currency as a reference to a corresponding amount of
money in the previous currency;
(b) treat an amount of money in the previous currency as a
corresponding amount of money in decimal currency and
treat an amount of money in decimal currency as a
corresponding amount of money in the previous currency;
and
(c) express an amount of money in either decimal currency or
the previous currency.
(3) For the purposes of paragraphs (2)(a), (b) and (c):
(a) the amount of money in decimal currency that corresponds
with an amount of money in the previous currency; and
(b) the amount of money in the previous currency that
corresponds with an amount of money in decimal currency;
shall be calculated on the basis of the equivalents specified in
subsection 8(4) of the Currency Act 1965.

17A Powers of Federal Court and Federal Circuit and Family Court
of Australia (Division 2) in respect of taxation matters
(1) The Federal Court of Australia shall not, in relation to a review by
the Court of a decision of the Tribunal in connection with
proceedings under a taxation law, exercise a power conferred on it
by section 15, or paragraph 16(1)(d), (2)(b) or (3)(c) or
subsection 16(4), of the Administrative Decisions (Judicial Review)
Act 1977 so as to prevent or restrain the recovery, under that law,
of tax or duty, further tax or further duty or additional tax or
additional duty.
(2) The Federal Circuit and Family Court of Australia (Division 2)
must not, in relation to a review by the Court of a decision of the
Tribunal in connection with proceedings under a taxation law,
exercise a power conferred on it by section 15A, or
paragraph 16(1)(d), (2)(b) or (3)(c) or subsection 16(4), of the
Administrative Decisions (Judicial Review) Act 1977 so as to
prevent or restrain the recovery, under that law, of:

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Section 18

(a) tax or duty; or

(b) further tax or further duty; or
(c) additional tax or additional duty.

18 Regulations
The Governor-General may make regulations, not inconsistent with
this Act, prescribing all matters which by this Act are required or
permitted to be prescribed, or which are necessary or convenient to
be prescribed for giving effect to this Act, and, in particular,
prescribing penalties not exceeding a fine of 5 penalty units for
offences against the regulations.

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 Collection and recovery of income tax and other liabilities Schedule 1
Collection, recovery and administration of income tax Chapter 2
Introduction to the Pay as you go (PAYG) system Part 2-1

Section 6-1

Schedule 1—Collection and recovery of

income tax and other liabilities
Note: See section 3AA.

Chapter 2—Collection, recovery and

administration of income tax
Part 2-1—Introduction to the Pay as you go (PAYG)
system
Division 6—Guide to Parts 2-5 and 2-10

6-1 What Parts 2-5 and 2-10 are about

To help taxpayers meet their annual income tax liability, they are
required to pay amounts of their income at regular intervals as it is
earned during the year. The system for collecting these amounts is
called “Pay as you go”.

Amounts collected under this system also go towards meeting

liability for Medicare levy and liability to repay debts under certain
income-contingent loan schemes.

Table of sections
6-5 The Pay as you go (PAYG) system
6-10 How the amounts collected are dealt with

6-5 The Pay as you go (PAYG) system

(1) Parts 2-5 and 2-10 establish the PAYG system, which has 2
components:
• PAYG withholding (Part 2-5)
• PAYG instalments (Part 2-10).
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-1 Introduction to the Pay as you go (PAYG) system

Section 6-10

PAYG withholding
(2) Under PAYG withholding, amounts are collected in respect of
particular kinds of payments or transactions. Usually, someone
who makes a payment to you is required to withhold an amount
from the payment, and then to pay the amount to the
Commissioner.
For a list of the payments and other transactions to which
PAYG withholding applies, see Division 10

PAYG instalments
(3) You pay PAYG instalments directly to the Commissioner. These
are usually based on your GDP-adjusted notional tax or your
ordinary income for a past period, but excluding:
• income subject to PAYG withholding (with certain
exceptions)
• exempt income, or income that is otherwise not assessable.
An instalment is usually paid after a quarter, but some taxpayers
are eligible to pay an annual instalment after the end of the income
year.

6-10 How the amounts collected are dealt with

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

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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 Collection and recovery of income tax and other liabilities Schedule 1
Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 10-1

Part 2-5—Pay as you go (PAYG) withholding

Division 10—Guide to Part 2-5

10-1 What this Part is about

Under PAYG withholding, amounts are collected in respect of

particular kinds of payments or transactions. Usually, someone
who makes a payment to you is required to withhold an amount
from the payment, and then to pay the amount to the
Commissioner. If the payment is personal services income that is
included in the assessable income of someone else under
Division 86 of the Income Tax Assessment Act 1997, the payer
must pay such an amount to the Commissioner at a later date.

If a non-cash benefit is provided instead of a payment, the provider

must first pay to the Commissioner the amount that would have
been withheld from the payment.

This Part also contains provisions about the obligations and rights
of payers and recipients.

10-5 Summary of withholding payments

(1) The payments and other transactions covered by PAYG
withholding are called withholding payments. They are
summarised in the table.
Note: The obligation to pay an amount to the Commissioner is imposed on
the entity making the withholding payment (except for items 17, 19,
22 and 27, and 26 (to the extent that it covers subsection 12-390(4))).

Summary of withholding payments

Item Withholding payment Section
1 A payment of salary etc. to an employee 12-35

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 10-5

Summary of withholding payments

Item Withholding payment Section
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 12-45
of the Defence Force)
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 12-60
specified by regulations
7 A *superannuation income stream or an annuity 12-80
8 A *superannuation lump sum or a payment for termination 12-85
of employment
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 12-140
does not quote its tax file number, or in some cases, its
ABN
14 Investor becoming presently entitled to income of a unit 12-145
trust
14A A trustee of a closely held trust distributing an amount 12-175
from the trust income to a beneficiary, where the
beneficiary does not quote its tax file number
14B A beneficiary of a closely held trust becoming presently 12-180
entitled to income of the trust, where the beneficiary does
not quote its tax file number
15 A payment for a supply where the recipient of the payment 12-190
does not quote its ABN
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
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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 Collection and recovery of income tax and other liabilities Schedule 1
Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 10-5

Summary of withholding payments

Item Withholding payment Section
19 An interest payment received for a foreign resident 12-250
20 An interest payment derived by a lender in carrying on 12-255
business through overseas permanent establishment
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 12-315
foreign resident
22C A payment (of a kind set out in the regulations) received 12-317
for a foreign resident
22D A payment of salary, wages etc. to an employee under a 12-319A
labour mobility program
23 A mining payment 12-320
24 A natural resource payment 12-325
25 A payment by a withholding MIT 12-385
26 A payment by a *custodian or other entity 12-390
27 A payment under the *first home super saver scheme 12-460

(2) These can also be treated as withholding payments:

(aa) a payment that arises because of the operation of
section 12A-205 (see Division 12A);
(a) alienated personal services payments (see Division 13);
(b) non-cash benefits, and capital proceeds involving foreign
residents and certain kinds of taxable Australian property
(see Division 14).
Note: The obligation to pay an amount to the Commissioner is imposed on
the entity receiving the alienated personal services payment or
providing the non-cash benefit or capital proceeds.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 11-1

Division 11—Preliminary matters

Table of sections
11-1 Object of this Part
11-5 Constructive payment

11-1 Object of this Part

The object of this Part is to ensure the efficient collection of:
(a) income tax; and
(b) *Medicare levy; and
(ca) amounts of liabilities to the Commonwealth under Chapter 4
of the Higher Education Support Act 2003; and
(caa) amounts of liabilities to the Commonwealth under Part 3A of
the VET Student Loans Act 2016; and
(cb) amounts of liabilities to the Commonwealth under
Chapter 2AA of the Social Security Act 1991; and
(cc) amounts of liabilities to the Commonwealth under Part 2 of
the Student Assistance Act 1973; and
(cd) amounts of liabilities to the Commonwealth under Chapter 3
of the Australian Apprenticeship Support Loans Act 2014;
and
(da) amounts of liabilities to the Commonwealth under Part 2B.3
of the Social Security Act 1991; and
(db) amounts of liabilities to the Commonwealth under Division 6
of Part 4A of the Student Assistance Act 1973; and
(d) *withholding tax; and
(e) *mining withholding tax; and
(f) *TFN withholding tax; and
(h) *petroleum resource rent tax.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 11-5

11-5 Constructive payment

(1) In working out whether an entity has paid an amount to another
entity, and when the payment is made, the amount is taken to have
been paid to the other entity when the first entity applies or deals
with the amount in any way on the other’s behalf or as the other
directs.
(2) An amount is taken to be payable by an entity to another entity if
the first entity is required to apply or deal with it in any way on the
other’s behalf or as the other directs.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Division 12—Payments from which amounts must be withheld

Table of Subdivisions
12-A General rules
12-B Payments for work and services
12-C Payments for retirement or because of termination of
employment
12-D Benefit and compensation payments
12-E Payments where TFN or ABN not quoted
12-F Dividend, interest and royalty payments
12-FA Departing Australia superannuation payments
12-FAA Excess untaxed roll-over amount
12-FB Payments to foreign residents etc.
12-FC Labour mobility programs
12-G Payments in respect of mining on Aboriginal land, and natural
resources
12-H Distributions of withholding MIT income
12-J FHSS released amounts

Subdivision 12-A—General rules

Table of sections
12-1 General exceptions
12-5 What to do if more than one provision requires a withholding
12-7 Division does not apply to alienated personal services payments
12-10 Division does not apply to non-cash benefits
12-20 Application of Division and regulations to non-share dividends

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 12-1

12-1 General exceptions

Exempt income of recipient

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

Non-assessable non-exempt income of recipient

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

Living-away-from-home allowance benefit

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

Expense payment benefit

(3) In working out how much to withhold under section 12-35, 12-40,
12-45, 12-47, 12-115, 12-120, 12-315 or 12-317 from a payment,
disregard so much of the payment as:
(a) is an expense payment benefit as defined by section 136 of
the Fringe Benefits Tax Assessment Act 1986; and
(b) is not an exempt benefit under section 22 of that Act (about
reimbursement of car expenses on the basis of distance
travelled).

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 12-5

Capped defined benefit income stream

(4) This section does not apply in relation to a payment if the whole of
the payment is a *superannuation income stream benefit that is paid
from a *capped defined benefit income stream.
Note: For withholding amounts from a superannuation income stream, see
section 12-80.

12-5 What to do if more than one provision requires a withholding

(1) If more than one provision in this Division covers a payment, only
one amount is to be withheld from the payment.
(2) The provision to apply is the one that is most specific to the
circumstances of the payment. However, this general rule is subject
to the specific rules in the table, and the specific rule in
subsection (3).

Specific rules for determining priority among withholding provisions

Item Apply: Which is about: In priority to:
1AA section 12-385 distributions to each other withholding provision
or 12-390 foreign residents
from *withholding
MITs
1 section 12-35, a payment for work section 12-60 (payment under a
12-40, 12-45, or services labour hire arrangement or
12-47 or 12-50 specified by regulations); or
section 12-190 (payment for a
supply where recipient does not
quote its ABN)
1A section 12-35 a payment for work section 12-47 (a payment to a
or 12-45 or services *religious practitioner)

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-5

Specific rules for determining priority among withholding provisions

Item Apply: Which is about: In priority to:
2 section 12-80, a *superannuation section 12-60 (payment under a
12-85 or 12-90 benefit, an annuity, a labour hire arrangement or
payment for specified by regulations); or
termination of section 12-190 (payment for a
employment or an supply where recipient does not
unused leave quote its ABN)
payment
3 section 12-110, a payment of benefit section 12-60 (payment under a
12-115 or or compensation labour hire arrangement or
12-120 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 section 12-190 (payment for a
labour hire supply where recipient does not
arrangement or quote its ABN)
specified by
regulations
5 section 12-140 a payment arising section 12-175 or 12-180
or 12-145 from investment (Payment of income of closely
where the recipient held trust where TFN not quoted)
does not quote tax or section 12-210, 12-215,
file number 12-245, 12-250 or 12-255
(payment of a dividend or
interest)
6 section 12-280 a payment of royalty section 12-325 (natural resource
or 12-285 payment)

(3) Apply a provision in this Division (apart from a provision in

Subdivision 12-FB) that covers a payment in priority to a provision
in Subdivision 12-FB that also covers the payment.
Note: Some provisions of this Division clearly do not cover a payment
covered by some other provisions. For example:

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-7

• Section 12-55 (about voluntary agreements) covers a payment

only if no other provision requires the payer to withhold an
amount from the payment.

12-7 Division does not apply to alienated personal services payments

(1) This Division (other than the provisions mentioned in
subsection (2)) does not apply to a payment in so far as the
payment:
(a) is an *alienated personal services payment; or
(b) was received, by the entity making the payment, as an
*alienated personal services payment.

Note: An entity that receives an alienated personal services payment may be

obliged to pay an amount to the Commissioner: see Division 13.

(2) The provisions are:

(a) Subdivision 12-FB; and
(b) any other provisions in this Division to the extent that they
apply in relation to that Subdivision.

12-10 Division does not apply to non-cash benefits

This Division does not apply to a payment in so far as it consists of
providing a *non-cash benefit.
Note: If a non-cash benefit is provided in circumstances where a payment
would give rise to a withholding obligation, the provider must pay an
amount to the Commissioner: see Division 14.

12-20 Application of Division and regulations to non-share

dividends
This Division and the regulations made for the purposes of this
Division:
(a) apply to a non-share equity interest in the same way as it
applies to a share; and
(b) apply to an equity holder in the same way as it applies to a
shareholder; and

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-35

(c) apply to a non-share dividend in the same way as it applies to

a dividend.

Subdivision 12-B—Payments for work and services

Table of sections
12-35 Payment to employee
12-40 Payment to company director
12-45 Payment to office holder
12-47 Payment to religious practitioners
12-50 Return to work payment
12-55 Voluntary agreement to withhold
12-60 Payment under labour hire arrangement, or specified by regulations

12-35 Payment to employee

An entity must withhold an amount from salary, wages,
commission, bonuses or allowances it pays to an individual as an
employee (whether of that or another entity).
For exceptions, see section 12-1.

12-40 Payment to company director

A company must withhold an amount from a payment of
remuneration it makes to an individual:
(a) if the company is incorporated—as a director of the
company, or as a person who performs the duties of a
director of the company; or
(b) if the company is not incorporated—as a member of the
committee of management of the company, or as a person
who performs the duties of such a member.
For exceptions, see section 12-1.

12-45 Payment to office holder

(1) An entity must withhold an amount from salary, wages,
commission, bonuses or allowances it pays to an individual as:
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-47

(a) a member of an *Australian legislature; or

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

(c) a member of the Defence Force, or of a police force of the

Commonwealth, a State or a Territory; or
(d) a person who is otherwise in the service of the
Commonwealth, a State or a Territory; or
(e) a member of a *local governing body where there is in effect,
in accordance with section 446-5, a unanimous resolution by
the body that the remuneration of members of the body be
subject to withholding under this Part.
For exceptions, see section 12-1.

(2) This section does not require an amount to be withheld from a

payment to an individual as a member of a *local governing body
unless it is one to which paragraph (1)(e) applies.

12-47 Payment to religious practitioners

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

(a) the activity, or series of activities, is done by the religious

practitioner in pursuit of his or her vocation as a religious
practitioner; and
(b) the activity, or series of activities, is done by the religious
practitioner as a member of a religious institution; and
(c) the payment is made by the entity in the course or
furtherance of an *enterprise that the entity *carries on.

12-50 Return to work payment

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

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-55

For exceptions, see section 12-1.

12-55 Voluntary agreement to withhold

(1) An entity must withhold an amount from a payment it makes to an
individual if:
(a) the payment is made under an *arrangement the performance
of which, in whole or in part, involves the performance of
work or services (whether or not by the individual); and
(b) no other provision of this Division requires the entity to
withhold an amount from the payment; and
(c) the entity and the individual are parties to an agreement (the
voluntary agreement) that is in the *approved form and states
that this section covers payments under the arrangement
mentioned in paragraph (a), or under a series of such
arrangements that includes that arrangement; and
(d) the individual has an *ABN that is in force and is *quoted in
that agreement.
For exceptions, see section 12-1.

(2) Each party must keep a copy of the voluntary agreement from
when it is made until 5 years after the making of the last payment
covered by the agreement.
Penalty: 30 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a
penalty unit.

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

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

(3) A party to the voluntary agreement may terminate it at any time by

notifying the other party in writing.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-60

12-60 Payment under labour hire arrangement, or specified by

regulations
(1) An entity that *carries on an *enterprise must withhold an amount
from a payment that it makes to an individual in the course or
furtherance of the enterprise if:
(a) the enterprise is a *business of arranging for persons to
perform work or services directly for clients of the entity, or
the enterprise includes a business of that kind that is not
merely incidental to the main activities of the enterprise; and
(b) the payment is made under an *arrangement the performance
of which, in whole or in part, involves the performance of
work or services by the individual directly for a client of the
entity, or directly for a client of another entity.
For exceptions, see section 12-1.
Example 1: Staffprovider Ltd keeps a database of skilled persons who are willing
for their services to be provided to third parties. Staffprovider arranges
with Corporate Pty Ltd to provide to it the services of a computer
programmer in return for payment. Staffprovider arranges with Jane
for her to do computer programming for Corporate. Staffprovider
must withhold amounts under this section from payments it makes to
Jane under the arrangement with her.
Example 2: Ian is a solicitor who regularly briefs barristers to represent his clients.
Briefing barristers is merely incidental to Ian’s main activities as a
solicitor, so he does not have to withhold amounts under this section
from payments he makes to barristers.

(2) An entity that carries on an *enterprise must withhold an amount

from a payment that it makes to an individual in the course or
furtherance of the enterprise if the payment is, in whole or in part,
for work or services and is of a kind prescribed by the regulations.
For exceptions, see section 12-1.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-80

Subdivision 12-C—Payments for retirement or because of

termination of employment

12-80 Superannuation income streams and annuities

An entity must withhold an amount from any of the following
payments it makes to an individual:
(a) a *superannuation income stream;
(b) an *annuity.
For exceptions, see section 12-1.

12-85 Superannuation lump sums and payments for termination of

employment
An entity must withhold an amount from any of the following
payments it makes to an individual:
(a) a *superannuation lump sum;
(b) a payment that is an *employment termination payment or
would be one except that it is received more than 12 months
after termination of employment.
For exceptions, see section 12-1.

12-90 Unused leave payments

An entity must withhold an amount from any of the following
payments it makes to an individual:
(a) an *unused annual leave payment;
(b) an *unused long service leave payment, to the extent that the
payment is included in the individual’s assessable income.
For exceptions, see section 12-1.

Subdivision 12-D—Benefit and compensation payments

Table of sections
12-110 Social Security or other benefit payment

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-110

12-115 Commonwealth education or training payment

12-120 Compensation, sickness or accident payment

12-110 Social Security or other benefit payment

(1) An entity must withhold an amount from a payment it makes to an
individual if the payment is:
(a) specified in an item of the table in section 52-10 of the
Income Tax Assessment Act 1997 (Social Security payments);
or
(b) specified in an item of the table in section 52-65 of that Act
(Veterans’ Affairs payments); or
(ba) specified in an item of the table in section 52-114 of that Act
(Military Rehabilitation and Compensation Act payments); or
(c) specified in section 52-105, 53-10, 55-5 or 55-10 of that Act;
or
Note: Payments specified in those provisions of the Income Tax
Assessment Act 1997 are made under various Commonwealth
laws.
(ca) *parental leave pay; or
(d) made under Part 3.15A of the Social Security Act 1991.
(2) In working out the amount to be withheld, disregard so much of the
payment as is *exempt income of the individual.

12-115 Commonwealth education or training payment

(1) An entity must withhold an amount from a *Commonwealth
education or training payment it makes to an individual.
For exceptions, see subsection (2) and section 12-1.

(2) In working out the amount to be withheld, disregard so much of the

payment as is *exempt income of the individual.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-120

12-120 Compensation, sickness or accident payment

An entity must withhold an amount from a payment of
compensation, or of sickness or accident pay, it makes to an
individual if the payment:
(a) is made because of that or another individual’s incapacity for
work; and
(b) is calculated at a periodical rate; and
(c) is not a payment made under an insurance policy to the
policy owner.
For exceptions, see section 12-1.

Subdivision 12-E—Payments where TFN or ABN not quoted

Table of sections
Payment in respect of investment
12-140 Recipient does not quote tax file number
12-145 Investor becoming presently entitled to income of a unit trust
12-150 Limited application of section 12-140 to payment under financial
arrangement
12-152 Limited application of section 12-140 to payment covered by
section 12A-205
12-155 When investor may quote ABN as alternative
12-160 Investment body unaware that exemption from quoting TFN has stopped
applying
12-165 Exception for fully franked dividend
12-170 Exception for payments below thresholds set by regulations

Payment of income of closely held trust where TFN not quoted

12-175 Trustee distributes income of closely held trust
12-180 Beneficiary becomes presently entitled to income of closely held trust
12-185 Exception for payments below thresholds set by regulations

Payment for a supply

12-190 Recipient does not quote ABN

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Part 2-5 Pay as you go (PAYG) withholding

Section 12-140

Payment in respect of investment

12-140 Recipient does not quote tax file number

(1) An *investment body must withhold an amount from a payment it
makes to another entity in respect of a *Part VA investment if:
(a) all or some of the payment is *ordinary income or *statutory
income of the other entity; and
(b) if the investment is non-transferable—the other entity did not
*quote its *tax file number in connection with the investment
before the time when the payment became payable; and
(c) if the investment is transferable—the other entity did not
quote its tax file number in connection with the investment
before the time when the other entity had to be registered
with the investment body as the *investor to be entitled to the
payment.
Note: If the investment body is an AMIT, under subsection 12A-205(2)
amounts may be treated, for the purposes of this Part, as having been
paid to the other entity by the investment body.

Payment in respect of units in a trust or investment-related betting

chance
(2) If a *Part VA investment consists of:
(a) units in a unit trust (as defined in section 202A of the Income
Tax Assessment Act 1936); or
(b) an investment-related betting chance;
an entity (including the *investment body) must withhold an
amount from a payment it makes to another entity in respect of the
investment if the conditions in subsection (1) of this section are
met.
For exceptions to the rules in this section, see sections 12-150 to 12-170.

(3) If:
(a) because of subsection 12A-205(2), an entity is treated as
having made a payment to another entity; and

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-145

(b) under subsection (2) of this section, the entity has withheld
an amount from that payment, and paid the amount to the
Commissioner;
the entity may recover from the other entity, as a debt, the amount
withheld.
(4) The entity is entitled to set off an amount that the entity can
recover from the other entity under subsection (3) against debts due
by the entity to the other entity.

12-145 Investor becoming presently entitled to income of a unit trust

(1) This section applies if:
(a) a *Part VA investment consists of units in a unit trust (as
defined in section 202A of the Income Tax Assessment Act
1936); and
(b) the *investor becomes presently entitled, for the purposes of
Division 6 of Part III of the Income Tax Assessment Act
1936, to a share of income of the trust at a time (the
entitlement time) before any of that share is paid to the
investor.
(2) The entity (including the *investment body) that would have to pay
that share to the *investor if the share were due and payable at the
entitlement time must withhold from the share, at that time, the
amount (if any) that subsection 12-140(2) would have required it to
withhold if it had paid the share to the investor at that time.
For exceptions to the rules in this section, see sections 12-155 to 12-170.

(3) This Part (except section 12-140 and this section) applies as if that
entity had paid that share to the *investor at the entitlement time.
(4) If that entity withholds an amount from that share as required by
subsection (2), subsection 12-140(2) does not require an amount to
be withheld from a payment of all or part of that share to the
*investor.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-150

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

financial arrangement
(1) This section limits the extent to which section 12-140 applies to a
payment in respect of a *Part VA investment if the investment is a
qualifying security (within the meaning of Division 16E of Part III
of the Income Tax Assessment Act 1936 (about gains accruing on
securities)) and:
(a) is of a kind mentioned in item 1 or 2 of the table in
subsection 202D(1) of that Act; or
(b) is of a kind mentioned in item 3 of that table and is
non-transferable.
Note: Section 202D of the Income Tax Assessment Act 1936 lists the
investments in connection with which tax file numbers are to be
quoted.

(2) Section 12-140 applies to the payment only to the extent that is
covered by one or both of these paragraphs:
(a) so much of the payment as consists of periodic interest
(within the meaning of Division 16E of Part III of the Income
Tax Assessment Act 1936);
(b) if the payment became payable at the end of the term (within
the meaning of that Division) of the investment—so much of
the payment as does not exceed what section 159GQ of that
Act would include in the *investor’s assessable income for
the income year in which that term ended.
Note: This limitation ensures that an amount is not withheld from payment
of an amount in respect of which TFN withholding tax is payable. See
Subdivision 14-B.

(3) The adoption (under section 18 of the Income Tax Assessment Act
1936) of an accounting period ending on a day other than 30 June
is disregarded for the purposes of:
(a) paragraph (2)(b) of this section; and
(b) the application of Division 16E of Part III of that Act for the
purposes of that paragraph.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-152

12-152 Limited application of section 12-140 to payment covered by

section 12A-205
(1) If a payment is treated under section 12A-205 as having been
made, section 12-140 does not apply to the payment to the extent
that it covers a *pre-AMMA actual payment from which
section 12-140 has required an amount to be withheld.
(2) If a payment is a *post-AMMA actual payment, section 12-140
does not apply to the payment to the extent that it covers either or
both of the following:
(a) a *pre-AMMA actual payment from which section 12-140
has required an amount to be withheld;
(b) a payment that is treated under section 12A-205 as having
been made from which section 12-140 has required an
amount to be withheld.

12-155 When investor may quote ABN as alternative

Section 12-140 or 12-145 does not require an amount to be
withheld if:
(a) the other entity made the investment in the course or
furtherance of an *enterprise *carried on by it; and
(b) the other entity has an *ABN, and has *quoted it to the
investment body, by the time referred to in
paragraph 12-140(1)(b) or (c).

12-160 Investment body unaware that exemption from quoting TFN

has stopped applying
Section 12-140 or 12-145 does not require an amount to be
withheld if:
(a) a provision of Division 5 of Part VA of the Income Tax
Assessment Act 1936 has applied to the other entity in
relation to the investment, but no longer applies when the
payment is made; and

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-165

(b) when the payment is made, the *investment body has not
been informed of anything that resulted in the provision no
longer applying.
Note: Division 5 of Part VA of that Act provides, in certain cases, that even
though an entity has not quoted its tax file number it is taken to have
done so.

12-165 Exception for fully franked dividend

Section 12-140 does not require an amount to be withheld if:
(a) the investment consists of *shares in a public company (as
defined in section 202A of the Income Tax Assessment Act
1936); and
(b) the payment is a *distribution that has been franked in
accordance with section 202-5 of the Income Tax Assessment
Act 1997; and
(c) the *franking percentage for the distribution is 100%.

12-170 Exception for payments below thresholds set by regulations

(1) Section 12-140 or 12-145 does not require an amount to be
withheld if the payment is less than the amount worked out under
the regulations.
(2) Regulations made for the purposes of this section may deal
differently with different payments.

Payment of income of closely held trust where TFN not quoted

12-175 Trustee distributes income of closely held trust

Scope
(1) This section applies if:
(a) the trustee of a trust makes a distribution to a beneficiary of
the trust at a time (the distribution time) during an income
year of the trust; and

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-175

(b) some or all of the distribution is from the *ordinary income or

*statutory income of the trust; and

(c) the trust is:

(i) a resident trust estate (within the meaning of
subsection 95(2) of the Income Tax Assessment Act
1936) in relation to the income year; and
(ii) a closely held trust (within the meaning of
section 102UC of that Act); and
(iii) not prescribed by the regulations for the purposes of this
subparagraph; and
(d) the beneficiary is:
(i) an Australian resident; and
(ii) not an *exempt entity; and
(iii) not under a legal disability for the purposes of
section 98 of that Act.

Trustee must withhold

(2) The trustee must withhold an amount from the distribution, if:
(a) the beneficiary did not *quote the beneficiary’s *tax file
number to the trustee before the distribution time; and
(b) the trustee is not liable to pay tax under section 98 of the
Income Tax Assessment Act 1936 in connection with the
distribution; and
(c) the trustee is not required to make a correct TB statement
under Division 6D of Part III of that Act (about trustee
beneficiary non-disclosure tax) in connection with the
distribution; and
(d) family trust distribution tax is not payable under Schedule 2F
to that Act in connection with the distribution.
Note 1: If the trust is a unit trust, the trustee may be required to withhold
under section 12-140 in priority to this section: see section 12-5.
Note 2: The trustee commits an offence if the trustee fails to withhold an
amount as required by this section: see section 16-25.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-180

Application of rest of Part

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

Trust income of earlier income years

(4) Subsections (2) and (3) do not apply to the distribution, to the
extent that:
(a) the beneficiary is presently entitled, for the purposes of
Division 6 of Part III of the Income Tax Assessment Act
1936, to a share of the income of the trust of an earlier
income year; and
(b) the distribution is a distribution of some or all of that share.
Note: The trustee may have been required to withhold from that share under
section 12-180.

12-180 Beneficiary becomes presently entitled to income of closely

held trust

Scope
(1) This section applies if:
(a) at the end of an income year of a trust, a beneficiary of the
trust is presently entitled, for the purposes of Division 6 of
Part III of the Income Tax Assessment Act 1936, to a share of
the income of the trust of that year; and
(b) paragraph 12-175(1)(c) in this Schedule applies to the trustee
of the trust; and
(c) paragraph 12-175(1)(d) applies to the beneficiary.

Trustee must withhold

(2) The trustee must withhold an amount from that share of the *net
income of the trust, if:
(a) the beneficiary did not *quote the beneficiary’s *tax file
number to the trustee before the end of the year; and
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-185

(b) the trustee is not liable to pay tax in respect of that share
under section 98 of the Income Tax Assessment Act 1936; and
(c) the trustee is not required to make a correct TB statement
about that share under Division 6D of Part III of that Act
(about trustee beneficiary non-disclosure tax); and
(d) family trust distribution tax is not payable on that share of the
income of the trust under Schedule 2F to that Act.
Note 1: If the trust is a unit trust, the trustee may be required to withhold
under section 12-145 in priority to this section: see section 12-5.
Note 2: The trustee commits an offence if the trustee fails to withhold an
amount as required by this section: see section 16-25.

Application of rest of Part

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

Entitlements already paid

(4) Subsections (2) and (3) do not apply to that share of the *net
income of the trust to the extent that the trustee distributed any of
that share to the beneficiary during the income year.
Note: The trustee may have been required to withhold from that distribution
under section 12-175.

Trusts that end during the year

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

12-185 Exception for payments below thresholds set by regulations

(1) Section 12-175 or 12-180 does not require an amount to be
withheld if the payment (including the payment mentioned in
subsection 12-180(3)) is less than the amount worked out under the
regulations.
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-190

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

Payment for a supply

12-190 Recipient does not quote ABN

(1) An entity (the payer) must withhold an amount from a payment it
makes to another entity if:
(a) the payment is for a *supply that the other entity has made, or
proposes to make, to the payer in the course or furtherance of
an *enterprise *carried on in Australia by the other entity; and
(b) none of the exceptions in this section applies.

ABN correctly quoted

(2) The payer need not withhold an amount under this section if, when
the payment is made:
(a) the other entity has given the payer an *invoice that relates to
the *supply and *quotes the other entity’s *ABN; or
(b) the payer has some other document relating to the supply on
which the other entity’s ABN is *quoted.
(2A) The payer need not withhold an amount under this section if the
other entity has made the *supply, or proposes to make the supply,
through an agent and, when the payment is made:
(a) the agent has given the payer an *invoice that relates to the
supply and *quotes the agent’s *ABN; or
(b) the payer has some other document relating to the supply on
which the agent’s ABN is *quoted.

Payer has no reason to believe that ABN has been incorrectly

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

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(a) the other entity has given the payer an *invoice that relates to
the *supply and purports to *quote the other entity’s *ABN, or
the payer has some other document that relates to the supply
and purports to *quote the other entity’s ABN; and
(b) the other entity does not have an ABN, or the invoice or
other document does not in fact quote the other entity’s
ABN; and
(c) the payer has no reasonable grounds to believe that the other
entity does not have an ABN, or that the invoice or other
document does not quote the other entity’s ABN.
(3A) The payer need not withhold an amount under this section if the
other entity has made the *supply, or proposes to make the supply,
through an agent and, when the payment is made:
(a) the agent has given the payer an *invoice that relates to the
supply and purports to *quote the agent’s *ABN, or the payer
has some other document that relates to the supply and
purports to *quote the agent’s ABN; and
(b) the agent does not have an ABN, or the invoice or other
document does not in fact quote the agent’s ABN; and
(c) the payer has no reasonable grounds to believe that the agent
does not have an ABN, or that the invoice or other document
does not quote the agent’s ABN.

No need to quote ABN

(4) The payer need not withhold an amount under this section if:
(a) the payment is made otherwise than in the course or
furtherance of an *enterprise *carried on in Australia by the
payer; or
(b) the payment (disregarding so much of it as relates to *GST
payable on the *supply) or, if the payer has also made, or
proposes to make, one or more other payments to the other
entity for the supply, the total of all the payments
(disregarding so much of them as relates to *GST payable on
the supply) does not exceed $50 or such higher amount as is

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-190

specified in regulations in force for the purposes of

subsection 29-80(1) of the *GST Act; or
(c) the supply is made in the course or furtherance of an activity,
or series of activities, done as a member of a local governing
body established by or under a *State law or *Territory law;
or
(d) the supply is wholly *input taxed.
(5) The payer need not withhold an amount under this section if the
payment:
(a) is covered by section 12-140 or 12-145 (about not quoting
*tax file number in respect of an investment in respect of
which the payment is made); or
(b) would be covered by section 12-140 or 12-145 if the other
entity had not quoted as mentioned in subsection 12-140(1)
or section 12-155; or
(c) would be covered by section 12-140 or 12-145 apart from
section 12-160, 12-165 or 12-170 (which are exceptions to
sections 12-140 and 12-145); or
(d) is covered by section 12-175 or 12-180 (Payment of income
of closely held trust where TFN not quoted); or
(e) would be covered by section 12-175 or 12-180 if the other
entity had not quoted as mentioned in paragraph 12-175(2)(a)
or 12-180(2)(a); or
(f) would be covered by section 12-175 or 12-180 apart from
section 12-185 (which is an exception to sections 12-175 and
12-180).
(6) The payer need not withhold an amount under this section if, when
the payment is made:
(a) the other entity is an individual and has given the payer a
written statement to the effect that:
(i) the *supply is made in the course or furtherance of an
activity, or series of activities, done as a private
recreational pursuit or hobby; or

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-190

(ii) the supply is, for the other entity, wholly of a private or
domestic nature; and
(b) the payer has no reasonable grounds to believe that the
statement is false or misleading in a material particular.
(7) In working out, for the purposes of this section, whether an
enterprise is *carried on in Australia, ignore any part of Australia
that is not in the indirect tax zone (within the meaning of the *GST
Act).
Note: The effect of this subsection is to treat an enterprise as carried on in
Australia only where it would be treated as carried on in the indirect
tax zone under the A New Tax System (Australian Business Number)
Act 1999.

Subdivision 12-F—Dividend, interest and royalty payments

Table of sections
Dividends
12-210 Dividend payment to overseas person
12-215 Dividend payment received for foreign resident
12-220 Application to part of a dividend
12-225 Application to distribution by a liquidator or other person

Interest
12-245 Interest payment to overseas person
12-250 Interest payment received for foreign resident
12-255 Interest payment derived by lender in carrying on business through overseas
permanent establishment
12-260 Lender to notify borrower if interest derived through overseas permanent
establishment

Royalties
12-280 Royalty payment to overseas person
12-285 Royalty payment received for foreign resident

General
12-300 Limits on amount withheld under this Subdivision
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-210

Dividends

12-210 Dividend payment to overseas person

A company that is an Australian resident must withhold an amount
from a *dividend it pays if:
(a) according to the register of the company’s members, the
entity, or any of the entities, holding the *shares on which the
dividend is paid has an address outside Australia; or
(b) that entity, or any of those entities, has authorised or directed
the company to pay the dividend to an entity or entities at a
place outside Australia.
For limits on the amount to be withheld, see section 12-300.

12-215 Dividend payment received for foreign resident

(1) An entity that receives a payment of a *dividend of a company that
is an Australian resident must withhold an amount from the
dividend if:
(a) the entity is a person in Australia or an *Australian
government agency; and
(b) a foreign resident is or becomes entitled:
(i) to receive the dividend or part of it from the entity, or to
receive the amount of the dividend or of part of it from
the entity; or
(ii) to have the entity credit to the foreign resident, or
otherwise deal with on the foreign resident’s behalf or
as the foreign resident directs, the dividend or part of it,
or the amount of the dividend or of part of it.
For limits on the amount to be withheld, see section 12-300.

(2) The entity must withhold the amount:

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

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-220

(b) if the foreign resident becomes so entitled after the entity

receives the payment—immediately after the foreign resident
becomes so entitled.

12-220 Application to part of a dividend

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

12-225 Application to distribution by a liquidator or other person

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

Interest

12-245 Interest payment to overseas person

An entity must withhold an amount from interest (within the
meaning of Division 11A of Part III of the Income Tax Assessment
Act 1936) it pays to an entity, or to entities jointly, if:
(a) the recipient or any of the recipients has an address outside
Australia according to any record that is in the payer’s
possession, or is kept or maintained on the payer’s behalf,
about the transaction to which the interest relates; or
(b) the payer is authorised to pay the interest at a place outside
Australia (whether to the recipient or any of the recipients or
to anyone else).
For limits on the amount to be withheld, see section 12-300.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-250

12-250 Interest payment received for foreign resident

(1) An entity that receives a payment of interest (within the meaning
of Division 11A of Part III of the Income Tax Assessment Act
1936) must withhold an amount from the payment if:
(a) the entity is a person in Australia or an *Australian
government agency; and
(b) a foreign resident is or becomes entitled:
(i) to receive the interest or part of it from the entity, or to
receive the amount of the interest or of part of it from
the entity; or
(ii) to have the entity credit to the foreign resident, or
otherwise deal with on the foreign resident’s behalf or
as the foreign resident directs, the interest or part of it,
or the amount of the interest or of part of it.
For limits on the amount to be withheld, see section 12-300.

(2) The entity must withhold the amount:

(a) if the foreign resident is so entitled when the entity receives
the payment—immediately after the entity receives the
payment; or
(b) if the foreign resident becomes so entitled after the entity
receives the payment—immediately after the foreign resident
becomes so entitled.

12-255 Interest payment derived by lender in carrying on business

through overseas permanent establishment
An entity must withhold an amount from interest (within the
meaning of Division 11A of Part III of the Income Tax Assessment
Act 1936) it pays if it has been notified under section 12-260 of this
Act that this section applies to the interest.
Note: For limits on the amount to be withheld, see section 12-300.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-260

12-260 Lender to notify borrower if interest derived through

overseas permanent establishment
(1) If:
(a) interest (within the meaning of Division 11A of Part III of
the Income Tax Assessment Act 1936) is payable to:
(i) an entity that is, or entities at least one of whom is, an
Australian resident; or
(ii) an *Australian government agency; and
(b) the entity liable to pay the interest is authorised to pay it at a
place in Australia (whether to any of those entities or the
agency, or to anyone else); and
(c) the interest is or will be *derived by any of those entities or
the agency in carrying on business in a country outside
Australia at or through a *permanent establishment it has in
that country;
those entities, or the agency, must notify the entity liable to pay the
interest that section 12-255 applies to the interest.
(2) The notice must be given in writing, before the entities, or the
agency, enter into the transaction in relation to which the interest is
payable, or within one month afterwards.
(3) Immediately after giving the notice, those entities, or the agency,
must notify the Commissioner of:
(a) the particulars of the transaction (including the dates on
which interest is payable under it); and
(b) the day when the notice was given to the entity liable to pay
the interest.
Failure to comply with this section may contravene section 8C of this Act.

Royalties

12-280 Royalty payment to overseas person

An entity must withhold an amount from a *royalty it pays to an
entity, or to entities jointly, if:
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-285

(a) the recipient or any of the recipients has an address outside

Australia according to any record that is in the payer’s
possession, or is kept or maintained on the payer’s behalf,
about the transaction to which the royalty relates; or
(b) the payer is authorised to pay the royalty at a place outside
Australia (whether to the recipient or any of the recipients or
to anyone else).
For limits on the amount to be withheld, see section 12-300.

12-285 Royalty payment received for foreign resident

(1) An entity that receives a payment of a *royalty must withhold an
amount from the payment if:
(a) the entity is a person in Australia or an *Australian
government agency; and
(b) a foreign resident is or becomes entitled:
(i) to receive the royalty or part of it from the entity, or to
receive the amount of the royalty or of part of it from
the entity; or
(ii) to have the entity credit to the foreign resident, or
otherwise deal with on the foreign resident’s behalf or
as the foreign resident directs, the royalty or part of it,
or the amount of the royalty or of part of it.
For limits on the amount to be withheld, see section 12-300.

(2) The entity must withhold the amount:

(a) if the foreign resident is so entitled when the entity receives
the payment—immediately after the entity receives the
payment; or
(b) if the foreign resident becomes so entitled after the entity
receives the payment—immediately after the foreign resident
becomes so entitled.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-300

General

12-300 Limits on amount withheld under this Subdivision

This Subdivision does not require an entity:
(a) to withhold an amount from a *dividend, from interest
(within the meaning of Division 11A of Part III of the
Income Tax Assessment Act 1936) or from a *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.

Subdivision 12-FA—Departing Australia superannuation

payments

Table of sections
12-305 Departing Australia superannuation payment
12-310 Limits on amount withheld under this Subdivision

12-305 Departing Australia superannuation payment

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

12-310 Limits on amount withheld under this Subdivision

This Subdivision does not require 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

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(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.

Subdivision 12-FAA—Excess untaxed roll-over amount

Table of sections
12-312 Untaxed roll-over superannuation benefits
12-313 Limits on amount withheld under this Subdivision

12-312 Untaxed roll-over superannuation benefits

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.

12-313 Limits on amount withheld under this Subdivision

This Subdivision does not require an entity:
(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).
Note: Section 306-15 of the Income Tax Assessment Act 1997 deals with
liability to this form of withholding tax.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-315

Subdivision 12-FB—Payments to foreign residents etc.

Table of sections
12-315 Payment to foreign resident etc.
12-317 Payment received for foreign resident etc.
12-319 Exemptions from withholding obligations under this Subdivision

12-315 Payment to foreign resident etc.

(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
(b) the payment is of a kind set out in the regulations; and
(c) the payment is not:
(i) a *dividend of a company; or
(ii) interest (within the meaning of Division 11A of Part III
of the Income Tax Assessment Act 1936); or
(iii) a *royalty; or
(iv) a *departing Australia superannuation payment; or
(v) a payment worked out wholly or partly by reference to
the value or quantity of *natural resources produced or
recovered in Australia; or
(vi) a *mining payment; 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:
(a) the entity is a foreign resident;
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-317

(b) the payer believes, or has reasonable grounds to believe, that

the entity is a foreign resident;
(c) the payer has no reasonable grounds to believe that the entity
is an Australian resident, and either:
(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.

12-317 Payment received for foreign resident etc.

(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
(c) the likely foreign recipient is covered by subsection (3); and
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-319

(d) the likely foreign recipient is not covered by an exemption in

force under subsection 12-319(1).
(2) The intermediary must withhold the amount:
(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:
(a) the likely foreign recipient is a foreign resident;
(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.

12-319 Exemptions from withholding obligations under this

Subdivision
(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
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(b) the entity is likely to continue to comply with those

obligations in the future.
(2) The exemption is in force during the period:
(a) beginning when the Commissioner grants the exemption; and
(b) ending at the time specified in the exemption.
(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:
(i) the income year in which the exemption is proposed to
be granted; and
(ii) the previous 2 income years;
(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:
(i) the income year in which the exemption is proposed to
be granted; and
(ii) the previous 2 income years.
(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.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-319A

Subdivision 12-FC—Labour mobility programs

Table of sections
12-319A Payment to employee

12-319A Payment to employee

An entity must withhold an amount from salary, wages,
commission, bonuses or allowances it pays to an individual:
(a) as an employee of an Approved Employer (whether the entity
or another entity) under a program covered by
section 840-906 of the Income Tax Assessment Act 1997
(about labour mobility programs); and
(b) at a time when the employee is a foreign resident and:
(i) the employee holds a Temporary Work (International
Relations) Visa (subclass 403); or
(ii) the employee holds a Temporary Activity Visa
(subclass 408) having previously held a Temporary
Work (International Relations) Visa (subclass 403); or
(iii) the employee holds a visa of a kind prescribed by
regulations made under the Income Tax Assessment Act
1997 for the purposes of subparagraph 840-905(b)(iii)
of that Act.

Subdivision 12-G—Payments in respect of mining on

Aboriginal land, and natural resources

Table of sections
Mining on Aboriginal land
12-320 Mining payment

Natural resources
12-325 Natural resource payment
12-330 Payer must ask Commissioner how much to withhold
12-335 Commissioner may exempt from section 12-330, subject to conditions
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-320

Mining on Aboriginal land

12-320 Mining payment

(1) An entity must withhold an amount from a *mining payment that:
(a) it makes to another entity; or
(b) it applies for the benefit of another entity.
(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.

Natural resources

12-325 Natural resource payment

(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.
(2) The amount to be withheld is:
(a) the amount notified by the Commissioner under
section 12-330; or
(b) the amount worked out under a certificate in force under
section 12-335 that covers the payment;
as appropriate.

Exception
(3) Subsection (1) does not apply if:
(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

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-330

(b) a certificate in force under section 12-335 covers the

payment and does not require the entity to withhold an
amount from it.

12-330 Payer must ask Commissioner how much to withhold

(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 or *petroleum resource rent tax that
is or may become payable by a foreign resident to whom the
payment is made;
or the payment is covered by a certificate in force under
section 12-335.
Penalty: 20 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a
penalty unit.

Failure to notify not an offence against section 8C

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

12-335 Commissioner may exempt from section 12-330, subject to

conditions
(1) The Commissioner may give an entity a written certificate
exempting the entity from complying with section 12-330 for
specified payments.
(2) A certificate is subject to:
(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 or *petroleum
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Section 12-375

resource rent tax that is or may become payable by a foreign

resident to whom the payment is made; and
(b) such other conditions as the certificate specifies.
However, the entity does not contravene subsection 12-330(1)
because it contravenes a condition.
(3) The Commissioner may, by written notice given to the entity:
(a) revoke a certificate, whether or not a condition of it has been
contravened; or
(b) vary a certificate by revoking, changing or adding to its
conditions.
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.

Subdivision 12-H—Distributions of withholding MIT income

Guide to Subdivision 12-H

12-375 What this Subdivision is about

A withholding MIT may be required to withhold an amount from a

payment of its Australian sourced net income (other than
dividends, interest and royalties) if the payment is made to an
entity whose address, or place for payment, is outside Australia. If
the payment is made to another entity, the withholding MIT is
required to make information available to the recipient outlining
certain details in relation to the payment.
If a custodian receives a payment that is covered by that
information, it is required to withhold an amount from any related
later payment to an entity whose address, or place for payment, is
outside Australia. If the later payment is made to another entity, the
custodian is required to make information available in relation to
that later payment.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-375

If an entity that is not a custodian receives a payment that is

covered by that information, it is required to withhold an amount
from that payment if a foreign resident becomes entitled to that
payment. If a resident becomes entitled to the payment, the entity
must make information available in relation to that payment.
Where there is an obligation to withhold, the applicable
withholding rate is determined by the nature of the country or
territory in which the recipient’s address, place for payment or
residency is located and whether the trust is a clean building
managed investment trust.
A managed investment trust is a clean building managed
investment trust if it is a managed investment trust that holds one
or more clean buildings and does not derive assessable income
from any other taxable Australian property (other than certain
assets that are reasonably incidental to a clean building).

Table of sections
Operative provisions
12-383 Meaning of withholding MIT
12-385 Withholding by withholding MITs
12-390 Withholding by custodians and other entities
12-395 Requirement to give notice or make information available
12-405 Meaning of fund payment—general case
12-410 Entity to whom payment is made
12-415 Failure to give notice or make information available: administrative penalty
12-420 Agency rules
12-425 Meaning of clean building managed investment trust
12-430 Meaning of clean building
12-435 Meaning of non-concessional MIT income
12-436 Meaning of asset entity, operating entity, cross staple arrangement and
stapled entity
12-437 Meaning of MIT cross staple arrangement income
12-438 MIT cross staple arrangement income—de minimis exception
12-439 MIT cross staple arrangement income—approved economic infrastructure
facility exception
12-440 Transitional—MIT cross staple arrangement income
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Section 12-383

12-441 Integrity rule—concessional cross staple rent cap

12-442 Meaning of excepted MIT CSA income
12-443 Concessional cross staple rent cap—existing lease with specified rent or
rent method
12-444 Concessional cross staple rent cap—general
12-445 Asset entity to allocate deductions first against rental income that is not
MIT cross staple arrangement income
12-446 Meaning of MIT trading trust income
12-447 Transitional—MIT trading trust income
12-448 Meaning of MIT agricultural income, Australian agricultural land for rent
and Division 6C land
12-449 Transitional—MIT agricultural income
12-450 Meaning of MIT residential housing income
12-451 Transitional—MIT residential housing income
12-452 Meaning of residential dwelling asset
12-453 MIT agricultural income and MIT residential housing income—capital
gains in relation to membership interests

Operative provisions

12-383 Meaning of withholding MIT

(1) A trust is a withholding MIT in relation to an income year if:
(a) it is a *managed investment trust in relation to that income
year because of paragraph 275-10(1)(a) or
subsection 275-10(2) of the Income Tax Assessment Act
1997; and
(b) 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:
(i) assets that are situated in Australia at any time in 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.
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-385

(2) For the purposes of ascertaining whether a trust is a *managed

investment trust in relation to that income year for the purposes of
paragraph (1)(a), treat as a *fund payment by the trustee of the trust
any amount that, under subsection 12A-205(2), would be treated as
a payment by the trustee if the trust were an *AMIT.
Note: The making of a fund payment is a requirement for the trust to be a
managed investment trust under paragraph 275-10(1)(a) and
subsection 275-10(3) of the Income Tax Assessment Act 1997.

12-385 Withholding by withholding MITs

(1) A trustee of a trust that is a *withholding MIT 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.

(2) The amount the trustee must withhold is:

*Fund payment  Rate applicable under subsection (3)

(3) The rate is:

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

(i) 15% for *fund payments (except to the extent mentioned

in subparagraph (ii) or (iii)); or
(ii) 10% for fund payments, to the extent that they are, or
are attributable to, fund payments from a *clean building
managed investment trust (except to the extent
mentioned in subparagraph (iii)); or

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-390

(iii) 30% for fund payments, to the extent that they are
attributable to *non-concessional MIT income (see
section 12-435); or
(b) otherwise—30%.
(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 *withholding
MIT 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.

12-390 Withholding by custodians and other entities

Withholding by custodians
(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
(b) the later payment is made to an entity covered by
section 12-410.
Note 1: The covered part referred to in paragraph (1)(a) is attributable to a
fund payment made by a withholding MIT, or 2 or more fund
payments made by one or more withholding MITs. One or more of
those withholding MITs may be AMITs.
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.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(2) The amount the *custodian must withhold is:

Covered part  Rate applicable under subsection (3)

(3) The rate is:

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

(i) 15% for *fund payments (except to the extent mentioned

in subparagraph (ii) or (iii)); or
(ii) 10% for fund payments, to the extent that they are, or
are attributable to, fund payments from a *clean building
managed investment trust (except to the extent
mentioned in subparagraph (iii)); or
(iii) 30% for fund payments, to the extent that they are
attributable to *non-concessional MIT income (see
section 12-435); or
(b) otherwise—30%.

Withholding by other entities

(4) An entity that is not a *withholding MIT 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
(b) a foreign resident (the recipient) is or becomes entitled:
(i) to receive from the entity; or
(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 1: The covered part referred to in paragraph (4)(a) is attributable to a
fund payment made by a withholding MIT, or 2 or more fund
payments made by one or more withholding MITs. One or more of
those withholding MITs may be AMITs.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Note 2: If the recipient is 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.

(5) The amount the entity must withhold is:

Attributable amount  Rate applicable under subsection (6)

(6) The rate is:

(a) if the recipient is a resident of an *information exchange
country:
(i) 15% for *fund payments (except to the extent mentioned
in subparagraph (ii) or (iii)); or
(ii) 10% for fund payments, to the extent that they are, or
are attributable to, fund payments from a *clean building
managed investment trust (except to the extent
mentioned in subparagraph (iii)); or
(iii) 30% for fund payments, to the extent that they are
attributable to *non-concessional MIT income (see
section 12-435); or
(b) otherwise—30%.
(7) An entity is a resident of an *information exchange country if:
(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.
(8) An amount required to be withheld under subsection (4) must be
withheld:
(a) if the recipient is so entitled when the entity receives the
payment—immediately after receipt; or
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(b) if the recipient becomes so entitled at a later time—

immediately after the later time.

Meaning of custodian
(9) An entity is a custodian if:
(a) the entity is *carrying on a *business that consists
predominantly of providing a custodial or depository service
(within the meaning of the Corporations Act 2001) pursuant
to an *Australian financial services licence; or
(b) the entity is acting on behalf of an entity that is carrying on
such a business pursuant to such a licence.

Exceptions
(10) This section does not apply:
(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.

12-395 Requirement to give notice or make information available

Withholding MITs and custodians

(1) An entity that is a *withholding MIT 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

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(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.

(2) The entity must:

(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
(aa) must specify the extent (if any) to which the payment is, or is
attributable to, a *fund payment from a *clean building
managed investment trust; and
(ab) must specify the extent (if any) to which the payment is, or is
attributable to, *non-concessional MIT income (see
section 12-435); and
(ac) must specify the extent (if any) to which the payment is, or is
attributable to, an amount that would be non-concessional
MIT income if the following provisions were disregarded:
(i) subsection 12-437(5);
(ii) sections 12-440, 12-447, 12-449 and 12-451; and
(b) must specify the income year of the *withholding MIT 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.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Other entities
(4) An entity that is not a *withholding MIT or a *custodian must
comply with subsection (5) if:
(a) the entity receives a payment; and
(b) another entity (also the recipient) is or becomes entitled:
(i) to receive from the entity; or
(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 attributable to the payment; and
(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.
(5) The entity must:
(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
(aa) must specify the extent (if any) to which the payment is, or is
attributable to, a *fund payment from a *clean building
managed investment trust; and
(ab) must specify the extent (if any) to which the payment is, or is
attributable to, *non-concessional MIT income (see
section 12-435); and
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-405

(ac) must specify the extent (if any) to which the payment is, or is
attributable to, an amount that would be non-concessional
MIT income if the following provisions were disregarded:
(i) subsection 12-437(5);
(ii) sections 12-440, 12-447, 12-449 and 12-451; and
(b) must specify the income year of the *withholding MIT 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.

12-405 Meaning of fund payment—general case

(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;
(c) a *royalty 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;
(e) amounts that are not from an *Australian source;
and disregarding deductions relating to excluded amounts.
(1A) This section applies to a trust that is not an *AMIT for an income
year.
Note: For the definition of fund payment in respect of a trust that is an
AMIT for an income year, see section 12A-110.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-405

(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:

Method statement

Step 1. Reduce the actual payment by so much of it that is

attributable to excluded amounts, and increase it by any
amounts to which subsection (2A) or (2B) applies for the
income year (except to the extent that capital gains
against which those amounts are applied are included in
the actual payment made in relation to the income year).

Step 2. Work out what it is reasonable to expect will be the *net

income of the trust for the income year:

(aa) increasing the net income by any amounts to which

subsection (2A) or (2B) applies for the income
year; and

(a) disregarding (except to the extent that they are

amounts to which subsection (2A) or (2B) applies
for the income year) excluded amounts, expected
excluded amounts and deductions relating to those
amounts; and

(b) on the basis that a *capital gain from *taxable

Australian property of the trust that was or would
be reduced under step 3 of the method statement in
subsection 102-5(1) of the Income Tax Assessment
Act 1997 were double the amount it actually is.

Step 3. The fund payment is so much of the step 2 amount as is

reasonable having regard to:

(a) the object of this section; and

(b) the step 1 amount; and

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(c) the amounts of any earlier fund payments made by

the trustee in relation to the income year; and

(d) the expected amounts of any later fund payments

the trustee expects to make in relation to the
income year.

(2A) If:
(a) during an income year, a *capital loss from a *CGT event
happens in relation to a *CGT asset that is not *taxable
Australian property; and
(b) in relation to that income year, some or all of the capital loss
is applied against a *capital gain from a CGT event that
happens in relation to a CGT asset that is taxable Australian
property;
this subsection applies, for that income year, to the amount that is
so applied.
(2B) If:
(a) the trust has a *net capital loss for an income year; and
(b) one or more of the *capital losses the trust made during that
income year were from *CGT events that happened in
relation to *CGT assets that were not *taxable Australian
property; and
(c) in relation to a later income year, some or all of the net
capital loss is applied against a *capital gain from a CGT
event that happens in relation to a CGT asset that is taxable
Australian property;
this subsection applies, for the later income year, to an amount
equal to so much of the net capital loss that is so applied as related
to capital losses mentioned in paragraph (b).
(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.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-410

(4) However, an amount is not a fund payment in relation to the

income year unless it is paid:
(a) during the income year; or
(b) within 3 months after the end of the income year; or
(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.

12-410 Entity to whom payment is made

(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
(b) the payer is authorised to make the payment to a place
outside Australia.
(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.

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

administrative penalty
An entity that:
(a) is required to give a notice, or make details available on a
website, under section 12-395 in relation to:
(i) a payment made to another entity; or

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(ii) an amount paid or credited to, or dealt with on behalf of

or as directed by, another entity; and
(b) fails to comply with that section;
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.

12-420 Agency rules

(1) This section applies to:
(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.

12-425 Meaning of clean building managed investment trust

(1) A trust is a clean building managed investment trust in relation to
an income year if during the income year:
(a) it is a *withholding MIT in relation to the income year; and
(b) it holds one or more *clean buildings (including the land on
which the buildings are situated); and
(c) it does not derive assessable income from any *taxable
Australian property (other than from the clean buildings or
assets that are reasonably incidental to those buildings).

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-430

5% safe harbour for certain income reasonably incidental to a

clean building
(2) A trust is not a *clean building managed investment trust in relation
to an income year if the assessable income of the trust that is
derived from assets that are reasonably incidental to *clean
buildings is greater than 5% of the assessable income of the trust
that is derived from clean buildings.
(3) The regulations may specify kinds of assets that are, or are not,
reasonably incidental to *clean buildings for the purposes of this
section.

12-430 Meaning of clean building

(1) A building is a clean building if:
(a) the construction of the building commenced on or after 1 July
2012; and
(b) it satisfies the requirements in subsections (3) and (4).
(2) For the purpose of subsection (1):
(a) the construction of the building is taken to have commenced
at the time the works on the lowest level (including any
basement level) of the building commence; and
(b) the construction of the building is not taken to have
commenced merely because works preparing the site for
construction, or works undertaken below the lowest level of
the building (including any basement level), have
commenced.
(3) A building satisfies the requirements in this subsection if:
(a) the building is a commercial building that is any of the
following (or is a combination of any of the following):
(i) an office building;
(ii) a hotel for use wholly or mainly to provide short-term
accommodation for travellers;
(iii) a shopping centre; or

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(b) the building satisfies the requirements prescribed by the

regulations for the purposes of this paragraph.
(4) A building satisfies the requirements in this subsection if:
(a) the building:
(i) has, and continues to maintain at all times during the
income year, at least a 5 Star Green Star rating as
certified by the Green Building Council of Australia; or
(ii) has, and continues to maintain at all times during the
income year, at least a 5.5 star energy rating as
accredited by the National Australian Built Environment
Rating System (NABERS); or
(b) the building satisfies the requirements prescribed by the
regulations for the purposes of this paragraph.
(5) For the purposes of subsection (4), if:
(a) a building has previously satisfied the requirements in that
subsection; and
(b) the building then fails to satisfy the requirements for a period
(the non-compliance period); and
(c) within 180 days after the first day of that failure, the building
again satisfies the requirements;
treat the building as having satisfied the requirements during the
non-compliance period.

12-435 Meaning of non-concessional MIT income

Non-concessional MIT income means any of the following:
(a) *MIT cross staple arrangement income;
(b) *MIT trading trust income;
(c) *MIT agricultural income;
(d) *MIT residential housing income.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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12-436 Meaning of asset entity, operating entity, cross staple

arrangement and stapled entity
(1) An asset entity in relation to an income year is a trust or
partnership that is not covered by subsection 275-10(4) of the
Income Tax Assessment Act 1997 in relation to the income year.
(2) An operating entity in relation to an income year is a trust,
partnership or company that is covered by subsection 275-10(4) of
the Income Tax Assessment Act 1997 in relation to the income year.
(3) For the purposes of this section, in determining whether a
partnership or company is covered by subsection 275-10(4) of the
Income Tax Assessment Act 1997, treat the partnership or company
as a trust.
(4) A cross staple arrangement is an *arrangement that is entered into
by 2 or more entities (the arrangement entities) if:
(a) at least one of the arrangement entities is an *asset entity; and
(b) at least one of the arrangement entities is an *operating
entity; and
(c) the following conditions are satisfied:
(i) one or more other entities (the external entities) each
hold a *total participation interest in each arrangement
entity;
(ii) the sum of the total participation interests held by the
external entities in each arrangement entity is 80% or
more.
(5) For the purposes of subparagraph (4)(c)(ii), in working out the sum
of the *total participation interests held by the external entities in
each arrangement entity, take into account:
(a) a particular *direct participation interest; or
(b) a particular *indirect participation interest;
held in the arrangement entity only once if it would otherwise be
counted more than once.
(6) Subsection (7) applies if:
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(a) an external entity holds *total participation interests in 2 or

more arrangement entities; and
(b) either:
(i) the amount (the lowest participation interest amount)
of one of those participation interests falls short of the
amount of each of the other participation interests; or
(ii) the amount (the lowest participation interest amount)
of 2 or more of those participation interests is the same
but falls short of the amount of each of the other
participation interests.
(7) For the purposes of paragraph (4)(c), treat the amount of the *total
participation interest held by the external entity in each of the
arrangement entities as being equal to the lowest participation
interest amount.
(8) Each of the entities that entered into the *cross staple arrangement
is a stapled entity in relation to the cross staple arrangement.

12-437 Meaning of MIT cross staple arrangement income

(1) This section applies if:
(a) an amount is included in the assessable income for an income
year of a *managed investment trust in relation to the income
year (worked out for the purposes of determining the trust’s
*net income, or in the case of an *AMIT, the trust’s total
assessable income, for the income year); and
(b) the amount mentioned in paragraph (a) is, or is attributable
to, an amount derived, received or made from another entity
(the second entity); and
(c) the amount mentioned in paragraph (a) is not an amount
mentioned in paragraph 12-405(1)(a), (b), (c), (d) or (e).
(2) The amount is MIT cross staple arrangement income of the
*managed investment trust if:

(a) either:

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(i) the *managed investment trust is an *asset entity in

relation to the income year and is a *stapled entity in
relation to a *cross staple arrangement; or
(ii) the second entity is an asset entity in relation to the
income year and is a stapled entity in relation to a cross
staple arrangement; and
(b) either:
(i) if subparagraph (a)(i) applies—the second entity is an
*operating entity in relation to the income year and is a
stapled entity in relation to the cross staple arrangement;
or
(ii) if subparagraph (a)(ii) applies—another entity (the third
entity) is an operating entity in relation to the income
year and is a stapled entity in relation to the cross staple
arrangement; and
(c) either:
(i) if subparagraph (a)(i) applies—the amount is derived,
received or made by the managed investment trust from
the second entity; or
(ii) if subparagraph (a)(ii) applies—the amount is
attributable to an amount derived, received or made by
the second entity from the third entity.
(3) The amount is not MIT cross staple arrangement income of the
*managed investment trust under subsection (2) to the extent that it
is attributable to an amount that satisfies the following
requirements:
(a) the amount is derived, received or made by a *stapled entity
in relation to the *cross staple arrangement from an entity
that is not a stapled entity in relation to the cross staple
arrangement;
(b) the amount mentioned in paragraph (a) is *rent from land
investment.
(4) The amount is not MIT cross staple arrangement income of the
*managed investment trust under subsection (2) to the extent that it

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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is, or is attributable to, an amount covered by

subsection 12-438(1).
Note: The managed investment trust may be an asset entity in relation to the
cross staple arrangement. If so, it may have no MIT cross staple
arrangement income for the income year as a result of the operation of
this subsection.

(5) The amount is not MIT cross staple arrangement income of the
*managed investment trust under subsection (2) to the extent that it
is, or is attributable to, *rent from land investment that is:
(a) attributable to a facility, or an improvement to a facility; and
(b) referable to a time in the income year when the facility, or
the improvement to the facility, is covered by section 12-439.
(6) Subsection (7) applies if:
(a) an *asset entity in relation to the income year mentioned in
paragraph (1)(a) makes a *capital gain because an *operating
entity in relation to the income year *acquires an asset from
the asset entity; and
(b) the asset entity and the operating entity are *stapled entities
in relation to the *cross staple arrangement.
(7) The amount is not MIT cross staple arrangement income of the
*managed investment trust under subsection (2) to the extent that it
is attributable to the *capital gain.

12-438 MIT cross staple arrangement income—de minimis

exception
(1) For the purposes of subsection 12-437(4), this subsection covers an
amount if:
(a) the amount is *MIT cross staple arrangement income for the
income year of an *asset entity in relation to the *cross staple
arrangement; and
(b) the MIT cross staple arrangement income of the asset entity
for the previous income year does not exceed 5% of the
amount mentioned in subsection (3).

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(2) For the purposes of subsection (1), in working out the *MIT cross
staple arrangement income of the *asset entity for the previous
income year, disregard subsections 12-437(4) and (5).
(3) The amount is:
(a) if the *asset entity is not an *AMIT for the income year—the
assessable income of the asset entity for the previous income
year (worked out for the purposes of determining the *net
income of the asset entity for the income year); or
(b) if the asset entity is an AMIT for the income year—the total
assessable income (as mentioned in subsection 276-265(2) of
the Income Tax Assessment Act 1997) of the asset entity for
the previous income year.
(4) For the purposes of subsection (3), in working out the assessable
income, or the total assessable income, of the *asset entity for the
previous income year, disregard any *net capital gain of the asset
entity for that year.
(5) If the *asset entity did not exist in the previous income year:
(a) treat references in this section to the previous income year as
instead being references to the income year; and
(b) treat references in this section to the *MIT cross staple
arrangement income of the asset entity as instead being
references to a reasonable estimate of the MIT cross staple
arrangement income of the asset entity; and
(c) treat references in this section to the assessable income of the
asset entity as instead being references to a reasonable
estimate of the assessable income of the asset entity; and
(d) treat references in this section to the total assessable income
of the asset entity as instead being references to a reasonable
estimate of the total assessable income of the asset entity.
(6) If the *asset entity exists in an income year, but is not a *managed
investment trust in relation to that income year, for the purposes of
this section, treat it as a managed investment trust in relation to that
income year that is not an *AMIT for that income year.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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12-439 MIT cross staple arrangement income—approved economic

infrastructure facility exception
(1) This section covers a facility at a time if:
(a) the facility is covered by an approval of the Treasurer under
this section that is in force at that time; and
(b) that time is no later than the end of the period of 15 years
beginning on the day on which an asset that is part of the
facility is first put to use.
(2) This section covers an improvement to a facility at a time if:
(a) the improvement to the facility is covered by an approval of
the Treasurer under this section that is in force at that time;
and
(b) that time is no later than the end of the period of 15 years
beginning on the day on which an asset that is part of the
facility is first put to use after it has been improved under the
improvement.
(3) An *Australian government agency (other than the
Commonwealth) may make an application to the Treasurer in
respect of a facility, or an improvement to a facility, specified in
the application.
(4) The Treasurer may approve the facility, or the improvement to the
facility, specified in the application under subsection (3) if the
Treasurer is satisfied that the following criteria are met:
(a) the facility is an *economic infrastructure facility;
(b) in the case of an application in respect of a facility:
(i) the estimated capital expenditure on the facility is $500
million or more; and
(ii) the facility is yet to be constructed; and
(iii) the facility will significantly enhance the long-term
productive capacity of the economy; and
(iv) approving the facility is in the national interest;
(c) in the case of an application in respect of an improvement to
a facility:
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(i) the estimated capital expenditure on the improvement is

$500 million or more; and
(ii) the improvement is yet to be constructed; and
(iii) the improvement will significantly enhance the
long-term productive capacity of the economy; and
(iv) approving the improvement is in the national interest.
(5) An economic infrastructure facility is a facility that is any of the
following:
(a) transport infrastructure;
(b) energy infrastructure;
(c) communications infrastructure;
(d) water infrastructure.
(6) An approval under subsection (4):
(a) must be in writing; and
(b) must specify the facility, or the improvement, that is
approved; and
(c) must specify the date on which the approval comes into
force; and
(d) may contain any other information that the Treasurer
considers appropriate.
(7) The Treasurer may publish an approval under subsection (4) in any
way that he or she considers appropriate.
(8) If the Treasurer decides not to approve the facility, or the
improvement to a facility, specified in the application under
subsection (3), the Treasurer must notify the applicant of the
decision, in writing, as soon as practicable after making the
decision.

12-440 Transitional—MIT cross staple arrangement income

(1) This section applies if:
(a) before 27 March 2018, an *Australian government agency:

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(i) decided to approve the *acquisition, creation or lease of

a facility; and
(ii) publicly announced that decision; and
(iii) took significant preparatory steps to implement that
decision; and
(b) either:
(i) a *cross staple arrangement was entered into in relation
to the facility before 27 March 2018; or
(ii) it was reasonable on 27 March 2018 to conclude that a
cross staple arrangement will be entered into in relation
to the facility; and
(c) all the entities that are *stapled entities in relation to the cross
staple arrangement already existed before 27 March 2018;
and
(d) each entity that is a stapled entity in relation to the cross
staple arrangement has made a choice in accordance with
subsection (5).
(2) This section also applies if:
(a) any of the following applies:
(i) an entity entered into a contract before 27 March 2018
for the *acquisition, creation or lease of a facility;
(ii) an entity owns, or is the lessee of, a facility at a time
before 27 March 2018; and
(b) either:
(i) a *cross staple arrangement was entered into in relation
to the facility before 27 March 2018; or
(ii) it was reasonable on 27 March 2018 to conclude that a
cross staple arrangement will be entered into in relation
to the facility; and
(c) all the entities that are *stapled entities in relation to the cross
staple arrangement already existed before 27 March 2018;
and

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(d) each entity that is a stapled entity in relation to the cross

staple arrangement has made a choice in accordance with
subsection (5).
(3) An amount included in the assessable income for an income year
of a *managed investment trust is not MIT cross staple
arrangement income of the managed investment trust if:
(a) the amount is, or is attributable to, an amount derived,
received or made from another entity (the second entity); and
(b) the amount relates to the facility; and
(c) the second entity is a *stapled entity in relation to the *cross
staple arrangement; and
(d) either:
(i) if subparagraph 12-437(2)(a)(i) applies—the amount is
*rent from land investment paid from an *operating
entity in relation to the cross staple arrangement to the
managed investment trust; or
(ii) if subparagraph 12-437(2)(a)(ii) applies—the amount is
attributable to rent from land investment paid from an
operating entity in relation to the cross staple
arrangement to an *asset entity in relation to the cross
staple arrangement; and
(e) the time when the amount was derived, received or made by
the managed investment trust meets the requirements in
subsection (4).
(4) The time meets the requirements in this subsection if:
(a) where the facility to which the *cross staple arrangement
relates is not an *economic infrastructure facility—the time is
before 1 July 2031 and before the later of:
(i) 1 July 2026; and
(ii) the end of the period of 7 years beginning on the earliest
day on which an asset that is part of that facility is first
put to use for the purpose of producing assessable
income; or

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(b) where the facility to which the cross staple arrangement

relates is an economic infrastructure facility—the time is
before 1 July 2039 and before the later of:
(i) 1 July 2034; and
(ii) the end of the period of 15 years beginning on the
earliest day on which an asset that is part of that facility
is first put to use for the purpose of producing
assessable income.
(5) An entity makes a choice in accordance with this subsection if:
(a) the entity makes the choice in the *approved form; and
(b) the entity makes the choice no later than:
(i) 30 June 2019; or
(ii) a later time allowed by the Commissioner; and
(c) the entity gives the choice to the Commissioner within 60
days after the entity makes the choice.
(6) The choice cannot be revoked.

12-441 Integrity rule—concessional cross staple rent cap

(1) This section applies if:
(a) a *managed investment trust in relation to an income year
derives, receives or makes an amount of *excepted MIT CSA
income for the income year; and
(b) if the amount is excepted MIT CSA income because of
subsection 12-440(3)—paragraph 12-440(4)(b) applies (15
year concession); and
(c) the amount of excepted MIT CSA income is, or is
attributable to, *rent from land investment under a lease (the
cross staple lease) entered into by:
(i) the *asset entity mentioned in paragraph 12-437(2)(a)
(the relevant asset entity); and
(ii) the *operating entity mentioned in
paragraph 12-437(2)(b) (the relevant operating entity).

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(2) To the extent (if any) that the amount of the relevant asset entity’s
*excepted MIT CSA income exceeds its *concessional cross staple
rent cap for the income year, the following provisions do not apply
to the amount of the *managed investment trust’s excepted MIT
CSA income mentioned in paragraph (1)(a):
(a) subsection 12-437(5);
(b) subsection 12-440(3).
(3) If the relevant asset entity is not a *managed investment trust in
relation to the income year, for the purposes of subsection (2), treat
it as a managed investment trust in relation to the income year.

12-442 Meaning of excepted MIT CSA income

An amount is excepted MIT CSA income of a *managed
investment trust in relation to an income year if it would be *MIT
cross staple arrangement income of the managed investment trust
but for any of the following provisions:
(a) subsection 12-437(5);
(b) subsection 12-440(3).

12-443 Concessional cross staple rent cap—existing lease with

specified rent or rent method
(1) This section applies if:
(a) the amount mentioned in subsection 12-441(1) is *excepted
MIT CSA income because of subsection 12-440(3); and
(b) the cross staple lease was entered into before 27 March 2018;
and
(c) the cross staple lease, or associated documents, specified any
of the following before 27 March 2018:
(i) the amount of annual rent under the lease for the first
year of the lease that ends after 27 March 2018;
(ii) an objective method for determining the amount of
annual rent under the lease; and

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-444

(d) if subparagraph (c)(ii) applies—the method is set out in the

cross staple lease, or the associated documents, before
27 March 2018.
(2) If subparagraph (1)(c)(ii) applies, the concessional cross staple
rent cap for an income year of the *managed investment trust is the
amount of annual rent determined for the income year under the
method mentioned in that subparagraph.
(3) If subparagraph (1)(c)(ii) does not apply, the concessional cross
staple rent cap for an income year of the *managed investment
trust is:
(a) for an income year where the lease, or the associated
documents, specify the amount of annual rent for the
corresponding year of the lease under subsection (4)—that
amount; or
(b) for an income year where that amount is not so specified—
the amount worked out under paragraph (a) in relation to the
most recent year of the lease for which an amount is so
specified, indexed annually in accordance with
Subdivision 960-M of the Income Tax Assessment Act 1997.
(4) An income year and a year of the lease correspond to each other
under this subsection if both of those years end:
(a) after a particular 27 March; and
(b) on or before the next 27 March.

12-444 Concessional cross staple rent cap—general

(1) This section applies if section 12-443 does not apply.
(2) The concessional cross staple rent cap for an income year of the
*managed investment trust is worked out as follows:

(a) first, work out a reasonable estimate of whichever of the

following is applicable:
(i) if the relevant asset entity is a trust that is not an
*AMIT—the relevant asset entity’s *net income, or *tax
loss, for the income year;
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-444

(ii) if the relevant asset entity is an AMIT—the sum of the

relevant asset entity’s *trust components with the
character of assessable income, or the relevant asset
entity’s tax loss, for the income year;
(iii) if the relevant asset entity is a partnership—the relevant
asset entity’s net income, or partnership loss (within the
meaning of section 90 of the Income Tax Assessment
Act 1936), for the income year;
(b) next, work out a reasonable estimate of whichever of the
following is applicable:
(i) if the relevant operating entity is a trust that is not an
AMIT—the operating asset entity’s net income, or tax
loss, for the income year;
(ii) if the relevant operating entity is a partnership—the
relevant operating entity’s net income, or partnership
loss (within the meaning of section 90 of the Income
Tax Assessment Act 1936), for the income year;
(iii) otherwise—the relevant operating entity’s taxable
income or tax loss for the income year;
(c) next, add the results of paragraphs (a) and (b);
(d) next, multiply the result of paragraph (c) by 0.8;
(e) next, subtract the result of paragraph (a) from the result of
paragraph (d);
(f) next, add the amount of *excepted MIT CSA income
mentioned in subsection 12-441(1) to the result of
paragraph (e).
If the result of paragraph (f) is a positive number, the concessional
cross staple rent cap is that result. Otherwise, the concessional
cross staple rent cap is nil.
(3) For the purposes of paragraphs (2)(a) and (b):
(a) treat the amount of a *tax loss, or of a partnership loss (within
the meaning of section 90 of the Income Tax Assessment Act
1936), as a negative number; and
(b) disregard any *tax loss for a previous income year of the
relevant asset entity or relevant operating entity.
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-445

12-445 Asset entity to allocate deductions first against rental income

that is not MIT cross staple arrangement income
(1) This section applies if:
(a) an entity is an *asset entity in relation to an income year and
is a *stapled entity in relation to a *cross staple arrangement;
and
(b) the entity is entitled to a deduction for the income year
against its assessable income that arises from *rent from land
investment that it derives or receives in the income year; and
(c) the entity derives, receives or makes an amount of *excepted
MIT CSA income in the income year (disregarding this
section and subsection 12-441(2)); and
(d) the amount of that excepted MIT CSA income exceeds the
entity’s *concessional cross staple rent cap for the income
year.
(2) The amount of the deduction can only be deducted against an
amount of assessable income of the *asset entity as follows:
(a) first, the amount can only be deducted against an amount of
assessable income that is *excepted MIT CSA income, to the
extent that the excepted MIT CSA income does not exceed
the entity’s *concessional cross staple rent cap for the income
year;
(b) next, if an amount of the deduction remains after applying
the rule in paragraph (a), the amount can only be deducted
against an amount of assessable income that is *MIT cross
staple arrangement income;
(c) next, if an amount of the deduction remains after applying
the rules in paragraphs (a) and (b), the amount can be
deducted against an amount of assessable income in
accordance with other provisions of this Act.
(3) If the *asset entity is not a *managed investment trust in relation to
the income year, for the purposes of determining whether an
amount of its assessable income for the income year is *MIT cross

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-446

staple arrangement income, treat it as a managed investment trust

in relation to the income year.

12-446 Meaning of MIT trading trust income

(1) This section applies if:
(a) an amount is included in the assessable income for an income
year of a *managed investment trust in relation to the income
year (worked out for the purposes of determining the trust’s
*net income, or in the case of an *AMIT, the trust’s total
assessable income, for the income year); and
(b) the amount mentioned in paragraph (a) is, or is attributable
to, an amount derived, received or made from another entity
(the second entity); and
(c) the amount mentioned in paragraph (a) is not an amount
mentioned in paragraph 12-405(1)(a), (b), (c), (d) or (e).
(2) The amount is MIT trading trust income of the *managed
investment trust if:
(a) the managed investment trust holds a *total participation
interest in the second entity of greater than nil; and
(b) the amount arises because of that total participation interest;
and
(c) the second entity:
(i) is a trading trust for the purposes of Division 6C of
Part III of the Income Tax Assessment Act 1936 in
relation to the income year; or
(ii) is a partnership or a trust that is not a unit trust, but
would be such a trading trust in relation to the income
year if it were a unit trust throughout the income year;
and
(d) the second entity is not a *public trading trust in relation to
the income year.
(3) The amount is not MIT trading trust income of the *managed
investment trust under subsection (2) to the extent that it is

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-447

attributable to a *capital gain made from *CGT event E4 or *CGT

event E10.

12-447 Transitional—MIT trading trust income

(1) This section applies if:
(a) an amount (the relevant amount) included in the assessable
income for an income year of a *managed investment trust is
*MIT trading trust income of the managed investment trust
(disregarding this section); and
(b) immediately before 27 March 2018, the managed investment
trust held a *total participation interest (the
pre-announcement TPI) of greater than nil in the second
entity mentioned in subsection 12-446(1) (the second entity);
and
(c) the relevant amount was derived, received or made by the
managed investment trust before 1 July 2026.
(2) Treat part of the relevant amount as not being *MIT trading trust
income of the *managed investment trust.
(3) That part is equal to the relevant amount multiplied by the fraction
worked out under subsections (4) and (5).
(4) If the *total participation interest (the post-announcement TPI)
held by the *managed investment trust in the second entity at the
end of the most recent income year ending before it derived,
received or made the relevant amount exceeds the
pre-announcement TPI, work out that fraction by dividing:
(a) the pre-announcement TPI;
by:
(b) the post-announcement TPI.
(5) Otherwise, the fraction is 1.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-448

12-448 Meaning of MIT agricultural income, Australian agricultural

land for rent and Division 6C land
(1) This section applies if:
(a) an amount is included in the assessable income for an income
year of a *managed investment trust in relation to the income
year (worked out for the purposes of determining the trust’s
*net income, or in the case of an *AMIT, the trust’s total
assessable income, for the income year); and
(b) the amount mentioned in paragraph (a) is not an amount
mentioned in paragraph 12-405(1)(a), (b), (c), (d) or (e).
(2) The amount is MIT agricultural income of the *managed
investment trust to the extent that it is attributable to an asset that is
*Australian agricultural land for rent (whether or not held by the
managed investment trust).
(3) Australian agricultural land for rent is *Division 6C land situated
in Australia that:
(a) is used, or could reasonably be used, for carrying on a
*primary production business; and

(b) is held primarily for the purposes of deriving or receiving

rent.
(4) For the purposes of this section, if an *economic infrastructure
facility is a fixture on *Australian agricultural land for rent:
(a) treat the economic infrastructure facility as being separate
from the Australian agricultural land for rent; and
(b) treat the economic infrastructure facility as not being
Australian agricultural land for rent.
(5) Division 6C land is land (within the meaning of Division 6C of
Part III of the Income Tax Assessment Act 1936), and includes a
thing if an investment in the thing would be an investment in land
under subsection 102MB(1) of that Act.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-449

12-449 Transitional—MIT agricultural income

(1) This section applies if:
(a) an amount (the relevant amount) is included in the
assessable income for an income year of a *managed
investment trust in relation to the income year (worked out
for the purposes of determining the trust’s *net income, or in
the case of an *AMIT, the trust’s total assessable income, for
the income year); and
(b) the relevant amount would be *MIT agricultural income
(disregarding this section) of the managed investment trust
because it is attributable to an asset that is *Australian
agricultural land for rent; and
(c) the managed investment trust derived, received or made the
relevant amount before 1 July 2026; and
(d) if the managed investment trust derived, received or made the
relevant amount because the managed investment trust held
the asset:
(i) the managed investment trust held the asset just before
27 March 2018; or
(ii) before 27 March 2018, the managed investment trust
entered into a contract for the *acquisition or lease of
the asset; and
(e) if the managed investment trust derived, received or made the
relevant amount because another entity (the second entity)
held the asset:
(i) the second entity held the asset just before 27 March
2018; or
(ii) before 27 March 2018, the second entity entered into a
contract for the acquisition or lease of the asset; and
(f) if paragraph (e) applies—immediately before 27 March 2018,
the managed investment trust held a *total participation
interest (the pre-announcement TPI) of greater than nil in
the second entity.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(2) If paragraph (1)(d) applies, treat the relevant amount as not being
*MIT agricultural income of the *managed investment trust.

(3) If paragraph (1)(e) applies, treat part of the relevant amount as not
being *MIT agricultural income of the *managed investment trust.
(4) That part is equal to the relevant amount multiplied by the fraction
worked out under subsections (5) and (6).
(5) If the *total participation interest (the post-announcement TPI)
held by the *managed investment trust in the second entity at the
end of the most recent income year ending before it derived,
received or made the relevant amount exceeds the
pre-announcement TPI, work out that fraction by dividing:
(a) the pre-announcement TPI;
by:
(b) the post-announcement TPI.
(6) Otherwise, the fraction is 1.

12-450 Meaning of MIT residential housing income

(1) This section applies if:
(a) an amount is included in the assessable income for an income
year of a *managed investment trust in relation to the income
year (worked out for the purposes of determining the trust’s
*net income, or in the case of an *AMIT, the trust’s total
assessable income, for the income year); and
(b) the amount mentioned in paragraph (a) is not an amount
mentioned in paragraph 12-405(1)(a), (b), (c), (d) or (e).
(2) The amount is MIT residential housing income of the *managed
investment trust to the extent that it is attributable to a *residential
dwelling asset (whether or not held by the managed investment
trust).

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-451

Asset used to provide affordable housing

(3) The amount is not MIT residential housing income of the
*managed investment trust under subsection (2) to the extent that it
is referable to the use of the *residential dwelling asset to *provide
affordable housing.
(4) If the amount is, or is attributable to, a *capital gain from a *CGT
event, subsection (3) applies only if:
(a) the entity that held the *residential dwelling asset just before
the time (the CGT event time) when the CGT event happened
had held it for at least 3,650 days (consecutive or not); and
(b) each of those days satisfies the following requirements:
(i) the day is on or after 1 July 2017 and before the CGT
event time;
(ii) the residential dwelling asset was used on the day to
*provide affordable housing.

12-451 Transitional—MIT residential housing income

(1) This section applies if:
(a) an amount (the relevant amount) is included in the
assessable income for an income year of a *managed
investment trust in relation to the income year (worked out
for the purposes of determining the trust’s *net income, or in
the case of an *AMIT, the trust’s total assessable income, for
the income year); and
(b) the relevant amount would be *MIT residential housing
income (disregarding this section) of the *managed
investment trust because it is attributable to a facility that
consists of or contains a *residential dwelling asset; and
(c) the managed investment trust derived, received or made the
relevant amount before 1 October 2027; and
(d) if the managed investment trust derived, received or made the
relevant amount because the managed investment trust held
the facility:

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(i) the managed investment trust held the facility just

before the time mentioned in subsection (7); or
(ii) before the time mentioned in subsection (7), the
managed investment trust entered into a contract for the
*acquisition, creation or lease of the facility; and

(e) if the managed investment trust derived, received or made the

relevant amount because another entity (the second entity)
held the facility:
(i) the second entity held the facility just before the time
mentioned in subsection (7); or
(ii) before the time mentioned in subsection (7), the second
entity entered into a contract for the acquisition,
creation or lease of the facility; and
(f) if paragraph (e) applies—immediately before the time
mentioned in subsection (7), the managed investment trust
held a *total participation interest (the pre-announcement
TPI) of greater than nil in the second entity.
(2) If paragraph (1)(d) applies, treat the relevant amount as not being
*MIT residential housing income of the *managed investment trust.

(3) If paragraph (1)(e) applies, treat part of the relevant amount as not
being *MIT residential housing income of the *managed
investment trust.
(4) That part is equal to the relevant amount multiplied by the fraction
worked out under subsections (5) and (6).
(5) If the *total participation interest (the post-announcement TPI)
held by the *managed investment trust in the second entity at the
end of the most recent income year ending before it derived,
received or made the relevant amount exceeds the
pre-announcement TPI, work out that fraction by dividing:
(a) the pre-announcement TPI;
by:
(b) the post-announcement TPI.
(6) Otherwise, the fraction is 1.
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-452

(7) The time is 4.30 pm, by legal time in the Australian Capital
Territory, on 14 September 2017.

12-452 Meaning of residential dwelling asset

(1) A residential dwelling asset is an asset that:
(a) is a *dwelling; and
(b) is *taxable Australian real property; and
(c) is *residential premises (other than *commercial residential
premises); and
(d) is not a dwelling that:
(i) is used primarily to provide specialist disability
accommodation (within the meaning of the National
Disability Insurance Scheme (Specialist Disability
Accommodation Conditions) Rule 2018); and
(ii) is enrolled in accordance with section 6 of that Rule;
and
(e) is not a dwelling that:
(i) is used primarily to provide disability accommodation;
and
(ii) is a dwelling of a kind prescribed by the regulations for
the purposes of this subparagraph.
(2) Section 118-120 (Extension to adjacent land) applies in relation to
this section in the same way as it applies in relation to
Subdivision 118-B.
(3) To avoid doubt, for the purposes of applying section 118-120 in
relation to this section, a *dwelling’s *adjacent land may include
land used primarily for private or domestic purposes in association
with the dwelling and with one or more other dwellings.

12-453 MIT agricultural income and MIT residential housing

income—capital gains in relation to membership interests
(1) Subsection (2) applies if:

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-453

(a) any of the following provisions apply in relation to an

amount:
(i) section 12-448;
(ii) section 12-450; and
(b) the amount is, or is attributable to, a *capital gain from a
*CGT event in relation to an asset that is a *membership
interest in an entity; and
(c) just before the CGT event happened, the entity held, directly
or indirectly, one or more assets that are any of the following;
(i) *Australian agricultural land for rent;
(ii) a *residential dwelling asset.
(2) For the purposes of subsections 12-448(2) and 12-450(2):
(a) in a case where the *membership interest mentioned in
subsection (1) passes the principal asset test in
section 855-30 of the Income Tax Assessment Act 1997
immediately before the time the *CGT event happens:
(i) if the assets mentioned in paragraph (1)(c) are all
*Australian agricultural land for rent—treat the *capital
gain as being wholly attributable to the Australian
agricultural land for rent; or
(ii) if the assets mentioned in paragraph (1)(c) are all
*residential dwelling assets—treat the capital gain as
being wholly attributable to residential dwelling assets;
or
(iii) if all the assets mentioned in paragraph (1)(c) are
Australian agricultural land for rent and residential
dwelling assets, and the *market value of the
membership interest that is attributable to Australian
agricultural land for rent equals or exceeds the market
value of the membership interest that is attributable to
residential dwelling assets—treat the capital gain as
being wholly attributable to Australian agricultural land
for rent; or
(iv) if all the assets mentioned in paragraph (1)(c) are
Australian agricultural land for rent and residential
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12-460

dwelling assets, and the market value of the

membership interest that is attributable to Australian
agricultural land for rent falls short of the market value
of the membership interest that is attributable to
residential dwelling assets—treat the capital gain as
being wholly attributable to residential dwelling assets;
or
(b) in any other case—treat the capital gain:
(i) as not being attributable to Australian agricultural land
for rent; and
(ii) as not being attributable to residential dwelling assets.
(3) For the purposes of subsection (2), in determining whether the
*membership interest passes the principal asset test, treat references
in section 855-30 of the Income Tax Assessment Act 1997 to
*taxable Australian real property as instead being references to an
asset that is any of the following:
(a) *Australian agricultural land for rent;
(b) a *residential dwelling asset.
(4) For the purposes of this section, in working out the *market value
of an asset, work out that market value just before the time the
*CGT event mentioned in paragraph (1)(b) happens.

Subdivision 12-J—FHSS released amounts

Table of sections
12-460 FHSS released amounts

12-460 FHSS released amounts

The Commissioner must withhold an amount from the *FHSS
released amounts paid in respect of a person.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12A-1

Division 12A—Distributions by AMITs (including deemed

payments)

Table of Subdivisions
Guide to Division 12A
12A-A Distributions by AMITs relating to dividend, interest and
royalties
12A-B Distributions by AMITs relating to Subdivision 12-H fund
payments
12A-C Deemed payments by AMITs etc.

Guide to Division 12A

12A-1 What this Division is about

When a withholding MIT that is an AMIT gives a member an

AMMA statement, the trustee is deemed to have made a payment
to the member.

The deemed payment can flow through one or more custodians,

giving rise to subsequent deemed payments.

Withholding liabilities under Subdivisions 12-F and 12-H do not

apply in relation to deemed payments (although analogous
liabilities may arise under Subdivision 12A-C).

AMIT trustees, custodians and other entities may be required to

give notices etc. to recipients of such deemed payments.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12A-5

Subdivision 12A-A—Distributions by AMITs relating to

dividend, interest and royalties
Guide to Subdivision 12A-A

12A-5 What this Subdivision is about

Withholding liabilities under Subdivision 12-F do not apply in

relation to deemed payments arising under Subdivision 12A-C
relating to dividends, interest or royalties (although analogous
liabilities may arise under Subdivision 12A-C).

AMIT trustees, custodians and other entities may be required to

give notices etc. to recipients of such deemed payments.

Table of sections
Operative provisions
12A-10 Deemed payments—no obligation to withhold under Subdivision 12-F
(dividend, interest and royalty payments)
12A-15 Dividend, interest or royalty payments relating to AMIT—requirement to
give notice or make information available
12A-20 Failure to give notice or make information available under section 12A-15:
administrative penalty
12A-25 Meaning of AMIT DIR payment
12A-30 Meaning of AMIT dividend payment
12A-35 Meaning of AMIT interest payment
12A-40 Meaning of AMIT royalty payment

Operative provisions

12A-10 Deemed payments—no obligation to withhold under

Subdivision 12-F (dividend, interest and royalty
payments)
(1) If the entity that receives a payment as mentioned in
subsection 12-215(1), 12-250(1) or 12-285(1) is the trustee of an
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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*AMIT, the entity need not withhold an amount under that

subsection from the payment if the payment arises because of the
operation of section 12A-205 (deemed payments).
Note: The trustee may have to pay the Commissioner an amount in respect
of the deemed payment (see Subdivision 12A-C).

(2) Subsection (3) applies if:

(a) the entity that receives a payment as mentioned in
subsection 12-215(1), 12-250(1) or 12-285(1) is a *custodian;
and
(b) it received the payment from an *AMIT.
(3) The entity need not withhold an amount under that subsection from
the payment mentioned in that subsection if:
(a) the payment arises because of the operation of
section 12A-205 (deemed payments); or
(b) the payment is a *post-AMMA actual payment in respect of a
payment that so arises.
Note: Either or both of the trustee of the AMIT concerned and the custodian
may have to pay the Commissioner an amount in respect of the
deemed payment (see Subdivision 12A-C).

(4) Disregard this section for the purposes of section 12A-15.

12A-15 Dividend, interest or royalty payments relating to AMIT—

requirement to give notice or make information available

AMITs and custodians

(1) An entity that is an *AMIT 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 Subdivision 12-F if:
(i) the entity were a company; and
(ii) the payment had been made to a foreign resident; and

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(iii) the condition in either or both of paragraphs 12-210(a)

or (b), of paragraphs 12-245(a) or (b) or of paragraphs
12-280(a) or (b) (as the case requires) were satisfied;
and
(b) an amount is not required to be withheld from the payment
because:
(i) the recipient is not a foreign resident; or
(ii) the recipient is a foreign resident carrying on business in
Australia at or through a permanent establishment
(within the meaning of subsection 128B(3F) of the
Income Tax Assessment Act 1936) of the recipient in
Australia, and the payment is attributable to the
permanent establishment; and
(c) the payment is any of the following:
(i) a payment that arises because of the operation of
section 12A-205 (deemed payments);
(ii) a *pre-AMMA actual payment in respect of a payment
that so arises.
(2) The entity must:
(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 *AMIT 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 12A-20.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Other entities
(4) An entity that is not an *AMIT or a *custodian must comply with
subsection (5) if:
(a) the entity receives a payment; and
(b) another entity (the subsequent recipient) is or becomes
entitled:
(i) to receive from the entity; or
(ii) to have the entity credit to the subsequent recipient, or
otherwise deal with on the subsequent recipient’s behalf
or as the subsequent recipient directs;
an amount attributable to the payment; and
(c) the entity would have been required to withhold an amount
from the payment under subsection 12-215(1), 12-250(1) or
12-285(1) if the subsequent recipient had been a foreign
resident; and
(d) an amount is not required to be withheld from the payment
because:
(i) the subsequent recipient is not a foreign resident; or
(ii) the subsequent recipient is a foreign resident carrying on
business in Australia at or through a permanent
establishment (within the meaning of
subsection 128B(3F) of the Income Tax Assessment Act
1936) of the subsequent recipient in Australia, and the
payment is attributable to the permanent establishment;
and
(e) the payment is any of the following:
(i) a payment that arises because of the operation of
section 12A-205 (deemed payments);
(ii) a *pre-AMMA actual payment in respect of a payment
that so arises.
(5) The entity must:
(a) give to the subsequent recipient a written notice containing
the details specified in subsection (6); or

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12A-20

(b) make those details available on a website in a way that the

details are readily accessible to the subsequent 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 subsequent recipient, or is dealt with on the subsequent
recipient’s behalf or as the subsequent 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 *AMIT 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 12A-20.

12A-20 Failure to give notice or make information available under

section 12A-15: administrative penalty
An entity that:
(a) is required to give a notice, or make details available on a
website, under section 12A-15 in relation to:
(i) a payment made to another entity; or
(ii) an amount paid or credited to, or dealt with on behalf of
or as directed by, another entity; and
(b) fails to comply with that section;
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 section 12-300) 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.

12A-25 Meaning of AMIT DIR payment

An AMIT DIR payment means any of the following:
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12A-30

(a) an *AMIT dividend payment;

(b) an *AMIT interest payment;
(c) an *AMIT royalty payment.

12A-30 Meaning of AMIT dividend payment

(1) This section applies to a trust that is an *AMIT for an income year.
(2) The object of this section is to ensure that the total of the *AMIT
dividend payments that the trustee of the *AMIT makes in relation
to the income year equals, as nearly as practicable, the amount
mentioned in subsection (3).
(3) The amount is the total of the *determined member components for
the *AMIT for the income year of the character of a dividend (as
defined in Division 11A of Part III of the Income Tax Assessment
Act 1936) that is subject to a requirement to withhold under
Subdivision 12-F.
(4) A payment (the actual or deemed payment) that the trustee of a
trust makes in relation to an income year is an AMIT dividend
payment in relation to that year. However, the amount of the
AMIT dividend payment is worked out under the following
method statement, and may be:
(a) the amount of the actual or deemed payment; or
(b) the amount of the actual or deemed payment, increased or
reduced as a result of the method statement.
Note: The payment by the trustee may be an actual payment, or a deemed
payment under section 12A-205.

Method statement

Step 1. Work out what it is reasonable to expect will be the

amount mentioned in subsection (3).

Step 2. The AMIT dividend payment is so much of the step 1

amount as is reasonable having regard to:

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12A-35

(a) the object of this section; and

(b) the amounts of any earlier AMIT dividend

payments made by the trustee in relation to the
income year; and

(c) the expected amounts of any later AMIT dividend

payments the trustee expects to make in relation to
the income year.

(5) The amount mentioned in subsection (3) and the expected amounts
of any later *AMIT dividend payments are to be worked out on the
basis of the trustee’s knowledge when the payment is made.
(6) Subsection (5) does not apply if the payment is a payment arising
because of the operation of section 12A-205 (deemed payments).
(7) However, the payment is not an AMIT dividend payment in
relation to the income year if:
(a) the payment is a *post-AMMA actual payment in respect of
another payment; and
(b) the other payment arises because of the operation of
section 12A-205; and
(c) the other payment is an AMIT dividend payment.

12A-35 Meaning of AMIT interest payment

(1) This section applies to a trust that is an *AMIT for an income year.
(2) The object of this section is to ensure that the total of the *AMIT
interest payments that the trustee of the *AMIT makes in relation to
the income year equals, as nearly as practicable, the amount
mentioned in subsection (3).
(3) The amount is the total of the *determined member components for
the *AMIT for the income year of the character of interest (as
defined in Division 11A of Part III of the Income Tax Assessment

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12A-40

Act 1936) that is subject to a requirement to withhold under

Subdivision 12-F.
(4) To work out the amount of an AMIT interest payment, apply
subsections 12A-30(4), (5), (6) and (7). For this purpose:
(a) treat references in those subsections to AMIT dividend
payments as instead being references to AMIT interest
payments; and
(b) treat the reference in subsection 12A-30(4) to “the amount
mentioned in subsection (3)” as instead being a reference to
“the amount mentioned in subsection 12A-35(3)”.

12A-40 Meaning of AMIT royalty payment

(1) This section applies to a trust that is an *AMIT for an income year.
(2) The object of this section is to ensure that the total of the *AMIT
royalty payments that the trustee of the *AMIT makes in relation to
the income year equals, as nearly as practicable, the amount
mentioned in subsection (3).
(3) The amount is the total of the *determined member components for
the *AMIT for the income year of the character of a *royalty that is
subject to a requirement to withhold under Subdivision 12-F.
(4) To work out the amount of an AMIT royalty payment, apply
subsections 12A-30(4), (5), (6) and (7). For this purpose:
(a) treat references in those subsections to AMIT dividend
payments as instead being references to AMIT royalty
payments; and
(b) treat the reference in subsection 12A-30(4) to “the amount
mentioned in subsection (3)” as instead being a reference to
“the amount mentioned in subsection 12A-40(3)”.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12A-100

Subdivision 12A-B—Distributions by AMITs relating to

Subdivision 12-H fund payments
Guide to Subdivision 12A-B

12A-100 What this Subdivision is about

Withholding liabilities under Subdivision 12-H do not apply in

relation to deemed payments arising under Subdivision 12A-C
analogous to fund payments under Subdivision 12-H (although
analogous liabilities may arise under Subdivision 12A-C).

AMIT trustees, custodians and other entities may be required to

give notices etc. to recipients of such deemed payments.

Table of sections
Operative provisions
12A-105 Deemed payments—no obligation to withhold under Subdivision 12-H
12A-110 Meaning of fund payment—AMITs

Operative provisions

12A-105 Deemed payments—no obligation to withhold under

Subdivision 12-H
(1) The trustee mentioned in subsection 12-385(1) need not withhold
an amount under that subsection from the payment mentioned in
that subsection if the payment arises because of the operation of
section 12A-205 (deemed payments).
Note: The trustee may have to pay the Commissioner an amount in respect
of the deemed payment (see Subdivision 12A-C).

(2) The *custodian mentioned in subsection 12-390(1) need not

withhold an amount under that subsection from the later payment
mentioned in that subsection if:
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(a) the later payment arises because of the operation of

section 12A-205 (deemed payments); or
(b) the later payment is a *post-AMMA actual payment in
respect of a payment of a kind mentioned in paragraph (a).
Note: Either or both of the trustee of the AMIT concerned and the custodian
may have to pay the Commissioner an amount in respect of the
deemed payment (see Subdivision 12A-C).

(3) The entity mentioned in subsection 12-390(4) need not withhold an

amount under that subsection from the payment mentioned in that
subsection if:
(a) the payment arises because of the operation of
section 12A-205 (deemed payments); or
(b) the payment is a *post-AMMA actual payment in respect of a
payment of a kind mentioned in paragraph (a).
Note: The entity may have to pay the Commissioner an amount in respect of
the deemed payment (see Subdivision 12A-C).

(4) Disregard this section for the purposes of section 12-395.

12A-110 Meaning of fund payment—AMITs

(1) This section applies to a trust that is an *AMIT for an income year.
(2) The object of this section is to ensure that the total of the *fund
payments that the trustee of the *AMIT makes in relation to the
income year equals, as nearly as practicable, the amount mentioned
in subsection (3).
(3) The amount is the sum of the following amounts:
(a) total of the *determined member components for the *AMIT
for the income year of a character relating to assessable
income, disregarding determined member components (the
excluded components) of any of the following characters:
(i) the character of a *discount capital gain from a *CGT
asset that is not *taxable Australian property;

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(ii) the character of a *capital gain (other than a discount

capital gain) from a CGT asset that is not taxable
Australian property;
(iii) the character of 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;
(iv) the character of interest (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;
(v) the character of a *royalty that is subject to, or exempted
from, a requirement to withhold under
Subdivision 12-F;
(vi) the character of *ordinary income, or *statutory income,
from a source other than an *Australian source;
(vii) if a legislative instrument under subsection (4) specifies
a character—that character;
(b) the total of each *capital loss of the AMIT from a *CGT
event that:
(i) happened in the income year to a CGT asset that is not
taxable Australian property; and
(ii) has been applied against a capital gain from a CGT
event that happened in relation to a CGT asset that is
taxable Australian property;
but only to the extent that each such capital loss has been so
applied in the income year;
(c) the total of each amount to which subsection (3A) applies in
relation to the income year.
(3A) If:
(a) the AMIT has a *net capital loss for an earlier income year;
and
(b) one or more of the *capital losses the trust made during that
earlier income year were from *CGT events that happened in

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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relation to *CGT assets that were not *taxable Australian

property; and
(c) in relation to the income year mentioned in paragraph (3)(c),
some or all of the net capital loss is applied against a *capital
gain from a CGT event that happens in relation to a CGT
asset that is taxable Australian property;
this subsection applies, for the income year mentioned in
paragraph (3)(c), to an amount equal to so much of the net capital
loss that is so applied as related to capital losses mentioned in
paragraph (b) of this subsection.
(4) The Commissioner may, by legislative instrument, specify one or
more characters for the purposes of subparagraph (3)(a)(vii).
(5) A payment (the actual or deemed payment) that the trustee of a
trust makes in relation to an income year is a fund payment in
relation to that year. However, the amount of the fund payment is
worked out under the following method statement, and may be:
(a) the amount of the actual or deemed payment; or
(b) the amount of the actual or deemed payment, increased or
reduced as a result of the method statement.
Note: The payment by the trustee may be an actual payment, or a deemed
payment under section 12A-205.

Method statement

Step 1. Reduce the actual or deemed payment by so much of it

that is attributable to the excluded components.

Step 2. Work out what it is reasonable to expect will be the

amount mentioned in subsection (3).

Do so on the basis that a *capital gain from *taxable

Australian property of the trust that was or would be
reduced under step 3 of the method statement in
subsection 102-5(1) of the Income Tax Assessment Act
1997 were double the amount it actually is.
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Step 3. The fund payment is so much of the step 2 amount as is

reasonable having regard to:

(a) the object of this section; and

(b) the step 1 amount; and

(c) the amounts of any earlier fund payments made by

the trustee in relation to the income year; and

(d) the expected amounts of any later fund payments

the trustee expects to make in relation to the
income year.

(6) The amount mentioned in subsection (3) and the expected amounts
of any later *fund payments are to be worked out on the basis of
the trustee’s knowledge when the payment is made.
(7) Subsection (6) does not apply if the payment is a payment arising
because of the operation of section 12A-205 (deemed payments).
(8) However, the payment is not a fund payment in relation to the
income year if:
(a) the payment (the actual payment) is a *post-AMMA actual
payment in respect of another payment; and
(b) the other payment arises because of the operation of
section 12A-205; and
(c) the other payment is a fund payment.
(9) An amount is also not a fund payment in relation to the income
year unless it is paid:
(a) during the income year; or
(b) within 3 months after the end of the income year; or
(c) within a longer period (starting at the end of the period
referred to in paragraph (b) and not exceeding 3 years)
allowed by the Commissioner.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12A-200

(10) The Commissioner may allow a longer period as mentioned in

paragraph (9)(c) only if the Commissioner is of the opinion that:
(a) if the other payment arises at a time because of the operation
of section 12A-205 (deemed payments)—the *AMIT
complied with subsection 276-455(1) of the Income Tax
Assessment Act 1997 in respect of the income year
(requirement to give AMMA statements within 3 months); or
(b) otherwise—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.

Subdivision 12A-C—Deemed payments by AMITs etc.

Guide to Subdivision 12A-C

12A-200 What this Subdivision is about

When a withholding MIT that is an AMIT gives a member an

AMMA statement, the trustee is deemed to have made a payment
to the member.

The payment is generally the sum of the determined member

components reflected in the statement that are of a character
relating to assessable income, reduced by any previous actual
payments related to those components.

The deemed payment can flow through one or more custodians,

giving rise to subsequent deemed payments.

Table of sections
Operative provisions
12A-205 Issue of AMMA statement etc. deemed to be payment
12A-210 Post-AMMA actual payment and pre-AMMA actual payment in respect of
deemed payment

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12A-205

12A-215 AMIT payment to the Commissioner in respect of deemed payments to

offshore entities etc.
12A-220 Custodian payment to the Commissioner in respect of deemed payments to
offshore entities etc.

Operative provisions

12A-205 Issue of AMMA statement etc. deemed to be payment

(1) This section applies if:
(a) an entity (the first recipient) is or was a *member of a
*withholding MIT in respect of an income year; and

(b) the withholding MIT is an *AMIT for the income year; and
(c) the AMIT gives the first recipient an *AMMA statement for
the income year.
(2) For the purposes of this Part, Subdivision 840-M of the Income Tax
Assessment Act 1997 and Division 11A of Part III of the Income
Tax Assessment Act 1936:
(a) treat the trustee of the *AMIT as having made a payment (the
first deemed payment) of an amount to the first recipient at
the time the AMIT gave the first recipient the *AMMA
statement; and
(b) treat the amount of the first deemed payment as being the
amount worked out as follows:
(i) first, work out the total of all the *determined member
components of all the *members of the AMIT of a
character relating to assessable income for the income
year;
(ii) next, identify each of the *pre-AMMA actual payments
(if any) made to those members in respect of all
payments by the trustee to those members that arise
from the operation of paragraph (a);
(iii) next, identify every *AMIT DIR payment (if any) and
each *fund payment (if any) that arises from each such
pre-AMMA actual payment;

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12A-205

(iv) next, reduce the result of subparagraph (i) by the sum of

each such AMIT DIR payment and fund payment;
(v) next, work out how much of the result of
subparagraph (iv) is referable to the first recipient.
(3) Also, for the purposes of Division 11A of Part III of the Income
Tax Assessment Act 1936, treat the first recipient as having derived
the first deemed payment just before the end of the income year to
which the *AMMA statement relates.
(4) Subsection (5) applies if:
(a) the first recipient is a *custodian; and
(b) another entity (the subsequent recipient):
(i) starts to have, at a time, an entitlement to an amount that
is reasonably attributable to all or part of the first
deemed payment; or
(ii) would start to have, at a time, such an entitlement if the
first deemed payment were an actual payment of an
amount.
(5) For the purposes of this Part, Subdivision 840-M of the Income Tax
Assessment Act 1997 and Division 11A of Part III of the Income
Tax Assessment Act 1936:
(a) treat the first recipient as having made a payment (the
subsequent deemed payment) of an amount to the
subsequent recipient at that time; and
(b) treat the amount of the subsequent deemed payment as being
the amount of the entitlement mentioned in
subparagraph (4)(b)(i) or (ii); and
(c) treat the amount of the subsequent deemed payment as being
attributable to the first deemed payment.
(6) Also, for the purposes of Division 11A of Part III of the Income
Tax Assessment Act 1936, treat the subsequent recipient as having
derived the subsequent deemed payment at the time the subsequent
deemed payment arises.
(7) If:
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(a) an entity is a subsequent recipient mentioned in

subsection (4) (including as a result of a previous operation
of this subsection); and
(b) subsection (5) applies with the result that a payment is treated
as having been made to the entity; and
(c) the entity is a *custodian;
apply subsections (4), (5) and (6) again as if the entity were the
first recipient mentioned in subsection (4).
Note: This means that the entity is treated under subsection (5) as having
made a payment to another entity if the other entity has (or would
have) an entitlement as mentioned in paragraph (4)(b).

12A-210 Post-AMMA actual payment and pre-AMMA actual payment

in respect of deemed payment
(1) A payment that does not arise because of the operation of
section 12A-205 is a post-AMMA actual payment in respect of a
payment (the deemed payment) that does arise because of the
operation of that section if:
(a) the payment and the deemed payment are both attributable to
the same *member component for the *AMIT mentioned in
that section; and
(b) the actual payment is made at or after the time the deemed
payment arises.
(2) A payment that does not arise because of the operation of
section 12A-205 is a pre-AMMA actual payment in respect of a
payment (the deemed payment) that does arise because of the
operation of that section if:
(a) the payment and the deemed payment are both attributable to
the same *member component for the *AMIT mentioned in
that section; and
(b) the actual payment is made before the time the deemed
payment arises.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12A-215

12A-215 AMIT payment to the Commissioner in respect of deemed

payments to offshore entities etc.
(1) A trustee of a trust that is an *AMIT for an income year must pay
an amount to the Commissioner if:
(b) the trustee makes a payment (the deemed payment) that
arises because of the operation of section 12A-205; and
(c) the payment is made to an entity (the recipient) that is:
(i) if the payment is a *fund payment and the trust is a
*withholding MIT in relation to the income year—an
entity covered by section 12-410; or
(ii) if the payment is an *AMIT DIR payment made in
relation to the income year—an entity that is not an
Australian resident.
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
subparagraph (c)(i) or (ii), 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 sections 12-395 and 12A-15.

(2) The amount that the trustee must pay is equal to the amount that
the trustee would, if the assumptions in subsection (3) were made,
have had to withhold under:
(a) if the deemed payment is a *fund payment—section 12-385;
or
(b) if the deemed payment is an *AMIT DIR payment—
section 12-210, 12-245 or 12-280.
(3) The assumptions are that:
(a) the deemed payment had not arisen because of the operation
of section 12A-205; and
(b) the deemed payment had instead been an actual payment; and
(c) if the deemed payment is an *AMIT DIR payment:
(i) where it corresponds to the character of a dividend (as
defined in Division 11A of Part III of the Income Tax
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12A-220

Assessment Act 1936) that is subject to a requirement to

withhold under Subdivision 12-F—the trust had been a
company, and it had paid it as a dividend; or
(ii) where it corresponds to the character of interest (as
defined in Division 11A of Part III of the Income Tax
Assessment Act 1936) that is subject to a requirement to
withhold under Subdivision 12-F—it were the payment
of interest; or
(iii) where it corresponds to the character of a *royalty that is
subject to a requirement to withhold under
Subdivision 12-F—it were the payment of a royalty; and
(d) if the deemed payment is an AMIT DIR payment—the
condition in either or both of paragraphs 12-210(a) or (b), of
paragraphs 12-245(a) or (b) or of paragraphs 12-280(a) or (b)
(as the case requires) were satisfied.
(4) The trustee may recover from the recipient as a debt an amount that
the trustee has paid to the Commissioner under subsection (1).
(5) The trustee is entitled to set off an amount that the trustee can
recover from the recipient under subsection (4) against debts due
by the trustee to the recipient.

12A-220 Custodian payment to the Commissioner in respect of

deemed payments to offshore entities etc.
(1) A *custodian must pay an amount to the Commissioner if:
(a) the trustee of a trust that was an *AMIT for an income year
and was a *withholding MIT in relation to the income year
made a payment (the first deemed payment) that:
(i) arose because of the operation of section 12A-205; and
(ii) was a *fund payment or an *AMIT DIR payment; and
(b) the custodian makes a payment (the subsequent deemed
payment) that arises because of the operation of
section 12A-205; and

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 12A-220

(c) the first deemed payment gave rise to the subsequent deemed
payment, because of one or more operations of
section 12A-205; and
(d) the subsequent deemed payment or part of it (the covered
part) was covered by a notice or information under:
(i) if the first deemed payment was a fund payment—
section 12-395; or
(ii) if the first deemed payment was an AMIT DIR
payment—section 12A-15; and
(e) the subsequent deemed payment is made to an entity (the
recipient) that is:
(i) if the first deemed payment was a fund payment—
covered by section 12-410; or
(ii) if the first deemed payment was an AMIT DIR
payment—not an Australian resident.
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
subparagraph (e)(i) or (ii), 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 sections 12-395 and 12A-15.

(2) The amount that the *custodian must pay is the amount that the
custodian would, if the assumptions in subsection (3) were made,
have had to withhold under:
(a) if the first deemed payment was a *fund payment—
subsection 12-390(1); or
(b) if the first deemed payment was an *AMIT DIR payment—
section 12-210, 12-245 or 12-280.
(3) The assumptions are that:
(a) the subsequent deemed payment had not arisen because of
the operation of section 12A-205; and
(b) the subsequent deemed payment had instead been an actual
payment; and
(c) if the first deemed payment was an *AMIT DIR payment:
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(i) where the first deemed payment corresponded to the

character of a dividend (as defined in Division 11A of
Part III of the Income Tax Assessment Act 1936) that is
subject to a requirement to withhold under
Subdivision 12-F—the *custodian had been a company,
and it had paid the subsequent deemed payment as a
dividend; or
(ii) where the first deemed payment corresponded to the
character of interest (as defined in Division 11A of
Part III of the Income Tax Assessment Act 1936) that is
subject to a requirement to withhold under
Subdivision 12-F—the subsequent deemed payment
were the payment of interest; or
(iii) where the first deemed payment corresponded to the
character of a *royalty that is subject to a requirement to
withhold under Subdivision 12-F—the subsequent
deemed payment were the payment of a royalty; and
(d) if the first deemed payment was an AMIT DIR payment—the
condition in either or both of paragraphs 12-210(a) or (b), of
paragraphs 12-245(a) or (b) or of paragraphs 12-280(a) or (b)
(as the case requires) were satisfied.
(4) The *custodian may recover from the recipient as a debt an amount
that the custodian has paid to the Commissioner under
subsection (1).
(5) The *custodian is entitled to set off an amount that the custodian
can recover from the recipient under subsection (4) against debts
due by the custodian to the recipient.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 13-1

Division 13—Alienated personal services payments

Table of sections
13-1 Object of this Division
13-5 Payment to the Commissioner in respect of alienated personal services
payments
13-10 Alienated personal services payments
13-15 Personal services payment remitters
13-20 Time for payments to Commissioner for alienated personal services
payments made during 2000-01

13-1 Object of this Division

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

Obligation to pay amounts

(1) A *personal services entity must pay an amount of tax to the
Commissioner if:
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(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.

Working out the amounts

(2) Use this method statement to work out the amount:

Method statement

Step 1. Identify the payments that the *personal services entity

makes to the individual during the period mentioned in
paragraph (1)(b) that are *withholding payments covered
by section 12-35.

Step 2. Identify the amounts that:

(a) are included in the individual’s assessable income

under section 86-15 of the Income Tax Assessment
Act 1997; and

(b) relate to *alienated personal services payments the

entity receives during that period.

Step 3. Work out the sum of all the amounts that Division 12
would require the entity to withhold in respect of that
period if both of these were taken into account:

(a) the payments identified in step 1; and

(b) the amounts identified in step 2, as if they were

payments of salary covered by section 12-35.

Step 4. Work out the sum of all the amounts withheld under
section 12-35 from the payments identified in step 1.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 13-5

Step 5. Subtract the sum under step 4 from the sum under step 3.

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:
$4, 000  $500  $3, 500

(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.

(4) If:
(a) the *personal services entity is a *deferred BAS payer on the
21st day after the end of the *PAYG payment period; and
(b) the personal services entity’s PAYG payment period is a
*quarter;

the entity must pay that amount to the Commissioner as shown in

the table:

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 13-10

Payments by *deferred BAS payers

Item If paragraph (4)(a) the amount for this quarter
applies to the must be paid by the end of:
*quarter ending on:

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) If:
(a) the *personal services entity is a *deferred BAS payer on the
21st day after the end of the *PAYG payment period; and
(b) the personal services entity’s PAYG payment period is a
month;
the entity must pay that amount to the Commissioner:
(c) by the end of the 28th day of the month following that period
unless the PAYG payment period is a December; or
(d) by the end of the 28th day of the next February if the PAYG
payment period is a December.

13-10 Alienated personal services payments

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:
(a) is included in an individual’s assessable income under
Division 86 of the Income Tax Assessment Act 1997; or
(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.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 13-15

13-15 Personal services payment remitters

General
(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
(b) the entity was not conducting a *personal services business.

Businesses not previously receiving personal services income

(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.

Personal services business determinations taking effect

(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
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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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
(1) Subject to subsection (2), if:
(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.
(2) If:
(a) the *personal services entity is a *deferred BAS payer on the
21st day after the end of the *quarter; and
(b) the quarter ends on 31st March or 30th June of 2001;
the payment must be paid to the Commissioner by the end of the
28th day after the end of that quarter.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 14-1

Division 14—Benefits, gains and taxable supplies for which

amounts must be paid to the Commissioner

Table of sections
14-1 Object of this Subdivision
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
14-15 Payer can recover amount paid to the Commissioner
14-50 Object of this Subdivision
14-55 Liability for TFN withholding tax
14-60 Investment body may recover TFN withholding tax from investor
14-65 Application of rules in Division 18
14-75 Overpayment of TFN withholding tax
14-85 Other laws do not exempt from TFN withholding tax

Subdivision 14-A—Non-cash benefits

14-1 Object of this Subdivision

The object of this Subdivision is:
(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.

14-5 Provider of non-cash benefit must pay amount to the

Commissioner if payment would be subject to
withholding
(1) An entity (the payer) must pay an amount to the Commissioner
before providing a *non-cash benefit to another entity (the
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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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.

(3) This section does not apply to providing:

(a) a *fringe benefit; or
(b) a benefit that is an exempt benefit under the Fringe Benefits
Tax Assessment Act 1986; or
(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.

14-10 Dividend, interest or royalty received, for a foreign resident,

in the form of a non-cash benefit
If:
(a) an entity (the payer) receives in the form of a *non-cash
benefit:
(i) a *dividend of a company; or

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(ii) interest (within the meaning of Division 11A of Part III

of the Income Tax Assessment Act 1936); or
(iii) a *royalty; and
(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.

14-15 Payer can recover amount paid to the Commissioner

(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.

Subdivision 14-B—Accruing gains

14-50 Object of this Subdivision

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.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 14-55

14-55 Liability for TFN withholding tax

(1) *TFN withholding tax is payable if:
(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
(b) the investment:
(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
(c) the term of the investment does not end during the income
year; 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.

(2) The amount of *TFN withholding tax is equal to the TFN

withholding amount.
(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:

(a) the *TFN withholding tax is payable by the *investor; and

(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).
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Pay as you go (PAYG) withholding Part 2-5

Section 14-60

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

14-60 Investment body may recover TFN withholding tax from

investor
(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:
(a) a debt due by it to the investor; or
(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.

14-65 Application of rules in Division 18

These provisions:
(a) subsection 18-15(1) and sections 18-20 and 18-25 (about
credits for amounts withheld from withholding payments);
and
(b) section 18-80 (about refunds when exemption declaration not
given);

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Part 2-5 Pay as you go (PAYG) withholding

Section 14-75

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.

14-75 Overpayment of TFN withholding tax

If *TFN withholding tax has been overpaid:
(a) the Commissioner must refund the amount overpaid; and
(b) the *investor is not entitled to a credit under section 18-15,
18-20 or 18-25 in respect of the amount overpaid.

14-85 Other laws do not exempt from TFN withholding tax

(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.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 14-155

Subdivision 14-C—Shares and rights under employee share

schemes

Table of sections
14-155 Liability for TFN withholding tax (ESS)
14-160 Employer may give individual tax file numbers to provider
14-165 Provider may recover TFN withholding tax (ESS) from individual
14-170 Application of rules in Division 18
14-175 Overpayment of TFN withholding tax (ESS)
14-180 Application of certain provisions of Division 83A of the Income Tax
Assessment Act 1997

14-155 Liability for TFN withholding tax (ESS)

(1) Tax (TFN withholding tax (ESS)) imposed by the Income Tax
(TFN Withholding Tax (ESS)) Act 2009 is payable if:
(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
(c) the individual has quoted neither of the following to the
provider before the end of the income year:
(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;
(ii) in any case—the individual’s *tax file number.
(2) For the purposes of paragraph (1)(b), disregard sections 83A-33
and 83A-35 of the Income Tax Assessment Act 1997 (about
reducing the amount included in the individual’s assessable
income).

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 14-160

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.

(3) The *TFN withholding tax (ESS) is payable by the provider.

(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.

14-160 Employer may give individual tax file numbers to provider

(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.

14-165 Provider may recover TFN withholding tax (ESS) from

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

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 14-170

(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.

14-170 Application of rules in Division 18

These provisions:
(a) subsection 18-15(1) (about credits for amounts withheld from
withholding payments); and
(b) sections 18-65 and 18-70 (about refunds of amounts withheld
in error);
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.

14-175 Overpayment of TFN withholding tax (ESS)

If *TFN withholding tax (ESS) has been overpaid:
(a) the Commissioner must refund the amount overpaid; and
(b) the individual is not entitled to a credit under section 18-15 in
respect of the amount overpaid.

14-180 Application of certain provisions of Division 83A of the

Income Tax Assessment Act 1997
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:
(a) section 83A-130 (about takeovers and restructures);
(b) section 83A-305 (about associates);
(c) section 83A-320 (about trusts);
(d) section 83A-325 (about relationships similar to employment);
(e) section 83A-335 (about stapled securities);
(f) section 83A-340 (about indeterminate rights).

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Part 2-5 Pay as you go (PAYG) withholding

Section 14-200

Subdivision 14-D—Capital proceeds involving foreign residents

and taxable Australian property

Table of sections
14-200 Certain acquisitions of taxable Australian property from foreign residents
14-205 Effect of look-through earnout rights
14-210 Whether an entity is a relevant foreign resident
14-215 Excluded transactions
14-220 Commissioner clearance certificates
14-225 Entity declarations
14-230 Administrative penalties for false or misleading declarations
14-235 Varying amounts to be paid to the Commissioner

14-200 Certain acquisitions of taxable Australian property from

foreign residents
(1) You must pay to the Commissioner an amount if:
(a) you become the owner of a *CGT asset as a result of
*acquiring it from one or more entities under one or more
transactions; and
(b) subsection 14-210(1) (about foreign residents) applies to at
least one of those entities at the time one of those
transactions is entered into; and
(c) at that time, the CGT asset is:
(i) *taxable Australian real property; or
(ii) an *indirect Australian real property interest; or
(iii) an option or right to acquire such property or such an
interest;
unless a transaction referred to in paragraph (a) is excluded under
section 14-215.
Note: You must pay the amount on account of income tax possibly payable
by the entities on their capital proceeds resulting from your acquisition
of the CGT asset.

(2) You must pay the amount to the Commissioner on or before the
day you became the *CGT asset’s owner.
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 14-205

Note: There are penalties for failing to pay the amount (see Division 16).

(3) The amount to be paid to the Commissioner is:

(a) unless paragraph (b) applies—an amount equal to 12.5% of:
(i) the first element of the *CGT asset’s *cost base just after
the *acquisition, ignoring paragraphs 112-36(1)(b) and
(c) of the Income Tax Assessment Act 1997 (about the
effect of look-through earnout rights); less
(ii) if the acquisition is the result of you exercising an
option—any payment you made, and the *market value
of any property you gave, for the option (or to renew or
extend it); or
(b) the varied amount applying under section 14-235.
(4) This section does not apply if the amount that would otherwise be
payable is nil.

14-205 Effect of look-through earnout rights

Acquisitions of taxable Australian property from foreign residents

(1) You must pay to the Commissioner an amount if:
(a) you are required under section 14-200 to pay an amount to
the Commissioner in relation to your *acquisition of a *CGT
asset; and
(b) under a *look-through earnout right relating to the CGT asset
and the acquisition, you provide a *financial benefit to one or
more entities; and
(c) subsection 14-210(1) (about foreign residents) would apply
to at least one of those entities at the time you provide the
financial benefit if section 14-210 were modified as
described in subsection (2) of this section; and
(d) an amount is not already required to be withheld from a
*withholding payment relating to the financial benefit.

Note 1: To work out the amount payable, see subsection (4).

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 14-210

Note 2: You must pay the amount on account of income tax possibly payable
by the entities on their increased capital proceeds from receiving the
financial benefit.

Modifications of the relevant foreign residents test

(2) The modifications of section 14-210 are as follows:

Modifications to section 14-210 for the purposes of this section

Column 1 Column 2
Item For a reference in that section to: substitute a reference to:
1 transaction is entered into *financial benefit is provided
2 transaction (other than a reference *financial benefit
covered by item 1)
3 14-200 14-205

When you must pay the amount

(3) You must pay the amount to the Commissioner on or before the
day you provide the *financial benefit.
Note: There are penalties for failing to pay the amount (see Division 16).

(4) The amount to be paid to the Commissioner is:

(a) unless paragraph (b) applies—an amount equal to 12.5% of
the *market value of the *financial benefit; or
(b) the varied amount applying under section 14-235.

14-210 Whether an entity is a relevant foreign resident

Is the entity a foreign resident at the time of the transaction?

(1) This subsection applies to an entity at the time a transaction is
entered into if, at that time:
(a) you know that the entity is a foreign resident; or
(b) you reasonably believe that the entity is a foreign resident; or

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(c) you do not reasonably believe that the entity is an Australian

resident, and either:
(i) the entity has an address outside Australia (according to
any record that is in your possession, or is kept or
maintained on your behalf, about the transaction); or
(ii) you are authorised to provide a related financial benefit
to a place outside Australia (whether to the entity or to
anyone else); or
(d) the entity has a connection outside Australia of a kind
specified in the regulations; or
(e) the *CGT asset to which the transaction relates is:
(i) *taxable Australian real property; or
(ii) an *indirect Australian real property interest, the holding
of which causes a company title interest (within the
meaning of Part X of the Income Tax Assessment Act
1936) to arise.
Note: This subsection is relevant to whether you must pay an amount to the
Commissioner under section 14-200.

Exception—the entity gives you a clearance certificate

(2) Despite subsection (1), that subsection does not apply to the entity
in relation to the transaction if:
(a) before you pay the Commissioner under section 14-200 in
relation to the *CGT asset to which the transaction relates,
the entity gives you a certificate about the entity that:
(i) was issued under subsection 14-220(1); and
(ii) is for a period covering the time the transaction is
entered into; and
(b) the CGT asset is of a kind described in paragraph (1)(e) of
this section.

Exception—the entity gives you a residency or interests declaration

(3) Despite subsection (1), that subsection does not apply to the entity
in relation to the transaction if:

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 14-215

(a) before you pay the Commissioner under section 14-200 in

relation to the *CGT asset to which the transaction relates,
the entity gives you a declaration that:
(i) is about the entity or the CGT asset; and
(ii) was given under subsection 14-225(1) or (2); and
(iii) is for a period covering the time the transaction is
entered into; and
(b) when you are given the declaration, you do not know the
declaration to be false; and
(c) for a declaration given under subsection 14-225(1)—the
CGT asset is not of a kind described in paragraph (1)(e) of
this section.

14-215 Excluded transactions

Kinds of excluded transactions

(1) A transaction that results in the *acquisition of a *CGT asset is
excluded under this section if:
(a) just after the transaction, the CGT asset:
(i) is *taxable Australian real property; or
(ii) is an *indirect Australian real property interest, the
holding of which causes a company title interest (within
the meaning of Part X of the Income Tax Assessment
Act 1936) to arise;
and the *market value of the CGT asset is less than $750,000;
or
(b) the transaction is on an *approved stock exchange; or
(c) the transaction is conducted using a crossing system (within
the meaning of the *market integrity rules); or
(d) an amount is already required to be withheld (other than
under Subdivision 14-E) from a *withholding payment
relating to the transaction; or
(e) subsection 26BC(3) of the Income Tax Assessment Act 1936
(about securities lending arrangements) applies in relation to

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 14-215

the transaction as a result of the transaction being covered by

subparagraph (a)(ii) of that subsection; or
(f) any of the entities to which subsection 14-210(1) (about
foreign residents) applies at the time of the transaction:
(i) is a company for which any of the conditions in
paragraph 161A(1)(a) of the Corporations Act 2001
(about insolvency and external administration) is
satisfied; or
(ii) is, under a *foreign law, in the same or a similar position
to a company covered by subparagraph (i); or
(g) the transaction arises from any of the following:
(i) the administration of the estate of a bankrupt;
(ii) a composition or scheme of arrangement accepted under
Division 6 of Part IV of the Bankruptcy Act 1966;
(iii) a debt agreement under Part IX of that Act;
(iv) a personal insolvency agreement under Part X of that
Act;
(v) circumstances that are, under a foreign law, the same or
similar to those in any of the above subparagraphs.
Note: This section is relevant to whether you must pay an amount to the
Commissioner under section 14-200.

Dealing with joint ownership etc. of certain CGT assets

(2) For the purposes of paragraph (1)(a), if:
(a) the *CGT asset is an interest in real property, or an interest in
a *mining, quarrying or prospecting right; and
(b) just after the transaction, there are one or more similar
interests in the same real property or right;
treat the *market value of the CGT asset just after the transaction as
including the market value of each of those similar interests.
(3) Without limiting subsection (2):
(a) treat an interest as being similar to the *CGT asset if it is
specified in regulations made for the purposes of this
paragraph in relation to CGT assets of that kind; and
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 14-220

(b) treat an interest as not being similar to the CGT asset if it is

specified in regulations made for the purposes of this
paragraph in relation to CGT assets of that kind.

14-220 Commissioner clearance certificates

(1) The Commissioner may certify that, based on information before
the Commissioner, there is nothing to suggest that an entity is or
will be a foreign resident during a specified period.
Note: Such a certificate could result in you not being required to pay an
amount under this Subdivision (see subsection 14-210(2)).

(2) A certificate under subsection (1):

(a) may be issued on application to the Commissioner in the
*approved form; and

(b) is to be in writing; and

(c) applies only for the purposes of this Subdivision.
(3) For the purposes of (but without limiting) paragraph 388-50(1)(c),
the Commissioner may require an application for a certificate
under subsection (1) to state:
(a) whether the applicant holds or will hold specified *CGT
assets on behalf of another entity during any part of the
period for which the certificate is sought; and
(b) whether the applicant knows or reasonably believes that the
other entity is or will be a foreign resident during that period.
Note: Section 388-50 sets out when an application is in the approved form.

(4) A certificate issued under subsection (1) is not a legislative

instrument.

14-225 Entity declarations

Declaration that an entity is an Australian resident

(1) An entity may, in writing, declare that, for a specified period, the
entity is and will be an Australian resident.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 14-230

Note: Such a declaration could result in you not being required to pay an
amount under this Subdivision (see subsection 14-210(3)).

Declaration that asset not an indirect Australian real property

interest
(2) An entity may, in writing, declare that, for a specified period,
specified *CGT assets are *membership interests but not *indirect
Australian real property interests.
Note: Such a declaration could result in you not being required to pay an
amount under this Subdivision (see subsection 14-210(3)).

Limit on the periods for which declarations have effect

(3) A period specified in a declaration under this section is of no effect
to the extent that it includes days later than 6 months after the day
the declaration is made.

Declarations are not legislative instruments

(4) A declaration under this section is not a legislative instrument.

14-230 Administrative penalties for false or misleading declarations

Knowingly making false or misleading declarations

(1) You are liable to pay the Commissioner a penalty of 120 penalty
units if:
(a) you make a statement; and
(b) the statement is, or purports to be, a declaration under
section 14-225; and
(c) the statement is false or misleading in a material particular,
whether because of things in it or omitted from it; and
(d) you know, at the time of making the statement, that it is so
false or misleading.
Note: Division 298 contains machinery provisions for administrative
penalties.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 14-235

Recklessly making false or misleading declarations

(2) You are liable to pay the Commissioner a penalty of 80 penalty
units if:
(a) you make a statement; and
(b) the statement is, or purports to be, a declaration under
section 14-225; and
(c) the statement is false or misleading in a material particular,
whether because of things in it or omitted from it; and
(d) you were reckless in connection with the making of the
statement.
Note: Division 298 contains machinery provisions for administrative
penalties.

Not taking reasonable care in making declarations

(3) You are liable to pay the Commissioner a penalty of 40 penalty
units if:
(a) you make a statement; and
(b) the statement is, or purports to be, a declaration under
section 14-225; and
(c) the statement is false or misleading in a material particular,
whether because of things in it or omitted from it; and
(d) you did not take reasonable care in connection with the
making of the statement.
Note: Division 298 contains machinery provisions for administrative
penalties.

14-235 Varying amounts to be paid to the Commissioner

Policies relevant to varying amounts

(1) In exercising a power under this section to vary an amount, the
Commissioner must have regard to the need to protect a creditor’s
right to recover a debt.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 14-235

Varying particular amounts

(2) The Commissioner may, in writing, vary a particular amount
payable by you to the Commissioner under this Subdivision. The
variation takes effect when you become aware of it.
Note: Decisions to vary, or not to vary, are reviewable (see section 20-80).

(3) Any of the following entities may apply to the Commissioner in

the *approved form for a variation under subsection (2):
(a) you;
(b) an entity from which you *acquire, or could acquire, the
*CGT asset;

(c) an entity that is owed a debt by an entity covered by

paragraph (b).
(4) A variation made under subsection (2) is not a legislative
instrument.

Varying classes of amounts

(5) The Commissioner may, by legislative instrument, vary classes of
amounts payable to the Commissioner under this Subdivision.

Amounts may be reduced to nil

(6) The Commissioner’s power under subsection (2) or (5) to vary an
amount includes the power to reduce the amount to nil.

Subdivision 14-E—GST payable on taxable supplies of certain

real property

Table of sections
14-250 Recipients of certain taxable supplies of real property must pay amounts to
Commissioner
14-255 Notification by suppliers of residential premises etc.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 14-250

14-250 Recipients of certain taxable supplies of real property must

pay amounts to Commissioner

Liability to pay an amount

(1) You must pay to the Commissioner an amount if:
(a) you are the recipient (within the meaning of the *GST Act) of
a *taxable supply that is, or includes, a *supply to which
subsection (2) applies; and
(b) in a case where the supply is a supply of *potential residential
land—either:
(i) you are not registered (within the meaning of that Act);
or
(ii) you do not acquire the thing supplied for a *creditable
purpose.
(2) This subsection applies to a *supply, by way of sale or long-term
lease (within the meaning of the *GST Act), of:
(a) *new residential premises that:
(i) have not been created through *substantial renovations
of a building; and
(ii) are not *commercial residential premises; or
(b) *potential residential land that:
(i) is included in a *property subdivision plan; and
(ii) does not contain any building that is in use for a
commercial purpose;
other than a supply that is of a kind determined by the
Commissioner under subsection (3).
(3) The Commissioner may, by legislative instrument, determine that
subsection (2) does not apply to a kind of *supply specified in the
determination.

When the amount must be paid

(4) You must pay the amount on or before:
(a) the day on which:
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(i) any of the *consideration for the *supply (other than

consideration provided as a deposit) is first provided; or
(ii) if the supplier is your *associate, and the supply is
without consideration—the supply is made; or
(b) if a determination under subsection (5) applies—the day
provided under that determination.
(5) The Commissioner may determine, by legislative instrument,
circumstances in which amounts under this section are to be paid
on or before the day provided under the determination. The
determination may provide for amounts to be paid in instalments.

The amount to be paid

(6) The amount to be paid to the Commissioner is an amount equal to:
(a) if the *margin scheme applies to the *supply:
(i) the percentage, of the amount provided under
subsection (7), determined by the Minister under
subsection (8); or
(ii) if there is no such determination—7% of the amount
provided under subsection (7); or
(b) otherwise—1/11 of the amount provided under subsection (7).
(7) For the purposes of paragraphs (6)(a) and (b), the amount is:
(a) if the contract for the *supply specifies an amount (the
contract price) that is the *price for the supply, subject to
normal adjustments that apply on completion of transactions
of that kind—that contract price; or
(b) otherwise—the *price for the supply.
(8) The Minister may, by legislative instrument, determine a
percentage exceeding 7%, but not exceeding 9%, for the purposes
of subparagraph (6)(a)(i).
(9) Despite subsection (6), if:
(a) the supplier is your *associate; and

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(b) the *supply is without *consideration or is for consideration

that is less than the *GST inclusive market value;
the amount to be paid to the Commissioner is an amount equal to
10% of the *GST exclusive market value (within the meaning of
the *GST Act) of the supply.
(10) Despite subsections (6) and (9), if:
(a) the *supply does not consist solely of one or more supplies to
which subsection (2) applies; and
(b) it is practicable to ascertain, at the time any of the
*consideration for the supply (other than consideration
provided as a deposit) is first provided, the amount (the
reduced amount) of the amount provided under
subsection (6) or (9) that relates to supplies to which
subsection (2) applies;
the amount provided under subsection (6) or (9) is taken (other
than for the purposes of this subsection) to be the reduced amount.

Multiple recipients
(11) If there is more than one recipient (within the meaning of the *GST
Act) of the *supply (the original supply):
(a) treat each recipient as being the recipient of a separate
supply; and
(b) treat the amount under subsection (6), (9) or (10) (as the case
requires) for such a separate supply as being the same
proportion of that amount for the original supply, as the
proportion of the original supply that is constituted by that
separate supply.
Treat recipients who are joint tenants as a single recipient for the
purposes of this subsection.

14-255 Notification by suppliers of residential premises etc.

(1) You must not make a *supply, by way of sale or long-term lease
(within the meaning of the *GST Act), of *residential premises or
of *potential residential land to another entity unless, before
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 14-255

making the supply, you have given to the other entity a written
notice stating:
(a) whether the other entity will be required to make a payment
under section 14-250 in relation to the supply; and
(b) if the other entity will be required to make such a payment in
relation to the supply:
(i) the name and *ABN of the entity that is liable to pay the
*GST on the supply; and

(ii) the amount that the other entity will be required to pay
to the Commissioner under section 14-250 in relation to
the supply; and
(iii) when the other entity will be required to pay that
amount; and
(iv) if some or all of the *consideration for the supply will
not be expressed as an amount of *money—the *GST
inclusive market value of so much of the consideration
as will not be expressed as an amount of money; and
(v) such other matters as are specified in the regulations.
(2) However, subsection (1):
(a) does not apply to a supply of *commercial residential
premises; and
(b) does not apply to a supply of *potential residential land to
another entity if the other entity:
(i) is registered (within the meaning of the *GST Act); and
(ii) acquires the land for a *creditable purpose.
(3) To avoid doubt, a failure to comply with subsection (1) does not
affect the other entity’s obligation to make a payment under
section 14-250.

Strict liability offence

(4) You must not fail to give a notice required under this section.
Penalty: 100 penalty units.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 14-255

(5) An offence against subsection (4) is a strict liability offence.

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

Administrative penalty
(6) You are liable to pay the Commissioner a penalty of 100 penalty
units if you fail to give a notice required under this section.
Note: Division 298 contains machinery provisions for administrative
penalties.

(7) However, you are not liable to a penalty for failing to meet the
requirements of paragraph (1)(b) in relation to a supply if, at the
time you gave the notice, you reasonably believed that you were
not required to meet those requirements in relation to that supply.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 15-1

Division 15—Working out the amount to withhold

Table of Subdivisions
Guide to Division 15
15-A Working out how much to withhold
15-B Withholding schedules and regulations
15-C Declarations

Guide to Division 15

15-1 What this Division is about

This Division is mainly about how to work out how much an entity
must withhold under Division 12.

In most cases, the entity will need to use either the Commissioner’s
withholding schedules or the regulations.

The entity will also need to take into account a TFN declaration or
declaration under section 15-50 it has been given because, under
the schedules and regulations, the declaration may affect how to
calculate the amount to withhold.

This Division also deals with when an individual can make such a
declaration (other than a TFN declaration) so as to change the
amount that must be withheld from payments to the individual.

Subdivision 15-A—Working out how much to withhold

Table of sections
15-10 How much to withhold
15-15 Variation of amounts required to be withheld

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 15-10

15-10 How much to withhold

(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,
12-FC, 12-G (except one covered by section 12-325) or 12-J
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).

15-15 Variation of amounts required to be withheld

(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-FC or
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).

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 15-25

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 3A: Subdivision 12-FC is about certain labour mobility programs.
Note 4: Subdivision 12-H is about distributions of withholding MIT income.

(2) The Commissioner’s power to vary an amount includes the power

to reduce the amount to nil.
(3) A variation must be made:
(a) if it applies to a particular entity—by a written notice given
to that entity; or
(b) if it applies to a class of entities—by legislative instrument.

Subdivision 15-B—Withholding schedules and regulations

Table of sections
15-25 Commissioner’s power to make withholding schedules
15-30 Matters to be considered when making withholding schedules
15-35 Regulations about withholding

15-25 Commissioner’s power to make withholding schedules

(1) For the purposes of collecting income tax and the other liabilities
referred to in paragraphs 11-1(b), (ca), (caa), (cb), (cc), (cd), (da)
and (db), the Commissioner may, by legislative instrument, 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:
(a) from a *withholding payment covered by Subdivision 12-B,
12-C or 12-D; or
(b) an *alienated personal services payment to which Division 13
applies.
(2) A withholding schedule may deal differently with:

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 15-30

(a) different payments; and

(b) different circumstances of the recipients of those payments;
and
(c) different periods in respect of which those payments are
made.
This subsection does not limit subsection 33(3A) of the Acts
Interpretation Act 1901.

15-30 Matters to be considered when making withholding schedules

The Commissioner must have regard to the following matters when
making a withholding schedule:
(a) the rates of income tax as specified in the Income Tax Rates
Act 1986;
(b) the rates of *Medicare levy as specified in the Medicare Levy
Act 1986;
(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;
(caa) the percentage referred to in the definition of applicable
percentage of repayment income in subsection 23EA(1)
(about repayments of accumulated VETSL debts) of the VET
Student Loans Act 2016 for any financial year starting on or
after 1 July 2019;
(cb) the percentage referred to in the definition of applicable
percentage of repayment income in
subsection 1061ZVHA(1) (about repayments of accumulated
SSL debt) of the Social Security Act 1991 for any financial
year starting after the commencement of this paragraph;
(cc) the percentage referred to in the definition of applicable
percentage of HELP repayment income in
subsection 10F(1) (about repayments of accumulated
ABSTUDY SSL debt) of the Student Assistance Act 1973 for
any financial year starting after the commencement of this
paragraph;
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(cd) the percentage referred to in the definition of applicable

percentage of repayment income in subsection 46(1) (about
repayments of accumulated AASL debt) of the Australian
Apprenticeship Support Loans Act 2014 for any financial
year starting on or after 1 July 2014;
(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;
(d) any *tax offsets;
(e) the family tax benefit (within the meaning of the A New Tax
System (Family Assistance) Act 1999);
(f) the periods in respect of which *withholding payments are
made;
(fa) in relation to withholding payments that are *working holiday
taxable income—whether an entity is registered under
section 16-147;
(g) any other prescribed matter.

15-35 Regulations about withholding

(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).
(2) The regulations may deal differently with:
(a) different payments; and
(b) different circumstances of the recipients of those payments;
and

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 15-50

(c) different periods in respect of which those payments are

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

Subdivision 15-C—Declarations

Table of sections
15-50 Declarations

15-50 Declarations

Declarations about matters

(1) An individual who:
(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 matter relating to the individual’s income
tax or other liability referred to in paragraph 11-1(b), (ca),
(caa), (cb), (cc), (cd), (da) or (db) taken into account by the
entity in working out the *amount required to be withheld
from the payment;
may give the entity a declaration about the matter in the *approved
form.

When declarations under subsection (1) can’t be given

(2) The individual cannot give a declaration under subsection (1)
unless:
(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 any
matter—that declaration is not in effect.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 15-50

Declarations changing information given in TFN declaration

(3) If:
(a) an individual has given a *TFN declaration to an entity; and
(b) the individual made a statement about a matter in the TFN
declaration; and
(c) the individual’s circumstances change in relation to the
matter;
the individual may give the entity a declaration about the matter in
the *approved form.

Regulations
(4) The regulations may prescribe:
(b) when a declaration under subsection (1) or (3) starts or ceases
to be in effect; and
(c) when a declaration under subsection (1) or (3) is taken to
have been given.
(5) If:
(a) an individual gives an entity a declaration under
subsection (1) or (3) about a matter; and
(b) the individual’s circumstances change in relation to the
matter;
the regulations may also prescribe when the individual must give
the entity a new declaration about the matter.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-1

Division 16—Payer’s obligations and rights

Table of Subdivisions
Guide to Division 16
16-A To withhold
16-B To pay withheld amounts to the Commissioner
16-BA To be registered
16-C To provide information
16-D Additional rights and obligations of entity that makes a
payment

Guide to Division 16

16-1 What this Division is about

This Division sets out the obligations and rights of an entity

required to withhold an amount under Division 12, or to pay an
amount to the Commissioner under Division 12A, 13 or 14.
Note: The entity may also have obligations under other
legislation. See, for example, the obligation to keep
records under section 262A of the Income Tax
Assessment Act 1936.

Subdivision 16-A—To withhold

Table of sections
When to withhold
16-5 When to withhold an amount
16-7 Treat entity obliged to pay under Subdivision 12A-C as having withheld
amount under Division 12
16-20 Payer discharged from liability to recipient for amount withheld

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-5

Penalties for not withholding

16-25 Failure to withhold: offence
16-30 Failure to withhold: administrative penalty for entity other than exempt
Australian government agency
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
16-43 Failure to withhold: administrative penalty for exempt Australian
government agency in relation to payment to foreign resident etc.

When to withhold

16-5 When to withhold an amount

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.

16-7 Treat entity obliged to pay under Subdivision 12A-C as having

withheld amount under Division 12
For the purposes of this Division:
(a) if an entity must pay an amount to the Commissioner under
Subdivision 12A-C, treat the entity as being obliged to
withhold the amount under Division 12; and
(b) if an entity has paid an amount to the Commissioner under
Subdivision 12A-C, treat the entity as having withheld the
amount under Division 12.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-20

16-20 Payer discharged from liability to recipient for amount

withheld
(1) An entity that:
(a) withholds an amount as required by Division 12; or
(b) pays to the Commissioner an amount as required by
Division 12A, 13 or 14;
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.

(2) An entity is discharged from all liability to pay so much of the total
amount payable to *acquire a *CGT asset as is equal to any amount
the entity pays to the Commissioner under Subdivision 14-D in
relation to the acquisition.

Penalties for not withholding

16-25 Failure to withhold: offence

(1) An entity must not fail to withhold an amount as required by
Division 12.
Penalty: 10 penalty units.
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 12A or 13 or Subdivision 14-A, 14-B, 14-C
or 14-D.
Penalty: 10 penalty units.
Note 1: See section 4AA of the Crimes Act 1914 for the current value of a
penalty unit.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-30

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

(3) An offence against subsection (1) or (2) is a strict liability offence.

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

(4) If a person is convicted of an offence in relation to:

(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 12A or 13
or Subdivision 14-A, 14-B, 14-C or 14-D;
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.

16-30 Failure to withhold: administrative penalty for entity other

than exempt Australian government agency
(1) An entity (except an *exempt Australian government agency) that:
(a) fails to withhold an amount as required by Division 12; or
(b) fails to pay an amount to the Commissioner as required by
Division 12A, 13 or 14;
is liable to pay to the Commissioner a penalty equal to that amount.
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.

(2) Subsection (1) does not apply in relation to a failure to pay an

amount to the Commissioner as required by Subdivision 14-E if:
(a) the amount relates to a *taxable supply of *new residential
premises (other than *commercial residential premises); and
(b) the entity was given a notice under section 14-255:
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-35

(i) stating that the premises are not new residential

premises; or
(ii) indicating that the entity will not be required to pay an
amount to the Commissioner under section 14-250 in
relation to the supply; and
(c) at the time *consideration for the supply (other than
consideration provided as a deposit) is first provided, there
was nothing in:
(i) the contract for the supply; or
(ii) any other circumstances relating to the supply;
that made it unreasonable for the entity to believe that the
statement or indication was correct.
(3) Subsection (1) does not apply in relation to a failure to pay an
amount to the Commissioner in relation to a *taxable supply as
required by Subdivision 14-E if:
(a) the entity required to pay the amount in relation to the supply
gives the supplier a bank cheque on or before the day
*consideration for the supply (other than consideration
provided as a deposit) is first provided; and
(b) the bank cheque is for the amount the entity is required to
pay to the Commissioner, and is payable to the
Commissioner.

16-35 Failure to withhold: administrative penalty for exempt

Australian government agency in relation to payment
other than dividend, interest or royalty
(1) An *exempt Australian government agency that:
(a) fails to withhold an amount as required by Division 12; or
(b) fails to pay to the Commissioner an amount as required by
Division 14;
is liable to pay to the Commissioner a penalty of 20 penalty units.
Note 1: See section 4AA of the Crimes Act 1914 for the current value of a
penalty unit.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-40

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

administrative and civil penalties.

Exception
(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).

16-40 Failure to withhold: administrative penalty for exempt

Australian government agency in relation to dividend,
interest or royalty payment
An *exempt Australian government agency that:
(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;
is liable to pay to the Commissioner a penalty equal to that amount.
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.

16-43 Failure to withhold: administrative penalty for exempt

Australian government agency in relation to payment to
foreign resident etc.
An *exempt Australian government agency that:
(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
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(b) fails to pay to the Commissioner an amount as required by

Division 14 in respect of a withholding payment covered by
that Subdivision;
is liable to pay to the Commissioner a penalty equal to that amount.
Note: Division 298 in this Schedule contains machinery provisions for
administrative penalties.

Subdivision 16-B—To pay withheld amounts to the

Commissioner

Table of sections
When and how to pay amounts to the Commissioner
16-70 Entity to pay amounts to Commissioner
16-75 When amounts must be paid to Commissioner
16-80 Penalty for failure to pay within time
16-85 How amounts are to be paid

Who is a large, medium or small withholder

16-95 Meaning of large withholder
16-100 Meaning of medium withholder
16-105 Meaning of small withholder
16-110 Commissioner may vary withholder’s status downwards
16-115 Commissioner may vary withholder’s status upwards

When and how to pay amounts to the Commissioner

16-70 Entity to pay amounts to Commissioner

(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.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-75

(3) An entity that must pay an amount to the Commissioner under

Subdivision 14-B, 14-C, 14-D or 14-E must do so in accordance
with sections 16-80 and 16-85.
Note: For provisions about the collection and recovery of amounts payable
to the Commissioner under this Part, see Part 4-15.

16-75 When amounts must be paid to Commissioner

Large withholder
(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

Item If the amount is withheld on this It must be paid to the
day of week: 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

Medium withholders
(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.
(2A) If a *medium withholder:
(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:
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-75

(c) the next month unless the amount is withheld during

December; or
(d) the next February if the amount is withheld during
December.

Small withholders
(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.
(4) If a *small withholder:
(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

Item If the amount is withheld during the amount must be paid to the
the *quarter ending on: 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

Payment of income of closely held trust

(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
_____________________________________
*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-80

Commissioner a report under subsection 16-152(1) for the

income year; or
(b) within a longer period allowed by the Commissioner.

16-80 Penalty for failure to pay within time

If an amount that an entity must pay to the Commissioner under
subsection 16-70(1) or (3) 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:
(i) the unpaid amount;
(ii) general interest charge on any of the unpaid amount.

16-85 How amounts are to be paid

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

(a) an amount that it withholds under Division 12; and

(b) an amount that it pays to the Commissioner under
Division 13 or 14.
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.

Medium or small withholder

(2) A *medium withholder or *small withholder must pay to the
Commissioner:
_____________________________________
*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-95

(a) any amount that it withholds under Division 12; and

(b) any amount that it pays to the Commissioner under
Division 13 or 14;
by a means of *electronic payment, or any other means approved in
writing by the Commissioner.

Commissioner may vary payment method

(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.

Who is a large, medium or small withholder

16-95 Meaning of large withholder

(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:
(a) it was a *large withholder for June 2001; or
(b) the *amounts withheld by the entity during a financial year
ending at least 2 months before the current month exceeded
$1 million; or
(c) both of the following apply:
(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.

_____________________________________
*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-100

Exception
(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.

16-100 Meaning of medium withholder

(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:
(a) it was a *medium withholder for June 2001; or
(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.

16-105 Meaning of small withholder

An entity is a small withholder for a particular month if:
(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.

16-110 Commissioner may vary withholder’s status downwards

(1) The Commissioner may, by giving written notice to a *withholder:
(a) make the following determinations:
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-115

(i) a determination that a *large withholder is a *medium

withholder or a *small withholder;
(ii) a determination that a medium withholder is a small
withholder; or
(b) revoke or vary any such determination.
(2) The notice must state that the determination applies:
(a) for specified months; or
(b) for all months from and including a specified month.
(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.

16-115 Commissioner may vary withholder’s status upwards

(1) The Commissioner may, by giving written notice to a *withholder:
(a) make the following determinations:
(i) a determination that a *small withholder is a *medium
withholder or a *large withholder;
(ii) a determination that a medium withholder is a large
withholder; or
(b) revoke or vary any such determination.
(2) The notice must state that the determination applies:
(a) for specified months; or
(b) for all months from and including a specified month.
(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.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-115

(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;
(c) any failure by the entity to comply with its obligations under
this Part;
(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;
(e) such other matters as the Commissioner considers relevant.
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.

Subdivision 16-BA—To be registered

Table of sections
Registration of withholders
16-140 Withholders must be registered
16-141 Registration and cancellation

Branch registration
16-142 Branches may be registered
16-143 Separate amounts for entities and branches
16-144 Cancellation of branch registration
16-145 Effect on branches of cancelling the entity’s registration

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 16-140

Registration of employers of working holiday makers

16-146 Employers of working holiday makers must be registered
16-147 Registering employers of working holiday makers
16-148 Cancelling the registration of employers of working holiday makers

Registration of withholders

16-140 Withholders must be registered

(1) An entity that must pay an amount to the Commissioner under:
(a) subsection 16-70(1) (about amounts withheld under
Division 12); or
(aaa) Division 12A (about deemed payments by AMITs); or
(aa) Division 13 (about payments in respect of alienated personal
services payments); or
(b) Subdivision 14-A, 14-B, 14-C or 14-D (about payments in
respect of non-cash benefits or capital proceeds);
must apply to register with the Commissioner.
(2) The entity must apply in the *approved form by the day on which
the entity is first required:
(a) to withhold an amount under Division 12; or
(b) to pay an amount to the Commissioner under Division 12A
or 13 or Subdivision 14-A, 14-B, 14-C or 14-D.
However, the Commissioner may allow a longer period for
applying.
(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.

_____________________________________
*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-141

16-141 Registration and cancellation

The Commissioner may register an entity or cancel the registration
of an entity at any time.

Branch registration

16-142 Branches may be registered

(1) The Commissioner may register a branch of a registered entity if:
(a) the entity applies, in the *approved form, for registration of
the branch; and
(b) the entity has an *ABN or has applied for one; and
(c) the Commissioner is satisfied that the branch maintains an
independent system of accounting, and can be separately
identified by reference to:
(i) the nature of the activities carried on through the
branch; or
(ii) the location of the branch; and
(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.
A branch that is so registered is a PAYG withholding branch.
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
(b) the branch or sub-entity has an *ABN or has applied for one.
A branch or sub-entity that is so registered is also a PAYG
withholding branch.

_____________________________________
*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-143

16-143 Separate amounts for entities and branches

(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
(b) a class of amounts that do not relate to any of the entity’s
branches.
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 or *capital proceeds 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.

16-144 Cancellation of branch registration

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).

16-145 Effect on branches of cancelling the entity’s registration

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

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 16-146

Registration of employers of working holiday makers

16-146 Employers of working holiday makers must be registered

(1) An entity must apply to the Commissioner to register under
section 16-147 if:
(a) the entity must pay an amount to the Commissioner under
subsection 16-70(1) from salary, wages, commission,
bonuses or allowances it pays to an individual as the
individual’s *working holiday taxable income; and
(b) in a case where a period has been determined under
subsection 16-148(5) during which the entity cannot apply
under this section—the period has ended.
(2) The entity must apply in the *approved form by the day on which
the entity is first required to withhold an amount under Division 12
from salary, wages, commission, bonuses or allowances it pays to
an individual as the individual’s *working holiday taxable income.
(3) However, the Commissioner may allow a longer period for
applying.
(4) An entity that contravenes this section is liable to an administrative
penalty of 20 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.

(5) This section does not affect an obligation that an entity has under
section 16-140.

16-147 Registering employers of working holiday makers

(1) The Commissioner must register an entity under this section if, and
only if, the entity:
(a) has applied under section 16-146 for registration; and

_____________________________________
*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-147

(b) has made a declaration to the Commissioner, in the

*approved form, that states that the entity:

(i) has a genuine business requirement to employ one or

more *working holiday makers; and
(ii) agrees to comply with the Fair Work Act 2009 in
relation to its employment of any individual who is a
working holiday maker; and
(iii) agrees to check that any individual it employs as a
working holiday maker holds a visa that causes that
person to be a working holiday maker; and
(c) has given to the Commissioner, in the approved form,
information relating to its employment, or proposed
employment, of working holiday makers.
(2) Subparagraph (1)(b)(i) does not apply if the entity is not carrying
on a *business.
(3) The registration takes effect on the day determined by the
Commissioner.

Notification of the Commissioner’s decision

(4) The Commissioner must notify the entity of:
(a) the Commissioner’s decision on the application; and
(b) if the Commissioner decides to register the entity—the day
on which the registration takes effect;
within 30 days after the making of the application.
Note: The decision on the application is reviewable (see section 20-80).

(5) If the Commissioner decides to register the entity, the *Australian

Business Registrar must enter in the *Australian Business Register
a statement that the entity is registered under this section. The
statement must specify the day on which the registration takes
effect.
(7) A failure to comply with subsection (4) or (5) does not affect the
validity of the Commissioner’s decision.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-148

Basis of registration
(8) A registration under this section is granted on the basis that:
(a) the registration may be cancelled under section 16-148; and
(b) the registration may be cancelled, suspended, varied or made
subject to conditions by or under later legislation; and
(c) no compensation is payable if the registration is cancelled,
suspended, varied or made subject to conditions as
mentioned in any of the above paragraphs.

16-148 Cancelling the registration of employers of working holiday

makers
(1) The Commissioner may cancel an entity’s registration under
section 16-147 if:
(a) the entity advises the Commissioner, in the *approved form,
that the entity does not employ, and does not intend to
employ, any individual who is a *working holiday maker; or
(b) the Commissioner is satisfied that:
(i) the entity; or
(ii) if the entity is a partnership—any of the partners; or
(iii) if the entity is a company—any director, shareholder or
employee of the company who participates in the
management or control of the company; or
(iv) if the entity is a trustee of a trust—any appointer of
trustees of the trust, or any person who participates in
the control of the trust;
is not a fit and proper person.
(2) The cancellation takes effect on the day determined by the
Commissioner. The day must not be earlier than the day on which
notice of the cancellation is given under subsection (6).
(3) If the Commissioner is considering whether the entity, or another
person mentioned in subparagraph (1)(b)(ii), (iii) or (iv), is a fit
and proper person, the Commissioner must give the entity a notice
that:
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(a) informs the entity accordingly; and

(b) invites the entity to make submissions to the Commissioner
on the matter within 28 days after the Commissioner gives
the notice.
(4) Without limiting the matters to which the Commissioner may have
regard in considering whether the entity, or another person
mentioned in subparagraph (1)(b)(ii), (iii) or (iv), is a fit and proper
person, the Commissioner must have regard to:
(a) whether a court has made a finding, in proceedings
commenced by the Fair Work Ombudsman, that the entity
has contravened the Fair Work Act 2009; and
(b) whether the entity has failed to withhold amounts as required
by Division 12; and
(c) any relevant information the entity has provided in
submissions to the Commissioner within the period specified
in paragraph (3)(b).
(5) The Commissioner must, having regard to the reasons for the
cancellation, determine a period, starting when the cancellation
takes effect, during which the entity cannot apply under
section 16-146 for registration.

Notification of the cancellation

(6) The Commissioner must notify the entity of:
(a) the cancellation; and
(b) the day on which the cancellation takes effect; and
(c) the period determined under subsection (5) for the
cancellation.
Note: A decision to cancel, including a determination under subsection (5),
is reviewable (see section 20-80).

(7) The *Australian Business Registrar must enter in the *Australian

Business Register a statement that the entity’s registration under
section 16-147 has been cancelled. The statement must specify the
day on which the cancellation takes effect.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-150

(8) A failure to comply with subsection (6) or (7) does not affect the
validity of the Commissioner’s decision.

Subdivision 16-C—To provide information

Table of sections
To the Commissioner
16-150 Commissioner must be notified of amounts
16-152 Annual reports—Withholding payments covered by section 12-175
16-153 Annual reports—other payments

To recipients of withholding payments

16-155 Annual payment summary
16-156 Annual payment summary for sections 12-175 and 12-180
16-157 Payment summary for Subdivision 12-H
16-160 Part-year payment summary
16-165 Payment summaries for superannuation lump sums and payments for
termination of employment
16-166 Payment summary for a departing Australia superannuation payment
16-167 Payment summary for payment to recipient who does not quote ABN
16-170 Form and content of payment summary
16-175 Penalty for not providing payment summary
16-180 Commissioner may exempt entity from giving payment summary
16-182 Definition of reportable employer superannuation contribution

To the Commissioner

16-150 Commissioner must be notified of amounts

(1) An entity that must pay an amount (even if it is a nil amount) to the
Commissioner under:
(a) subsection 16-70(1) (about amounts withheld under
Division 12); or
(aa) Division 13 (about payments in respect of alienated personal
services payments); or

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(b) Subdivision 14-A, 14-B, 14-C or 14-D (about payments in

respect of non-cash benefits or capital proceeds);
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.
Note: This section does not apply to amounts that an employer notifies to the
Commissioner under Division 389: see section 389-20.

(2) An entity that must pay an amount (even if it is a nil amount) to the
Commissioner under Subdivision 14-E (about payments in respect
of taxable supplies of certain real property) must notify the
Commissioner of the amount:
(a) on or before the day provided in a determination under
subsection (3); or
(b) if there is no such determination—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.
(3) The Commissioner may, by legislative instrument, determine when
the Commissioner must be notified for the purposes of
paragraph (2)(a).

16-152 Annual reports—Withholding payments covered by

section 12-175

Reports about withholding payments

(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.
(2) The trustee must give the report under subsection (1) to the
Commissioner:
(a) not later than 3 months after the end of the income year; or
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-153

(b) within such further period (if any) as the Commissioner

allows.

Reports about trust distributions

(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.

(4) The trustee must give the report under subsection (3) to the
Commissioner:
(a) by the end of the day on which the trustee lodges the trust’s
*income tax return for the income year; or

(b) within such further period (if any) as the Commissioner

allows.

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

16-153 Annual reports—other payments

(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-FC or 12-G; or

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(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.
Note: A report under this subsection will not cover amounts that an
employer notifies to the Commissioner under Division 389: see
section 389-20.

(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
(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 Subdivision 12-B, 12-C or 12-D; or
(c) any person has a *reportable fringe benefits 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.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-153

Note: A report under this subsection will not cover amounts that an
employer notifies to the Commissioner under Division 389: see
section 389-20.

(3) The report under subsection (2) must be either:

(a) a report in the *approved form; or
(b) a report consisting of:
(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
(ii) an accompanying statement in the approved form.
(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 *withholding MIT (the paying trust) in relation to an
income year of that trust.
Note: The entity may be the withholding MIT itself or a custodian or other
entity.

(4A) The report under subsection (4) must be given:

(a) not later than 14 days after the end of 6 months after the end
of the income year of the *withholding MIT in relation to
which the relevant *fund payments were made; or
(b) within a longer period allowed by the Commissioner.
(5) In applying this section:
(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.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-155

(6) The Commissioner may, to meet the special circumstances of a

particular case or class of cases, vary the requirements of this
section.
(7) A variation must be made:
(a) if it applies to a particular entity—by a written notice given
to that entity; or
(b) if it applies to a class of entities—by legislative instrument.

To recipients of withholding payments

16-155 Annual payment summary

(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

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(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.
(2) The *payment summary must cover:
(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.
Note: A payment summary under this section will not cover amounts that an
employer notifies to the Commissioner under Division 389: see
section 389-20.

Parental leave pay paid in error

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

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-156

(a) the withholding payment is a payment of an amount

purported to have been paid by way of *parental leave pay;
and
(b) the amount was not lawfully so payable.
(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
(b) give the recipient notice in the *approved form; 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.

16-156 Annual payment summary for sections 12-175 and 12-180

(1) A trustee must give a *payment summary to a beneficiary of the
trust, if the trustee made any *withholding payments covered by
section 12-175 or 12-180 to the beneficiary during the income
year.
(2) The *payment summary:
(a) must cover each of the *withholding payments mentioned in
subsection (1); and
(b) may be in electronic form; and
(c) must be given:
(i) not later than 14 days after the day by which the trustee
was required to give the Commissioner a report under
subsection 16-152(1) for the income year; or
(ii) within a longer period allowed by the Commissioner.

16-157 Payment summary for Subdivision 12-H

(1) An entity (the payer) must give a *payment summary to another
entity (the recipient) if the payer made *withholding payments
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-160

covered by section 12-385 or 12-390 to the recipient in relation to

*fund payments made by a particular *withholding MIT (the
paying trust) in relation to an income year of that trust.
Note: The entity may be the withholding MIT itself or a custodian or other
entity.

(2) The *payment summary:

(a) must cover each of the *withholding payments mentioned in
subsection (1); and
(b) may be in electronic form; and
(c) must be given:
(i) not later than 14 days after the end of 6 months after the
end of the income year of the *withholding MIT in
relation to which the relevant *fund payments were
made; or
(ii) within a longer period allowed by the Commissioner.

16-160 Part-year payment summary

(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

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(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;
other than a payment covered by a previous payment summary
(and a copy of it) given under this section.
Note: A payment summary under this section will not cover amounts that an
employer notifies to the Commissioner under Division 389: see
section 389-20.

(2) The payer must comply with the request within 14 days after
receiving it, unless:
(a) 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
(b) the payer has made *reportable employer superannuation
contributions, in respect of the recipient’s employment,
during the financial year.
(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.

16-165 Payment summaries for superannuation lump sums and

payments for termination of employment
(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
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(b) give a copy of the summary to the Commissioner.

(2) The following payments are covered under this subsection if they
are *withholding payments:
(a) a *superannuation lump sum;
(b) a payment that is an *employment termination payment or
would be one except that it is received more than 12 months
after termination of employment, other than a directed
termination payment within the meaning of section 82-10F of
the Income Tax (Transitional Provisions) Act 1997.
Note: A payment summary under this section will not cover amounts that an
employer notifies to the Commissioner under Division 389: see
section 389-20.

16-166 Payment summary for a departing Australia superannuation

payment
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
(b) give a copy of the summary to the Commissioner.

16-167 Payment summary for payment to recipient who does not

quote ABN
(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.
(2) The summary must cover only that payment.
(3) The payer must give the summary to the recipient when making the
payment, or as soon as practicable afterwards.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-170

16-170 Form and content of payment summary

(1) A payment summary (except one relating to section 12-175 or
12-180 or Subdivision 12-H) is a written statement that:
(a) names the payer and the recipient; 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 *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
(g) is in the *approved form.
(1AAA) A payment summary relating to section 12-175 or 12-180 is a
statement that:
(a) names the trustee and the beneficiary; and
(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
(c) specifies the income year of the trust to which it relates; and
(d) is in the *approved form.
(1AA) A payment summary relating to Subdivision 12-H is a statement
that:
(a) names the payer and the recipient; 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
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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(d) specifies the income year of the relevant *withholding MIT 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.

16-175 Penalty for not providing payment summary

(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)).
Penalty: 20 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a
penalty unit.

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

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

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-180

16-180 Commissioner may exempt entity from giving payment

summary
(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.
(2) An exemption must be made:
(a) if it applies to a particular entity—by a written notice given
to that entity; or
(b) if it applies to a class of entities—by legislative instrument.

16-182 Definition of reportable employer superannuation contribution

(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
(b) to a *superannuation fund or an *RSA;
to the extent that either or both of the following paragraphs apply:
(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).
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 16-195

(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:
(a) the employer or *associate is required to contribute the
amount by:
(i) an *industrial instrument; or
(ii) the rules of a *superannuation fund; and
(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:
(i) the requirement to contribute the amount; or
(ii) the size of the amount.

Subdivision 16-D—Additional rights and obligations of entity

that makes a payment

Table of sections
16-195 Payer’s right to recover amounts of penalty: certain withholding taxes

16-195 Payer’s right to recover amounts of penalty: certain

withholding taxes
(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:
(a) Subdivision 12-F (about a dividend, interest or royalty
payment); or
(aa) section 12-305 (about a departing Australia superannuation
payment); or
(ab) Subdivision 12-FC (about labour mobility programs); or
(b) section 12-320 (about a mining payment); or
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 16-195

(c) Subdivision 12-H (about distributions of withholding MIT

income);
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
(b) the amount of the penalty.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Pay as you go (PAYG) withholding Part 2-5

Section 18-1

Division 18—Recipient’s entitlements and obligations

Table of Subdivisions
18-A Crediting withheld amounts
18-B Refund of certain withheld amounts
18-C Recipient’s obligations
18-D Directors etc. of non-complying companies

Subdivision 18-A—Crediting withheld amounts

Guide to Subdivision 18-A

18-1 What this Subdivision is about

In general, an entity:
• that receives a withholding payment (except one covered by
section 12-215, 12-250 or 12-285, Subdivision 12-FC, or
subsection 12-390(4)); or
• that is the foreign resident for which a withholding payment
covered by section 12-215, 12-250 or 12-285,
Subdivision 12-FC, or subsection 12-390(4), (or a part of it) is
received;
is entitled to a credit for the amount withheld from the withholding
payment.
However, if that entity is a partnership or trust, a partner,
beneficiary or trustee may be entitled to the credit.
This Subdivision tells you:
• who is entitled to a credit; and
• how to work out the amount of the credit.
How a credit is applied is set out in Division 3 of Part IIB.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Table of sections
General exception
18-5 No credit for refunded amount

Entitlement to credits: income tax liability

18-10 Application of sections 18-15, 18-20 and 18-25
18-15 Tax credit for recipient of withholding payments
18-20 Tax credit where recipient is a partnership
18-25 Tax credit where recipient is a trust
18-27 Tax credit for alienated personal services payments

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

to fund payment or labour mobility program
18-30 Credit: dividend, interest or royalty
18-32 Credit: amount attributable to fund payment
18-33 Credit: labour mobility programs
18-35 Credit: penalty under section 12-415, 16-30, 16-35 or 16-40 or related
general interest charge
18-40 Credit: liability under Part 4-25

Entitlement to credit: departing Australia superannuation payment

18-42 Credit—departing Australia superannuation payment

Entitlement to credit: mining payment

18-45 Credit—mining payment

Entitlement to credit: Petroleum resource rent tax

18-55 Credit—Natural resource payments

Entitlement to credit: taxable supply of real property

18-60 Credit—payment relating to taxable supply of real property

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Pay as you go (PAYG) withholding Part 2-5

Section 18-5

General exception

18-5 No credit for refunded amount

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.
Note: See also Subdivision 18-D (PAYG withholding non-compliance tax,
which can reverse the economic benefit of a credit of a director, or an
associate of a director, of a company that does not comply with its
obligations under subsection 16-70(1)).

Entitlement to credits: income tax liability

18-10 Application of sections 18-15, 18-20 and 18-25

(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:
(a) Subdivision 12-F (Dividend, interest and royalty payments);
or
(b) Subdivision 12-FA (Departing Australia superannuation
payments); or
(c) Subdivision 12-FC (Labour Mobility Programs); or
(d) section 12-320 (Mining payments); or
(e) Subdivision 12-H (Distributions of withholding MIT
income); or
(f) Division 13 (Alienated personal services payments); or
(g) Subdivision 14-E (GST payable on taxable supplies of
certain real property).
(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).
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-15

(3) If an entity withholds an amount from a *withholding payment as

required by section 12-325 (natural resource payments), apply
sections 18-15, 18-20 and 18-25 to the payment as if the entity had
withheld only so much of that amount as was withheld in respect of
tax.
Note: Section 18-55 provides a credit for amounts withheld in respect of
petroleum resource rent tax.

18-15 Tax credit for recipient of withholding payments

(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.

18-20 Tax credit where recipient is a partnership

(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.
(2) The amount of the credit is worked out using the formula:
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 18-25

Individual interest
Amounts withheld 
Net income/partnership loss
where:
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.

18-25 Tax credit where recipient is a trust

(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.

Trust—section 97
(2) A beneficiary of the trust is entitled to a credit if:
(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.
(3) The amount of the credit is worked out using the formula:
Share of net income
Amounts withheld 
Net income

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-25

where:
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.

Trust—section 98
(4) The trustee of the trust is entitled to a credit if:
(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
(c) an assessment has been made of that income tax or an
assessment has been made that no income tax is payable.
(5) The amount of the credit is worked out using the formula:
Share of net income
Amounts withheld 
Net income
where:
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.

Trust—section 99 or 99A
(6) The trustee of the trust is entitled to a credit under this subsection
if:
(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
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Pay as you go (PAYG) withholding Part 2-5

Section 18-27

(b) the net income or that part of it is wholly or partly

attributable to the *withholding payments; and
(c) an assessment has been made of that income tax or an
assessment has been made that no income tax is payable.
(7) The amount of the credit is worked out using the formula:
Part of net income
Amounts withheld 
Net income
where:
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.

Trust—no net income

(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.

18-27 Tax credit for alienated personal services 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, amount

attributable to fund payment or labour mobility
program

18-30 Credit: dividend, interest or royalty

(1) An entity is entitled to a credit if:
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-32

(a) the entity’s *ordinary income, or *statutory income, includes

any of the following:
(i) 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;
(ii) an amount that is represented by or reasonably
attributable to an *AMIT DIR payment; and
(b) if subparagraph (a)(i) applies—if the entity has borne all or
part of an *amount withheld from the dividend, interest or
royalty; and
(c) if subparagraph (a)(ii) applies—if the entity has borne all or
part of an amount paid under Division 12A in respect of the
AMIT DIR payment.
(2) The amount of the credit is that amount or part.
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.

18-32 Credit: amount attributable to fund payment

(1) An entity is entitled to a credit if:
(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:
(i) an *amount withheld from the payment under
Subdivision 12-H; or
(ii) an amount paid under Division 12A in respect of the
fund payment.
(2) The amount of the credit is that amount or part.
(3) Subsection (4) applies if:
(a) all or part of an amount (the fund payment part) is
represented by a payment that is a *fund payment; and

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 18-33

(b) under subsection 840-805(4A) of the Income Tax Assessment

Act 1997, a *foreign pension fund is taken, in respect of the
fund payment part, to be a beneficiary in its own right, and
not a beneficiary in the capacity of the trustee of another
trust; and
(c) there is an *amount withheld from the fund payment under
Subdivision 12-H.
(4) For the purposes of paragraph (1)(b):
(a) treat the *foreign pension fund as having borne all or part of
the amount withheld; and
(b) treat a beneficiary of the foreign pension fund as not having
borne all or part of the amount withheld.

18-33 Credit: labour mobility programs

(1) An individual is entitled to a credit if:
(a) the individual’s *ordinary income or *statutory income
includes salary, wages, commission, bonuses or allowances;
and
(b) an amount is withheld from the salary, wages, commission,
bonuses or allowances under Subdivision 12-FC (about
labour mobility programs).
(2) The amount of the credit is the *amount withheld.

18-35 Credit: penalty under section 12-415, 16-30, 16-35 or 16-40 or

related general interest charge
(1) If an entity has paid:
(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
(b) an amount of *general interest charge under section 298-25
for the penalty;

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-35

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.
(1AA) If an entity has paid:
(a) an amount of penalty under section 16-30 or 16-35 to the
Commissioner for a *withholding payment covered by
Subdivision 12-FC (labour mobility programs); or
(b) an amount of *general interest charge under section 298-25
for the penalty;
the entity liable to pay the *labour mobility program withholding
tax for the withholding payment is entitled to a credit equal to the
lesser of:
(c) the amount of the penalty, or general interest charge, as
appropriate; and
(d) the amount of labour mobility program withholding tax (and
any general interest charge under section 840-910 of the
Income Tax Assessment Act 1997) in relation to the
withholding payment, reduced by:
(i) any credits from an application of section 18-33 in
relation to the withholding payment; and
(ii) any credits from a previous application of this
subsection in relation to the withholding payment.
(1A) If an entity has paid:
(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
(b) an amount of *general interest charge under section 298-25
for the penalty;
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:
(d) the amount of penalty, or general interest charge, as
appropriate; and

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Pay as you go (PAYG) withholding Part 2-5

Section 18-40

(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.

Remission
(2) If:
(a) an entity has paid to the Commissioner an amount of penalty
mentioned in paragraph (1)(a), (1AA)(a) or (1A)(a); and
(b) the Commissioner remits the whole or a part of the amount of
the penalty under section 298-20;
then:
(c) any credit under subsection (1), (1AA) 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.
(3) If:
(a) an entity has paid to the Commissioner an amount of *general
interest charge mentioned in paragraph (1)(b), (1AA)(b) or
(1A)(b); and
(b) the Commissioner remits the whole or a part of the amount of
the charge under section 8AAG;
then:
(c) any credit under subsection (1), (1AA) or (1A) relating to the
amount 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.

18-40 Credit: liability under Part 4-25

(1) If an entity has paid to the Commissioner:
(a) an amount of penalty under Subdivision 284-C in relation to
a *scheme to which paragraph 177C(1)(bc) of the Income Tax
Assessment Act 1936 applies for a *withholding payment; or
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 18-40

(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.

Remission
(2) If:
(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;
then:
(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.
(3) If:
(a) an entity has paid to the Commissioner an amount of *general
interest charge mentioned in paragraph (1)(b); and
(b) the Commissioner remits the whole or a part of the amount of
the charge under section 8AAG;
then:
(c) any credit under subsection (1) relating to the amount 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.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 18-42

Entitlement to credit: departing Australia superannuation

payment

18-42 Credit—departing Australia superannuation payment

Credit—amount withheld
(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.

Credit—penalty amount
(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.

Remission
(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.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-45

Entitlement to credit: mining payment

18-45 Credit—mining payment

Credit—amount withheld
(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:
1
The amount withheld 
Number of those entities

Credit—penalty amount
(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:
1
The penalty amount 
Number of those entities

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 18-55

Remission
(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.

Entitlement to credit: Petroleum resource rent tax

18-55 Credit—Natural resource payments

(1) An entity is entitled to a credit in a year of tax (within the meaning
of the Petroleum Resource Rent Tax Assessment Act 1987) if:
(a) one or more *withholding payments covered by
section 12-325 (natural resource payments) from which there
are *amounts withheld in respect of *petroleum resource rent
tax are made to the entity during the year of tax; and
(b) an assessment has been made of the petroleum resource rent
tax payable, or an assessment has been made that no
petroleum resource rent tax is payable, by the entity for the
year of tax.
(2) The amount of the credit is so much of the total of the *amounts
withheld as is withheld in respect of *petroleum resource rent tax.

Entitlement to credit: taxable supply of real property

18-60 Credit—payment relating to taxable supply of real property

(1) An entity is entitled to a credit if:
(a) the entity is liable for *GST on a *taxable supply to which
subsection 14-250(2) applies; and
(b) another entity made a payment under section 14-250 in
relation to the supply.
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-65

(2) The amount of the credit is an amount equal to the amount of the
payment.
(3) The credit arises when an assessment has been made of the entity’s
*net amount for the *tax period of the entity in which the payment
was made.

Subdivision 18-B—Refund of certain withheld amounts

Table of sections
18-65 Refund of withheld amounts by the payer to the recipient
18-70 Refund of withheld amounts by the Commissioner to the recipient
18-80 Refund by Commissioner of amount withheld from payment in respect of
investment
18-85 Refund by Commissioner of amount withheld from payment in respect of
supply of real property

18-65 Refund of withheld amounts by the payer to the recipient

(1) An entity (the payer) must refund to another entity (the recipient)
an amount if:
(a) the payer:
(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 (other than Subdivisions 14-D and 14-E) for
a *non-cash benefit provided to, or received for, the
recipient; and
(b) either:

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 18-65

(i) the amount was so withheld, or paid to the

Commissioner, in error; or
(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
(c) either:
(i) the payer becomes aware of the matter mentioned in
paragraph (b); or
(ii) the recipient applies to the payer for the refund;
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.
(1A) For the purposes of this section, if an entity has paid an amount to
the Commissioner purportedly under Subdivision 12A-C (about
deemed payments by AMITs), treat the entity as having withheld
the amount purportedly under Division 12.
(2) The amount that must be refunded under subsection (1) is a debt
recoverable by the recipient from the payer.

Request for tax file number (or in some cases, ABN)

(3) The payer may request the recipient to give to the payer:
(a) in any case—the recipient’s *tax file number; or
(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;

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-65

if:
(d) the payment, *alienated personal services payment or
non-cash benefit was in respect of any of the following
provisions:
(i) Subdivision 12-B (payments for work or services);
(ii) Subdivision 12-C (Payments for retirement or because
of termination of employment);
(iii) Subdivision 12-D (benefits and compensation
payments);
(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:
(i) the recipient’s tax file number;
(ii) the basis on which the recipient is taken to have quoted
the tax file number to the payer;
(iii) if paragraph (c) applies—the recipient’s ABN.

When must the request be made

(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).

Recovery of refunded amount

(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

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 18-70

Commissioner as mentioned in subparagraph (1)(a)(ia) or

(ii); and
(b) which the payer has not recorded as being offset under
subsection (6).

Offsetting a refunded amount

(6) If:
(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 (other than Subdivision 14-D) 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.
(7) The payer must not record that it offsets any part of an amount
that:
(a) the payer has previously recorded under subsection (6); or
(b) the payer has sought to recover from the Commissioner
under subsection (5).

18-70 Refund of withheld amounts by the Commissioner to the

recipient
(1) An entity (the recipient) may apply in writing to the Commissioner
for the refund of an amount if:
(a) another entity (the payer):
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-70

(i) withheld an amount purportedly under Division 12 from

a payment made to, or received for, the recipient; 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 to the Commissioner an amount purportedly under
Division 14 for a *non-cash benefit provided to, or
received for, the recipient; or
(iii) paid to the Commissioner an amount purportedly under
Subdivision 14-D for *capital proceeds provided to, or
applied on behalf of, the recipient; and
(b) either:
(i) the amount was so withheld, or paid to the
Commissioner, in error; or
(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
(c) if subparagraph (a)(i), (ia) or (ii) applies—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.
(1A) For the purposes of this section, if an entity has paid an amount to
the Commissioner purportedly under Subdivision 12A-C (about
deemed payments by AMITs), treat the entity as having withheld
the amount purportedly under Division 12.
(2) The Commissioner must refund the amount if the application sets
out:
(a) if the recipient has a *tax file number—that tax file number;
or

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Pay as you go (PAYG) withholding Part 2-5

Section 18-80

(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
(e) the nature of the matter mentioned in paragraph (1)(b); and
(f) any other matter the Commissioner considers relevant.
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.

18-80 Refund by Commissioner of amount withheld from payment

in respect of investment
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:
(a) the entity applies in writing for the refund; and
(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.
_____________________________________
*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-85

18-85 Refund by Commissioner of amount withheld from payment

in respect of supply of real property
(1) An entity (the recipient) may apply, in the *approved form, to the
Commissioner for the refund of an amount if:
(a) another entity (the payer) has made a payment under
section 14-250, or purportedly under that section, in relation
to a supply by the recipient; and
(b) the payment, or part of the payment, was made in error.
(2) The application must be made no later than 14 days before the day
on which *GST is payable on the supply.
(3) The amount of the refund that the recipient may apply for is an
amount equal to the amount of the payment, or the part of the
payment that was made in error, as the case requires.
(4) The Commissioner must refund the amount under subsection (3) if
the Commissioner is satisfied that paragraphs (1)(a) and (b) apply
and that it would be fair and reasonable to refund the amount,
having regard to:
(a) the circumstances that gave rise to the obligation (if any) to
make the payment under section 14-250; and
(b) the nature of the error; and
(c) any other matter the Commissioner considers relevant.

Subdivision 18-C—Recipient’s obligations

18-100 Obligation to keep payment summary

(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:
(a) 5 years after the end of that financial year; or
(b) a shorter period determined by the Commissioner in writing
for the entity; or

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Pay as you go (PAYG) withholding Part 2-5

Section 18-100

(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.
(1A) An offence under subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

Subdivision 18-D—Directors etc. of non-complying companies

Table of sections
Object of Subdivision
18-120 Object of Subdivision

PAYG withholding non-compliance tax

18-125 Directors of non-complying companies
18-130 Directors of non-complying companies—tax reduced in certain
circumstances
18-135 Associates of directors of non-complying companies
18-140 Notices
18-145 When PAYG withholding non-compliance tax must be paid
18-150 General interest charge payable on unpaid PAYG withholding
non-compliance tax
18-155 Validity of decisions and evidence
18-160 Rights of indemnity and contribution

Credits for later compliance

18-165 Credits for later compliance—scope
18-170 Credits for later compliance—Commissioner must give notice in certain
circumstances
18-175 Credits for later compliance—Commissioner may give notice
18-180 Effect of earlier credits

Other provisions
18-185 When Commissioner may give notice
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-120

18-190 Review of decisions

Object of Subdivision

18-120 Object of Subdivision

The object of this Subdivision is to reverse the economic benefit of
a credit under section 18-15 (Tax credit for recipient of
withholding payment) of a director, or an *associate of a director,
of a company if:
(a) the company does not comply with its obligations under
subsection 16-70(1) (obligation to pay amounts withheld to
the Commissioner); and
(b) the credit is attributable to *amounts withheld from
*withholding payments made by the company to the director
or associate;
until the company complies with its obligations.

PAYG withholding non-compliance tax

18-125 Directors of non-complying companies

Liability to pay PAYG withholding non-compliance tax

(1) An individual must pay *PAYG withholding non-compliance tax in
relation to a company for an income year of the individual if:
(a) the individual is or has been a director (within the meaning of
the Corporations Act 2001) of the company; and
(b) the company was required to pay to the Commissioner under
subsection 16-70(1) in this Schedule amounts:
(i) the company withheld from *withholding payments the
company made to any entities during the income year of
the individual; and
(ii) to which subsection (2) applies; and
(c) the company did not pay the total of those amounts to the
Commissioner on or before the last day (the non-compliance
day) on or before which the company was required to pay
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 18-125

any of those amounts to the Commissioner in accordance

with subsection 16-70(1); and
(d) a credit to which the individual is entitled under
section 18-15 is attributable to an extent to *amounts
withheld by the company under Division 12 from
withholding payments made to the individual during the
income year of the individual.
Note: For the purposes of paragraph (1)(d), it does not matter whether
the company pays the amounts withheld from the withholding
payments made to the individual to the Commissioner under
subsection 16-70(1).

(2) This subsection applies to *amounts withheld that the company was
required to pay to the Commissioner on or before a particular day
(the payment day) under subsection 16-70(1), if:
(a) both of the following subparagraphs apply:
(i) the individual was a director (within the meaning of the
Corporations Act 2001) of the company on the payment
day;
(ii) the company did not pay the total of those amounts to
the Commissioner in accordance with
subsection 16-70(1) on or before the payment day; or
(b) all of the following subparagraphs apply:
(i) the individual became a director of the company after
the payment day;
(ii) the individual was still a director of the company 30
days after becoming a director;
(iii) the company did not pay the total of those amounts to
the Commissioner in accordance with
subsection 16-70(1) on or before the last of those 30
days.

Amount of tax
(3) The amount of the *PAYG withholding non-compliance tax the
individual must pay is the lesser of:
(a) the extent of the credit mentioned in paragraph (1)(d); and
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Part 2-5 Pay as you go (PAYG) withholding

Section 18-130

(b) the total amount the company did not pay to the
Commissioner as mentioned in paragraph (1)(c).

18-130 Directors of non-complying companies—tax reduced in

certain circumstances
(1) The amount of the *PAYG withholding non-compliance tax the
individual must pay as mentioned in section 18-125 is reduced if
the Commissioner gives a notice to the individual under this
section.

Notice
(2) The Commissioner must give a written notice to the individual on a
day (the reduction notice day) (whether before, on or after the day
(if any) the Commissioner gives the individual the relevant notice
under section 18-140), if the Commissioner is satisfied that:
(a) because of illness or for some other good reason, it would
have been unreasonable to expect the individual to take part,
and the individual did not take part, in the management of the
company at any time during the period:
(i) starting on a day on or by which the company was
required to pay any of the total mentioned in
paragraph 18-125(1)(c) to the Commissioner under
subsection 16-70(1); and
(ii) ending on the reduction notice day; or
(b) the individual took all reasonable steps to ensure that one of
the following happened:
(i) the directors (within the meaning of the Corporations
Act 2001) of the company caused the company to pay
the total of the amounts mentioned in
paragraph 18-125(1)(c) to the Commissioner;
(ii) the directors caused an administrator of the company to
be appointed under section 436A, 436B or 436C of the
Corporations Act 2001;

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 18-130

(iia) the directors caused a small business restructuring

practitioner for the company to be appointed under
section 453B of that Act;
(iii) the directors caused the company to begin to be wound
up (within the meaning of that Act);
or there were no reasonable steps the individual could have
taken to ensure that any of those things happened.
(3) In determining what are reasonable steps for the purposes of
paragraph (2)(b), the Commissioner must have regard to:
(a) when, and for how long, the individual was a director and
took part in the management of the company; and
(b) all other relevant circumstances.

Amount of reduction
(4) The amount of the reduction is the amount stated in the notice.
(5) In determining the amount to state in the notice, the Commissioner
must have regard to:
(a) in a case to which paragraph (2)(a) applies—when, and for
how long, the individual could not have been expected to
take part, and did not take part, in the management of the
company; and
(b) in a case to which paragraph (2)(b) applies—when, and for
how long, the individual was a director and took part in the
management of the company; and
(c) in either case—what is fair and reasonable in the
circumstances.

Effect of reduction
(6) The amount of the *PAYG withholding non-compliance tax the
individual must pay is treated as always having been that amount
as reduced under this section.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-135

18-135 Associates of directors of non-complying companies

Liability to pay PAYG withholding non-compliance tax

(1) An individual must pay *PAYG withholding non-compliance tax in
relation to a company for an income year of the individual if:
(a) at a time when another individual (the director) was a
director (within the meaning of the Corporations Act 2001)
of the company, the first individual was an *associate of the
director; and
(b) the company was required to pay to the Commissioner under
subsection 16-70(1) in this Schedule amounts:
(i) the company withheld from *withholding payments the
company made to any entities during the income year of
the individual; and
(ii) to which subsection (2) of this section applies; and
(c) the company did not pay the total of those amounts to the
Commissioner on or before the last day (the non-compliance
day) on or before which the company was required to pay
any of those amounts to the Commissioner in accordance
with subsection 16-70(1); and
(d) subsection (3) or (6) of this section applies; and
(e) a credit to which the individual is entitled under
section 18-15 is attributable to an extent to *amounts
withheld by the company under Division 12 from
withholding payments made to the individual during the
income year of the individual.
Note: For the purposes of paragraph (1)(e), it does not matter whether
the company pays the amounts withheld from the withholding
payments made to the individual to the Commissioner under
subsection 16-70(1).

(2) This subsection applies to *amounts withheld that the company was
required to pay to the Commissioner on or before a particular day
(the payment day) under subsection 16-70(1), if:
(a) all of the following subparagraphs apply:

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Section 18-135

(i) the director was a director (within the meaning of the

Corporations Act 2001) of the company on the payment
day;
(ii) the individual was an *associate of the director on the
payment day;
(iii) the company did not pay the total of those amounts to
the Commissioner in accordance with
subsection 16-70(1) on or before the payment day; or
(b) all of the following subparagraphs apply:
(i) the director became a director of the company after the
payment day;
(ii) the director was still a director of the company 30 days
after becoming a director;
(iii) the individual was an *associate of the director
throughout that 30 day period;
(iv) the company did not pay the total of those amounts to
the Commissioner in accordance with
subsection 16-70(1) on or before the last of those 30
days.
(3) This subsection applies if the Commissioner is satisfied that:
(a) because of:
(i) the individual’s relationship with the director; or
(ii) a relationship of the individual with the company;
the individual knew, or could reasonably have been expected
to know, of the company’s failure to pay the total of the
amounts mentioned in paragraph (1)(c) to the Commissioner;
and
(b) none of the following subparagraphs applies:
(i) the individual took all reasonable steps to influence the
director to cause the company to notify the
Commissioner under Subdivision 18-C of the relevant
*amounts withheld;

(ii) the individual took all reasonable steps to influence the

director to cause one of the events mentioned in
subsection (4) to happen, or there were no reasonable
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-135

steps the individual could have taken to influence the

director to cause any of those events to happen;
(iii) the individual reported the company’s non-payment to
the Commissioner or to another authority with
responsibilities relevant to the operation of the
company.
Example: Other authorities with responsibilities relevant to the operation of
the company could include the Minister, the police, ASIC or the
Building and Construction Industry Commissioner.

(4) The following are the events:

(a) the company pays the total of the amounts mentioned in
paragraph (1)(c) to the Commissioner;
(b) an administrator of the company is appointed under
section 436A, 436B or 436C of the Corporations Act 2001;
(ba) a small business restructuring practitioner for the company is
appointed under section 453B of that Act;
(c) the company begins to be wound up (within the meaning of
that Act).
(5) In determining what are reasonable steps for the purposes of
paragraph (3)(b), have regard to:
(a) when, and for how long, the individual was an *associate of
the director; and
(b) when, and for how long, the director was a director and took
part in the management of the company; and
(c) all other relevant circumstances.
(6) This subsection applies if:
(a) the individual was an employee of the company; and
(b) the Commissioner is satisfied that the company treated the
individual more favourably than it treated other employees of
the company.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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 Collection and recovery of income tax and other liabilities Schedule 1
Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 18-140

Amount of tax
(7) The amount of the *PAYG withholding non-compliance tax the
individual must pay is the lesser of:
(a) the extent of the credit mentioned in paragraph (1)(e); and
(b) the total amount the company did not pay to the
Commissioner as mentioned in paragraph (1)(c).

18-140 Notices

Notices
(1) The Commissioner must not commence proceedings to recover:
(a) the *PAYG withholding non-compliance tax an individual
must pay for an income year in relation to a company as
mentioned in section 18-125 or 18-135; or
(b) any related *general interest charge payable under
section 18-150;
unless, after the non-compliance day mentioned in section 18-125
or 18-135, the Commissioner gives a written notice to the
individual under this section.
(2) The Commissioner may only give the notice if the Commissioner
is satisfied, on the basis of information available to the
Commissioner, that it is fair and reasonable for the individual to
pay *PAYG withholding non-compliance tax in relation to the
company for the income year.
(3) The Commissioner must not give the notice on a day if, on that
day:
(a) the individual; or
(b) in a case to which section 18-135 applies—the director
mentioned in that section;
is liable to pay to the Commissioner a penalty under Division 269
because the company has not complied with the obligation
mentioned in item 1 of the table in subsection 269-10(1) to pay to

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-140

the Commissioner an *amount withheld to which

paragraph 18-125(1)(b) or 18-135(1)(b) applies.
(4) The notice must specify:
(a) the company; and
(b) the income year; and
(c) the amount of the *PAYG withholding non-compliance tax
the individual must pay.

Effect of compliance between non-compliance day and notice day

(5) Subsections (6) and (7) apply if:
(a) the company’s liability to pay the total of the amounts
mentioned in paragraph 18-125(1)(c) or 18-135(1)(c) to the
Commissioner is discharged to any extent during the period:
(i) starting on the day after the non-compliance day; and
(ii) ending on the day before the day the Commissioner
gives the notice under this section to the individual; and
(b) had all discharges of the company’s liability occurring during
that period occurred before the non-compliance day:
(i) the individual would not have been required to pay the
*PAYG withholding non-compliance tax in relation to
the company for the income year; or
(ii) the amount of PAYG withholding non-compliance tax
the individual would have been required to pay would
have been less than the actual amount of PAYG
withholding non-compliance tax.
(6) The amount of the *PAYG withholding non-compliance tax the
individual must pay is reduced:
(a) in a case to which subparagraph (5)(b)(i) applies—to nil; or
(b) otherwise—to the amount of PAYG withholding
non-compliance tax the individual would have been required
to pay as mentioned in subparagraph (5)(b)(ii).

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

394 Taxation Administration Act 1953

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 Collection and recovery of income tax and other liabilities Schedule 1
Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 18-145

(7) The amount of the *PAYG withholding non-compliance tax the

individual must pay is treated as always having been that amount
as reduced under subsection (6).

18-145 When PAYG withholding non-compliance tax must be paid

(1) The *PAYG withholding non-compliance tax an individual must
pay for an income year is due and payable at the earliest time any
of the income tax the individual must pay for the *financial year to
which the income year relates is due and payable.
Note: Division 5 of the Income Tax Assessment Act 1997 explains how to
work out when to pay your income tax.

(2) For the purposes of subsection (1), if the individual is not required
to pay income tax for the *financial year:
(a) treat the individual as being required to pay income tax for
the financial year; and
(b) if the Commissioner has made an assessment that the income
tax the individual is required to pay is nil—treat that
assessment as being for an amount greater than nil.
Note: See Part 4-15 in this Schedule for collection and recovery provisions.

18-150 General interest charge payable on unpaid PAYG

withholding non-compliance tax
If an amount of *PAYG withholding non-compliance tax that an
individual must pay to the Commissioner remains unpaid after the
time by which it is due to be paid, the individual is liable to pay
*general interest charge on the unpaid amount of tax for each day
in the period that:
(a) started at the beginning of the day by which the unpaid
amount of tax 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 unpaid amount of tax;
(ii) general interest charge on any of the unpaid amount of
tax.
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Schedule 1 Collection and recovery of income tax and other liabilities
Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-155

18-155 Validity of decisions and evidence

Section 175 of the Income Tax Assessment Act 1936 (validity)
applies to a decision of the Commissioner under section 18-140 in
this Schedule in the same way as it applies to an assessment.

18-160 Rights of indemnity and contribution

(1) This section applies if an individual must pay *PAYG withholding
non-compliance tax as mentioned in section 18-125 or 18-135
because a company did not pay an amount to the Commissioner as
mentioned in paragraph 18-125(1)(c) or 18-135(1)(c).
(2) The individual has the same rights (whether by way of indemnity,
subrogation, contribution or otherwise) against the company or
anyone else as if:
(a) the individual had made a payment equal to the amount of
the *PAYG withholding non-compliance tax under a
guarantee of the liability of the company to pay the amount
to the Commissioner; and
(b) under the guarantee:
(i) the individual; and
(ii) every individual to whom subsection (3) applies;
were jointly and severally liable as guarantors (but only, in
the case of an individual to whom subparagraph (ii) of this
paragraph applies, to the extent to which subsection (3)
applies to the individual); and
(c) any credit to which the individual mentioned in
subsection (1) is entitled under section 18-170 or 18-175 in
relation to the amount of PAYG withholding non-compliance
tax were a repayment of the payment mentioned in
paragraph (a) of this subsection.
(3) This subsection applies to an individual to the extent that:
(a) the individual was a director (within the meaning of the
Corporations Act 2001) of the company on the day (the
payment day) on or by which the company was required to

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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 Collection and recovery of income tax and other liabilities Schedule 1
Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 18-165

pay the amount mentioned in subsection (1) to the

Commissioner; or
(b) both of the following subparagraphs apply:
(i) the individual became a director of the company after
the payment day;
(ii) the individual was still a director of the company 30
days after becoming a director.
(4) However, subsection (3) does not apply to an individual to the
extent that the amount of the *PAYG withholding non-compliance
tax the individual must pay in relation to the company for the
income year as mentioned in section 18-125 is reduced under
section 18-130.

Credits for later compliance

18-165 Credits for later compliance—scope

Sections 18-170, 18-175 and 18-180 apply if:
(a) an individual must pay *PAYG withholding non-compliance
tax in relation to a company for an income year because the
company did not pay to the Commissioner the total of the
amounts mentioned in paragraph 18-125(1)(c) or
18-135(1)(c); and
(b) the Commissioner gives to the individual a notice under
section 18-140 on a particular day (the tax notice day) in
relation to the PAYG withholding non-compliance tax the
individual must pay; and
(c) on or after the tax notice day, the company’s liability to pay
the total of the amounts to the Commissioner is discharged to
any extent.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Schedule 1 Collection and recovery of income tax and other liabilities
Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-170

18-170 Credits for later compliance—Commissioner must give

notice in certain circumstances

Commissioner must give notice to director or associate in certain

circumstances
(1) The Commissioner must give a written notice to the individual on a
particular day (the credit notice day) if, had the discharge
mentioned in paragraph 18-165(c) (and all previous discharges of
the company’s liability mentioned in that paragraph) occurred
before the tax notice day:
(a) the individual would not have been required to pay the
*PAYG withholding non-compliance tax in relation to the
company for the income year; or
(b) the amount of PAYG withholding non-compliance tax the
individual would have been required to pay would have been
less than the actual amount of PAYG withholding
non-compliance tax.
Note 1: Subsection 18-180(2) provides that the Commissioner must not give a
notice to the individual in certain circumstances.
Note 2: The amount of PAYG withholding non-compliance tax may be
limited by:
(a) the conditions in subsections 18-125(1) and (2) or 18-135(1) to
(6); or
(b) the limits on the amount of the tax in subsection 18-125(3) or
18-135(7).
Note 3: In working out the actual amount of the tax for the purposes of
paragraph (1)(b), have regard to other credits to which the individual
is entitled under this section or section 18-175. See
subsection 18-180(1).

Director or associate entitled to credit if Commissioner gives

notice
(2) The individual is entitled to a credit if the Commissioner gives a
written notice to the individual under subsection (1).
(3) The individual becomes entitled to the credit on the day the
Commissioner gives the notice to the individual.
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

398 Taxation Administration Act 1953

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 Collection and recovery of income tax and other liabilities Schedule 1
Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 18-175

Amount of credit
(4) The amount of the credit is the amount stated in the notice.
(5) In a case to which paragraph (1)(a) applies, the amount stated must
be the amount of the *PAYG withholding non-compliance tax.
(6) In any other case, the amount stated:
(a) must not exceed the amount of the *PAYG withholding
non-compliance tax; and
(b) must not exceed the amount of the discharge mentioned in
paragraph 18-165(c); and
(c) must not be less than the amount by which:
(i) the amount of the PAYG withholding non-compliance
tax; exceeds
(ii) the amount that would have been the amount of the
PAYG withholding non-compliance tax had the
discharge mentioned in paragraph 18-165(c) (and all
previous discharges of the company’s liability
mentioned in that paragraph) occurred before the tax
notice day.
(7) In determining the amount to state in the notice in a case to which
paragraph (1)(a) does not apply, the Commissioner must have
regard to what is fair and reasonable in the circumstances.

18-175 Credits for later compliance—Commissioner may give notice

Commissioner may give notice to director or associate

(1) The Commissioner may give a written notice to the individual on a
particular day (the credit notice day).
Note: Subsection 18-180(2) provides that the Commissioner must not give a
notice to the individual in certain circumstances.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Schedule 1 Collection and recovery of income tax and other liabilities
Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-180

Director or associate entitled to credit if Commissioner gives

notice
(2) The individual is entitled to a credit if the Commissioner gives a
written notice to the individual under subsection (1).
(3) The individual becomes entitled to the credit on the day the
Commissioner gives the notice to the individual.

Amount of credit
(4) The amount of the credit is the amount stated in the notice.
(5) The amount stated:
(a) must not exceed the amount of the *PAYG withholding
non-compliance tax; and
Note: In working out the amount of the tax for the purposes of
paragraph (5)(a), have regard to other credits to which the
individual is entitled under section 18-170 or this section. See
subsection 18-180(1).
(b) must not exceed the amount of the discharge mentioned in
paragraph 18-165(c).

Commissioner’s discretion
(6) In determining:
(a) whether to give a notice under this section; or
(b) the amount to state in the notice;
the Commissioner must have regard to what is fair and reasonable
in the circumstances.

18-180 Effect of earlier credits

(1) A reference in section 18-170 or 18-175, or subsection (2) of this
section, to the amount of the *PAYG withholding non-compliance
tax is treated as being a reference to:
(a) the amount of the PAYG withholding non-compliance tax;
less

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

400 Taxation Administration Act 1953

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 Collection and recovery of income tax and other liabilities Schedule 1
Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 18-185

Note: The amount of the PAYG withholding non-compliance tax may,

in a case to which section 18-125 applies, be affected by
reductions under section 18-130.
(b) the total of any credits to which the individual is entitled in
relation to the amount of PAYG withholding non-compliance
tax because of notices given to the individual under
section 18-170 or 18-175 before the credit notice day.
(2) The Commissioner must not give a written notice to the individual
under section 18-170 or 18-175 if, on the day before the credit
notice day, the amount of the *PAYG withholding non-compliance
tax is nil.

Other provisions

18-185 When Commissioner may give notice

The Commissioner may give a notice to the individual on a day
(the notice day) under section 18-130, 18-140, 18-170 or 18-175 if:
(a) on the notice day, the Commissioner has not given a notice of
assessment to the individual for the income year mentioned
in section 18-125 or 18-135; or
(b) if the notice would:
(i) in the case of a notice under section 18-130—result in
the individual being liable to pay *PAYG withholding
non-compliance tax or an increased amount of PAYG
withholding non-compliance tax; or
(ii) in the case of a notice under section 18-140—result in
the Commissioner being able to commence proceedings
to recover PAYG withholding non-compliance tax, or
an increased amount of PAYG withholding
non-compliance tax, from the individual; or
(iii) in the case of a notice under section 18-170 or 18-175—
reduce the amount of a credit or disentitle the individual
to a credit;

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Schedule 1 Collection and recovery of income tax and other liabilities
Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 18-190

the Commissioner gives the notice no later than 2 years after

first giving a notice of assessment to the individual for the
income year mentioned in section 18-125 or 18-135; or
(c) if the notice would:
(i) in the case of a notice under section 18-130—result in
the individual being liable to pay no PAYG withholding
non-compliance tax, or a reduced amount of PAYG
withholding non-compliance tax; or
(ii) in the case of a notice under section 18-140—result in
the Commissioner no longer being able to commence
proceedings to recover PAYG withholding
non-compliance tax, or result in the Commissioner
being able to commence proceedings to recover a
reduced amount of PAYG withholding non-compliance
tax, from the individual; or
(iii) in the case of a notice under section 18-170 or 18-175—
increase the amount of a credit or entitle the individual
to a credit;
the Commissioner gives the notice no later than 4 years after
first giving a notice of assessment to the individual for the
income year mentioned in section 18-125 or 18-135; or
(d) in any case—the Commissioner gives the notice:
(i) to give effect to a decision on a review or appeal; or
(ii) as a result of an objection made by the individual or
pending a review or appeal.

18-190 Review of decisions

An individual to whom the Commissioner gives a notice under
section 18-140 in relation to an amount of *PAYG withholding
non-compliance tax may object, under Part IVC of this Act, against
a decision of the Commissioner under section 18-130, 18-140,
18-170 or 18-175 in relation to the PAYG withholding
non-compliance tax if the individual is dissatisfied with the
decision.

_____________________________________
*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

402 Taxation Administration Act 1953

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 Collection and recovery of income tax and other liabilities Schedule 1
Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 20-35

Division 20—Other matters

Table of Subdivisions
20-B Offences
20-D Review of decisions

Subdivision 20-B—Offences

Table of sections
20-35 Offences
20-40 Joining of charges
20-45 Offences that would otherwise be committed by a partnership or
unincorporated company

20-35 Offences
(1) A person must not:
(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:

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Schedule 1 Collection and recovery of income tax and other liabilities
Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 20-40

(a) a copy of a *payment summary (except one relating to

Subdivision 12-H); or
(b) a document purporting to be a copy of such a payment
summary;
which is not a copy duly given to the person.
Penalty: 60 penalty units, or imprisonment for 12 months, or both.
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.
Penalty: 60 penalty units, or imprisonment for 12 months, or both.
Note: See section 4AA of the Crimes Act 1914 for the current value of a
penalty unit.

20-40 Joining of charges

(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:
(a) are founded on the same facts; or
(b) form a series of offences of the same or a similar character;
or
(c) are part of a series of offences of the same or similar
character.
(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.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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 Collection and recovery of income tax and other liabilities Schedule 1
Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 20-45

(3) If the charges are joined, the charges must be tried together unless
the court:
(a) considers it just that any of the charges should be tried
separately; and
(b) makes an order to that effect.
(4) If a person is convicted of 2 or more of the offences:
(a) the court may impose one penalty for both or all of those
offences; but
(b) the penalty must not exceed the sum of the maximum
penalties that could be imposed in respect of each offence
separately.

20-45 Offences that would otherwise be committed by a partnership

or unincorporated company
(1) An offence against this Part that would otherwise be committed by
a partnership is taken to have been committed by each partner who:
(a) aided, abetted, counselled or procured the relevant act or
omission; or
(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:
(a) aided, abetted, counselled or procured the relevant act or
omission; or
(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).

_____________________________________
*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Schedule 1 Collection and recovery of income tax and other liabilities
Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 20-80

Subdivision 20-D—Review of decisions

20-80 Reviewable decisions

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.

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)
14 Decision under subsection 14-220(1) not to issue a certificate on
application under subsection 14-220(2)
15 Decision under subsection 14-220(1) to issue a certificate
16 Decision under subsection 14-235(2) not to vary an amount on application
under subsection 14-235(3)
17 Decision under subsection 14-235(2) to vary an amount
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

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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 Collection and recovery of income tax and other liabilities Schedule 1
Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 20-80

Reviewable decisions
Item Description
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
62 Decision under section 16-147 not to register an entity that has applied to
be registered
63 Decision under section 16-148 to cancel a registration (including making a
determination under subsection 16-148(5))
65 Decision not to refund an amount under section 18-70
70 Decision not to refund an amount under section 18-80
Note: Division 298 also provides review rights about remission of
administrative penalties.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

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Schedule 1 Collection and recovery of income tax and other liabilities
Chapter 2 Collection, recovery and administration of income tax
Part 2-5 Pay as you go (PAYG) withholding

Section 21-1

Division 21—Entitlements relating to insolvent ADIs and

general insurers

Table of Subdivisions
Guide to Division 21
21-A Treatment of some payments by APRA

Guide to Division 21

21-1 What this Division is about

This Part applies in relation to a payment by APRA under:

(a) Division 2AA of Part II of the Banking Act 1959

applying in relation to an account with an ADI; or

(b) Part VC of the Insurance Act 1973 applying in

relation to a general insurance policy issued by a
general insurance company;

in a way corresponding to the way this Part would have applied if

the payment had been made by the ADI or company in connection
with the account or policy.

Subdivision 21-A—Treatment of some payments by APRA

Table of sections
21-5 APRA treated like ADI or general insurance company

21-5 APRA treated like ADI or general insurance company

(1) This section applies if:
(a) an entity’s entitlement under Division 2AA of Part II of the
Banking Act 1959 to be paid an amount by *APRA in
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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

408 Taxation Administration Act 1953

Compilation No. 209 Compilation date: 01/07/2024 Registered: 17/07/2024

Authorised Version C2024C00292 registered 17/07/2024

 Collection and recovery of income tax and other liabilities Schedule 1
Collection, recovery and administration of income tax Chapter 2
Pay as you go (PAYG) withholding Part 2-5

Section 21-5

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.

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*For definition, see section 995-1 of the Income Tax Assessment Act 1997.

Taxation Administration Act 1953 409

Compilation No. 209 Compilation date: 01/07/2024 Registered: 17/07/2024

Authorised Version C2024C00292 registered 17/07/2024