Commonwealth Numbered Acts

INCOME TAX ASSESSMENT AMENDMENT ACT (NO. 2) 1979 No. 27 of 1979 - SECT 8

8. After section 221YY of the Principal Act the following Division is inserted
in Part VI:

''Division 5-Collection of Mining Withholding Tax Object of Division
''221Z. The object of this Division is to facilitate the collection of mining
withholding tax, and this Division shall be construed and administered
accordingly. Interpretation
''221ZA. (1) In this Division, unless the contrary intention appears-

'government' means the Commonwealth, a State or the Northern Territory, or an
authority of the Commonwealth, of a State or of the Northern Territory;

'mining payment' has the same meaning as in section 128U.

''(2) Unless the contrary intention appears, a reference in this Division to a
person shall be read as including a reference to a government. Deductions from
mining payments
''221ZB. (1) A person shall not make a mining payment to a person or persons
or apply a mining payment for the benefit of a person or persons unless the
person has made a deduction from the mining payment of an amount equal to 6.4%
of the amount of the mining payment.

''(2) A person, other than a government, who contravenes sub-section (1) is
guilty of an offence and is punishable, upon conviction, by a fine not
exceeding $200. Deductions to be forwarded to Commissioner, &c.
''221ZC. (1) Where a person has made a deduction from a mining payment and
that deduction was made, or purports to have been made, for the purposes of
section 221ZB-

   (a)  that person shall, before the expiration of 21 days after the end of
        the month in which the deduction was made, pay to the Commissioner an
        amount equal to the deduction; and

   (b)  that person shall, before the expiration of 2 months after the end of
        the financial year in which the deduction was made or within such
        further time as the Commissioner allows, furnish to the Commissioner a
        statement with respect to the deduction, in a form authorised by the
        Commissioner, signed by or on behalf of the person who made the
        deduction.

''(2) A person, other than a government, who fails to comply with paragraph
(a) of sub-section (1) is guilty of an offence against this Act and is
punishable, upon conviction, by a fine not exceeding $1,000 or imprisonment
for a period not exceeding 6 months.

''(3) A person, other than a government, who fails to comply with paragraph
(b) of sub-section (1) is guilty of an offence against this Act and is
punishable, upon conviction, by a fine not exceeding $200.

''(4) Where an amount payable to the Commissioner by a person under this
section remains unpaid after the expiration of the period before the
expiration of which it is required by this section to be paid-

   (a)  that amount continues to be payable by that person to the
        Commissioner; and

   (b)  in the case of a person other than the Commonwealth-an additional
        amount is, in addition to any other penalty to which that person may
        be liable, payable by that person to the Commissioner at the rate of
        10% per annum on the amount unpaid, computed from the expiration of
        that period.

''(5) The Commissioner may, in any case, for reasons that he thinks
sufficient, remit any additional amount payable under sub-section (4) or any
part of such an additional amount. Liability of person who fails to make
deduction, &c.
''221ZD. (1) Where a person other than the Commonwealth contravenes
sub-section (1) of section 221ZB in relation to a mining payment, the person
is liable, in addition to any other penalty to which that person may be
liable, to pay to the Commissioner-

   (a)  an amount equal to any unpaid mining withholding tax payable in
        respect of that mining payment; and

   (b)  an amount equal to 10% per annum of the amount of that unpaid mining
        withholding tax, calculated in respect of the period commencing on the
        twenty-second day after the end of the month in which that mining
        payment was made and ending on the day on which that person pays to
        the Commissioner the amount referred to in paragraph (a).

''(2) Where a person has, in relation to a mining payment, paid to the
Commissioner an amount referred to in paragraph (a) of sub-section (1), the
person may recover as a debt, from the person or persons to whom the mining
payment was made, or for whose benefit the mining payment was applied, as the
case may be, an amount equal to the amount paid to the Commissioner.

''(3) Where an amount payable under paragraph (a) of sub-section (1) has been
paid to the Commissioner-

   (a)  in a case to which paragraph (b) of this sub-section does not
        apply-the person liable to pay the mining withholding tax to which the
        amount relates is entitled to a credit equal to that amount; and

   (b)  in a case where, by reason of the making of the mining payment to
        which the amount relates, separate mining payments are deemed by
        sub-section (4) of section 128U, for the purposes of Division 11C of
        Part III, to have been made to, or applied for the benefit of, 2 or
        more persons-each of those persons is entitled to a credit of an
        amount that bears to the amount paid to the Commissioner the same
        proportion as 1 bears to the number of those persons. Recovery of
        amounts by Commissioner
''221ZE. (1) An amount payable to the Commissioner under this Division by a
person other than the Commonwealth is a debt due to the Queen on behalf of the
Commonwealth and payable to the Commissioner and-

   (a)  that amount may be sued for and recovered in a court of competent
        jurisdiction by the Commissioner or a Deputy Commissioner suing in his
        official name; or

   (b)  a court before which proceedings are taken against that person for an
        offence against a provision of this Division may order that person to
        pay that amount to the Commissioner.

''(2) The provisions of section 243 apply in proceedings for the recovery of
an amount payable to the Commissioner under this Division in like manner as
those provisions apply in proceedings by the Crown for the recovery of a
pecuniary penalty under this Act.

''(3) The provisions of section 249 apply to an order for the payment of a sum
of money to the Commissioner made under paragraph (b) of sub-section (1) of
this section in like manner as those provisions apply to an order for the
payment of a sum of money to the Commissioner made under Part VII. Credits in
respect of deductions made from mining payments
''221ZF. Where a deduction from a mining payment has been made, or purports to
have been made, for the purposes of section 221ZB-

   (a)  in a case to which paragraph (b) does not apply-the person liable to
        pay mining withholding tax upon that payment is entitled to a credit
        of an amount equal to that deduction; and

   (b)  in a case where, by reason of the making of the mining payment,
        separate mining payments are deemed by sub-section (4) of section
        128U, for the purposes of Division 11C of Part III, to have been made
        to, or applied for the benefit of, 2 or more persons-each of those
        persons is entitled to a credit of an amount that bears to the amount
        of the deduction the same proportion as 1 bears to the number of those
        persons. Application of certain credits
''221ZG. (1) Subject to this section, the amount of a credit to which a person
is entitled by virtue of this Division is a debt due and payable to that
person by the Commissioner on behalf of the Commonwealth.

''(2) The Commissioner may apply the whole or a part of a credit referred to
in sub-section (1) in total or partial discharge of any liability to the
Commonwealth of the person who is entitled to the credit, being a liability
arising under, or by virtue of, this Act or any other Act of which the
Commissioner has the general administration.

''(3) Where, under sub-section (2), the Commissioner has applied an amount of
a credit in discharge of a liability of a person to the Commonwealth, that
person shall be deemed to have paid the amount so applied-

   (a)  for the purpose for which it was so applied; and

   (b)  at the time at which it was so applied or at such earlier time as the
        Commissioner determines.

''(4) Where the amount, or the sum of the amounts, applied or paid by the
Commissioner as a credit to which a person is entitled under this Division
exceeds the amount of the credit to which the person is so entitled, the
Commissioner may recover the amount of the excess as if it were income tax due
and payable by that person. Persons discharged from liability in respect of
deductions
''221ZH. Where a person has made a deduction from a mining payment and that
deduction was made, or purports to have been made, for the purposes of section
221ZB, the person is, by force of this section, discharged from all liability
to pay or account for the deduction to any person other than the Commissioner.
Payments to and out of Consolidated Revenue Fund
''221ZJ. (1) All moneys received by the Commissioner in pursuance of this
Division shall be paid into the Consolidated Revenue Fund.

''(2) An amount that the Commissioner is liable to pay in pursuance of this
Division is payable out of the Consolidated Revenue Fund, which, to the
necessary extent, is appropriated accordingly. Time for prosecutions
''221ZK. A prosecution for an offence against a provision of this Division may
be commenced at any time. Joinder of charges under this Division
''221ZL. (1) Charges against the same person for any number of offences
against this Division may be joined in one complaint if those charges are
founded on the same facts or form, or are part of, a series of offences of the
same or a similar character.

''(2) Where more than one charge is included in the same complaint in
pursuance of sub-section (1), particulars of each offence charged shall be set
out in a separate paragraph.

''(3) All charges so joined shall be tried together unless the court considers
it just that any charge should be tried separately and makes an order to that
effect.

''(4) If a person is found guilty of more than one offence, the court may, if
it thinks fit, impose one penalty in respect of all offences of which the
person has been found guilty, but that penalty shall not exceed the sum of the
maximum penalties that could be imposed if penalties were imposed for each
offence separately.''.
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