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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Taxation Administration Bill 2001 CONTENTS Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 3. The taxation Acts 2 4. Meaning of terms used in this Act 3 5. Crown bound 3 Part 2 -- Tax administration generally 6. Commissioner of State Revenue 4 7. Administration of taxation Acts 4 8. Commissioner's functions 4 9. Judicial notice of appointment and signature 4 10 . Delegation 4 11 . Tax investigators 5 12 . Appointed representatives for court proceedings 6 Part 3 -- Assessments of tax Division 1 -- Assessments 13 . Assessments 7 14 . Self-assessments 7 15 . Official assessments 7 16 . Reassessments 8 17 . Time limits on reassessments 9 18 . Effect of reassessment 9 19 . Assessments based on estimated or suspected liability 10 20 . Assessments when instrument misleading or unavailable 11 21 . Ascertaining value of property, consideration or benefit 12 page i 79--2 Taxation Administration Bill 2001 Contents 22 . Commissioner's power to have valuation made 12 Division 2 -- Assessment notices and returns 23 . Assessment notices 13 24 . Form of assessment notice 13 25 . Statement of grounds of assessment 14 Division 3 -- Penalty tax 26 . Penalty tax for contravention of taxation Act 15 27 . Penalty tax for late payment 16 28 . Limitation on amount of penalty tax 16 29 . Remission of penalty tax 16 30 . Guidelines for imposing penalty tax 17 Part 4 -- Objections and appeals Division 1 -- Procedures and restrictions 31 . Procedure for challenging assessments 18 32 . Objections to land valuations 18 33 . Continuing obligation to pay assessed tax 18 Division 2 -- Objections 34 . Right to object 18 35 . Form of objection 19 36 . Time for lodging objection 19 37 . Consideration of objections 20 38 . Time limit for determining objections 21 39 . Reassessment on determination of objection 22 Division 3 -- Appeals and stated cases 40 . Right of appeal 22 41 . Court or tribunal to which an appeal lies 23 42 . Time for appeal 23 43 . Appeal hearings 23 44 . Cases stated by Commissioner 24 Part 5 -- Payment and refund of tax Division 1 -- Payment 45 . When tax is due for payment 26 46 . Allocation of payment 26 47 . Arrangements for instalments and extensions of time 26 48 . No action to compel approval of tax payment arrangement 28 page ii Taxation Administration Bill 2001 Contents Division 2 -- Special tax return arrangements 49 . Approval of special tax return arrangements 28 50 . Content of special tax return arrangement 28 51 . Instruments stamped or endorsed under a special tax return arrangement 29 52 . Lodging returns under special tax return arrangement 30 53 . Amendment or cancellation of arrangement 30 Division 3 -- Refunds of tax 54 . Power to make refund 30 55 . Refund to be passed on in certain cases 31 Division 4 -- Power to waive or write off liability 56 . Waiver of tax 33 57 . Writing off tax liability 33 58 . Powers subject to Financial Administration and Audit Act 1985 33 59 . No action to compel waiver or writing off 34 Part 6 -- Recovery of tax Division 1 -- Recovery generally 60 . Recovery of unpaid tax 35 61 . Power of court to order payment of tax 35 62 . Recovery of costs and interest 35 63 . Recovery of tax in cases of joint liability 35 64 . Notice of administrator's appointment 36 65 . Power to garnishee 36 66 . Recovery from partnerships and other associations 37 67 . Recovery from directors of body corporate 37 Division 2 -- Charges on land 68 . Charge on land to secure land tax 39 69 . Charge on land to secure stamp duty 40 70 . Prohibition on dealing with certain charged land 41 71 . Priority of charge 42 72 . Certificate of land tax secured by charge 42 73 . Release of land from charge 43 74 . Form of memorial 43 75 . Registration of memorials and releases 44 76 . Notification of mortgagees 44 77 . Orders for sale of land 44 78 . Means of enforcement not limited to charge 46 page iii Taxation Administration Bill 2001 Contents Part 7 -- Tax records 79 . How long tax records are to be kept 47 80 . Form of tax records 47 81 . Where tax records are to be kept 48 82 . Failure to keep proper tax records 48 83 . General and specific exemptions 49 Part 8 -- Investigations Division 1 -- Investigations 84 . Investigations 50 85 . Investigations for the purposes of recognised revenue laws 50 Division 2 -- Obtaining tax records and other information 86 . Requirements to provide information and tax records 51 87 . Power to require person to attend for examination 52 88 . Power to retain documents 53 89 . Recording examination proceedings 54 Division 3 -- Access to premises 90 . Entry of premises 54 91 . Powers of investigator while on premises 55 92 . Warrants to enter premises 57 93 . Use of force 58 Division 4 -- General provisions 94 . Complying with information requirements 58 95 . Interaction with other Acts 59 Part 9 -- Offences 96 . General penalty provision 60 97 . Evasion of tax 60 98 . False or misleading information 60 99 . Obstructing or misleading an investigator 61 100 . Offence by body corporate 61 101 . Criminal penalties not to affect civil liabilities 61 102 . Time for commencing prosecutions 62 103 . Authority required for prosecution 62 104 . General defence 62 page iv Taxation Administration Bill 2001 Contents Part 10 -- Miscellaneous Division 1 -- Confidentiality 105 . Confidentiality 63 Division 2 -- Service of documents 106 . Service on the Commissioner 65 107 . Service on agent or representative of taxpayer 66 108 . Method of service by Commissioner 66 109 . Non-exclusivity of this Division 67 Division 3 -- Evidentiary provisions 110 . Evidentiary value of assessment notice 67 111 . Evidentiary status of copies and reproductions of documents 68 112 . Evidentiary certificates 68 113 . Extracts from register of delegates 69 114 . Averments in complaints 69 115 . Presumption of regularity 70 Division 4 -- Exemption from personal liability 116 . Exemption from personal liability 70 Division 5 -- Regulations 117 . Regulations 70 Glossary 71 page v Western Australia LEGISLATIVE ASSEMBLY (As amended during consideration in detail) Taxation Administration Bill 2001 A Bill for An Act to provide for the administration and enforcement of legislation dealing with State taxation. The Parliament of Western Australia enacts as follows: page 1 Taxation Administration Bill 2001 Part 1 Preliminary s. 1 Part 1 -- Preliminary 1. Short title This Act may be cited as the Taxation Administration Act 2001. 2. Commencement 5 (1) This Act comes into operation on a day fixed by proclamation. (2) Different days may be fixed under subsection (1) for different provisions. 3. The taxation Acts (1) The following enactments are taxation Acts for the purposes of 10 this Act -- (a) this Act; (b) the Debits Tax Act 2001; (c) the Debits Tax Assessment Act 2001; (d) the Land Tax Act 2001; 15 (e) the Land Tax Assessment Act 2001; (f) the Metropolitan Region Improvement Tax Act 1959 as in force from and after the time of commencement of this Act; (g) section 41 of the Metropolitan Region Town Planning 20 Scheme Act 1959 as in force from and after the commencement of this Act; (h) the Pay-roll Tax Act 2001; (i) the Pay-roll Tax Assessment Act 2001; (j) the Stamp Act 1921 as in force from and after the time of 25 commencement of this Act; page 2 Taxation Administration Bill 2001 Preliminary Part 1 s. 4 (k) any other enactment prescribed by the regulations as a taxation Act. (2) Each other taxation Act is to be read with this Act as if they formed a single Act. 5 4. Meaning of terms used in this Act The Glossary at the end of this Act defines or affects the meaning of some of the words and expressions used in this Act. 5. Crown bound Subject to any express provision to the contrary, each taxation 10 Act binds the Crown in right of Western Australia and, as far as the legislative power of Parliament permits, in all its other capacities. page 3 Taxation Administration Bill 2001 Part 2 Tax administration generally s. 6 Part 2 -- Tax administration generally 6. Commissioner of State Revenue A Commissioner of State Revenue is to be appointed under Part 3 of the Public Sector Management Act 1994. 5 7. Administration of taxation Acts (1) The Commissioner is responsible to the Minister for applying and giving effect to the taxation Acts. (2) The Commissioner is not subject to Ministerial control or direction in relation to -- 10 (a) the interpretation of a taxation Act; or (b) the exercise of a power under a taxation Act. 8. Commissioner's functions In addition to performing the functions conferred on the Commissioner under a taxation Act, the Commissioner may 15 perform any function conferred on an investigator under a taxation Act. 9. Judicial notice of appointment and signature All courts and persons acting judicially are to take judicial notice -- 20 (a) of the fact that a person holds or has held the office of Commissioner; and (b) of the official signature of a person who holds or has held the office of Commissioner. 10. Delegation 25 (1) The Commissioner may delegate any of the Commissioner's functions under a taxation Act except -- (a) the power to delegate under this section; page 4 Taxation Administration Bill 2001 Tax administration generally Part 2 s. 11 (b) the power to issue an identity card; and (c) the power to give an authorisation under section 90(3), 91(1)(a) or 93(2). (2) The delegation must be in writing signed by the Commissioner. 5 (3) A person exercising or performing a power or duty that has been delegated to the person under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown. (4) Nothing in this section limits the ability of the Commissioner to 10 perform a function through an agent. (5) The Commissioner is to keep a register of delegates, which may be kept electronically or otherwise. (6) If a person exercises, or claims to be entitled to exercise, functions delegated by the Commissioner in relation to a 15 taxpayer or a taxpayer's affairs, the Commissioner must, at the request of the taxpayer, make the relevant entry in the register of delegates, or a print-out of it, available for inspection by the taxpayer or a representative of the taxpayer. 11. Tax investigators 20 (1) The Commissioner may appoint a person to be an investigator for the purposes of the taxation Acts. (2) The Commissioner is to issue an identity card to each investigator. (3) An identity card must -- 25 (a) include a statement to the effect that the person identified by the card is an investigator for the purposes of the taxation Acts; and (b) include a photograph of the investigator. page 5 Taxation Administration Bill 2001 Part 2 Tax administration generally s. 12 (4) If a person to whom an identity card is issued ceases to be an investigator, the person must immediately return the card to the Commissioner. Penalty for an offence against subsection (4): $20 000. 5 12. Appointed representatives for court proceedings (1) The Commissioner may appoint a person to represent the Commissioner -- (a) in court proceedings for recovery of tax; (b) in proceedings for an offence against a taxation Act; or 10 (c) in other proceedings before a court or tribunal to which the Commissioner is a party. (2) An appointed representative may represent the Commissioner in accordance with the authorisation. page 6 Taxation Administration Bill 2001 Assessments of tax Part 3 Assessments Division 1 s. 13 Part 3 -- Assessments of tax Division 1 -- Assessments 13. Assessments (1) An assessment is a determination -- 5 (a) of the amount of tax payable under a taxation Act; (b) that no tax is payable; (c) that a person is liable to pay tax or is exempt from liability to pay tax; or (d) that an instrument, event or transaction is liable to tax or 10 is exempt from tax. (2) An assessment may be made in relation to any one or more, or all, the components of the tax payable by a taxpayer. (3) The receipt by the Commissioner of an amount as payment of tax does not constitute an assessment of tax liability. 15 14. Self-assessments A self-assessment is -- (a) an assessment made by the taxpayer in a return under a taxation Act; or (b) an assessment made by a responsible party in a return or 20 otherwise in accordance with a special tax return arrangement. 15. Official assessments (1) An official assessment is an assessment made by the Commissioner. page 7 Taxation Administration Bill 2001 Part 3 Assessments of tax Division 1 Assessments s. 16 (2) The Commissioner must make an official assessment of the tax payable by a person -- (a) if the person is or is likely to be liable to pay tax, but is not required to make a self-assessment; or 5 (b) when a taxation Act specifically requires the Commissioner to do so. (3) The Commissioner may make an official assessment on his or her own initiative, and may do so even if the taxpayer is required to make, or has made, a self-assessment. 10 (4) The Commissioner may make an official assessment in any other circumstances at the taxpayer's request. 16. Reassessments (1) The Commissioner must make a reassessment -- (a) if specifically required to do so under a taxation Act; 15 (b) if specifically required to do so under a direction of a court or tribunal hearing an appeal under section 41; or (c) if a taxation Act provides for a rebate or refund of tax in particular circumstances, and the circumstances were not taken into account when the previous assessment was 20 made. (2) The Commissioner may also make a reassessment -- (a) on his or her own initiative, if it appears that a previous assessment is or may be incorrect for any reason; or (b) on the application of the taxpayer. 25 (3) A reassessment may be made whether or not any amount of tax has been paid on the previous assessment. (4) A reassessment may consolidate 2 or more separate assessments into a single assessment. (5) A decision by the Commissioner not to make a reassessment 30 under subsection (2)(b) is non-reviewable. page 8 Taxation Administration Bill 2001 Assessments of tax Part 3 Assessments Division 1 s. 17 (6) No action can be brought in a court to compel the Commissioner to make a reassessment if he or she is not required to do so by a taxation Act. 17. Time limits on reassessments 5 (1) A taxpayer is not entitled to apply for a reassessment more than 5 years after the original assessment was made. (2) The Commissioner may make a reassessment at any time after the previous assessment was made if -- (a) a court or tribunal hearing an appeal under section 41 10 has directed the Commissioner to make the reassessment; or (b) there are reasonable grounds for suspecting that there has been an evasion of tax, or that the previous assessment was made on the basis of false or misleading 15 information. (3) The Commissioner may make a reassessment of the amount of pay-roll tax payable on an original assessment that was made in or in relation to any of the 5 financial years that precede the financial year in which the reassessment is made. 20 (4) However, in any other circumstances the Commissioner may only make a reassessment within 5 years after the date of the original assessment or on an application made within 5 years after the date of the original assessment. 18. Effect of reassessment 25 (1) A reassessment supersedes the original assessment and any earlier reassessment. (2) A reassessment may increase or decrease the amount originally assessed. (3) However, if an assessment was based on -- 30 (a) an interpretation of the applicable law; or page 9 Taxation Administration Bill 2001 Part 3 Assessments of tax Division 1 Assessments s. 19 (b) the Commissioner's practice, that was generally applied to instruments of that kind when the assessment was made, then the Commissioner cannot make a reassessment on the ground that the interpretation or practice is 5 or was erroneous. (4) If tax payable on an instrument is reassessed, and the instrument or a duplicate or copy of it is produced to the Commissioner, the Commissioner may stamp it with a stamp denoting the amount of tax (if any) payable under the reassessment and the amount of 10 tax paid (if any), (but the reassessment takes effect irrespective of restamping). (5) A reassessment does not invalidate proceedings for the recovery of tax, but the amount to be recovered is to be amended to take account of the reassessment. 15 (6) If an objection to an assessment is lodged but a reassessment is made before the objection is determined, the objection may be continued against the reassessment to the extent that it is liable to the same objection or to an objection that is the same, or similar, in substance. 20 19. Assessments based on estimated or suspected liability (1) If the Commissioner suspects that a tax liability exists, the Commissioner may make an assessment on the basis of that suspicion and the Commissioner's estimate of the amount of the liability. 25 (2) If a tax liability exists, but the Commissioner is not satisfied with the adequacy or reliability of information available to make an assessment, the Commissioner may make an assessment on the basis of the Commissioner's estimate of the amount of the liability. page 10 Taxation Administration Bill 2001 Assessments of tax Part 3 Assessments Division 1 s. 20 20. Assessments when instrument misleading or unavailable (1) If there are reasonable grounds for suspecting that an instrument lodged under a taxation Act is inaccurate or misleading, then for the purposes of making an assessment the Commissioner 5 may -- (a) create a memorandum of the instrument; and (b) treat the memorandum as if it were the instrument. (2) If tax is or may be payable on an instrument required to be lodged under a taxation Act, but the instrument has not been 10 lodged as required, then for the purposes of making an assessment, the Commissioner may -- (a) treat a copy of the instrument as if it were the instrument; or (b) if a copy of the instrument is not available -- create a 15 memorandum of the instrument, and treat the memorandum as if it were the instrument. (3) If tax is or may be payable in relation to an event or transaction, but an instrument required to be prepared and lodged under a taxation Act in relation to the event or transaction has not been 20 prepared or, if prepared, has not been lodged, then for the purposes of making an assessment the Commissioner may create a memorandum in substitution for the instrument and treat it as if the memorandum were the instrument. (4) The payment of tax on the instrument may be denoted on the 25 copy or memorandum. (5) The validity of an assessment and the liability to pay tax on an instrument, event or transaction do not depend on the availability of the instrument or a copy of it, or on the creation of a memorandum of it. 30 (6) This section does not limit the powers of the Commissioner under section 19. page 11 Taxation Administration Bill 2001 Part 3 Assessments of tax Division 1 Assessments s. 21 21. Ascertaining value of property, consideration or benefit (1) If it is necessary to ascertain the value of any property, consideration or benefit for the purposes of a taxation Act, the Commissioner may require the taxpayer to provide any 5 information in the possession or control of the taxpayer that is relevant to determining the value of the property, consideration or benefit. (2) A requirement must specify the date on or before which the taxpayer is required to comply with it. 10 (3) A person who does not comply with a requirement commits an offence. Penalty: $20 000. 22. Commissioner's power to have valuation made (1) For the purposes of a taxation Act, the Commissioner may -- 15 (a) have a valuation made of any property, consideration or benefit; or (b) adopt any available valuation of the property, consideration or benefit that the Commissioner considers appropriate. 20 (2) The Commissioner may have a valuation made, or adopt a valuation, regardless of whether -- (a) the Commissioner has required the taxpayer to provide information under section 21 about the value of the property, consideration or benefit; or 25 (b) the taxpayer has complied with such a requirement. page 12 Taxation Administration Bill 2001 Assessments of tax Part 3 Assessment notices and returns Division 2 s. 23 Division 2 -- Assessment notices and returns 23. Assessment notices (1) When the Commissioner makes an assessment, he or she must issue an assessment notice. 5 (2) However, the Commissioner does not have to issue an assessment notice if the Commissioner -- (a) makes a reassessment on his or her own initiative, and no tax is to be paid or refunded as a result of the reassessment; or 10 (b) assesses the amount of stamp duty payable on an instrument and then stamps the instrument immediately. (3) When an assessment notice is issued, the Commissioner must serve it on the taxpayer. (4) However, liability to tax is not dependent on service of the 15 assessment notice. 24. Form of assessment notice (1) An assessment notice may be -- (a) in the form of an account requiring payment of the amount assessed and of other amounts payable by the 20 taxpayer; or (b) in any other form approved by the Commissioner. (2) An assessment notice in relation to an original assessment must -- (a) state the amount of tax payable under the primary 25 liability; (b) state the amount of penalty tax payable, if any; and (c) indicate the due date for payment of the tax. page 13 Taxation Administration Bill 2001 Part 3 Assessments of tax Division 2 Assessment notices and returns s. 25 (3) An assessment notice in relation to a reassessment must -- (a) state whether the amount payable is more or less than the amount assessed under the previous assessment; (b) if an amount of tax has been overpaid -- state whether 5 the overpaid amount is to be refunded or credited to the taxpayer; and (c) if the amount of tax has been increased, or an amount of tax remains unpaid -- state the due date for payment of the amount or amounts to be paid. 10 (4) For the purposes of subsection (3)(c), if the due date for payment of the tax has passed when the assessment notice is issued, the assessment notice must specify the due date for payment of any unpaid tax and any penalty tax payable in relation to the unpaid tax. 15 (5) The date specified in an assessment notice as the due date for payment must be at least 14 days after the date of the assessment notice. (6) More than one assessment of primary tax or penalty tax, or both, may be included in an assessment notice, whether or not the 20 assessments are made in respect of the same matter. 25. Statement of grounds of assessment (1) An assessment notice may include a statement of the grounds on which the assessment is made. (2) If an assessment notice relating to an assessment of a primary 25 liability does not include a statement of the grounds on which the assessment is made -- (a) the taxpayer may request the Commissioner to provide a statement of the grounds; and (b) the Commissioner must serve a statement of the grounds 30 on the taxpayer within 30 days after receiving the request. page 14 Taxation Administration Bill 2001 Assessments of tax Part 3 Penalty tax Division 3 s. 26 (3) If an assessment notice relating to an assessment of penalty tax does not include a statement of the grounds on which the assessment is made, the Commissioner must serve on the taxpayer a separate statement of the grounds. 5 Division 3 -- Penalty tax 26. Penalty tax for contravention of taxation Act (1) A taxpayer is liable to pay penalty tax in the following circumstances -- (a) where the taxpayer does not prepare a dutiable statement 10 as required by the Stamp Act 1921; (b) where the taxpayer does not lodge an instrument in accordance with a taxation Act; (c) where any other contravention of a taxation Act occurs and, as a result, the taxpayer -- 15 (i) avoids or delays the payment of tax; or (ii) avoids or delays the submission of information required for the assessment of tax; (d) where there is a material misstatement or omission in an instrument submitted to the Commissioner by or for the 20 taxpayer under a taxation Act; (e) where the taxpayer fails to provide information required under a taxation Act or (intentionally or unintentionally) provides information that is incorrect, incomplete or misleading; 25 (f) where the taxpayer makes an underestimation to avoid, delay or reduce the payment of tax; (g) where the taxpayer fails to pay (or underpays) tax for which the taxpayer is liable. (2) If there are reasonable grounds for suspecting that a taxpayer is 30 liable to pay penalty tax, the Commissioner may assess the amount of penalty tax payable by the taxpayer. page 15 Taxation Administration Bill 2001 Part 3 Assessments of tax Division 3 Penalty tax s. 27 (3) The amount of penalty tax payable is the amount equal to -- (a) the amount of the taxpayer's primary liability; or (b) the amount that the taxpayer would have been liable to pay if the circumstances giving rise to the liability to 5 penalty tax had not occurred, as the case requires. 27. Penalty tax for late payment (1) If tax is not paid by the due date, the taxpayer is liable to pay an amount of penalty tax for late payment equal to 20% of the 10 amount outstanding on the due date. (2) However, penalty tax is not payable for late payment of -- (a) instalments due under a tax payment arrangement; or (b) an amount payable under section 47(6) as a result of the cancellation of a tax payment arrangement. 15 28. Limitation on amount of penalty tax If the total amount of penalty tax assessed as payable by a taxpayer in relation to a primary liability exceeds, or would but for this section exceed, the amount of the primary liability, the amount of penalty tax payable is reduced to the amount equal to 20 the amount of the primary liability. 29. Remission of penalty tax (1) The Commissioner may remit penalty tax wholly or in part. (2) Penalty tax may be remitted before or after an assessment of the penalty tax is made. 25 (3) If penalty tax is paid and later remitted, the amount remitted is to be refunded or credited against the taxpayer's present or future tax liabilities. page 16 Taxation Administration Bill 2001 Assessments of tax Part 3 Penalty tax Division 3 s. 30 30. Guidelines for imposing penalty tax (1) The Commissioner may, from time to time, issue guidelines setting out the policy to be followed when deciding whether or not to remit penalty tax under section 29. 5 (2) The Commissioner must, at the request of a taxpayer, make a copy of the guidelines available to the taxpayer. page 17 Taxation Administration Bill 2001 Part 4 Objections and appeals Division 1 Procedures and restrictions s. 31 Part 4 -- Objections and appeals Division 1 -- Procedures and restrictions 31. Procedure for challenging assessments (1) A taxpayer is not entitled to challenge the validity or correctness 5 of an assessment, or of any other decision for which rights of objection and appeal are conferred by this Act, except -- (a) in proceedings by way of objection or appeal under this Act; or (b) in any other manner specifically provided in a taxation 10 Act. (2) Any other right that the taxpayer might, but for this subsection, have at common law to challenge the validity or correctness of an assessment or other decision is abrogated. 32. Objections to land valuations 15 The validity or correctness of a valuation under the Valuation of Land Act 1978 may only be challenged in proceedings under Part IV of that Act, and not by way of objection or appeal against an assessment under this Act based on the valuation. 33. Continuing obligation to pay assessed tax 20 An objection, appeal or case stated does not suspend or defer an obligation to pay tax. Division 2 -- Objections 34. Right to object (1) A taxpayer may object to -- 25 (a) an assessment; or (b) another decision under a taxation Act that affects the taxpayer's liability to taxation. page 18 Taxation Administration Bill 2001 Objections and appeals Part 4 Objections Division 2 s. 35 (2) However, an objection cannot be made against -- (a) the determination of an objection; (b) any reassessment made to give effect to the determination of an objection; 5 (c) an assessment of an amount of stamp duty and penalty tax that is assessed under Part IIIC of the Stamp Act 1921 and specified in a traffic infringement notice issued under section 102 of the Road Traffic Act 1974, unless the amount has been paid; 10 (d) a non-reviewable decision; (e) a decision in respect of which a taxation Act specifically provides other procedures for objection or appeal. (3) If a reassessment is made and the time for lodging an objection to the previous assessment has expired, an objection may only 15 be made against an increase in liability. 35. Form of objection An objection must -- (a) be in writing; (b) set out fully and in detail the grounds on which the 20 taxpayer objects to the assessment or decision; and (c) be lodged in accordance with section 106. 36. Time for lodging objection (1) An objection to an official assessment must be lodged within 60 days after -- 25 (a) the assessment notice is issued; or (b) if the assessment is denoted by stamping in accordance with section 23(2)(b) -- the date on which the document was stamped. page 19 Taxation Administration Bill 2001 Part 4 Objections and appeals Division 2 Objections s. 37 (2) An objection to a self-assessment must be lodged within 60 days after the due date for lodging the return related to the assessment. (3) An objection to another decision must be lodged within 60 days 5 after the day on which the person affected by the decision was notified of the decision. (4) However, the Commissioner may, on application by the taxpayer, extend the time for lodging an objection. (5) An application for an extension of time -- 10 (a) must be made within 12 months after the date on which the objection was to have been lodged under subsection (1), (2) or (3), but may be made before or after that date; and (b) must set out in detail the grounds on which the applicant 15 asks for an extension of time. (6) If objection is taken to a decision about self-assessment of tax, the date of the decision is taken to be the date by which the first return affected by the decision is to be lodged by the taxpayer after the taxpayer receives notice of the decision. 20 37. Consideration of objections (1) The Commissioner must consider and determine an objection, having regard to -- (a) the grounds set out in the objection and any other relevant written material submitted by the taxpayer; and 25 (b) any other information obtained by the Commissioner that is relevant to considering the objection, whether the information was obtained before or after the objection was lodged. (2) The onus of establishing that an assessment or decision to which 30 an objection relates is invalid or incorrect lies on the taxpayer. page 20 Taxation Administration Bill 2001 Objections and appeals Part 4 Objections Division 2 s. 38 (3) If the objection relates to an assessment that was made under section 19(1) on the basis of suspected liability -- (a) it is not necessary for the taxpayer to establish that there were no reasonable grounds for the suspicion; and 5 (b) the objection is to be allowed if the taxpayer establishes, on the balance of probabilities, that the taxpayer is not liable to the tax (or penalty tax) assessed. (4) On determining an objection, the Commissioner must serve on the taxpayer a notice setting out -- 10 (a) the decision on the objection; and (b) if the objection is disallowed in whole or part -- the reasons for the decision. 38. Time limit for determining objections (1) The Commissioner must determine an objection within the 15 decision period calculated under subsection (2). (2) The decision period is the initial period of 90 days beginning on the day the objection is lodged with the Commissioner, plus the number of days equal to the number of days the Commissioner needs (whether the needed days fall during or after the initial 20 90-day period) -- (a) to obtain from the taxpayer information that the Commissioner reasonably requires to determine the objection; (b) to consider any information provided by the taxpayer 25 after the objection was lodged; or (c) to obtain any advice and assistance from an external agency that the Commissioner reasonably requires to determine the objection. (3) The Commissioner must notify the taxpayer, before the end of 30 the initial 90-day period, of any periods by which the decision period has been extended up to the time of notification and, if page 21 Taxation Administration Bill 2001 Part 4 Objections and appeals Division 3 Appeals and stated cases s. 39 further delays extending the decision period occur after the initial notification, must keep the taxpayer reasonably informed about the extent and the reasons for the further delays. (4) If the Commissioner fails to determine an objection within the 5 decision period, the taxpayer may, by written notice to the Commissioner, require the Commissioner to refer the objection to the Supreme Court. (5) On receiving a request under subsection (4), the Commissioner must refer the objection to the Supreme Court by way of appeal 10 as soon as practicable. (6) The Supreme Court may -- (a) decide the questions raised by the referred objection; (b) make any consequential orders that may be necessary or appropriate in the circumstances of the case; and 15 (c) make orders for costs and other incidental matters. (7) Non-compliance with subsection (1) does not invalidate a determination on an objection. 39. Reassessment on determination of objection (1) If an objection is allowed wholly or in part, the Commissioner 20 must make a reassessment accordingly. (2) If, as a result of the reassessment, an amount is to be refunded or credited to the taxpayer, interest at the prescribed rate is payable on the amount from the date of payment to the date of the determination of the objection. 25 Division 3 -- Appeals and stated cases 40. Right of appeal (1) A person dissatisfied with the Commissioner's decision on an objection or on an application for an extension of time for lodging an objection may appeal against the decision. page 22 Taxation Administration Bill 2001 Objections and appeals Part 4 Appeals and stated cases Division 3 s. 41 (2) However, a taxpayer is not entitled to appeal against the Commissioner's decision on an objection on a ground that was not raised in the objection, unless the court or tribunal to which the appeal lies is satisfied that the taxpayer should be allowed to 5 introduce other grounds of appeal in the interests of justice and gives the taxpayer leave to do so. 41. Court or tribunal to which an appeal lies (1) An appeal under section 40(1) against a decision relating to an assessment or decision under the Land Tax Assessment Act 2001 10 may be made to the Land Valuation Tribunal, and the Tribunal has jurisdiction to hear and determine the appeal. (2) The Supreme Court has jurisdiction to hear and determine any other appeal under section 40(1). 42. Time for appeal 15 (1) An appeal must be commenced within 60 days after notice of the decision to which it relates is served on the taxpayer. (2) However, the court or tribunal to which the appeal lies may, on application by the taxpayer, extend the time for commencing an appeal. 20 (3) An application for an extension of time must be made within 12 months after the notice of the decision to which the proposed appeal relates is served on the taxpayer (but subject to that limitation may be made either before or after the end of the initial period of 60 days). 25 43. Appeal hearings (1) On hearing an appeal against a decision, the appellate court or tribunal may do any or all of the following -- (a) in the case of a decision on an objection to an assessment -- confirm the assessment, or direct the 30 Commissioner to make a reassessment in accordance with any directions given by the court or tribunal; page 23 Taxation Administration Bill 2001 Part 4 Objections and appeals Division 3 Appeals and stated cases s. 44 (b) in the case of any other decision -- confirm, vary or revoke the decision; (c) if the court or tribunal varies or revokes a decision -- substitute for the decision any other decision that the 5 Commissioner could have made in the circumstances; (d) make consequential and ancillary orders (including orders for costs). (2) The onus of establishing that an assessment or decision to which the appeal relates is invalid or incorrect lies on the taxpayer. 10 (3) If the final reassessment of the taxpayer's liability indicates that tax has been overpaid -- (a) the taxpayer is entitled to a refund or credit of the overpaid amount; and (b) interest on the overpaid amount, calculated at the 15 prescribed rate from the date on which the tax was paid to the date on which the overpaid amount is refunded or credited to the taxpayer, is payable to the taxpayer. (4) For the purposes of subsection (3) -- (a) the final reassessment of a taxpayer's liability is the last 20 assessment to have been made at the direction of a court or tribunal at the time that the case is discontinued or otherwise finally determined; and (b) a refund or credit of an overpaid amount, and any payment of interest payable on the overpaid amount 25 need not be made until rights of appeal against the decision (including any right that may exist to seek special leave to appeal to the High Court) have been exhausted or have expired, and no further reassessment can be made. 30 44. Cases stated by Commissioner (1) The Commissioner may state a case on a question of law arising under a taxation Act and forward the case to the Supreme Court. page 24 Taxation Administration Bill 2001 Objections and appeals Part 4 Appeals and stated cases Division 3 s. 44 (2) The Supreme Court -- (a) is to decide the question of law; and (b) may make orders for costs and other incidental matters. page 25 Taxation Administration Bill 2001 Part 5 Payment and refund of tax Division 1 Payment s. 45 Part 5 -- Payment and refund of tax Division 1 -- Payment 45. When tax is due for payment (1) Subject to this section, tax is due for payment on the date fixed 5 by or worked out in accordance with the relevant taxation Act. (2) If the relevant taxation Act does not make provision for the date of payment, the tax is due for payment on the date specified in the assessment notice. (3) If the tax is payable as a result of a reassessment, the tax is due 10 for payment on the date specified in the assessment notice. 46. Allocation of payment When the Commissioner receives a payment from a taxpayer, the payment is to be allocated as follows -- (a) if it is clear from the circumstances in which the 15 payment is made how the payment is to be allocated -- the payment is to be allocated accordingly; and (b) in any other case -- the payment is to be allocated to the taxpayer's tax liabilities as decided by the Commissioner. 20 47. Arrangements for instalments and extensions of time (1) The Commissioner may approve an arrangement (with or without amendment) -- (a) extending the time for paying tax; or (b) providing for the payment of tax in specified 25 instalments. (2) An application for approval of a proposed tax payment arrangement must set out the reasons that the taxpayer wants more time to pay the tax. page 26 Taxation Administration Bill 2001 Payment and refund of tax Part 5 Payment Division 1 s. 47 (3) A tax payment arrangement may include -- (a) conditions agreed with the taxpayer providing for the payment (and allowing for the remission) of interest at the prescribed rate or at some other rate fixed by or 5 under the arrangement with the agreement of the taxpayer; and (b) any other conditions the Commissioner considers appropriate. (4) The Commissioner may, by notice to the taxpayer, amend a tax 10 payment arrangement -- (a) by agreement with the taxpayer; or (b) as provided in the conditions of the arrangement. (5) The Commissioner may, by notice to the taxpayer, cancel a tax payment arrangement if -- 15 (a) a payment is not made in accordance with the arrangement; or (b) the taxpayer does not comply with any other condition of the arrangement. (6) On cancellation of a tax payment arrangement, the whole of the 20 tax outstanding under the arrangement (together with interest) becomes due and payable as from the date of cancellation or the original due date for payment of the tax to which the arrangement relates (whichever is the later). (7) Despite cancellation of a tax payment arrangement, interest 25 continues to accrue at the prescribed rate (or the other rate fixed by or under the arrangement) until the outstanding tax to which the arrangement formerly applied is paid. (8) A decision of the Commissioner under this section in connection with extending time for payment of tax or approving 30 payment of tax in instalments is non-reviewable. page 27 Taxation Administration Bill 2001 Part 5 Payment and refund of tax Division 2 Special tax return arrangements s. 48 48. No action to compel approval of tax payment arrangement No action can be brought in a court to compel the Commissioner to approve a tax payment arrangement. Division 2 -- Special tax return arrangements 5 49. Approval of special tax return arrangements (1) The Commissioner may make a special tax return arrangement with a taxpayer or another person in relation to a taxpayer's obligations under a taxation Act. (2) Without limiting subsection (1), a special tax return 10 arrangement may be made with -- (a) a particular taxpayer in relation to the taxpayer's obligations under a taxation Act; (b) a particular taxpayer in relation to obligations the taxpayer has jointly with other taxpayers under a 15 taxation Act; or (c) an agent in relation to obligations of taxpayers for whom the agent is authorised to act. (3) A special tax return arrangement is to be made -- (a) in writing; and 20 (b) on terms agreed between the Commissioner and the responsible party. 50. Content of special tax return arrangement (1) A special tax return arrangement -- (a) may require the lodging of returns, and the self 25 assessment and payment of tax, in accordance with the arrangement; (b) may require compliance with any other obligations imposed under the conditions of the arrangement; page 28 Taxation Administration Bill 2001 Payment and refund of tax Part 5 Special tax return arrangements Division 2 s. 51 (c) may exempt the taxpayer or taxpayers covered by the arrangement from compliance with specified administrative requirements of a taxation Act; (d) may provide for the stamping or endorsement of 5 instruments with the amount of tax paid under the special arrangement, or to denote that tax is not payable in respect of the instrument; and (e) may require the responsible party to keep specified records. 10 (2) If an instrument that the responsible party is required to include in a tax return would be of no effect until registered under an enactment, then it is a condition of the arrangement that the responsible party is to include the instrument in a return before the instrument is lodged for registration. 15 (3) If a condition of a special tax return arrangement is contravened, the responsible party commits an offence. Penalty: $20 000. (4) A special tax return arrangement does not transfer the taxpayer's tax liability from the taxpayer to the responsible 20 party. 51. Instruments stamped or endorsed under a special tax return arrangement (1) An instrument stamped or endorsed in accordance with a special tax return arrangement is taken to have been stamped. 25 (2) A person who stamps or endorses an instrument so as to suggest or imply that the instrument has been properly stamped or endorsed under a special tax return arrangement commits an offence unless the instrument is properly stamped or endorsed in accordance with the conditions of the special arrangement. 30 Penalty: $20 000. page 29 Taxation Administration Bill 2001 Part 5 Payment and refund of tax Division 3 Refunds of tax s. 52 52. Lodging returns under special tax return arrangement (1) A return lodged under a special tax return arrangement must -- (a) be in a form approved by the Commissioner; (b) contain the information required by the form; and 5 (c) contain any other information required by the Commissioner that is relevant to assessing the tax payable for the matters covered by the return. (2) A return must be lodged within 15 days after the end of the return period, unless the special tax return arrangement or a later 10 agreement between the Commissioner and the responsible party provides otherwise. (3) The return period for a special tax return arrangement is a month, unless the arrangement or a later agreement between the Commissioner and the responsible party provides otherwise. 15 (4) A responsible party who is required to lodge a return under a special tax return arrangement must lodge the return in accordance with this section and with the arrangement. Penalty: $5 000. 53. Amendment or cancellation of arrangement 20 (1) The Commissioner may, by agreement with the responsible party, amend the conditions of a special tax return arrangement. (2) The Commissioner may, by notice served on the responsible party, cancel a special tax return arrangement. Division 3 -- Refunds of tax 25 54. Power to make refund (1) The Commissioner must refund tax to a taxpayer if -- (a) as a result of a reassessment, it appears that an overpayment of tax has been made; page 30 Taxation Administration Bill 2001 Payment and refund of tax Part 5 Refunds of tax Division 3 s. 55 (b) the Commissioner is satisfied on an application for a refund under this section that an overpayment of tax has been made; or (c) in the circumstances of a particular case, the 5 Commissioner is required by a taxation Act to make a refund of tax. (2) However, instead of repaying the amount to be refunded, the Commissioner may credit the amount of the refund against the taxpayer's existing and future tax liabilities (but the 10 Commissioner must not credit an amount of $50 or more against future liabilities if the taxpayer requests repayment). (3) An application for a refund may only be made -- (a) on a ground on which refunds are authorised or required by a taxation Act; or 15 (b) on the ground that the amount paid by the taxpayer exceeds the amount of tax payable in accordance with the relevant assessment. (4) An application for a refund under this section must be made -- (a) within a period fixed by a taxation Act for making the 20 application; or (b) if no period is fixed by a taxation Act -- within 5 years of the date when the overpayment was made. 55. Refund to be passed on in certain cases (1) This section applies to payment of any of the following taxes -- 25 (a) pay-roll tax; (b) duty payable under Part IIIF or Part IVB of the Stamp Act 1921; (c) debits tax. page 31 Taxation Administration Bill 2001 Part 5 Payment and refund of tax Division 3 Refunds of tax s. 55 (2) If -- (a) the tax payable by the taxpayer is paid out of money provided by a third party, or a third party reimburses the taxpayer for payment of tax; and 5 (b) the tax is, in whole or part, refunded or credited to the taxpayer (whether under this Division or not), then the taxpayer is to reimburse the third party in accordance with subsection (3) or (4), as the case requires. (3) If the third party provided all the money with which the tax 10 payment was made, or fully reimbursed the taxpayer for the payment, the taxpayer must reimburse the third party with an amount equal to the amount of the refund or credit. (4) If the third party contributed part only of the tax payment, or partially reimbursed the taxpayer for the payment, the taxpayer 15 must reimburse the third party with an amount that bears the same proportion to the amount of the refund or credit as the amount of the refund or credit amount bears to the amount of the payment. (5) The taxpayer must -- 20 (a) make the reimbursement to the third party within 90 days after the refund was paid or credited to the taxpayer or within any longer period allowed by the Commissioner; or (b) if the reimbursement is not made within that period -- 25 repay the amount of the refund to the Commissioner or ask the Commissioner to cancel the credit in the taxpayer's favour within 7 days from the end of that period. Penalty: $20 000. 30 (6) The Commissioner may recover any amount that should have been, but was not, repaid under subsection (5)(b) as if it were unpaid tax. page 32 Taxation Administration Bill 2001 Payment and refund of tax Part 5 Power to waive or write off liability Division 4 s. 56 (7) No action can be brought in a court to compel the Commissioner to take or refrain from taking proceedings for recovery of the amount refunded or credited to the taxpayer. Division 4 -- Power to waive or write off liability 5 56. Waiver of tax (1) The Commissioner may waive the payment of tax or another amount payable under a taxation Act (for example, interest or legal costs), up to a prescribed limit. (2) If the Commissioner waives the payment of tax or some other 10 amount payable under a taxation Act, the liability to make the payment is extinguished. (3) A decision by the Commissioner to waive tax, or not to waive tax, is non-reviewable. 57. Writing off tax liability 15 (1) The Commissioner may write off a tax liability, or a liability to pay another amount under a taxation Act, if satisfied that action or further action to recover the tax or other amount is impracticable or unwarranted. (2) Writing off a liability does not -- 20 (a) extinguish the liability; or (b) preclude the Commissioner from taking later action to recover the amount of the liability. (3) A decision by the Commissioner to write off a liability, or not to write off a liability, is non-reviewable. 25 58. Powers subject to Financial Administration and Audit Act 1985 This Division is to be read subject to the Financial Administration and Audit Act 1985. page 33 Taxation Administration Bill 2001 Part 5 Payment and refund of tax Division 4 Power to waive or write off liability s. 59 59. No action to compel waiver or writing off No action can be brought in a court to compel the Commissioner to waive payment of tax or to write off a tax liability. page 34 Taxation Administration Bill 2001 Recovery of tax Part 6 Recovery generally Division 1 s. 60 Part 6 -- Recovery of tax Division 1 -- Recovery generally 60. Recovery of unpaid tax (1) Unpaid tax is a debt due to the State. 5 (2) The Commissioner may recover unpaid tax on behalf of the State by action in any court of competent jurisdiction. 61. Power of court to order payment of tax When a court convicts a person of an offence against a taxation Act, the court may (in addition to any penalty imposed for the 10 offence) order the convicted person to pay tax outstanding at the time of the conviction. 62. Recovery of costs and interest In this Part, a reference to tax is to be read as including -- (a) legal costs incurred by the Commissioner in relation to 15 proceedings for the recovery of the tax; (b) costs incurred for lodging a memorial under section 70 or 73; (c) interest payable under a tax payment arrangement; and (d) prescribed costs. 20 63. Recovery of tax in cases of joint liability (1) If 2 or more persons are jointly liable for tax, the whole of the tax may be recovered from any one or more of them. (2) This section does not affect the right of a taxpayer who pays tax to recover contributions from a person jointly liable for the tax. page 35 Taxation Administration Bill 2001 Part 6 Recovery of tax Division 1 Recovery generally s. 64 64. Notice of administrator's appointment (1) A person who is appointed as statutory administrator of a taxpayer's assets must, within 14 days of appointment, or within any longer time allowed by the Commissioner, serve on the 5 Commissioner written notice of the appointment. Penalty: $5 000. (2) However, in prescribed circumstances a statutory administrator does not have to serve notice of the appointment. (3) For the purposes of this section, a person is a "statutory 10 administrator of a taxpayer's assets" if the person is -- (a) a liquidator of a corporate taxpayer; (b) a receiver or receiver and manager of the whole or a part of a taxpayer's property; (c) a taxpayer's trustee in bankruptcy; or 15 (d) a person who holds a prescribed position or prescribed powers in relation to a taxpayer or a taxpayer's affairs. 65. Power to garnishee (1) The Commissioner may serve a garnishee notice on a person (the "garnishee") if the Commissioner believes on reasonable 20 grounds that the garnishee -- (a) holds or may receive money for or on account of a taxpayer; (b) is liable or may become liable to pay money to a taxpayer; or 25 (c) has authority to pay money to a taxpayer. (2) A garnishee notice is a notice -- (a) requiring the garnishee to pay money in the garnishee's possession or control to which the taxpayer is or becomes entitled to the Commissioner up to the amount 30 of a liability for tax stated in the notice; and page 36 Taxation Administration Bill 2001 Recovery of tax Part 6 Recovery generally Division 1 s. 66 (b) fixing a time for payment (which cannot be before the time the taxpayer becomes entitled to the money). (3) The Commissioner may serve a garnishee notice even though the taxpayer's entitlement to the money may be subject to 5 unfulfilled conditions. (4) The Commissioner must serve a copy of the garnishee notice on the taxpayer. (5) If the liability to which a garnishee notice relates is discharged wholly or partly before the time for payment under the notice 10 and the discharge or partial discharge affects the amount to be recovered from the garnishee, the Commissioner must, by notice served on the garnishee and the taxpayer -- (a) inform them of that fact; and (b) state whether and, if so, how the garnishee's obligation 15 under the garnishee notice is affected by the discharge or partial discharge of the liability. (6) A garnishee who does not comply with a garnishee notice commits an offence. Penalty: $20 000. 20 (7) A garnishee who is under an obligation to pay money to the taxpayer is taken to have satisfied that obligation to the extent of the payment made under the garnishee notice. 66. Recovery from partnerships and other associations If a tax liability is incurred by or on behalf of a partnership, the 25 tax is recoverable jointly and severally from any one or more of the partners. 67. Recovery from directors of body corporate (1) If the Commissioner issues an assessment notice to a body corporate and the amount assessed is not paid by the due date, 30 the Commissioner may serve a notice on the directors of the page 37 Taxation Administration Bill 2001 Part 6 Recovery of tax Division 1 Recovery generally s. 67 body corporate informing them that they will become jointly and severally liable with the body corporate for the payment of the tax unless before the expiration of 28 days from the date of the notice the body corporate remedies its default. 5 (2) The Commissioner must serve a notice under subsection (1) by arranging for a copy of the notice to be given to each director personally. (3) However, if, after exercising due diligence, it appears to the Commissioner that it is not practicable to give a copy of the 10 notice personally to a director -- the copy of the notice may be sent, by prepaid post requiring proof of delivery, to the director at his or her last known personal or business address. (4) For the purpose of this section, a body corporate is taken to remedy a default if -- 15 (a) the liability is paid; (b) the Commissioner by notice to the body corporate offers the body corporate an opportunity to enter into a tax payment arrangement, and the body corporate enters into the tax payment arrangement on conditions 20 satisfactory to the Commissioner; (c) the body corporate enters into voluntary administration under Part 5.3A of the Corporations Act 2001 of the Commonwealth; or (d) the body corporate goes into liquidation. 25 (5) If the body corporate fails to remedy its default within the time specified in the notice to a director under this section, the directors become jointly and severally liable, with the body corporate, for the payment of the tax liability assessed against the body corporate. 30 (6) If a body corporate remedies its default by entering into a tax payment arrangement but later contravenes a condition of the arrangement, the body corporate's default is taken to revive and page 38 Taxation Administration Bill 2001 Recovery of tax Part 6 Charges on land Division 2 s. 68 the Commissioner may serve another notice on the directors under this section. (7) In proceedings for recovery of tax from a director under this section, it is a defence for the director to establish that -- 5 (a) the director took all reasonable steps that were possible in the circumstances to get the body corporate to remedy its default; or (b) the director was unable because of illness or for some other proper reason to take steps to get the body 10 corporate to remedy its default. (8) If a director pays tax or tax is recovered from a director under this section, the director is entitled to be indemnified by the body corporate for the amount paid or recovered. (9) This section does not apply in relation to a director of a body 15 corporate to which the Statutory Corporations (Liability of Directors) Act 1996 applies. Division 2 -- Charges on land 68. Charge on land to secure land tax (1) Unpaid land tax is a first charge on the land for which the land 20 tax is payable -- (a) whether or not the land tax is due for payment; and (b) whether or not a memorial of the charge has been registered under section 75. (2) If the land tax is not paid by the due date, the Commissioner 25 may lodge a memorial of the charge with the Registrar of Titles. (3) If a cheque given in purported payment of land tax is dishonoured on first presentation (even though the due date may not have arrived when the cheque is dishonoured), the land tax is taken not to be paid by the due date for the purposes of 30 subsection (2). page 39 Taxation Administration Bill 2001 Part 6 Recovery of tax Division 2 Charges on land s. 69 (4) A charge on land arising under subsection (1) takes priority over all other encumbrances on the land. (5) The taxpayer's liability to pay the land tax continues until it is paid, despite any disposition of the land. 5 (6) If there is a disposition of the land before the tax is paid, the new owner becomes liable to pay the tax. (7) If land tax is assessed in relation to land comprising a number of separate lots or parcels -- (a) the charge attaches to each separate lot or parcel; and 10 (b) the amount secured by the charge on an individual lot or parcel is the amount that bears to the total amount of the unpaid tax the same proportion that the unimproved value of the lot or parcel bears to the total unimproved value of the land. 15 (8) However, this section does not apply in relation to land owned by, or vested in the State, or any agency or instrumentality of the State, or a local government or any other public statutory authority. 69. Charge on land to secure stamp duty 20 (1) If stamp duty payable under item 4, 10, 14A, 15, 17 or 19 of the Second Schedule to the Stamp Act 1921 on an instrument in relation to land as defined in section 76 of that Act is not paid by the due date, the Commissioner may lodge a memorial with the Registrar of Titles to create a charge on the land for the 25 unpaid stamp duty. (2) If stamp duty payable under Part IIIBA of the Stamp Act 1921 in relation to land as defined in section 76 of that Act is not paid by the due date, the Commissioner may lodge a memorial with the Registrar of Titles to create a charge for the unpaid stamp 30 duty -- (a) on the land in relation to which the duty is payable; and page 40 Taxation Administration Bill 2001 Recovery of tax Part 6 Charges on land Division 2 s. 70 (b) on land owned by a person who is related to the taxpayer as mentioned in subsection (6). (3) However, if stamp duty is assessed under section 76AA of the Stamp Act 1921 in relation to land as defined in section 76 of 5 that Act, then, at any time after the assessment is made, the Commissioner may lodge a memorial with the Registrar of Titles to create a charge for the unpaid stamp duty -- (a) on the land in relation to which the duty is payable; and (b) on land owned by a person who is related to the 10 taxpayer as mentioned in subsection (6). (4) The charge arises on the land referred to in subsection (1), (2) or (3) when the memorial is registered under section 75. (5) If a cheque given in purported payment of stamp duty is dishonoured on first presentation (even though the due date may 15 not have arrived when the cheque is dishonoured), the stamp duty is taken not to be paid by the due date for the purposes of subsections (1) and (2). (6) A person is related to a taxpayer for the purposes of subsection (2) or (3) if -- 20 (a) both the person and the taxpayer are bodies corporate and one is a subsidiary of the other within the meaning of section 76AI(4) of the Stamp Act 1921; or (b) the person is a body corporate and a beneficiary under a trust, or a potential beneficiary under a discretionary 25 trust, of which the taxpayer is a trustee. 70. Prohibition on dealing with certain charged land (1) A memorial lodged under section 68 or 69 may provide that, after it is registered, the Registrar of Titles is not to register any dealing with the land without the consent of the Commissioner 30 unless the Commissioner has lodged a memorial releasing the land from the charge, and the memorial of the release has been registered. page 41 Taxation Administration Bill 2001 Part 6 Recovery of tax Division 2 Charges on land s. 71 (2) The registration of a memorial that prohibits dealing with land does not -- (a) prevent a person from lodging with the Registrar of Titles an instrument relating to a dealing with the land; 5 or (b) prevent the Registrar of Titles from accepting an instrument relating to a dealing with the land. (3) If a memorial of a charge prohibits dealing with land then, on the registration of a memorial releasing the land from the 10 charge, an instrument lodged previously with the Registrar of Titles has effect as if the memorial of the charge had not been registered. 71. Priority of charge (1) When a memorial of a charge on land is registered under this 15 Act, the charge is the first charge on the land and has priority over all other mortgages, charges and encumbrances over the land. (2) However, if there is another statutory charge on the same land that ranks as a first charge under another Act, the relative 20 priority of the charges is to be determined according to the order of registration. 72. Certificate of land tax secured by charge (1) The Commissioner must, on application by the owner or a purchaser of land, issue a certificate -- 25 (a) stating whether there is a charge on the land under section 68 or 69; and (b) if there is -- (i) stating the amount of unpaid land tax or unpaid stamp duty secured by the charge; page 42 Taxation Administration Bill 2001 Recovery of tax Part 6 Charges on land Division 2 s. 73 (ii) in the case of land tax that is yet to be assessed -- estimating the amount to be assessed. (2) The certificate estops the Commissioner from -- 5 (a) asserting the existence of a charge not disclosed in the certificate; or (b) asserting that a charge covered (at the date of the certificate) an amount exceeding the amount disclosed in the certificate. 10 (3) However, giving an estimate in the certificate of an amount of land tax does not estop the Commissioner from assessing a different amount of land tax if further relevant information becomes available. (4) The prescribed fees are payable for the issue of the certificate. 15 73. Release of land from charge (1) If a memorial of a charge on land is registered, then, on payment of the amount secured by the charge, the Commissioner must serve on the taxpayer an instrument releasing the land from the charge. 20 (2) However, if land tax is assessed in relation to land comprising a number of separate lots or parcels, the Commissioner is not obliged to release any lot or parcel from the charge unless the whole of the land tax is paid. 74. Form of memorial 25 (1) The Registrar of Titles may approve the form of memorials lodged under this Act. (2) A memorial must be in a form approved by the Registrar of Titles. page 43 Taxation Administration Bill 2001 Part 6 Recovery of tax Division 2 Charges on land s. 75 75. Registration of memorials and releases (1) When a memorial is lodged under this Act, the Registrar of Titles must register it. (2) On the application of the owner of the land accompanied by an 5 instrument of release issued under section 73(1), the Registrar of Titles must register the release of the land from the charge. 76. Notification of mortgagees When a memorial in relation to land is registered, the Commissioner must notify all mortgagees who hold registered 10 mortgages over the land of the registration of the memorial (but failure to do so does not invalidate the registration of the memorial). 77. Orders for sale of land (1) If tax on land or property remains unpaid for 18 months or more 15 after the registration of the charge on the land or property, the Commissioner may apply to the Supreme Court for an order for the sale of the land (or part of the land) so that the proceeds of sale may be applied towards satisfaction of the outstanding tax liability. 20 (2) A single application may be made under this section in relation to a number of separate lots or parcels in the same ownership. (3) At least 6 months before the Commissioner makes an application to the Supreme Court under this section, the Commissioner must -- 25 (a) have notice of the intended application published in 2 newspapers -- (i) one circulating generally throughout Western Australia; and (ii) the other circulating generally throughout 30 Australia; page 44 Taxation Administration Bill 2001 Recovery of tax Part 6 Charges on land Division 2 s. 77 (b) if the whereabouts of the owner of the land is known to the Commissioner -- serve notice of the intended application on the owner; and (c) serve notice of the intended application on the holder of 5 any registered encumbrance over the land whose address is known to the Commissioner. (4) On an application under this section, the Supreme Court may order the sale of the land and make incidental orders -- (a) about how the sale is to be conducted; 10 (b) authorising an officer of the court to execute documents, and to do anything else necessary, for the sale and conveyance of the land; (c) authorising the Registrar of Titles to register a transfer to a purchaser without requiring the duplicate (if any) of 15 the certificate of title or of any other document; (d) directing (subject to subsection (5)) how the proceeds of sale are to be dealt with; and (e) dealing with costs of the proceedings and other incidental matters. 20 (5) A sale by order of the Supreme Court is to discharge the land from any mortgage or other encumbrance securing a monetary obligation, but the land remains subject to any lease, easement or other encumbrance. (6) The proceeds of the sale are to be applied as follows -- 25 (a) firstly, in payment of the costs of the sale; (b) secondly, in payment of costs of proceedings so far as those costs are, by order of the court, to be paid out of the proceeds of sale; (c) thirdly, in discharge of the outstanding tax liability 30 secured by the charge; page 45 Taxation Administration Bill 2001 Part 6 Recovery of tax Division 2 Charges on land s. 78 (d) fourthly, in discharge of any outstanding monetary liability secured by a mortgage or other encumbrance securing a monetary obligation; and (e) lastly, any remaining balance is to be applied as directed 5 by the court. 78. Means of enforcement not limited to charge The existence or registration of a charge under this Division does not affect the Commissioner's discretion to proceed for recovery of the outstanding tax in proceedings unrelated to the 10 charge. page 46 Taxation Administration Bill 2001 Tax records Part 7 s. 79 Part 7 -- Tax records 79. How long tax records are to be kept A person required to keep a tax record under a taxation Act must, unless the Act otherwise provides, retain the tax record 5 for at least 5 years after -- (a) the date it was made by the person or, if it was not made by the person, the date it was obtained by the person; or (b) if it relates to a transaction, the date of completion of the transaction, 10 whichever is the later. Penalty: $20 000. 80. Form of tax records (1) A person required to keep a tax record must ensure that it is kept -- 15 (a) in the form of a document in the English language, or in some other form which can be readily converted into a document in the English language or from which a document in the English language can be readily reproduced; or 20 (b) in some other form allowed by the regulations. Penalty: $20 000. (2) If a person required to keep a tax record does not keep it in the form of a document in the English language, the Commissioner may request the person to convert it to such a document within a 25 reasonable time. (3) If the person does not comply with the request, the Commissioner may -- (a) have the tax record converted; and page 47 Taxation Administration Bill 2001 Part 7 Tax records s. 81 (b) recover from the person as a debt the reasonable cost of converting it. 81. Where tax records are to be kept (1) A person required to keep a tax record must keep it in Western 5 Australia unless -- (a) the taxation Act specifically allows the tax record to be kept elsewhere; (b) the regulations allow the tax record to be kept elsewhere; or 10 (c) the Commissioner gives approval allowing the tax record to be kept elsewhere. Penalty: $20 000. (2) The Commissioner may require a person who keeps a tax record outside Western Australia to bring it into Western Australia 15 within a reasonable time allowed by the Commissioner. (3) A person who does not comply with a requirement under subsection (2) commits an offence. Penalty: $20 000. (4) The Commissioner may recover as a debt, from a person 20 required to keep a tax record, costs reasonably incurred by the Commissioner as a result of the person's failure to comply with subsection (1) or with a requirement made under this section. (5) If a tax record is brought into Western Australia in accordance with a requirement under subsection (2), the tax record does not 25 give rise to any tax liability that would not have existed if it had not been brought into Western Australia. 82. Failure to keep proper tax records A person commits an offence if the person -- (a) makes an entry in a tax record knowing the entry to be 30 false or misleading in a material particular; page 48 Taxation Administration Bill 2001 Tax records Part 7 s. 83 (b) keeps a tax record knowing it to be false or misleading in a material particular; or (c) wilfully damages or destroys a tax record. Penalty: $20 000 plus 3 times the amount of tax that was 5 avoided or might have been avoided if the false or misleading entry or tax record had been accepted as true. 83. General and specific exemptions (1) An exemption of general application may be given by regulation from -- 10 (a) the requirement to keep a tax record; or (b) incidental requirements relating to the keeping of a tax record. (2) The Commissioner may, by notice to a person, exempt the person from -- 15 (a) the requirement to keep a tax record; or (b) other requirements incidental to keeping a tax record. (3) An exemption may be given subject to conditions specified in the relevant regulation or notice of exemption. (4) The Commissioner may amend or cancel an exemption given to 20 a person under subsection (2) by giving notice to the person of the amendment or cancellation. page 49 Taxation Administration Bill 2001 Part 8 Investigations Division 1 Investigations s. 84 Part 8 -- Investigations Division 1 -- Investigations 84. Investigations An investigation may be carried out under this Part for any or 5 all of the following purposes -- (a) to ascertain whether a tax liability exists; (b) to gather any information relevant to making an assessment; (c) to gather any information relevant to making a decision 10 under a taxation Act; (d) to audit tax records; (e) to gather evidence of a suspected contravention of a taxation Act; (f) any other purpose relevant to the administration of a 15 taxation Act. 85. Investigations for the purposes of recognised revenue laws (1) The Commissioner may, by agreement with the corresponding Commissioner of a recognised jurisdiction -- (a) authorise the corresponding Commissioner to carry out 20 an investigation under this Part for the purposes of a recognised revenue law in force in the jurisdiction; or (b) carry out an investigation under this Part on behalf of the corresponding Commissioner for the purposes of a recognised revenue law in force in the jurisdiction. 25 (2) The Commissioner may only exercise powers under this section if the law of the recognised jurisdiction has reciprocal provisions providing for investigations by or on behalf of the Commissioner. page 50 Taxation Administration Bill 2001 Investigations Part 8 Obtaining tax records and other information Division 2 s. 86 (3) For the purposes of carrying out an investigation under this section for the purposes of a recognised revenue law -- (a) a reference in this Part to tax is to be read as a reference to tax payable under the recognised revenue law; 5 (b) a reference to a tax liability is to be read as a reference to a tax liability under the recognised revenue law; (c) a reference to a taxation Act is to be read as a reference to the recognised revenue law; and (d) a reference to a contravention of a taxation Act is to be 10 read as a reference to a contravention of the recognised revenue law. (4) If the Commissioner authorises a corresponding Commissioner of a recognised jurisdiction to carry out an investigation under this Part -- 15 (a) a reference in this Part to the Commissioner is to be read as a reference to the corresponding Commissioner; (b) a reference in this Part to an investigator is to be read as a reference to a person authorised to take part in the investigation under a recognised revenue law in force in 20 the recognised jurisdiction; and (c) a reference in this Part to an investigator's identity card, in relation to a person authorised to take part in the investigation under a recognised revenue law in force in the recognised jurisdiction, is to be read as a reference to 25 an identification card or certificate issued to the person under the recognised revenue law. Division 2 -- Obtaining tax records and other information 86. Requirements to provide information and tax records (1) The Commissioner may, for investigation purposes, require a 30 taxpayer or any other person -- (a) to provide oral or written answers to specified questions; or page 51 Taxation Administration Bill 2001 Part 8 Investigations Division 2 Obtaining tax records and other information s. 87 (b) to produce to the Commissioner specified relevant material or relevant material of a specified class, in the person's possession or control. (2) The Commissioner may make the requirement -- 5 (a) if an oral response is required -- orally; or (b) in any other case -- by notice served on the person to whom the requirement is addressed. (3) The Commissioner may require a person to verify written answers to questions by statutory declaration. 10 (4) A person must comply with a requirement under this section within the time specified in the notice or within any further time allowed by the Commissioner. Penalty: $20 000. 87. Power to require person to attend for examination 15 (1) The Commissioner may, for investigation purposes, require a taxpayer or any other person to attend for examination by an investigator. (2) A requirement is to be made by notice served on the taxpayer or other person. 20 (3) A notice -- (a) must indicate the time and place fixed for the examination (which must, if practicable, be reasonably convenient to the person to be examined); (b) must indicate the subject of the examination; and 25 (c) may require the person to bring and produce to the examining investigator relevant material in the person's possession or control relating to the subject of the examination. page 52 Taxation Administration Bill 2001 Investigations Part 8 Obtaining tax records and other information Division 2 s. 88 (4) An investigator conducting an examination -- (a) may require a person attending for examination to make an oath to answer all questions truthfully and may administer the oath; 5 (b) may require the person to answer a question relevant to the subject matter of the examination put by the investigator, or with the consent of the investigator, by another person present at the examination; and (c) may require the person to produce for examination by 10 the investigator relevant material in the person's possession at the examination. (5) A person must comply with a requirement under this section. Penalty: $20 000. (6) A person, other than a taxpayer or a taxpayer's representative, 15 who attends for examination is entitled to be paid the prescribed fees and expenses. 88. Power to retain documents The Commissioner may retain any instrument or other document in his possession that is relevant to performing his or 20 her functions under a taxation Act for as long as is necessary -- (a) to examine it or copy it, or both; (b) if it is relevant to proceedings that have been or may be instituted -- for the purposes of the proceedings; (c) in the case of an instrument on which tax is payable -- 25 until the tax is paid; (d) in the case of a document that is relevant to making an assessment -- until the assessment is made and any tax payable as a result of the assessment is paid. page 53 Taxation Administration Bill 2001 Part 8 Investigations Division 3 Access to premises s. 89 89. Recording examination proceedings (1) An investigator may make a recording of the questions asked by an investigator and the answers given by a person who attends for examination under section 87. 5 (2) If an investigator decides to make a record, the investigator must advise the person attending for examination to that effect before recording begins. Division 3 -- Access to premises 90. Entry of premises 10 (1) Subject to subsection (2), an investigator may, for investigation purposes, enter and remain on premises to exercise his or her powers of investigation. (2) The investigator may only enter residential premises as follows -- 15 (a) the investigator may enter the premises at any reasonable time with the consent of the occupier of the premises; (b) the investigator may enter the premises in accordance with the authorisation conferred by a warrant; 20 (c) if the investigator believes, on reasonable grounds, that it is urgently necessary to do so in order to prevent the destruction of or interference with relevant material, the investigator may enter the premises at any time without the consent of the occupier and without warrant. 25 (3) The investigator must not exercise the power set out in subsection (2)(c) unless the Commissioner has, in the particular case, authorised the investigator to do so. page 54 Taxation Administration Bill 2001 Investigations Part 8 Access to premises Division 3 s. 91 (4) The investigator must, on first encountering a person apparently in a position of authority on the premises, and also on the reasonable request of any other person on the premises -- (a) display his or her identity card to the person or persons 5 respectively; and (b) if the investigator has entered or is about to enter the premises under a warrant -- display the warrant to the person or persons respectively. 91. Powers of investigator while on premises 10 (1) When an investigator exercises his or her powers of entry under this Act, the investigator may do any or all of the following -- (a) search the premises and examine anything on the premises (opening it if necessary and, if specifically authorised to do so by the Commissioner, breaking it 15 open); (b) take possession of, and remove from the premises, documents, or anything else relevant to the investigation, found in the course of exercising his or her powers under this Act; 20 (c) take extracts from or make copies of, or download or print-out, any documents found in the course of carrying out his or her functions under this Act; (d) photograph or film anything on the premises; (e) if anything on the premises that is relevant to the 25 investigation cannot be conveniently removed -- secure it against interference; (f) require any person who is on the premises -- (i) to state his or her full name and address; (ii) to answer (orally or in writing) questions put by 30 the investigator that are relevant to the investigation; page 55 Taxation Administration Bill 2001 Part 8 Investigations Division 3 Access to premises s. 91 (iii) to give the investigator any information in the person's possession or control that is relevant to the investigation; (iv) to operate or allow the investigator to operate 5 equipment or facilities on the premises for investigation purposes; (v) to give the investigator any translation, code, password or other information necessary to gain access to or to interpret and understand any 10 document or information located or obtained by the investigator in the course of exercising his or her functions under this Act; (vi) to give other assistance that the investigator reasonably requires to carry out the investigation. 15 (2) A person who -- (a) does not comply with a requirement under subsection (1)(f); or (b) gives an investigator information that the person knows to be false or misleading, 20 commits an offence. Penalty: $20 000. (3) An investigator is not authorised to take anything from premises unless he or she -- (a) gives the occupier or another person apparently 25 responsible to the occupier a receipt for the thing taken, if requested to do so by the occupier or other person; or (b) if the occupier or a person apparently responsible to the occupier is not present, leaves a receipt for the thing taken, in an envelope addressed to the occupier, in a 30 prominent position on the premises. (4) A receipt is to be in a form approved by the Commissioner. page 56 Taxation Administration Bill 2001 Investigations Part 8 Access to premises Division 3 s. 92 (5) The Commissioner must ensure that a person from whom a document or anything else is taken under this section and who would otherwise be entitled to possession of it is given a copy of it, or reasonable access to it, as appropriate. 5 (6) If an investigator takes possession of anything under this section, the Commissioner must ensure that it is returned to the person entitled to possession of it as follows -- (a) if it was taken in connection with the prosecution or possible prosecution of a suspected tax contravention of 10 a taxation Act -- as soon as practicable after the relevant prosecution is completed or discontinued or, if no prosecution is commenced, as soon as practicable after the decision is made not to prosecute the suspected contravention; 15 (b) if it was an instrument on which duty was payable -- as soon as practicable after assessment and payment of the relevant duty; (c) in any other case -- within 28 days after it was taken. 92. Warrants to enter premises 20 (1) If a justice is satisfied by a complaint on oath that it is reasonably necessary for an investigator to enter premises for investigation purposes, the justice may issue a warrant authorising an investigator -- (a) to enter the premises at a time or within a period stated 25 in the warrant; and (b) to exercise the powers of search and investigation conferred by this Part. (2) An investigator who applies to a justice or magistrate for a warrant under this section must produce his or her identity card 30 to the justice or magistrate. (3) The authority conferred by a warrant may be exercised by the investigator who applied for the warrant or by any other investigator. page 57 Taxation Administration Bill 2001 Part 8 Investigations Division 4 General provisions s. 93 93. Use of force (1) An investigator may use reasonable force -- (a) to enter premises under this Part; or (b) to exercise powers under section 91(1)(a) to (e). 5 (2) However, if the use of reasonable force is likely to cause damage to property, the investigator is not entitled to use force unless the Commissioner has, in the particular case, authorised the investigator to do so. Division 4 -- General provisions 10 94. Complying with information requirements (1) A person is not excused from complying with a requirement under this Part to provide information or relevant material on the grounds that complying with the requirement would tend to incriminate the person or render the person liable to a penalty. 15 (2) However, information or material provided by the person in compliance with the requirement is not admissible in evidence in any proceedings against the person for an offence against a taxation Act except an offence against section 86(4), 87(5) or 91(2). 20 (3) A person is not excused from complying with a requirement under this Part to provide an official document on the grounds that the document is protected by legal professional privilege. (4) A person who claims, either on the person's own behalf or on behalf of another person, to be excused from complying with a 25 requirement under this Part to provide information or relevant material on the grounds that the information or material is protected by legal professional privilege commits an offence if the person knew, or could reasonably be expected to have known, that he or she does not have reasonable grounds for 30 making the claim. Penalty: $20 000. page 58 Taxation Administration Bill 2001 Investigations Part 8 General provisions Division 4 s. 95 95. Interaction with other Acts This Part prevails over -- (a) any law that would otherwise protect from disclosure information about the transfer or ownership of a 5 statutory licence; (b) any law that would otherwise protect from disclosure information about payments made for the benefit of employees; (c) any law that would otherwise protect from disclosure 10 information about the registration, transfer of registration or ownership of motor vehicles; (d) any law that would otherwise protect from disclosure information about the transfer or ownership of mining tenements or petroleum licences; 15 (e) any law that would otherwise protect from disclosure information about the whereabouts of taxpayers; and (f) any other prescribed law that would otherwise protect information from disclosure. page 59 Taxation Administration Bill 2001 Part 9 Offences s. 96 Part 9 -- Offences 96. General penalty provision (1) A person who commits an offence against a taxation Act for which no penalty is specifically provided is liable on conviction 5 to a penalty not exceeding $20 000. (2) If a person does not comply with a requirement made under a taxation Act by the Commissioner or an investigator, and no penalty is specifically provided for the non-compliance, the person commits an offence. 10 Penalty: $20 000. 97. Evasion of tax (1) A person who, by an intentional act or omission, evades or attempts to evade paying tax that the person is liable to pay, commits an offence. 15 (2) A court by which a person is convicted of an offence against subsection (1) must impose a penalty within a range extending from a minimum of 3 times the amount of the primary tax the defendant evaded or attempted to evade to a maximum equivalent to the minimum plus $20 000. 20 98. False or misleading information (1) A person must not -- (a) provide information to the Commissioner or an investigator knowing it to be false or misleading in a material particular; or 25 (b) provide a tax record to the Commissioner or an investigator knowing it to be false or misleading in a material particular. Penalty: $20 000 plus 3 times the amount of tax that was avoided or might have been avoided if the false or misleading 30 information or tax record had been accepted as true. page 60 Taxation Administration Bill 2001 Offences Part 9 s. 99 (2) If a person provides the Commissioner or an investigator with information or a tax record that is false or misleading in a material particular then, in proceedings for an offence against this section, the person is presumed to have known that the 5 information or tax record was false or misleading in the material particular unless the contrary is established. 99. Obstructing or misleading an investigator (1) A person who hinders or obstructs the Commissioner or an investigator in carrying out functions under a taxation Act 10 commits an offence. Penalty: $20 000. (2) A person who misleads the Commissioner or an investigator in a way that may affect the carrying out of his or her functions under a taxation Act commits an offence. 15 Penalty: $20 000. 100. Offence by body corporate (1) If a body corporate commits an offence against a taxation Act each director of the body corporate commits the offence and is liable to the penalty prescribed for an individual who commits 20 the offence. (2) It is a defence to a charge of an offence by a director under this section to prove that the defendant could not reasonably be expected to have prevented the commission of the offence by the body corporate. 25 101. Criminal penalties not to affect civil liabilities The imposition of a penalty for an offence does not relieve the person on whom the penalty is imposed from a tax liability (including a liability for penalty tax) arising out of the same wrongful act. page 61 Taxation Administration Bill 2001 Part 9 Offences s. 102 102. Time for commencing prosecutions (1) A prosecution for an offence against a taxation Act must be commenced within 5 years after the date on which the offence is alleged to have been committed. 5 (2) However, if the alleged offence involves tax evasion, an intention to mislead or some other form of dishonesty, a prosecution for the offence may be commenced at any time. 103. Authority required for prosecution (1) Proceedings for an offence against a taxation Act may only be 10 taken -- (a) by the Commissioner, or under the Commissioner's authority; and (b) in the Commissioner's name. (2) A statement in a complaint for an offence against a taxation Act 15 that the complaint is laid by the Commissioner or under the Commissioner's authority is to be taken to be proved in the absence of evidence to the contrary. 104. General defence It is a defence to a charge of an offence against this Act 20 consisting of a failure to comply with a requirement imposed by or under this Act to prove that the defendant could not, by the exercise of reasonable diligence, have complied with the requirement to which the charge relates. page 62 Taxation Administration Bill 2001 Miscellaneous Part 10 Confidentiality Division 1 s. 105 Part 10 -- Miscellaneous Division 1 -- Confidentiality 105. Confidentiality (1) The following persons are subject to a duty of confidentiality 5 under this section -- (a) the Commissioner or a former Commissioner; (b) a delegate or former delegate of the Commissioner; (c) an investigator or former investigator; (d) an appointed representative, or former appointed 10 representative, of the Commissioner; (e) any other person to whom the information or material is disclosed under a taxation Act; (f) any other person who properly or improperly gains access to the information or material in some other way. 15 (2) A person who is subject to a duty of confidentiality under this section must not record, disclose, or make use of information or material obtained under a taxation Act except -- (a) for a purpose related to the administration or enforcement of the taxation Act under which the 20 information or material was obtained or another Act administered by the Commissioner or under which the Commissioner exercises statutory functions; (b) as required or allowed by this Act or another law that specifically or by necessary implication overrides the 25 duty of confidentiality imposed by this section; (c) as authorised by the person to whose affairs the information or material relates; or (d) for the purpose of proceedings, or a report of proceedings, arising out of a taxation Act. 30 Penalty: $20 000. page 63 Taxation Administration Bill 2001 Part 10 Miscellaneous Division 1 Confidentiality s. 105 (3) This section does not prevent -- (a) the disclosure of information or material in connection with the investigation or prosecution of a criminal offence to -- 5 (i) the Director of Public Prosecutions for a State or the Commonwealth; (ii) an officer of the police force of a State or the Commonwealth; (iii) an officer of the Australian Securities and 10 Investment Commission; or (iv) an officer of another law enforcement agency established under State or Commonwealth law that is authorised by regulation to receive confidential information under this paragraph; 15 (b) the disclosure of information or material to an official administering a taxation law of the Commonwealth or another State for a purpose related to the administration of such a law; (c) the disclosure of information or material to the Western 20 Australian Department of Treasury and Finance; (d) the disclosure of information about the ownership, sale and capital and rental value of property to the Valuer-General; (e) the disclosure of statistical or other information that 25 could not reasonably be expected to lead to the identification of any person to whom it relates; (f) the disclosure to an insurance company, for the purposes of a determination by the company of the amount of stamp duty payable on an insurance policy issued or to 30 be issued against an employer's liability to pay compensation under the Workers' Compensation and Rehabilitation Act 1981, whether the employer was liable to pay pay-roll tax in the 12 months immediately preceding the cover period of the policy; or page 64 Taxation Administration Bill 2001 Miscellaneous Part 10 Service of documents Division 2 s. 106 (g) the disclosure of information or material in other circumstances in which its disclosure is permitted by the regulations. (4) However, information or material obtained by the 5 Commissioner despite restrictions on its disclosure imposed under some other Act remains subject to those restrictions in the hands of the Commissioner and may only be disclosed under subsection (2) to the extent the disclosure is consistent with those restrictions. 10 (5) If information is lawfully disclosed under this section, this section does not prevent the further disclosure of the information, or the recording or use of the information, for the purpose for which the disclosure was made. (6) A court cannot require a person who is subject to a duty of 15 confidentiality under this section to give evidence, or to produce a record contrary to this section except in proceedings arising from the lawful disclosure of information. (7) This section does not create a right in any person to be given confidential information. 20 Division 2 -- Service of documents 106. Service on the Commissioner A document may be served on the Commissioner -- (a) by lodging the document at the Commissioner's office; (b) by prepaid post; 25 (c) if the regulations authorise service of the document under this paragraph -- by faxing a copy of the document to a fax number stated in the regulations; or (d) if the regulations authorise service of the document under this paragraph -- by sending computer data from 30 which the document can be reproduced, in a format page 65 Taxation Administration Bill 2001 Part 10 Miscellaneous Division 2 Service of documents s. 107 prescribed by the regulations, to an address for the receipt of electronic mail prescribed in the regulations. 107. Service on agent or representative of taxpayer (1) A notice or other document to be served on taxpayers who are 5 jointly liable for tax is taken to have been served on both or all the taxpayers if served on any one of them. (2) A notice or other document to be served by the Commissioner may be served on -- (a) an agent with apparent authority to accept service of the 10 notice or other document; or (b) a person who lodged the application or instrument to which the notice or other document relates. (3) A notice or other document to be served by the Commissioner on a partnership is taken to have been served on all members of 15 a partnership if it is served on any member of the partnership. (4) A notice or other document to be served by the Commissioner on an unincorporated association is taken to have been served on all members of an unincorporated association if it is served on any member of the committee of management of the 20 association. 108. Method of service by Commissioner (1) A notice or other document to be served by the Commissioner under a taxation Act may be served on a person by -- (a) giving it to the person personally; 25 (b) leaving it for the person to be served at the person's place of residence or business; (c) sending it by prepaid post (including document exchange) addressed to the person at an address appearing on recent correspondence addressed by or on 30 behalf of the person to the Commissioner or otherwise notified to the Commissioner; page 66 Taxation Administration Bill 2001 Miscellaneous Part 10 Evidentiary provisions Division 3 s. 109 (d) leaving it for collection by the person to be served, or that person's agent, in a collection box maintained at the Commissioner's office; (e) faxing it or emailing it to a fax number or email address 5 of the person; or (f) communicating it in some other way agreed with the person. (2) The use of a particular method for service of a document on a particular person does not prevent the service of other 10 documents on the same person in a different way. (3) If a notice or other document is not served personally, the document is taken to be served on the business day following the day on which the document was sent to, or left for, the person to whom it is addressed subject to the following 15 exceptions -- (a) if the notice or document is sent by post to an address within Australia but outside Western Australia -- a further 4 business days are to be allowed; (b) if the notice or document is sent by post to an address 20 outside Australia -- a further 10 business days are to be allowed. 109. Non-exclusivity of this Division The provisions of this Division are in addition to, and do not derogate from, other provisions of an enactment for facilitating 25 service. Division 3 -- Evidentiary provisions 110. Evidentiary value of assessment notice An assessment notice (or a copy of an assessment notice) is admissible as evidence in proceedings under a taxation Act and, 30 in the absence of proof to the contrary, is proof of -- (a) the making of the assessment; page 67 Taxation Administration Bill 2001 Part 10 Miscellaneous Division 3 Evidentiary provisions s. 111 (b) the amount of tax assessed; (c) the identity of the person liable for the tax; (d) the due date for paying the tax; and (e) any other fact stated in the notice. 5 111. Evidentiary status of copies and reproductions of documents (1) In proceedings under a taxation Act, a copy of a notice or other document issued by the Commissioner -- (a) is, if produced by or on behalf of the Commissioner, admissible in the same way as the original; and 10 (b) has the same evidentiary value as the original. (2) For the purposes of the law of evidence, if 2 or more documents are produced from the same computer data (or from computer data recording the same information), they are both or all to be regarded as originals. 15 112. Evidentiary certificates (1) The Commissioner may issue -- (a) a certificate of the making of an assessment including details of the assessment; (b) a certificate stating that an assessment was served on a 20 taxpayer on a particular date by a specified means; (c) a certificate stating that a person identified in the certificate was authorised by delegation under this Act to exercise specified functions of the Commissioner on a specified date or over a specified period; 25 (d) a certificate stating that a return had not been received at the Commissioner's office by a specified date; (e) a certificate stating that a person identified in the certificate failed to comply with a requirement made under a taxation Act to provide documents or page 68 Taxation Administration Bill 2001 Miscellaneous Part 10 Evidentiary provisions Division 3 s. 113 information within the time allowed by the Commissioner; or (f) a certificate stating that a person identified in the certificate was not registered under a specified provision 5 of a taxation Act on a date specified in the certificate. (2) A certificate issued under this section is evidence of the facts stated in the certificate and, in the absence of evidence to the contrary, is proof of those facts. 113. Extracts from register of delegates 10 A copy or print-out of an entry in the register of delegates kept under section 10 is evidence of the facts stated in the copy or print-out and, in the absence of evidence to the contrary, is proof of those facts. 114. Averments in complaints 15 In proceedings for an offence against a taxation Act -- (a) an allegation in the complaint that the defendant is a party to a specified instrument or transaction is, in the absence of evidence to the contrary, evidence of the alleged fact; 20 (b) an allegation in the complaint that the defendant had on a specified date a specified liability under a taxation Act is, in the absence of evidence to the contrary, evidence of the existence of the alleged liability; and (c) an allegation in the complaint that the defendant was, on 25 a specified date, under an obligation to lodge a return under a specified provision of a taxation Act is, in the absence of evidence to the contrary, evidence of the existence of the alleged obligation. page 69 Taxation Administration Bill 2001 Part 10 Miscellaneous Division 4 Exemption from personal liability s. 115 115. Presumption of regularity (1) Proceedings taken in a court or tribunal in the name of the Commissioner are presumed, in the absence of evidence to the contrary, to have been duly taken by the Commissioner, or on 5 the Commissioner's authority. (2) In proceedings under a taxation Act, compliance by the Commissioner or an investigator with the requirements of the taxation Acts is presumed, in the absence of evidence to the contrary. 10 Division 4 -- Exemption from personal liability 116. Exemption from personal liability (1) The Commissioner or an investigator is not personally liable for anything done or omitted to be done in good faith and without negligence in the performance or purported performance, of a 15 function under a taxation Act. (2) Subsection (1) does not relieve the State of any liability that, but for that subsection, it might have had for the acts or omissions of the Commissioner or an investigator. Division 5 -- Regulations 20 117. Regulations (1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for giving effect to this Act. 25 (2) Regulations may create offences and provide, in respect of an offence so created, for the imposition of a fine not exceeding $5 000. page 70 Taxation Administration Bill 2001 Glossary Glossary [s. 4] Unless the contrary intention appears -- "address" of a person means -- 5 (a) the address of the person's residence or place of business; or (b) if the person has a post office box for receiving personal or business mail -- the address of the post office box; "appointed representative" means a person appointed under 10 section 12 to represent the Commissioner in proceedings under a taxation Act; "assessment" means a determination of a kind referred to in section 13(1), whether the determination is made by way of a self-assessment, an official assessment or a reassessment; 15 "assessment notice" means a notice under section 23; "charge", in relation to land, means a charge on the land created under section 68 or 69; "Commissioner" means the Commissioner of State Revenue appointed in accordance with section 6; 20 "corresponding Commissioner", in relation to a recognised jurisdiction in which a recognised revenue law is in force, means the person responsible for administering the recognised revenue law; "decision" includes a direction; 25 "document" includes information stored or recorded by any means; "due date" means -- (a) in relation to the payment of tax -- the date on which the tax is due for payment under section 45(1), (2) or (3), as the case requires; 30 (b) in relation to lodging a return -- the date by which the return is required to be lodged under a taxation Act; "garnishee" has the definition given in section 65; page 71 Taxation Administration Bill 2001 Glossary "group" means 2 or more persons who are grouped together for the purposes of a taxation Act; "identity card" means an identity card issued to an investigator under section 11; 5 "instrument" means -- (a) a bill of exchange, promissory note, statement, conveyance, transfer, lease, licence, insurance policy or any other document of a kind referred to in the Second Schedule to the Stamp Act 1921; 10 (b) a statement or return that is required under a taxation Act for the assessment of tax; (c) a memorandum created by the Commissioner under section 20; (d) a document or other record on which, or in relation to 15 which, tax is payable under a taxation Act; (e) anything else that is to be regarded as an instrument under the provisions of another taxation Act; (f) a copy, duplicate or counterpart of an instrument or document referred to in another paragraph of this 20 definition; "investigation purposes" means any or all of the purposes for which an investigation may be carried out under section 84 or 85; "investigator" means a person appointed to be an investigator under section 11; 25 "non-reviewable decision" means a decision under a taxation Act that is expressed by the Act to be non-reviewable; "official assessment" has the definition given in section 15(1); "official document" means an instrument and any other record or document that is -- 30 (a) kept under or for the purposes of a taxation Act; (b) required to be stamped under or for the purposes of a taxation Act; or (c) required to be lodged with the Commissioner under or for the purposes of a taxation Act; page 72 Taxation Administration Bill 2001 Glossary "original assessment", in relation to a reassessment of tax payable under a taxation Act, means a self assessment (if any) made in relation to the tax, or the first official assessment made in relation to the tax if no self-assessment was made, but does not 5 include a reassessment; "penalty tax" means -- (a) penalty tax payable under section 26; (b) penalty tax payable under section 27 for late payment of tax; or 10 (c) penalty tax payable under sections 75JE, 75JF, 76I(2)(b) or 76J(2)(b) of the Stamp Act 1921; "person" includes a group; "premises" means -- (a) land (whether built on or not); 15 (b) a building or structure on land; or (c) a vehicle, and includes a part of premises; "previous assessment", in relation to a reassessment of tax, means the assessment that was or is to be reviewed by the reassessment 20 whether the reviewed assessment was an original assessment or an earlier reassessment; "primary liability" for tax means a liability for tax exclusive of any liability for penalty tax; "reassessment" does not include an original assessment; 25 "recognised jurisdiction" means the Commonwealth or another State; "recognised revenue law" means -- (a) a law of the Commonwealth or another State corresponding to a taxation Act; or 30 (b) a law of the Commonwealth or another State declared by regulation to be a recognised revenue law; "record" means any thing or process -- (a) upon or by which information is recorded or stored; or page 73 Taxation Administration Bill 2001 Glossary (b) by means of which a meaning can be conveyed in a visible or recoverable form, whether or not the use or assistance of some electronic, electrical, mechanical, chemical or other device or process is 5 required to recover or convey the information or meaning; "Registrar of Titles" means the Registrar of Titles or the Registrar of Deeds and Transfers; "relevant material" means an instrument, record or anything else that is relevant to -- 10 (a) ascertaining whether a tax liability exists; (b) assessing the amount of a tax liability; (c) deciding an application for a rebate or refund of tax, or an exemption from tax, or any other application under a taxation Act; 15 (d) auditing records relevant to the assessment of tax; or (e) ascertaining whether a contravention of a taxation Act has occurred; "responsible party", in relation to a special tax return arrangement, means the person with whom the arrangement is made as 20 mentioned in section 49(1); "self-assessment" has the meaning given in section 14; "special tax return arrangement" means an arrangement approved under section 49; "State" includes the Northern Territory and the Australian Capital 25 Territory; "tax" means -- (a) tax, duty or another impost, or an instalment of tax, duty or other impost, that is payable under a taxation Act; or (b) penalty tax payable under a taxation Act; 30 "tax liability" means a liability to pay tax (including a liability that has not fallen due for payment); "taxation Act" means an enactment specified as a taxation Act under section 3(1); page 74 Taxation Administration Bill 2001 Glossary "taxpayer" means -- (a) a person who is or may be liable to pay tax; (b) a responsible party who is required to pay tax on behalf of another taxpayer under a special tax return arrangement; 5 or (c) a person of a prescribed class who is subject to statutory obligations relating to the assessment or payment of tax; "tax payment arrangement" means an arrangement approved under section 47; 10 "tax record" means a record required to be kept under a taxation Act or under a special tax return arrangement; "Valuer-General" means the Valuer-General appointed under section 6 of the Valuation of Land Act 1978; "vehicle" includes a train, vessel or aircraft.
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