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TAXATION LAWS AMENDMENT ACT (NO. 6) 2003 NO. 67, 2003 - SCHEDULE 9

- Release from particular liabilities in cases of serious hardship Part 1—Main amendments

Taxation Administration Act 1953

1 After Division 298 in Schedule 1 (before the link note)

Insert:

[The next Division is Division 340.]

Part 4-50—Release from particular liabilities

Division 340—Commissioner's power to provide release from particular liabilities

Guide to Division 340
340-1 What this Division is about

The Commissioner may release you from a particular liability that you have incurred if you are an individual, or a trustee of the estate of a deceased person, and satisfying the liability would cause serious hardship.

Table of sections

Operative provisions

340-5 Release from particular liabilities in cases of serious hardship
340-10 Liabilities to which this section applies
340-15 Commissioner may take action to give effect to a release decision
340-20 Extinguishing your liability to pay a fringe benefits tax instalment if you are released
340-25 Extinguishing your liability to pay a PAYG instalment if you are released

[This is the end of the Guide.]

Operative provisions
340-5 Release from particular liabilities in cases of serious hardship

Applying for release

(1)
You may apply to the Commissioner to release you, in whole or in part, from a liability of yours if section 340-10 applies to the liability.

(2)
The application must be in the approved form.

Release by the Commissioner

(3)
The Commissioner may release you, in whole or in part, from the liability if you are a person specified in the column headed "Person" of the following table and the condition specified in the column headed "Condition" of the table is satisfied:


Person and condition


Item


Person


Condition


1


an * individual


you would suffer serious hardship if you were required to satisfy the liability


2


a * trustee of the estate of a deceased person


the dependants of the deceased person would suffer serious hardship if you were required to satisfy the liability


Effect of the Commissioner's decision

(4)
If the Commissioner:

(a) refuses to release you in whole from the liability; or
(b) releases you in part from the liability;

nothing in this section prevents you from making a further application or applications under subsection (1) in relation to the liability.

Notification of the Commissioner's decision

(5)
The Commissioner must notify you in writing of the Commissioner's decision within 28 days after making the decision.

(6)
A failure to comply with subsection (5) does not affect the validity of the Commissioner's decision.

Objections against the Commissioner's decision

(7)
If you are dissatisfied with the Commissioner's decision, you may object against the decision in the manner set out in Part IVC.

340-10 Liabilities to which this section applies

(1)
This section applies to a liability if it is a liability of the following kind:

(a) fringe benefits tax;
(b) an instalment of fringe benefits tax;
(c) Medicare levy;
(d) Medicare levy surcharge;
(e) a * PAYG instalment.

(2)
This section also applies to a liability if it is a liability that is specified in the column headed "Liabilities" of the following table and the liability is a liability under a provision or provisions of an Act specified in the column headed "Provision(s)" of the table:


Liabilities and provision(s)


Item


Liabilities


Provision(s)


1


additional tax


(a) section 93 or 112B or Part VIII of the Fringe Benefits Tax Assessment Act 1986 ; or
(b) section 163B or subsection 221YDB(1), (1AAA), (1AA) or (1ABA) or Part VII of the Income Tax Assessment Act 1936


2


administrative penalty in relation to fringe benefits tax or * tax


Part 4-25 in this Schedule


3


general interest charge


(a) section 163AA or 170AA or subsections 204(3), 221AZMAA(1), 221AZP(1), 221YD(3) or 221YDB(3) of the Income Tax Assessment Act 1936 ; or
(b) section 45-80 or 45-620 or subsection 45-230(2), 45-232(2), 45-235(2) or 45-235(3) in this Schedule


4


interest


section 102AAM of the Income Tax Assessment Act 1936


5


penalty


section 163A of the Income Tax Assessment Act 1936


6


* tax


(a) section 128B of the Income Tax Assessment Act 1936 ; or
(b) section 128V of the Income Tax Assessment Act 1936 ; or
(c) section 4-1 of the Income Tax Assessment Act 1997



340-15 Commissioner may take action to give effect to a release decision

(1)
If the Commissioner decides to release you from a liability to which section 340-10 applies, the Commissioner may take such action as is necessary to give effect to the decision.

(2)
Without limiting subsection (1), the Commissioner may amend an assessment within the meaning of the following provisions:

(a) subsection 6(1) of the Income Tax Assessment Act 1936 ;
(b) subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 ;

by making such alterations or additions to the assessment as the Commissioner thinks necessary.

(3)
Subsection (2) does not limit the power of the Commissioner to amend the assessment in accordance with any other provision of the Income Tax Assessment Act 1936 or the Fringe Benefits Tax Assessment Act 1986 .

340-20 Extinguishing your liability to pay a fringe benefits tax instalment if you are released

(1)
This section applies if the Commissioner releases you from a liability to pay an instalment of fringe benefits tax.

(2)
If your liability to pay the instalment is released in whole, you are taken, for the purposes of Division 2 of Part VII of the Fringe Benefits Tax Assessment Act 1986 , not to be liable to pay the instalment.

Note: This means that for the purposes of section 105 of that Act you are not entitled to a credit for the instalment.

(3)
If your liability to pay the instalment is released in part, you are taken, for the purposes of Division 2 of Part VII of the Fringe Benefits Tax Assessment Act 1986 , to be liable to pay the instalment to the extent to which your liability has not been released.

Note: This means that for the purposes of section 105 of that Act you are entitled to a credit for the instalment to the extent to which your liability to pay the instalment has not been released.

340-25 Extinguishing your liability to pay a PAYG instalment if you are released

(1)
This section applies if the Commissioner releases you from a liability to pay a * PAYG instalment.

(2)
If your liability to pay the instalment is released in whole, you are taken, for the purposes of Division 45 of Part 2-10, not to be liable to pay the instalment.

Note: This means that for the purposes of section 45-30 you are not entitled to a credit for the instalment.

(3)
If your liability to pay the instalment is released in part, you are taken, for the purposes of Division 45 of Part 2-10, to be liable to pay the instalment to the extent to which your liability has not been released.

Note: This means that for the purposes of section 45-30 you are entitled to a credit for the instalment to the extent to which your liability to pay the instalment has not been released.

2 Paragraphs 353-10(1)(a) and (b) in Schedule 1

After "this Schedule", insert "(other than Division 340)".

Part 2—Consequential amendments

Administrative Appeals Tribunal Act 1975

3 After paragraph 24AC(1)(a)

Insert:

(aa) the decision relates to an application made by the applicant under section 340-5 in Schedule 1 to the Taxation Administration Act 1953 ; or
4 Subparagraph 34A(1A)(a)(i)

Omit "paragraph 24AC(1)(b)", substitute "paragraph 24AC(1)(aa) or (b)".

Fringe Benefits Tax Assessment Act 1986

5 Section 133

Repeal the section.

Income Tax Assessment Act 1936

6 Subsection 102AAM(14)

Omit ", 259 and 265", substitute "and 259".

7 Subsection 102AH(2)

Omit "section 102AJ", substitute "Division 340 in Schedule 1 to the Taxation Administration Act 1953 ".

8 Section 102AJ

Repeal the section.

9 Subsection 128A(4)

Omit ", 261 and 265", substitute "and 261".

10 Subsection 128U(2)

Omit ", 260 and 265", substitute "and 260".

11 Subsection 159GZZZZH(4)

Omit ", 259 and 265", substitute "and 259".

12 Subsection 163A(8)

Omit ", 259 and 265", substitute "and 259".

13 Subsection 163B(8)

Omit ", 259 and 265", substitute "and 259".

14 Subsection 170AA(9)

Omit ", 259 and 265", substitute "and 259".

15 Section 265

Repeal the section.

Income Tax Assessment Act 1997

16 Section 12-5 (table item headed "children's income")

Omit "102AA to 102AJ", substitute "102AA to 102AH".

17 Section 13-1 (table item headed "child")

Omit:

hardship.....................................................................


102AJ


Part 3—Transitional and application provisions
18 Transitional provision

(1) This item applies to an application made under:

(a) section 133 of the Fringe Benefits Tax Assessment Act 1986 before its repeal by item 5 of this Schedule; or
(b) section 265 of the Income Tax Assessment Act 1936 before its repeal by item 15 of this Schedule.

(2) If the application has not been finally determined before the commencement of this Schedule, Division 340 in Schedule 1 to the Taxation Administration Act 1953 applies as if the application had been made under section 340-5 in Schedule 1 to that Act.

19 Application provision

A person may be released, under Division 340 in Schedule 1 to the Taxation Administration Act 1953 , from a liability that the person has incurred even if the liability was incurred before the commencement of this Schedule.


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