(7) Unless the contrary intention appears, a varied assessment is taken, for the purposes of this Part, to be an assessment under this section.
205AC When interim tax becomes due and payable
Interim tax becomes due and payable on:
(a) the 28th day after a copy of the assessment of the interim tax was given to the person to whom the assessment relates; or
(b) if that assessment is varied—the 28th day after a copy of the varied assessment was given to the person to whom the varied assessment relates.
205AD Recovery of interim tax
Interim tax:
(a) is a debt due to the ACMA on behalf of the Commonwealth; and
(b) may be recovered by the ACMA, on behalf of the Commonwealth, in:
(i) the Federal Court; or
(ii) the Federal Circuit and Family Court of Australia (Division 2); or
(iii) a court of a State or Territory that has jurisdiction in relation to the matter.
205AE Refund of overpayment of interim tax
If there is an overpayment of interim tax, the overpayment is to be refunded by the ACMA on behalf of the Commonwealth.
205AF Late payment penalty
(1) If an amount of interim tax that is payable by a person remains unpaid after the day on which it becomes due and payable, the person is liable to pay a penalty (late payment penalty) on the unpaid amount for each day until all of the interim tax has been paid.
(2) The late payment penalty rate is 20% per year, or such lower rate as the ACMA determines in writing for the purposes of this subsection.
(3) The ACMA may remit the whole or part of a late payment penalty that a person is liable to pay under subsection (1).
(4) The late payment penalty for a day is due and payable at the end of that day.
(5) Late payment penalty:
(a) is a debt due to the ACMA on behalf of the Commonwealth; and
(b) may be recovered by the ACMA, on behalf of the Commonwealth, in:
(i) the Federal Court; or
(ii) the Federal Circuit and Family Court of Australia (Division 2); or
(iii) a court of a State or Territory that has jurisdiction in relation to the matter.
(6) If the amount of the late payment penalty for a day is not an amount of whole dollars, the late payment penalty is rounded to the nearest dollar (rounding 50 cents upwards).
(7) If there is an overpayment of late payment penalty, the overpayment is to be refunded by the ACMA on behalf of the Commonwealth.
(8) A determination under subsection (2) is a legislative instrument.
205AG Anti‑avoidance
(1) The holder of a transmitter licence must not, either alone or together with one or more other persons, do any of the following:
(a) enter into a scheme;
(b) begin to carry out a scheme;
(c) carry out a scheme;
if it would be concluded that the holder of the transmitter licence did so for the sole or dominant purpose of avoiding the application of any provision of the Commercial Broadcasting (Tax) Act 2017 (other than section 14 of that Act) in relation to:
(d) the holder of the transmitter licence; or
(e) the holder of any other transmitter licence.
Civil penalty provision
(2) Subsection (1) is a civil penalty provision.
Note: Part 14B deals with civil penalties.
Validity of transactions
(3) A contravention of subsection (1) does not affect the validity of any transaction.
Scheme
(4) For the purposes of this section, scheme means:
(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied; or
(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.
Part 14B—Civil penalties
Division 1—Ancillary contravention of civil penalty provision
205E Ancillary contravention of civil penalty provision
(1) A person must not:
(a) attempt to contravene a civil penalty provision (other than this subsection); or
(b) aid, abet, counsel or procure a contravention of a civil penalty provision (other than this subsection); or
(c) induce, whether by threats or promises or otherwise, a contravention of a civil penalty provision (other than this subsection); or
(d) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision (other than this subsection); or
(e) conspire with others to effect a contravention of a civil penalty provision (other than this subsection).
(2) Subsection (1) is a civil penalty provision.
Division 2—Civil penalty orders
205EA Simplified outline
The following is a simplified outline of this Division:
• Pecuniary penalties are payable for contraventions of civil penalty provisions.
205F Civil penalty orders
(1) If the Federal Court is satisfied that a person has contravened a civil penalty provision, the Federal Court may order the person to pay the Commonwealth a pecuniary penalty.
(2) An order under subsection (1) is to be known as a civil penalty order.
Determining amount of pecuniary penalty
(3) In determining the pecuniary penalty, the Federal Court must have regard to all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a result of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by a court in proceedings under this Act to have engaged in any similar conduct.
Maximum pecuniary penalty
(4) The pecuniary penalty payable by a person in respect of a contravention of a civil penalty provision (other than subsection 74F(1), 74G(1), 74H(1), 74J(1), 74K(1), 121FZJ(1), 121FZP(1), 121FZS(1), 121FZT(3), 205AG(1) or 205E(1) or subclause 25(1) or 26(4) of Schedule 8) must not exceed the maximum pecuniary penalty that could have been imposed on the person if the person had been convicted of an offence against the provision of this Act that corresponds to the civil penalty provision.
(5) The pecuniary penalty payable by a person in respect of a contravention of subsection 205E(1) that relates to another civil penalty provision (other than subsection 74F(1), 74G(1), 74H(1), 74J(1), 74K(1), 121FZJ(1), 121FZP(1), 121FZS(1), 121FZT(3) or 205AG(1) or subclause 25(1) or 26(4) of Schedule 8) must not exceed the maximum pecuniary penalty that could have been imposed on the person if the person had been convicted of an offence against the provision of this Act that corresponds to the other civil penalty provision.
(5AA) The pecuniary penalty payable by a person in respect of:
(a) a contravention of subsection 74F(1), 74G(1), 74H(1), 74J(1) or 74K(1); or
(b) a contravention of section 205E that relates to a contravention of subsection 74F(1), 74G(1), 74H(1), 74J(1) or 74K(1);
must not exceed:
(c) if the person is a body corporate—300 penalty units; or
(d) if the person is not a body corporate—60 penalty units.
(5AAA) The pecuniary penalty payable by a person in respect of:
(a) a contravention of subsection 121FZP(1), 121FZS(1) or 121FZT(3); or
(b) a contravention of section 205E that relates to a contravention of subsection 121FZP(1), 121FZS(1) or 121FZT(3);
must not exceed:
(c) if the person is a body corporate—60 penalty units; or
(d) if the person is not a body corporate—12 penalty units.
(5AAB) The pecuniary penalty payable by a person in respect of:
(a) a contravention of subsection 121FZJ(1); or
(b) a contravention of section 205E that relates to a contravention of subsection 121FZJ(1);
must not exceed:
(c) if the person is a body corporate—whichever of the following is greatest:
(i) 10,000 penalty units;
(ii) if the Federal Court can determine the original expenditure requirement under subsection (5AAC) of this section in relation to the contravention—10 times that original expenditure requirement; or
(d) if the person is not a body corporate—2,000 penalty units.
(5AAC) For the purposes of subparagraph (5AAB)(c)(ii), the original expenditure requirement in relation to a contravention of subsection 121FZJ(1) by a provider of an online content service is the total of the service’s Australian content expenditure requirements (before any acquittal of those expenditure requirements) for each SVOD reporting year for which the service has a carried‑over expenditure requirement mentioned in paragraph 121FZJ(1)(a) or (b).
(5AB) The pecuniary penalty payable by a person in respect of:
(a) a contravention of subsection 130ZZN(1), (2), (3) or (4); or
(b) a contravention of section 205E that relates to a contravention of subsection 130ZZN(1), (2), (3) or (4);
must not exceed:
(c) if the person is a body corporate—whichever of the following is greatest:
(i) 10,000 penalty units;
(ii) if the Federal Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, has obtained directly or indirectly and that is reasonably attributable to the contravention—3 times the value of that benefit;
(iii) if the Federal Court cannot determine the value of that benefit—2% of the annual turnover of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the contravention occurred; or
(d) if the person is not a body corporate—2,000 penalty units.
(5AC) The pecuniary penalty payable by a person in respect of:
(a) a contravention of subsection 130ZZP(3); or
(b) a contravention of section 205E that relates to a contravention of subsection 130ZZP(3);
must not exceed:
(c) if the person is a body corporate—5,000 penalty units; and
(d) if the person is not a body corporate—1,000 penalty units.
(5AD) The pecuniary penalty payable by a person in respect of:
(a) a contravention of subsection 130ZZQ(3); or
(b) a contravention of section 205E that relates to a contravention of subsection 130ZZQ(3);
must not exceed:
(c) if the person is a body corporate—40 penalty units; and
(d) if the person is not a body corporate—30 penalty units.
(5AE) The pecuniary penalty payable by a person in respect of a contravention of subsection 146W(2) must not exceed:
(a) if the person is a body corporate—whichever of the following is greater:
(i) 10,000 penalty units;
(ii) if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, has obtained directly or indirectly and that is reasonably attributable to the contravention—3 times the value of that benefit;
(iii) if the Court cannot determine the value of that benefit—2% of the annual turnover of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the contravention occurred; or
(b) if the person is not a body corporate—2,000 penalty units.
(5AF) The pecuniary penalty payable by a person in respect of a contravention of subsection 146Y(4) must not exceed:
(a) if the person is a body corporate—5,000 penalty units; or
(b) if the person is not a body corporate—1,000 penalty units.
(5AG) The pecuniary penalty payable by a person in respect of:
(a) a contravention of subsection 146Z(3); or
(b) a contravention of section 205E that relates to a contravention of subsection 146Z(3);
must not exceed:
(c) if the person is a body corporate—40 penalty units; and
(d) if the person is not a body corporate—30 penalty units.
(5A) The pecuniary penalty payable by a person in respect of a contravention of subsection 205AG(1) must not exceed the sum of:
(a) whichever of the following is applicable:
(i) if the person is a body corporate—2,000 penalty units;
(ii) if the person is not a body corporate—400 penalty units; and
(b) if the Federal Court is satisfied that, as a result of the scheme to which the contravention relates, the person or another person has avoided becoming liable to pay an amount of interim tax—200% of the amount of interim tax avoided.
(5B) The pecuniary penalty payable by a person in respect of a contravention of subsection 205E(1) that relates to subsection 205AG(1) must not exceed the sum of:
(a) whichever of the following is applicable:
(i) if the person is a body corporate—2,000 penalty units;
(ii) if the person is not a body corporate—400 penalty units; and
(b) if the Federal Court is satisfied that, as a result of the scheme to which the contravention of subsection 205AG(1) relates, the person or another person has avoided becoming liable to pay an amount of interim tax—200% of the amount of interim tax avoided.
(5C) The pecuniary penalty payable by a person in respect of:
(a) a contravention of subclause 25(1) of Schedule 8; or
(b) a contravention of section 205E that relates to a contravention of subclause 25(1) of Schedule 8;
must not exceed:
(c) if the person is a body corporate—300 penalty units; or
(d) if the person is not a body corporate—60 penalty units.
(5D) The pecuniary penalty payable by a person in respect of:
(a) a contravention of subclause 26(4) of Schedule 8; or
(b) a contravention of section 205E that relates to a contravention of subclause 26(4) of Schedule 8;
must not exceed:
(c) if the person is a body corporate—2,000 penalty units; or
(d) if the person is not a body corporate—400 penalty units.
Penalties for continuing contraventions
(6) If:
(a) subsection 121FG(5), 121FHB(3), 121FJA(3), 121FJD(3), 121FZP(3), 121FZS(3) or 121FZT(5), section 136F or subsection 138A(3), 140A(8) or 142A(3) applies to a contravention of a civil penalty provision; and
(b) civil penalty orders are made against a person in respect of 2 or more contraventions of such a provision;
the court may impose one penalty in respect of both or all of those contraventions, but that penalty must not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each contravention.
Conduct contravening more than one civil penalty provision
(7) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this section against a person in relation to the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.
Civil enforcement of penalty
(8) A pecuniary penalty is a civil debt payable to the Commonwealth. The Commonwealth may enforce the civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.
Meaning of annual turnover
(9) For the purposes of this section, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than the following supplies:
(a) supplies made from any of those bodies corporate to any other of those bodies corporate;
(b) supplies that are input taxed;
(c) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999);
(d) supplies that are not made in connection with an enterprise that the body corporate carries on.
(10) For the purposes of subsection (9), it is immaterial whether the supplies were made, or are likely to be made, within or outside Australia.
(11) Expressions used in subsections (9) and (10) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in those subsections as they have in that Act.
(12) The question whether 2 bodies corporate are related to each other is to be determined for the purposes of subsection (9) in the same way as for the purposes of the Corporations Act 2001.
205G Who may apply for a civil penalty order
(1) Only the ACMA may apply for a civil penalty order.
(2) Subsection (1) does not exclude the operation of the Director of Public Prosecutions Act 1983.
205H 2 or more proceedings may be heard together
The Federal Court may direct that 2 or more proceedings for civil penalty orders are to be heard together.
205J Time limit for application for an order
Proceedings for a civil penalty order may be started no later than 6 years after the contravention.
205K Civil evidence and procedure rules for civil penalty orders
The Federal Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.
205L Civil proceedings after criminal proceedings
The Federal Court must not make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.
205M Criminal proceedings during civil proceedings
(1) Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if:
(a) criminal proceedings are started or have already been started against the person for an offence; and
(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.
(2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.
205N Criminal proceedings after civil proceedings
Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person.
205P Evidence given in proceedings for a civil penalty order not admissible in criminal proceedings
Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if: