Part 8COLLECTION AND RECOVERY OF CHARGE

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PART 8—COLLECTION AND RECOVERY OF CHARGE When training guarantee charge becomes due and payable 71. Training guarantee charge for a year becomes due and payable: (a) if the employer lodges a training guarantee statement on or before 30 September in the following year—on that day; or (b) if the employer lodges a training guarantee statement after that day—on the day on which the statement is lodged. When additional training guarantee charge becomes due and payable 72. Additional training guarantee charge under Part 9 becomes due and payable on the day specified for the purpose in the notice of assessment of the additional charge. Employer leaving Australia 73. (1) If the Commissioner believes that an employer liable to pay training guarantee charge may leave Australia before the day on which the training guarantee charge would, but for this section, be due and payable, the training guarantee charge is due and payable on such day as the Commissioner notifies to that employer. “training guarantee charge” includes additional training guarantee charge under Part 9. Extension of time and payment by instalments 74. (1) The Commissioner may, in such circumstances as the Commissioner thinks fit, extend the time for payment of an amount of training guarantee charge for such period as the Commissioner determines, and, if the Commissioner does so, the training guarantee charge is due and payable accordingly. (2) The Commissioner may, in such circumstances as the Commissioner thinks fit, permit the payment of an amount of training guarantee charge to be made by instalment in such amounts and at such times as the Commissioner determines, and, subject to subsection (3), each instalment is due and payable at the time determined in relation to that instalment. (3) If: (a) the Commissioner permits the payment of an amount of training guarantee charge to be made by instalments; and (b) an instalment is not paid on or before the time due for payment of the instalment; the whole of the amount outstanding becomes due and payable at that time. (4) In this section: “training guarantee charge” includes additional training guarantee charge payable under section 75 or Part 9. Penalty for unpaid training guarantee charge 75. (1) Subject to this section, if any training guarantee charge remains unpaid after the time when it became due and payable, or would, but for section 74, have become due and payable, additional training guarantee charge is due and payable, by way of penalty, by the employer liable to pay the training guarantee charge at the rate of 20% per annum on the amount unpaid, calculated from that time or where, under section 74, the Commissioner has granted an extension of time for payment of the training guarantee charge or has permitted payment of the training guarantee charge to be made by instalments, from the day the Commissioner determines, not being a day before the day on which the training guarantee charge was originally due and payable. (2) If: (a) the Commissioner amends an assessment (in this subsection called the “former assessment”) in relation to an employer and to a year; and (b) the training guarantee charge payable under the amended assessment exceeds the training guarantee charge payable under the former assessment; and (c) the whole or a part (which whole or part is in this subsection called the “non-penalised amount”) of the excess referred to in paragraph (b) relates to a matter in relation to which the employer is not liable (otherwise than because of subsection 8ze (1) of the Taxation Administration Act 1953 or subsection 87 (3) of this Act) to pay additional training guarantee charge under Part 9 (except section 84) of this Act; the additional training guarantee charge under subsection (1), so far as it: " (d) would relate to so much of the unpaid amount referred to in subsection (1) as is attributable to the non-penalised amount; and (e) would be calculated in relation to the period: (i) commencing on: (a) the day on which training guarantee charge would, but tor section 74, have become due and payable by the employer in relation to the year; or (b) the original assessment date; whichever is the later; and (ii) ending on the 30th day after the day on which the amended assessment was made; is to be calculated as if the reference in subsection (1) to 20% per annum were a reference to the rate of interest that is applicable under regulations made for the purposes of paragraph 10 (1) (b) of the Taxation (Interest on Overpayments) Act 1983. (3) Until regulations are made for the purposes of paragraph 10 (1) (b) of the Taxation (Interest on Overpayments) Act 1983, the rate of interest applicable for the purposes of subsection (2) is 14.026% per annum. (4) If additional training guarantee charge is due and payable by an employer under this section in relation to an amount of training guarantee charge and: (a) the Commissioner is satisfied that: (i) the circumstances that contributed to the delay in payment of the training guarantee charge were not due to, or caused directly or indirectly by, an act or omission of the employer; and (ii) the employer has taken reasonable action to mitigate, or mitigate the effects of, those circumstances; or (b) the Commissioner is satisfied that: (i) the circumstances that contributed to the delay in payment of the training guarantee charge were due to, or caused directly or indirectly by, an act or omission of the employer; and (ii) the employer has taken reasonable action to mitigate, or mitigate the effects of, those circumstances; and (iii) having regard to the nature of those circumstances, it would be fair and reasonable to remit the additional training guarantee charge or part of the additional training guarantee charge; or (c) the Commissioner is satisfied that there are special circumstances because of which it would be fair and reasonable to remit the additional training guarantee charge or part of the additional training guarantee charge; the Commissioner may remit the additional training guarantee charge or part of the additional training guarantee charge. (5) Where judgment is given by, or entered in, a court for payment of: (a) an amount of training guarantee charge; or (b) an amount that includes an amount of training guarantee charge; then: (c) the training guarantee charge is not taken, for the purposes of subsection (1), to have ceased to be due and payable merely because of the giving or entering of the judgment; and (d) if the judgment debt carries interest, the additional training guarantee charge that would, but for this paragraph, be payable under this section in relation to the training guarantee charge is to be reduced by: (i) in a case to which paragraph (a) applies—the amount of the interest; or (ii) in a case to which paragraph (b) applies—an amount that bears the same proportion to the amount of the interest as the amount of the training guarantee charge bears to the amount of the judgment debt. (6) In this section, unless the contrary intention appears: “training guarantee charge” includes additional training guarantee charge under Part 9. Recovery of training guarantee charge 76. (1) Training guarantee charge when it becomes due and payable: (a) is a debt due to the Commonwealth and payable to the Commissioner in the manner and at the place prescribed; and (b) may be sued for and recovered in a court of competent jurisdiction by the Commissioner or a Deputy Commissioner suing in his or her official name. Substituted service 77. If: (a) a document is required to be served on an employer for the purposes of proceedings against the employer for the recovery of training guarantee charge; and (b) the Commissioner is satisfied, after reasonable enquiry, that the employer: (i) is absent from Australia and has no attorney or agent in Australia on whom service of process can be effected; or (ii) cannot be found; service of the document on the employer may be effected, without leave of the court, by posting the document or a sealed copy of it in a letter addressed to the employer at his or her last known place of business or residence in Australia. Liquidators 78. (1) If a person (in this section called the “asset holder”): (a) becomes, on a particular day, a liquidator of an employer that is a company; or (b) is a receiver, or a receiver and manager, for debenture holders of an employer that is a company, and, on a particular day, takes possession of assets of the employer; the asset holder must, within 14 days of that day give written notice of the fact to the Commissioner. (2) The Commissioner must, as soon as practicable, give the asset holder written notice of the amount that, in the Commissioner’s opinion, is sufficient to provide for any amount of training guarantee charge that is or may become payable by the employer (in this section called the “notified charge amount”). (3) The asset holder: (a) must not, without the Commissioner’s permission, part with any of the company’s assets before receiving notice of the notified amount; and (b) must set aside, out of the assets available for paying the company’s ordinary debts, assets having the value calculated using the formula: <table cellspacing="0" cellpadding="0" style="margin-left:26.65pt; border-collapse:collapse"><tbody><tr style="height:17.1pt"><td rowspan="2" style="width:72.2pt; padding-right:0.5pt; padding-left:0.5pt; vertical-align:middle">value of assets to be set aside</td><td rowspan="2" style="width:15.1pt; padding-right:0.5pt; padding-left:0.5pt; vertical-align:middle">=</td><td rowspan="2" style="width:59.7pt; padding-right:0.5pt; padding-left:0.5pt; vertical-align:bottom">total value of assets available to pay ordinary debts</td><td style="width:22.3pt; padding-right:0.5pt; padding-left:0.5pt; vertical-align:middle"><div style="width:100%; height:17.1pt; display:inline-block; overflow:visible"><img src="image.003.png" width="9" height="101" alt="" style="margin-top:-0.12pt; margin-left:18.23pt; position:absolute"></div></td><td colspan="5" style="width:217.55pt; padding-right:0.5pt; padding-left:0.5pt; vertical-align:middle"><div style="width:100%; height:17.1pt; display:inline-block; overflow:visible"><img src="image.004.png" width="13" height="97" alt="" style="margin-top:6.18pt; margin-left:211.68pt; position:absolute">notified amount</div></td></tr><tr style="height:72.85pt"><td style="width:22.3pt; padding-right:0.5pt; padding-left:0.5pt; vertical-align:middle">×</td><td style="width:44.35pt; border-top:0.75pt solid #000000; padding-right:0.5pt; padding-left:0.5pt; vertical-align:middle">Notified charge amount</td><td style="width:23.7pt; border-top:0.75pt solid #000000; padding-right:0.5pt; padding-left:0.5pt; vertical-align:middle">+</td><td style="width:47.5pt; border-top:0.75pt solid #000000; padding-right:0.5pt; padding-left:0.5pt; vertical-align:middle">company’s notified tax amount</td><td style="width:36pt; border-top:0.75pt solid #000000; padding-right:0.5pt; padding-left:0.5pt; vertical-align:middle">+</td><td style="width:62pt; border-top:0.75pt solid #000000; padding-right:0.5pt; padding-left:0.5pt; vertical-align:middle">sum of company’s other ordinary debts</td></tr></tbody></table> ``` (4) The asset holder is liable as trustee to pay the training guarantee charge payable by the company for the year to the extent of the value of the assets that the asset holder is required to set aside. (5) Paragraph (3) (a) does not prevent the asset holder from parting with the company’s assets to pay the company’s debts that are not ordinary debts. (6) For the purposes of subsections (3) and (5), a company’s debt is an ordinary debt if: (a) it is unsecured; and (b) it is not required, under a Commonwealth, State or Territory law, to be paid in priority to some or all of the company’s other debts. (7) If the asset holder, without reasonable excuse, contravenes this section or refuses or fails as trustee duly to pay the training guarantee charge for which the asset holder is liable under subsection (3), the asset holder: (a) is personally liable to pay the training guarantee charge to the extent of the value of the assets that the asset holder is required to set aside under subsection (3); and (b) is guilty of an offence punishable on conviction by a fine not exceeding $1,000. (8) This section is not taken to limit an obligation or liability of the asset holder arising otherwise than under this section. (9) If 2 or more persons are asset holders of a particular company, or are asset holders for debenture holders of a particular company, the obligations and liabilities imposed on an asset holder by this section are imposed on both or all of the persons jointly. (10) In this section, unless the contrary intention appears: “notified tax amount”, in relation to a company, means an amount of which the company or the respective asset holder has been notified under a prescribed tax provision; “prescribed tax provision” means: (a) subsection 96 (2) of the Fringe Benefits Tax Assessment Act 1986; or (b) subsection 215 (2) of the Income Tax Assessment Act 1936 or of that subsection as applied by the Taxation (Unpaid Company Tax) Assessment Act 1982 or the Trust Recoupment Tax Assessment Act 1985; or (c) subsection 32 (2) of the Sales Tax Assessment Act (No. 1) 1930 or of that subsection as applied by any other Act providing for the assessment of sales tax; or (d) subsection 30 (2) of the Pay-roll Tax (Territories) Assessment Act 1971; or (e) subsection 88 (2) of the Petroleum Resource Rent Tax Assessment Act 1987; or (f) subsection 27 (2) of the Tobacco Charges Assessment Act 1955; or (g) subsection 47 (2) of the Wool Tax (Administration) Act 1964; Recovery of training guarantee charge from trustee of deceased employer 79. (1) This section applies, if at the time of an employer’s death: (a) the employer has not paid the whole of any training guarantee charge incurred by the employer before the employer’s death; or (b) additional training guarantee charge under Part 9 for which the employer is liable has not been assessed or paid. (2) The Commissioner has the same powers and remedies for the assessment and recovery of training guarantee charge from a trustee of the estate of the employer as the Commissioner would have had against the employer if the employer were still living. (3) The trustee must: (a) lodge any statements or information that the employer was, or would but for the employer’s death have been, liable to lodge; and (b) lodge any other statements or information that the Commissioner requires. (4) If the trustee is unable or refuses or fails to lodge a statement in relation to a year, the Commissioner may assess: (a) the employer’s training guarantee charge shortfall for the year; and (b) the amount of training guarantee charge payable on the shortfall. (5) The trustee is subject to additional training guarantee charge under section 75 or Part 9 to the same extent as the employer would be if the employer were still living. (6) The amount of any training guarantee charge payable by the trustee is a charge on the employer’s estate in the trustee’s hands in priority to any other encumbrance (except a charge in relation to a debt payable to the Commissioner). (7) In this section, unless the contrary intention appears: Recovery of charge from unadministered deceased estates 80. (1) If, within 6 months after the death of an employer, neither probate of the employer’s will nor letters of administration of the employer’s estate have been granted, the Commissioner may assess: (a) the training guarantee shortfall on which training guarantee charge was payable by the employer at the time of his or her death; and (b) the amount of training guarantee charge payable on the shortfall. (2) If the employer resided in a State or Territory immediately before his or her death, the Commissioner must publish notice of the assessment twice in a daily newspaper circulating in the State or Territory. (3) A person who claims an interest in the deceased employer’s estate may, within 60 days after the first publication of notice of the assessment, lodge a written objection to the assessment stating fully and in detail the grounds on which the person relies. (4) Subject to any amendment, the assessment is conclusive evidence of the liability of the deceased employer. (5) The Commissioner may, by order in the prescribed form, authorise a member or special member of the Australian Federal Police or a member of the police force of a State or Territory or any other person specified in the order, to levy the amount of training guarantee charge assessed, with costs, by distress and sale of any property of the estate. (6) An authorised person has power to levy, as prescribed, the amount specified in the order. (7) Despite subsections (4), (5) and (6), if probate of the will, or letters of administration of the estate, of the deceased employer are granted to a person on a particular day, the person may, within 60 days after that day, lodge an objection to the assessment, stating fully and in detail the grounds on which the person relies. (8) Part 7 applies to an objection made by a person under subsection or (7) as if the person were the deceased employer. (9) In this section: “training guarantee charge” includes additional training guarantee charge payable under section 75 or Part 9. Commissioner may collect training guarantee charge from person owing money to person liable to training guarantee charge 81. (1) The Commissioner may, by written notice, require a person (in this section called the “debtor”): (a) who owes, or may subsequently owe, money to an employer; or (b) who holds, or may subsequently hold, money for or on account of an employer, or for or on account of another person for payment to an employer; or (c) who has, or may subsequently have, authority from another person to pay money to an employer; to pay to the Commissioner, at or before a time (in this section called the “payment time”) specified in the notice (not being a time before the notice is served on the debtor, or before the money becomes due or is held, or the debtor has the authority, as the case may be) an amount (in this section called the “garnisheed amount”) equal to: (d) the whole of the money, or so much of it as is sufficient to pay the amount of training guarantee charge by the employer, whichever is the lesser; or (e) the amount specified in the notice out of each payment that the debtor makes or becomes liable to make to the employer, until the amount of training guarantee charge is paid. (2) The Commissioner may, by further written notice, revoke or vary a notice under subsection (1). (3) The Commissioner must arrange for a notice under subsection (1) or (2) to be given to the debtor and a copy of the notice to be given to the employer. (4) A person who contravenes a notice under this section is guilty of an offence. Penalty: $1,000. (5) If a person (in this subsection called the “convicted person”) is convicted of an offence against subsection (4) in relation to the contravention of the notice by the convicted person or another person, the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding the amount or the sum of the amounts, as the case requires, that the convicted person or the other person, as the case may be, refused or failed to pay to the Commissioner in accordance with the notice. (6) A person making a payment under this section is taken to be acting with the authority of the employer and of all other persons concerned and is indemnified in relation to the payment. (7) If any payment in relation to the amount due by the employer is made before payment is made by a person under a notice under this section, the Commissioner must immediately give notice to the person under subsection (2). (8) The garnisheed amount is, from the payment time, a debt due to the Commonwealth and recoverable in a court of competent jurisdiction. (9) If: (a) money has been paid by a person to a building society in relation to the issue of shares in the capital of the society (not being shares listed for quotation on a Stock Exchange); and (b) the money has not been repaid; the money is taken: (c) if the money is repayable on demand—to be due by the building society to the person; or (d) in any other case—to be money that may become due by the building society to the person. (10) If, but for this subsection, a debt is not due, or repayable on demand, to a person unless a condition is fulfilled, the debt is taken, for the purposes of this section, to be due, or repayable on demand, as the case may be, to the person despite the fact that the condition has not been fulfilled. (11) A notice may be given to the Commonwealth, a State or Territory by giving it to a person employed by the Commonwealth, State or Territory, respectively, being a person who, under a law of the Commonwealth, State or Territory, has a duty of disbursing public money, and a notice so given is taken, for the purposes of this section, to have been given to the Commonwealth, the State or the Territory, as the case may be. (12) In this section: “building society” means a society registered or incorporated as a building society, co-operative housing society or other similar society under the law in force in a State or Territory; “training guarantee charge” includes: (a) additional training guarantee charge under section 75 or Part 9; and (b) a judgment debt or costs in relation to: (i) training guarantee charge; or (ii) additional training guarantee charge under section 7 5 or Part 9; and (c) a fine or costs imposed by a court in relation to an offence against this Act; and (d) an amount ordered by a court, on the conviction of a person for an offence against this Act, to be paid by the person to the Commissioner. Public officer of company 82. (1) The person who is, from time to time, the public officer of a company for the purposes of the Income Tax Assessment Act 1936 is the public officer of the company for the purposes of this Act, and the public officer’s address for service under that Act is the public officer’s address for service under this Act. (2) Service of a notice or other document at the public officer’s address for service, or on the public officer, is sufficient service on the company for the purposes of this Act, but, if at any time there is no public officer of the company, service on a person acting or appearing to act in the business of the company is sufficient. (3) The public officer is answerable for doing all acts required to be done by the company under this Act, and in case of default is liable to the same penalties. (4) Everything done by the public officer that the public officer is required to do in that capacity is taken to have been done by the company. (5) If, at any time, there is no public officer of the company, this Act applies in relation to the company as if there were no requirement to appoint a public officer of the company. (6) A proceeding under this Act brought against the public officer is taken to have been brought against the company, and the company is liable jointly with the public officer for any penalty imposed on the public officer. (7) Despite subsections (1) to (6) (inclusive) and without affecting any of the public officer’s obligations and liabilities. a notice, process or proceeding that under this Act may be given to, served on or brought against the company or public officer may, if the Commissioner thinks fit, be given to, served on or brought against any director, secretary or other officer of the company or any attorney or agent of the company, and the director, secretary, officer, attorney or agent has the same liability in relation to the notice, process or proceeding as the company or public officer would have had if it had been given to, served on or brought against the company or public officer. Public officer of trust estate 83. (1) The person who is, from time to time, the public officer of a trust estate for the purposes of section 252a of the Income Tax Assessment Act 1936 is the public officer of the trust estate for the purposes of this Act, and the public officer’s address for service under that Act is the public officer’s address for service under this Act. (2) Service of a notice or other document at the public officer’s address for service, or on the public officer, is sufficient service on the trustee of the trust estate for the purposes of this Act, but, if at any time there is no public officer of the trust estate, service on a person acting or appearing to act in the business of the trust estate is sufficient. (3) The public officer is answerable for doing all acts required to be done by the trustee of the trust estate under this Act, and in case of default is liable to the same penalties. (4) Everything done by the public officer that the public officer is required to do in that capacity is taken to have been done by the trustee of the trust estate. (5) If, at any time, there is no public officer of the trust estate, this Act applies in relation to the trustee of the trust estate as if there were no requirement to appoint a public officer of the trust estate. (6) A proceeding under this Act brought against the public officer is taken to have been brought against the trustee of the trust estate, and the trustee is liable jointly with the public officer for any penalty imposed on the public officer. (7) Despite subsections (1) to (6) (inclusive) and without affecting any of the public officer’s obligations and liabilities, a notice, process or proceeding that under this Act may be given to, served on or brought against the trustee or public officer of the trust estate may, if the Commissioner thinks fit, be given to, served on or brought against any agent or attorney of the trustee, and the agent or attorney has the same liability in relation to the notice, process or proceeding as the trustee or public officer would have had if it had been given to, served on or brought against the trustee or public officer.