An entity is not entitled to a credit under this Subdivision for an *amount withheld from a *withholding payment to the extent that the amount must be refunded under Subdivision 18‑B.
Note: See also Subdivision 18‑D (PAYG withholding non‑compliance tax, which can reverse the economic benefit of a credit of a director, or an associate of a director, of a company that does not comply with its obligations under subsection 16‑70(1)).
Entitlement to credits: income tax liability
18‑10 Application of sections 18‑15, 18‑20 and 18‑25
(1) The rules set out in sections 18‑15, 18‑20 and 18‑25 do not apply to an *amount withheld from a *withholding payment that is covered by:
(a) Subdivision 12‑F (Dividend, interest and royalty payments); or
(b) Subdivision 12‑FA (Departing Australia superannuation payments); or
(c) Subdivision 12‑FC (Labour Mobility Programs); or
(d) section 12‑320 (Mining payments); or
(e) Subdivision 12‑H (Distributions of withholding MIT income); or
(f) Division 13 (Alienated personal services payments); or
(g) Subdivision 14‑E (GST payable on taxable supplies of certain real property).
(2) If an entity withholds an amount from a *withholding payment as required by section 12‑317, apply sections 18‑15, 18‑20 and 18‑25 in relation to the payment as if the payment had been made to the likely foreign recipient mentioned in section 12‑317 (instead of to the intermediary mentioned in that section).
(3) If an entity withholds an amount from a *withholding payment as required by section 12‑325 (natural resource payments), apply sections 18‑15, 18‑20 and 18‑25 to the payment as if the entity had withheld only so much of that amount as was withheld in respect of tax.
Note: Section 18‑55 provides a credit for amounts withheld in respect of petroleum resource rent tax.
18‑15 Tax credit for recipient of withholding payments
(1) An entity is entitled to a credit equal to the total of the *amounts withheld from *withholding payments made to the entity during an income year if an assessment has been made of the income tax payable, or an assessment has been made that no income tax is payable, by the entity for the income year.
(2) To the extent that the entitlement to a credit is in respect of an *amount withheld from a *withholding payment to which paragraph 16‑155(2)(aa) applies, the entitlement is treated as arising for the income year preceding the income year in which the withholding payment is made.
18‑20 Tax credit where recipient is a partnership
(1) An entity is entitled to a credit in respect of *amounts withheld from *withholding payments made to a partnership during an income year if:
(a) the entity has an individual interest in the net income or partnership loss of the partnership for that income year that is wholly or partly attributable to those withholding payments; and
(b) the *income tax return of the partnership for the income year has been lodged with the Commissioner; and
(c) an assessment has been made of the income tax payable, or an assessment has been made that no income tax is payable, by the entity for the income year.
(2) The amount of the credit is worked out using the formula:
Start formula Amounts withheld times start fraction Individual interest over Net income/partnership loss end fraction end formula
where:
amounts withheld means the sum of the *amounts withheld from the *withholding payments.
individual interest means so much of the individual interest of the partner as is attributable to the *withholding payments.
net income/partnership loss means so much of the net income or partnership loss for that income year as is attributable to the *withholding payments.
18‑25 Tax credit where recipient is a trust
(1) An entity is entitled under subsection (2), (4), (6) or (8) to a credit in respect of *amounts withheld (the amounts withheld) from *withholding payments made to the trustee of a trust during an income year.
Trust—section 97
(2) A beneficiary of the trust is entitled to a credit if:
(a) an amount is included in the assessable income of the beneficiary under section 97 of the Income Tax Assessment Act 1936 in respect of a share of the net income of the trust; and
(b) the share is wholly or partly attributable to the *withholding payments; and
(c) an assessment has been made of the income tax payable, or an assessment has been made that no income tax is payable, by the beneficiary for the income year.
(3) The amount of the credit is worked out using the formula:
Start formula Amounts withheld times start fraction Share of net income over Net income end fraction end formula
where:
net income means so much of the net income as is attributable to the *withholding payments.
share of net income means so much of that share of the net income as is attributable to the *withholding payments.
Trust—section 98
(4) The trustee of the trust is entitled to a credit if:
(a) under section 98 of the Income Tax Assessment Act 1936 the trustee is liable to be assessed, and to pay income tax, on an amount in respect of a share of the net income of the trust to which a beneficiary is presently entitled; and
(b) the share is wholly or partly attributable to the *withholding payments; and
(c) an assessment has been made of that income tax or an assessment has been made that no income tax is payable.
(5) The amount of the credit is worked out using the formula:
Start formula Amounts withheld times start fraction Share of net income over Net income end fraction end formula
where:
net income means so much of the net income as is attributable to the *withholding payments.
share of net income means so much of that share of the net income as is attributable to the *withholding payments.
Trust—section 99 or 99A
(6) The trustee of the trust is entitled to a credit under this subsection if:
(a) under section 99 or 99A of the Income Tax Assessment Act 1936, the trustee is liable to be assessed, and to pay income tax, on the net income of the trust, or on part of it; and
(b) the net income or that part of it is wholly or partly attributable to the *withholding payments; and
(c) an assessment has been made of that income tax or an assessment has been made that no income tax is payable.
(7) The amount of the credit is worked out using the formula:
Start formula Amounts withheld times start fraction Part of net income over Net income end fraction end formula
where:
net income means so much of the net income as is attributable to the *withholding payments.
part of net income means so much of the net income, or of that part of it, as is attributable to the *withholding payments.
Trust—no net income
(8) If there is no net income of the trust for the income year, the trustee is entitled to a credit equal to the sum of the *amounts withheld from the *withholding payments.
18‑27 Tax credit for alienated personal services payments
An entity is entitled to a credit equal to the total of the amounts paid under Division 13 in respect of amounts included in the entity’s assessable income for an income year under section 86‑15 of the Income Tax Assessment Act 1997 if an assessment has been made of the income tax payable, or an assessment has been made that no income tax is payable, by the entity for the income year.
Entitlement to credits: dividend, interest or royalty, amount attributable to fund payment or labour mobility program
18‑30 Credit: dividend, interest or royalty
(1) An entity is entitled to a credit if:
(a) the entity’s *ordinary income, or *statutory income, includes any of the following:
(i) a *dividend (or a part of it), interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936) or a *royalty;
(ii) an amount that is represented by or reasonably attributable to an *AMIT DIR payment; and
(b) if subparagraph (a)(i) applies—if the entity has borne all or part of an *amount withheld from the dividend, interest or royalty; and
(c) if subparagraph (a)(ii) applies—if the entity has borne all or part of an amount paid under Division 12A in respect of the AMIT DIR payment.
(2) The amount of the credit is that amount or part.
Note: A taxpayer may also be entitled to a credit in relation to payment of interest under, or in relation to the transfer of, a qualifying security. See section 128NBA of the Income Tax Assessment Act 1936.
18‑32 Credit: amount attributable to fund payment
(1) An entity is entitled to a credit if:
(a) the entity’s *ordinary income or *statutory income includes an amount that is represented by or reasonably attributable to a *fund payment; and
(b) the entity has borne all or part of:
(i) an *amount withheld from the payment under Subdivision 12‑H; or
(ii) an amount paid under Division 12A in respect of the fund payment.
(2) The amount of the credit is that amount or part.
(3) Subsection (4) applies if:
(a) all or part of an amount (the fund payment part) is represented by a payment that is a *fund payment; and
(b) under subsection 840‑805(4A) of the Income Tax Assessment Act 1997, a *foreign pension fund is taken, in respect of the fund payment part, to be a beneficiary in its own right, and not a beneficiary in the capacity of the trustee of another trust; and
(c) there is an *amount withheld from the fund payment under Subdivision 12‑H.
(4) For the purposes of paragraph (1)(b):
(a) treat the *foreign pension fund as having borne all or part of the amount withheld; and
(b) treat a beneficiary of the foreign pension fund as not having borne all or part of the amount withheld.
18‑33 Credit: labour mobility programs
(1) An individual is entitled to a credit if:
(a) the individual’s *ordinary income or *statutory income includes salary, wages, commission, bonuses or allowances; and
(b) an amount is withheld from the salary, wages, commission, bonuses or allowances under Subdivision 12‑FC (about labour mobility programs).
(2) The amount of the credit is the *amount withheld.
18‑35 Credit: penalty under section 12‑415, 16‑30, 16‑35 or 16‑40 or related general interest charge
(1) If an entity has paid:
(a) an amount of penalty under section 16‑30 or 16‑40 to the Commissioner for a *withholding payment covered by Subdivision 12‑F or 12‑H; or
(b) an amount of *general interest charge under section 298‑25 for the penalty;
the entity liable to pay the *withholding tax for the withholding payment is entitled to a credit equal to the amount of penalty, or general interest charge, as appropriate.
(1AA) If an entity has paid:
(a) an amount of penalty under section 16‑30 or 16‑35 to the Commissioner for a *withholding payment covered by Subdivision 12‑FC (labour mobility programs); or
(b) an amount of *general interest charge under section 298‑25 for the penalty;
the entity liable to pay the *labour mobility program withholding tax for the withholding payment is entitled to a credit equal to the lesser of:
(c) the amount of the penalty, or general interest charge, as appropriate; and
(d) the amount of labour mobility program withholding tax (and any general interest charge under section 840‑910 of the Income Tax Assessment Act 1997) in relation to the withholding payment, reduced by:
(i) any credits from an application of section 18‑33 in relation to the withholding payment; and
(ii) any credits from a previous application of this subsection in relation to the withholding payment.
(1A) If an entity has paid:
(a) an amount of penalty under section 12‑415 to the Commissioner for a failure to give a notice, or to make details available on a website, as required by section 12‑395; or
(b) an amount of *general interest charge under section 298‑25 for the penalty;
the entity liable to pay the *managed investment trust withholding tax in relation to the amount (the relevant amount) giving rise to the penalty is entitled to a credit equal to the lesser of:
(d) the amount of penalty, or general interest charge, as appropriate; and
(e) the amount of managed investment trust withholding tax (and any general interest charge under section 840‑810 of the Income Tax Assessment Act 1997) in relation to the relevant amount.
Remission
(2) If:
(a) an entity has paid to the Commissioner an amount of penalty mentioned in paragraph (1)(a), (1AA)(a) or (1A)(a); and
(b) the Commissioner remits the whole or a part of the amount of the penalty under section 298‑20;
then:
(c) any credit under subsection (1), (1AA) or (1A) relating to the amount paid to the Commissioner is reduced by the amount that is remitted; and
(d) the Commissioner must pay to the entity an amount equal to the amount that is remitted.
(3) If:
(a) an entity has paid to the Commissioner an amount of *general interest charge mentioned in paragraph (1)(b), (1AA)(b) or (1A)(b); and
(b) the Commissioner remits the whole or a part of the amount of the charge under section 8AAG;
then:
(c) any credit under subsection (1), (1AA) or (1A) relating to the amount is reduced by the amount that is remitted; and
(d) the Commissioner must pay to the entity an amount equal to the amount that is remitted.
18‑40 Credit: liability under Part 4‑25
(1) If an entity has paid to the Commissioner:
(a) an amount of penalty under Subdivision 284‑C in relation to a *scheme to which paragraph 177C(1)(bc) of the Income Tax Assessment Act 1936 applies for a *withholding payment; or
(b) an amount of *general interest charge under section 298‑25 in relation to that amount;
the entity liable to pay the *withholding tax for that withholding payment is entitled to a credit equal to the amount paid by the entity.
Remission
(2) If:
(a) an entity has paid an amount under Subdivision 284‑C in relation to a penalty mentioned in paragraph (1)(a); and
(b) the Commissioner remits the whole or a part of the amount of the penalty under section 298‑20;
then:
(c) any credit under subsection (1) relating to the amount paid by the entity is reduced by the amount that is remitted; and
(d) the Commissioner must pay to the entity an amount equal to the amount that is remitted.
(3) If:
(a) an entity has paid to the Commissioner an amount of *general interest charge mentioned in paragraph (1)(b); and
(b) the Commissioner remits the whole or a part of the amount of the charge under section 8AAG;
then:
(c) any credit under subsection (1) relating to the amount is reduced by the amount that is remitted; and
(d) the Commissioner must pay to the entity an amount equal to the amount that is remitted.
Entitlement to credit: departing Australia superannuation payment
18‑42 Credit—departing Australia superannuation payment
Credit—amount withheld
(1) If there is an *amount withheld from a *withholding payment that is covered by section 12‑305 (departing Australia superannuation payment), the entity liable to pay *withholding tax under section 301‑175 of the Income Tax Assessment Act 1997 on the payment is entitled to a credit of an amount equal to the amount withheld.
Credit—penalty amount
(2) If an entity has paid to the Commissioner a penalty amount under section 16‑30 or 16‑35 in relation to an *amount required to be withheld under section 12‑305 (departing Australia superannuation payment), the entity mentioned in subsection (1) is entitled to a credit equal to the penalty amount.
Remission
(3) If the Commissioner remits the whole or a part of the amount of penalty under section 298‑20 that has been paid to the Commissioner by the entity:
(a) any credit that relates to the amount is reduced by the amount that is remitted; and
(b) the Commissioner must pay to the entity an amount equal to the amount that is remitted.
Entitlement to credit: mining payment
18‑45 Credit—mining payment
Credit—amount withheld
(1) If there is an *amount withheld from a *withholding payment that is covered by section 12‑320 (mining payment):
(a) if paragraph (b) does not apply—the entity liable to pay *mining withholding tax under section 128V of the Income Tax Assessment Act 1936 on the payment is entitled to a credit of an amount equal to the amount withheld; or
(b) if, under subsection 128U(4) of that Act, separate mining payments are taken to have been made to, or applied for the benefit of, 2 or more entities because of that payment—each of those entities is entitled to a credit equal to the amount worked out using the formula:
Start formula The amount withheld times start fraction 1 over Number of those entities end fraction end formula
Credit—penalty amount
(2) If an entity has paid to the Commissioner a penalty amount under section 16‑30 or 16‑35 in relation to an *amount required to be withheld under section 12‑320 (mining payment):
(a) if paragraph (1)(a) applies—the entity mentioned in that paragraph is entitled to a credit equal to the penalty amount; or
(b) if paragraph (1)(b) applies—each of the entities mentioned in that paragraph is entitled to a credit of an amount worked out using the formula:
Start fraction The penalty amount times start fraction 1 over Number of those entities end fraction end formula
Remission
(3) If the Commissioner remits the whole or a part of the amount of penalty under section 298‑20 that has been paid to the Commissioner by the entity:
(a) any credit that relates to the amount is reduced by the amount that is remitted; and
(b) the Commissioner must pay to the entity an amount equal to the amount that is remitted.
Entitlement to credit: Petroleum resource rent tax
18‑55 Credit—Natural resource payments
(1) An entity is entitled to a credit in a year of tax (within the meaning of the Petroleum Resource Rent Tax Assessment Act 1987) if:
(a) one or more *withholding payments covered by section 12‑325 (natural resource payments) from which there are *amounts withheld in respect of *petroleum resource rent tax are made to the entity during the year of tax; and
(b) an assessment has been made of the petroleum resource rent tax payable, or an assessment has been made that no petroleum resource rent tax is payable, by the entity for the year of tax.
(2) The amount of the credit is so much of the total of the *amounts withheld as is withheld in respect of *petroleum resource rent tax.
Entitlement to credit: taxable supply of real property
18‑60 Credit—payment relating to taxable supply of real property
(1) An entity is entitled to a credit if:
(a) the entity is liable for *GST on a *taxable supply to which subsection 14‑250(2) applies; and
(b) another entity made a payment under section 14‑250 in relation to the supply.
(2) The amount of the credit is an amount equal to the amount of the payment.
(3) The credit arises when an assessment has been made of the entity’s *net amount for the *tax period of the entity in which the payment was made.
Subdivision 18‑B—Refund of certain withheld amounts
Table of sections
18‑65 Refund of withheld amounts by the payer to the recipient
18‑70 Refund of withheld amounts by the Commissioner to the recipient
18‑80 Refund by Commissioner of amount withheld from payment in respect of investment
18‑85 Refund by Commissioner of amount withheld from payment in respect of supply of real property
18‑65 Refund of withheld amounts by the payer to the recipient
(1) An entity (the payer) must refund to another entity (the recipient) an amount if:
(a) the payer:
(i) withheld the amount purportedly under Division 12 from a payment made to, or received for, the recipient (whether the amount has been paid to the Commissioner or not); or
(ia) paid the amount to the Commissioner purportedly under Division 13 for an *alienated personal services payment in relation to which an amount is included in the recipient’s assessable income year under section 86‑15 of the Income Tax Assessment Act 1997; or
(ii) paid the amount to the Commissioner purportedly under Division 14 (other than Subdivisions 14‑D and 14‑E) for a *non‑cash benefit provided to, or received for, the recipient; and
(b) either:
(i) the amount was so withheld, or paid to the Commissioner, in error; or
(ii) in the case of an amount withheld from a payment of an amount purported to have been paid by way of *parental leave pay—the amount paid was not lawfully so payable; and
(c) either:
(i) the payer becomes aware of the matter mentioned in paragraph (b); or
(ii) the recipient applies to the payer for the refund;
before the end of the *financial year in which the amount was so withheld or paid to the Commissioner; and
(d) any information requested by the payer under subsection (3) has been given to the payer, or the time for making the request (see subsection (4)) has passed without such a request being made.
(1A) For the purposes of this section, if an entity has paid an amount to the Commissioner purportedly under Subdivision 12A‑C (about deemed payments by AMITs), treat the entity as having withheld the amount purportedly under Division 12.
(2) The amount that must be refunded under subsection (1) is a debt recoverable by the recipient from the payer.
Request for tax file number (or in some cases, ABN)
(3) The payer may request the recipient to give to the payer:
(a) in any case—the recipient’s *tax file number; or
(b) in any case—evidence of the basis on which the recipient is taken to have quoted its tax file number to the payer; or
(c) if the payment or *non‑cash benefit was in respect of a *Part VA investment made by the recipient in the course or furtherance of an *enterprise carried on by it—the recipient’s *ABN;
if:
(d) the payment, *alienated personal services payment or non‑cash benefit was in respect of any of the following provisions:
(i) Subdivision 12‑B (payments for work or services);
(ii) Subdivision 12‑C (Payments for retirement or because of termination of employment);
(iii) Subdivision 12‑D (benefits and compensation payments);
(iv) section 12‑140 or 12‑145 (recipient does not quote tax file number or ABN);
(v) section 12‑175 or 12‑180 (Payment of income of closely held trust where TFN not quoted); and
(e) when the application for the refund is made, or when the payer otherwise becomes aware of the matter mentioned in paragraph (1)(b) of this section, the payer has a record of none of the following:
(i) the recipient’s tax file number;
(ii) the basis on which the recipient is taken to have quoted the tax file number to the payer;
(iii) if paragraph (c) applies—the recipient’s ABN.
When must the request be made
(4) The request must be made within 7 working days (of the payer) after the payer receives the application for the refund or after the payer otherwise becomes aware of the matter mentioned in paragraph (1)(b) (as appropriate).
Recovery of refunded amount
(5) If a payer refunds an amount under subsection (1), the payer may recover from the Commissioner as a debt due to the payer so much of the amount:
(a) which is withheld as mentioned in subparagraph (1)(a)(i) and paid to the Commissioner, or which is paid to the Commissioner as mentioned in subparagraph (1)(a)(ia) or (ii); and
(b) which the payer has not recorded as being offset under subsection (6).
Offsetting a refunded amount
(6) If:
(a) a payer refunds an amount (the refunded amount) under subsection (1); and
(b) the amount withheld as mentioned in subparagraph (1)(a)(i) that the payer has paid to the Commissioner, or the amount paid to the Commissioner as mentioned in subparagraph (1)(a)(ia) or (ii), is equal to all or a part of the refunded amount; and
(c) apart from this subsection, the payer would be required to pay to the Commissioner another amount or amounts under Division 13 or 14 (other than Subdivision 14‑D) or subsection 16‑70(1) (the payment to the Commissioner); and
(d) the payer records in writing that it offsets all or a part of the amount paid to the Commissioner (as mentioned in paragraph (b)) against the payment to the Commissioner;
the payment to the Commissioner is reduced by so much of the amount as the payer so recorded as being offset.
(7) The payer must not record that it offsets any part of an amount that:
(a) the payer has previously recorded under subsection (6); or
(b) the payer has sought to recover from the Commissioner under subsection (5).
18‑70 Refund of withheld amounts by the Commissioner to the recipient
(1) An entity (the recipient) may apply in writing to the Commissioner for the refund of an amount if:
(a) another entity (the payer):
(i) withheld an amount purportedly under Division 12 from a payment made to, or received for, the recipient; or
(ia) paid the amount to the Commissioner purportedly under Division 13 for an *alienated personal services payment in relation to which an amount is included in the recipient’s assessable income year under section 86‑15 of the Income Tax Assessment Act 1997; or
(ii) paid to the Commissioner an amount purportedly under Division 14 for a *non‑cash benefit provided to, or received for, the recipient; or
(iii) paid to the Commissioner an amount purportedly under Subdivision 14‑D for *capital proceeds provided to, or applied on behalf of, the recipient; and
(b) either:
(i) the amount was so withheld, or paid to the Commissioner, in error; or
(ii) in the case of an amount withheld from a payment of an amount purported to have been paid by way of *parental leave pay—the amount paid was not lawfully so payable; and
(c) if subparagraph (a)(i), (ia) or (ii) applies—section 18‑65 does not apply because the payer did not become aware of the matter mentioned in paragraph (b), or the recipient did not apply for a refund, as mentioned in subsection 18‑65(1); and
(d) if subparagraph (a)(i) applies—the payer has already paid the withheld amount to the Commissioner.
(1A) For the purposes of this section, if an entity has paid an amount to the Commissioner purportedly under Subdivision 12A‑C (about deemed payments by AMITs), treat the entity as having withheld the amount purportedly under Division 12.
(2) The Commissioner must refund the amount if the application sets out:
(a) if the recipient has a *tax file number—that tax file number; or
(b) if the recipient does not have a tax file number but was taken to have quoted a tax file number to the payer before the amount was withheld or paid to the Commissioner—the basis on which the recipient was taken to have quoted the tax file number; or
(c) if the payment or *non‑cash benefit was in respect of a *Part VA investment made by the recipient in the course or furtherance of an *enterprise carried on by it—the recipient’s *ABN;
and the Commissioner is satisfied that it would be fair and reasonable to refund the amount, having regard to:
(d) the circumstances that gave rise to the withholding obligation (if any); and
(e) the nature of the matter mentioned in paragraph (1)(b); and
(f) any other matter the Commissioner considers relevant.
Note: A person who is dissatisfied with a decision under this section may object against the decision in the manner set out in Part IVC.
18‑80 Refund by Commissioner of amount withheld from payment in respect of investment
The Commissioner must refund to an entity all or part of an *amount withheld from a *withholding payment covered by section 12‑140 or 12‑145 that was made to that entity if:
(a) the entity applies in writing for the refund; and
(b) the Commissioner is satisfied that the entity was entitled to give *the investment body a declaration under Division 5 of Part VA of the Income Tax Assessment Act 1936 in relation to the *Part VA investment in respect of which the withholding payment was made, but did not do so; and
(c) the Commissioner is also satisfied it is fair and reasonable to make the refund, having regard to the purposes of this Part and any other matters that the Commissioner considers appropriate.
Note: A person who is dissatisfied with a decision under this section may object against the decision in the manner set out in Part IVC.
18‑85 Refund by Commissioner of amount withheld from payment in respect of supply of real property
(1) An entity (the recipient) may apply, in the *approved form, to the Commissioner for the refund of an amount if:
(a) another entity (the payer) has made a payment under section 14‑250, or purportedly under that section, in relation to a supply by the recipient; and
(b) the payment, or part of the payment, was made in error.
(2) The application must be made no later than 14 days before the day on which *GST is payable on the supply.
(3) The amount of the refund that the recipient may apply for is an amount equal to the amount of the payment, or the part of the payment that was made in error, as the case requires.
(4) The Commissioner must refund the amount under subsection (3) if the Commissioner is satisfied that paragraphs (1)(a) and (b) apply and that it would be fair and reasonable to refund the amount, having regard to:
(a) the circumstances that gave rise to the obligation (if any) to make the payment under section 14‑250; and
(b) the nature of the error; and
(c) any other matter the Commissioner considers relevant.
Subdivision 18‑C—Recipient’s obligations
18‑100 Obligation to keep payment summary
(1) An entity that is given a *payment summary and a copy of it in any financial year under this Part must retain the copy for:
(a) 5 years after the end of that financial year; or
(b) a shorter period determined by the Commissioner in writing for the entity; or
(c) a shorter period determined by the Commissioner by legislative instrument for a class of entities that includes the entity.
(1AA) A determination under paragraph (1)(c) may specify different periods for different classes of entities.
(1A) An offence under subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Subdivision 18‑D—Directors etc. of non‑complying companies
Table of sections
Object of Subdivision
18‑120 Object of Subdivision
PAYG withholding non‑compliance tax
18‑125 Directors of non‑complying companies
18‑130 Directors of non‑complying companies—tax reduced in certain circumstances
18‑135 Associates of directors of non‑complying companies
18‑140 Notices
18‑145 When PAYG withholding non‑compliance tax must be paid
18‑150 General interest charge payable on unpaid PAYG withholding non‑compliance tax
18‑155 Validity of decisions and evidence
18‑160 Rights of indemnity and contribution
Credits for later compliance
18‑165 Credits for later compliance—scope
18‑170 Credits for later compliance—Commissioner must give notice in certain circumstances
18‑175 Credits for later compliance—Commissioner may give notice
18‑180 Effect of earlier credits
Other provisions
18‑185 When Commissioner may give notice
18‑190 Review of decisions
Object of Subdivision
18‑120 Object of Subdivision
The object of this Subdivision is to reverse the economic benefit of a credit under section 18‑15 (Tax credit for recipient of withholding payment) of a director, or an *associate of a director, of a company if:
(a) the company does not comply with its obligations under subsection 16‑70(1) (obligation to pay amounts withheld to the Commissioner); and
(b) the credit is attributable to *amounts withheld from *withholding payments made by the company to the director or associate;
until the company complies with its obligations.
PAYG withholding non‑compliance tax
18‑125 Directors of non‑complying companies
Liability to pay PAYG withholding non‑compliance tax
(1) An individual must pay *PAYG withholding non‑compliance tax in relation to a company for an income year of the individual if:
(a) the individual is or has been a director (within the meaning of the Corporations Act 2001) of the company; and
(b) the company was required to pay to the Commissioner under subsection 16‑70(1) in this Schedule amounts:
(i) the company withheld from *withholding payments the company made to any entities during the income year of the individual; and
(ii) to which subsection (2) applies; and
(c) the company did not pay the total of those amounts to the Commissioner on or before the last day (the non‑compliance day) on or before which the company was required to pay any of those amounts to the Commissioner in accordance with subsection 16‑70(1); and
(d) a credit to which the individual is entitled under section 18‑15 is attributable to an extent to *amounts withheld by the company under Division 12 from withholding payments made to the individual during the income year of the individual.
Note: For the purposes of paragraph (1)(d), it does not matter whether the company pays the amounts withheld from the withholding payments made to the individual to the Commissioner under subsection 16‑70(1).
(2) This subsection applies to *amounts withheld that the company was required to pay to the Commissioner on or before a particular day (the payment day) under subsection 16‑70(1), if:
(a) both of the following subparagraphs apply:
(i) the individual was a director (within the meaning of the Corporations Act 2001) of the company on the payment day;
(ii) the company did not pay the total of those amounts to the Commissioner in accordance with subsection 16‑70(1) on or before the payment day; or
(b) all of the following subparagraphs apply:
(i) the individual became a director of the company after the payment day;
(ii) the individual was still a director of the company 30 days after becoming a director;
(iii) the company did not pay the total of those amounts to the Commissioner in accordance with subsection 16‑70(1) on or before the last of those 30 days.
Amount of tax
(3) The amount of the *PAYG withholding non‑compliance tax the individual must pay is the lesser of:
(a) the extent of the credit mentioned in paragraph (1)(d); and
(b) the total amount the company did not pay to the Commissioner as mentioned in paragraph (1)(c).
18‑130 Directors of non‑complying companies—tax reduced in certain circumstances
(1) The amount of the *PAYG withholding non‑compliance tax the individual must pay as mentioned in section 18‑125 is reduced if the Commissioner gives a notice to the individual under this section.
Notice
(2) The Commissioner must give a written notice to the individual on a day (the reduction notice day) (whether before, on or after the day (if any) the Commissioner gives the individual the relevant notice under section 18‑140), if the Commissioner is satisfied that:
(a) because of illness or for some other good reason, it would have been unreasonable to expect the individual to take part, and the individual did not take part, in the management of the company at any time during the period:
(i) starting on a day on or by which the company was required to pay any of the total mentioned in paragraph 18‑125(1)(c) to the Commissioner under subsection 16‑70(1); and
(ii) ending on the reduction notice day; or
(b) the individual took all reasonable steps to ensure that one of the following happened:
(i) the directors (within the meaning of the Corporations Act 2001) of the company caused the company to pay the total of the amounts mentioned in paragraph 18‑125(1)(c) to the Commissioner;
(ii) the directors caused an administrator of the company to be appointed under section 436A, 436B or 436C of the Corporations Act 2001;
(iia) the directors caused a small business restructuring practitioner for the company to be appointed under section 453B of that Act;
(iii) the directors caused the company to begin to be wound up (within the meaning of that Act);
or there were no reasonable steps the individual could have taken to ensure that any of those things happened.
(3) In determining what are reasonable steps for the purposes of paragraph (2)(b), the Commissioner must have regard to:
(a) when, and for how long, the individual was a director and took part in the management of the company; and
(b) all other relevant circumstances.
Amount of reduction
(4) The amount of the reduction is the amount stated in the notice.
(5) In determining the amount to state in the notice, the Commissioner must have regard to:
(a) in a case to which paragraph (2)(a) applies—when, and for how long, the individual could not have been expected to take part, and did not take part, in the management of the company; and
(b) in a case to which paragraph (2)(b) applies—when, and for how long, the individual was a director and took part in the management of the company; and
(c) in either case—what is fair and reasonable in the circumstances.
Effect of reduction
(6) The amount of the *PAYG withholding non‑compliance tax the individual must pay is treated as always having been that amount as reduced under this section.
18‑135 Associates of directors of non‑complying companies
Liability to pay PAYG withholding non‑compliance tax
(1) An individual must pay *PAYG withholding non‑compliance tax in relation to a company for an income year of the individual if:
(a) at a time when another individual (the director) was a director (within the meaning of the Corporations Act 2001) of the company, the first individual was an *associate of the director; and
(b) the company was required to pay to the Commissioner under subsection 16‑70(1) in this Schedule amounts:
(i) the company withheld from *withholding payments the company made to any entities during the income year of the individual; and
(ii) to which subsection (2) of this section applies; and
(c) the company did not pay the total of those amounts to the Commissioner on or before the last day (the non‑compliance day) on or before which the company was required to pay any of those amounts to the Commissioner in accordance with subsection 16‑70(1); and
(d) subsection (3) or (6) of this section applies; and
(e) a credit to which the individual is entitled under section 18‑15 is attributable to an extent to *amounts withheld by the company under Division 12 from withholding payments made to the individual during the income year of the individual.
Note: For the purposes of paragraph (1)(e), it does not matter whether the company pays the amounts withheld from the withholding payments made to the individual to the Commissioner under subsection 16‑70(1).
(2) This subsection applies to *amounts withheld that the company was required to pay to the Commissioner on or before a particular day (the payment day) under subsection 16‑70(1), if:
(a) all of the following subparagraphs apply:
(i) the director was a director (within the meaning of the Corporations Act 2001) of the company on the payment day;
(ii) the individual was an *associate of the director on the payment day;
(iii) the company did not pay the total of those amounts to the Commissioner in accordance with subsection 16‑70(1) on or before the payment day; or
(b) all of the following subparagraphs apply:
(i) the director became a director of the company after the payment day;
(ii) the director was still a director of the company 30 days after becoming a director;
(iii) the individual was an *associate of the director throughout that 30 day period;
(iv) the company did not pay the total of those amounts to the Commissioner in accordance with subsection 16‑70(1) on or before the last of those 30 days.
(3) This subsection applies if the Commissioner is satisfied that:
(a) because of:
(i) the individual’s relationship with the director; or
(ii) a relationship of the individual with the company;
the individual knew, or could reasonably have been expected to know, of the company’s failure to pay the total of the amounts mentioned in paragraph (1)(c) to the Commissioner; and
(b) none of the following subparagraphs applies:
(i) the individual took all reasonable steps to influence the director to cause the company to notify the Commissioner under Subdivision 18‑C of the relevant *amounts withheld;
(ii) the individual took all reasonable steps to influence the director to cause one of the events mentioned in subsection (4) to happen, or there were no reasonable steps the individual could have taken to influence the director to cause any of those events to happen;
(iii) the individual reported the company’s non‑payment to the Commissioner or to another authority with responsibilities relevant to the operation of the company.
Example: Other authorities with responsibilities relevant to the operation of the company could include the Minister, the police, ASIC or the Building and Construction Industry Commissioner.
(4) The following are the events:
(a) the company pays the total of the amounts mentioned in paragraph (1)(c) to the Commissioner;
(b) an administrator of the company is appointed under section 436A, 436B or 436C of the Corporations Act 2001;
(ba) a small business restructuring practitioner for the company is appointed under section 453B of that Act;
(c) the company begins to be wound up (within the meaning of that Act).
(5) In determining what are reasonable steps for the purposes of paragraph (3)(b), have regard to:
(a) when, and for how long, the individual was an *associate of the director; and
(b) when, and for how long, the director was a director and took part in the management of the company; and
(c) all other relevant circumstances.
(6) This subsection applies if:
(a) the individual was an employee of the company; and
(b) the Commissioner is satisfied that the company treated the individual more favourably than it treated other employees of the company.
Amount of tax
(7) The amount of the *PAYG withholding non‑compliance tax the individual must pay is the lesser of:
(a) the extent of the credit mentioned in paragraph (1)(e); and
(b) the total amount the company did not pay to the Commissioner as mentioned in paragraph (1)(c).
18‑140 Notices
Notices
(1) The Commissioner must not commence proceedings to recover:
(a) the *PAYG withholding non‑compliance tax an individual must pay for an income year in relation to a company as mentioned in section 18‑125 or 18‑135; or
(b) any related *general interest charge payable under section 18‑150;
unless, after the non‑compliance day mentioned in section 18‑125 or 18‑135, the Commissioner gives a written notice to the individual under this section.
(2) The Commissioner may only give the notice if the Commissioner is satisfied, on the basis of information available to the Commissioner, that it is fair and reasonable for the individual to pay *PAYG withholding non‑compliance tax in relation to the company for the income year.
(3) The Commissioner must not give the notice on a day if, on that day:
(a) the individual; or
(b) in a case to which section 18‑135 applies—the director mentioned in that section;
is liable to pay to the Commissioner a penalty under Division 269 because the company has not complied with the obligation mentioned in item 1 of the table in subsection 269‑10(1) to pay to the Commissioner an *amount withheld to which paragraph 18‑125(1)(b) or 18‑135(1)(b) applies.
(4) The notice must specify:
(a) the company; and
(b) the income year; and
(c) the amount of the *PAYG withholding non‑compliance tax the individual must pay.
Effect of compliance between non‑compliance day and notice day
(5) Subsections (6) and (7) apply if:
(a) the company’s liability to pay the total of the amounts mentioned in paragraph 18‑125(1)(c) or 18‑135(1)(c) to the Commissioner is discharged to any extent during the period:
(i) starting on the day after the non‑compliance day; and
(ii) ending on the day before the day the Commissioner gives the notice under this section to the individual; and
(b) had all discharges of the company’s liability occurring during that period occurred before the non‑compliance day:
(i) the individual would not have been required to pay the *PAYG withholding non‑compliance tax in relation to the company for the income year; or
(ii) the amount of PAYG withholding non‑compliance tax the individual would have been required to pay would have been less than the actual amount of PAYG withholding non‑compliance tax.
(6) The amount of the *PAYG withholding non‑compliance tax the individual must pay is reduced:
(a) in a case to which subparagraph (5)(b)(i) applies—to nil; or
(b) otherwise—to the amount of PAYG withholding non‑compliance tax the individual would have been required to pay as mentioned in subparagraph (5)(b)(ii).
(7) The amount of the *PAYG withholding non‑compliance tax the individual must pay is treated as always having been that amount as reduced under subsection (6).
18‑145 When PAYG withholding non‑compliance tax must be paid
(1) The *PAYG withholding non‑compliance tax an individual must pay for an income year is due and payable at the earliest time any of the income tax the individual must pay for the *financial year to which the income year relates is due and payable.
Note: Division 5 of the Income Tax Assessment Act 1997 explains how to work out when to pay your income tax.
(2) For the purposes of subsection (1), if the individual is not required to pay income tax for the *financial year:
(a) treat the individual as being required to pay income tax for the financial year; and
(b) if the Commissioner has made an assessment that the income tax the individual is required to pay is nil—treat that assessment as being for an amount greater than nil.
Note: See Part 4‑15 in this Schedule for collection and recovery provisions.
18‑150 General interest charge payable on unpaid PAYG withholding non‑compliance tax
If an amount of *PAYG withholding non‑compliance tax that an individual must pay to the Commissioner remains unpaid after the time by which it is due to be paid, the individual is liable to pay *general interest charge on the unpaid amount of tax for each day in the period that:
(a) started at the beginning of the day by which the unpaid amount of tax was due to be paid; and
(b) finishes at the end of the last day, at the end of which, any of the following remains unpaid:
(i) the unpaid amount of tax;
(ii) general interest charge on any of the unpaid amount of tax.
18‑155 Validity of decisions and evidence
Section 175 of the Income Tax Assessment Act 1936 (validity) applies to a decision of the Commissioner under section 18‑140 in this Schedule in the same way as it applies to an assessment.
18‑160 Rights of indemnity and contribution
(1) This section applies if an individual must pay *PAYG withholding non‑compliance tax as mentioned in section 18‑125 or 18‑135 because a company did not pay an amount to the Commissioner as mentioned in paragraph 18‑125(1)(c) or 18‑135(1)(c).
(2) The individual has the same rights (whether by way of indemnity, subrogation, contribution or otherwise) against the company or anyone else as if:
(a) the individual had made a payment equal to the amount of the *PAYG withholding non‑compliance tax under a guarantee of the liability of the company to pay the amount to the Commissioner; and
(b) under the guarantee:
(i) the individual; and
(ii) every individual to whom subsection (3) applies;
were jointly and severally liable as guarantors (but only, in the case of an individual to whom subparagraph (ii) of this paragraph applies, to the extent to which subsection (3) applies to the individual); and
(c) any credit to which the individual mentioned in subsection (1) is entitled under section 18‑170 or 18‑175 in relation to the amount of PAYG withholding non‑compliance tax were a repayment of the payment mentioned in paragraph (a) of this subsection.
(3) This subsection applies to an individual to the extent that:
(a) the individual was a director (within the meaning of the Corporations Act 2001) of the company on the day (the payment day) on or by which the company was required to pay the amount mentioned in subsection (1) to the Commissioner; or
(b) both of the following subparagraphs apply:
(i) the individual became a director of the company after the payment day;
(ii) the individual was still a director of the company 30 days after becoming a director.
(4) However, subsection (3) does not apply to an individual to the extent that the amount of the *PAYG withholding non‑compliance tax the individual must pay in relation to the company for the income year as mentioned in section 18‑125 is reduced under section 18‑130.
Credits for later compliance
18‑165 Credits for later compliance—scope
Sections 18‑170, 18‑175 and 18‑180 apply if:
(a) an individual must pay *PAYG withholding non‑compliance tax in relation to a company for an income year because the company did not pay to the Commissioner the total of the amounts mentioned in paragraph 18‑125(1)(c) or 18‑135(1)(c); and
(b) the Commissioner gives to the individual a notice under section 18‑140 on a particular day (the tax notice day) in relation to the PAYG withholding non‑compliance tax the individual must pay; and
(c) on or after the tax notice day, the company’s liability to pay the total of the amounts to the Commissioner is discharged to any extent.
18‑170 Credits for later compliance—Commissioner must give notice in certain circumstances
Commissioner must give notice to director or associate in certain circumstances
(1) The Commissioner must give a written notice to the individual on a particular day (the credit notice day) if, had the discharge mentioned in paragraph 18‑165(c) (and all previous discharges of the company’s liability mentioned in that paragraph) occurred before the tax notice day:
(a) the individual would not have been required to pay the *PAYG withholding non‑compliance tax in relation to the company for the income year; or
(b) the amount of PAYG withholding non‑compliance tax the individual would have been required to pay would have been less than the actual amount of PAYG withholding non‑compliance tax.
Note 1: Subsection 18‑180(2) provides that the Commissioner must not give a notice to the individual in certain circumstances.
Note 2: The amount of PAYG withholding non‑compliance tax may be limited by:
(a) the conditions in subsections 18‑125(1) and (2) or 18‑135(1) to (6); or
(b) the limits on the amount of the tax in subsection 18‑125(3) or 18‑135(7).
Note 3: In working out the actual amount of the tax for the purposes of paragraph (1)(b), have regard to other credits to which the individual is entitled under this section or section 18‑175. See subsection 18‑180(1).
Director or associate entitled to credit if Commissioner gives notice
(2) The individual is entitled to a credit if the Commissioner gives a written notice to the individual under subsection (1).
(3) The individual becomes entitled to the credit on the day the Commissioner gives the notice to the individual.
Amount of credit
(4) The amount of the credit is the amount stated in the notice.
(5) In a case to which paragraph (1)(a) applies, the amount stated must be the amount of the *PAYG withholding non‑compliance tax.
(6) In any other case, the amount stated:
(a) must not exceed the amount of the *PAYG withholding non‑compliance tax; and
(b) must not exceed the amount of the discharge mentioned in paragraph 18‑165(c); and
(c) must not be less than the amount by which:
(i) the amount of the PAYG withholding non‑compliance tax; exceeds
(ii) the amount that would have been the amount of the PAYG withholding non‑compliance tax had the discharge mentioned in paragraph 18‑165(c) (and all previous discharges of the company’s liability mentioned in that paragraph) occurred before the tax notice day.
(7) In determining the amount to state in the notice in a case to which paragraph (1)(a) does not apply, the Commissioner must have regard to what is fair and reasonable in the circumstances.
18‑175 Credits for later compliance—Commissioner may give notice
Commissioner may give notice to director or associate
(1) The Commissioner may give a written notice to the individual on a particular day (the credit notice day).
Note: Subsection 18‑180(2) provides that the Commissioner must not give a notice to the individual in certain circumstances.
Director or associate entitled to credit if Commissioner gives notice
(2) The individual is entitled to a credit if the Commissioner gives a written notice to the individual under subsection (1).
(3) The individual becomes entitled to the credit on the day the Commissioner gives the notice to the individual.
Amount of credit
(4) The amount of the credit is the amount stated in the notice.
(5) The amount stated:
(a) must not exceed the amount of the *PAYG withholding non‑compliance tax; and
Note: In working out the amount of the tax for the purposes of paragraph (5)(a), have regard to other credits to which the individual is entitled under section 18‑170 or this section. See subsection 18‑180(1).
(b) must not exceed the amount of the discharge mentioned in paragraph 18‑165(c).
Commissioner’s discretion
(6) In determining:
(a) whether to give a notice under this section; or
(b) the amount to state in the notice;
the Commissioner must have regard to what is fair and reasonable in the circumstances.
18‑180 Effect of earlier credits
(1) A reference in section 18‑170 or 18‑175, or subsection (2) of this section, to the amount of the *PAYG withholding non‑compliance tax is treated as being a reference to:
(a) the amount of the PAYG withholding non‑compliance tax; less
Note: The amount of the PAYG withholding non‑compliance tax may, in a case to which section 18‑125 applies, be affected by reductions under section 18‑130.
(b) the total of any credits to which the individual is entitled in relation to the amount of PAYG withholding non‑compliance tax because of notices given to the individual under section 18‑170 or 18‑175 before the credit notice day.
(2) The Commissioner must not give a written notice to the individual under section 18‑170 or 18‑175 if, on the day before the credit notice day, the amount of the *PAYG withholding non‑compliance tax is nil.
Other provisions
18‑185 When Commissioner may give notice
The Commissioner may give a notice to the individual on a day (the notice day) under section 18‑130, 18‑140, 18‑170 or 18‑175 if:
(a) on the notice day, the Commissioner has not given a notice of assessment to the individual for the income year mentioned in section 18‑125 or 18‑135; or
(b) if the notice would:
(i) in the case of a notice under section 18‑130—result in the individual being liable to pay *PAYG withholding non‑compliance tax or an increased amount of PAYG withholding non‑compliance tax; or
(ii) in the case of a notice under section 18‑140—result in the Commissioner being able to commence proceedings to recover PAYG withholding non‑compliance tax, or an increased amount of PAYG withholding non‑compliance tax, from the individual; or
(iii) in the case of a notice under section 18‑170 or 18‑175—reduce the amount of a credit or disentitle the individual to a credit;
the Commissioner gives the notice no later than 2 years after first giving a notice of assessment to the individual for the income year mentioned in section 18‑125 or 18‑135; or
(c) if the notice would:
(i) in the case of a notice under section 18‑130—result in the individual being liable to pay no PAYG withholding non‑compliance tax, or a reduced amount of PAYG withholding non‑compliance tax; or
(ii) in the case of a notice under section 18‑140—result in the Commissioner no longer being able to commence proceedings to recover PAYG withholding non‑compliance tax, or result in the Commissioner being able to commence proceedings to recover a reduced amount of PAYG withholding non‑compliance tax, from the individual; or
(iii) in the case of a notice under section 18‑170 or 18‑175—increase the amount of a credit or entitle the individual to a credit;
the Commissioner gives the notice no later than 4 years after first giving a notice of assessment to the individual for the income year mentioned in section 18‑125 or 18‑135; or
(d) in any case—the Commissioner gives the notice:
(i) to give effect to a decision on a review or appeal; or
(ii) as a result of an objection made by the individual or pending a review or appeal.
18‑190 Review of decisions
An individual to whom the Commissioner gives a notice under section 18‑140 in relation to an amount of *PAYG withholding non‑compliance tax may object, under Part IVC of this Act, against a decision of the Commissioner under section 18‑130, 18‑140, 18‑170 or 18‑175 in relation to the PAYG withholding non‑compliance tax if the individual is dissatisfied with the decision.
Division 20—Other matters
Table of Subdivisions
20‑B Offences
20‑D Review of decisions
Subdivision 20‑B—Offences
Table of sections
20‑35 Offences
20‑40 Joining of charges
20‑45 Offences that would otherwise be committed by a partnership or unincorporated company
20‑35 Offences
(1) A person must not:
(a) present a document issued by the Commissioner that specifies a person (the specified person); and
(b) falsely pretend to be the specified person with the intention of obtaining under this Part a credit for, or a payment of, an *amount withheld from a *withholding payment.
(2) A person must not attempt to obtain for the person a credit under this Part for an *amount withheld from a *withholding payment if:
(a) the payment is not covered by section 12‑215, 12‑250, 12‑285 or 12‑317, or subsection 12‑390(4), and was made to another person; or
(b) the payment is covered by section 12‑215, 12‑250, 12‑285 or 12‑317, or subsection 12‑390(4), and the person is not the foreign resident in respect of which all or a part of the payment is received as mentioned in that provision.
(3) A person must not, with the intention of obtaining a credit, a payment or any other benefit, present:
(a) a copy of a *payment summary (except one relating to Subdivision 12‑H); or
(b) a document purporting to be a copy of such a payment summary;
which is not a copy duly given to the person.
Penalty: 60 penalty units, or imprisonment for 12 months, or both.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
(4) A person must not, with the intention of obtaining a credit, a payment or any other benefit, present:
(a) a *payment summary relating to Subdivision 12‑H, or a copy of such a payment summary; or
(b) a document purporting to be such a payment summary or a copy of such a payment summary;
which is not a payment summary, or a copy of a payment summary, duly given to the person.
Penalty: 60 penalty units, or imprisonment for 12 months, or both.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
20‑40 Joining of charges
(1) Charges against the same person for a number of offences against this Part may be joined in one complaint, information or summons if those charges:
(a) are founded on the same facts; or
(b) form a series of offences of the same or a similar character; or
(c) are part of a series of offences of the same or similar character.
(2) Particulars of each offence charged must be set out in a separate paragraph if 2 or more of the charges are included in the same complaint, information or summons.
(3) If the charges are joined, the charges must be tried together unless the court:
(a) considers it just that any of the charges should be tried separately; and
(b) makes an order to that effect.
(4) If a person is convicted of 2 or more of the offences:
(a) the court may impose one penalty for both or all of those offences; but
(b) the penalty must not exceed the sum of the maximum penalties that could be imposed in respect of each offence separately.
20‑45 Offences that would otherwise be committed by a partnership or unincorporated company
(1) An offence against this Part that would otherwise be committed by a partnership is taken to have been committed by each partner who:
(a) aided, abetted, counselled or procured the relevant act or omission; or
(b) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly, and whether by any act or omission of the partner).
(2) An offence against this Part that would otherwise be committed by a company that is not incorporated is taken to have been committed by each member of the company’s committee of management who:
(a) aided, abetted, counselled or procured the relevant act or omission; or
(b) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly, and whether by any act or omission of the member).
Subdivision 20‑D—Review of decisions
20‑80 Reviewable decisions
A person who is dissatisfied with any of the following decisions of the Commissioner may object against the decision in the manner set out in Part IVC.
<table cellspacing="0" cellpadding="0" style="margin-left:0.05pt; border-collapse:collapse"><thead><tr><td colspan="2" style="width:336.55pt; border-top:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Reviewable decisions</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Item</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Description</span></p></td></tr></thead><tbody><tr><td style="width:24.7pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1A</span></p></td><td style="width:301.15pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Decision not to grant an exemption under subsection</span><span> </span><span>12</span><span>‑</span><span>319(1) from withholding obligations in relation to sections</span><span> </span><span>12</span><span>‑</span><span>315 and 12</span><span>‑</span><span>317</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Decision not to give a certificate under subsection</span><span> </span><span>12</span><span>‑</span><span>335(1) exempting an entity from notifying the Commissioner about a natural resource payment</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>5</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Decision to revoke a certificate under subsection</span><span> </span><span>12</span><span>‑</span><span>335(3)</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>10</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Decision to vary a certificate under subsection</span><span> </span><span>12</span><span>‑</span><span>335(3)</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>14</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Decision under subsection</span><span> </span><span>14</span><span>‑</span><span>220(1) not to issue a certificate on application under subsection</span><span> </span><span>14</span><span>‑</span><span>220(2)</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>15</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Decision under subsection</span><span> </span><span>14</span><span>‑</span><span>220(1) to issue a certificate</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>16</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Decision under subsection</span><span> </span><span>14</span><span>‑</span><span>235(2) not to vary an amount on application under subsection</span><span> </span><span>14</span><span>‑</span><span>235(3)</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>17</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Decision under subsection</span><span> </span><span>14</span><span>‑</span><span>235(2) to vary an amount</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>25</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Refusal to determine under subsection</span><span> </span><span>16</span><span>‑</span><span>110(1) that a large withholder is a </span><span style="font-size:8pt; vertical-align:3pt">*</span><span>medium withholder or a </span><span style="font-size:8pt; vertical-align:3pt">*</span><span>small withholder for a particular month or particular months</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>30</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Refusal to determine under subsection</span><span> </span><span>16</span><span>‑</span><span>110(1) that a medium withholder is a small withholder for a particular month or particular months</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>35</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Decision to revoke a determination made under subsection</span><span> </span><span>16</span><span>‑</span><span>110(1)</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>40</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Decision to vary a determination made under subsection</span><span> </span><span>16</span><span>‑</span><span>110(1) for a particular month or particular months</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>45</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Determination under subsection</span><span> </span><span>16</span><span>‑</span><span>115(1) that a small withholder is a medium withholder or a large withholder for a particular month or particular months</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>50</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Determination under subsection</span><span> </span><span>16</span><span>‑</span><span>115(1) that a medium withholder is a large withholder</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>55</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Decision not to revoke a determination made under subsection</span><span> </span><span>16</span><span>‑</span><span>115(1)</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>60</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Decision not to vary a determination made under subsection</span><span> </span><span>16</span><span>‑</span><span>115(1) for a particular month or particular months</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>62</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Decision under section</span><span> </span><span>16</span><span>‑</span><span>147 not to register an entity that has applied to be registered</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>63</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Decision under section</span><span> </span><span>16</span><span>‑</span><span>148 to cancel a registration (including making a determination under subsection</span><span> </span><span>16</span><span>‑</span><span>148(5))</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>65</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Decision not to refund an amount under section</span><span> </span><span>18</span><span>‑</span><span>70</span></p></td></tr><tr><td style="width:24.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>70</span></p></td><td style="width:301.15pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>Decision not to refund an amount under section</span><span> </span><span>18</span><span>‑</span><span>80</span></p></td></tr></tbody></table>
Note: Division 298 also provides review rights about remission of administrative penalties.
Division 21—Entitlements relating to insolvent ADIs and general insurers
Table of Subdivisions
Guide to Division 21
21‑A Treatment of some payments by APRA
Guide to Division 21
21‑1 What this Division is about
This Part applies in relation to a payment by APRA under:
(a) Division 2AA of Part II of the Banking Act 1959 applying in relation to an account with an ADI; or
(b) Part VC of the Insurance Act 1973 applying in relation to a general insurance policy issued by a general insurance company;
in a way corresponding to the way this Part would have applied if the payment had been made by the ADI or company in connection with the account or policy.
Subdivision 21‑A—Treatment of some payments by APRA
Table of sections
21‑5 APRA treated like ADI or general insurance company
21‑5 APRA treated like ADI or general insurance company
(1) This section applies if:
(a) an entity’s entitlement under Division 2AA of Part II of the Banking Act 1959 to be paid an amount by *APRA in connection with the entity’s account with an *ADI is met wholly or partly; or
(b) an entity’s entitlement under Part VC of the Insurance Act 1973 to be paid an amount in connection with a *general insurance policy issued by a *general insurance company is met wholly or partly.
Note 1: Division 2AA of Part II of the Banking Act 1959 entitles entities that have certain accounts with certain insolvent ADIs to be paid amounts by APRA worked out by reference to the balance of those accounts.
Note 2: Part VC of the Insurance Act 1973 entitles entities with valid claims against certain insolvent general insurance companies under certain general insurance policies issued by those companies to be paid amounts by APRA.
(2) This Part applies in relation to *APRA and the meeting of the entitlement in a way corresponding to the way in which this Part would have applied in relation to the *ADI or *general insurance company doing, in connection with the account or policy, whatever was done in meeting the entitlement.
Note: Example: APRA (or APRA’s agent or delegate) pays an entity an amount of the entity’s entitlement relating to an account with an ADI. This Part applies in relation to APRA and the payment in a way corresponding to the way in which this Part would have applied in relation to the ADI had the ADI made a payment at that time of that amount under the arrangements for keeping the account.