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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Taxation Administration Bill 2001
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. The taxation Acts 2
4. Meaning of terms used in this Act 3
5. Crown bound 3
Part 2 -- Tax administration generally
6. Commissioner of State Revenue 4
7. Administration of taxation Acts 4
8. Commissioner's functions 4
9. Judicial notice of appointment and signature 4
10 . Delegation 4
11 . Tax investigators 5
12 . Appointed representatives for court proceedings 6
Part 3 -- Assessments of tax
Division 1 -- Assessments
13 . Assessments 7
14 . Self-assessments 7
15 . Official assessments 7
16 . Reassessments 8
17 . Time limits on reassessments 9
18 . Effect of reassessment 9
19 . Assessments based on estimated or suspected liability 10
20 . Assessments when instrument misleading or
unavailable 11
21 . Ascertaining value of property, consideration or
benefit 12
page i
79--2
Taxation Administration Bill 2001
Contents
22 . Commissioner's power to have valuation made 12
Division 2 -- Assessment notices and returns
23 . Assessment notices 13
24 . Form of assessment notice 13
25 . Statement of grounds of assessment 14
Division 3 -- Penalty tax
26 . Penalty tax for contravention of taxation Act 15
27 . Penalty tax for late payment 16
28 . Limitation on amount of penalty tax 16
29 . Remission of penalty tax 16
30 . Guidelines for imposing penalty tax 17
Part 4 -- Objections and appeals
Division 1 -- Procedures and restrictions
31 . Procedure for challenging assessments 18
32 . Objections to land valuations 18
33 . Continuing obligation to pay assessed tax 18
Division 2 -- Objections
34 . Right to object 18
35 . Form of objection 19
36 . Time for lodging objection 19
37 . Consideration of objections 20
38 . Time limit for determining objections 21
39 . Reassessment on determination of objection 22
Division 3 -- Appeals and stated cases
40 . Right of appeal 22
41 . Court or tribunal to which an appeal lies 23
42 . Time for appeal 23
43 . Appeal hearings 23
44 . Cases stated by Commissioner 24
Part 5 -- Payment and refund of tax
Division 1 -- Payment
45 . When tax is due for payment 26
46 . Allocation of payment 26
47 . Arrangements for instalments and extensions of time 26
48 . No action to compel approval of tax payment
arrangement 28
page ii
Taxation Administration Bill 2001
Contents
Division 2 -- Special tax return arrangements
49 . Approval of special tax return arrangements 28
50 . Content of special tax return arrangement 28
51 . Instruments stamped or endorsed under a special tax
return arrangement 29
52 . Lodging returns under special tax return arrangement 30
53 . Amendment or cancellation of arrangement 30
Division 3 -- Refunds of tax
54 . Power to make refund 30
55 . Refund to be passed on in certain cases 31
Division 4 -- Power to waive or write off liability
56 . Waiver of tax 33
57 . Writing off tax liability 33
58 . Powers subject to Financial Administration and Audit
Act 1985 33
59 . No action to compel waiver or writing off 34
Part 6 -- Recovery of tax
Division 1 -- Recovery generally
60 . Recovery of unpaid tax 35
61 . Power of court to order payment of tax 35
62 . Recovery of costs and interest 35
63 . Recovery of tax in cases of joint liability 35
64 . Notice of administrator's appointment 36
65 . Power to garnishee 36
66 . Recovery from partnerships and other associations 37
67 . Recovery from directors of body corporate 37
Division 2 -- Charges on land
68 . Charge on land to secure land tax 39
69 . Charge on land to secure stamp duty 40
70 . Prohibition on dealing with certain charged land 41
71 . Priority of charge 42
72 . Certificate of land tax secured by charge 42
73 . Release of land from charge 43
74 . Form of memorial 43
75 . Registration of memorials and releases 44
76 . Notification of mortgagees 44
77 . Orders for sale of land 44
78 . Means of enforcement not limited to charge 46
page iii
Taxation Administration Bill 2001
Contents
Part 7 -- Tax records
79 . How long tax records are to be kept 47
80 . Form of tax records 47
81 . Where tax records are to be kept 48
82 . Failure to keep proper tax records 48
83 . General and specific exemptions 49
Part 8 -- Investigations
Division 1 -- Investigations
84 . Investigations 50
85 . Investigations for the purposes of recognised revenue
laws 50
Division 2 -- Obtaining tax records and other
information
86 . Requirements to provide information and tax records 51
87 . Power to require person to attend for examination 52
88 . Power to retain documents 53
89 . Recording examination proceedings 54
Division 3 -- Access to premises
90 . Entry of premises 54
91 . Powers of investigator while on premises 55
92 . Warrants to enter premises 57
93 . Use of force 58
Division 4 -- General provisions
94 . Complying with information requirements 58
95 . Interaction with other Acts 59
Part 9 -- Offences
96 . General penalty provision 60
97 . Evasion of tax 60
98 . False or misleading information 60
99 . Obstructing or misleading an investigator 61
100 . Offence by body corporate 61
101 . Criminal penalties not to affect civil liabilities 61
102 . Time for commencing prosecutions 62
103 . Authority required for prosecution 62
104 . General defence 62
page iv
Taxation Administration Bill 2001
Contents
Part 10 -- Miscellaneous
Division 1 -- Confidentiality
105 . Confidentiality 63
Division 2 -- Service of documents
106 . Service on the Commissioner 65
107 . Service on agent or representative of taxpayer 66
108 . Method of service by Commissioner 66
109 . Non-exclusivity of this Division 67
Division 3 -- Evidentiary provisions
110 . Evidentiary value of assessment notice 67
111 . Evidentiary status of copies and reproductions of
documents 68
112 . Evidentiary certificates 68
113 . Extracts from register of delegates 69
114 . Averments in complaints 69
115 . Presumption of regularity 70
Division 4 -- Exemption from personal liability
116 . Exemption from personal liability 70
Division 5 -- Regulations
117 . Regulations 70
Glossary 71
page v
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Taxation Administration Bill 2001
A Bill for
An Act to provide for the administration and enforcement of
legislation dealing with State taxation.
The Parliament of Western Australia enacts as follows:
page 1
Taxation Administration Bill 2001
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Taxation Administration Act 2001.
2. Commencement
5 (1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
3. The taxation Acts
(1) The following enactments are taxation Acts for the purposes of
10 this Act --
(a) this Act;
(b) the Debits Tax Act 2001;
(c) the Debits Tax Assessment Act 2001;
(d) the Land Tax Act 2001;
15 (e) the Land Tax Assessment Act 2001;
(f) the Metropolitan Region Improvement Tax Act 1959 as
in force from and after the time of commencement of
this Act;
(g) section 41 of the Metropolitan Region Town Planning
20 Scheme Act 1959 as in force from and after the
commencement of this Act;
(h) the Pay-roll Tax Act 2001;
(i) the Pay-roll Tax Assessment Act 2001;
(j) the Stamp Act 1921 as in force from and after the time of
25 commencement of this Act;
page 2
Taxation Administration Bill 2001
Preliminary Part 1
s. 4
(k) any other enactment prescribed by the regulations as a
taxation Act.
(2) Each other taxation Act is to be read with this Act as if they
formed a single Act.
5 4. Meaning of terms used in this Act
The Glossary at the end of this Act defines or affects the
meaning of some of the words and expressions used in this Act.
5. Crown bound
Subject to any express provision to the contrary, each taxation
10 Act binds the Crown in right of Western Australia and, as far as
the legislative power of Parliament permits, in all its other
capacities.
page 3
Taxation Administration Bill 2001
Part 2 Tax administration generally
s. 6
Part 2 -- Tax administration generally
6. Commissioner of State Revenue
A Commissioner of State Revenue is to be appointed under
Part 3 of the Public Sector Management Act 1994.
5 7. Administration of taxation Acts
(1) The Commissioner is responsible to the Minister for applying
and giving effect to the taxation Acts.
(2) The Commissioner is not subject to Ministerial control or
direction in relation to --
10 (a) the interpretation of a taxation Act; or
(b) the exercise of a power under a taxation Act.
8. Commissioner's functions
In addition to performing the functions conferred on the
Commissioner under a taxation Act, the Commissioner may
15 perform any function conferred on an investigator under a
taxation Act.
9. Judicial notice of appointment and signature
All courts and persons acting judicially are to take judicial
notice --
20 (a) of the fact that a person holds or has held the office of
Commissioner; and
(b) of the official signature of a person who holds or has
held the office of Commissioner.
10. Delegation
25 (1) The Commissioner may delegate any of the Commissioner's
functions under a taxation Act except --
(a) the power to delegate under this section;
page 4
Taxation Administration Bill 2001
Tax administration generally Part 2
s. 11
(b) the power to issue an identity card; and
(c) the power to give an authorisation under section 90(3),
91(1)(a) or 93(2).
(2) The delegation must be in writing signed by the Commissioner.
5 (3) A person exercising or performing a power or duty that has been
delegated to the person under this section is to be taken to do so
in accordance with the terms of the delegation unless the
contrary is shown.
(4) Nothing in this section limits the ability of the Commissioner to
10 perform a function through an agent.
(5) The Commissioner is to keep a register of delegates, which may
be kept electronically or otherwise.
(6) If a person exercises, or claims to be entitled to exercise,
functions delegated by the Commissioner in relation to a
15 taxpayer or a taxpayer's affairs, the Commissioner must, at the
request of the taxpayer, make the relevant entry in the register
of delegates, or a print-out of it, available for inspection by the
taxpayer or a representative of the taxpayer.
11. Tax investigators
20 (1) The Commissioner may appoint a person to be an investigator
for the purposes of the taxation Acts.
(2) The Commissioner is to issue an identity card to each
investigator.
(3) An identity card must --
25 (a) include a statement to the effect that the person
identified by the card is an investigator for the purposes
of the taxation Acts; and
(b) include a photograph of the investigator.
page 5
Taxation Administration Bill 2001
Part 2 Tax administration generally
s. 12
(4) If a person to whom an identity card is issued ceases to be an
investigator, the person must immediately return the card to the
Commissioner.
Penalty for an offence against subsection (4): $20 000.
5 12. Appointed representatives for court proceedings
(1) The Commissioner may appoint a person to represent the
Commissioner --
(a) in court proceedings for recovery of tax;
(b) in proceedings for an offence against a taxation Act; or
10 (c) in other proceedings before a court or tribunal to which
the Commissioner is a party.
(2) An appointed representative may represent the Commissioner in
accordance with the authorisation.
page 6
Taxation Administration Bill 2001
Assessments of tax Part 3
Assessments Division 1
s. 13
Part 3 -- Assessments of tax
Division 1 -- Assessments
13. Assessments
(1) An assessment is a determination --
5 (a) of the amount of tax payable under a taxation Act;
(b) that no tax is payable;
(c) that a person is liable to pay tax or is exempt from
liability to pay tax; or
(d) that an instrument, event or transaction is liable to tax or
10 is exempt from tax.
(2) An assessment may be made in relation to any one or more, or
all, the components of the tax payable by a taxpayer.
(3) The receipt by the Commissioner of an amount as payment of
tax does not constitute an assessment of tax liability.
15 14. Self-assessments
A self-assessment is --
(a) an assessment made by the taxpayer in a return under a
taxation Act; or
(b) an assessment made by a responsible party in a return or
20 otherwise in accordance with a special tax return
arrangement.
15. Official assessments
(1) An official assessment is an assessment made by the
Commissioner.
page 7
Taxation Administration Bill 2001
Part 3 Assessments of tax
Division 1 Assessments
s. 16
(2) The Commissioner must make an official assessment of the tax
payable by a person --
(a) if the person is or is likely to be liable to pay tax, but is
not required to make a self-assessment; or
5 (b) when a taxation Act specifically requires the
Commissioner to do so.
(3) The Commissioner may make an official assessment on his or
her own initiative, and may do so even if the taxpayer is
required to make, or has made, a self-assessment.
10 (4) The Commissioner may make an official assessment in any
other circumstances at the taxpayer's request.
16. Reassessments
(1) The Commissioner must make a reassessment --
(a) if specifically required to do so under a taxation Act;
15 (b) if specifically required to do so under a direction of a
court or tribunal hearing an appeal under section 41; or
(c) if a taxation Act provides for a rebate or refund of tax in
particular circumstances, and the circumstances were not
taken into account when the previous assessment was
20 made.
(2) The Commissioner may also make a reassessment --
(a) on his or her own initiative, if it appears that a previous
assessment is or may be incorrect for any reason; or
(b) on the application of the taxpayer.
25 (3) A reassessment may be made whether or not any amount of tax
has been paid on the previous assessment.
(4) A reassessment may consolidate 2 or more separate assessments
into a single assessment.
(5) A decision by the Commissioner not to make a reassessment
30 under subsection (2)(b) is non-reviewable.
page 8
Taxation Administration Bill 2001
Assessments of tax Part 3
Assessments Division 1
s. 17
(6) No action can be brought in a court to compel the
Commissioner to make a reassessment if he or she is not
required to do so by a taxation Act.
17. Time limits on reassessments
5 (1) A taxpayer is not entitled to apply for a reassessment more than
5 years after the original assessment was made.
(2) The Commissioner may make a reassessment at any time after
the previous assessment was made if --
(a) a court or tribunal hearing an appeal under section 41
10 has directed the Commissioner to make the
reassessment; or
(b) there are reasonable grounds for suspecting that there
has been an evasion of tax, or that the previous
assessment was made on the basis of false or misleading
15 information.
(3) The Commissioner may make a reassessment of the amount of
pay-roll tax payable on an original assessment that was made in
or in relation to any of the 5 financial years that precede the
financial year in which the reassessment is made.
20 (4) However, in any other circumstances the Commissioner may
only make a reassessment within 5 years after the date of the
original assessment or on an application made within 5 years
after the date of the original assessment.
18. Effect of reassessment
25 (1) A reassessment supersedes the original assessment and any
earlier reassessment.
(2) A reassessment may increase or decrease the amount originally
assessed.
(3) However, if an assessment was based on --
30 (a) an interpretation of the applicable law; or
page 9
Taxation Administration Bill 2001
Part 3 Assessments of tax
Division 1 Assessments
s. 19
(b) the Commissioner's practice,
that was generally applied to instruments of that kind when the
assessment was made, then the Commissioner cannot make a
reassessment on the ground that the interpretation or practice is
5 or was erroneous.
(4) If tax payable on an instrument is reassessed, and the instrument
or a duplicate or copy of it is produced to the Commissioner, the
Commissioner may stamp it with a stamp denoting the amount
of tax (if any) payable under the reassessment and the amount of
10 tax paid (if any), (but the reassessment takes effect irrespective
of restamping).
(5) A reassessment does not invalidate proceedings for the recovery
of tax, but the amount to be recovered is to be amended to take
account of the reassessment.
15 (6) If an objection to an assessment is lodged but a reassessment is
made before the objection is determined, the objection may be
continued against the reassessment to the extent that it is liable
to the same objection or to an objection that is the same, or
similar, in substance.
20 19. Assessments based on estimated or suspected liability
(1) If the Commissioner suspects that a tax liability exists, the
Commissioner may make an assessment on the basis of that
suspicion and the Commissioner's estimate of the amount of the
liability.
25 (2) If a tax liability exists, but the Commissioner is not satisfied
with the adequacy or reliability of information available to make
an assessment, the Commissioner may make an assessment on
the basis of the Commissioner's estimate of the amount of the
liability.
page 10
Taxation Administration Bill 2001
Assessments of tax Part 3
Assessments Division 1
s. 20
20. Assessments when instrument misleading or unavailable
(1) If there are reasonable grounds for suspecting that an instrument
lodged under a taxation Act is inaccurate or misleading, then for
the purposes of making an assessment the Commissioner
5 may --
(a) create a memorandum of the instrument; and
(b) treat the memorandum as if it were the instrument.
(2) If tax is or may be payable on an instrument required to be
lodged under a taxation Act, but the instrument has not been
10 lodged as required, then for the purposes of making an
assessment, the Commissioner may --
(a) treat a copy of the instrument as if it were the
instrument; or
(b) if a copy of the instrument is not available -- create a
15 memorandum of the instrument, and treat the
memorandum as if it were the instrument.
(3) If tax is or may be payable in relation to an event or transaction,
but an instrument required to be prepared and lodged under a
taxation Act in relation to the event or transaction has not been
20 prepared or, if prepared, has not been lodged, then for the
purposes of making an assessment the Commissioner may
create a memorandum in substitution for the instrument and
treat it as if the memorandum were the instrument.
(4) The payment of tax on the instrument may be denoted on the
25 copy or memorandum.
(5) The validity of an assessment and the liability to pay tax on an
instrument, event or transaction do not depend on the
availability of the instrument or a copy of it, or on the creation
of a memorandum of it.
30 (6) This section does not limit the powers of the Commissioner
under section 19.
page 11
Taxation Administration Bill 2001
Part 3 Assessments of tax
Division 1 Assessments
s. 21
21. Ascertaining value of property, consideration or benefit
(1) If it is necessary to ascertain the value of any property,
consideration or benefit for the purposes of a taxation Act, the
Commissioner may require the taxpayer to provide any
5 information in the possession or control of the taxpayer that is
relevant to determining the value of the property, consideration
or benefit.
(2) A requirement must specify the date on or before which the
taxpayer is required to comply with it.
10 (3) A person who does not comply with a requirement commits an
offence.
Penalty: $20 000.
22. Commissioner's power to have valuation made
(1) For the purposes of a taxation Act, the Commissioner may --
15 (a) have a valuation made of any property, consideration or
benefit; or
(b) adopt any available valuation of the property,
consideration or benefit that the Commissioner
considers appropriate.
20 (2) The Commissioner may have a valuation made, or adopt a
valuation, regardless of whether --
(a) the Commissioner has required the taxpayer to provide
information under section 21 about the value of the
property, consideration or benefit; or
25 (b) the taxpayer has complied with such a requirement.
page 12
Taxation Administration Bill 2001
Assessments of tax Part 3
Assessment notices and returns Division 2
s. 23
Division 2 -- Assessment notices and returns
23. Assessment notices
(1) When the Commissioner makes an assessment, he or she must
issue an assessment notice.
5 (2) However, the Commissioner does not have to issue an
assessment notice if the Commissioner --
(a) makes a reassessment on his or her own initiative, and
no tax is to be paid or refunded as a result of the
reassessment; or
10 (b) assesses the amount of stamp duty payable on an
instrument and then stamps the instrument immediately.
(3) When an assessment notice is issued, the Commissioner must
serve it on the taxpayer.
(4) However, liability to tax is not dependent on service of the
15 assessment notice.
24. Form of assessment notice
(1) An assessment notice may be --
(a) in the form of an account requiring payment of the
amount assessed and of other amounts payable by the
20 taxpayer; or
(b) in any other form approved by the Commissioner.
(2) An assessment notice in relation to an original assessment
must --
(a) state the amount of tax payable under the primary
25 liability;
(b) state the amount of penalty tax payable, if any; and
(c) indicate the due date for payment of the tax.
page 13
Taxation Administration Bill 2001
Part 3 Assessments of tax
Division 2 Assessment notices and returns
s. 25
(3) An assessment notice in relation to a reassessment must --
(a) state whether the amount payable is more or less than
the amount assessed under the previous assessment;
(b) if an amount of tax has been overpaid -- state whether
5 the overpaid amount is to be refunded or credited to the
taxpayer; and
(c) if the amount of tax has been increased, or an amount of
tax remains unpaid -- state the due date for payment of
the amount or amounts to be paid.
10 (4) For the purposes of subsection (3)(c), if the due date for
payment of the tax has passed when the assessment notice is
issued, the assessment notice must specify the due date for
payment of any unpaid tax and any penalty tax payable in
relation to the unpaid tax.
15 (5) The date specified in an assessment notice as the due date for
payment must be at least 14 days after the date of the
assessment notice.
(6) More than one assessment of primary tax or penalty tax, or both,
may be included in an assessment notice, whether or not the
20 assessments are made in respect of the same matter.
25. Statement of grounds of assessment
(1) An assessment notice may include a statement of the grounds on
which the assessment is made.
(2) If an assessment notice relating to an assessment of a primary
25 liability does not include a statement of the grounds on which
the assessment is made --
(a) the taxpayer may request the Commissioner to provide a
statement of the grounds; and
(b) the Commissioner must serve a statement of the grounds
30 on the taxpayer within 30 days after receiving the
request.
page 14
Taxation Administration Bill 2001
Assessments of tax Part 3
Penalty tax Division 3
s. 26
(3) If an assessment notice relating to an assessment of penalty tax
does not include a statement of the grounds on which the
assessment is made, the Commissioner must serve on the
taxpayer a separate statement of the grounds.
5 Division 3 -- Penalty tax
26. Penalty tax for contravention of taxation Act
(1) A taxpayer is liable to pay penalty tax in the following
circumstances --
(a) where the taxpayer does not prepare a dutiable statement
10 as required by the Stamp Act 1921;
(b) where the taxpayer does not lodge an instrument in
accordance with a taxation Act;
(c) where any other contravention of a taxation Act occurs
and, as a result, the taxpayer --
15 (i) avoids or delays the payment of tax; or
(ii) avoids or delays the submission of information
required for the assessment of tax;
(d) where there is a material misstatement or omission in an
instrument submitted to the Commissioner by or for the
20 taxpayer under a taxation Act;
(e) where the taxpayer fails to provide information required
under a taxation Act or (intentionally or unintentionally)
provides information that is incorrect, incomplete or
misleading;
25 (f) where the taxpayer makes an underestimation to avoid,
delay or reduce the payment of tax;
(g) where the taxpayer fails to pay (or underpays) tax for
which the taxpayer is liable.
(2) If there are reasonable grounds for suspecting that a taxpayer is
30 liable to pay penalty tax, the Commissioner may assess the
amount of penalty tax payable by the taxpayer.
page 15
Taxation Administration Bill 2001
Part 3 Assessments of tax
Division 3 Penalty tax
s. 27
(3) The amount of penalty tax payable is the amount equal to --
(a) the amount of the taxpayer's primary liability; or
(b) the amount that the taxpayer would have been liable to
pay if the circumstances giving rise to the liability to
5 penalty tax had not occurred,
as the case requires.
27. Penalty tax for late payment
(1) If tax is not paid by the due date, the taxpayer is liable to pay an
amount of penalty tax for late payment equal to 20% of the
10 amount outstanding on the due date.
(2) However, penalty tax is not payable for late payment of --
(a) instalments due under a tax payment arrangement; or
(b) an amount payable under section 47(6) as a result of the
cancellation of a tax payment arrangement.
15 28. Limitation on amount of penalty tax
If the total amount of penalty tax assessed as payable by a
taxpayer in relation to a primary liability exceeds, or would but
for this section exceed, the amount of the primary liability, the
amount of penalty tax payable is reduced to the amount equal to
20 the amount of the primary liability.
29. Remission of penalty tax
(1) The Commissioner may remit penalty tax wholly or in part.
(2) Penalty tax may be remitted before or after an assessment of the
penalty tax is made.
25 (3) If penalty tax is paid and later remitted, the amount remitted is
to be refunded or credited against the taxpayer's present or
future tax liabilities.
page 16
Taxation Administration Bill 2001
Assessments of tax Part 3
Penalty tax Division 3
s. 30
30. Guidelines for imposing penalty tax
(1) The Commissioner may, from time to time, issue guidelines
setting out the policy to be followed when deciding whether or
not to remit penalty tax under section 29.
5 (2) The Commissioner must, at the request of a taxpayer, make a
copy of the guidelines available to the taxpayer.
page 17
Taxation Administration Bill 2001
Part 4 Objections and appeals
Division 1 Procedures and restrictions
s. 31
Part 4 -- Objections and appeals
Division 1 -- Procedures and restrictions
31. Procedure for challenging assessments
(1) A taxpayer is not entitled to challenge the validity or correctness
5 of an assessment, or of any other decision for which rights of
objection and appeal are conferred by this Act, except --
(a) in proceedings by way of objection or appeal under this
Act; or
(b) in any other manner specifically provided in a taxation
10 Act.
(2) Any other right that the taxpayer might, but for this subsection,
have at common law to challenge the validity or correctness of
an assessment or other decision is abrogated.
32. Objections to land valuations
15 The validity or correctness of a valuation under the Valuation of
Land Act 1978 may only be challenged in proceedings under
Part IV of that Act, and not by way of objection or appeal
against an assessment under this Act based on the valuation.
33. Continuing obligation to pay assessed tax
20 An objection, appeal or case stated does not suspend or defer an
obligation to pay tax.
Division 2 -- Objections
34. Right to object
(1) A taxpayer may object to --
25 (a) an assessment; or
(b) another decision under a taxation Act that affects the
taxpayer's liability to taxation.
page 18
Taxation Administration Bill 2001
Objections and appeals Part 4
Objections Division 2
s. 35
(2) However, an objection cannot be made against --
(a) the determination of an objection;
(b) any reassessment made to give effect to the
determination of an objection;
5 (c) an assessment of an amount of stamp duty and penalty
tax that is assessed under Part IIIC of the Stamp
Act 1921 and specified in a traffic infringement notice
issued under section 102 of the Road Traffic Act 1974,
unless the amount has been paid;
10 (d) a non-reviewable decision;
(e) a decision in respect of which a taxation Act specifically
provides other procedures for objection or appeal.
(3) If a reassessment is made and the time for lodging an objection
to the previous assessment has expired, an objection may only
15 be made against an increase in liability.
35. Form of objection
An objection must --
(a) be in writing;
(b) set out fully and in detail the grounds on which the
20 taxpayer objects to the assessment or decision; and
(c) be lodged in accordance with section 106.
36. Time for lodging objection
(1) An objection to an official assessment must be lodged within
60 days after --
25 (a) the assessment notice is issued; or
(b) if the assessment is denoted by stamping in accordance
with section 23(2)(b) -- the date on which the document
was stamped.
page 19
Taxation Administration Bill 2001
Part 4 Objections and appeals
Division 2 Objections
s. 37
(2) An objection to a self-assessment must be lodged within
60 days after the due date for lodging the return related to the
assessment.
(3) An objection to another decision must be lodged within 60 days
5 after the day on which the person affected by the decision was
notified of the decision.
(4) However, the Commissioner may, on application by the
taxpayer, extend the time for lodging an objection.
(5) An application for an extension of time --
10 (a) must be made within 12 months after the date on which
the objection was to have been lodged under
subsection (1), (2) or (3), but may be made before or
after that date; and
(b) must set out in detail the grounds on which the applicant
15 asks for an extension of time.
(6) If objection is taken to a decision about self-assessment of tax,
the date of the decision is taken to be the date by which the first
return affected by the decision is to be lodged by the taxpayer
after the taxpayer receives notice of the decision.
20 37. Consideration of objections
(1) The Commissioner must consider and determine an objection,
having regard to --
(a) the grounds set out in the objection and any other
relevant written material submitted by the taxpayer; and
25 (b) any other information obtained by the Commissioner
that is relevant to considering the objection, whether the
information was obtained before or after the objection
was lodged.
(2) The onus of establishing that an assessment or decision to which
30 an objection relates is invalid or incorrect lies on the taxpayer.
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Taxation Administration Bill 2001
Objections and appeals Part 4
Objections Division 2
s. 38
(3) If the objection relates to an assessment that was made under
section 19(1) on the basis of suspected liability --
(a) it is not necessary for the taxpayer to establish that there
were no reasonable grounds for the suspicion; and
5 (b) the objection is to be allowed if the taxpayer establishes,
on the balance of probabilities, that the taxpayer is not
liable to the tax (or penalty tax) assessed.
(4) On determining an objection, the Commissioner must serve on
the taxpayer a notice setting out --
10 (a) the decision on the objection; and
(b) if the objection is disallowed in whole or part -- the
reasons for the decision.
38. Time limit for determining objections
(1) The Commissioner must determine an objection within the
15 decision period calculated under subsection (2).
(2) The decision period is the initial period of 90 days beginning on
the day the objection is lodged with the Commissioner, plus the
number of days equal to the number of days the Commissioner
needs (whether the needed days fall during or after the initial
20 90-day period) --
(a) to obtain from the taxpayer information that the
Commissioner reasonably requires to determine the
objection;
(b) to consider any information provided by the taxpayer
25 after the objection was lodged; or
(c) to obtain any advice and assistance from an external
agency that the Commissioner reasonably requires to
determine the objection.
(3) The Commissioner must notify the taxpayer, before the end of
30 the initial 90-day period, of any periods by which the decision
period has been extended up to the time of notification and, if
page 21
Taxation Administration Bill 2001
Part 4 Objections and appeals
Division 3 Appeals and stated cases
s. 39
further delays extending the decision period occur after the
initial notification, must keep the taxpayer reasonably informed
about the extent and the reasons for the further delays.
(4) If the Commissioner fails to determine an objection within the
5 decision period, the taxpayer may, by written notice to the
Commissioner, require the Commissioner to refer the objection
to the Supreme Court.
(5) On receiving a request under subsection (4), the Commissioner
must refer the objection to the Supreme Court by way of appeal
10 as soon as practicable.
(6) The Supreme Court may --
(a) decide the questions raised by the referred objection;
(b) make any consequential orders that may be necessary or
appropriate in the circumstances of the case; and
15 (c) make orders for costs and other incidental matters.
(7) Non-compliance with subsection (1) does not invalidate a
determination on an objection.
39. Reassessment on determination of objection
(1) If an objection is allowed wholly or in part, the Commissioner
20 must make a reassessment accordingly.
(2) If, as a result of the reassessment, an amount is to be refunded
or credited to the taxpayer, interest at the prescribed rate is
payable on the amount from the date of payment to the date of
the determination of the objection.
25 Division 3 -- Appeals and stated cases
40. Right of appeal
(1) A person dissatisfied with the Commissioner's decision on an
objection or on an application for an extension of time for
lodging an objection may appeal against the decision.
page 22
Taxation Administration Bill 2001
Objections and appeals Part 4
Appeals and stated cases Division 3
s. 41
(2) However, a taxpayer is not entitled to appeal against the
Commissioner's decision on an objection on a ground that was
not raised in the objection, unless the court or tribunal to which
the appeal lies is satisfied that the taxpayer should be allowed to
5 introduce other grounds of appeal in the interests of justice and
gives the taxpayer leave to do so.
41. Court or tribunal to which an appeal lies
(1) An appeal under section 40(1) against a decision relating to an
assessment or decision under the Land Tax Assessment Act 2001
10 may be made to the Land Valuation Tribunal, and the Tribunal
has jurisdiction to hear and determine the appeal.
(2) The Supreme Court has jurisdiction to hear and determine any
other appeal under section 40(1).
42. Time for appeal
15 (1) An appeal must be commenced within 60 days after notice of
the decision to which it relates is served on the taxpayer.
(2) However, the court or tribunal to which the appeal lies may, on
application by the taxpayer, extend the time for commencing an
appeal.
20 (3) An application for an extension of time must be made within
12 months after the notice of the decision to which the proposed
appeal relates is served on the taxpayer (but subject to that
limitation may be made either before or after the end of the
initial period of 60 days).
25 43. Appeal hearings
(1) On hearing an appeal against a decision, the appellate court or
tribunal may do any or all of the following --
(a) in the case of a decision on an objection to an
assessment -- confirm the assessment, or direct the
30 Commissioner to make a reassessment in accordance
with any directions given by the court or tribunal;
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Taxation Administration Bill 2001
Part 4 Objections and appeals
Division 3 Appeals and stated cases
s. 44
(b) in the case of any other decision -- confirm, vary or
revoke the decision;
(c) if the court or tribunal varies or revokes a decision --
substitute for the decision any other decision that the
5 Commissioner could have made in the circumstances;
(d) make consequential and ancillary orders (including
orders for costs).
(2) The onus of establishing that an assessment or decision to which
the appeal relates is invalid or incorrect lies on the taxpayer.
10 (3) If the final reassessment of the taxpayer's liability indicates that
tax has been overpaid --
(a) the taxpayer is entitled to a refund or credit of the
overpaid amount; and
(b) interest on the overpaid amount, calculated at the
15 prescribed rate from the date on which the tax was paid
to the date on which the overpaid amount is refunded or
credited to the taxpayer, is payable to the taxpayer.
(4) For the purposes of subsection (3) --
(a) the final reassessment of a taxpayer's liability is the last
20 assessment to have been made at the direction of a court
or tribunal at the time that the case is discontinued or
otherwise finally determined; and
(b) a refund or credit of an overpaid amount, and any
payment of interest payable on the overpaid amount
25 need not be made until rights of appeal against the
decision (including any right that may exist to seek
special leave to appeal to the High Court) have been
exhausted or have expired, and no further reassessment
can be made.
30 44. Cases stated by Commissioner
(1) The Commissioner may state a case on a question of law arising
under a taxation Act and forward the case to the Supreme Court.
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Taxation Administration Bill 2001
Objections and appeals Part 4
Appeals and stated cases Division 3
s. 44
(2) The Supreme Court --
(a) is to decide the question of law; and
(b) may make orders for costs and other incidental matters.
page 25
Taxation Administration Bill 2001
Part 5 Payment and refund of tax
Division 1 Payment
s. 45
Part 5 -- Payment and refund of tax
Division 1 -- Payment
45. When tax is due for payment
(1) Subject to this section, tax is due for payment on the date fixed
5 by or worked out in accordance with the relevant taxation Act.
(2) If the relevant taxation Act does not make provision for the date
of payment, the tax is due for payment on the date specified in
the assessment notice.
(3) If the tax is payable as a result of a reassessment, the tax is due
10 for payment on the date specified in the assessment notice.
46. Allocation of payment
When the Commissioner receives a payment from a taxpayer,
the payment is to be allocated as follows --
(a) if it is clear from the circumstances in which the
15 payment is made how the payment is to be allocated --
the payment is to be allocated accordingly; and
(b) in any other case -- the payment is to be allocated to the
taxpayer's tax liabilities as decided by the
Commissioner.
20 47. Arrangements for instalments and extensions of time
(1) The Commissioner may approve an arrangement (with or
without amendment) --
(a) extending the time for paying tax; or
(b) providing for the payment of tax in specified
25 instalments.
(2) An application for approval of a proposed tax payment
arrangement must set out the reasons that the taxpayer wants
more time to pay the tax.
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Taxation Administration Bill 2001
Payment and refund of tax Part 5
Payment Division 1
s. 47
(3) A tax payment arrangement may include --
(a) conditions agreed with the taxpayer providing for the
payment (and allowing for the remission) of interest at
the prescribed rate or at some other rate fixed by or
5 under the arrangement with the agreement of the
taxpayer; and
(b) any other conditions the Commissioner considers
appropriate.
(4) The Commissioner may, by notice to the taxpayer, amend a tax
10 payment arrangement --
(a) by agreement with the taxpayer; or
(b) as provided in the conditions of the arrangement.
(5) The Commissioner may, by notice to the taxpayer, cancel a tax
payment arrangement if --
15 (a) a payment is not made in accordance with the
arrangement; or
(b) the taxpayer does not comply with any other condition
of the arrangement.
(6) On cancellation of a tax payment arrangement, the whole of the
20 tax outstanding under the arrangement (together with interest)
becomes due and payable as from the date of cancellation or the
original due date for payment of the tax to which the
arrangement relates (whichever is the later).
(7) Despite cancellation of a tax payment arrangement, interest
25 continues to accrue at the prescribed rate (or the other rate fixed
by or under the arrangement) until the outstanding tax to which
the arrangement formerly applied is paid.
(8) A decision of the Commissioner under this section in
connection with extending time for payment of tax or approving
30 payment of tax in instalments is non-reviewable.
page 27
Taxation Administration Bill 2001
Part 5 Payment and refund of tax
Division 2 Special tax return arrangements
s. 48
48. No action to compel approval of tax payment arrangement
No action can be brought in a court to compel the
Commissioner to approve a tax payment arrangement.
Division 2 -- Special tax return arrangements
5 49. Approval of special tax return arrangements
(1) The Commissioner may make a special tax return arrangement
with a taxpayer or another person in relation to a taxpayer's
obligations under a taxation Act.
(2) Without limiting subsection (1), a special tax return
10 arrangement may be made with --
(a) a particular taxpayer in relation to the taxpayer's
obligations under a taxation Act;
(b) a particular taxpayer in relation to obligations the
taxpayer has jointly with other taxpayers under a
15 taxation Act; or
(c) an agent in relation to obligations of taxpayers for whom
the agent is authorised to act.
(3) A special tax return arrangement is to be made --
(a) in writing; and
20 (b) on terms agreed between the Commissioner and the
responsible party.
50. Content of special tax return arrangement
(1) A special tax return arrangement --
(a) may require the lodging of returns, and the self
25 assessment and payment of tax, in accordance with the
arrangement;
(b) may require compliance with any other obligations
imposed under the conditions of the arrangement;
page 28
Taxation Administration Bill 2001
Payment and refund of tax Part 5
Special tax return arrangements Division 2
s. 51
(c) may exempt the taxpayer or taxpayers covered by the
arrangement from compliance with specified
administrative requirements of a taxation Act;
(d) may provide for the stamping or endorsement of
5 instruments with the amount of tax paid under the
special arrangement, or to denote that tax is not payable
in respect of the instrument; and
(e) may require the responsible party to keep specified
records.
10 (2) If an instrument that the responsible party is required to include
in a tax return would be of no effect until registered under an
enactment, then it is a condition of the arrangement that the
responsible party is to include the instrument in a return before
the instrument is lodged for registration.
15 (3) If a condition of a special tax return arrangement is contravened,
the responsible party commits an offence.
Penalty: $20 000.
(4) A special tax return arrangement does not transfer the
taxpayer's tax liability from the taxpayer to the responsible
20 party.
51. Instruments stamped or endorsed under a special tax return
arrangement
(1) An instrument stamped or endorsed in accordance with a special
tax return arrangement is taken to have been stamped.
25 (2) A person who stamps or endorses an instrument so as to suggest
or imply that the instrument has been properly stamped or
endorsed under a special tax return arrangement commits an
offence unless the instrument is properly stamped or endorsed in
accordance with the conditions of the special arrangement.
30 Penalty: $20 000.
page 29
Taxation Administration Bill 2001
Part 5 Payment and refund of tax
Division 3 Refunds of tax
s. 52
52. Lodging returns under special tax return arrangement
(1) A return lodged under a special tax return arrangement must --
(a) be in a form approved by the Commissioner;
(b) contain the information required by the form; and
5 (c) contain any other information required by the
Commissioner that is relevant to assessing the tax
payable for the matters covered by the return.
(2) A return must be lodged within 15 days after the end of the
return period, unless the special tax return arrangement or a later
10 agreement between the Commissioner and the responsible party
provides otherwise.
(3) The return period for a special tax return arrangement is a
month, unless the arrangement or a later agreement between the
Commissioner and the responsible party provides otherwise.
15 (4) A responsible party who is required to lodge a return under a
special tax return arrangement must lodge the return in
accordance with this section and with the arrangement.
Penalty: $5 000.
53. Amendment or cancellation of arrangement
20 (1) The Commissioner may, by agreement with the responsible
party, amend the conditions of a special tax return arrangement.
(2) The Commissioner may, by notice served on the responsible
party, cancel a special tax return arrangement.
Division 3 -- Refunds of tax
25 54. Power to make refund
(1) The Commissioner must refund tax to a taxpayer if --
(a) as a result of a reassessment, it appears that an
overpayment of tax has been made;
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Taxation Administration Bill 2001
Payment and refund of tax Part 5
Refunds of tax Division 3
s. 55
(b) the Commissioner is satisfied on an application for a
refund under this section that an overpayment of tax has
been made; or
(c) in the circumstances of a particular case, the
5 Commissioner is required by a taxation Act to make a
refund of tax.
(2) However, instead of repaying the amount to be refunded, the
Commissioner may credit the amount of the refund against the
taxpayer's existing and future tax liabilities (but the
10 Commissioner must not credit an amount of $50 or more against
future liabilities if the taxpayer requests repayment).
(3) An application for a refund may only be made --
(a) on a ground on which refunds are authorised or required
by a taxation Act; or
15 (b) on the ground that the amount paid by the taxpayer
exceeds the amount of tax payable in accordance with
the relevant assessment.
(4) An application for a refund under this section must be made --
(a) within a period fixed by a taxation Act for making the
20 application; or
(b) if no period is fixed by a taxation Act -- within 5 years
of the date when the overpayment was made.
55. Refund to be passed on in certain cases
(1) This section applies to payment of any of the following taxes --
25 (a) pay-roll tax;
(b) duty payable under Part IIIF or Part IVB of the Stamp
Act 1921;
(c) debits tax.
page 31
Taxation Administration Bill 2001
Part 5 Payment and refund of tax
Division 3 Refunds of tax
s. 55
(2) If --
(a) the tax payable by the taxpayer is paid out of money
provided by a third party, or a third party reimburses the
taxpayer for payment of tax; and
5 (b) the tax is, in whole or part, refunded or credited to the
taxpayer (whether under this Division or not),
then the taxpayer is to reimburse the third party in accordance
with subsection (3) or (4), as the case requires.
(3) If the third party provided all the money with which the tax
10 payment was made, or fully reimbursed the taxpayer for the
payment, the taxpayer must reimburse the third party with an
amount equal to the amount of the refund or credit.
(4) If the third party contributed part only of the tax payment, or
partially reimbursed the taxpayer for the payment, the taxpayer
15 must reimburse the third party with an amount that bears the
same proportion to the amount of the refund or credit as the
amount of the refund or credit amount bears to the amount of
the payment.
(5) The taxpayer must --
20 (a) make the reimbursement to the third party within
90 days after the refund was paid or credited to the
taxpayer or within any longer period allowed by the
Commissioner; or
(b) if the reimbursement is not made within that period --
25 repay the amount of the refund to the Commissioner or
ask the Commissioner to cancel the credit in the
taxpayer's favour within 7 days from the end of that
period.
Penalty: $20 000.
30 (6) The Commissioner may recover any amount that should have
been, but was not, repaid under subsection (5)(b) as if it were
unpaid tax.
page 32
Taxation Administration Bill 2001
Payment and refund of tax Part 5
Power to waive or write off liability Division 4
s. 56
(7) No action can be brought in a court to compel the
Commissioner to take or refrain from taking proceedings for
recovery of the amount refunded or credited to the taxpayer.
Division 4 -- Power to waive or write off liability
5 56. Waiver of tax
(1) The Commissioner may waive the payment of tax or another
amount payable under a taxation Act (for example, interest or
legal costs), up to a prescribed limit.
(2) If the Commissioner waives the payment of tax or some other
10 amount payable under a taxation Act, the liability to make the
payment is extinguished.
(3) A decision by the Commissioner to waive tax, or not to waive
tax, is non-reviewable.
57. Writing off tax liability
15 (1) The Commissioner may write off a tax liability, or a liability to
pay another amount under a taxation Act, if satisfied that action
or further action to recover the tax or other amount is
impracticable or unwarranted.
(2) Writing off a liability does not --
20 (a) extinguish the liability; or
(b) preclude the Commissioner from taking later action to
recover the amount of the liability.
(3) A decision by the Commissioner to write off a liability, or not to
write off a liability, is non-reviewable.
25 58. Powers subject to Financial Administration and Audit
Act 1985
This Division is to be read subject to the Financial
Administration and Audit Act 1985.
page 33
Taxation Administration Bill 2001
Part 5 Payment and refund of tax
Division 4 Power to waive or write off liability
s. 59
59. No action to compel waiver or writing off
No action can be brought in a court to compel the
Commissioner to waive payment of tax or to write off a tax
liability.
page 34
Taxation Administration Bill 2001
Recovery of tax Part 6
Recovery generally Division 1
s. 60
Part 6 -- Recovery of tax
Division 1 -- Recovery generally
60. Recovery of unpaid tax
(1) Unpaid tax is a debt due to the State.
5 (2) The Commissioner may recover unpaid tax on behalf of the
State by action in any court of competent jurisdiction.
61. Power of court to order payment of tax
When a court convicts a person of an offence against a taxation
Act, the court may (in addition to any penalty imposed for the
10 offence) order the convicted person to pay tax outstanding at the
time of the conviction.
62. Recovery of costs and interest
In this Part, a reference to tax is to be read as including --
(a) legal costs incurred by the Commissioner in relation to
15 proceedings for the recovery of the tax;
(b) costs incurred for lodging a memorial under section 70
or 73;
(c) interest payable under a tax payment arrangement; and
(d) prescribed costs.
20 63. Recovery of tax in cases of joint liability
(1) If 2 or more persons are jointly liable for tax, the whole of the
tax may be recovered from any one or more of them.
(2) This section does not affect the right of a taxpayer who pays tax
to recover contributions from a person jointly liable for the tax.
page 35
Taxation Administration Bill 2001
Part 6 Recovery of tax
Division 1 Recovery generally
s. 64
64. Notice of administrator's appointment
(1) A person who is appointed as statutory administrator of a
taxpayer's assets must, within 14 days of appointment, or within
any longer time allowed by the Commissioner, serve on the
5 Commissioner written notice of the appointment.
Penalty: $5 000.
(2) However, in prescribed circumstances a statutory administrator
does not have to serve notice of the appointment.
(3) For the purposes of this section, a person is a "statutory
10 administrator of a taxpayer's assets" if the person is --
(a) a liquidator of a corporate taxpayer;
(b) a receiver or receiver and manager of the whole or a part
of a taxpayer's property;
(c) a taxpayer's trustee in bankruptcy; or
15 (d) a person who holds a prescribed position or prescribed
powers in relation to a taxpayer or a taxpayer's affairs.
65. Power to garnishee
(1) The Commissioner may serve a garnishee notice on a person
(the "garnishee") if the Commissioner believes on reasonable
20 grounds that the garnishee --
(a) holds or may receive money for or on account of a
taxpayer;
(b) is liable or may become liable to pay money to a
taxpayer; or
25 (c) has authority to pay money to a taxpayer.
(2) A garnishee notice is a notice --
(a) requiring the garnishee to pay money in the garnishee's
possession or control to which the taxpayer is or
becomes entitled to the Commissioner up to the amount
30 of a liability for tax stated in the notice; and
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Taxation Administration Bill 2001
Recovery of tax Part 6
Recovery generally Division 1
s. 66
(b) fixing a time for payment (which cannot be before the
time the taxpayer becomes entitled to the money).
(3) The Commissioner may serve a garnishee notice even though
the taxpayer's entitlement to the money may be subject to
5 unfulfilled conditions.
(4) The Commissioner must serve a copy of the garnishee notice on
the taxpayer.
(5) If the liability to which a garnishee notice relates is discharged
wholly or partly before the time for payment under the notice
10 and the discharge or partial discharge affects the amount to be
recovered from the garnishee, the Commissioner must, by
notice served on the garnishee and the taxpayer --
(a) inform them of that fact; and
(b) state whether and, if so, how the garnishee's obligation
15 under the garnishee notice is affected by the discharge
or partial discharge of the liability.
(6) A garnishee who does not comply with a garnishee notice
commits an offence.
Penalty: $20 000.
20 (7) A garnishee who is under an obligation to pay money to the
taxpayer is taken to have satisfied that obligation to the extent of
the payment made under the garnishee notice.
66. Recovery from partnerships and other associations
If a tax liability is incurred by or on behalf of a partnership, the
25 tax is recoverable jointly and severally from any one or more of
the partners.
67. Recovery from directors of body corporate
(1) If the Commissioner issues an assessment notice to a body
corporate and the amount assessed is not paid by the due date,
30 the Commissioner may serve a notice on the directors of the
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Taxation Administration Bill 2001
Part 6 Recovery of tax
Division 1 Recovery generally
s. 67
body corporate informing them that they will become jointly
and severally liable with the body corporate for the payment of
the tax unless before the expiration of 28 days from the date of
the notice the body corporate remedies its default.
5 (2) The Commissioner must serve a notice under subsection (1) by
arranging for a copy of the notice to be given to each director
personally.
(3) However, if, after exercising due diligence, it appears to the
Commissioner that it is not practicable to give a copy of the
10 notice personally to a director -- the copy of the notice may be
sent, by prepaid post requiring proof of delivery, to the director
at his or her last known personal or business address.
(4) For the purpose of this section, a body corporate is taken to
remedy a default if --
15 (a) the liability is paid;
(b) the Commissioner by notice to the body corporate offers
the body corporate an opportunity to enter into a tax
payment arrangement, and the body corporate enters
into the tax payment arrangement on conditions
20 satisfactory to the Commissioner;
(c) the body corporate enters into voluntary administration
under Part 5.3A of the Corporations Act 2001 of the
Commonwealth; or
(d) the body corporate goes into liquidation.
25 (5) If the body corporate fails to remedy its default within the time
specified in the notice to a director under this section, the
directors become jointly and severally liable, with the body
corporate, for the payment of the tax liability assessed against
the body corporate.
30 (6) If a body corporate remedies its default by entering into a tax
payment arrangement but later contravenes a condition of the
arrangement, the body corporate's default is taken to revive and
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Taxation Administration Bill 2001
Recovery of tax Part 6
Charges on land Division 2
s. 68
the Commissioner may serve another notice on the directors
under this section.
(7) In proceedings for recovery of tax from a director under this
section, it is a defence for the director to establish that --
5 (a) the director took all reasonable steps that were possible
in the circumstances to get the body corporate to remedy
its default; or
(b) the director was unable because of illness or for some
other proper reason to take steps to get the body
10 corporate to remedy its default.
(8) If a director pays tax or tax is recovered from a director under
this section, the director is entitled to be indemnified by the
body corporate for the amount paid or recovered.
(9) This section does not apply in relation to a director of a body
15 corporate to which the Statutory Corporations (Liability of
Directors) Act 1996 applies.
Division 2 -- Charges on land
68. Charge on land to secure land tax
(1) Unpaid land tax is a first charge on the land for which the land
20 tax is payable --
(a) whether or not the land tax is due for payment; and
(b) whether or not a memorial of the charge has been
registered under section 75.
(2) If the land tax is not paid by the due date, the Commissioner
25 may lodge a memorial of the charge with the Registrar of Titles.
(3) If a cheque given in purported payment of land tax is
dishonoured on first presentation (even though the due date may
not have arrived when the cheque is dishonoured), the land tax
is taken not to be paid by the due date for the purposes of
30 subsection (2).
page 39
Taxation Administration Bill 2001
Part 6 Recovery of tax
Division 2 Charges on land
s. 69
(4) A charge on land arising under subsection (1) takes priority over
all other encumbrances on the land.
(5) The taxpayer's liability to pay the land tax continues until it is
paid, despite any disposition of the land.
5 (6) If there is a disposition of the land before the tax is paid, the
new owner becomes liable to pay the tax.
(7) If land tax is assessed in relation to land comprising a number of
separate lots or parcels --
(a) the charge attaches to each separate lot or parcel; and
10 (b) the amount secured by the charge on an individual lot or
parcel is the amount that bears to the total amount of the
unpaid tax the same proportion that the unimproved
value of the lot or parcel bears to the total unimproved
value of the land.
15 (8) However, this section does not apply in relation to land owned
by, or vested in the State, or any agency or instrumentality of
the State, or a local government or any other public statutory
authority.
69. Charge on land to secure stamp duty
20 (1) If stamp duty payable under item 4, 10, 14A, 15, 17 or 19 of the
Second Schedule to the Stamp Act 1921 on an instrument in
relation to land as defined in section 76 of that Act is not paid
by the due date, the Commissioner may lodge a memorial with
the Registrar of Titles to create a charge on the land for the
25 unpaid stamp duty.
(2) If stamp duty payable under Part IIIBA of the Stamp Act 1921
in relation to land as defined in section 76 of that Act is not paid
by the due date, the Commissioner may lodge a memorial with
the Registrar of Titles to create a charge for the unpaid stamp
30 duty --
(a) on the land in relation to which the duty is payable; and
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Taxation Administration Bill 2001
Recovery of tax Part 6
Charges on land Division 2
s. 70
(b) on land owned by a person who is related to the
taxpayer as mentioned in subsection (6).
(3) However, if stamp duty is assessed under section 76AA of the
Stamp Act 1921 in relation to land as defined in section 76 of
5 that Act, then, at any time after the assessment is made, the
Commissioner may lodge a memorial with the Registrar of
Titles to create a charge for the unpaid stamp duty --
(a) on the land in relation to which the duty is payable; and
(b) on land owned by a person who is related to the
10 taxpayer as mentioned in subsection (6).
(4) The charge arises on the land referred to in subsection (1),
(2) or (3) when the memorial is registered under section 75.
(5) If a cheque given in purported payment of stamp duty is
dishonoured on first presentation (even though the due date may
15 not have arrived when the cheque is dishonoured), the stamp
duty is taken not to be paid by the due date for the purposes of
subsections (1) and (2).
(6) A person is related to a taxpayer for the purposes of
subsection (2) or (3) if --
20 (a) both the person and the taxpayer are bodies corporate
and one is a subsidiary of the other within the meaning
of section 76AI(4) of the Stamp Act 1921; or
(b) the person is a body corporate and a beneficiary under a
trust, or a potential beneficiary under a discretionary
25 trust, of which the taxpayer is a trustee.
70. Prohibition on dealing with certain charged land
(1) A memorial lodged under section 68 or 69 may provide that,
after it is registered, the Registrar of Titles is not to register any
dealing with the land without the consent of the Commissioner
30 unless the Commissioner has lodged a memorial releasing the
land from the charge, and the memorial of the release has been
registered.
page 41
Taxation Administration Bill 2001
Part 6 Recovery of tax
Division 2 Charges on land
s. 71
(2) The registration of a memorial that prohibits dealing with land
does not --
(a) prevent a person from lodging with the Registrar of
Titles an instrument relating to a dealing with the land;
5 or
(b) prevent the Registrar of Titles from accepting an
instrument relating to a dealing with the land.
(3) If a memorial of a charge prohibits dealing with land then, on
the registration of a memorial releasing the land from the
10 charge, an instrument lodged previously with the Registrar of
Titles has effect as if the memorial of the charge had not been
registered.
71. Priority of charge
(1) When a memorial of a charge on land is registered under this
15 Act, the charge is the first charge on the land and has priority
over all other mortgages, charges and encumbrances over the
land.
(2) However, if there is another statutory charge on the same land
that ranks as a first charge under another Act, the relative
20 priority of the charges is to be determined according to the order
of registration.
72. Certificate of land tax secured by charge
(1) The Commissioner must, on application by the owner or a
purchaser of land, issue a certificate --
25 (a) stating whether there is a charge on the land under
section 68 or 69; and
(b) if there is --
(i) stating the amount of unpaid land tax or unpaid
stamp duty secured by the charge;
page 42
Taxation Administration Bill 2001
Recovery of tax Part 6
Charges on land Division 2
s. 73
(ii) in the case of land tax that is yet to be
assessed -- estimating the amount to be
assessed.
(2) The certificate estops the Commissioner from --
5 (a) asserting the existence of a charge not disclosed in the
certificate; or
(b) asserting that a charge covered (at the date of the
certificate) an amount exceeding the amount disclosed
in the certificate.
10 (3) However, giving an estimate in the certificate of an amount of
land tax does not estop the Commissioner from assessing a
different amount of land tax if further relevant information
becomes available.
(4) The prescribed fees are payable for the issue of the certificate.
15 73. Release of land from charge
(1) If a memorial of a charge on land is registered, then, on
payment of the amount secured by the charge, the
Commissioner must serve on the taxpayer an instrument
releasing the land from the charge.
20 (2) However, if land tax is assessed in relation to land comprising a
number of separate lots or parcels, the Commissioner is not
obliged to release any lot or parcel from the charge unless the
whole of the land tax is paid.
74. Form of memorial
25 (1) The Registrar of Titles may approve the form of memorials
lodged under this Act.
(2) A memorial must be in a form approved by the Registrar of
Titles.
page 43
Taxation Administration Bill 2001
Part 6 Recovery of tax
Division 2 Charges on land
s. 75
75. Registration of memorials and releases
(1) When a memorial is lodged under this Act, the Registrar of
Titles must register it.
(2) On the application of the owner of the land accompanied by an
5 instrument of release issued under section 73(1), the Registrar
of Titles must register the release of the land from the charge.
76. Notification of mortgagees
When a memorial in relation to land is registered, the
Commissioner must notify all mortgagees who hold registered
10 mortgages over the land of the registration of the memorial (but
failure to do so does not invalidate the registration of the
memorial).
77. Orders for sale of land
(1) If tax on land or property remains unpaid for 18 months or more
15 after the registration of the charge on the land or property, the
Commissioner may apply to the Supreme Court for an order for
the sale of the land (or part of the land) so that the proceeds of
sale may be applied towards satisfaction of the outstanding tax
liability.
20 (2) A single application may be made under this section in relation
to a number of separate lots or parcels in the same ownership.
(3) At least 6 months before the Commissioner makes an
application to the Supreme Court under this section, the
Commissioner must --
25 (a) have notice of the intended application published in
2 newspapers --
(i) one circulating generally throughout Western
Australia; and
(ii) the other circulating generally throughout
30 Australia;
page 44
Taxation Administration Bill 2001
Recovery of tax Part 6
Charges on land Division 2
s. 77
(b) if the whereabouts of the owner of the land is known to
the Commissioner -- serve notice of the intended
application on the owner; and
(c) serve notice of the intended application on the holder of
5 any registered encumbrance over the land whose address
is known to the Commissioner.
(4) On an application under this section, the Supreme Court may
order the sale of the land and make incidental orders --
(a) about how the sale is to be conducted;
10 (b) authorising an officer of the court to execute documents,
and to do anything else necessary, for the sale and
conveyance of the land;
(c) authorising the Registrar of Titles to register a transfer
to a purchaser without requiring the duplicate (if any) of
15 the certificate of title or of any other document;
(d) directing (subject to subsection (5)) how the proceeds of
sale are to be dealt with; and
(e) dealing with costs of the proceedings and other
incidental matters.
20 (5) A sale by order of the Supreme Court is to discharge the land
from any mortgage or other encumbrance securing a monetary
obligation, but the land remains subject to any lease, easement
or other encumbrance.
(6) The proceeds of the sale are to be applied as follows --
25 (a) firstly, in payment of the costs of the sale;
(b) secondly, in payment of costs of proceedings so far as
those costs are, by order of the court, to be paid out of
the proceeds of sale;
(c) thirdly, in discharge of the outstanding tax liability
30 secured by the charge;
page 45
Taxation Administration Bill 2001
Part 6 Recovery of tax
Division 2 Charges on land
s. 78
(d) fourthly, in discharge of any outstanding monetary
liability secured by a mortgage or other encumbrance
securing a monetary obligation; and
(e) lastly, any remaining balance is to be applied as directed
5 by the court.
78. Means of enforcement not limited to charge
The existence or registration of a charge under this Division
does not affect the Commissioner's discretion to proceed for
recovery of the outstanding tax in proceedings unrelated to the
10 charge.
page 46
Taxation Administration Bill 2001
Tax records Part 7
s. 79
Part 7 -- Tax records
79. How long tax records are to be kept
A person required to keep a tax record under a taxation Act
must, unless the Act otherwise provides, retain the tax record
5 for at least 5 years after --
(a) the date it was made by the person or, if it was not made
by the person, the date it was obtained by the person; or
(b) if it relates to a transaction, the date of completion of the
transaction,
10 whichever is the later.
Penalty: $20 000.
80. Form of tax records
(1) A person required to keep a tax record must ensure that it is
kept --
15 (a) in the form of a document in the English language, or in
some other form which can be readily converted into a
document in the English language or from which a
document in the English language can be readily
reproduced; or
20 (b) in some other form allowed by the regulations.
Penalty: $20 000.
(2) If a person required to keep a tax record does not keep it in the
form of a document in the English language, the Commissioner
may request the person to convert it to such a document within a
25 reasonable time.
(3) If the person does not comply with the request, the
Commissioner may --
(a) have the tax record converted; and
page 47
Taxation Administration Bill 2001
Part 7 Tax records
s. 81
(b) recover from the person as a debt the reasonable cost of
converting it.
81. Where tax records are to be kept
(1) A person required to keep a tax record must keep it in Western
5 Australia unless --
(a) the taxation Act specifically allows the tax record to be
kept elsewhere;
(b) the regulations allow the tax record to be kept
elsewhere; or
10 (c) the Commissioner gives approval allowing the tax
record to be kept elsewhere.
Penalty: $20 000.
(2) The Commissioner may require a person who keeps a tax record
outside Western Australia to bring it into Western Australia
15 within a reasonable time allowed by the Commissioner.
(3) A person who does not comply with a requirement under
subsection (2) commits an offence.
Penalty: $20 000.
(4) The Commissioner may recover as a debt, from a person
20 required to keep a tax record, costs reasonably incurred by the
Commissioner as a result of the person's failure to comply with
subsection (1) or with a requirement made under this section.
(5) If a tax record is brought into Western Australia in accordance
with a requirement under subsection (2), the tax record does not
25 give rise to any tax liability that would not have existed if it had
not been brought into Western Australia.
82. Failure to keep proper tax records
A person commits an offence if the person --
(a) makes an entry in a tax record knowing the entry to be
30 false or misleading in a material particular;
page 48
Taxation Administration Bill 2001
Tax records Part 7
s. 83
(b) keeps a tax record knowing it to be false or misleading
in a material particular; or
(c) wilfully damages or destroys a tax record.
Penalty: $20 000 plus 3 times the amount of tax that was
5 avoided or might have been avoided if the false or
misleading entry or tax record had been accepted as true.
83. General and specific exemptions
(1) An exemption of general application may be given by regulation
from --
10 (a) the requirement to keep a tax record; or
(b) incidental requirements relating to the keeping of a tax
record.
(2) The Commissioner may, by notice to a person, exempt the
person from --
15 (a) the requirement to keep a tax record; or
(b) other requirements incidental to keeping a tax record.
(3) An exemption may be given subject to conditions specified in
the relevant regulation or notice of exemption.
(4) The Commissioner may amend or cancel an exemption given to
20 a person under subsection (2) by giving notice to the person of
the amendment or cancellation.
page 49
Taxation Administration Bill 2001
Part 8 Investigations
Division 1 Investigations
s. 84
Part 8 -- Investigations
Division 1 -- Investigations
84. Investigations
An investigation may be carried out under this Part for any or
5 all of the following purposes --
(a) to ascertain whether a tax liability exists;
(b) to gather any information relevant to making an
assessment;
(c) to gather any information relevant to making a decision
10 under a taxation Act;
(d) to audit tax records;
(e) to gather evidence of a suspected contravention of a
taxation Act;
(f) any other purpose relevant to the administration of a
15 taxation Act.
85. Investigations for the purposes of recognised revenue laws
(1) The Commissioner may, by agreement with the corresponding
Commissioner of a recognised jurisdiction --
(a) authorise the corresponding Commissioner to carry out
20 an investigation under this Part for the purposes of a
recognised revenue law in force in the jurisdiction; or
(b) carry out an investigation under this Part on behalf of
the corresponding Commissioner for the purposes of a
recognised revenue law in force in the jurisdiction.
25 (2) The Commissioner may only exercise powers under this section
if the law of the recognised jurisdiction has reciprocal
provisions providing for investigations by or on behalf of the
Commissioner.
page 50
Taxation Administration Bill 2001
Investigations Part 8
Obtaining tax records and other information Division 2
s. 86
(3) For the purposes of carrying out an investigation under this
section for the purposes of a recognised revenue law --
(a) a reference in this Part to tax is to be read as a reference
to tax payable under the recognised revenue law;
5 (b) a reference to a tax liability is to be read as a reference
to a tax liability under the recognised revenue law;
(c) a reference to a taxation Act is to be read as a reference
to the recognised revenue law; and
(d) a reference to a contravention of a taxation Act is to be
10 read as a reference to a contravention of the recognised
revenue law.
(4) If the Commissioner authorises a corresponding Commissioner
of a recognised jurisdiction to carry out an investigation under
this Part --
15 (a) a reference in this Part to the Commissioner is to be read
as a reference to the corresponding Commissioner;
(b) a reference in this Part to an investigator is to be read as
a reference to a person authorised to take part in the
investigation under a recognised revenue law in force in
20 the recognised jurisdiction; and
(c) a reference in this Part to an investigator's identity card,
in relation to a person authorised to take part in the
investigation under a recognised revenue law in force in
the recognised jurisdiction, is to be read as a reference to
25 an identification card or certificate issued to the person
under the recognised revenue law.
Division 2 -- Obtaining tax records and other information
86. Requirements to provide information and tax records
(1) The Commissioner may, for investigation purposes, require a
30 taxpayer or any other person --
(a) to provide oral or written answers to specified questions; or
page 51
Taxation Administration Bill 2001
Part 8 Investigations
Division 2 Obtaining tax records and other information
s. 87
(b) to produce to the Commissioner specified relevant
material or relevant material of a specified class, in the
person's possession or control.
(2) The Commissioner may make the requirement --
5 (a) if an oral response is required -- orally; or
(b) in any other case -- by notice served on the person to
whom the requirement is addressed.
(3) The Commissioner may require a person to verify written
answers to questions by statutory declaration.
10 (4) A person must comply with a requirement under this section
within the time specified in the notice or within any further time
allowed by the Commissioner.
Penalty: $20 000.
87. Power to require person to attend for examination
15 (1) The Commissioner may, for investigation purposes, require a
taxpayer or any other person to attend for examination by an
investigator.
(2) A requirement is to be made by notice served on the taxpayer or
other person.
20 (3) A notice --
(a) must indicate the time and place fixed for the
examination (which must, if practicable, be reasonably
convenient to the person to be examined);
(b) must indicate the subject of the examination; and
25 (c) may require the person to bring and produce to the
examining investigator relevant material in the person's
possession or control relating to the subject of the
examination.
page 52
Taxation Administration Bill 2001
Investigations Part 8
Obtaining tax records and other information Division 2
s. 88
(4) An investigator conducting an examination --
(a) may require a person attending for examination to make
an oath to answer all questions truthfully and may
administer the oath;
5 (b) may require the person to answer a question relevant to
the subject matter of the examination put by the
investigator, or with the consent of the investigator, by
another person present at the examination; and
(c) may require the person to produce for examination by
10 the investigator relevant material in the person's
possession at the examination.
(5) A person must comply with a requirement under this section.
Penalty: $20 000.
(6) A person, other than a taxpayer or a taxpayer's representative,
15 who attends for examination is entitled to be paid the prescribed
fees and expenses.
88. Power to retain documents
The Commissioner may retain any instrument or other
document in his possession that is relevant to performing his or
20 her functions under a taxation Act for as long as is necessary --
(a) to examine it or copy it, or both;
(b) if it is relevant to proceedings that have been or may be
instituted -- for the purposes of the proceedings;
(c) in the case of an instrument on which tax is payable --
25 until the tax is paid;
(d) in the case of a document that is relevant to making an
assessment -- until the assessment is made and any tax
payable as a result of the assessment is paid.
page 53
Taxation Administration Bill 2001
Part 8 Investigations
Division 3 Access to premises
s. 89
89. Recording examination proceedings
(1) An investigator may make a recording of the questions asked by
an investigator and the answers given by a person who attends
for examination under section 87.
5 (2) If an investigator decides to make a record, the investigator
must advise the person attending for examination to that effect
before recording begins.
Division 3 -- Access to premises
90. Entry of premises
10 (1) Subject to subsection (2), an investigator may, for investigation
purposes, enter and remain on premises to exercise his or her
powers of investigation.
(2) The investigator may only enter residential premises as
follows --
15 (a) the investigator may enter the premises at any
reasonable time with the consent of the occupier of the
premises;
(b) the investigator may enter the premises in accordance
with the authorisation conferred by a warrant;
20 (c) if the investigator believes, on reasonable grounds, that
it is urgently necessary to do so in order to prevent the
destruction of or interference with relevant material, the
investigator may enter the premises at any time without
the consent of the occupier and without warrant.
25 (3) The investigator must not exercise the power set out in
subsection (2)(c) unless the Commissioner has, in the
particular case, authorised the investigator to do so.
page 54
Taxation Administration Bill 2001
Investigations Part 8
Access to premises Division 3
s. 91
(4) The investigator must, on first encountering a person apparently
in a position of authority on the premises, and also on the
reasonable request of any other person on the premises --
(a) display his or her identity card to the person or persons
5 respectively; and
(b) if the investigator has entered or is about to enter the
premises under a warrant -- display the warrant to the
person or persons respectively.
91. Powers of investigator while on premises
10 (1) When an investigator exercises his or her powers of entry under
this Act, the investigator may do any or all of the following --
(a) search the premises and examine anything on the
premises (opening it if necessary and, if specifically
authorised to do so by the Commissioner, breaking it
15 open);
(b) take possession of, and remove from the premises,
documents, or anything else relevant to the
investigation, found in the course of exercising his or
her powers under this Act;
20 (c) take extracts from or make copies of, or download or
print-out, any documents found in the course of carrying
out his or her functions under this Act;
(d) photograph or film anything on the premises;
(e) if anything on the premises that is relevant to the
25 investigation cannot be conveniently removed -- secure
it against interference;
(f) require any person who is on the premises --
(i) to state his or her full name and address;
(ii) to answer (orally or in writing) questions put by
30 the investigator that are relevant to the
investigation;
page 55
Taxation Administration Bill 2001
Part 8 Investigations
Division 3 Access to premises
s. 91
(iii) to give the investigator any information in the
person's possession or control that is relevant to
the investigation;
(iv) to operate or allow the investigator to operate
5 equipment or facilities on the premises for
investigation purposes;
(v) to give the investigator any translation, code,
password or other information necessary to gain
access to or to interpret and understand any
10 document or information located or obtained by
the investigator in the course of exercising his or
her functions under this Act;
(vi) to give other assistance that the investigator
reasonably requires to carry out the investigation.
15 (2) A person who --
(a) does not comply with a requirement under
subsection (1)(f); or
(b) gives an investigator information that the person knows
to be false or misleading,
20 commits an offence.
Penalty: $20 000.
(3) An investigator is not authorised to take anything from premises
unless he or she --
(a) gives the occupier or another person apparently
25 responsible to the occupier a receipt for the thing taken,
if requested to do so by the occupier or other person; or
(b) if the occupier or a person apparently responsible to the
occupier is not present, leaves a receipt for the thing
taken, in an envelope addressed to the occupier, in a
30 prominent position on the premises.
(4) A receipt is to be in a form approved by the Commissioner.
page 56
Taxation Administration Bill 2001
Investigations Part 8
Access to premises Division 3
s. 92
(5) The Commissioner must ensure that a person from whom a
document or anything else is taken under this section and who
would otherwise be entitled to possession of it is given a copy
of it, or reasonable access to it, as appropriate.
5 (6) If an investigator takes possession of anything under this
section, the Commissioner must ensure that it is returned to the
person entitled to possession of it as follows --
(a) if it was taken in connection with the prosecution or
possible prosecution of a suspected tax contravention of
10 a taxation Act -- as soon as practicable after the
relevant prosecution is completed or discontinued or, if
no prosecution is commenced, as soon as practicable
after the decision is made not to prosecute the suspected
contravention;
15 (b) if it was an instrument on which duty was payable -- as
soon as practicable after assessment and payment of the
relevant duty;
(c) in any other case -- within 28 days after it was taken.
92. Warrants to enter premises
20 (1) If a justice is satisfied by a complaint on oath that it is
reasonably necessary for an investigator to enter premises for
investigation purposes, the justice may issue a warrant
authorising an investigator --
(a) to enter the premises at a time or within a period stated
25 in the warrant; and
(b) to exercise the powers of search and investigation
conferred by this Part.
(2) An investigator who applies to a justice or magistrate for a
warrant under this section must produce his or her identity card
30 to the justice or magistrate.
(3) The authority conferred by a warrant may be exercised by the
investigator who applied for the warrant or by any other
investigator.
page 57
Taxation Administration Bill 2001
Part 8 Investigations
Division 4 General provisions
s. 93
93. Use of force
(1) An investigator may use reasonable force --
(a) to enter premises under this Part; or
(b) to exercise powers under section 91(1)(a) to (e).
5 (2) However, if the use of reasonable force is likely to cause
damage to property, the investigator is not entitled to use force
unless the Commissioner has, in the particular case, authorised
the investigator to do so.
Division 4 -- General provisions
10 94. Complying with information requirements
(1) A person is not excused from complying with a requirement
under this Part to provide information or relevant material on
the grounds that complying with the requirement would tend to
incriminate the person or render the person liable to a penalty.
15 (2) However, information or material provided by the person in
compliance with the requirement is not admissible in evidence
in any proceedings against the person for an offence against a
taxation Act except an offence against section 86(4), 87(5) or
91(2).
20 (3) A person is not excused from complying with a requirement
under this Part to provide an official document on the grounds
that the document is protected by legal professional privilege.
(4) A person who claims, either on the person's own behalf or on
behalf of another person, to be excused from complying with a
25 requirement under this Part to provide information or relevant
material on the grounds that the information or material is
protected by legal professional privilege commits an offence if
the person knew, or could reasonably be expected to have
known, that he or she does not have reasonable grounds for
30 making the claim.
Penalty: $20 000.
page 58
Taxation Administration Bill 2001
Investigations Part 8
General provisions Division 4
s. 95
95. Interaction with other Acts
This Part prevails over --
(a) any law that would otherwise protect from disclosure
information about the transfer or ownership of a
5 statutory licence;
(b) any law that would otherwise protect from disclosure
information about payments made for the benefit of
employees;
(c) any law that would otherwise protect from disclosure
10 information about the registration, transfer of
registration or ownership of motor vehicles;
(d) any law that would otherwise protect from disclosure
information about the transfer or ownership of mining
tenements or petroleum licences;
15 (e) any law that would otherwise protect from disclosure
information about the whereabouts of taxpayers; and
(f) any other prescribed law that would otherwise protect
information from disclosure.
page 59
Taxation Administration Bill 2001
Part 9 Offences
s. 96
Part 9 -- Offences
96. General penalty provision
(1) A person who commits an offence against a taxation Act for
which no penalty is specifically provided is liable on conviction
5 to a penalty not exceeding $20 000.
(2) If a person does not comply with a requirement made under a
taxation Act by the Commissioner or an investigator, and no
penalty is specifically provided for the non-compliance, the
person commits an offence.
10 Penalty: $20 000.
97. Evasion of tax
(1) A person who, by an intentional act or omission, evades or
attempts to evade paying tax that the person is liable to pay,
commits an offence.
15 (2) A court by which a person is convicted of an offence against
subsection (1) must impose a penalty within a range extending
from a minimum of 3 times the amount of the primary tax the
defendant evaded or attempted to evade to a maximum
equivalent to the minimum plus $20 000.
20 98. False or misleading information
(1) A person must not --
(a) provide information to the Commissioner or an
investigator knowing it to be false or misleading in a
material particular; or
25 (b) provide a tax record to the Commissioner or an
investigator knowing it to be false or misleading in a
material particular.
Penalty: $20 000 plus 3 times the amount of tax that was avoided
or might have been avoided if the false or misleading
30 information or tax record had been accepted as true.
page 60
Taxation Administration Bill 2001
Offences Part 9
s. 99
(2) If a person provides the Commissioner or an investigator with
information or a tax record that is false or misleading in a
material particular then, in proceedings for an offence against
this section, the person is presumed to have known that the
5 information or tax record was false or misleading in the material
particular unless the contrary is established.
99. Obstructing or misleading an investigator
(1) A person who hinders or obstructs the Commissioner or an
investigator in carrying out functions under a taxation Act
10 commits an offence.
Penalty: $20 000.
(2) A person who misleads the Commissioner or an investigator in
a way that may affect the carrying out of his or her functions
under a taxation Act commits an offence.
15 Penalty: $20 000.
100. Offence by body corporate
(1) If a body corporate commits an offence against a taxation Act
each director of the body corporate commits the offence and is
liable to the penalty prescribed for an individual who commits
20 the offence.
(2) It is a defence to a charge of an offence by a director under this
section to prove that the defendant could not reasonably be
expected to have prevented the commission of the offence by
the body corporate.
25 101. Criminal penalties not to affect civil liabilities
The imposition of a penalty for an offence does not relieve the
person on whom the penalty is imposed from a tax liability
(including a liability for penalty tax) arising out of the same
wrongful act.
page 61
Taxation Administration Bill 2001
Part 9 Offences
s. 102
102. Time for commencing prosecutions
(1) A prosecution for an offence against a taxation Act must be
commenced within 5 years after the date on which the offence is
alleged to have been committed.
5 (2) However, if the alleged offence involves tax evasion, an
intention to mislead or some other form of dishonesty, a
prosecution for the offence may be commenced at any time.
103. Authority required for prosecution
(1) Proceedings for an offence against a taxation Act may only be
10 taken --
(a) by the Commissioner, or under the Commissioner's
authority; and
(b) in the Commissioner's name.
(2) A statement in a complaint for an offence against a taxation Act
15 that the complaint is laid by the Commissioner or under the
Commissioner's authority is to be taken to be proved in the
absence of evidence to the contrary.
104. General defence
It is a defence to a charge of an offence against this Act
20 consisting of a failure to comply with a requirement imposed by
or under this Act to prove that the defendant could not, by the
exercise of reasonable diligence, have complied with the
requirement to which the charge relates.
page 62
Taxation Administration Bill 2001
Miscellaneous Part 10
Confidentiality Division 1
s. 105
Part 10 -- Miscellaneous
Division 1 -- Confidentiality
105. Confidentiality
(1) The following persons are subject to a duty of confidentiality
5 under this section --
(a) the Commissioner or a former Commissioner;
(b) a delegate or former delegate of the Commissioner;
(c) an investigator or former investigator;
(d) an appointed representative, or former appointed
10 representative, of the Commissioner;
(e) any other person to whom the information or material is
disclosed under a taxation Act;
(f) any other person who properly or improperly gains
access to the information or material in some other way.
15 (2) A person who is subject to a duty of confidentiality under this
section must not record, disclose, or make use of information or
material obtained under a taxation Act except --
(a) for a purpose related to the administration or
enforcement of the taxation Act under which the
20 information or material was obtained or another Act
administered by the Commissioner or under which the
Commissioner exercises statutory functions;
(b) as required or allowed by this Act or another law that
specifically or by necessary implication overrides the
25 duty of confidentiality imposed by this section;
(c) as authorised by the person to whose affairs the
information or material relates; or
(d) for the purpose of proceedings, or a report of
proceedings, arising out of a taxation Act.
30 Penalty: $20 000.
page 63
Taxation Administration Bill 2001
Part 10 Miscellaneous
Division 1 Confidentiality
s. 105
(3) This section does not prevent --
(a) the disclosure of information or material in connection
with the investigation or prosecution of a criminal
offence to --
5 (i) the Director of Public Prosecutions for a State or
the Commonwealth;
(ii) an officer of the police force of a State or the
Commonwealth;
(iii) an officer of the Australian Securities and
10 Investment Commission; or
(iv) an officer of another law enforcement agency
established under State or Commonwealth law
that is authorised by regulation to receive
confidential information under this paragraph;
15 (b) the disclosure of information or material to an official
administering a taxation law of the Commonwealth or
another State for a purpose related to the administration
of such a law;
(c) the disclosure of information or material to the Western
20 Australian Department of Treasury and Finance;
(d) the disclosure of information about the ownership, sale
and capital and rental value of property to the
Valuer-General;
(e) the disclosure of statistical or other information that
25 could not reasonably be expected to lead to the
identification of any person to whom it relates;
(f) the disclosure to an insurance company, for the purposes
of a determination by the company of the amount of
stamp duty payable on an insurance policy issued or to
30 be issued against an employer's liability to pay
compensation under the Workers' Compensation and
Rehabilitation Act 1981, whether the employer was
liable to pay pay-roll tax in the 12 months immediately
preceding the cover period of the policy; or
page 64
Taxation Administration Bill 2001
Miscellaneous Part 10
Service of documents Division 2
s. 106
(g) the disclosure of information or material in other
circumstances in which its disclosure is permitted by the
regulations.
(4) However, information or material obtained by the
5 Commissioner despite restrictions on its disclosure imposed
under some other Act remains subject to those restrictions in the
hands of the Commissioner and may only be disclosed under
subsection (2) to the extent the disclosure is consistent with
those restrictions.
10 (5) If information is lawfully disclosed under this section, this
section does not prevent the further disclosure of the
information, or the recording or use of the information, for the
purpose for which the disclosure was made.
(6) A court cannot require a person who is subject to a duty of
15 confidentiality under this section to give evidence, or to produce
a record contrary to this section except in proceedings arising
from the lawful disclosure of information.
(7) This section does not create a right in any person to be given
confidential information.
20 Division 2 -- Service of documents
106. Service on the Commissioner
A document may be served on the Commissioner --
(a) by lodging the document at the Commissioner's office;
(b) by prepaid post;
25 (c) if the regulations authorise service of the document
under this paragraph -- by faxing a copy of the
document to a fax number stated in the regulations; or
(d) if the regulations authorise service of the document
under this paragraph -- by sending computer data from
30 which the document can be reproduced, in a format
page 65
Taxation Administration Bill 2001
Part 10 Miscellaneous
Division 2 Service of documents
s. 107
prescribed by the regulations, to an address for the
receipt of electronic mail prescribed in the regulations.
107. Service on agent or representative of taxpayer
(1) A notice or other document to be served on taxpayers who are
5 jointly liable for tax is taken to have been served on both or all
the taxpayers if served on any one of them.
(2) A notice or other document to be served by the Commissioner
may be served on --
(a) an agent with apparent authority to accept service of the
10 notice or other document; or
(b) a person who lodged the application or instrument to
which the notice or other document relates.
(3) A notice or other document to be served by the Commissioner
on a partnership is taken to have been served on all members of
15 a partnership if it is served on any member of the partnership.
(4) A notice or other document to be served by the Commissioner
on an unincorporated association is taken to have been served
on all members of an unincorporated association if it is served
on any member of the committee of management of the
20 association.
108. Method of service by Commissioner
(1) A notice or other document to be served by the Commissioner
under a taxation Act may be served on a person by --
(a) giving it to the person personally;
25 (b) leaving it for the person to be served at the person's
place of residence or business;
(c) sending it by prepaid post (including document
exchange) addressed to the person at an address
appearing on recent correspondence addressed by or on
30 behalf of the person to the Commissioner or otherwise
notified to the Commissioner;
page 66
Taxation Administration Bill 2001
Miscellaneous Part 10
Evidentiary provisions Division 3
s. 109
(d) leaving it for collection by the person to be served, or
that person's agent, in a collection box maintained at the
Commissioner's office;
(e) faxing it or emailing it to a fax number or email address
5 of the person; or
(f) communicating it in some other way agreed with the
person.
(2) The use of a particular method for service of a document on a
particular person does not prevent the service of other
10 documents on the same person in a different way.
(3) If a notice or other document is not served personally, the
document is taken to be served on the business day following
the day on which the document was sent to, or left for, the
person to whom it is addressed subject to the following
15 exceptions --
(a) if the notice or document is sent by post to an address
within Australia but outside Western Australia -- a
further 4 business days are to be allowed;
(b) if the notice or document is sent by post to an address
20 outside Australia -- a further 10 business days are to be
allowed.
109. Non-exclusivity of this Division
The provisions of this Division are in addition to, and do not
derogate from, other provisions of an enactment for facilitating
25 service.
Division 3 -- Evidentiary provisions
110. Evidentiary value of assessment notice
An assessment notice (or a copy of an assessment notice) is
admissible as evidence in proceedings under a taxation Act and,
30 in the absence of proof to the contrary, is proof of --
(a) the making of the assessment;
page 67
Taxation Administration Bill 2001
Part 10 Miscellaneous
Division 3 Evidentiary provisions
s. 111
(b) the amount of tax assessed;
(c) the identity of the person liable for the tax;
(d) the due date for paying the tax; and
(e) any other fact stated in the notice.
5 111. Evidentiary status of copies and reproductions of documents
(1) In proceedings under a taxation Act, a copy of a notice or other
document issued by the Commissioner --
(a) is, if produced by or on behalf of the Commissioner,
admissible in the same way as the original; and
10 (b) has the same evidentiary value as the original.
(2) For the purposes of the law of evidence, if 2 or more documents
are produced from the same computer data (or from computer
data recording the same information), they are both or all to be
regarded as originals.
15 112. Evidentiary certificates
(1) The Commissioner may issue --
(a) a certificate of the making of an assessment including
details of the assessment;
(b) a certificate stating that an assessment was served on a
20 taxpayer on a particular date by a specified means;
(c) a certificate stating that a person identified in the
certificate was authorised by delegation under this Act
to exercise specified functions of the Commissioner on a
specified date or over a specified period;
25 (d) a certificate stating that a return had not been received at
the Commissioner's office by a specified date;
(e) a certificate stating that a person identified in the
certificate failed to comply with a requirement made
under a taxation Act to provide documents or
page 68
Taxation Administration Bill 2001
Miscellaneous Part 10
Evidentiary provisions Division 3
s. 113
information within the time allowed by the
Commissioner; or
(f) a certificate stating that a person identified in the
certificate was not registered under a specified provision
5 of a taxation Act on a date specified in the certificate.
(2) A certificate issued under this section is evidence of the facts
stated in the certificate and, in the absence of evidence to the
contrary, is proof of those facts.
113. Extracts from register of delegates
10 A copy or print-out of an entry in the register of delegates kept
under section 10 is evidence of the facts stated in the copy or
print-out and, in the absence of evidence to the contrary, is
proof of those facts.
114. Averments in complaints
15 In proceedings for an offence against a taxation Act --
(a) an allegation in the complaint that the defendant is a
party to a specified instrument or transaction is, in the
absence of evidence to the contrary, evidence of the
alleged fact;
20 (b) an allegation in the complaint that the defendant had on
a specified date a specified liability under a taxation Act
is, in the absence of evidence to the contrary, evidence
of the existence of the alleged liability; and
(c) an allegation in the complaint that the defendant was, on
25 a specified date, under an obligation to lodge a return
under a specified provision of a taxation Act is, in the
absence of evidence to the contrary, evidence of the
existence of the alleged obligation.
page 69
Taxation Administration Bill 2001
Part 10 Miscellaneous
Division 4 Exemption from personal liability
s. 115
115. Presumption of regularity
(1) Proceedings taken in a court or tribunal in the name of the
Commissioner are presumed, in the absence of evidence to the
contrary, to have been duly taken by the Commissioner, or on
5 the Commissioner's authority.
(2) In proceedings under a taxation Act, compliance by the
Commissioner or an investigator with the requirements of the
taxation Acts is presumed, in the absence of evidence to the
contrary.
10 Division 4 -- Exemption from personal liability
116. Exemption from personal liability
(1) The Commissioner or an investigator is not personally liable for
anything done or omitted to be done in good faith and without
negligence in the performance or purported performance, of a
15 function under a taxation Act.
(2) Subsection (1) does not relieve the State of any liability that, but
for that subsection, it might have had for the acts or omissions
of the Commissioner or an investigator.
Division 5 -- Regulations
20 117. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed or are
necessary or convenient to be prescribed for giving effect to this
Act.
25 (2) Regulations may create offences and provide, in respect of an
offence so created, for the imposition of a fine not exceeding
$5 000.
page 70
Taxation Administration Bill 2001
Glossary
Glossary
[s. 4]
Unless the contrary intention appears --
"address" of a person means --
5 (a) the address of the person's residence or place of business;
or
(b) if the person has a post office box for receiving personal
or business mail -- the address of the post office box;
"appointed representative" means a person appointed under
10 section 12 to represent the Commissioner in proceedings under a
taxation Act;
"assessment" means a determination of a kind referred to in
section 13(1), whether the determination is made by way of a
self-assessment, an official assessment or a reassessment;
15 "assessment notice" means a notice under section 23;
"charge", in relation to land, means a charge on the land created
under section 68 or 69;
"Commissioner" means the Commissioner of State Revenue
appointed in accordance with section 6;
20 "corresponding Commissioner", in relation to a recognised
jurisdiction in which a recognised revenue law is in force, means
the person responsible for administering the recognised revenue
law;
"decision" includes a direction;
25 "document" includes information stored or recorded by any means;
"due date" means --
(a) in relation to the payment of tax -- the date on which the
tax is due for payment under section 45(1), (2) or (3), as
the case requires;
30 (b) in relation to lodging a return -- the date by which the
return is required to be lodged under a taxation Act;
"garnishee" has the definition given in section 65;
page 71
Taxation Administration Bill 2001
Glossary
"group" means 2 or more persons who are grouped together for the
purposes of a taxation Act;
"identity card" means an identity card issued to an investigator under
section 11;
5 "instrument" means --
(a) a bill of exchange, promissory note, statement,
conveyance, transfer, lease, licence, insurance policy or
any other document of a kind referred to in the Second
Schedule to the Stamp Act 1921;
10 (b) a statement or return that is required under a taxation Act
for the assessment of tax;
(c) a memorandum created by the Commissioner under
section 20;
(d) a document or other record on which, or in relation to
15 which, tax is payable under a taxation Act;
(e) anything else that is to be regarded as an instrument under
the provisions of another taxation Act;
(f) a copy, duplicate or counterpart of an instrument or
document referred to in another paragraph of this
20 definition;
"investigation purposes" means any or all of the purposes for which
an investigation may be carried out under section 84 or 85;
"investigator" means a person appointed to be an investigator under
section 11;
25 "non-reviewable decision" means a decision under a taxation Act
that is expressed by the Act to be non-reviewable;
"official assessment" has the definition given in section 15(1);
"official document" means an instrument and any other record or
document that is --
30 (a) kept under or for the purposes of a taxation Act;
(b) required to be stamped under or for the purposes of a
taxation Act; or
(c) required to be lodged with the Commissioner under or for
the purposes of a taxation Act;
page 72
Taxation Administration Bill 2001
Glossary
"original assessment", in relation to a reassessment of tax payable
under a taxation Act, means a self assessment (if any) made in
relation to the tax, or the first official assessment made in
relation to the tax if no self-assessment was made, but does not
5 include a reassessment;
"penalty tax" means --
(a) penalty tax payable under section 26;
(b) penalty tax payable under section 27 for late payment of
tax; or
10 (c) penalty tax payable under sections 75JE, 75JF, 76I(2)(b)
or 76J(2)(b) of the Stamp Act 1921;
"person" includes a group;
"premises" means --
(a) land (whether built on or not);
15 (b) a building or structure on land; or
(c) a vehicle,
and includes a part of premises;
"previous assessment", in relation to a reassessment of tax, means
the assessment that was or is to be reviewed by the reassessment
20 whether the reviewed assessment was an original assessment or
an earlier reassessment;
"primary liability" for tax means a liability for tax exclusive of any
liability for penalty tax;
"reassessment" does not include an original assessment;
25 "recognised jurisdiction" means the Commonwealth or another
State;
"recognised revenue law" means --
(a) a law of the Commonwealth or another State
corresponding to a taxation Act; or
30 (b) a law of the Commonwealth or another State declared by
regulation to be a recognised revenue law;
"record" means any thing or process --
(a) upon or by which information is recorded or stored; or
page 73
Taxation Administration Bill 2001
Glossary
(b) by means of which a meaning can be conveyed in a visible
or recoverable form,
whether or not the use or assistance of some electronic,
electrical, mechanical, chemical or other device or process is
5 required to recover or convey the information or meaning;
"Registrar of Titles" means the Registrar of Titles or the Registrar of
Deeds and Transfers;
"relevant material" means an instrument, record or anything else
that is relevant to --
10 (a) ascertaining whether a tax liability exists;
(b) assessing the amount of a tax liability;
(c) deciding an application for a rebate or refund of tax, or an
exemption from tax, or any other application under a
taxation Act;
15 (d) auditing records relevant to the assessment of tax; or
(e) ascertaining whether a contravention of a taxation Act has
occurred;
"responsible party", in relation to a special tax return arrangement,
means the person with whom the arrangement is made as
20 mentioned in section 49(1);
"self-assessment" has the meaning given in section 14;
"special tax return arrangement" means an arrangement approved
under section 49;
"State" includes the Northern Territory and the Australian Capital
25 Territory;
"tax" means --
(a) tax, duty or another impost, or an instalment of tax, duty
or other impost, that is payable under a taxation Act; or
(b) penalty tax payable under a taxation Act;
30 "tax liability" means a liability to pay tax (including a liability that
has not fallen due for payment);
"taxation Act" means an enactment specified as a taxation Act under
section 3(1);
page 74
Taxation Administration Bill 2001
Glossary
"taxpayer" means --
(a) a person who is or may be liable to pay tax;
(b) a responsible party who is required to pay tax on behalf of
another taxpayer under a special tax return arrangement;
5 or
(c) a person of a prescribed class who is subject to statutory
obligations relating to the assessment or payment of tax;
"tax payment arrangement" means an arrangement approved under
section 47;
10 "tax record" means a record required to be kept under a taxation Act
or under a special tax return arrangement;
"Valuer-General" means the Valuer-General appointed under
section 6 of the Valuation of Land Act 1978;
"vehicle" includes a train, vessel or aircraft.
page 75
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