An Act relating to Duties imposed, at the request of the States, on certain Receipts of Money.
[Assented to 4 November 1970]
BE it enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—
Part I.—Preliminary.
Short title.
This Act may be cited as the States Receipts Duties (Administration) Act 1970.
Commencement.
This Act shall be deemed to have come into operation on the eighteenth day of November, One thousand nine hundred and sixty-nine.
Parts.
This Act is divided into Parts, as follows:—
Part I.—Preliminary (Sections 1–14).
Part II.—Administration (Sections 15–21).
Part III.—Liability to Duty (Sections 22–28).
Part IV.—Returns (Sections 29–35).
Part V.—Collection and Recovery of Duty (Sections 36–54).
Part VI.—Objections, Reviews and Appeals (Sections 55–59).
Part VII.—Penal Provisions (Sections 60–66).
Part VIII.—Prosecutions (Sections 67–81).
Part IX.—Miscellaneous (Sections 82–89).
Interpretation.
4.—(1.) In this Act, unless the contrary intention appears—
“bill of exchange” means an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to or to the order of a specified person, or to bearer;
“Board of Review” means a Board of Review constituted under the Income Tax Assessment Act 1936–1969;
“business” includes any profession or trade, but does not include occupation as an employee;
“charitable institution” means—
(a) any charitable, religious, scientific or educational institution (including an institution providing residential accommodation wholly or principally for full-time students attending an educational institution);
(b) any institution being, or carrying on, a hospital; and
(c) any institution the sole or principal purpose of which is to assist in the saving of life, or the prevention of loss or damage to property, whether at sea or otherwise,
being an institution which is not carried on for the purpose of profit or gain to its individual members and which is not empowered to make any distribution, whether in money, property or otherwise, to its members;
Section 1 - States Receipts Duties (Administration) Act 1970 - States Receipts Duties (Administration) Act 1970 | Zoe
“club” means any body, society, association or institution, whether corporate or unincorporate, which is carried on for the purpose of promoting music, art, science or literature, for the purpose of providing recreation or amusement or for any other purpose useful to the community, and which is not carried on for the purpose of profit or gain to its individual members and which is not empowered to make any distribution, whether in money, property or otherwise to its members, but does not include a charitable institution;
“Collector” means a Collector of Receipts Duties;
“company” includes a body, society, association, authority or institution, whether corporate or unincorporate, and includes the liquidator or official manager of a corporation and a receiver or manager of any property of a corporation, but does not include a partnership;
“debt” includes any amount required to be paid in order to secure the benefit of any policy of insurance, whether on life or otherwise, or of any hire purchase agreement, and “debtor” and “creditor” have corresponding meanings;
“duty” means duty payable in accordance with this Act;
“marketable security” means—
(a) any share in the capital of a company;
(b) any debenture, debenture stock, stock, bond, note or other security issued by a government, by a public authority or by a company; and
(c) any right or interest (whether described as a unit or sub-unit or otherwise) of a beneficiary under a unit trust scheme;
“money” includes a bill of exchange and a promissory note;
“officer” means an officer in the Public Service of the Commonwealth or of a State;
“partnership” means persons carrying on business as partners;
“person” includes a company and a partnership;
“prescribed marketing scheme” means a scheme for the marketing of primary products established or constituted by or under a law of the Commonwealth or of a State or Territory of the Commonwealth, or any scheme that is specified in the regulations as a prescribed marketing scheme;
“prescribed public authority” means—
(a) a municipal corporation or other local governing body; and
(b) any other public authority that is specified in the regulations as, or is otherwise under the regulations, a prescribed public authority;
“promissory note” means an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay, on demand or at a fixed or determinable future time, a sum certain in money, to or to the order of a specified person, or to bearer;
“public authority” means any authority or other body established or constituted by or under a law of the Commonwealth or of a State or Territory of the Commonwealth, and includes any municipal corporation or other local governing body;
“Second Commissioner” means a Second Commissioner of Taxation;
“State receipts duty law” means—
(a) the Stamp Duties Act, 1920–1968 of the State of New South Wales;
(b) the Stamps Act 1958 of the State of Victoria;
(c) The Stamp Acts, 1894 to 1968 of the State of Queensland;
(d) the Stamp Duties Act, 1923–1968 of the State of South. Australia;
(e) the Stamp Act, 1921–1968 of the State of Western Australia; or
(f) the Stamp Duties Act, 1931 of the State of Tasmania,
as amended and in force, or purporting to be in force, at any relevant time;
“the Commissioner” means the Commissioner of Taxation;
“the Receipts Duty Acts” means the States Receipts Duty Act (No. 1) 1970, the States Receipts Duty Act (No. 2) 1970 and the States Receipts Duty Act (No. 3) 1970;
“the transitional period” means the period commencing on the eighteenth day of November, One thousand nine hundred and sixty-nine, and ending on the thirtieth day of September, One thousand nine hundred and seventy;
“trustee” means any person appointed or constituted trustee by act of parties, by order or declaration of a court or by operation) of law, and includes—
(a) an executor, administrator, guardian or committee; and
(b) any person having or taking upon himself the administration or control of property affected by any express or implied trust or having the possession, control or management of any property of a person under any legal or other disability;
“trustee in bankruptcy” means—
(a) a trustee of the estate of a bankrupt;
(b) a trustee of a deed of assignment or deed of arrangement executed under a law relating to bankruptcy;
(c) a trustee of a composition or scheme of arrangement accepted or approved under such a law; or
(d) a trustee of the estate of a deceased person in respect of the administration of which an order has been made under such a law;
“unlicensed club” means a club which does not hold, and on behalf of which there is not held, a licence to sell or supply liquor under any law of a State or Territory of the Commonwealth relating to the sale and supply of liquor.
(2.) For the purposes of this Act, the relationship of agent and principal shall be deemed to exist between solicitor and client.
(3.) For the purpose of determining whether, for the purposes of this Act, a person is carrying on a business in Australia, any act or thing done in Australia by an agent of the person as such agent shall be deemed to be an act or thing done in Australia by the person.
References to Australia in this Part.
A reference in this Part to Australia shall be read as a reference to Australia other than the Territories of the Commonwealth forming part of the Commonwealth.
Receipt of consideration other than money.
Where a creditor, or the agent of a creditor, receives a consideration, other than money, whether or not in consideration of his having given credit to a person, whereby any debt or part of a debt owing to the creditor is settled, satisfied, discharged or met, the creditor or the agent, as the case may be, shall, when he receives the consideration, be deemed, for the purposes of this Act, to have received an amount of money equal to the amount of the debt or part of the debt that has been settled, satisfied, discharged or met, and to have received that money at the place where he receives the consideration.
Moneys deposited in bank account or transferred from bank to bank.
7.—(1.) Where a person (whether by means of a bill of exchange or otherwise) deposits or causes to be deposited to the credit of a bank account of another person an amount of money, that amount shall, upon that other person first receiving notice of the making of the deposit, be deemed, for the purposes of this Act, to have been received by that other person and to have been received at the place where the account is kept.
(2.) Where a bank, in accordance with the authority or order of a person (not being an authority or order in a bill of exchange), debits the account of that person with an amount of money and—
(a) transfers that amount to the credit of the bank;
(b) transfers that amount to the credit of an account of another person with the bank or with another bank; or
(c) transmits that amount to another bank, not being a transmission to the credit of an account of another person with that other bank,
that amount shall, for the purposes of this Act—
(d) in a case to which paragraph (a) of this sub-section applies—be deemed to have been received by the bank to the credit of which the amount is transferred upon the amount being so transferred;
(e) in a case to which paragraph (b) of this sub-section applies—be deemed to have been received by the person to the credit of whose account the amount is transferred upon the person first receiving notice of the transfer; or
(f) in a case to which paragraph (c) of this sub-section applies—be deemed to have been received by the bank to which the amount is transmitted upon the bank first receiving notice of the transmission,
and to have been so received at the place where the amount is credited or to which it is transmitted, as the case may be.
Amount credited to creditor’s account with debtor.
8.—(1.) Where a debtor, at the request or on the authority of his creditor, instead of paying a debt or any part of a debt owing by him to his creditor, credits an amount of money owing under the debt to an account of the creditor in the books of the debtor, the creditor shall, when he first receives notice of the amount having been so credited or upon the expiration of three months after the amount having been so credited, whichever first occurs, be deemed, for the purposes of this Act, to have received, in payment of the debt or that part of the debt, an amount of money equal to the amount credited, and to have so received that amount at the place where the books of the debtor are kept.
(2.) The last preceding sub-section does not apply in any case where section 6 or 7 of this Act applies in relation to the amount credited.
(3.) Where—
(a) by virtue of the operation of sub-section (1.) of this section, duty has become payable in respect of an amount or amounts of money credited to the account of a creditor in the books of his debtor or, by virtue of the operation of a provision of a State receipts duty law, duty has, before the end of the transitional period, become payable under that law in respect of an amount or amounts of money credited to the account of a creditor in the books of his debtor; and
(b) money is withdrawn by the creditor from the account,
the receipt of the money so withdrawn is, except to the extent that the amount of that money, together with any moneys previously withdrawn by the creditor from that account, being moneys in relation to which this sub-section, or a provision of the State receipts duty law corresponding with this sub-section, has had effect, exceeds the amount or the total of the amounts referred to in paragraph (a) of this sub-section, exempt from duty.
Exchange of money for money.
9.—(1.) Where money is exchanged for money, a party to the exchange shall, for the purposes of this Act, be deemed not to have received money except to the extent that the value of the money received by him is greater than the value of the money paid or given by him.
(2.) For the purposes of the last preceding sub-section, the value of any money, being a bill of exchange or a promissory note, is the nominal or face value of the bill of exchange or promissory note.
Receipts of money outside Australia.
10.—(1.) For the purposes of this Act, where—
(a) a person carrying on a business in Australia receives, in relation to that business, money outside Australia, or an agent of a person carrying on a business in Australia receives, on behalf of that person and in relation to that business, money outside Australia; and
(b) the money received relates, in whole or in part, to goods supplied or to be supplied in Australia, to services rendered or to be rendered in Australia or to any contract, arrangement or transaction that, under regulations made for the purposes of this section, is a contract, arrangement or transaction of a kind that relates to Australia,
the money so received, to the extent that it so relates—
(c) where the money is received by the person, or by an agent who is not carrying on a business in Australia and is not a resident of Australia—shall be deemed to have been received in Australia by the person in the course of carrying on a business in Australia; or
(d) where the money is received by an agent who is carrying on a business in Australia or is a resident of Australia—shall be deemed to have been received by the agent in Australia.
(2.) For the purposes of this Act, where a person (in this sub-section called “the creditor”) carrying on a business in Australia accepts, in relation to that business, as payment by another person, in whole or in part, of a debt that relates to goods supplied or to be supplied in Australia, to services rendered or to be rendered in Australia or to any contract, arrangement or transaction that, under regulations made for the purposes of this section, is a contract, arrangement or transaction of a kind that relates to Australia—
(a) payment made to another person, outside Australia, otherwise than as agent of the creditor;
(b) the crediting, outside Australia, of an amount to the bank account of another person otherwise than as agent of the creditor; or
(c) the crediting, outside Australia, of an amount to the account of another person, otherwise than as agent of the creditor, in the books of any person,
the creditor shall be deemed to have received in Australia, in the course of carrying on a business in Australia, money equal to the amount of the payment or credit.
(3.) For the purposes of sub-sections (1.) and (2.) of this section, where goods in Australia are, or are to be, sent to a Territory forming part of the Commonwealth by a person carrying on a business in Australia in the course of carrying on that business and are supplied, or are to be supplied, in that Territory by that person to another person, then, subject to the next succeeding sub-section, the goods shall be deemed to be goods supplied, or to be supplied, in Australia, and any money received by the person or by an agent of the person in respect of the supply of the goods shall be deemed to have been received in relation to that business.
(4.) The last preceding sub-section does not apply in relation to goods sent, or to be sent, by a person to a Territory of the Commonwealth and supplied, or to be supplied, in that Territory in the course of the carrying on by that person of a business in that Territory.
(5.) For the purpose of determining whether, for the purposes of the last preceding sub-section, a person is carrying on a business in a Territory of the Commonwealth, any act or thing done in the Territory by an agent of the person as such agent shall be deemed to be an act or thing done in the Territory by the person.
(6.) For the purposes of this section, a company that is a resident of Australia shall be deemed to be carrying on a business in Australia.
Money to be treated as received in the State in which goods supplied. &c.
11.—(1.) Where—
(a) goods have been or are to be supplied in a State, services have been or are to be rendered in a State or a contract, arrangement or transaction is, under regulations made for the purposes of this section, a contract, arrangement or transaction of a kind that relates to the State; and
(b) money received by a person that relates, in whole or in part, to the supply of those goods, the rendering of those services or that contract, arrangement or transaction is received in another State or is deemed, by virtue of the last preceding section, to have been received in Australia,
the money shall, for the purposes of this Act, to the extent that it so relates, be deemed to have been received in the first-mentioned State and not to have been received in any other State.
(2.) Where sub-section (3.) of the last preceding section applies in relation to goods sent, or to be sent, to a Territory of the Commonwealth and supplied, or to be supplied, in that Territory, the goods shall, for the purposes of the last preceding sub-section, be deemed to be goods supplied or to be supplied in the State from which they were sent, or are to be sent, to that Territory.
Money received after death or after ceasing to carry on business, &c.
12.—(1.) Where—
(a) the trustee of the estate of a deceased person receives any money as such trustee; and
(b) the money would, if it had been received by the deceased person during his lifetime, have been received by him in the course of carrying on a business in Australia,
the trustee shall, for the purposes of this Act, be deemed to have received the money in the course of carrying on a business in Australia.
(2.) Any money received by a person in relation to a business that is being carried on by him or that he has ceased to carry on shall, for the purposes of this Act, be deemed to be money received by him in the course of carrying on that business.
Continental shelf to be treated as part of Australia for certain purposes.
13.—(1.) Where a person carries on a business in an adjacent area, being an adjacent area in relation to a State, and that business consists of exploration of the adjacent area for petroleum or the exploitation of the natural resources, being petroleum, of the adjacent area, or arises out of or is connected with any such exploration or exploitation, that adjacent area shall, in relation to that business, be deemed, for the purposes of this Act, to be part of Australia and, in particular, to be part of that State.
(2.) For the purposes of this section—
“adjacent area” means an area specified in the Second Schedule to the Petroleum (Submerged Lands) Act 1967–1968 as being adjacent to a State;
“petroleum” means—
(a) any naturally occurring hydrocarbon, whether in a gaseous, liquid or solid state;
(b) any naturally occurring mixture of hydrocarbons, whether in a gaseous, liquid or solid state; or
(c) any naturally occurring mixture of one or more hydrocarbons, whether in a gaseous, liquid or solid state, and one or more of the following, that is to say, hydrogen sulphide, nitrogen, helium and carbon dioxide,
and includes any petroleum as defined by paragraph (a), (b) or (c) of this definition that has been returned to a natural reservoir.
(3.) For the purposes of this section—
(a) an adjacent area shall be deemed to be an adjacent area in relation to a State if it is specified in the Second Schedule to the Petroleum (Submerged Lands) Act 1967–1968 as being adjacent to that State; and
(b) a reference in this section to an adjacent area shall be read as including a reference to the land below that adjacent area and the space above that adjacent area.
Receipts in foreign currency.
Where a person receives money in a currency other than the currency of Australia, the amount of that money is, for the purposes of this Act, the equivalent of that amount in the currency of Australia calculated at the rate of exchange that is the relevant ruling telegraphic transfer buying rate of exchange in Australia on the day on which the money is received.
Part II.—Administration.
Commissioner to administer Act.
The Commissioner has the general administration of this Act.
Collectors of Receipts Duties.
16.—(1.) There shall be such Collectors of Receipts Duties as are required.
(2.) The Governor-General may make an arrangement with the Governor of a State under which the person for the time being holding, or for the time being performing the duties of, an office in the service
of the State specified in the arrangement is to carry out the functions of a Collector of Receipts Duties, and, while the arrangement is in force, the person for the time being holding, or for the time being performing the duties of, that office shall, for the purposes of this Act, be deemed to be a Collector of Receipts Duties.
(3.) Where an arrangement is in force under the last preceding sub-section in relation to a State, the Audit Act 1901–1969 does not apply in relation to amounts of duty received by the Collector for the State, but the Collector for the State shall, subject to the next two succeeding sub-sections, pay amounts of duty received by him into the Receipts Duty Trust Account as soon as practicable after they are received by him.
(4.) An arrangement under sub-section (2.) of this section between the Governor-General and the Governor of a State may include an arrangement for the Collector for the State to open and maintain a bank account (to be known as a “clearing account”) into which he is to pay amounts of Commonwealth duty received by him and amounts of State duty received by him.
(5.) The Collector for a State shall, as soon as practicable after amounts of Commonwealth duty have been paid into the clearing account maintained by him, pay the amounts into the Receipts Duty Trust Account.
(6.) Sub-section (3.) of this section shall not be construed as affecting the operation of the Audit Act 1901–1969 in relation to moneys paid into the Receipts Duty Trust Account.
(7.) In this section—
“Commonwealth duty” means duty payable in accordance with this Act, and includes additional duty so payable;
“State duty” means duty payable in respect of the receipt of money, or receipts issued in respect of the receipt of money, in pursuance of the State receipts duty law of a State;
“the Collector”, in relation to a State in relation to which an arrangement under sub-section (2.) of this section is in force, means the person for the time being holding, or for the time being performing the duties of, the office in the service of the State specified in the arrangement;
“the Receipts Duty Trust Account” means the account by that name established under the States Grants (Receipts Duty) Act 1970.
Powers and functions of Second Commissioners and Collectors.
17.—(1.) A Second Commissioner has all the powers and may perform all the functions of the Commissioner under this Act.
(2.) A Collector has all the powers and may perform all the functions of the Commissioner under this Act, but a Collector shall, in exercising any power or performing any function under this Act, do so in accordance with the directions, if any, of the Commissioner.
(3.) The exercise of a power or the performance of a function of the Commissioner under this Act by a Second Commissioner or by a Collector does not prevent the exercise of that power or the performance of that function by the Commissioner, and the exercise of a power or the performance of a function of the Commissioner under this Act by a Collector does not prevent the exercise of that power or the performance of that function by a Second Commissioner.
(4.) The Commissioner has, in relation to an act of a Second Commissioner or of a Collector, the same powers as if that act were done by the Commissioner, and a Second Commissioner has, in relation to an act of a Collector, the same powers as if that act were done by a Second Commissioner.
Delegation by Collectors.
18.—(1.) A Collector may, in relation to a matter or class of matters, by writing under his hand, delegate to any person all or any of the powers or functions that may be exercised by him by virtue of sub-section (2.) of the last preceding section.
(2.) A power or function so delegated may, subject to any directions of the Commissioner referred to in sub-section (2.) of the last preceding section, be exercised or performed by the delegate with respect to the matter, or to the matters included in the class of matters, specified in the instrument of delegation.
(3.) A delegation under this section is revocable at will and does not prevent the exercise of a power or the performance of a function by the Commissioner, a Second Commissioner or the Collector.
(4.) A delegation under this section may be made subject to a power of review and alteration by the Collector, within a period specified in the instrument of delegation, of acts done in pursuance of the delegation and a decision given upon such a review or alteration shall be deemed to be the decision of the Collector.
(5.) Nothing in the preceding provisions of this Part shall be construed as derogating from the power of the Commissioner under section 8 of the Taxation Administration Act 1953–1968 to delegate all or any of his powers or functions under this Act to any officer or other person.
References to Commissioner.
A reference in this Act to the Commissioner shall be deemed to include—
(a) in respect of matters as to which a Second Commissioner or a Collector has exercised a power or function of the Commissioner conferred on him by this Act—a reference to the Second Commissioner or Collector, as the case may be; and
(b) in respect of matters as to which a person has exercised a power or function of the Commissioner conferred on him by delegation under section 8 of the Taxation Administration Act 1953–1968 or the last preceding section—a reference to that person.
Where exercise of powers dependent upon opinion.
Where, under this Act, the exercise of a power or the performance of a function by the Commissioner is dependent upon the opinion, belief or state of mind of the Commissioner in relation to a matter, that power may be exercised or that function performed by a Second Commissioner, a Collector or a delegate of the Commissioner or of a Collector upon the opinion, belief or state of mind of the Second Commissioner, the Collector or the delegate, as the case may be, in relation to that matter.
Officers to observe secrecy.
21.—(1.) In this section, “officer” means a person—
(a) who is or has been appointed or employed by the Commonwealth or by a State;
(b) who is or has been a Collector; or
(c) to whom powers or functions have been delegated by the Commissioner or a Collector,
and who, by reason of that appointment or employment, or in the course of that employment, by reason of being a Collector or by reason of, or in the course of carrying out powers and functions under, the delegation, as the case may be, may acquire or has acquired information with respect to the affairs of any other person disclosed or obtained under the provisions of this Act.
(2.) Subject to this section, an officer shall not, either directly or indirectly, except in the performance of his duties as an officer, and either while he is, or after he ceases to be, an officer, make a record of, or divulge or communicate to any person, any such information so acquired by him.
Penalty: Five hundred dollars or imprisonment for twelve months.
(3.) An officer shall not be required to produce in court a return, assessment or notice made or given for the purposes of this Act, or to divulge or communicate to a court a matter or thing coming under his notice in the performance of his duties as an officer, except when it is necessary to do so for the purpose of carrying into effect the provisions of this Act.
(4.) Nothing in this section prevents the Commissioner, a Second Commissioner or a Collector, or a person authorized by the Commissioner, a Second Commissioner or a Collector, from communicating any information to—
(a) a Board of Review;
(b) a person performing, as an officer, a duty arising under an Act administered by the Commissioner, for the purpose of enabling that person to carry out that duty; or
(c) a person performing a function or duty under a law of a State or Territory of the Commonwealth relating to taxation.
(5.) A person to whom information is communicated under the last preceding sub-section and a person or employee under his control are, in respect of that information, entitled to rights and privileges and subject to
obligations and liabilities under sub-sections (2.) and (3.) of this section as if they were officers.
(6.) An officer shall, if and when required by the Commissioner, a Second Commissioner or a Collector to do so, make an oath or declaration, in manner and form approved by the Commissioner, to maintain secrecy in conformity with the provisions of this section.
Part III.—Liability to Duty.
References to Australia in this Part.
A reference in this Part to Australia shall be read as a reference to Australia other than the Territories of the Commonwealth forming part of the Commonwealth.
Imposition of duty.
This Act has effect only so long as the Receipts Duty Acts are in force, and duty is not payable unless those Acts are in force.
Liability to duty.
24.—(1.) Subject to this Act, a person who, before such date as is fixed by Proclamation for the purposes of this sub-section, receives money in Australia in the course of carrying on a business in Australia is liable to pay duty in respect of the receipt of the money at such rate declared by the Parliament as is applicable.
(2.) For the purposes of the last preceding sub-section, any money received in Australia by a company that is carrying on a business in Australia or is a resident of Australia, or by a partnership that is carrying on a business in Australia, shall, subject to the next succeeding sub-section, be deemed to be money received by the company or the partnership, as the case may be, in the course of carrying on a business in Australia.
(3.) The last preceding sub-section does not apply to money received by a company or partnership as agent or trustee.
(4.) The date fixed by Proclamation for the purposes of sub-section (1.) of this section may be a date before the date on which the Proclamation is published in the Gazette.
Agents.
25.—(1.) Money received by an agent from a person on behalf of his principal shall not be treated for the purposes of this Act as having been received by the agent in the course of carrying on a business except as provided by either of the next two succeeding sub-sections.
(2.) Where—
(a) a person who is carrying on a business in Australia or is a resident of Australia is an agent of another person;
(b) the agent receives money in Australia from another person on behalf of his principal, including a case where the agent is also the agent of that other person; and
(c) duty would, if the money had been received by the principal at the place where it was received by the agent, have been payable in respect of the receipt of the money by the principal,
the agent shall, for the purposes of this Act, be deemed to have received that money in the course of carrying on a business in Australia.
(3.) Where money is received by an agent from a person on behalf of his principal and duty would not, but for this sub-section, be payable by the agent in respect of the receipt of that money by him and the agent transfers to his own account out of that money any money that is to be retained by him in relation to a business carried on by him in Australia, the agent shall, for the purposes of this Act, be deemed to have received the money so transferred in the course of carrying on that business at the time he transfers the money to his own account.
(4.) Where a person is acting as agent for more than one principal and the agent, on behalf of one of those principals (in this sub-section referred to as “the paying principal”) pays to another principal (in this sub-section referred to as “the receiving principal”) an amount out of the funds of the agent, then the agent shall, for the purposes of this Act, be deemed to have received from the paying principal on behalf of the receiving principal, at the time the payment is made to the receiving principal, an amount of money equal to the payment, and, if the agent is liable, by virtue of the preceding provisions of this section, to pay duty in respect of the amount so deemed to have been received by him, the receipt of the payment by the receiving principal is exempt from duty.
(5.) Where—
(a) money is received by an agent on behalf of his principal, including a case where it is received from another principal of the agent;
(b) the agent is liable to pay duty in respect of the receipt of the money so received; and
(c) the money or any part of the money, or money representing the money, in whole or in part, is received by the principal, or is received by another person for transmission (directly or indirectly) to the principal,
the receipt by the principal or by the other person, as the case may be, is exempt from duty.
(6.) Sub-section (2.) of this section does not apply in relation to a receipt of money by an agent on behalf of his principal where, at the request of the principal—
(a) the Commissioner has given or gives a direction under which the receipt is, or all receipts of money by the agent on behalf of that principal are, exempted from the operation of that sub-section; or
(b) the Commissioner has given or gives a direction under which a class of receipts of money by the agent on behalf of that principal is exempted from the operation of that sub-section and that receipt is included in that class,
and, where sub-section (2.) of this section does not so apply in relation to a receipt of money (not being a receipt deemed to have occurred by virtue of sub-section (4.) of this section), the money shall, for the purposes of this Act, be deemed not to have been received by the agent but to have
been received by the principal at the place where it was received by the agent and at the time when the principal first received notice of the money having been received by the agent.
(7.) Money received by an agent from his principal shall be treated for the purposes of this Act as having been received by the agent in the course of carrying on a business only where, and to the extent that—
(a) it is retained by the agent otherwise than as reimbursement of a payment made by the agent out of his own funds on behalf of his principal to another person, whether or not the agent is the agent of that other person; or
(b) sub-section (2.) of this section applies in respect of the receipt of the money.
(8.) Where an agent receives money from his principal and that money, or any money included in that money, is to be retained by the agent but the agent does not immediately transfer it to his own account, the agent shall, for the purposes of this Act, be deemed to have received the money so transferred at the time he transfers it to his own account.
(9.) Subject to any agreement between the persons concerned, an agent who pays out of his own money duty (not being duty payable by reason only of sub-section (3.) of this section) in respect of money received by him on behalf of his principal (including money included in a payment to which sub-section (4.) of this section applies) is entitled to recover from that principal an amount equal to the amount of the duty or so much thereof as has not been paid to him by the principal, but duty is not payable in respect of the receipt of the amount of any money so recovered.
Trustees.
26.—(1.) Subject to section 12 of this Act and to the next succeeding sub-section, a person who, as trustee of a trust estate, receives any money shall, for the purposes of this Act, be deemed to have received that money in the course of carrying on a business only if he received that money in the course of carrying on a business of the trust estate.
(2.) Where—
(a) money is received by a person as trustee of a trust estate;
(b) duty would not, but for this sub-section, be payable by the trustee in respect of the receipt of that money by him; and
(c) the trustee transfers to his own account out of that money any money that is to be retained by him in relation to a business carried on by him in Australia,
the trustee shall, for the purposes of this Act, be deemed to have received the money so transferred in the course of carrying on that business at the time he transfers the money to his own account.
Exemptions.
A receipt of money to which an item in the Schedule to this Act applies is exempt from duty.
Rebates.
28.—(1.) Where a person—
(a) has paid money received by him or by his agent (being money in respect of which he or his agent has paid or is liable to pay duty) to any person or fund for the purpose of equalizing payments to producers under a prescribed marketing scheme;
(b) has refunded any money (being money in respect of which he or his agent has paid or is liable to pay duty) received by him or his agent pursuant to a prescribed marketing scheme to the person or fund from which he or his agent received the money;
(c) has refunded any money (being money in respect of which he or his agent has paid or is liable to pay duty) received by him or his agent in pursuance of any bond; or
(d) has refunded any money (being money in respect of which he or his agent has paid or is liable to pay duty) received by him or his agent, being a refund the receipt of which is exempt from duty by virtue of item 28 in the Schedule to this Act,
the person is entitled to a rebate of an amount equal to the amount of duty paid or payable by him or his agent in respect of the receipt by him or his agent of the amount so paid or refunded.
(2.) Where a club lawfully conducts a raffle, lottery or a game of chance and pays money received by it (being money in respect of which the club has paid or is liable to pay duty) by way of, or for the purpose of, a prize or other winnings, the club is entitled to a rebate of an amount equal to the amount of the duty paid or payable by the club in respect of the receipt by the club of the amount so paid.
(3.) A person is entitled to a rebate of an amount equal to the amount of duty paid or payable by him in respect of the receipt by him of a bill of exchange that is dishonoured.
(4.) The amount of rebate is a debt due and payable to the person entitled to the rebate by the Commissioner on behalf of the Commonwealth.
(5.) An amount that the Commissioner is liable to pay in pursuance of this section is payable out of the Consolidated Revenue Fund which, to the necessary extent, is appropriated accordingly.
Part IV.—Returns.
Return periods.
For the purposes of this Act, a return period applicable to a person in respect of a State is—
(a) the transitional period; and
(b) the period of one month commencing at the end of the transitional period and each succeeding period of one month or, if the Commissioner, by notice in writing served on the person, approves the return periods applicable to the person in respect of the State being, after such date as is specified in the approval, the periods specified in, or periods determined in accordance with, the approval, each such period after that date.
Information to be furnished to Commissioner with respect to businesses.
30.—(1.) A person who is carrying on a business in a State at the end of the transitional period, not being a person who, at any previous time, had furnished a return under the State receipts duty law of the State with respect to money received by him, or money that included money received by him, in relation to that business, shall, within twenty-one days after this Act receives the Royal Assent, or within such further period as the Commissioner allows, inform the Commissioner, at such place in that State as is prescribed and in such form as the Commissioner directs, that he is so carrying on business, specifying such particulars with respect to the business as are required by the form to be specified.
(2.) A person who, at any time after the end of the transitional period and before the date fixed for the purposes of sub-section (1.) of section 24 of this Act, commences to carry on a business in a State shall, within twenty-one days after commencing to carry on that business or within such further period as the Commissioner allows, inform the Commissioner, at such place in that State as is prescribed and in such form as the Commissioner directs, that he is so carrying on business, specifying such particulars with respect to the business as are required by the form to be specified.
Furnishing of retains.
31.—(1.) Where—
(a) in any return period applicable to a person in respect of a State, the person has received in that State an amount or amounts of money; and
(b) duty is payable in respect of the receipt of that amount or those amounts of money,
he shall, within twenty-one days after the end of the return period or after this Act receives the Royal Assent, whichever last occurs, or within such further period as the Commissioner allows, furnish to the Commissioner, at such place in that State as is prescribed, a return in such form as the Commissioner directs, specifying that amount, or the total of those amounts, as the case may be, and such other particulars as are required by the form to be specified.
(2.) A return required to be furnished to the Commissioner under the last preceding sub-section in respect of money received in a State may, with the approval of the Commissioner and in a form approved by the Commissioner, be included in, or combined with, a return that is furnished by the person under the State receipts duty law of that State.
Returns on approved basis.
32.—(1.) Where the Commissioner is satisfied that it is not reasonably practicable for a person to furnish to him in respect of money received in a State returns under the last preceding section on the basis of the actual total of amounts received by the person in the State during a return period applicable to the person in respect of the State, the Commissioner may, on application by the person, approve, by instrument in writing, the person adopting another basis specified in the approval for calculating the total of the amounts to be specified in returns to be furnished by the person to the Commissioner under that section.
(2.) In making an assessment under section 39 or 40 of this Act in relation to a person in respect of whom the Commissioner has granted his approval under the last preceding sub-section, the Commissioner is not bound to make the assessment in accordance with the basis of calculation specified in the approval.
Further returns.
In addition to any return required to be furnished by a person under section 31 of this Act, the Commissioner may, by notice in writing, call upon the person to furnish to him, within the time specified in the notice, such return, or such further or fuller return, relating to receipts of money by the person, as the Commissioner requires.
Commissioner to obtain information and evidence.
34.—(1.) For the purpose of inquiring into, or ascertaining, the liability of a person under any of the provisions of this Act, the Commissioner may, by notice in writing, require any person—
(a) to furnish the Commissioner with such information as the Commissioner requires;
(b) to attend and give evidence before the Commissioner or before an officer authorized by the Commissioner for the purpose; and
(c) to produce any books, documents and other papers in the custody or under the control of the person.
(2.) The Commissioner may require the person to give the information or evidence on oath, and either orally or in writing, and for that purpose the Commissioner or a person authorized by him may administer an oath.
(3.) Where the person conscientiously objects to making an oath, he may make an affirmation that he so objects and that the information or evidence he will give will be the truth, the whole truth and nothing but the truth, and an affirmation so made is of the same force and effect, and entails the same liabilities, as an oath.
(4.) A person who is required in pursuance of this section to attend and give evidence before the Commissioner or an officer authorized by the Commissioner for the purposes of an inquiry into, or the ascertaining of, the liability of another person under this Act is entitled to payment of an allowance in respect of his expenses of attending and giving evidence of an amount determined by the Commissioner in accordance with the regulations.
Returns deemed to be made.
A return purporting to be made and signed by or on behalf of a person shall, until the contrary is proved, be deemed to have been made and signed by him or with his authority.
Part V.—Collection and Recovery of Duty.
Due date.
Subject to this Act, duty in respect of the receipt of moneys the amount, or the total of the amounts, of which is required to be specified in a return under section 31 of this Act is due and payable on the day on
which the return is furnished in accordance with this Act or, if such a return is not duly furnished, on the last day for the due furnishing of the return.
Time to pay—extensions and instalments.
37.—(1.) The Commissioner may, in such cases as he thinks fit—
(a) extend the time for payment of duty for such period or periods as he considers the circumstances warrant; or
(b) permit payment of duty to be made by instalments within such times as he considers the circumstances warrant.
(2.) Where the Commissioner extends the time for payment of duty for a period, the duty is due and payable at the expiration of that period.
(3.) Where the Commissioner permits payment of duty to be made by instalments, each instalment is due and payable on the date ascertained in accordance with the permission in relation to that instalment, but, if an instalment is not paid on or before the date so ascertained, the whole of the duty outstanding is due and payable on that date.
Additional duty.
38.—(1.) Subject to the next succeeding sub-section, where a person fails to pay duty payable by him on or before the date on which the duty is due and payable, that person, in addition to his liability to pay that duty, is liable to pay additional duty at the rate of ten per centum per annum upon the amount of duty that he has so failed to pay to be computed from the date on which the duty became due and payable.
(2.) The Commissioner may, in a particular case, for reasons that, in his discretion, he thinks sufficient, remit the whole or a part of any additional duty payable under the last preceding sub-section.
Assessments.
Where the Commissioner is of the opinion that any duty or further duty is payable by a person in respect of the receipt of any moneys, the Commissioner may make an assessment under this section of—
(a) the amount of those moneys; and
(b) the duty or further duty that is payable.
Default assessments.
40.—(1.) Where—
(a) the Commissioner has reason to believe that a person who has not furnished to him a return relating to a return period applicable to the person in respect of a State is liable to pay duty in respect of the receipt of money by him in that State during that return period; or
(b) the Commissioner is not satisfied with the return furnished by a person to him in respect of a return period applicable to the person in respect of a State,
the Commissioner may (whether or not he is empowered to make an assessment under the last preceding section) make an assessment under this section of the amount, or the total of the amounts, received by that
person during that return period in that State in respect of the receipt of which, in his opinion, duty is payable by that person, and of the amount of the duty or further duty that is payable.
(2.) A person who is liable to pay duty, or further duty, by virtue of an assessment made under the last preceding sub-section is (unless he is liable to pay, in relation to the amount or amounts in respect of which the assessment was made, additional duty under sub-section (1.) of section 61 of this Act by virtue of the operation of paragraph (b) of that sub-section) also liable to pay, by way of additional duty, double the amount of the duty or further duty, as the case may be, or the amount of Two dollars, whichever is the greater.
(3.) The Commissioner may, in a particular case, for reasons that, in his discretion, he thinks sufficient, remit the whole or a part of any additional duty payable under the last preceding sub-section.
(4.) If, in any case in which a person is liable to pay additional duty under this section, a prosecution as defined by section 67 of this Act is instituted in respect of the same subject matter, the additional duty is not payable unless the prosecution is withdrawn.
Notice of assessments, &c.
41.—(1.) As soon as practicable after an assessment is made under this Act, the Commissioner shall cause notice in writing of the assessment and the amount of the duty or further duty payable in accordance with the assessment to be served on the person liable to pay duty or further duty.
(2.) As soon as practicable after the Commissioner has made a decision to remit the whole or a part of any additional duty payable under sub-section (1.) of section 38, or sub-section (2.) of section 40, of this Act, or a decision not to remit any such additional duty, the Commissioner shall cause notice in writing of the decision to be served on the person liable to pay the additional duty.
Date on which duty payable.
The amount of any duty or further duty specified in a notice given under sub-section (1.) of the last preceding section is due and payable on such date as is specified in the notice.
Validity of assessment.
The validity of an assessment is not affected by reason that any of the provisions of this Act have not been complied with.
Collector may sue for duty.
44.—(1.) Any duty when it becomes due and payable, or any additional duty, is a debt due to the Commonwealth and is payable at such place as is prescribed.
(2.) Any duty unpaid, including additional duty, may be sued for and recovered in any court of competent jurisdiction by a Collector suing in his official name.
(3.) Where, in any proceedings for the recovery of duty, the defendant denies liability, it is not necessary for the plaintiff to allege or prove under which of the Receipts Duty Acts the duty was imposed.
Refunds of duty.
45.—(1.) A refund shall not be made of an amount of duty overpaid unless—
(a) the person claiming the refund furnishes to the Commissioner such return or other information, certified in such manner as the Commissioner requires, as will enable the Commissioner to determine the amount of the duty that has been overpaid and should be refunded; and
(b) the Commissioner is satisfied that the person claiming the refund has not recouped himself to the extent of the amount of duty overpaid from another person or, if he has so recouped himself, that he has since repaid, or will repay, the amount to the person from whom he recouped himself.
(2.) An amount of duty that the Commonwealth is liable to refund is payable out of the Consolidated Revenue Fund which, to the necessary extent, is appropriated accordingly.
Substituted service.
If, in any proceedings against a person in the name of a Collector for the recovery of any duty or additional duty, the defendant—
(a) is absent from Australia and has not, to the knowledge of the Collector, after reasonable inquiry in that behalf, an attorney or agent in Australia on whom service of process can be effected; or
(b) cannot after reasonable inquiry be found,
any process in the proceedings may, without leave of the court, be served on him by post addressed to his last known place of business or residence in Australia.
Liquidators to give notice.
47.—(1.) A person who is liquidator of a company that is being woundup and is liable to pay duty in respect of the receipt of money in a State shall, within fourteen days after—
(a) that person has become liquidator of the company; or
(b) the company has become liable to pay duty,
whichever last occurs, give notice in writing to the Collector who, under the regulations, is, for the purposes of this section, the Collector for the State that he is liquidator of the company.
(2.) The Collector shall, as soon as practicable after the receipt by him of a notice given under the last preceding sub-section, notify to the liquidator the amount that appears to the Collector to be sufficient to provide for any duty that then is or will become payable by the company.
(3.) The liquidator—
(a) shall not, without leave of the Collector, part with any of the assets of the company until he has been so notified;
(b) shall, out of the assets available for the payment of the duty, set aside assets to the value of the amount so notified or, if the assets available are of less than that value, the whole of the assets available; and
(c) is, to the extent of the value of the assets that he is so required to set aside, liable as trustee to pay the duty.
(4.) Where a liquidator fails to comply with a provision of this section or fails duly to pay the duty that he is liable, under the last preceding sub-section, to pay as trustee—
(a) the liquidator is, to the extent of the value of the assets of which he has taken possession and which are, or were at any time, available to him for the payment of the duty, personally liable to pay the duty; and
(b) the liquidator is guilty of an offence punishable, upon conviction, by a fine of not more than One hundred dollars.
(5.) Where two or more persons are liquidators or are required by law to carry out the winding-up of a company that is liable to pay duty—
(a) the obligations and liabilities attaching to a liquidator under this section attach to each of those persons; and
(b) if any one of those persons has paid the duty due by the company, the other person or each of the other persons is liable to pay to that person his equal share of the amount of the duty so paid.
(6.) Notwithstanding the preceding provisions of this section, all costs, charges and expenses that, in the opinion of the Commissioner, have been properly incurred by the 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 duty payable by the company.
Where duty not paid during lifetime.
48.—(1.) The following provisions of this section apply where, whether intentionally or not, a person escapes full payment of duty in his lifetime by reason of his 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 that person in respect of the liability to which that person was subject as he would have had against that person if he were still living.
(3.) The trustee shall make such returns as the Commissioner requires.
(4.) The trustees are subject to an additional duty to the same extent as the deceased person would be subject to an additional duty if he were
still living, but the Commissioner may, in a particular case, for reasons that, in his discretion, he thinks sufficient, remit the additional duty or a part of the additional duty.
(5.) The amount of any duty payable by the trustees is a charge on all the deceased person’s estate in their hands in priority to all other encumbrances other than charges in respect of debts payable to the Commissioner.
Provision for payment of duty by trustees of deceased persons.
49.—(1.) Where, at the time of a person’s death, duty has not been paid in respect of the whole of moneys received by that person before his death, the Commissioner has the same powers and remedies for the assessment and recovery of duty from the trustees of the deceased person as he would have had against that person if that person were still living.
(2.) The trustees shall furnish a return of all receipts of money in respect of which the deceased person, if he were still living, would be required by this Act to furnish a return.
(3.) Where the trustees are unable or fail to furnish a return, the Commissioner may make an assessment of the amount of duty that, in his judgment, ought to be paid.
Where no administration of deceased person’s estate.
50.—(1.) Where a grant has not been made of probate of the will, or of letters of administration of the estate, of a deceased person within six months after his death, the Commissioner may make an assessment of the amount of the duty due by the deceased person.
(2.) The Commissioner shall cause notice of the assessment to be published twice in a daily newspaper circulating in the State or Territory of the Commonwealth in which the deceased person resided.
(3.) Any person claiming an interest in the estate of the deceased person may, within sixty days after the first publication of notice of the assessment, post to or lodge with the Commissioner an objection in writing against the assessment stating fully and in detail the grounds on which he relies, and the provisions of this Act relating to objections, reviews and appeals thereupon apply in relation to the objection as if the person so claiming an interest were the deceased person.
(4.) Subject to any amendment of the assessment by the Commissioner, a Board of Review or a Court, the assessment so made is conclusive evidence of the indebtedness of the deceased person to the Commissioner.
(5.) The Commissioner may give an order in writing in accordance with the prescribed form authorizing any member of the police force of the Commonwealth, or of a State or a Territory of the Commonwealth, or any other person specified in the order, to levy the amount of duty assessed, with costs, by distress and sale of any property of the deceased person.
(6.) Upon the giving of any such order, the member or person so authorized has power to levy that amount in accordance with the order.
(7.) Notwithstanding anything contained in the last three preceding sub-sections, if at any time probate of the will of the deceased person is, or letters of administration of the estate of the deceased person are, granted to a person, that person may, within sixty days after the date of the grant of probate or letters of administration, post to or lodge with the Commissioner an objection in writing against the assessment, stating fully and in detail the grounds on which he relies, and the provisions of this Act relating to objections, reviews and appeals thereupon apply in relation to the objection as if that person were the deceased person.
Joint and several liability for duty.
Where duty is payable in respect of money received by a partnership, the members of the partnership are jointly and severally liable to pay the duty.
Apportionment of duty paid in respect of Commonwealth and State liability.
Where—
(a) an arrangement is in force under sub-section (2.) of section 16 of this Act in relation to a State;
(b) the person holding, or for the time being performing the duties of, an office in the service of the State who, for the purposes of that section, is to be deemed to be the Collector of Receipts Duties for the State, receives any payment from a person who is liable to pay duty under this Act and also liable to pay duty under the State receipts duty law of the State; and
(c) it is not apparent how the payment is to be applied in discharge of those liabilities,
the payment shall be taken to be intended to be applied firstly in discharge of the liability of the person in respect of duty under this Act.
Commissioner may collect duty from person owing money to person liable to duty.
53.—(1.) The Commissioner may, by notice in writing (a copy of which shall be served on the person liable to duty), require—
(a) a person by whom any money is due or accruing, or may become due, to a person liable to duty;
(b) a person who holds or may subsequently hold money for or on account of a person liable to duty;
(c) a person who holds or may subsequently hold money for or on account of some other person for payment to a person liable to duty; or
(d) a person having authority from another person to pay money to a person liable to duty,
to pay to the Commissioner, either forthwith upon the money becoming due or being held, or at or within a time specified in the notice (not being a time before the money becomes due or is held)—
(e) so much of the money as is sufficient to pay the amount due in respect of duty by the person liable to duty, or the whole of the money when it is equal to or less than that amount; or
(f) such amount as is specified in the notice out of each of any payments that the person so notified becomes liable from time to time to make to the person liable to duty, until the amount due in respect of duty by the person is satisfied,
and may at any time, by further notice in writing, amend or revoke the first-mentioned notice, or extend the time for making any payment in pursuance of that notice.
(2.) A person making a payment in pursuance of this section shall be deemed to have been acting under the authority of the person liable to duty and of all other persons concerned and is, by force of this sub-section, indemnified in respect of that payment.
(3.) If the Commissioner receives a payment in respect of the amount due by the person liable to duty before payment is made by the person so notified, he shall forthwith give notice of receipt of the payment to that person.
(4.) In this section—
“person” includes a company, a partnership, the Commonwealth, a State and a public authority;
“duty” includes any additional duty payable under this Act, a judgment debt or costs in respect of duty or additional duty and any fine or costs imposed by a court in respect of an offence against this Act or the regulations.
Evidence.
54.—(1.) The production of a notice of assessment, or of a document under the hand of the Commissioner, a Second Commissioner or a Collector purporting to be a copy of a notice of assessment, is conclusive evidence of the due making of the assessment and (except in proceedings on a review of, or appeal against, the assessment) that the amount and all the particulars of the assessment are correct.
(2.) The production of a document under the hand of the Commissioner, a Second Commissioner or a Collector purporting to be a copy of a document issued or given by the Commissioner, a Second Commissioner or a Collector is conclusive evidence that the document was so issued or given.
(3.) The production of a document under the hand of the Commissioner, a Second Commissioner or a Collector purporting to be a copy of or extract from a return or notice of assessment is evidence of the matter set forth in the document so produced to the same extent as the original return or notice would be if it were produced.
Part VI.—Objections, Reviews and Appeals.
Objections.
55.—(1.) A person who is dissatisfied with an assessment made in relation to the person by the Commissioner under this Act may, within sixty days after service on him of notice of the assessment, post to or lodge with the Commissioner an objection in writing against the assessment stating fully and in detail the grounds on which he relies.
(2.) A person who is dissatisfied with a decision of the Commissioner with respect to the remission of additional duty payable under sub-section (2.) of section 40 of this Act, or under sub-section (1.) of section 61 of this Act by virtue of the operation of paragraph (b) of that sub-section, may, within sixty days after service on him of notice of the decision, post to or lodge with the Commissioner an objection in writing against the decision stating fully and in detail the grounds on which he relies.
(3.) The Commissioner shall consider the objection, and may either disallow it, or allow it, either wholly or in part.
(4.) The Commissioner shall cause notice in writing of his decision on an objection to be served on the objector.
(5.) A person who is dissatisfied with the decision of the Commissioner on an objection by that person may, within sixty days after service on him of notice of that decision, request the Commissioner, by instrument in writing accompanied by a fee of Two dollars, to refer the decision to a Board of Review for review.
(6.) The fee shall be refunded to the person if his assessment is reduced by the Board of Review or if the Board of Review remits any additional duty, as the case may be.
References to Board of Review.
56.—(1.) Where a person has, in accordance with the last preceding section, requested the Commissioner to refer a decision to a Board of Review and, within sixty days after receiving the request, the Commissioner has not so referred the decision, the person may give to the Commissioner notice in writing to refer the decision to a Board of Review and the Commissioner shall, within sixty days after receiving the notice, comply with it.
(2.) On the review—
(a) the person who made the request is limited to the grounds stated in his objection; and
(b) the burden of proving that the assessment is excessive, or that additional duty should be remitted, as the case may be, lies on that person.
(3.) If, after consideration of the objection by the Commissioner, the assessment has been reduced by him or his decision with respect to the remission has been altered, the reduced assessment or the altered decision, as the case may be, is the assessment or decision, as the case may be, to be dealt with by the Board under the next succeeding section.
Powers of Board.
57.—(1.) A Board of Review has power to review such decisions of the Commissioner, a Second Commissioner or a Collector as are referred to it by the Commissioner under this Act and, for the purpose of reviewing those decisions, has all the powers and functions of the Commissioner in making assessments, determinations and decisions under this Act, and the assessments, determinations and decisions of the Board shall, for
the purposes of this Act (other than the purposes of sub-section (5.) of section 55 and section 58 of this Act), be deemed to be assessments, determinations and decisions of the Commissioner.
(2.) The Board, on a review, shall give a decision in writing and may either confirm, reduce, increase or vary the assessment or vary the decision with respect to the remission, as the case may be.
(3.) On a request made at the hearing by the Commissioner or the person who requested the review, the Board shall, when giving its decision, state in writing its findings of fact and its reasons in law for the decision.
Appeal or reference to High Court.
58.—(1.) The Commissioner or a person who requested a review by a Board of Review may appeal to the High Court from a decision of the Board on the review that involves a question of law.
(2.) A Board of Review shall, upon application by the Commissioner or a person who requested a review by the Board, refer to the High Court any question of law arising before the Board in the course of that review.
(3.) The decision of the High Court on such an appeal or reference is final and conclusive.
Pending reference or appeal not to delay payment of duty.
59.—(1.) The fact that a reference or appeal is pending does not in the meantime interfere with or affect the relevant assessment or the relevant decision with respect to the remission of additional duty, and duty or additional duty, as the case may be, may be recovered as if no reference or appeal were pending.
(2.) If an assessment, or a decision with respect to the remission of additional duty, is altered on a reference or appeal, a due adjustment shall be made, and, for that purpose, amounts paid in excess shall be refunded and amounts short-paid are recoverable as arrears.
Part VII.—Penal Provisions.
Offences.
60.—(1.) A person who—
(a) fails or neglects duly to furnish a return or information, or to comply with a requirement of the Commissioner, as and when required by or under this Act or the regulations;
(b) without just cause shown by him, refuses or neglects duly to attend and give evidence when required by the Commissioner or an officer duly authorized by the Commissioner, or truly and fully to answer any questions put to him, or to produce a book, document or paper required of him, by the Commissioner or any such officer; or
(c) makes or delivers a return that is false in a material particular or makes a false answer, whether orally or in writing, to a question duly put to him by the Commissioner or an officer duly authorized by the Commissioner,
is guilty of an offence punishable, on conviction, by a fine not exceeding Three hundred dollars and, in addition, where the person has failed to include in a return any amount of money required by this Act to be included, the court may order the person to pay to the Commissioner an amount not exceeding double the amount of the difference between the amount of duty that is properly payable and the amount of duty that would be payable on the basis of the particulars set out in the return furnished by the person.
(2.) Upon the conviction of a person for an offence against this section, the court may order him, within a time specified in the order, to do any act that he has failed, refused or neglected to do, and a person who does not duly comply with such an order is guilty of an offence punishable, on conviction, by a fine of not more than Four hundred dollars.
(3.) An order under this section may be given orally by the court to the defendant or may be in writing and be served by sending a copy of the order by post to the defendant at his last known place of residence or business.
(4.) In a prosecution for an offence against paragraph (c) of sub-section (1.) of this section of a person who has not previously been convicted of an offence against this Act, it is a defence if the defendant proves that the false return was made or delivered, or the false answer was made, through ignorance or inadvertence.
(5.) Where a partnership fails or neglects duly to furnish a return or information, or to comply with a requirement of the Commissioner, as and when required by or under this Act or the regulations or makes or delivers a return that is false in a material particular, each member of the partnership shall, for the purposes of this section, be deemed to have so failed or neglected.
Additional duty in certain cases.
61.—(1.) Notwithstanding anything contained in the last preceding section—
(a) a person who fails or neglects duly to furnish a return or information as and when required by or under this Act or the regulations is liable to pay additional duty at the rate of ten per centum per annum upon the amount of duty that he is liable to pay (which percentage is to be calculated for the period commencing on the last day allowed for furnishing the return or information and ending on the day upon which the return or information is furnished or the day upon which an assessment of the duty is made, whichever first happens), or the sum of Two dollars, whichever is the greater; and
(b) a person who fails to include in a return any amount of money required by this Act to be included is liable to pay additional duty equal to Two dollars or double the amount of the difference between the amount of duty that is properly payable and the
amount of duty that would be payable on the basis of the particulars set out in the return furnished by him, whichever is the greater,
in addition to any additional duty that is or may become payable by him in accordance with section 38 of this Act.
(2.) The Commissioner may in a particular case, for reasons that, in his discretion, he thinks sufficient, remit the whole or a part of any additional duty payable under the last preceding sub-section.
(3.) As soon as practicable after the Commissioner has made a decision to remit the whole or a part of any additional duty payable under sub-section (1.) of this section, or a decision not to remit any such additional duty, he shall cause notice in writing of the decision to be served on the person liable to pay the additional duty.
(4.) If, in any case in which a person is liable to pay additional duty under this section, a prosecution as defined by section 67 of this Act is instituted in respect of the same subject matter, the additional duty is not payable unless the prosecution is withdrawn.
False declarations.
A person who, in a declaration made under, or authorized or prescribed by, this Act or the regulations, knowingly declares to any matter or thing that is false in a material particular is guilty of an offence punishable, on conviction, by imprisonment for a period not exceeding four years.
Avoiding duty.
A person who, or a company on whose behalf the public officer or a director, servant or agent of the company, by any wilful act, default or neglect or by any fraud, trick or contrivance avoids or attempts to avoid duty is guilty of an offence punishable, on conviction, by a fine of not less than One hundred dollars and not exceeding One thousand dollars and, in addition, the court may order the person or company to pay to the Commissioner an amount not exceeding treble the amount of the duty avoided or attempted to be avoided.
Obstructing persons.
A person shall not obstruct or hinder a person in the discharge of his duty under this Act or the regulations.
Penalty: One hundred dollars.
Time for commencing prosecutions.
A prosecution in respect of an offence against paragraph (a) or (c) of sub-section (1.) of section 60, or against section 63, of this Act may be commenced at any time within six years after the commission of the offence.
Penalties not to relieve from duty.
Payment of penalties under this Act does not relieve a person from liability to assessment or payment of any duty or additional duty.
Part VIII.—Prosecutions.
Prosecutions.
In this Part, “prosecution” means a proceeding instituted in the name of the Commissioner or a Collector, in pursuance of the next succeeding section, for the recovery of a pecuniary penalty under this Act or the regulations.
How prosecution instituted.
68.—(1.) A proceeding for the recovery of a pecuniary penalty under this Act or the regulations may be instituted in the name of the Commissioner or a Collector by action in the High Court or in the Supreme Court of a State or Territory of the Commonwealth.
(2.) Where the penalty sought to be recovered does not exceed One thousand dollars or the excess is abandoned, the proceeding may be instituted in the name of the Commissioner or a Collector in a court of summary jurisdiction.
Place when offence committed.
Any of the following offences, namely:—
(a) failure or neglect duly to furnish a return or any information;
(b) making or delivering a return that is false in a material particular, or making a false answer; or
(c) failure to comply with a requirement,
shall be deemed to have been committed either—
(d) at the place where the return or information was furnished, or should, in accordance with this Act, the regulations or a requirement of the Commissioner, have been furnished, or where the answer was made, or where the requirement should have been complied with; or
(e) at the usual or last known place of business or residence of the defendant,
and may be charged as having been committed at either of those places.
Evidence of authority to institute proceedings.
70.—(1.) Where a prosecution has been instituted by an officer in the name of the Commissioner or a Collector, the prosecution shall, unless the contrary is proved, be deemed to have been instituted by the authority of the Commissioner or Collector, as the case may be.
(2.) The production of a telegram purporting to have been sent by the Commissioner or a Collector and purporting to authorize an officer to institute a prosecution is evidence of the authority of the officer to institute the prosecution in the name of the Commissioner or Collector, as the case may be.
Defendant to have right of trial in superior court.
In a prosecution instituted in a court of summary jurisdiction, where the penalty exceeds Two hundred dollars and the excess is not abandoned, the defendant may, within seven days after service of process, elect in the prescribed manner to have the case tried, at the option of the Commissioner, either in the High Court or in the Supreme Court of the
State or Territory of the Commonwealth in which the prosecution has been instituted and, upon the defendant so electing, the prosecution shall stand removed at the option of the Commissioner to the High Court or the Supreme Court of the State or Territory of the Commonwealth in which the prosecution has been instituted and shall be conducted as if it had been originally instituted in the Court to which it is so removed.
Prosecution in accordance with practice rules.
A prosecution in the High Court or the Supreme Court of a State or Territory of the Commonwealth may be commenced, prosecuted and proceeded with in accordance with any rules of practice established by the Court for Crown suits in revenue matters, in accordance with the usual practice and procedure of the Court in civil cases or in accordance with the directions of the Court or a Judge.
Appeals.
In a prosecution in a court of summary jurisdiction in a State or Territory of the Commonwealth, an appeal lies from a conviction or order of dismissal to such court and in such manner as is provided by the law of that State or Territory for appeals from convictions or orders of dismissal.
Information, &c., to be valid if in words of Act or regulations.
All informations, summonses, convictions and warrants suffice if the offence is set forth as nearly as practicable in the words of this Act or the regulations.
No objection for informality.
75.—(1.) An objection shall not be taken or allowed to an information or summons for any alleged defect in the information or summons in substance or in form or for any variance between the information or summons and the evidence adduced at the hearing in support of the information or summons, and the court shall at all times make any amendment that is necessary to determine the real question in dispute or that may appear desirable.
(2.) If any such defect or variance appears to the court to be such that the defendant has been deceived or misled, the court may, upon such terms as it thinks just, adjourn the hearing of the case to a future day.
Conviction not to be quashed.
A conviction, warrant of commitment or other proceeding, matter or thing done or transacted in relation to the execution or carrying out of this Act shall not be held void, quashed or set aside by reason of any defect in, or want of, form, and a party is not entitled to be discharged out of custody on account of that defect or want of form.
Averment of prosecutor sufficient.
77.—(1.) In a prosecution, an averment of the prosecutor or plaintiff contained in the information, complaint, declaration or claim is evidence of the matter averred.
(2.) This section applies to any matter so averred although—
(a) evidence in support or rebuttal of the matter averred or of any other matter is given; or
(b) the matter averred is a mixed question of law and fact,
but, where the matter averred is a mixed question of law and fact, the averment is evidence of the fact only.
(3.) Any evidence given by witnesses in support or rebuttal of a matter so averred shall be considered on its merits, and the credibility and probative value of that evidence shall be neither increased nor diminished by reason of this section.
(4.) This section does not apply to—
(a) an averment of the intent of the defendant; or
(b) proceedings for an offence directly punishable by imprisonment.
(5.) This section does not lessen or affect any onus of proof otherwise falling on the defendant.
Minimum penalties.
A minimum penalty imposed by this Act is not liable to reduction under any power of mitigation that would, but for this section, be possessed by the court.
Treatment of convicted offenders.
79.—(1.) Where a pecuniary penalty is adjudged to be paid by a convicted person, the court shall—
(a) commit the offender to gaol until the penalty is paid;
(b) release the offender upon his giving security for the payment of the penalty; or
(c) exercise for the enforcement and recovery of the penalty any power of distress or execution possessed by the court for the enforcement and recovery of penalties or money adjudged to be paid in any other case.
(2.) Where the court makes an order committing the offender to gaol, the court may, at any time before the offender is imprisoned in pursuance of the order, allow the offender a specified time for payment of the penalty or allow him to pay the penalty by specified instalments and, in that case—
(a) the order committing the offender to gaol shall not be executed unless the offender fails to pay the penalty within that time or fails to pay any instalment at the time when it is payable, as the case may be;
(b) if the offender pays the penalty within that time or pays all the instalments, as the case may be—the order committing the offender to gaol shall be deemed to have been discharged; and
(c) if the offender is imprisoned in pursuance of the order but, before being so imprisoned, has paid part of the penalty—the next succeeding section applies in relation to him as if the amount of the penalty were that part of the penalty remaining unpaid immediately before his being so imprisoned.
Release of offenders.
80.—(1.) The gaoler of a gaol to which a person has been committed for non-payment of a penalty shall discharge that person—
(a) on payment to him of the penalty adjudged;
(b) on a certificate by the Commissioner or a Collector that the penalty has been paid or released; or
(c) if the the penalty adjudged to be paid is not paid or released, according to the following table:—
Amount of Penalty
Period after commencement of imprisonment on the expiration of which defendant is to be discharged
$4 and under.............................
7 days
Over $4 and not more than $10.................
14 days
Over $10 and not more than $40................
1 month
Over $40 and not more than $100...............
2 months
Over $100 and not more than $200..............
3 months
Over $200 and not more than $400..............
6 months
Over $400..............................
1 year
(2.) Where a person is committed to gaol for non-payment of more than one penalty, the imprisonment of that person for the period specified in the last preceding sub-section in respect of the amount of any one of those penalties does not relieve him from liability to imprisonment for the period so specified in respect of the amount of any other of those penalties, and the last-mentioned period of imprisonment commences at the expiration of the first-mentioned period of imprisonment.
Parties may recover costs.
In all prosecutions the court may award costs against any party, and the provisions of this Act relating to the recovery of penalties, except provisions in respect of commitment to gaol, extend to the recovery of any costs adjudged to be paid.
Part IX.—Miscellaneous.
Public officer of company.
82.—(1.) The Commissioner may, by notice served on a company, require the company to appoint, within such period as is specified in the notice, a public officer of the company for the purposes of this Act, and to keep the office of public officer constantly filled.
(2.) An appointment of a public officer shall be deemed not to be duly made until after notice of the appointment in writing, specifying the name of the officer, has been given to the Commissioner.
(3.) If the company fails duly to appoint a public officer when and as often as such an appointment becomes necessary in accordance with a notice under sub-section (1.) of this section, it is guilty of an offence punishable, on conviction, by a fine not exceeding Four dollars for every day during which the failure continues.
(4.) Service of a document at the address for service, or on the public officer, of the company is sufficient service on the company for the purposes
of this Act or the regulations, and, if at any time there is no public officer, then service on any person acting or appearing to act in the business of the company is sufficient.
(5.) The public officer is answerable for the doing of all such things as are required to be done by the company under this Act or the regulations, and, in case of default, is liable to the same penalties.
(6.) Everything done by the public officer that he is required to do in his representative capacity shall be deemed to have been done by the company and the absence or non-appointment of a public officer does not excuse the company from the necessity of complying, or from any penalty for failure to comply, with any of the provisions of this Act or the regulations, but the company is liable to comply with the provisions of this Act or the regulations as if there were no requirement to appoint a public officer.
(7.) A notice given to or requisition made upon the public officer shall be deemed to be given to or made upon the company.
(8.) Any proceedings under this Act taken against the public officer shall be deemed to have been taken against the company, and the company is liable jointly with the public officer for any penalty imposed upon him.
(9.) Notwithstanding anything contained in this section, and without in any way limiting, altering or transferring the liability of the public officer of a company, every notice, process or proceeding that, under this Act or the regulations, may be given to, served on or taken against the company or its public officer may, if the Commissioner thinks fit, be given to, served on or taken against any director, secretary or other officer of the company or any attorney or agent of the company, and that director, secretary, officer, attorney or agent has the same liability in respect of that notice, process or proceeding as the company or public officer would have had if it had been given to, served on or taken against the company or public officer.
Records of receipts, &c.
83.—(1.) For the purposes of this Act, a person shall—
(a) keep sufficient records in the English language of any money received by him in respect of the receipt of which duty is payable under this Act to enable the duty to be readily ascertained; and
(b) subject to the next succeeding sub-section, preserve any such records for a period of three years after the receipt of the money to which the record relates.
Penalty: Two hundred dollars.
(2.) This section does not require the preservation by a person of any records—
(a) in respect of which the Commissioner has notified the person that their preservation is not required; or
(b) of a company which has gone into liquidation and has been dissolved.
Entry on land.
84.—(1.) For the purposes of this Act, an officer authorized by the Commissioner or a Collector to exercise powers under this section—
(a) may, at all reasonable times, enter upon any land;
(b) shall have full and free access at all reasonable times to all books, documents and other papers; and
(c) may, for those purposes, take extracts from, and make copies of, any books, documents or papers.
(2.) An officer who enters upon land in pursuance of this section is not authorized to remain on the land if, on request by the occupier of the land, he does not produce a certificate in writing under the hand of the Commissioner or a Collector certifying that he is an officer authorized to exercise powers under this section.
Appearance by Commissioner, &c.
85.—(1.) In any action, prosecution or other proceeding instituted in any court, other than the High Court or the Supreme Court of a State or Territory of the Commonwealth, by the Commissioner or a Collector, he may appear either by a barrister or solicitor, or by an officer.
(2.) The appearance of such an officer, and his statement that he appears by authority of the Commissioner or a Collector, are sufficient evidence of that authority.
Judicial notice.
For the purposes of this Act, all courts and tribunals and all judges and persons acting judicially or authorized by law to hear, receive and examine evidence shall take judicial notice of the signature of a person who holds or has held the office of Commissioner, Second Commissioner or Collector and of the fact that the person holds or has held that office.
Notices.
A notice that is required by this Act or the regulations to be given to or served on a person by the Commissioner may, without prejudice to any other method of service, be given or served personally or by post addressed to the person at his place of residence or business last known to the Commissioner or at an address that, under the regulations, is his address for service for the purposes of this Act.
Operation of other laws not affected.
It is the intention of this Act not to affect the operation of any law of a State or Territory of the Commonwealth.
Regulations.
89.—(1.) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act, and in particular prescribing penalties not exceeding a fine of One hundred dollars for offences against the regulations.
(2.) Any regulations made within a period of one month after the date on which this Act receives the Royal Assent may be expressed to have taken effect from the date of commencement of this Act or any other date before the date of notification of the regulations in the Gazette.
THE SCHEDULE Section 27.
———
Exemptions
Item Number
Exemption
1
Receipt of money by or on behalf of a charitable institution
2
Receipt of money by or on behalf of a prescribed public authority, not being a receipt of money that, under the regulations, is a receipt to which this item does not apply, to which this item does not apply in relation to that public authority or to which this item does not apply in relation to a class of public authorities in which that public authority is included
3
Receipt of money by or on behalf of an unlicensed club
4
Receipt of money by or on behalf of an organization that is registered, or deemed to be registered, as a hospital benefits organization or a medical benefits organization under the National Health Act 1953–1970, being money paid to the organization as a contribution
5
Receipt of money by or on behalf of a prescribed fund, being a benevolent fund, a benefit fund or a benevolent and benefit fund
6
Receipt of money by or on behalf of any person or authority responsible for the establishment or maintenance of a cemetery or crematorium (not being a cemetery or crematorium carried on, or to be carried on, for the purpose of profit or gain to any person) where the money is received in connexion with the cemetery or crematorium
7
Receipt of money by or on behalf of—
(a) a society registered as a friendly society under any law of a State or a Territory of the Commonwealth; or
(b) an association, society or trade union composed of or representing employees or having as its object the furthering or the protecting of the interests of employees,
being money paid to the society, association or trade union as a membership contribution
8
Receipt of money by or on behalf of a society that is registered as a building society or housing society under a law of a State or Territory of the Commonwealth and the receipt of money paid by such a society to a member of, or depositor with, the society as such
9
Receipt of money by or on behalf of a society or association that is registered under a law of a State or a Territory of the Commonwealth as a credit union, a credit society or a society of credit unions, and the receipt of money by a member of such a society or association from the society or association
10
Receipt of money by or on behalf of a public authority from the Commonwealth or a State, being money paid to the authority in pursuance of an appropriation made by the Parliament of the Commonwealth or State of moneys to be paid to that authority
11
Receipt of money by or on behalf of a board, committee or other body pursuant to a prescribed marketing scheme
12
Receipt of money to be applied for a charitable purpose
13
Receipt of money paid as relief or assistance granted by or on behalf of the Commonwealth or a State
14
Receipt of money paid on application for, subscription to, redemption of, or for the purchase money for or as interest on—
(a) securities issued by the government of the Commonwealth, a State, the United Kingdom or any other prescribed country;
(b) any fixed deposit stock, debentures or credit foncier stock issued by a bank that is specified in the regulations as a State bank; or
(c) securities issued by a public authority other than a public authority specified in the regulations as an authority in relation to which this item does not apply
15
Receipt of money being the payment or repayment of the whole or a part of the amount of the principal of a deposit or loan (not being a deposit or loan in respect of the sale or proposed sale of goods on credit) where the deposit or loan is on call or for a term of twelve months or less
16
Receipt of money by a bank to be credited to a savings account, or current account, of a person in the books of the bank
The Schedule—continued
Item Number
Exemption
17
Receipt of money by a person withdrawn by the person from a bank, being money credited to a savings account, or current account, of the person in the books of the bank
18
Receipt of money by a bank from another bank in the ordinary course of banking business
19
Receipt by a bank of a bill of exchange or promissory note for the purpose of the bill of exchange or promissory note being presented for acceptance or payment
20
Receipt of money by or from a carrier of the money for delivery from or to a bank
21
Receipt of money by or from a bookmaker, a totalizator agency board or similar authority, or a person, body or authority operating a totalizator, being money received as, or as a result of, a bet lawfully made
22
Receipt of money paid solely for accounting or office purposes in the course of the internal administration of the business of any person, being a payment by that person to an employee of the person or by an employee of the person to the person or to any other employee of the person
23
Receipt of money by a member of a stock exchange in respect of the sale of marketable securities by him on his own account or behalf where the marketable securities were purchased by him within two clear days (not including any day on which the stock exchange was closed) immediately before the sale of the marketable securities
24
Receipt of money being the proceeds of the sale of gold bullion by or on behalf of the producer of the bullion
25
Receipt of money by a trustee in bankruptcy in his capacity as such trustee
26
Receipt of money by a partnership from a partner and the receipt of money by a partner from the partnership of which he is a member, where the money is paid by or to the partner in his capacity as a member of the partnership
27
Receipt of money paid to a person as a refund or re-imbursement by the Commonwealth or a State, or by a public authority other than a public authority specified in the regulations as an authority in relation to which this item does not apply
28
Receipt of money—
(a) paid as a refund of a deposit lodged in respect of a tender, contract or proposed contract;
(b) paid as a refund by reason of the return of goods, services not having been performed, the failure of an intended transaction or a payment having been made in error; or
(c) paid as a refund of rates or similar charges paid to a municipal corporation or other local governing body
29
A receipt of money by or on behalf of a person included in a prescribed class of persons, or a receipt of money of a prescribed kind