36Penalty for unpaid tax

36 Penalty for unpaid tax

(1) If any tax remains unpaid after the time when it became due and payable, or would, but for section 35, have become due and payable, additional tax is due and payable by way of penalty by the person liable, or the persons jointly and severally liable, to pay the tax at the rate of 20% per annum on the amount unpaid, computed from that time or, where, under section 35, the Commissioner has granted an extension of time for payment of the tax or has permitted payment of the tax to be made by instalments, from such day as the Commissioner determines, not being a day prior to the day on which the tax was originally due and payable. (2) Where additional tax is payable by a person under this section and: (a) the Commissioner is satisfied that: (i) the circumstances that contributed to the delay in payment of the tax were not due to, or caused directly or indirectly by, an act or omission of the person; and (ii) the person has taken reasonable action to mitigate, or mitigate the effects of, those circumstances; (b) the Commissioner is satisfied that: (i) the circumstances that contributed to the delay in payment of the tax were due to, or caused directly or indirectly by, an act or omission of the person; (ii) the person has taken reasonable action to mitigate, or mitigate the effects of, those circumstances; and (iii) having regard to the nature of those circumstances, it would be fair and reasonable to remit the additional tax or part of the additional tax; or (c) the Commissioner is satisfied that there are special circumstances by reason of which it would be fair and reasonable to remit the additional tax or part of the additional tax; the Commissioner may remit the additional tax or part of the additional tax. (2A) Where judgment is given by, or entered in, a court for the payment of: (a) an amount of tax; or (b) an amount that includes an amount of tax; then: (c) the tax shall not be taken, for the purposes of subsection (1), to have ceased to be due and payable by reason only of the giving or entering of the judgment; and (d) if the judgment debt carries interest, the additional tax that would, but for this paragraph, be payable under this section in relation to the tax shall, by force of this paragraph, be reduced by: (i) in a case to which paragraph (a) applies—the amount of the interest; or (ii) in a case to which paragraph (b) applies—an amount that bears the same proportion to the amount of the interest as the amount of the tax bears to the amount of the judgment debt. (3) Notwithstanding anything contained in this section, the Commissioner may sue for recovery of any tax unpaid immediately after the expiry of the time when it becomes due and payable. (4) In this section, unless the contrary intention appears, tax includes additional tax under section 17.