Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
(2A) An offence under subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A person who is required by this section to keep records must:
(a) keep the records in writing in the English language or so as to enable the records to be readily accessible and convertible into writing in the English language; and
(b) keep the records so as to enable the person’s liability under this Act to be readily ascertained.
(4) This section does not require a person to keep a record of information if:
(a) the person did not know, and had no reasonable grounds to suspect, that the person was an attributable taxpayer of the kind mentioned in subsection (1); or
(b) the person did not know that, and made all reasonable efforts to ascertain whether, the person was an attributable taxpayer as mentioned in subsection (1); or
(c) the person did not know, and made all reasonable efforts to obtain, the information.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code.
(5) Subject to subsections (6) and (7), the following provisions apply to a partnership as if the partnership were a person:
(a) subsections (1) to (4) (inclusive) of this section;
(b) subsections 262A(4) and (5), in so far as those subsections apply to records kept under or for the purposes of this section;
(c) Part III of the Taxation Administration Act 1953, in so far as that Part of that Act relates to the provisions covered by paragraph (a) or (b) of this subsection.
(6) Where, by virtue of subsection (5), an offence is taken to have been committed by a partnership, that offence is taken to have been committed by each of the partners.
(7) In a prosecution of a person for an offence by virtue of subsection (6), it is a defence if the person proves that the person:
(a) did not aid, abet, counsel or procure the act or omission by virtue of which the offence was taken to have been committed; and
(b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, an act or omission by virtue of which the offence is taken to have been committed.
Note 1: The defence under subsection (7) does not apply in relation to offences under Part 2.4 of the Criminal Code.
Note 2: A defendant bears a legal burden in relation to the matters in subsection (7), see section 13.4 of the Criminal Code.
Division 6AA—Income of certain children
102AA Interpretation
(1) In this Division, unless the contrary intention appears:
agreement means any agreement, arrangement, understanding or scheme, whether formal or informal, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings.
occupation includes any office, employment, trade, business, profession, vocation or calling, but does not include a course of education at a school, college, university or similar institution.
property means property whether real or personal, and includes money.
(2) In this Division:
(a) a reference to the derivation by a person of assessable income shall be read as including a reference to the inclusion of an amount in the assessable income of the person; and
(b) a reference to the derivation by a person of any assessable income from particular property shall be read as including a reference to the inclusion of an amount in the assessable income of the person in respect of that property.
(3) In this Division, a reference to the share of a beneficiary of the net income of a trust estate shall be read as a reference to a share of the beneficiary of the net income of a trust estate:
(a) that is included in the assessable income of the beneficiary under section 97 or 100; or
(b) in respect of which the trustee of the trust estate is liable to be assessed and to pay tax in pursuance of section 98.
(4) A reference in this Division to income that is derived from particular property shall be read as including a reference to income that is derived from property that, in the opinion of the Commissioner, represents that property.
102AB Application of Division
This Division applies in relation to the year of income that commenced on 1 July 1979 and in relation to all subsequent years of income.
102AC Persons to whom Division applies
(1) For the purposes of this Division, a person is a prescribed person in relation to a year of income if:
(a) the person is less than 18 years of age on the last day of the year of income; and
(b) the person is not an excepted person in relation to the year of income.
(2) Subject to this section, a person (in this subsection referred to as the minor) is an excepted person in relation to a year of income for the purposes of this Division if, and only if:
(b) the minor was engaged in a full‑time occupation on the last day of the year of income;
(c) the minor is a person:
(i) in respect of whom a carer allowance under the Social Security Act 1991 was payable in respect of a period that included the last day of the year of income; or
(ii) to whom a disability support pension under that Act was payable in respect of a period that included the last day of the year of income; or
(d) the Commissioner:
(i) has received a certificate issued by a legally qualified medical practitioner certifying that the minor is:
(A) a disabled child, or a disabled adult, within the meaning of Part 2.19 of the Social Security Act 1991; or
(B) a person who has a continuing inability to work within the meaning of Part 2.3 of the Social Security Act 1991 or is permanently blind; and
(ii) is satisfied that, on the last day of the year of income, the minor was a person of the kind mentioned in sub‑subparagraph (i)(A) or (B);
(da) the minor is the principal beneficiary of a special disability trust;
(e) a double orphan pension was payable in respect of the minor under the Social Security Act 1991 in respect of a period that included the last day of the year of income;
(f) but for section 1003 of the Social Security Act 1991, a double orphan pension would have been payable in respect of the minor under that Act in respect of a period that included the last day of the year of income; or
(g) the Commissioner:
(i) has received a certificate issued by a legally qualified medical practitioner certifying that the minor is a person who, by reason of a permanent disability, is unlikely to be able to engage in a full‑time occupation; and
(ii) is satisfied that, on the last day of the year of income, the minor was such a person.
(3) Where:
(a) a double orphan pension was payable, or would, but for section 1003 of the Social Security Act 1991, have been payable, in respect of a person under that Act in respect of a period during a year of income, being a period that included the last day of the year of income; and
(b) during the whole of the period referred to in paragraph (a), the person was wholly or substantially dependent for support on a relative or relatives of the person;
that person shall not be taken by virtue of paragraph (2)(e) or (f) to be an excepted person in relation to the year of income.
(4) Where:
(a) the Commissioner is of the opinion that, during a period during a year of income, being a period that included the last day of the year of income, a person was a person who, by reason of a permanent disability, was unlikely to be able to engage in a full‑time occupation; and
(b) during the whole of the period referred to in paragraph (a), the person was wholly or substantially dependent for support on a relative or relatives of the person;
that person shall not be taken, by virtue of paragraph (2)(g), to be an excepted person in relation to the year of income.
(5) For the purposes of subsections (3) and (4), a person shall be taken to have been wholly or substantially dependent for support on a relative or relatives of the person during any period during which that person resided with a relative or relatives of the person unless the contrary is established to the satisfaction of the Commissioner.
(6) Subject to this section, a person shall be taken, for the purposes of subsection (2), to have been engaged in a full‑time occupation on the last day of a year of income if, and only if:
(a) the person was, on the last day of the year of income, a person engaged in a full‑time occupation; or
(b) in a case to which paragraph (a) does not apply—the person was engaged in a full‑time occupation during the year of income for a period of not less than 3 months or for periods the aggregate of which is not less than 3 months.
(7) Where:
(a) during a period during a year of income, a person was engaged in a full‑time occupation; and
(b) during the year of income and after the expiration of that period, the person was engaged in a course of full‑time education at a school, college, university or similar institution;
no regard shall be had to that period in determining whether the person is to be taken, by virtue of paragraph (6)(b), to have been engaged in a full‑time occupation on the last day of the year of income.
(8) A person shall not be taken to have been engaged in a full‑time occupation on the last day of a year of income unless the Commissioner is satisfied that, on that day:
(a) the person had the intention of engaging in a full‑time occupation or full‑time occupations during the whole or a substantial part of the next succeeding year of income; and
(b) the person did not have the intention of engaging in a course of full‑time education at a school, college, university or similar institution at any time during the next succeeding year of income.
102AD Taxable income to which Division applies
The eligible taxable income of a year of income of a person who is a prescribed person in relation to the year of income is the amount (if any) remaining after deducting from the eligible assessable income of the person of the year of income:
(a) any deductions allowable to the person in relation to the year of income that relate exclusively to that eligible assessable income;
(b) so much of any other deductions (other than apportionable deductions) allowable to the person in relation to the year of income as, in the opinion of the Commissioner, may appropriately be related to that eligible assessable income; and
(c) the amount that bears to the apportionable deductions allowable to the person in relation to the year of income the same proportion as the amount that, but for this paragraph, would be the eligible taxable income of the person of the year of income bears to the sum of:
(i) the taxable income of the person of the year of income; and
(ii) the apportionable deductions allowable to the person in relation to the year of income.
102AE Eligible assessable income
(1) For the purposes of this Division, the eligible assessable income of a year of income of a person is so much of the assessable income of the person of the year of income as is not excepted assessable income.
(2) Subject to this section, an amount included in the assessable income of a person (in this subsection referred to as the minor) is excepted assessable income to the extent to which the amount:
(a) is employment income or business income;
(b) is derived by the minor from the investment of any property transferred to the minor:
(i) by way of, or in satisfaction of a claim for, damages in respect of:
(A) loss by the minor of parental support; or
(B) personal injury to the minor, any disease suffered by the minor or any impairment of the minor’s physical or mental condition;
(ii) pursuant to any law relating to worker’s compensation;
(iii) pursuant to any law relating to the payment of compensation in respect of criminal injuries;
(iv) directly as the result of the death of another person and under the terms of a life assurance policy;
(v) directly as the result of the death of another person and out of a provident, benefit, superannuation or retirement fund;
(vi) directly as the result of the death of another person by an employer of the deceased person;
(vii) out of a public fund established and maintained exclusively for the relief of persons in necessitous circumstances; or
(viii) as the result of a family breakdown (see section 102AGA);
(c) is derived by the minor from the investment of any property:
(i) that devolved upon the minor from the estate of a deceased person;
(ii) that was transferred to the minor by another person out of property that devolved upon that other person from the estate of a deceased person and was so transferred within 3 years after the date of the death of the deceased person; or
(iii) that was acquired by the minor as the beneficial owner of a verifiable prize in a legally authorized and conducted lottery;
(d) not being business income, is included in the assessable income of the minor under section 92;
(e) is included in the assessable income of the minor under section 97 or 100; or
(f) is derived by the minor from the investment of any property that, in the opinion of the Commissioner, represents accumulations of:
(i) excepted assessable income derived by the minor during a year of income in relation to which this Division applies;
(ii) assessable income derived by the minor during a year of income in relation to which this Division does not apply, being assessable income that would, in the opinion of the Commissioner, have been excepted assessable income if this Division were applicable in relation to the year of income during which the assessable income was derived; or
(iii) exempt income derived by the minor to which subparagraph (i) or (ii) would, in the opinion of the Commissioner, apply if that exempt income had been assessable income.
(3) A reference in paragraph (2)(d) to an amount (not being business income) that is included in the assessable income of a person under section 92 in respect of the individual interest of the person in the net income of a partnership shall be read as a reference to so much of an amount so included in that assessable income as, in the opinion of the Commissioner, is attributable to so much of the assessable income of the partnership as would, in the opinion of the Commissioner, have been excepted assessable income if the assessable income of the partnership had been derived by that person.
(4) A reference in paragraph (2)(e) to an amount included in the assessable income of a person under section 97 or 100 shall be read as not including a reference to any part to which this Division applies of an amount included in that assessable income under either of those sections.
(5) Subject to subsections (6) and (7), a reference in paragraph (2)(a), in relation to a person (in this subsection referred to as the minor), to business income shall, in relation to any business income derived by the minor during a year of income from the carrying on of a business, be read as a reference to:
(a) in a case where during the year of income, the business was carried on by the minor either alone or in partnership with another person who was, or other persons each of whom was, under the age of 18 years on the first day of the year of income—so much of that business income as the Commissioner considers fair and reasonable having regard to:
(i) the extent to which, during the year of income, the minor had the real and effective conduct and control of the business and participated in the operations and activities of the business;
(ii) the extent to which the minor had the real and effective control over the disposal of income derived by the minor from the business during the year of income;
(iii) the extent to which the capital of the business consisted of property contributed by the minor, being property the income from which would, in the opinion of the Commissioner, be excepted assessable income in relation to the minor; and
(iv) such other matters (if any) as the Commissioner thinks fit; and
(b) in any other case—the amount that, in the opinion of the Commissioner, is reasonable remuneration by way of salary or wages for any services rendered by the minor during the year of income in the production of assessable income of the business increased by such amount (if any) as, in the opinion of the Commissioner, is reasonable, having regard to the extent to which the capital of the business consisted of property contributed by the minor the income from which would, in the opinion of the Commissioner, be excepted assessable income in relation to the minor.
(6) Subject to subsection (7), if any 2 or more parties to:
(a) the derivation of the excepted assessable income mentioned in subsection (2); or
(b) any act or transaction directly or indirectly connected with the derivation of that excepted assessable income;
were not dealing with each other at arm’s length in relation to the derivation, or in relation to the act or transaction, the excepted assessable income is only so much (if any) of that income as would have been derived if they had been dealing with each other at arm’s length in relation to the derivation, or in relation to the act or transaction.
(7) Subsection (2) does not apply in relation to assessable income derived by a person directly or indirectly under or as a result of an agreement that was entered into or carried out by any person (whether before or after the commencement of this subsection) for the purpose, or for purposes that included the purpose, of securing that that assessable income would not be eligible assessable income.
(8) In determining whether subsection (7) applies in relation to an agreement, no regard shall be had to a purpose that is a merely incidental purpose.