CLEAN ENERGY ACT 2011 (NO. 131, 2011) - SECT 274 Scheme to avoid future liability to pay unit shortfall charge
CLEAN ENERGY ACT 2011 (NO. 131, 2011) - SECT 274
Scheme to avoid future liability to pay unit shortfall chargeIntention
(1) A person commits an offence if:
(a) an amount of unit shortfall charge is payable by a body corporate or trust; and
(b) before the unit shortfall charge became due and payable, the person entered into a scheme; and
(c) the person entered into the scheme with the intention of securing or achieving the result, either generally or for a limited period, that, in the event that the body corporate or trust were to become liable to pay the unit shortfall charge, the body corporate or trust:
(i) will be unable; or
(ii) will be likely to be unable; or
(iii) will continue to be unable; or
(iv) will be likely to continue to be unable;
having regard to the other debts of the body corporate or trust, to pay the unit shortfall charge.
Penalty: Imprisonment for 10 years or 10,000 penalty units, or both.
(2) For the purposes of subsection (1), it is immaterial whether the body corporate or the trustee of the trust is:
(a) the person mentioned in subsection (1); or
(b) a party to the scheme.
Knowledge or belief
(3) A person commits an offence if:
(a) an amount of unit shortfall charge is payable by a body corporate or trust; and
(b) before the unit shortfall charge became due and payable, the person entered into a scheme; and
(c) the person entered into the scheme with the knowledge or belief that the scheme will, or will be likely to, secure or achieve the result, either generally or for a limited period, that, in the event that the body corporate or trust were to become liable to pay the unit shortfall charge, the body corporate or trust:
(i) will be unable; or
(ii) will be likely to be unable; or
(iii) will continue to be unable; or
(iv) will be likely to continue to be unable;
having regard to the other debts of the body corporate or trust, to pay the unit shortfall charge.
Penalty: Imprisonment for 10 years or 10,000 penalty units, or both.
(4) For the purposes of subsection (3), it is immaterial whether the body corporate or the trustee of the trust is:
(a) the person mentioned in subsection (3); or
(b) a party to the scheme.
Objective purpose
(5) A person (the first person ) commits an offence if:
(a) an amount of unit shortfall charge is payable by a body corporate or trust; and
(b) before the unit shortfall charge became due and payable, the first person entered into a scheme; and
(c) having regard to:
(i) the manner in which the scheme was entered into; and
(ii) the form and substance of the scheme, including any legal rights and obligations involved in the scheme and the economic and commercial substance of the scheme; and
(iii) the timing of the scheme;
it would be reasonable to conclude that the first person entered into the scheme for the sole or dominant purpose of securing or achieving the result, either generally or for a limited period, that, in the event that the body corporate or trust were to become liable to pay the unit shortfall charge, the body corporate or trust:
(iv) will be unable; or
(v) will be likely to be unable; or
(vi) will continue to be unable; or
(vii) will be likely to continue to be unable;
to pay the unit shortfall charge.
Penalty: Imprisonment for 3 years or 850 penalty units, or both.
(6) For the purposes of subsection (5), it is immaterial whether the body corporate or the trustee of the trust is:
(a) the first person; or
(b) a party to the scheme.