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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Termination Payments
Surcharge (Assessment and Collection) Bill
1997
No. ,
1997
(Treasury)
A Bill
for an Act relating to the assessment and collection of termination payments
surcharge, and for related purposes
9701320—1,550/11.2.1997—(13/97) Cat. No. 96
5899 8 ISBN 0644 496622
Contents
A Bill for an Act relating to the assessment and
collection of termination payments surcharge, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Termination Payments Surcharge
(Assessment and Collection) Act 1997.
This Act commences on the day on which it receives the Royal
Assent.
(1) This Act binds the Crown in right of the Commonwealth, of each of the
States, of the Australian Capital Territory, of the Northern Territory and of
Norfolk Island.
(2) Nothing in this Act permits the Crown to be prosecuted for an
offence.
This Act extends to Norfolk Island, the Territory of Cocos (Keeling)
Islands and the Territory of Christmas Island.
The object of this Act is to provide for the assessment and collection of
the termination payments surcharge. The surcharge is payable on payments of
kinds commonly known as golden handshakes that are made to high-income taxpayers
in consequence of the termination of their employment.
The following is a simplified outline of this Act.
• If any termination payments have been or are
made to or for a taxpayer after 7.30 pm on 20 August 1996, the Commissioner
will calculate the taxpayer’s adjusted taxable income for the financial
year in which the payments were or are made.
• If the amount calculated is greater than the
surcharge threshold, the Commissioner will calculate the rate of surcharge and
assess the amount of surcharge payable by the taxpayer on the payments. Only
part of certain employment-related termination payments is subject to the
surcharge.
• If, after the assessment of surcharge, the
taxpayer’s adjusted taxable income is found to be different from the
amount that was previously calculated or the termination payments are found to
be different from the amount on which the assessment was based, the Commissioner
may amend the assessment.
• If liability for surcharge is increased as a
result of an amendment of an assessment, interest is payable on the additional
surcharge.
• The provisions in the Taxation
Administration Act 1953 for objecting against assessments of income tax
apply to assessments of surcharge.
• A late payment penalty applies if surcharge
is not paid on time.
• The Commissioner may remit interest or late
payment penalty: a refusal to remit is reviewable by the Administrative Appeals
Tribunal.
Act provides for surcharge on termination payments
(1) This Act provides for the payment of surcharge on certain payments
(termination payments) made to or for high-earning taxpayers (see
subsection 8(2)) in consequence of the termination of their
employment.
Definition of termination payment
(2) A termination payment is a payment that:
(a) is made after 7.30 pm by legal time in the Australian Capital
Territory on 20 August 1996; and
(b) is the retained amount of an eligible termination payment for the
purposes of Subdivision AA of Division 2 of Part III of the
Income Tax Assessment Act because of paragraph (a) of the definition of
eligible termination payment in subsection 27A(1) of that
Act;
but does not include the retained amount of any post-June 1994
invalidity component of such a payment.
Surcharge payable on termination payments
(1) Termination payments surcharge is payable on any termination payments
made to or for a taxpayer.
No surcharge is payable unless adjusted taxable income is greater than
surcharge threshold
(2) Surcharge is payable only if the taxpayer’s adjusted taxable
income for the financial year in which the payments are made is greater than the
surcharge threshold for the financial year.
No surcharge is payable by residents of external
Territories
(3) Surcharge is not payable on any termination payments made to or for a
taxpayer in a financial year if the taxpayer is a Territory resident for the
purposes of Division 1A of Part III of the Income Tax Assessment Act
as it applies to the year of income that comprises that financial
year.
Taxpayer liable for surcharge
(4) The taxpayer is liable to pay the surcharge.
Termination payments made before 20 August 2001
(1) If a termination payment has been or is made to or for a taxpayer
after 20 August 1996 and before 20 August 2001, surcharge is
payable only on the part of the termination payment that is worked out using the
formula:
where:
post-20 August 1996 period means the number of days in the
period of the taxpayer’s employment for which the termination payment was
made that occurred after 20 August 1996.
total period means the number of days in the period of the
taxpayer’s employment for which the termination payment was
made.
Termination payments made on or after 20 August 2001
(2) If:
(a) a termination payment is made to or for a taxpayer on or after
20 August 2001; and
(b) the taxpayer is entitled to the payment under a written agreement
between the taxpayer and his or her employer that was entered into before
7.30 pm by legal time in the Australian Capital Territory on
20 August 1996;
surcharge is payable only on the part of the termination payment that is
worked out using the formula:
where:
post-20 August 1996 period means the number of days in the
period of the taxpayer’s employment in respect of which the termination
payment was made that occurred after 20 August 1996.
total period means the number of days in the period of the
taxpayer’s employment in respect of which the termination payment was
made.
Surcharge threshold for 1996-97 financial year
(1) The surcharge threshold for the 1996-97 financial year
is $70,000.
Surcharge threshold for later financial year
(2) The surcharge threshold for a later financial year is
the amount calculated using the formula:
where:
previous surcharge threshold means the surcharge threshold
for the financial year immediately before the financial year for which the
surcharge threshold is being calculated.
indexation factor means the number calculated under
subsections (4) and (5) for the financial year for which the surcharge
threshold is being calculated.
Rounding off of amount of surcharge threshold
(3) If an amount worked out for the purposes of subsection (2) is an
amount of dollars and cents:
(a) if the number of cents is less than 50—the amount is to be
rounded down to the nearest whole dollar; or
(b) otherwise—the amount is to be rounded up to the nearest whole
dollar.
Indexation factor
(4) The indexation factor for a financial year is the number
calculated, to 3 decimal places, using the formula:
where:
index number, for a quarter, means the estimate of full-time
adult average weekly ordinary time earnings for the middle month of the quarter
published by the Australian Statistician.
current March year means the period of 12 months ending on
31 March immediately before the financial year for which the surcharge
threshold is being calculated.
previous March year means the period of 12 months immediately
before the current March year.
Rounding up of indexation factor
(5) If the number calculated under subsection (4) for a financial
year would, if it were worked out to 4 decimal places, end with a number greater
than 4, the number so calculated is increased by 0.001.
Change in index numbers
(6) If at any time, whether before or after the commencement of this Act,
the Australian Statistician has published or publishes an index number for a
quarter in substitution for an index number previously published for the
quarter, the publication of the later index number is to be
disregarded.
Surcharge threshold to be published
(7) The Commissioner must publish before, or as soon as practicable after,
the start of the 1997-98 financial year, and before the start of each later
financial year, the surcharge threshold for the financial year.
Note: For the purposes of this section, Australian
Statistician means the Australian Statistician referred to in
subsection 5(2) of the Australian Bureau of Statistics Act
1975.
Commissioner to assess surcharge
(1) For each financial year in which termination payments are made to or
for a taxpayer, the Commissioner must:
(a) calculate the taxpayer’s adjusted taxable income; and
(b) if the adjusted taxable income is greater than the surcharge
threshold:
(i) calculate the termination payments; and
(ii) calculate the rate of surcharge that applies to the taxpayer;
and
(iii) make an assessment, directed to the taxpayer, of any surcharge
payable.
When surcharge is payable
(2) Surcharge assessed under subsection (1) is payable within one
month after the day on which the assessment is made.
Information to be included in an assessment
(3) An assessment of surcharge must explain the calculations on which the
assessment was based, including particulars of the adjusted taxable income for
the financial year, the termination payments and the amount of surcharge, and
must state the day by which the surcharge is payable.
Copy of assessment to be given to taxpayer
(4) When an assessment (including an amended assessment) is made, the
Commissioner must give a copy to the taxpayer.
Nil assessment
(5) If the Commissioner calculates that no surcharge is payable by a
taxpayer for a financial year, the calculation is taken, for the purposes of
this Act other than subsection (4), to be an assessment on which a nil
amount of surcharge was due and payable.
Application
(1) This section applies if, after the making of an assessment of
surcharge on a termination payment or termination payments made to or for a
taxpayer in a financial year:
(a) the taxpayer’s adjusted taxable income for the financial year is
increased or reduced and the increase or reduction affects the taxpayer’s
liability to pay the surcharge; or
(b) the amount of the payment or the sum of the amounts of the payments is
greater or less than the amount that was taken to be the amount of the payment
or the sum for the purposes of the assessment.
Commissioner may amend assessment
(2) The Commissioner may amend the assessment to take account of any
matter referred to in paragraph (1)(a) or (b).
Amendment increasing surcharge
(3) If, as a result of the amendment of the assessment, the amount of
surcharge is increased, the amount of the increase is payable within one month
after the day on which the assessment is amended.
Amendment reducing surcharge
(4) If:
(a) as a result of the amendment of the assessment, the amount of
surcharge is reduced; and
(b) the amount previously assessed to be paid has been paid;
the amount by which the surcharge is reduced is to be repaid to the
taxpayer.
Liability to pay interest
(1) If an amendment of an assessment increasing a taxpayer’s
liability to pay surcharge is made, the taxpayer must pay interest to the
Commonwealth, calculated in accordance with subsection (2), on the amount
of the increase.
Calculation of interest
(2) Interest payable by a taxpayer under subsection (1) as a result
of an amended assessment (the current amended assessment) of
surcharge for a financial year is to be calculated:
(a) for the period:
(i) starting on 15 June in the financial year; and
(ii) ending on the day on which the current amended assessment is made;
and
(b) at such annual rate or rates of interest as are provided for by
section 214A of the Income Tax Assessment Act.
Amendment of nil assessment
(3) If:
(a) the Commissioner has calculated that no surcharge is payable by a
taxpayer for a financial year; and
(b) the Commissioner afterwards makes an assessment of surcharge payable
by the taxpayer for the financial year;
the assessment referred to in paragraph (b) is taken to be an amended
assessment.
Interest less than 50 cents
(4) If the amount of interest that would be payable under
subsection (1) by a taxpayer is less than 50 cents, the interest is
not payable.
Notice of interest to be given
(5) If a taxpayer is liable to pay interest under this section, the
Commissioner must notify the taxpayer of:
(a) the period for which the taxpayer is liable to pay the interest;
and
(b) the amount of the interest; and
(c) a date (not earlier than 30 days after the day on which the
notification was given) as the due date for payment of the interest;
and the amount is due and payable on that date.
Commissioner may remit interest
(6) The Commissioner may remit the whole or part of any interest payable
by a taxpayer under this section.
Note: A refusal to remit interest is reviewable by the
Administrative Appeals Tribunal (see section 20).
The Commissioner may use for the purposes of this Act a tax file number
that has been provided for any other purpose.
If:
(a) an assessment of surcharge payable by a taxpayer is made;
and
(b) the taxpayer is dissatisfied with the assessment;
the taxpayer may object against it in the way set out in Part IVC of the
Taxation Administration Act 1953.
Monthly penalty for non-payment
(1) If an amount of surcharge payable by a taxpayer remains unpaid
throughout the whole or part of:
(a) the calendar month starting on the day after the day on which the
amount became due and payable; or
(b) any following calendar month;
the taxpayer must pay to the Commonwealth, for that calendar month, a
penalty worked out under subsection (2). However, this subsection does not
apply if the amount was fully paid before the 15th day of the calendar month
referred to in paragraph (a).
Note: Calendar month is defined by
section 22 of the Acts Interpretation Act 1901.
Calculation of penalty
(2) The penalty for a calendar month is the amount worked out using the
following formula and rounded up to the nearest whole dollar:
where:
unpaid amount means the amount of surcharge unpaid at the
start of the calendar month.
When penalty is payable
(3) Late payment penalty for a calendar month is due and payable at the
end of that month.
Commissioner may remit penalty
(4) The Commissioner may remit the whole or part of an amount of late
payment penalty.
Note: A refusal to remit late payment penalty is reviewable
by the Administrative Appeals Tribunal (see section 20).
The following may be recovered by the Commonwealth as debts due to the
Commonwealth:
(a) surcharge that is due and payable;
(b) interest that is due and payable;
(c) late payment penalty that is due and payable.
Surcharge, interest and late payment penalty are payable to the
Commissioner.
If:
(a) 2 or more debts are due to the Commonwealth under this Part;
and
(b) an amount is paid to the Commissioner on account of one or more of the
debts; and
(c) the total amount of the debts payable exceeds the amount
paid;
the following provisions have effect:
(d) the Commissioner may apply the amount paid in partial discharge of the
total amount of the debts; and
(e) the Commonwealth may recover the balance.
Request to reconsider decision
(1) If the Commissioner decides not to remit the whole or part of any
interest or late payment penalty, the taxpayer may, within 21 days after the day
on which the taxpayer receives notice of the decision, or within any further
period that the Commissioner allows, request the Commissioner to reconsider the
decision.
Reasons for request to be stated
(2) The request is to set out the reasons for making it.
Commissioner to reconsider decision
(3) On receipt of the request, the Commissioner must reconsider the
decision and may confirm or revoke the decision or vary the decision in any
way.
Reconsideration not completed within 21 days
(4) If the Commissioner does not confirm, revoke or vary the decision
within 21 days after the day on which the Commissioner received the request, the
Commissioner is taken, at the end of that period, to have confirmed the
decision.
Notice of reconsideration
(5) If the Commissioner confirms, revokes or varies a decision within the
period referred to in subsection (4), the Commissioner must tell the
taxpayer the result of the reconsideration and the reasons for confirming,
varying or revoking the decision, as the case may be.
Application for review of decision
(6) Applications may be made to the Administrative Appeals Tribunal for
review of decisions of the Commissioner that have been confirmed or
varied.
Manner of applying for review
(7) If a decision is taken, because of subsection (4), to be
confirmed, section 29 of the Administrative Appeals Tribunal Act
1975 applies as if the prescribed time for making application for review of
the decision were the period starting on the day on which the decision is taken
to be confirmed and ending on the 28th day after that day.
Operation of decision that is subject to review
(8) If a request is made under subsection (1) for the reconsideration
of a decision, section 41 of the Administrative Appeals Tribunal Act
1975 applies as if the making of the request were the making of an
application to the Administrative Appeals Tribunal for a review of the
decision.
Hearing of review to be in private
(9) The hearing of a proceeding before the Administrative Appeals Tribunal
that relates to a decision referred to in subsection (6) is to take place
in private and the Tribunal may, by order:
(a) give directions as to the persons who may be present; and
(b) give directions of a kind referred to in paragraph 35(2)(b)
or (c) of the Administrative Appeals Tribunal Act
1975.
The Commissioner has the general administration of this Act.
After the end of each financial year, the Commissioner must give the
Treasurer a report on the working of this Act during the year for presentation
to the Parliament.
Definitions
(1) In this section:
court includes any tribunal, authority or person having power
to require the production of documents or the answering of questions.
person to whom this section applies means a person who is or
has been:
(a) the Commissioner, a Second Commissioner or a Deputy Commissioner;
or
(b) an officer or employee of the branch of the Australian Public Service
under the direct control of the Commissioner; or
(c) otherwise appointed or employed by, or a provider of services for, the
Commonwealth.
produce includes permit access to.
protected document means a document that:
(a) contains information about a person; and
(b) is obtained or made by a person to whom this section applies in the
course of, or because of, the person’s duties under or in relation to this
Act.
protected information means information that:
(a) concerns a person; and
(b) is disclosed to, or obtained by, a person to whom this section applies
in the course of, or because of, the person’s duties under or in relation
to this Act.
Information may be recorded or divulged only for purposes of
Act
(2) A person to whom this section applies must not:
(a) make a record of any protected information; or
(b) whether directly or indirectly, divulge or communicate to a person any
protected information about another person;
unless the record is made, or the information is divulged or
communicated:
(c) under or for the purposes of this Act; or
(d) in the performance of duties, as a person to whom this section
applies, under or in relation to this Act.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Information may be divulged to persons performing duties under Acts
administered by Commissioner
(3) Subsection (2) does not prohibit the Commissioner, a Second
Commissioner or a Deputy Commissioner, or a person authorised by the
Commissioner, a Second Commissioner or a Deputy Commissioner, from divulging or
communicating any protected information to a person performing, as a person to
whom this section applies, duties under or in relation to an Act of which the
Commissioner has the general administration, or under regulations made under
such an Act, for the purpose of enabling the person to perform the
duties.
Divulging of information to Minister
(4) A person divulges or communicates protected information to a person in
contravention of subsection (2) if the person divulges or communicates the
information to a Minister.
Court may not require information or documents
(5) A person to whom this section applies is not required:
(a) to divulge or communicate protected information to a court;
or
(b) to produce a protected document in court;
except where it is necessary to do so for the purpose of carrying into
effect the provisions of this Act.
Information may be divulged to persons performing duties under this
Act
(6) Nothing in this or any other Act of which the Commissioner has the
general administration prohibits the Commissioner, a Second Commissioner or a
Deputy Commissioner, or a person authorised by the Commissioner, a Second
Commissioner or a Deputy Commissioner, from divulging or communicating any
information to a person performing, as a person to whom this section applies,
duties under or in relation to this Act for the purpose of enabling the person
to perform the duties.
Information may be divulged to court for purposes of this
Act
(7) Nothing in this or any other Act of which the Commissioner has the
general administration prohibits the Commissioner, a Second Commissioner, a
Deputy Commissioner, or a person authorised by the Commissioner, a Second
Commissioner or a Deputy Commissioner, from:
(a) divulging or communicating to a court any information obtained under
or for the purposes of such an Act; or
(b) producing in court a document obtained or made under or for the
purposes of such an Act;
where it is necessary to do so for the purpose of carrying into effect the
provisions of this Act.
Oath or declaration of secrecy
(8) A person to whom this section applies must, if and when required by
the Commissioner, a Second Commissioner or a Deputy Commissioner to do so, make
an oath or declaration, in a manner and form determined by the Commissioner in
writing, to maintain secrecy in accordance with this section.
The Commissioner may, by writing, authorise a person who is an officer or
employee within the meaning of the Public Service Act 1922 to be an
authorised officer for the purposes of a provision or provisions of this
Act.
Assessment to be evidence of correctness of calculations
(1) The mere production of:
(a) an assessment; or
(b) a document signed by the Commissioner, a Second Commissioner or a
Deputy Commissioner purporting to be a copy of an assessment;
is conclusive evidence of the due making of the assessment and, except in
proceedings under Part IVC of the Taxation Administration Act 1953
on a review or appeal relating to the assessment, that the amounts and all of
the particulars of the assessment are correct.
Copies of documents
(2) A document signed by the Commissioner, a Second Commissioner or a
Deputy Commissioner purporting to be a copy of a document issued or given by the
Commissioner, a Second Commissioner or a Deputy Commissioner is prima facie
evidence that the second-mentioned document was so issued or given.
Copy of, or extract from, assessment
(3) A document signed by the Commissioner, a Second Commissioner or a
Deputy Commissioner purporting to be a copy of, or an extract from, an
assessment is evidence of the matter set out in the document to the same extent
as the original assessment would be if it were produced.
Certificates
(4) A certificate signed by the Commissioner, a Second Commissioner or a
Deputy Commissioner certifying that an amount stated in the certificate was, on
the day of the certificate, payable by a person as an amount of surcharge,
interest or late payment penalty, is prima facie evidence of the matters stated
in the certificate.
Powers of authorised officer
(1) For the purposes of this Act, an authorised officer:
(a) may, at any reasonable time, enter and remain on any land or premises;
and
(b) is entitled to full and free access at any reasonable time to all
documents; and
(c) may inspect, examine, make copies of, or take extracts from, any
documents.
Proof of authority to be produced
(2) An authorised officer is not entitled to enter or remain on any land
or premises if, on being requested by the occupier of the land or premises for
proof of authority, the officer does not produce a written authority signed by
the Commissioner stating that the officer is authorised to exercise powers under
this section.
Occupier to help authorised officer
(3) The occupier of land or premises entered or proposed to be entered by
an authorised officer under subsection (1) must, for the purpose of
enabling the effective exercise of the officer’s powers under this
section, provide the officer with all reasonable facilities and assistance that
the occupier is reasonably capable of providing.
Penalty: 10 penalty units.
Note: Chapter
2 of the Criminal Code sets out the general
principles of criminal responsibility.
Power of Commissioner to obtain information or documents
(1) The Commissioner may, for the purposes of this Act, by written notice,
require a person:
(a) to give to the Commissioner, within a reasonable period, and in a
reasonable manner, stated in the notice, any information that the Commissioner
requires; and
(b) to attend before the Commissioner, or an authorised officer, at a
reasonable time and place stated in the notice, and answer questions;
and
(c) to produce to the Commissioner, at a reasonable time and place stated
in the notice, any documents in the custody or under the control of the
person.
Power to require information on oath or affirmation
(2) The Commissioner may require the information or answers to be verified
or given on oath or affirmation, and either orally or in writing, and for that
purpose the Commissioner or an authorised officer may administer an oath or
affirmation.
Nature of oath or affirmation
(3) The oath to be taken or affirmation to be made by a person is an oath
or affirmation that the information or answers the person will give will be
true.
Expenses of attendance
(4) The regulations are to prescribe scales of expenses to be allowed to
persons required to attend under this section.
Employer to keep records
(1) An employer must keep records that record and explain all termination
payments made by the employer.
How records to be kept
(2) The records must be kept in writing in the English language or so as
to enable the records to be readily accessible and convertible into writing in
the English language.
Period for retention of records
(3) An employer who has possession of any records kept or obtained under
or for the purposes of this Act must retain them until the end of 5 years after
they were prepared or obtained, or the making of the payments to which those
records relate, whichever is the later.
When records need not be kept
(4) This section does not require an employer to retain records
if:
(a) the Commissioner has notified the employer that the retention of the
records is not required; or
(b) the employer is a company that has gone into liquidation and been
finally dissolved.
Offences
(5) An employer who contravenes this section is guilty of an offence
punishable on conviction by a fine of not more than 300 penalty units.
Note: Chapter
2 of the Criminal Code sets out the general
principles of criminal responsibility.
Chapter 2 of the Criminal Code applies to all offences against
this Act.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
In this Act, unless the contrary intention applies:
adjusted taxable income of a taxpayer has the same meaning as
adjusted taxable income of a member has in the Superannuation
Contributions Surcharge (Assessment and Collection) Act 1997.
assessment means an assessment of surcharge.
authorised officer means an officer or employee within the
meaning of the Public Service Act 1922 who has been authorised in writing
by the Commissioner for the purposes of the provision in which the expression
occurs.
Commissioner means the Commissioner of Taxation.
Deputy Commissioner means a Deputy Commissioner of
Taxation.
Income Tax Assessment Act means the Income Tax Assessment
Act 1936.
interest means interest payable under
section 13.
late payment penalty means penalty payable under
section 16.
post-June 1994 invalidity component of an eligible
termination payment has the meaning given by subsection 27A(1) of the
Income Tax Assessment Act.
retained amount has the meaning given by section 27AC of
the Income Tax Assessment Act.
Second Commissioner means a Second Commissioner of
Taxation.
surcharge threshold has the meaning given by
section 10.
taxpayer means an individual who is a taxpayer for the
purposes of the Income Tax Assessment Act but does not include an individual
acting as a trustee.
termination payment has the meaning given by
subsection 7(2).
termination payments surcharge or surcharge
means the termination payments surcharge imposed by the Termination Payments
Surcharge Imposition Act 1997.
the 1996-97 financial year means the financial year that
started on 1 July 1996.