Part 8Collection and recovery of tax

Part 8—Collection and recovery of tax Division 1—Agents and trustees generally 88—Application (1) This Division applies to an agent of or trustee for an employer. (2) Nothing in this Division limits or otherwise affects the application of Part 5 to an agent or trustee, or 2 or more persons 1 or more of whom is an agent or trustee. 89—Agents and trustees are answerable An agent or trustee is answerable as the employer for the doing of all things that are required to be done by or under this Act in respect of the payment of any wages which are subject to payroll tax under this Act. 90—Returns by agent or trustee (1) An agent or trustee must, in respect of the wages referred to in section 89, make the returns required under Part 7, but in a representative capacity only, and each return must, except as otherwise provided by this Act, be separate and distinct from any other. (2) In the case of an executor or administrator, the returns must be the same as far as practicable as the deceased person, if living, would have been liable to make. 91—Liability to pay tax (1) An agent or trustee is personally liable for tax on the wages referred to in section 89 if— (a) after the Commissioner has required the agent or trustee to make a return; or (b) while the tax remains unpaid, the agent or trustee, except with the written permission of the Commissioner, disposes of or parts with any fund or money which comes to the agent or trustee from or out of which tax could legally be paid. (2) Otherwise than as provided in subsection (1), the agent or trustee is not personally liable to pay the tax in a representative capacity. (3) The agent or trustee must retain from time to time out of any money which comes to the agent or trustee in a representative capacity enough to pay the tax. (4) For the purpose of ensuring the payment of tax, the Commissioner has the same remedies against attachable property of any kind vested in or under the control or management or in the possession of the agent or trustee, as the Commissioner has against the property of any other person in respect of tax, and in as full and ample a manner. 92—Indemnity for agent or trustee (1) An agent or trustee is indemnified for all payments that the agent or trustee makes under this Act or in accordance with the requirements of the Commissioner. (2) An agent or trustee who pays tax as agent or trustee may recover the amount paid from the person on whose behalf it was paid, or deduct it from any money in the agent's or trustee's hands belonging to that person. Division 2—Special cases 93—Tax not paid during lifetime (1) This section applies if, whether intentionally or not, a person escapes full payment of tax in his or her lifetime by reason of not having duly made full, complete and accurate returns. (2) The Commissioner has the same powers and remedies against the trustees of the estate of the person in respect of the liability to which the person was subject as the Commissioner would have had against the person if the person were still living. (3) The trustees must lodge the returns under this Act that the Commissioner requires. (4) The trustees are subject to tax to the same extent as the deceased person would be subject to tax if he or she were still living, but the Commissioner, in any circumstances the Commissioner considers appropriate, may remit tax payable by the trustees under this section by any amount. (5) The amount of any tax payable by the trustees is a charge on all the deceased person's estate in their hands in priority to all other encumbrances. 94—Payment of tax by executors or administrators (1) If, at the time of an employer's death, he or she had not paid the whole of the tax payable up to the date of death, the Commissioner has the same powers and remedies for the assessment and recovery of tax from the executors and administrators as the Commissioner would have had against the employer, if the employer were alive. (2) The executors or administrators must lodge any of the returns referred to in Part 7 that have not been lodged by the deceased. 95—Assessment if no probate within 6 months of death (1) If, in respect of the estate of any deceased employer, probate has not been granted or letters of administration have not been taken out within 6 months after the death, the Commissioner may make an assessment under section 8 of the Taxation Administration Act 1996 of the tax liability of the deceased under this Act. (2) The Commissioner— (a) must cause notice of the assessment to be published on a website determined by the Commissioner; and (b) may also cause notice of the assessment to be published on at least 2 separate occasions in a daily newspaper circulating in the State or Territory in which the deceased resided. (3) Any person claiming an interest in the estate of the deceased may, within 60 days after the first publication of notice of the assessment, lodge an objection with the Commissioner in accordance with Division 1 of Part 10 of the Taxation Administration Act 1996. (4) Subject to any amendment of the assessment by the Commissioner or by the Supreme Court, the assessment so made is conclusive evidence of the indebtedness of the deceased to the Commissioner. (5) However, if probate of the will or letters of administration of the estate of the deceased is or are granted to a person after the assessment is first published, that person may, within 60 days after the date of the grant, lodge an objection in accordance with Division 1 of Part 10 of the Taxation Administration Act 1996. 96—Person in receipt or control of money for absentee (1) This section applies to a person (the controller) who has the receipt, control or disposal of money belonging to a person resident out of Australia (the principal) if the principal is liable to pay tax under this Act. (2) The controller must pay the tax payable by the principal at the time, or within the period, specified by the Commissioner. (3) A controller who pays tax in accordance with subsection (2) may recover the amount paid from the principal or deduct it from any money in the controller's hands belonging to the principal. (4) A controller must from time to time retain out of any money which comes to the controller on behalf of the principal so much as is sufficient to pay the tax which is or will become due by the principal. (5) A controller is personally liable for the tax payable by the controller on behalf of the principal if— (a) after the tax becomes payable; or (b) after the Commissioner has required the controller to pay the tax, the controller, except with the written permission of the Commissioner, disposes of or parts with any fund or money then in the controller's possession, or which comes to the controller from or out of which the tax could legally be paid. (6) Otherwise than as provided in subsection (5), a controller is not personally liable to pay the tax payable by the principal. (7) A controller is indemnified for all payments which the controller makes under this Act or in accordance with the requirements of the Commissioner. 97—Agent for absentee principal winding‑up business (1) If an agent for an absentee principal has been required by the principal to wind‑up the principal's business, the agent must notify the Commissioner of the intention to wind‑up the business before taking any steps to wind it up. Maximum penalty: $500. (2) After receiving notice under subsection (1), the Commissioner may notify the agent in writing of— (a) the amount (if any) of payroll tax for which the principal is liable; and (b) the date (at least 21 days after the notice is given) by which the tax must be paid. (3) An agent who is given notice under subsection (2) must— (a) set aside an amount out of the assets of the principal's business that is sufficient to pay the tax; and (b) pay the tax to the Commissioner by the date specified in the notice. Maximum penalty: $500. (4) If an agent contravenes this section, the agent is personally liable for any tax that becomes payable in respect of the principal's business. 98—Recovery of tax paid on behalf of another person A person who, under the provisions of this Act, pays any tax for or on behalf of another person is entitled to recover the amount so paid from the other person as a debt, together with the costs of recovery, or to retain or deduct that amount out of any money in the person's hands belonging or payable to the other person. 99—Liquidator to give notice (1) Within 14 days after becoming liquidator of a company that has been an employer registered or required to be registered under this Act, the liquidator must give the Commissioner notice in writing of the liquidator's appointment. (2) As soon as practicable after receiving the notice, the Commissioner must notify the liquidator of the amount that appears to the Commissioner to be sufficient to provide for any tax which is or will become payable by the company. (3) The liquidator— (a) must not without leave of the Commissioner part with any of the assets of the company until the liquidator has been so notified; and (b) must set aside out of the assets available for the payment of the tax, assets to the value of the amount so notified, or the whole of the assets so available if they are of less than that value; and (c) is, to the extent of the value of the assets which the liquidator is so required to set aside, liable as trustee to pay the tax. (4) A liquidator must not fail— (a) to comply with this section; or (b) as trustee duly to pay the tax for which the liquidator is liable under subsection (3). Maximum penalty: $5 000. (5) If a liquidator commits an offence against subsection (4), the liquidator is personally liable to pay the tax, to the extent of the value of the assets of which the liquidator has taken possession and which are, or were at any time, available to the liquidator for the payment of the tax. (6) If more than 1 person is appointed as liquidator or required by law to carry out the winding‑up of a company— (a) the obligations and liabilities attaching to a liquidator under this section attach to each of those persons; and (b) if any 1 of those persons has paid the tax due in respect of the company being wound‑up, the others are each liable to pay that person that person's equal share of the amount of the tax so paid. (7) Despite anything in this section, all costs, charges and expenses that, in the Commissioner's opinion, have been properly incurred by a liquidator in the winding‑up of a company, including the remuneration of the liquidator, may be paid out of the assets of the company in priority to any tax payable in respect of the company. (8) Nothing in this section— (a) limits the liability of a liquidator under section 91; or (b) affects any of the provisions of the Corporations Act 2001 of the Commonwealth.