Termination Payments Tax (Assessment and Collection) Act 1997
RepealedCTH
This Act has been repealed and is no longer in force. It is retained for historical reference.
Jurisdiction
Commonwealth
Act Number
73 of 1997
Collection
act
Plain English Summary
6/10 complexity
The Act imposes a surcharge on certain employment termination (“golden handshake”) payments made between 20 Aug 1996 (after 7:30pm ACT) and 1 Jul 2005 where the recipient’s adjusted taxable income exceeds a threshold. The Commissioner assesses and collects the surcharge; taxpayers must pay or object. Employers must keep and produce records. It raises after‑tax costs for affected recipients and increases administrative and compliance burdens for taxpayers, employers, and the tax office.
This Act establishes a discrete, time‑limited tax surcharge on certain employment termination payments paid to high‑income individuals. It creates a mechanism for the Commissioner of Taxation to calculate adjusted taxable income, determine whether that income exceeds an indexed surcharge threshold, calculate the portion of termination payments subject to the surcharge, make assessments, collect the surcharge and related interest and penalties, and require and inspect records and information to support those processes.
Mechanically, the Act:
Defines the class of payments caught as "termination payments" for this purpose (s 7(2)), restricting the temporal scope to payments made after 7.30 pm (ACT legal time) on 20 August 1996 and before 1 July 2005 (s 7(2)(a)). Certain components are excluded (s 7(2) last proviso).
Imposes the "termination payments surcharge" on those payments where the taxpayer’s adjusted taxable income for the relevant financial year is greater than the surcharge threshold for that year (s 8(1), (2), (4); s 10).
Limits the portion of a termination payment that is liable to surcharge by formulae that differ depending on whether the payment was made at or before 7.30 pm on 22 May 2001, or after that time (s 9(2)-(3)). For payments made after 22 May 2001, the Act excludes any part determined by the Commissioner to exceed the taxpayer’s relevant RBLs (s 8(1A), s 9(3) and definitions in s 9(4)).
Requires the Commissioner to make an assessment for each financial year in which termination payments are made that calculates adjusted taxable income, determines whether a surcharge is payable, calculates the termination payments and the applicable surcharge rate, and specifies the amount (s 11(1)-(2)). Assessed surcharge is payable within one month of assessment (s 11(2)).
Current sections
Direct links to the current provisions in Termination Payments Tax (Assessment and Collection) Act 1997.
35
Part 1
Preliminary
Part 1—Preliminary
1
Short title [see Note 1]
1 Short title [see Note 1]
This Act may be cited as the Termination Payments Tax (Assessment and Collection) Act 1997.
2
Commencement [see Note 1]
2 Commencement [see Note 1]
This Act commences on the day on which it receives the Royal Assent.
3
Act to bind Crown
3 Act to bind Crown
(1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island.
(2) Nothing in this Act permits the Crown to be prosecuted for an offence.
4
Extension to Territories
4 Extension to Territories
This Act extends to Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.
5
Object of Act
5 Object of Act
The object of this Act is to provide for the assessment and collection of the termination payments surcharge. The surcharge is payable on payments of kinds commonly known as golden handshakes that are made to high‑income taxpayers in consequence of the termination of their employment.
6
Outline of Act
6 Outline of Act
The following is a simplified outline of this Act.
• If any termination payments have been or are made to or for a taxpayer after 7.30 pm on 20 August 1996 and before 1 July 2005, the Commissioner will calculate the taxpayer’s adjusted taxable income for the financial year in which the payments were or are made.
• If the amount calculated is greater than the surcharge threshold, the Commissioner will calculate the rate of surcharge and assess the amount of surcharge payable by the taxpayer on the payments. Only part of certain employment‑related termination payments is subject to the surcharge.
• If, after the assessment of surcharge, the taxpayer’s adjusted taxable income is found to be different from the amount that was previously calculated or the termination payments are found to be different from the amount on which the assessment was based, the Commissioner may amend the assessment.
• If liability for surcharge is increased as a result of an amendment of an assessment, the general interest charge is payable on the additional surcharge.
A taxpayer may object against an assessment of surcharge in the way set out in Part IVC of the Taxation Administration Act 1953 for objecting against assessment of income tax.
• A late payment penalty applies if surcharge is not paid on time.
Part 2
Liability to surcharge
Part 2—Liability to surcharge
7
Application
7 Application
Act provides for surcharge on termination payments
(1) This Act provides for the payment of surcharge on certain payments (termination payments) made to or for high‑earning taxpayers (see subsection 8(2)) in consequence of the termination of their employment.
Definition of termination payment
(2) A termination payment is a payment that:
(a) is made after 7.30 pm by legal time in the Australian Capital Territory on 20 August 1996 and before 1 July 2005; and
(b) is the retained amount of an eligible termination payment for the purposes of Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act because of paragraph (a) of the definition of eligible termination payment in subsection 27A(1) of that Act;
but does not include the retained amount of any post‑June 1994 invalidity component or CGT exempt component of such a payment or an eligible termination payment from an employee share acquisition scheme.
8
Termination payments surcharge
8 Termination payments surcharge
Surcharge payable on termination payments
(1) Subject to subsection (1A), termination payments surcharge is payable on any termination payments made to or for a taxpayer.
No surcharge is payable on excessive part of termination payments
(1A) In the case of a termination payment made after 7.30 pm by legal time in the Australian Capital Territory on 22 May 2001, surcharge is not payable on any part of the payment that the Commissioner has determined under section 140R of the Income Tax Assessment Act to be in excess of the RBLs of the taxpayer.
No surcharge is payable unless adjusted taxable income is greater than surcharge threshold
(2) Surcharge is payable only if the taxpayer’s adjusted taxable income for the financial year in which the payments are made is greater than the surcharge threshold for the financial year.
No surcharge is payable by residents of external Territories
(3) Surcharge is not payable on any termination payments made to or for a taxpayer in a financial year if the taxpayer is a Territory resident for the purposes of Division 1A of Part III of the Income Tax Assessment Act as it applies to the year of income that comprises that financial year.
Taxpayer liable for surcharge
(4) The taxpayer is liable to pay the surcharge.
9
Surcharge payable only on part of certain termination payments
9 Surcharge payable only on part of certain termination payments
(1) This section applies if a termination payment has been or is made to or for a taxpayer after 20 August 1996.
(2) In the case of a termination payment made at or before 7.30 pm by legal time in the Australian Capital Territory on 22 May 2001, surcharge is payable only on the part of the termination payment that is worked out using the formula:
(3) In the case of a termination payment made after 7.30 pm by legal time in the Australian Capital Territory on 22 May 2001, surcharge is payable only on the part of the termination payment that is worked out using the formula:
excessive component means the part (if any) of the termination payment that the Commissioner has determined under section 140R of the Income Tax Assessment Act to be in excess of the RBLs of the taxpayer.
post‑20 August 1996 period means the number of days in the period of the taxpayer’s employment for which the termination payment was made that occurred after 20 August 1996.
total period means the number of days in the period of the taxpayer’s employment for which the termination payment was made.
10
Surcharge threshold
10 Surcharge threshold
Surcharge threshold for 1996‑97 financial year
(1) The surcharge threshold for the 1996‑97 financial year is $70,000.
Surcharge threshold for later financial year
(2) The surcharge threshold for a later financial year is the amount calculated using the formula:
previous surcharge threshold means the surcharge threshold for the financial year immediately before the financial year for which the surcharge threshold is being calculated.
indexation factor means the number calculated under subsections (4) and (5) for the financial year for which the surcharge threshold is being calculated.
Rounding off of amount of surcharge threshold
(3) If an amount worked out for the purposes of subsection (2) is an amount of dollars and cents:
(a) if the number of cents is less than 50—the amount is to be rounded down to the nearest whole dollar; or
(b) otherwise—the amount is to be rounded up to the nearest whole dollar.
Indexation factor
(4) The indexation factor for a financial year is the number calculated, to 3 decimal places, using the formula:
index number, for a quarter, means the estimate of full‑time adult average weekly ordinary time earnings for the middle month of the quarter published by the Australian Statistician.
current March year means the period of 12 months ending on 31 March immediately before the financial year for which the surcharge threshold is being calculated.
previous March year means the period of 12 months immediately before the current March year.
Rounding up of indexation factor
(5) If the number calculated under subsection (4) for a financial year would, if it were worked out to 4 decimal places, end with a number greater than 4, the number so calculated is increased by 0.001.
Change in index numbers
(6) If at any time, whether before or after the commencement of this Act, the Australian Statistician has published or publishes an index number for a quarter in substitution for an index number previously published for the quarter, the publication of the later index number is to be disregarded.
Surcharge threshold to be published
(7) The Commissioner must publish before, or as soon as practicable after, the start of the 1997‑98 financial year, and before the start of each later financial year (being a financial year that ends before 1 July 2005), the surcharge threshold for the financial year.
Note: For the purposes of this section, Australian Statistician means the Australian Statistician referred to in subsection 5(2) of the Australian Bureau of Statistics Act 1975.
Part 3
Assessment and collection of surcharge
Part 3—Assessment and collection of surcharge
11
Assessment of liability to pay surcharge
11 Assessment of liability to pay surcharge
Commissioner to assess surcharge
(1) For each financial year (being a financial year that ends before 1 July 2005) in which termination payments are made to or for a taxpayer, the Commissioner must make an assessment that:
(a) calculates the taxpayer’s adjusted taxable income; and
(b) if the adjusted taxable income is greater than the surcharge threshold:
(i) calculates the termination payments; and
(ii) calculates the rate of surcharge that applies to the taxpayer; and
(iii) specifies the amount of the surcharge payable or, if no surcharge is payable, states that a nil amount of surcharge is payable; and
(c) if the adjusted taxable income is equal to or less than the surcharge threshold—states that a nil amount of surcharge is payable.
When surcharge is payable
(2) Surcharge assessed under subsection (1) is payable within one month after the day on which the assessment is made.
Note: For provisions about collection and recovery of termination payments surcharge and other related amounts, see Part 4‑15 in Schedule 1 to the Taxation Administration Act 1953.
Notice of assessment
(3) When an assessment (including an amended assessment) is made, the Commissioner must, subject to subsection (4), give notice of the assessment to the taxpayer.
No notice if nil amount assessed
(4) The Commissioner is not required under subsection (3) to give a notice of an assessment if the assessment states that a nil amount of surcharge is payable.
Particulars in notice of assessment
(5) A notice of assessment must include particulars of the matters contained in the assessment under subsection (1).
How a notice is to be given
(6) A notice of assessment may be given in any manner prescribed by the regulations.
Non‑compliance not to affect validity of assessment
(7) The validity of any assessment is not affected by any non‑compliance with a provision of this Act.
11A
Periods within which assessments may be amended
11A Periods within which assessments may be amended
General provision
(1) The Commissioner may, subject to this section, at any time amend an assessment of surcharge on a termination payment or termination payments made to or for a taxpayer by making such alterations or additions as the Commissioner thinks necessary, even though surcharge has been paid in respect of the assessment. Such an amendment may be made on the Commissioner’s own initiative or at the request of the member.
Period for making further amendment
(2) If:
(a) an assessment has been amended in any particular in a way that effected a reduction in the amount of surcharge payable; and
(b) for the purposes of making the amendment, the Commissioner accepted a statement made by or on behalf of a taxpayer;
the Commissioner may, within 4 years from the date of service of the notice of the amended assessment, further amend the assessment in, or in respect of, that particular in a way that increases the amount of the surcharge payable to the extent that the Commissioner considers necessary.
Period where avoidance of surcharge
(3) Subject to this section, if there has been an avoidance of surcharge, the Commissioner may:
(a) if the Commissioner is of the opinion that the avoidance of surcharge is due to fraud or evasion—at any time; or
(b) in any other case—within 4 years from the date upon which the surcharge became due and payable under the assessment;
amend the assessment by making such alterations or additions as the Commissioner thinks necessary to correct the assessment.
Period where amendment reduces surcharge
(4) An amendment effecting a reduction in the amount of surcharge payable under an assessment is not to be made after the end of 4 years from the date upon which the surcharge became due and payable under the assessment.
Application or request for extension of period
(5) If:
(a) the Commissioner has begun an examination of the affairs of a taxpayer; and
(b) the examination was not completed within the period within which the Commissioner may amend an assessment to which the examination relates under subsection (3) or, if that period has been extended by any previous order or orders of the Federal Court of Australia made under subsection (6), or by any previous consent or consents of the taxpayer given under subsection (7), within that period as so extended;
the Commissioner may, before the end of the period referred to in paragraph (b) of this subsection, apply to the Federal Court for an order extending, or request the taxpayer to consent to the extension of, the period within which the Commissioner may amend the assessment under paragraph (3)(b).
Court may extend period
(6) If, on application made to the Federal Court of Australia in accordance with subsection (5), the Court is satisfied that it was not reasonably practicable, or it was inappropriate, for the Commissioner to complete the examination within the period referred to in paragraph (5)(b) because of any action taken by the taxpayer or any failure of the taxpayer to take action that it would have been reasonable for the taxpayer to take, the Court may make an order extending the period within which the Commissioner may amend the assessment under paragraph (3)(b) for such period as the Court considers appropriate.
Taxpayer may extend period
(7) If a request is made to the taxpayer in accordance with subsection (5), the taxpayer may, by writing, consent to the extension of the period within which the Commissioner may amend the assessment under paragraph (3)(b) for such period as is specified in the instrument of consent.
Meaning of take action
(8) In subsection (6), a reference to action taken by a taxpayer includes a reference to the institution by the taxpayer of a proceeding before a court or tribunal.
Period for further amendment reducing surcharge
(9) If an assessment has, under this section, been amended in any particular, the Commissioner may, within 4 years from the date upon which surcharge became due under the amended assessment, make, in or in respect of that particular, such further amendment of the assessment as, in the Commissioner’s opinion, is necessary to effect such reduction in the amount of surcharge payable under the assessment as is just.
Case when subsection (9) does not apply
(10) Subsection (9) does not authorise the further amendment of an earlier further amendment of an assessment made under subsection (2).
Assessment following application by taxpayer
(11) If:
(a) an application for an amendment of an assessment is made by a taxpayer within 4 years from the date upon which surcharge became due and payable under the assessment; and
(b) the taxpayer has given to the Commissioner within that period all information needed by the Commissioner for the purpose of deciding the application;
the Commissioner may amend the assessment when he or she decides the application even though that period has elapsed.
How application for amendment is to be made
(12) An application for amendment must be made in writing, on a data processing device or by way of electronic transmission and must be signed in accordance with the regulations.
Information to be contained in application
(13) An application for amendment must be given in the prescribed manner and contain the prescribed information.
Certain other powers of amendment not affected
(14) Nothing in this section prevents:
(a) the amendment of an assessment in order to give effect to the decision upon any appeal or review; or
(b) the amendment of an assessment by way of reduction in the amount of surcharge payable pursuant to an objection made against the assessment or pending any appeal or review.
12
Amendment of assessments
12 Amendment of assessments
Application
(1) This section applies if, after the making of an assessment of surcharge on a termination payment or termination payments made to or for a taxpayer in a financial year:
(a) the taxpayer’s adjusted taxable income for the financial year is increased or reduced and the increase or reduction affects the taxpayer’s liability to pay the surcharge; or
(b) the amount of the payment or the sum of the amounts of the payments is greater or less than the amount that was taken to be the amount of the payment or the sum for the purposes of the assessment.
Commissioner may amend assessment
(2) The Commissioner may amend the assessment to take account of any matter referred to in paragraph (1)(a) or (b).
Amendment increasing surcharge
(3) If, as a result of the amendment of the assessment, the amount of surcharge is increased, the amount of the increase is payable within one month after the day on which the assessment is amended.
Amendment reducing surcharge
(4) If, as a result of the amendment of the assessment, the amount of surcharge is reduced:
(a) the amount by which the surcharge is reduced is taken never to have been payable; and
(b) the Commissioner must:
(i) refund the amount of any surcharge overpaid; or
(ii) apply that amount against any liability of the taxpayer to the Commonwealth under this Act, and refund to the taxpayer any part of that amount not so applied.
This section subject to section 11A
(5) This section is subject to section 11A.
13
Payment of general interest charge if liability increased by amended assessment
13 Payment of general interest charge if liability increased by amended assessment
Liability to pay general interest charge
(1) If an amendment of an assessment increasing a taxpayer’s liability to pay surcharge for a financial year is made, the taxpayer is liable to pay the general interest charge on the amount of the increase for each day in the period that:
(a) started at the beginning of 15 June in the financial year; and
(b) finishes at the end of the day before the amended assessment is made.
Note: The general interest charge is worked out under Part IIA of the Taxation Administration Act 1953.
Amendment of nil assessment
(2) If:
(a) the Commissioner has calculated that no surcharge is payable by a taxpayer for a financial year; and
(b) the Commissioner afterwards makes an assessment of surcharge payable by the taxpayer for the financial year;
that assessment is taken to be an amended assessment.
14
Commissioner may use tax file numbers for the purposes of this Act
14 Commissioner may use tax file numbers for the purposes of this Act
The Commissioner may use for the purposes of this Act a tax file number that has been provided for any other purpose.
15
Objections against assessments
15 Objections against assessments
If:
(a) an assessment of surcharge payable by a taxpayer is made; and
(b) the taxpayer is dissatisfied with the assessment;
the taxpayer may object against it in the way set out in Part IVC of the Taxation Administration Act 1953.
Part 4
Recovery of unpaid surcharge, general interest charge or late payment penalty
Part 4—Recovery of unpaid surcharge, general interest charge or late payment penalty
16
Penalty for non‑payment of surcharge
16 Penalty for non‑payment of surcharge
Liability to pay general interest charge
(1) If an amount of surcharge payable by a taxpayer remains unpaid after the time by which it is due to be paid, the taxpayer is liable to pay the general interest charge on the unpaid amount.
Note: The general interest charge is worked out under Part IIA of the Taxation Administration Act 1953.
General interest charge period
(2) The taxpayer is liable to pay the general interest charge for each day in the period that:
(a) started at the beginning of the day by which the surcharge was due to be paid; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) the surcharge;
(ii) general interest charge on any of the surcharge.
Commissioner’s right to sue not affected
(3B) This section does not prevent the Commissioner from suing for the recovery of any unpaid surcharge, general interest charge or late payment penalty at any time after it becomes due and payable.
16A
Additional liability to pay general interest charge
16A Additional liability to pay general interest charge
Commissioner may give notice
(1) If general interest charge (the primary general interest charge) is payable by a person under section 13, the Commissioner may give a notice to the person specifying a date after which general interest charge will apply under this section. The specified date must be at least 30 days after the notice is given.
Liability to general interest charge
(2) If any of the primary general interest charge remains unpaid after the day specified in the notice, the person is liable to pay general interest charge on the unpaid amount.
Note: The general interest charge is worked out under Part IIA of the Taxation Administration Act 1953.
General interest charge period
(3) The person is liable to pay the general interest charge for each day in the period that:
(a) started at the beginning of the day specified in the notice; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) primary general interest charge;
(ii) general interest charge on primary general interest charge.
Part 5
Administration
Part 5—Administration
21
General administration of Act
21 General administration of Act
The Commissioner has the general administration of this Act.
Note: An effect of this provision is that people who acquire information under this Act are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.
22
Annual report
22 Annual report
After the end of each financial year, the Commissioner must give the Treasurer a report on the working of this Act during the year for presentation to the Parliament.
Part 6
Miscellaneous
Part 6—Miscellaneous
24
Authorised officers
24 Authorised officers
The Commissioner may, by writing, authorise a person who is engaged under the Public Service Act 1999 to be an authorised officer for the purposes of a provision or provisions of this Part.
25
Evidence
25 Evidence
Assessment to be evidence of correctness of calculations
(1) The mere production of:
(a) an assessment; or
(b) a document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner purporting to be a copy of an assessment;
is conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment, that the amounts and all of the particulars of the assessment are correct.
Copies of documents
(2) A document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner purporting to be a copy of a document issued or given by the Commissioner, a Second Commissioner or a Deputy Commissioner is prima facie evidence that the second‑mentioned document was so issued or given.
Copy of, or extract from, assessment
(3) A document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner purporting to be a copy of, or an extract from, an assessment is evidence of the matter set out in the document to the same extent as the original assessment would be if it were produced.
Certificates
(4) A certificate signed by the Commissioner, a Second Commissioner or a Deputy Commissioner certifying that an amount stated in the certificate was, on the day of the certificate, payable by a person as an amount of surcharge, general interest charge under section 13 or late payment penalty, is prima facie evidence of the matters stated in the certificate.
26
Access to premises etc.
26 Access to premises etc.
Powers of authorised officer
(1) For the purposes of this Act, an authorised officer:
(a) may, at any reasonable time, enter and remain on any land or premises; and
(b) is entitled to full and free access at any reasonable time to all documents; and
(c) may inspect, examine, make copies of, or take extracts from, any documents.
Proof of authority to be produced
(2) An authorised officer is not entitled to enter or remain on any land or premises if, on being requested by the occupier of the land or premises for proof of authority, the officer does not produce a written authority signed by the Commissioner stating that the officer is authorised to exercise powers under this section.
Occupier to help authorised officer
(3) The occupier of land or premises entered or proposed to be entered by an authorised officer under subsection (1) must, for the purpose of enabling the effective exercise of the officer’s powers under this section, provide the officer with all reasonable facilities and assistance that the occupier is reasonably capable of providing.
Penalty: 30 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
27
Obtaining information and evidence
27 Obtaining information and evidence
Power of Commissioner to obtain information or documents
(1) The Commissioner may, for the purposes of this Act, by written notice, require a person:
(a) to give to the Commissioner, within a reasonable period, and in a reasonable manner, stated in the notice, any information that the Commissioner requires; and
(b) to attend before the Commissioner, or an authorised officer, at a reasonable time and place stated in the notice, and answer questions; and
(c) to produce to the Commissioner, at a reasonable time and place stated in the notice, any documents in the custody or under the control of the person.
Power to require information on oath or affirmation
(2) The Commissioner may require the information or answers to be verified or given on oath or affirmation, and either orally or in writing, and for that purpose the Commissioner or an authorised officer may administer an oath or affirmation.
Nature of oath or affirmation
(3) The oath to be taken or affirmation to be made by a person is an oath or affirmation that the information or answers the person will give will be true.
Expenses of attendance
(4) The regulations are to prescribe scales of expenses to be allowed to persons required to attend under this section.
28
Records to be kept and retained by employer
28 Records to be kept and retained by employer
Employer to keep records
(1) An employer must keep records that record and explain all termination payments made by the employer.
How records to be kept
(2) The records must be kept in writing in the English language or so as to enable the records to be readily accessible and convertible into writing in the English language.
Period for retention of records
(3) An employer who has possession of any records kept or obtained under or for the purposes of this Act must retain them until the end of 5 years after they were prepared or obtained, or the making of the payments to which those records relate, whichever is the later.
When records need not be kept
(4) This section does not require an employer to retain records if:
(a) the Commissioner has notified the employer that the retention of the records is not required; or
(b) the employer is a company that has gone into liquidation and been finally dissolved.
Offences
(5) An employer who contravenes this section is guilty of an offence punishable on conviction by a fine of not more than 60 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: The amount of a penalty unit is stated in section 4AA of the Crimes Act 1914. If a body corporate is convicted of an offence, subsection 4B(3) of that Act allows a court to impose a fine that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.
Note 3: In a prosecution for an offence against subsection (5), the defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
29
Application of the Criminal Code
29 Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
30
Regulations
30 Regulations
The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Part 7
Interpretation
Part 7—Interpretation
31
Definitions
31 Definitions
In this Act, unless the contrary intention applies:
adjusted taxable income of a taxpayer has the same meaning as adjusted taxable income of a member has in the Superannuation Contributions Tax (Assessment and Collection) Act 1997.
assessment means an assessment made under subsection 11(1).
authorised officer means a person engaged under the Public Service Act 1999 who has been authorised in writing by the Commissioner for the purposes of the provision in which the expression occurs.
Commissioner means the Commissioner of Taxation.
Deputy Commissioner means a Deputy Commissioner of Taxation.
general interest charge means the charge worked out under Part IIA of the Taxation Administration Act 1953.
Income Tax Assessment Act means the Income Tax Assessment Act 1936.
late payment penalty means general interest charge payable under section 16 or 16A.
post‑June 1994 invalidity component of an eligible termination payment has the meaning given by subsection 27A(1) of the Income Tax Assessment Act.
retained amount has the meaning given by section 27AC of the Income Tax Assessment Act.
Second Commissioner means a Second Commissioner of Taxation.
surcharge threshold has the meaning given by section 10.
taxpayer means an individual who is a taxpayer for the purposes of the Income Tax Assessment Act but does not include an individual acting as a trustee.
termination payment has the meaning given by subsection 7(2).
termination payments surcharge or surcharge means the tax imposed by the Termination Payments Tax Imposition Act 1997.
the 1996‑97 financial year means the financial year that started on 1 July 1996.
Source text: opening excerpt
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1—Preliminary
1 Short title [see Note 1]
1 Short title [see Note 1]
This Act may be cited as the Termination Payments Tax (Assessment and Collection) Act 1997.
2 Commencement [see Note 1]
2 Commencement [see Note 1]
This Act commences on the day on which it receives the Royal Assent.
3 Act to bind Crown
3 Act to bind Crown
(1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island.
(2) Nothing in this Act permits the Crown to be prosecuted for an offence.
4 Extension to Territories
4 Extension to Territories
This Act extends to Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.
5 Object of Act
5 Object of Act
The object of this Act is to provide for the assessment and collection of the termination payments surcharge. The surcharge is payable on payments of kinds commonly known as golden handshakes that are made to high‑income taxpayers in consequence of the termination of their employment.
6 Outline of Act
6 Outline of Act
The following is a simplified outline of this Act.
• If any termination payments have been or are made to or for a taxpayer after 7.30 pm on 20 August 1996 and before 1 July 2005, the Commissioner will calculate the taxpayer’s adjusted taxable income for the financial year in which the payments were or are made.
• If the amount calculated is greater than the surcharge threshold, the Commissioner will calculate the rate of surcharge and assess the amount of surcharge payable by the taxpayer on the payments. Only part of certain employment‑related termination payments is subject to the surcharge.
• If, after the assessment of surcharge, the taxpayer’s adjusted taxable income is found to be different from the amount that was previously calculated or the termination payments are found to be different from the amount on which the assessment was based, the Commissioner may amend the assessment.
• If liability for surcharge is increased as a result of an amendment of an assessment, the general interest charge is payable on the additional surcharge.
A taxpayer may object against an assessment of surcharge in the way set out in Part IVC of the Taxation Administration Act 1953 for objecting against assessment of income tax.
Provides for amendment of assessments by the Commissioner under specified time limits and circumstances (s 11A, s 12), with general interest charge (GIC) consequences for increases (s 13) and liability to GIC and late payment penalties where surcharge remains unpaid (s 16, s 16A).
Gives the Commissioner powers to use tax file numbers (s 14), to require information, documents and attendance on oath (s 27), to authorise officers to inspect premises and documents (ss 24, 26), and to require employers to keep and retain records of termination payments for five years (s 28).
The Act states its object as providing for assessment and collection of the surcharge, which it describes as payable on "golden handshakes" made to high‑income taxpayers in consequence of employment termination (s 5). The simplified outline in s 6 summarises the Commissioner’s duties, the timing rules, the adjustment and amendment processes, objection rights under Part IVC of the Taxation Administration Act 1953, and the operation of GIC and late payment penalties.
Who pays and who decides are set out in statute: the individual taxpayer (not a trustee) is liable for the surcharge (s 31 definition of taxpayer; s 8(4)), and the Commissioner of Taxation has the general administration and enforcement role (s 21), including assessment (s 11), amendment (s 11A), and information‑gathering powers (s 27).
The Act is expressly limited to payments made in a defined historical window (between late 1996 and before 1 July 2005) and relies on cross‑references to other taxation statutes for substantive definitions (notably the Income Tax Assessment Act 1936, and definitions of retained amount and EXCLUSIONS in ss 7(2), 9(4), 31). Provisions about collection and recovery refer the reader to collection provisions elsewhere, namely Part 4‑15 in Schedule 1 to the Taxation Administration Act 1953 (s 11(2) note).
The Act also sets administrative and evidentiary rules: the production of an assessment is conclusive evidence of due making and correctness for most purposes (s 25(1)); certificates by the Commissioner are prima facie evidence of amounts payable (s 25(4)); and Chapter 2 of the Criminal Code applies to offences under the Act (s 29).
The following sections unpack concepts, duties, compliance steps, interactions with other law, procedural timings and penalties with specific statutory citations to enable practical application.
Main concepts
This Part translates the key definitions and operational concepts the Commissioner uses to apply the surcharge. The Act relies heavily on cross‑references to other taxation statutes; those cross‑references determine the substance of core concepts.
Termination payments: The Act defines "termination payment" in s 7(2). A payment qualifies only if it is made after 7.30 pm ACT time on 20 August 1996 and before 1 July 2005, and is the retained amount of an eligible termination payment for the purposes of Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act (ITAA) because of paragraph (a) of the definition in s 27A(1) of that Act. The Act expressly excludes the retained amount of any post‑June 1994 invalidity component, CGT‑exempt component, or eligible termination payments from an employee share acquisition scheme (s 7(2) last proviso). The statutory meaning of "retained amount" is given by s 27AC of the ITAA; the Act itself relies on that definition via s 31.
Adjusted taxable income: The surcharge applies only if the taxpayer’s adjusted taxable income for the financial year in which the payments are made exceeds the surcharge threshold (s 8(2)). The Act defines "adjusted taxable income" by reference: it has the same meaning as "adjusted taxable income of a member" in the Superannuation Contributions Tax (Assessment and Collection) Act 1997 (s 31). The consequence is that the calculation of the metric that triggers surcharge is determined by the rules in that separate Act.
Surcharge threshold and indexation: The initial threshold for 1996-97 is $70,000 (s 10(1)). For later financial years the Act prescribes an indexation formula (s 10(2)-(5)) based on estimates of full‑time adult ordinary time earnings published by the Australian Statistician for quarterly middle months (s 10(4)). The indexation factor is calculated to three decimal places with a rounding provision that can add 0.001 in certain fourth‑decimal cases (s 10(5)). The Commissioner must publish the surcharge threshold before or as soon as practicable after the start of each relevant financial year (s 10(7)). The Act preserves the use of particular ABS index numbers and directs that substituted index numbers published later should be disregarded (s 10(6)).
Portion of payment subject to surcharge: Section 9 establishes that only part of certain termination payments is subject to the surcharge. For payments made at or before 7.30 pm ACT time on 22 May 2001, s 9(2) prescribes one formula; for payments made after that time, s 9(3) prescribes another formula and s 8(1A) excludes any "excessive component" the Commissioner has determined under s 140R of the ITAA to be in excess of the taxpayer’s RBLs. The Act defines "excessive component", "post‑20 August 1996 period" and "total period" in s 9(4) and ties the calculation to the period of employment that gave rise to the payment.
Liability and scope: Only individuals who are taxpayers (as that term is defined in s 31) are liable; trustees are explicitly excluded from the definition of taxpayer in s 31. Additionally, residents of specified external Territories who qualify as Territory residents under Division 1A of Part III of the ITAA are excluded from surcharge liability for relevant financial years (s 8(3)). The taxpayer is nevertheless liable even where payments were made to or for the taxpayer (s 8(4)).
Assessment, amendment and appeal: The Commissioner must make an annual assessment in each financial year in which termination payments are made that computes adjusted taxable income and, if applicable, calculates the surcharge, the rate and specifies the amount (s 11(1)). Assessments trigger a one‑month payment window (s 11(2)), notice requirements (s 11(3)-(6)), and are subject to amendment by the Commissioner under time limits and in specified circumstances (s 11A). Taxpayers may object under the procedures in Part IVC of the Taxation Administration Act 1953 (s 15).
Enforcement and evidentiary presumptions: The Act gives the Commissioner inspection and compulsion powers (ss 26, 27) and imposes employer record‑keeping obligations (s 28). The Commissioner may use TFNs for purposes of the Act (s 14). The production of an assessment or Commissioner’s certificate is prima facie or conclusive evidence of due making and amounts for specified purposes (s 25).
Penalties and interest: The Act refers repeatedly to the general interest charge worked out under Part IIA of the Taxation Administration Act 1953 (defined in s 31). It prescribes liability to GIC where surcharge is unpaid (s 16), additional GIC on amended liabilities (s 13), and provides for issuance of a notice that triggers further GIC application (s 16A). Record‑keeping offences attract fines (s 28(5)), and Chapter 2 of the Criminal Code applies to offences (s 29). The Act also ties collection processes to existing collection provisions in the Taxation Administration Act (s 11(2) note).
Taken together, the main concepts are statutory measurement of income and payment amounts (mostly via cross‑references), a threshold trigger with indexation, a fractional allocation of termination payments for surcharge purposes, administrative assessment and amendment architecture centred on the Commissioner, and enforcement tools that leverage existing taxation collection and criminal responsibility regimes.
Who it affects
The Act allocates liability and administrative duties across identifiable groups: individual taxpayers who receive termination payments, employers who make such payments or hold records, the Commissioner and authorised officers, and residents of specified territories who are excluded. The statute also affects the administrative burden on third parties who must provide information under compulsion.
Primary taxpayers: The surcharge is payable by "the taxpayer" defined as an individual who is a taxpayer under the Income Tax Assessment Act but not an individual acting as a trustee (s 31). Thus, natural persons receiving retained amounts of eligible termination payments falling within the temporal window are the ones who pay. S 8(4) plainly states the taxpayer is liable to pay the surcharge. The Act does not extend liability to organisations or corporate entities as taxpayers in its defined sense.
Excluded or protected classes: The Act excludes Territory residents in certain circumstances from surcharge liability (s 8(3)). It excludes specified payment components from being treated as termination payments for the surcharge, namely post‑June‑1994 invalidity components, CGT‑exempt components, and those arising under employee share acquisition schemes (s 7(2) last proviso). These carve‑outs reduce the population exposed to the surcharge.
Employers: Employers are affected primarily by record obligations. Section 28(1) requires employers to keep records that record and explain all termination payments made by the employer. Records must be in writing in English or readily convertible to English (s 28(2)). Employers must retain records for five years after preparation or after the related payments, whichever is later (s 28(3)). Failure to retain attracts an offence with a penalty up to 60 penalty units (s 28(5)). Employers are also required to provide reasonable facilities and assistance to authorised officers entering premises under s 26(3); refusal or obstruction can attract penalties (see s 26(3) penalty 30 penalty units).
The Commissioner and authorised officers: The Commissioner has the general administration of the Act (s 21) and is responsible for assessment (s 11), amendment (s 11A), publication of thresholds (s 10(7)), issuance of notices and certificates (s 25), information gathering (s 27), and authorising officers (s 24). Section 26 gives authorised officers power of entry and inspection, subject to production of written authority (s 26(2)). The Commissioner, through authorised officers, can compel attendance and answers on oath and require production of documents (s 27).
Third parties and advisers: People who acquire information under the Act are subject to confidentiality obligations and exceptions in Division 355 of Schedule 1 to the Taxation Administration Act (s 21 note). Those who must produce documents or attend under notice (s 27) are affected by the obligation to comply, and by the prescribed expenses framework for attendance (s 27(4)). Professional advisers who assist taxpayers will be involved in preparing applications for amendment, objections under Part IVC of the Taxation Administration Act 1953 (s 15), and in responding to information notices.
Administratively affected government agencies: The Act relies on the Australian Statistician’s published index numbers for indexation of the surcharge threshold (s 10(4)-(6)). It also cross‑references and depends on other tax statutes for definitions and collection machinery: the Income Tax Assessment Act 1936 (s 31 definition; ss 7(2), 9(4)), the Superannuation Contributions Tax (Assessment and Collection) Act 1997 (for "adjusted taxable income" per s 31), and the Taxation Administration Act 1953 (collection provisions per s 11(2) note and objection and appeal processes per s 15). Consequently, agencies administering those instruments are indirectly implicated.
Temporal scope and affected cohorts: Because the Act applies only to payments made between late August 1996 and before 1 July 2005 (s 7(2)(a)), the cohort affected is limited to historical termination payments in that window. Paragraphs s 9(2)-(3) further distinguish payments by whether they were made before or after 7.30 pm on 22 May 2001 for the purpose of computing the portion subject to surcharge. In practical terms, this means only individuals with termination payments in those timeframes need to consider liability.
In summary, the principal economic incidence falls on individual recipients of specified termination payments, with compliance duties placed on employers and administrative control centralised in the Commissioner and authorised officers. The Act narrows the base through explicit exclusions and temporal limits, while cross‑reference dependence imports measurement and collection machinery from other taxation statutes.
Key duties and rights
The Act sets out clear duties for the Commissioner, taxpayers and employers, and provides taxpayers procedural rights to notice, objection and amendment. It confers powers to compel information and documents, prescribes record‑keeping duties, and outlines evidentiary and administrative rules.
Commissioner duties and discretions
Assessment: The Commissioner must, for each financial year in which termination payments are made (ending before 1 July 2005), make an assessment that calculates the taxpayer’s adjusted taxable income and, if that income exceeds the surcharge threshold, calculates termination payments, the rate of surcharge and specifies the amount payable (s 11(1)). This is a mandatory duty phrased as "must make an assessment".
Publication of threshold: The Commissioner must publish the surcharge threshold before, or as soon as practicable after, the start of each relevant financial year (s 10(7)). This is an administrative duty with a specified timing obligation.
General administration: The Commissioner has general administration of the Act (s 21), which includes the power to use TFNs for purposes of this Act (s 14), authorise officers (s 24), issue certificates and copies that have specified evidentiary force (s 25), require and obtain information and documents (s 27), and arrange for authorised officers to inspect premises (s 26).
Amendment of assessments: The Commissioner has express power to amend assessments at any time subject to time limits and conditions laid out in s 11A and s 12. Those powers permit the Commissioner to increase or reduce assessed surcharge, to reopen certain assessments where the Commissioner accepted statements by or on behalf of the taxpayer (s 11A(2)), and to amend where there has been avoidance of surcharge (s 11A(3)).
Taxpayer duties
Payment of surcharge: The taxpayer must pay assessed surcharge within one month of the assessment being made (s 11(2)). If an amended assessment increases liability, the increased amount is payable within one month of amendment (s 12(3)).
Providing information and attendance: The Commissioner may require a person to provide information, answer questions and produce documents within a reasonable period, at a reasonable time and in a reasonable manner (s 27(1)). The Commissioner may require answers under oath or affirmation (s 27(2)-(3)). Compliance with such notices is a statutory duty.
Objection rights: If dissatisfied with an assessment, the taxpayer has a statutory right to object under Part IVC of the Taxation Administration Act 1953 (s 15). This sets a procedural safeguard and a mechanism for review.
Consent to extension: A taxpayer may consent in writing to extend the time within which the Commissioner may amend an assessment during an examination if asked under s 11A(5)-(7). This is a voluntary right that can affect limitation periods.
Employer duties
Record keeping and retention: Employers must keep and explain records of all termination payments (s 28(1)) in English or so as to be readily convertible to English (s 28(2)). They must retain such records for five years after preparation or the relevant payment (s 28(3)). Applications by the Commissioner to require production of these records are supported by compulsory powers (s 27) and rights of authorised officers to inspect premises and documents (s 26).
Assisting authorised officers: Occupiers must provide reasonable facilities and assistance to authorised officers exercising powers under s 26(1) (s 26(3)). Failure to provide such assistance attracts a penalty of 30 penalty units (s 26(3) penalty).
Evidentiary and procedural rights
Notice of assessment: The Commissioner must give notice of an assessment to the taxpayer, subject to an exception where the assessment states a nil amount of surcharge is payable (s 11(3)-(4)). A notice must include particulars of matters in the assessment (s 11(5)) and may be given in any manner prescribed by regulations (s 11(6)).
Objection and appeal processes are preserved through s 15, which imports Part IVC of the Taxation Administration Act 1953 for the right to object to an assessment.
Certificates and copies signed by the Commissioner carry prima facie or conclusive evidentiary weight (s 25(1)-(4)), which affects the balance of proof in proceedings but does not strip away objection or review avenues.
Interaction with interest and collection regimes
General interest charge: The Act defines liability to GIC for unpaid surcharge (s 16(1)-(2)), for increases following amended assessments (s 13(1)), and for additional GIC if the Commissioner issues a notice under s 16A. The Act explicitly references the Taxation Administration Act 1953 for calculation of GIC (s 13 note; s 16 note; s 16A note).
Recovery machinery: Although not restated in detail, the Act points to collection and recovery provisions in Part 4‑15 of Schedule 1 to the Taxation Administration Act 1953 (s 11(2) note), meaning the Commissioner’s collection powers under that Act apply to the surcharge.
Limits and protections
Nil assessments: The Commissioner is not required to give notice of an assessment stating a nil amount of surcharge is payable (s 11(4)), which reduces administrative burden where no payment is due.
Amendment limitations: Amendments that reduce surcharge cannot be made after four years from the date the surcharge became due and payable (s 11A(4)). Amendments that increase liability are subject to specific time limits except where fraud or evasion is involved (s 11A(3)). Certain procedural protections exist for taxpayers who apply for amendments within four years and provide required information (s 11A(11)).
Criminal and penalty regimes
Offences against the Act are subject to Chapter 2 of the Criminal Code (s 29), and specific record‑keeping offences carry monetary penalties (s 28(5)). The Act also references the Crimes Act 1914 for penalty unit valuation (s 28 note).
In practical terms, the Act imposes a mix of affirmative duties on the Commissioner for assessment and publication, on taxpayers for payment and procedural participation, and on employers for record keeping and access. It also provides taxpayers rights of objection and avenues for amendment, while embedding compliance and enforcement mechanisms standard to Australian tax administration.
Penalties and enforcement
The Act establishes an enforcement framework combining civil debt collection via existing tax collection provisions, application of the general interest charge (GIC), targeted monetary penalties for record‑keeping and interference with authorised officers, evidentiary presumptions that facilitate recovery, and criminal liability under the Criminal Code for offences. The Commissioner is central to enforcement.
General interest charge as default enforcement cost
GIC applies where surcharge remains unpaid past its due date (s 16(1)-(2)). The GIC accrues daily for the period from the start of the day by which the surcharge was due until the end of the last day on which any surcharge or GIC remains unpaid (s 16(2)). Section 13 extends GIC to increases brought about by amended assessments, with the relevant GIC period commencing on 15 June of the financial year and ending at the day before the amended assessment is made (s 13(1)). The Act refers the method of calculation of GIC to Part IIA of the Taxation Administration Act 1953 (s 13 note; s 16 note; s 16A note). Where the Commissioner gives a notice under s 16A specifying a date after which further GIC applies, unpaid primary GIC remaining after that date attracts GIC under s 16A(2)-(3).
Late payment penalty and recovery powers
The Act uses the GIC as the mechanism for late payment penalty (s 31 definition of "late payment penalty" and s 16). It also notes that for collection and recovery of surcharge and related amounts the provisions in Part 4‑15 of Schedule 1 to the Taxation Administration Act 1953 apply (s 11(2) note). Although those collection powers are not reproduced in this Act, the explicit cross‑reference gives the Commissioner access to the usual statutory collection tools (e.g., garnishee, distraint, legal proceedings) as provided in that other statute.
Specific statutory fines and penalties
Record‑keeping: Employers who fail to keep or retain required records under s 28 are guilty of an offence punishable by a fine not exceeding 60 penalty units (s 28(5)). The Act notes the amount of a penalty unit is set in s 4AA of the Crimes Act 1914 (s 28 note).
Access and assistance: An occupier who fails to provide reasonable facilities and assistance to an authorised officer under s 26(3) faces a penalty of 30 penalty units (s 26(3) penalty). The Act ties criminal responsibility principles to Chapter 2 of the Criminal Code (s 29), indicating that offences are subject to general criminal responsibility rules (s 28 note 1).
Evidentiary presumptions facilitating enforcement
Assessments and Commissioner certificates enjoy strong statutory evidentiary status: production of an assessment or a document signed by the Commissioner is conclusive evidence of due making and correctness of amounts except in proceedings under Part IVC of the Taxation Administration Act 1953 on review or appeal (s 25(1)). Copies and extracts purporting to be signed are prima facie evidence (s 25(2)-(3)). A certificate by the Commissioner identifying an amount payable as surcharge or GIC is prima facie evidence of the matters stated and thus supports debt recovery (s 25(4)). These provisions reduce the evidentiary burden for the Commissioner in enforcement proceedings.
Compulsion and inspection powers
The Commissioner may require persons to provide information and documents and to attend to answer questions under oath (s 27(1)-(3)). Authorised officers may enter premises at reasonable times, inspect documents and take copies or extracts (s 26(1)(a)-(c)). An authorised officer must produce a written authority on request (s 26(2)), and occupiers must assist (s 26(3)). Contraventions of these duties attract the specified penalties above. The Commissioner may use TFNs obtained for other purposes (s 14), enabling identification and cross‑matching of taxpayers.
Amendment and reopening of assessments
Section 11A permits the Commissioner to amend assessments at any time in certain circumstances, including where avoidance, fraud or evasion is suspected (s 11A(3)). Where a previously amended assessment reduced surcharge because the Commissioner accepted a statement made by or on behalf of the taxpayer, the Commissioner may, within four years, further amend to increase the surcharge to the extent necessary (s 11A(2)). These provisions extend enforcement reach by allowing reopening of prior adjustments within defined windows, and without time limits in cases of fraud or evasion (s 11A(3)(a)).
Criminal culpability
All offences against this Act are subject to Chapter 2 of the Criminal Code (s 29), which provides the general principles of criminal responsibility. The Act itself specifies particular criminal sanctions for record‑keeping and obstruction as noted above. The Act’s notes clarify the evidential burden in prosecutions for record‑keeping offences where retention exceptions are claimed (s 28 note 3 referencing s 13.3(3) of the Criminal Code).
Limits and procedural checks
While the evidentiary presumptions favour the Commissioner in enforcement, taxpayers retain objection rights under Part IVC of the Taxation Administration Act 1953 (s 15), and amendments that reduce surcharge cannot be made after four years from the date surcharge became due and payable (s 11A(4)). The Commissioner must give notice of amendments (s 11(3)-(6)), though not where the assessment is nil (s 11(4)). The Act provides for court extensions of amendment periods where the Commissioner demonstrates it was not reasonably practicable to complete an examination because of taxpayer conduct (s 11A(5)-(6)) and allows taxpayers to consent in writing to extend periods (s 11A(7)).
In sum, the enforcement architecture combines civil recovery routes and daily interest accrual (GIC) with limited statutory fines for specific compliance breaches, backed by wide compulsion powers and favourable evidentiary presumptions for the Commissioner, while preserving taxpayers’ objection mechanisms and court oversight over extensions of amendment windows.
How it interacts with other laws
This Act is deliberately compact and interdependent with several existing Commonwealth taxation instruments and administrative frameworks. It imports definitions, measurement techniques, collection machinery and evidentiary regimes from other statutes, and relies on external statistical publications for indexation. The statute both references and defers to these other legal instruments rather than reproducing their content.
Cross‑references to Income Tax Assessment Act 1936 (ITAA)
The Act defines "termination payment" by reference to the retained amount of an eligible termination payment for the purposes of Subdivision AA of Division 2 of Part III of the ITAA, specifically because of paragraph (a) of the definition of eligible termination payment in s 27A(1) of that Act (s 7(2)). It also imports the meaning of "retained amount" from s 27AC of the ITAA via the definition in s 31. Section 9(4) expressly references s 140R of the ITAA for the Commissioner’s determination of any "excessive component" in relation to RBLs. These cross‑references mean that the substantive tax characterisation and computation of eligible termination payments and retained amounts are governed by the ITAA’s provisions rather than this Act.
Use of Taxation Administration Act 1953 (TAA) mechanisms
For collection and recovery this Act points to Part 4‑15 of Schedule 1 to the TAA (s 11(2) note), thereby making established collection mechanics applicable, for example distraint, garnishee notices and proceedings. The Act imports the GIC calculation regime by reference to Part IIA of the TAA (s 13 note; s 16 note; s 16A note). Objection and review rights are expressly made available under Part IVC of the TAA (s 15), meaning the tax administration appeal and review procedures, timelines and remedies in the TAA apply to objection processes under this surcharge regime.
Link to Superannuation Contributions Tax (Assessment and Collection) Act 1997
The Act defines "adjusted taxable income" by saying it has the same meaning as "adjusted taxable income of a member" in the Superannuation Contributions Tax (Assessment and Collection) Act 1997 (s 31). Consequently, the computation of the income trigger for surcharge depends on the rules set out in that separate Act, potentially incorporating components such as reportable employer superannuation contributions if that is how "adjusted taxable income" is defined in the external instrument.
Reliance on Australian Bureau of Statistics (ABS) for indexation
Section 10(4)-(6) bases surcharge threshold indexation on the ABS estimate of full‑time adult average weekly ordinary time earnings for the middle month of a quarter. The Act directs that later substituted index numbers published by the Australian Statistician for a quarter should be disregarded (s 10(6)). This introduces an operational dependency on ABS publications and preserves a fixed indexing base despite later revisions.
Criminal Code and Crimes Act links
The Act makes offences under it subject to Chapter 2 of the Criminal Code (s 29), importing criminal responsibility principles, defences and sentencing frameworks. It also relies on the Crimes Act 1914 for the valuation of penalty units (s 28 note).
Evidentiary and administrative interplay
The Act’s evidentiary presumptions for assessments and Commissioner certificates (s 25) operate within the broader evidentiary and procedural rules of the TAA and the federal courts. The Act’s compulsion powers (s 27) sit alongside similar powers in the TAA, and the Commissioner’s authority to authorise officers is aligned with public service engagement under the Public Service Act 1999 (s 24).
Territorial and Crown provisions
The Act binds the Crown in right of the Commonwealth and States and Territories but does not permit prosecution of the Crown (s 3). It extends to external territories (s 4), while s 8(3) exempts Territory residents for the purposes of Division 1A of Part III of the ITAA. These provisions coordinate the application of surcharge across jurisdictions and clarify limits on Crown liability.
Administrative reporting and confidentiality
Section 21 makes the Commissioner responsible for the Act’s administration and notes that information acquired under this Act is subject to confidentiality obligations and exceptions in Division 355 of Schedule 1 to the TAA. This cross‑reference ensures alignment with the broader tax confidentiality regime and disclosure exceptions.
Summary of interaction risks
Because the Act relies on definitions and machinery in other statutes, practical application requires consulting those source instruments. For example, calculating whether a part of a payment is an "excessive component" requires application of s 140R of the ITAA; establishing adjusted taxable income requires reference to the Superannuation Contributions Tax legislation; and collection and GIC amounts are calculated under the TAA. The Act does not restate those rules; it presumes their availability and applicability. Therefore, any application, compliance or dispute under this Act must be navigated in conjunction with those other statutes.
Amendment history
The source text supplied contains no explicit statutory amendment history beyond the Act’s own temporal scope and embedded transitional references. It does, however, incorporate temporal limits and indexing mechanics which are intrinsic to its design; these features functionally reflect the legislative choices about timeframes and prospective indexing rather than an amendment record.
Temporal scope baked into original instrument
The Act is written to apply only to termination payments made after 7.30 pm ACT on 20 August 1996 and before 1 July 2005 (s 7(2)(a)). The delineation of the 1996-97 financial year surcharge threshold (s 10(1)) and requirements to publish thresholds for each financial year that ends before 1 July 2005 (s 10(7)) indicate that the Act was designed as a finite regime covering payments in a specific historical window. The two cutoff times specified (20 August 1996 and 22 May 2001) are used within the Act to differentiate calculation methods for portions of payments subject to surcharge (s 9(2)-(3)).
Indexation and rounding provisions
The Act prescribes indexation of the surcharge threshold from the 1996-97 base ($70,000) using an ABS‑based indexation factor (s 10(2)-(5)). The formula includes rounding rules for dollars and cents (s 10(3)) and a rounding up provision for the indexation factor under specific decimal conditions (s 10(5)). These provisions are baked into the Act’s operational mechanics and would only change via formal amendment.
Procedural amendment powers within the Act
The Act contains its own intra‑statutory amendment architecture for assessments: s 11A provides the Commissioner with power to amend assessments subject to specified temporal limits and reasons, including fraud or evasion exceptions (s 11A(3)). Subsection 11A(6) allows the Federal Court to extend time limits where it was not reasonably practicable for the Commissioner to complete an examination due to taxpayer conduct. Subsection 11A(7) permits the taxpayer to consent to extensions in writing. These provisions effectively allow dynamic modification of assessments without the need to amend the Act itself.
No external amendment log in source
The supplied text does not include a schedule of amendments, amendment dates, or historical notes indicating subsequent Parliament changes. It does not list prior or later Acts that amended it. Consequently, this document cannot assert any legislative amendments, repeals or substitutions beyond the internal rules and timelines contained in the text. Any further amendment history must be sought in official legislative history records or consolidated versions not included here.
Effect of embedded temporal limits on amendment relevance
Because the Act’s substantive operation is confined to payments up to 1 July 2005, later legislative change might have limited operational impact on this instrument except in relation to residual administrative matters (e.g., collection of historic liabilities, ongoing objections and amendments, or prosecutions). The Act’s allowance for the Commissioner to amend assessments and for taxpayers to object or apply for amendment means that practical activity under the Act could continue beyond the 2005 date in respect of historically assessed liabilities, subject to the statutory time limits for amendment (s 11A).
Summary
The text itself records no amendment history or later amendments. What is present are temporal and procedural devices that govern assessments, indexation and amendment, which function as fixed design features unless altered by later parliamentary amendment. Users requiring a formal amendment history (dates of amendments, amending Acts, or repeals) must consult consolidated legislative records outside this source text.
Litigation history
The supplied legislation text contains no reported cases, judicial decisions or litigation history. It does provide statutory pathways for dispute resolution and procedural recourse that would be relevant in any litigation, and it establishes evidentiary and administrative rules that would affect litigation strategy, but it does not name or cite any judicial authority.
Statutory dispute and review routes
Objections: The Act expressly enables taxpayers to object to an assessment in the manner set out in Part IVC of the Taxation Administration Act 1953 (s 15). Those objection processes typically provide internal review and subsequent judicial appeal routes under the TAA, but the Act does not itself restate the appeal pathways or record outcomes.
Amendment procedures and court oversight: Section 11A permits the Commissioner to apply to the Federal Court for an order extending the period within which he or she may amend an assessment where an examination has not been completed in time and where taxpayer action made completion impracticable. The Court may extend that period if satisfied the Commissioner could not reasonably complete the examination due to taxpayer actions or inactions (s 11A(5)-(6)). This provision anticipates litigation or court involvement in temporal disputes about amendment powers, but the text contains no instance of such proceedings.
Evidentiary provisions that shape litigation
Sections 25 and 26 include evidentiary and procedural provisions that materially affect litigation. Production of an assessment is conclusive evidence of due making and correctness of amounts except in proceedings under Part IVC of the TAA on review or appeal (s 25(1)). Certificates signed by the Commissioner are prima facie evidence of amounts payable (s 25(4)). These statutory rules influence both the burden of proof and the nature of judicial proceedings, but no cases illustrating their application are provided in the text.
Criminal prosecutions
The Act makes offences subject to Chapter 2 of the Criminal Code (s 29) and prescribes penalties for record‑keeping contraventions (s 28(5)) and obstruction or failure to assist authorised officers (s 26(3)). The text contains no criminal case citations or prosecutions.
Implication for researchers
Because the supplied Act contains no litigation record, one cannot identify from this text how courts have interpreted key provisions such as the calculation of the portion subject to surcharge (s 9), the Commissioner’s amendment powers (s 11A), or evidentiary presumptions (s 25). Any analysis of judicial treatment of these provisions requires consulting reported judicial decisions, which are not part of the provided source. The statutory framework, however, sets the likely contours of disputes: the meaning and application of cross‑referenced definitions (ITAA provisions, s 27AC retained amount; s 140R excessive component), the calculation of adjusted taxable income (as defined in the Superannuation Contributions Tax Act), the exercise of amendment powers and timing, and the application of evidentiary certificates in recovery actions would be central issues in any litigation but are not resolved in this text.
In short, the Act creates and anticipates litigation pathways but supplies no litigation history or case law within the source provided.
Gotchas
The Act contains several technical traps and operational particulars where errors or misunderstandings are likely to affect liability or compliance. These "gotchas" arise from temporal cut‑offs, cross‑references to other statutes, indexation mechanics, evidentiary presumptions, and procedural timings.
Temporal applicability and two cutoff times
The surcharge applies only to termination payments made after 7.30 pm ACT on 20 August 1996 and before 1 July 2005 (s 7(2)(a)). Additionally, section 9 distinguishes calculation rules depending on whether the payment was made at or before 7.30 pm ACT on 22 May 2001 or after that time (s 9(2)-(3)). Misreading which formula applies to a given payment will produce incorrect surcharge calculations.
Cross‑references determine substance
The Act frequently defers to the Income Tax Assessment Act 1936 and other statutes for substantive definitions such as "retained amount" (s 31; s 7(2)), "excessive component" determined under s 140R of the ITAA (s 8(1A); s 9(4)), and "adjusted taxable income" as defined in the Superannuation Contributions Tax (Assessment and Collection) Act 1997 (s 31). Failure to consult or correctly apply these external definitions will lead to errors in determining the tax base or trigger.
Partial application to a termination payment
Section 9 prescribes formulae for working out only part of a termination payment that is subject to surcharge. The formulas use the "post‑20 August 1996 period" and "total period" measures (s 9(4)). If records of employment periods or the calculation of "post‑20 August 1996 period" are incomplete or incorrect, the resulting taxable fraction may be wrong.
RBL and "excessive component" interactions
For payments after 22 May 2001, any part that the Commissioner has determined under s 140R of the ITAA to be in excess of the taxpayer’s RBLs is not subject to surcharge (s 8(1A); s 9(3) and s 9(4) definition of "excessive component"). Accurate application depends on applying s 140R of the ITAA and the RBL regime; errors here can produce double counting or incorrect exclusion.
Indexation details and rounding
The surcharge threshold for years after 1996-97 is indexed using a formula tied to ABS index numbers and includes rules about rounding dollars and indexation factors (s 10(2)-(5)). Small rounding or indexation miscalculations can move a taxpayer above or below the threshold. Section 10(6) instructs that substituted ABS index numbers for a quarter should be disregarded, which is a nuanced instruction requiring careful reference to ABS publications.
Notice and nil assessment exception
The Commissioner is not required to give notice of an assessment that states a nil amount of surcharge is payable (s 11(4)). Practitioners should not assume a taxpayer always receives a notice; absence of notice does not necessarily mean no assessment exists. The Act also declares validity of an assessment is not affected by non‑compliance with a provision of the Act (s 11(7)), which limits procedural technicalities as grounds to attack an assessment except via the objection mechanisms.
Evidentiary presumptions
Production of an assessment is conclusive evidence of due making and correctness of amounts except in proceedings under Part IVC of the TAA (s 25(1)). This shifts litigation burdens; a taxpayer disputing an assessment should ensure objections under the TAA procedures are used because ordinary proceedings will treat assessments as conclusive.
GIC start dates and amendment consequences
GIC for an amended assessment increasing liability runs from the beginning of 15 June in the financial year to the day before the amended assessment (s 13(1)). That fixed start point may be surprising; amendments that increase liability can generate substantial GIC backdated to mid‑June rather than to the assessment date.
Record retention synchronization
Employers must retain records for five years after they were prepared or obtained, or after the making of the payments to which the records relate, whichever is later (s 28(3)). This creates an obligation tied to either preparation date or payment date; misapplying the "whichever is the later" rule could expose employers to record‑keeping offences. The employer bears an evidential burden if claiming an exception to retention obligations (s 28 note 3).
Territory resident exclusion nuance
S 8(3) exempts a taxpayer who is a Territory resident for Division 1A of Part III of the ITAA for the year of income comprising a relevant financial year. Whether an individual qualifies as a Territory resident under that ITAA provision requires applying the ITAA test; the exemption is not automatic and depends on those other statutory tests.
Amendment time limits and extensions
The Commissioner may amend assessments within specified periods, for example within four years in many circumstances, and at any time where avoidance due to fraud or evasion is present (s 11A(2)-(3)). However, the Commissioner can apply for court extensions (s 11A(5)-(6)) or the taxpayer can consent to an extension (s 11A(7)). Parties must track these deadlines and any consent instruments carefully or risk losing rights or facing reopened assessments.
Obligation to assist authorised officers
Section 26(3) requires occupiers to provide reasonable facilities and assistance to authorised officers. Refusal can attract a 30 penalty unit fine. There may be practical friction or uncertainty over what constitutes "reasonable" assistance; occupiers should be cautious and seek advice before obstructing access.
TFN use
The Commissioner may use tax file numbers provided for any other purpose (s 14). This permits cross‑matching and data linkage but raises practical privacy and identification questions practitioners should be mindful of in advising clients.
Summary
The main practical "gotchas" arise from reliance on external statutory definitions, precise temporal cutoffs and thresholds, complex partial‑payment formulas, indexation and rounding rules, evidentiary presumptions that favour the Commissioner, specific GIC timing rules, and employer record retention obligations. Compliance and dispute strategy should account for these technicalities and ensure the cross‑referenced provisions are correctly applied.
How to comply
Compliance under this Act requires coordinated action by taxpayers, employers and advisers given the Act’s cross‑references, timing rules and procedural requirements. The following practical steps, grounded in the Act, outline minimum compliance measures.
For taxpayers (individual recipients)
Establish whether the payment falls within the Act’s temporal window and definition: confirm the payment was made after 7.30 pm ACT on 20 August 1996 and before 1 July 2005, and constitutes the retained amount of an eligible termination payment under the ITAA (s 7(2); s 31). If components are claimed to be post‑June 1994 invalidity components, CGT‑exempt components, or employee share scheme components, identify the statutory basis for those exclusions because the Act expressly excludes them (s 7(2) last proviso).
Calculate adjusted taxable income as defined in the Superannuation Contributions Tax Act: because the surcharge applies only where adjusted taxable income exceeds the surcharge threshold (s 8(2)), obtain the correct definition and inputs from the Superannuation Contributions Tax (Assessment and Collection) Act 1997 (s 31).
Determine the surcharge threshold for the relevant financial year: use s 10 to apply indexation from the $70,000 base for 1996-97, ensuring ABS index numbers and rounding rules are correctly applied (s 10(2)-(5)). Look for the Commissioner’s published threshold (s 10(7)).
Compute the portion of the termination payment subject to surcharge per s 9: identify whether the payment was made at or before 7.30 pm ACT on 22 May 2001 or after and apply the relevant formula (s 9(2)-(3)). For payments after 22 May 2001, identify any part determined by the Commissioner under s 140R of the ITAA to be in excess of RBLs and exclude that "excessive component" from the surcharge base (s 8(1A); s 9(4)).
Prepare for assessment and timely payment: assessments are made by the Commissioner (s 11(1)), and any surcharge assessed is payable within one month of the day on which the assessment is made (s 11(2)). Ensure systems and cashflow planning accommodate potential short notice payments following assessment.
Use objection and amendment procedures where appropriate: if dissatisfied with an assessment, lodge an objection following Part IVC of the Taxation Administration Act 1953 procedures (s 15). If identifying an error in an assessment or newly discovered information, use the amendment application routes under s 11A(11) or s 12 as applicable, noting the four‑year limitation periods and the Commissioner’s powers to reopen assessments in cases of fraud or evasion (s 11A(2)-(3)).
For employers
Keep complete, contemporaneous records that "record and explain all termination payments" made by the employer (s 28(1)). Ensure records are in writing in English or readily convertible to English (s 28(2)). Retain records for five years after preparaton or after making the payments, whichever is later (s 28(3)). Be mindful that failure to retain attracts a penalty up to 60 penalty units (s 28(5)).
Be ready to produce records and assist authorised officers: authorised officers may enter premises at reasonable times, inspect and copy documents (s 26(1)). Occupiers must provide reasonable facilities and assistance (s 26(3)) and should produce written proof of an authorised officer’s authority when requested (s 26(2)). Training front‑line staff on these procedures and maintaining organised records will reduce risk.
Coordinate with advisers to identify components excluded from surcharge: employers often hold information relevant to determining whether parts of a payment are CGT exempt, invalidity components, or employee share scheme components excluded by s 7(2) last proviso.
For advisers and practitioners
Consult cross‑referenced instruments: computing the surcharge base or determining adjusted taxable income will require referring to the ITAA provisions cited (s 27A(1), s 27AC, s 140R) and the Superannuation Contributions Tax Act for the income definition (s 31). Also consult the Taxation Administration Act 1953 for objection and collection procedures (s 11(2) note; s 15).
Document and preserve evidence supporting calculations: given the strong evidentiary effect of Commissioner assessments and certificates (s 25), maintain documentation that supports positions taken on RBLs, retained amounts, employment periods and components of termination payments, so that objections or amendment requests are properly supported.
Monitor Commissioner publications: the Commissioner must publish surcharge thresholds before the start of each relevant financial year (s 10(7)). Practitioners should monitor the Commissioner’s publications to confirm thresholds and any administrative guidance.
Engage promptly if examined: if the Commissioner commences an examination and requests information, consider consent to any reasonable extension of the amendment period under s 11A(7) only after assessing the strategic trade‑off; the Commissioner can seek court extensions (s 11A(5)-(6)). Provide required information within statutory periods to preserve rights to seek amendment under s 11A(11) where applicable.
Administrative and procedural housekeeping
Ensure TFNs can be used: the Commissioner may use TFNs provided for other purposes (s 14), so ensure clients are aware TFNs may be used for cross‑matching and identification.
Track amendment windows and GIC consequences: understand that GIC on increases from amended assessments runs from 15 June of the relevant financial year until the day before amendment (s 13(1)), and that unpaid surcharge attracts GIC from the day it is due until payment (s 16(2)). Budget for potential interest when contesting assessments.
Prepare for disputes: if lodging an objection under Part IVC of the TAA, follow prescribed procedures carefully, noting that assessments are prima facie or conclusive evidence outside the TAA objection process (s 25(1)). Use the objection mechanism to ensure matters are heard within the statutory review framework (s 15).
Record and information compliance
Employers and taxpayers should adopt firm record retention policies that satisfy s 28, and maintain an audit trail of calculations and communications with the Commissioner. Have processes for responding to notices under s 27; ensure attendance and verification procedures are prepared for answers under oath or affirmation (s 27(2)-(3)).
Summary checklist
Confirm payment falls within the temporal and substantive definitions (s 7(2)).
Calculate adjusted taxable income per the external definition (s 31).
Determine surcharge threshold via s 10 and Commissioner publication (s 10(7)).
Apply s 9 formulae correctly depending on payment date and RBL considerations (s 9(2)-(4); s 8(1A)).
Maintain employer records and retention for five years (s 28).
Respond to Commissioner notices and pay assessed surcharge within one month (s 11(2); s 27).
Use objection and amendment routes (s 11A; s 12; s 15) and be aware of GIC exposure (s 13; s 16; s 16A).
By following these steps and engaging with the cross‑referenced instruments, taxpayers, employers and advisers will align with the Act’s administrative and substantive requirements.
• A late payment penalty applies if surcharge is not paid on time.
Part 2 Liability to surcharge
Part 2—Liability to surcharge
7 Application
7 Application
Act provides for surcharge on termination payments
(1) This Act provides for the payment of surcharge on certain payments (termination payments) made to or for high‑earning taxpayers (see subsection 8(2)) in consequence of the termination of their employment.
Definition of termination payment
(2) A termination payment is a payment that:
(a) is made after 7.30 pm by legal time in the Australian Capital Territory on 20 August 1996 and before 1 July 2005; and
(b) is the retained amount of an eligible termination payment for the purposes of Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act because of paragraph (a) of the definition of eligible termination payment in subsection 27A(1) of that Act;
but does not include the retained amount of any post‑June 1994 invalidity component or CGT exempt component of such a payment or an eligible termination payment from an employee share acquisition scheme.
8 Termination payments surcharge
8 Termination payments surcharge
Surcharge payable on termination payments
(1) Subject to subsection (1A), termination payments surcharge is payable on any termination payments made to or for a taxpayer.
No surcharge is payable on excessive part of termination payments
(1A) In the case of a termination payment made after 7.30 pm by legal time in the Australian Capital Territory on 22 May 2001, surcharge is not payable on any part of the payment that the Commissioner has determined under section 140R of the Income Tax Assessment Act to be in excess of the RBLs of the taxpayer.
No surcharge is payable unless adjusted taxable income is greater than surcharge threshold
(2) Surcharge is payable only if the taxpayer’s adjusted taxable income for the financial year in which the payments are made is greater than the surcharge threshold for the financial year.
No surcharge is payable by residents of external Territories
(3) Surcharge is not payable on any termination payments made to or for a taxpayer in a financial year if the taxpayer is a Territory resident for the purposes of Division 1A of Part III of the Income Tax Assessment Act as it applies to the year of income that comprises that financial year.
Taxpayer liable for surcharge
(4) The taxpayer is liable to pay the surcharge.
9 Surcharge payable only on part of certain termination payments
9 Surcharge payable only on part of certain termination payments
(1) This section applies if a termination payment has been or is made to or for a taxpayer after 20 August 1996.
(2) In the case of a termination payment made at or before 7.30 pm by legal time in the Australian Capital Territory on 22 May 2001, surcharge is payable only on the part of the termination payment that is worked out using the formula:
(3) In the case of a termination payment made after 7.30 pm by legal time in the Australian Capital Territory on 22 May 2001, surcharge is payable only on the part of the termination payment that is worked out using the formula:
(4) For the purposes of this section:
excessive component means the part (if any) of the termination payment that the Commissioner has determined under section 140R of the Income Tax Assessment Act to be in excess of the RBLs of the taxpayer.
post‑20 August 1996 period means the number of days in the period of the taxpayer’s employment for which the termination payment was made that occurred after 20 August 1996.
total period means the number of days in the period of the taxpayer’s employment for which the termination payment was made.
10 Surcharge threshold
10 Surcharge threshold
Surcharge threshold for 1996‑97 financial year
(1) The surcharge threshold for the 1996‑97 financial year is $70,000.
Surcharge threshold for later financial year
(2) The surcharge threshold for a later financial year is the amount calculated using the formula:
where:
previous surcharge threshold means the surcharge threshold for the financial year immediately before the financial year for which the surcharge threshold is being calculated.
indexation factor means the number calculated under subsections (4) and (5) for the financial year for which the surcharge threshold is being calculated.
Rounding off of amount of surcharge threshold
(3) If an amount worked out for the purposes of subsection (2) is an amount of dollars and cents:
(a) if the number of cents is less than 50—the amount is to be rounded down to the nearest whole dollar; or
(b) otherwise—the amount is to be rounded up to the nearest whole dollar.
Indexation factor
(4) The indexation factor for a financial year is the number calculated, to 3 decimal places, using the formula:
where:
index number, for a quarter, means the estimate of full‑time adult average weekly ordinary time earnings for the middle month of the quarter published by the Australian Statistician.
current March year means the period of 12 months ending on 31 March immediately before the financial year for which the surcharge threshold is being calculated.
previous March year means the period of 12 months immediately before the current March year.
Rounding up of indexation factor
(5) If the number calculated under subsection (4) for a financial year would, if it were worked out to 4 decimal places, end with a number greater than 4, the number so calculated is increased by 0.001.
Change in index numbers
(6) If at any time, whether before or after the commencement of this Act, the Australian Statistician has published or publishes an index number for a quarter in substitution for an index number previously published for the quarter, the publication of the later index number is to be disregarded.
Surcharge threshold to be published
(7) The Commissioner must publish before, or as soon as practicable after, the start of the 1997‑98 financial year, and before the start of each later financial year (being a financial year that ends before 1 July 2005), the surcharge threshold for the financial year.
Note: For the purposes of this section, Australian Statistician means the Australian Statistician referred to in subsection 5(2) of the Australian Bureau of Statistics Act 1975.
Part 3 Assessment and collection of surcharge
Part 3—Assessment and collection of surcharge
11 Assessment of liability to pay surcharge
11 Assessment of liability to pay surcharge
Commissioner to assess surcharge
(1) For each financial year (being a financial year that ends before 1 July 2005) in which termination payments are made to or for a taxpayer, the Commissioner must make an assessment that:
(a) calculates the taxpayer’s adjusted taxable income; and
(b) if the adjusted taxable income is greater than the surcharge threshold:
(i) calculates the termination payments; and
(ii) calculates the rate of surcharge that applies to the taxpayer; and
(iii) specifies the amount of the surcharge payable or, if no surcharge is payable, states that a nil amount of surcharge is payable; and
(c) if the adjusted taxable income is equal to or less than the surcharge threshold—states that a nil amount of surcharge is payable.
When surcharge is payable
(2) Surcharge assessed under subsection (1) is payable within one month after the day on which the assessment is made.
Note: For provisions about collection and recovery of termination payments surcharge and other related amounts, see Part 4‑15 in Schedule 1 to the Taxation Administration Act 1953.
Notice of assessment
(3) When an assessment (including an amended assessment) is made, the Commissioner must, subject to subsection (4), give notice of the assessment to the taxpayer.
No notice if nil amount assessed
(4) The Commissioner is not required under subsection (3) to give a notice of an assessment if the assessment states that a nil amount of surcharge is payable.
Particulars in notice of assessment
(5) A notice of assessment must include particulars of the matters contained in the assessment under subsection (1).
How a notice is to be given
(6) A notice of assessment may be given in any manner prescribed by the regulations.
Non‑compliance not to affect validity of assessment
(7) The validity of any assessment is not affected by any non‑compliance with a provision of this Act.
11A Periods within which assessments may be amended
11A Periods within which assessments may be amended
General provision
(1) The Commissioner may, subject to this section, at any time amend an assessment of surcharge on a termination payment or termination payments made to or for a taxpayer by making such alterations or additions as the Commissioner thinks necessary, even though surcharge has been paid in respect of the assessment. Such an amendment may be made on the Commissioner’s own initiative or at the request of the member.
Period for making further amendment
(2) If:
(a) an assessment has been amended in any particular in a way that effected a reduction in the amount of surcharge payable; and
(b) for the purposes of making the amendment, the Commissioner accepted a statement made by or on behalf of a taxpayer;
the Commissioner may, within 4 years from the date of service of the notice of the amended assessment, further amend the assessment in, or in respect of, that particular in a way that increases the amount of the surcharge payable to the extent that the Commissioner considers necessary.
Period where avoidance of surcharge
(3) Subject to this section, if there has been an avoidance of surcharge, the Commissioner may:
(a) if the Commissioner is of the opinion that the avoidance of surcharge is due to fraud or evasion—at any time; or
(b) in any other case—within 4 years from the date upon which the surcharge became due and payable under the assessment;
amend the assessment by making such alterations or additions as the Commissioner thinks necessary to correct the assessment.
Period where amendment reduces surcharge
(4) An amendment effecting a reduction in the amount of surcharge payable under an assessment is not to be made after the end of 4 years from the date upon which the surcharge became due and payable under the assessment.
Application or request for extension of period
(5) If:
(a) the Commissioner has begun an examination of the affairs of a taxpayer; and
(b) the examination was not completed within the period within which the Commissioner may amend an assessment to which the examination relates under subsection (3) or, if that period has been extended by any previous order or orders of the Federal Court of Australia made under subsection (6), or by any previous consent or consents of the taxpayer given under subsection (7), within that period as so extended;
the Commissioner may, before the end of the period referred to in paragraph (b) of this subsection, apply to the Federal Court for an order extending, or request the taxpayer to consent to the extension of, the period within which the Commissioner may amend the assessment under paragraph (3)(b).
Court may extend period
(6) If, on application made to the Federal Court of Australia in accordance with subsection (5), the Court is satisfied that it was not reasonably practicable, or it was inappropriate, for the Commissioner to complete the examination within the period referred to in paragraph (5)(b) because of any action taken by the taxpayer or any failure of the taxpayer to take action that it would have been reasonable for the taxpayer to take, the Court may make an order extending the period within which the Commissioner may amend the assessment under paragraph (3)(b) for such period as the Court considers appropriate.
Taxpayer may extend period
(7) If a request is made to the taxpayer in accordance with subsection (5), the taxpayer may, by writing, consent to the extension of the period within which the Commissioner may amend the assessment under paragraph (3)(b) for such period as is specified in the instrument of consent.
Meaning of take action
(8) In subsection (6), a reference to action taken by a taxpayer includes a reference to the institution by the taxpayer of a proceeding before a court or tribunal.
Period for further amendment reducing surcharge
(9) If an assessment has, under this section, been amended in any particular, the Commissioner may, within 4 years from the date upon which surcharge became due under the amended assessment, make, in or in respect of that particular, such further amendment of the assessment as, in the Commissioner’s opinion, is necessary to effect such reduction in the amount of surcharge payable under the assessment as is just.
Case when subsection (9) does not apply
(10) Subsection (9) does not authorise the further amendment of an earlier further amendment of an assessment made under subsection (2).
Assessment following application by taxpayer
(11) If:
(a) an application for an amendment of an assessment is made by a taxpayer within 4 years from the date upon which surcharge became due and payable under the assessment; and
(b) the taxpayer has given to the Commissioner within that period all information needed by the Commissioner f
This is an opening excerpt, not the complete document.