8AAZLGBRetaining refunds until notification under Division 389 or ascertainment of liability

#### 8AAZLGB Retaining refunds until notification under Division 389 or ascertainment of liability Commissioner may retain an amount (1) The Commissioner may retain an amount that he or she otherwise would have to refund to an entity under section 8AAZLF, if: (a) the Commissioner reasonably believes that the entity has made a payment as a result of which the entity: (i) is, or will be, required to notify the Commissioner under section 389‑5 in Schedule 1; or (ii) may notify the Commissioner under section 389‑15 in that Schedule; and (b) the entity has not notified the Commissioner of the amount under that section; and (c) the notification affects or may affect the amount that the Commissioner refunds to the entity. (2) The Commissioner must inform the entity that he or she has retained the amount under this section. He or she must do so within 14 days after the day on which the relevant RBA surplus or credit arose. How long the amount may be retained (3) The Commissioner may retain the amount until: (a) the entity has given the Commissioner that notification (including notification of a nil amount); or (b) if subparagraph (1)(a)(i) applied—the Commissioner becomes reasonably satisfied that the entity is not required to give that notification; or (c) the Commissioner becomes reasonably satisfied that the entity does not have a liability (a PAYGW liability) to pay to the Commissioner an amount of a kind referred to in item 1 of the table in subsection 389‑5(1) in Schedule 1; or (d) the Commissioner ascertains (including as a result of making an estimate) the total amount of the entity’s outstanding PAYGW liabilities; whichever happens first. > Note: Interest is payable under the Taxation (Interest on Overpayments and Early Payments) Act 1983 if the Commissioner is late in making the payment under subsection (3). Objecting to the decision to retain the amount (4) The entity may object to a decision of the Commissioner to retain the amount under this section in the manner set out in Part IVC, if the entity is dissatisfied with the decision. > Note: For the start of the period for objecting to the decision, see paragraph 14ZW(1)(aae) and subsection 14ZW(4). (5) Before the end of the 7 days after the start of the period during which, under section 14ZW, the entity may object to the decision, the Commissioner must notify the entity, in writing, that the entity may object to the decision. (6) A failure to comply with subsection (5) does not affect the validity of the decision. 5 After subsection 8K(2) Insert: (2A) Subsection (1) or (1B) does not apply if: (a) the statement (the original statement) was made under section 389‑5 in Schedule 1 notifying an amount under item 1 or 2 of the table in subsection 389‑5(1) in that Schedule (and no other item in that table); and (b) the original statement related to the financial year in which it was made; and (c) the person who made the original statement makes a further statement to a taxation officer that corrects the original statement in each of the respects in which it is false or misleading in a material particular; and (d) the further statement: (i) is in the approved form; and (ii) if subsection 389‑25(1) in that Schedule provides for a period for correcting the original statement—is made within that period; and (iii) without limiting subparagraph (ii), is made within 14 days after the end of the financial year in which the original statement was made. > Note: A defendant bears an evidential burden in relation to the matters in subsection (2A), see subsection 13.3(3) of the Criminal Code. 6 Section 8N Before “A person”, insert “(1)”. 7 At the end of section 8N Add: (2) This section does not apply if: (a) the statement (the original statement) was made under section 389‑5 in Schedule 1 notifying an amount under item 1 or 2 of the table in subsection 389‑5(1) in that Schedule (and no other item in that table); and (b) the original statement related to the financial year in which it was made; and (c) the person who made the original statement makes a further statement to a taxation officer that corrects the original statement in each of the respects in which it is false or misleading in a material particular; and (d) the further statement: (i) is in the approved form; and (ii) if subsection 389‑25(1) in that Schedule provides for a period for correcting the original statement—is made within that period; and (iii) without limiting subparagraph (ii), is made within 14 days after the end of the financial year in which the original statement was made. > Note: A defendant bears an evidential burden in relation to the matters in subsection (2), see subsection 13.3(3) of the Criminal Code. 8 After paragraph 14ZW(1)(aad) Insert: (aae) if the taxation objection is made under subsection 8AAZLGB(4) of this Act (retaining refunds until notification under Division 389 or ascertainment of liability)—the period: (i) starting at the end of the 60 day period after the end of the day before which, under subsection 8AAZLGB(2), the Commissioner is required to inform the entity mentioned in section 8AAZLGB that the Commissioner has retained an amount under that section; and (ii) ending on the day (if any) on which, under subsection 8AAZLGB(3), the Commissioner ceases to be entitled to retain the amount; or 9 At the end of section 16‑150 in Schedule 1 Add: > Note: This section does not apply to amounts that an employer notifies to the Commissioner under Division 389: see section 389‑20. 10 At the end of subsection 16‑153(1) in Schedule 1 Add: > Note: A report under this subsection will not cover amounts that an employer notifies to the Commissioner under Division 389: see section 389‑20. 11 At the end of subsection 16‑153(2) in Schedule 1 Add: > Note: A report under this subsection will not cover amounts that an employer notifies to the Commissioner under Division 389: see section 389‑20. 12 At the end of subsection 16‑155(2) in Schedule 1 Add: > Note: A payment summary under this section will not cover amounts that an employer notifies to the Commissioner under Division 389: see section 389‑20. 13 At the end of subsection 16‑160(1) in Schedule 1 Add: > Note: A payment summary under this section will not cover amounts that an employer notifies to the Commissioner under Division 389: see section 389‑20. 14 Paragraph 16‑160(1)(c) in Schedule 1 Omit “or” (last occurring). 15 Paragraph 16‑160(1)(d) in Schedule 1 Repeal the paragraph. 16 Subsection 16‑160(2) in Schedule 1 Repeal the subsection, substitute: (2) The payer must comply with the request within 14 days after receiving it, unless: (a) the recipient is an individual and has a \*reportable fringe benefits amount, for the income year ending at the end of that \*financial year, in respect of his or her employment (within the meaning of the Fringe Benefits Tax Assessment Act 1986) by the payer; or (b) the payer has made \*reportable employer superannuation contributions, in respect of the recipient’s employment, during the financial year. 17 At the end of section 16‑165 in Schedule 1 Add: > Note: A payment summary under this section will not cover amounts that an employer notifies to the Commissioner under Division 389: see section 389‑20. 18 Subsection 269‑30(2) in Schedule 1 (cell at table item 1, column 3) Repeal the cell, substitute: | to the extent the company does not, on or before the last day mentioned in column 2, notify the Commissioner:(a) under section 16‑150 of the amount the company is obliged to pay; or(b) under section 389‑5 of the amount the company is obliged to withhold. | | -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | 19 At the end of section 284‑75 in Schedule 1 Add: Further exception to subsection (1) (8) You are not liable to an administrative penalty under subsection (1) if: (a) you made the statement (the original statement) under section 389‑5 notifying an amount under item 1 or 2 of the table in subsection 389‑5(1) (and no other item in that table); and (b) the original statement related to the \*financial year in which you made it; and (c) you make a further statement to a taxation officer that corrects the original statement in each of the respects in which it is false or misleading in a material particular; and (d) the further statement: (i) is in the \*approved form; and (ii) if subsection 389‑25(1) in that Schedule provides for a period for correcting the original statement—is made within that period; and (iii) without limiting subparagraph (ii), is made within 14 days after the end of the financial year in which the original statement was made. 20 At the end of subsection 286‑75(1) in Schedule 1 Add: > Note: You may not be liable to a penalty in relation to a failure to notify an amount referred to in item 1 or 2 of the table in section 389‑5 during the period provided for by subitem 22(2) of Schedule 23 to the Budget Savings (Omnibus) Act 2016. Taxation (Interest on Overpayments and Early Payments) Act 1983 21 Section 12AF (paragraph (b) of the definition of RBA interest day) Repeal the paragraph, substitute: (b) if, by the day applicable under paragraph (a), the person has not given the Commissioner a notification that: (i) is required for the refund under section 8AAZLG or 8AAZLGB (as the case requires) of the Taxation Administration Act 1953; and (ii) that is accurate so far as it relates to the refund; the day on which that notification is given to the Commissioner; Division 3—Application 22 Application—required reporting (1) The amendments made by this Part apply in relation to an amount that an entity is required to notify to the Commissioner if the requirement to notify arises on or after the following day (the application day): (a) the day determined under item 24; (b) if no such day is determined: (i) if the entity was a substantial employer immediately before 1 July 2018—1 July 2018; or (ii) otherwise—the first 1 July after which the entity first becomes a substantial employer after 1 July 2018. (2) Despite subitem (1), the entity is not liable to a penalty under subsection 286‑75(1) in Schedule 1 to the Taxation Administration Act 1953 in relation to a failure to notify the Commissioner under section 389‑5 in that Schedule if: (a) the failure relates to an amount referred to in item 1 or 2 of the table in section 389‑5 in that Schedule; and (b) the failure occurs during the 12 month period following the entity’s application day; and (c) the Commissioner has not, during that period but before that failure, given to the entity a written notice that: (i) related to an earlier failure by the entity to notify the Commissioner under section 389‑5 in that Schedule; and (ii) advised the entity that a further failure to comply with that section may result in the entity being liable to an administrative penalty. 23 Application—voluntary reporting The amendments made by this Part apply in relation to an amount that an entity may notify to the Commissioner if the entitlement to notify arises on or after the following day (the application day): (a) the day determined under item 24; (b) if no such day is determined—1 July 2018. 24 Determining the application day The Commissioner may, by legislative instrument, determine a day that is later than 1 July 2018 to be the application day. Part 2—Choice of fund Superannuation Guarantee (Administration) Act 1992 25 Paragraph 32C(2B)(b) Omit “gives the employer written notice”, substitute “or the Commissioner gives the employer notice”. 26 Paragraph 32C(2B)(c) Omit “that the employee included in the written notice”, substitute “included in the notice”. 27 Subparagraph 32C(2B)(c)(i) Repeal the subparagraph, substitute: (i) within 21 days after the employer is given the notice; and 28 Subsection 32F(1) Repeal the subsection, substitute: (1) If an employee wants a fund to be a chosen fund for the employee, the employee must: (a) give the employer written notice to that effect; or (b) give the Commissioner a notice to that effect in the approved form. > Note: A fund can only be a chosen fund if the employer is able to make contributions to the fund for the benefit of the employee (see subsection 32G(2)). 29 Subsection 32F(2) Omit “gives the notice to the employer”, substitute “or the Commissioner gives the notice to the employer,”. 30 Paragraph 32F(3)(a) After “the employer”, insert “or the Commissioner”. 31 Subsection 32FA(1) Omit “if the employee does not provide, together with the notice under that section”, substitute “and notified under paragraph 32F(1)(a) if the employee does not provide, together with the notice”. 32 Paragraph 32H(1)(b) Omit “the employee has not given”, substitute “neither the employee nor the Commissioner has given”. 33 After subsection 32H(1) Insert: (1A) The employee may give the employer a written notice, or give the Commissioner a notice in the approved form, stating that the old fund continues to be a chosen fund for the employee. 34 Before section 32X Insert: