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Schedule 5—Compliance measures

Schedule 5 Compliance measures

Part 1 Penalties relating to estimates

Taxation Administration Act 1953

1  Subsection 269-10(1) in Schedule 1 (table item 4)

Repeal the item.

2  Subsection 269-10(1) in Schedule 1 (note)

Repeal the note.

3  At the end of section 269-10 in Schedule 1

Add:

Estimates

             (4)  This Division also applies if:

                     (a)  a company is a company registered under the Corporations Act 2001 ; and

                     (b)  the company is given notice of an estimate under Division 268; and

                     (c)  the company is obliged to pay the amount of the estimate to the Commissioner on or before a particular day (the due day ).

             (5)  If this Division applies because of subsection (4), then for the purposes of this Division:

                     (a)  in the case of an estimate of an underlying liability referred to in paragraph 268-10(1)(a) (PAYG withholding liabilities)—the initial day is:

                              (i)  for a company that is a * medium withholder or a * small withholder on the last day of the period identified in the notice of the estimate under section 268-15 as the period to which the underlying liability relates—the last day of that period; or

                             (ii)  for any other company—the day by which the company is obliged to pay the amount of the underlying liability to the Commissioner; and

                     (b)  in the case of an estimate of an underlying liability referred to in paragraph 268-10(1)(b) (superannuation guarantee charge)—the initial day is the last day of the * quarter to which the estimate relates; and

                     (c)  the company’s obligation to pay the amount of the estimate is taken to have begun on the day after the initial day identified in paragraph (a) or (b) of this subsection.

             (6)  For the purposes of subsection (5), assume that the underlying liability exists as identified in the notice of the estimate under section 268-15.

4  After subsection 269-15(2) in Schedule 1

Insert:

          (2A)  To avoid doubt, if the obligation of the company is an obligation to pay the amount of an estimate of an underlying liability under Division 268, a director is subject to his or her obligation under subsection (1):

                     (a)  even if the underlying liability never existed or has been discharged in full; and

                     (b)  even if the unpaid amount of the underlying liability is less than the unpaid amount of the estimate; and

                     (c)  at all times on and after the day referred to in paragraph 269-10(5)(b) until the director’s obligation ceases under subsection (2) of this section, including at any such times before the Commissioner has made the estimate or given notice of the estimate.

5  After subsection 269-35(3) in Schedule 1

Insert:

       (3AA)  If the obligation referred to in subparagraph (2)(a)(i) is an obligation to pay an amount of an estimate of an underlying liability under Division 268, that reference to an obligation includes a reference to the obligation to pay the underlying liability.

       (3AB)  For the purposes of subsection (3AA), assume that the underlying liability exists as identified in the notice of the estimate under section 268-15.

6  Application

The amendments made by this Part apply in relation to an estimate made under Division 268 in Schedule 1 to the Taxation Administration Act 1953 on or after 1 July 2018 (whether the underlying liability to which the estimate relates arose before, on or after that day).

Part 2 Director penalties

Taxation Administration Act 1953

7  Subsection 269-30(2) in Schedule 1 (table, heading to column 2)

Omit “ the last day of the 3 months after ”.

8  Subsection 269-30(2) in Schedule 1 (table item 1, column 2)

Before “the due day”, insert “the last day of the 3 months after”.

9  Subsection 269-30(2) in Schedule 1 (table item 2, column 1)

Omit “(estimates of PAYG withholding liabilities and superannuation guarantee charge)”, substitute “of a liability referred to in paragraph 268-10(1)(a) (PAYG withholding liabilities)”.

10  Subsection 269-30(2) in Schedule 1 (table item 2, column 2)

Before “the day”, insert “the last day of the 3 months after”.

11  Subsection 269-30(2) in Schedule 1 (at the end of the table)

Add:

 

4

the amount of an estimate under Division 268 of a liability referred to in paragraph 268-10(1)(b) (superannuation guarantee charge),

the day by which the company was obliged to pay the underlying liability to which the estimate relates,

to any extent.

 

12  Subsection 269-30(3) in Schedule 1

Omit “column 2, treat the reference in the column”, substitute “item 1 or 2, treat the reference in the item”.

13  Application

The amendments made by this Part apply in relation to:

                     (a)  an amount referred to in item 1 or 3 of the table in subsection 269-30(2) in Schedule 1 to the Taxation Administration Act 1953 (as amended by this Part) that first becomes payable on or after 1 July 2018; and

                     (b)  an estimate referred to in item 2 or 4 of the table in that subsection (as amended by this Part) that is made on or after 1 July 2018 (whether the underlying liability to which the estimate relates arose before, on or after that day).

Part 3 Orders to provide security

Taxation Administration Act 1953

14  At the end of Subdivision 255-D in Schedule 1

Add:

255-115   Order to comply with requirement

             (1)  The Federal Court of Australia may, on the application of the Commissioner, order you to comply with a requirement to give security under section 255-100, if the Commissioner has given you notice of the requirement under subsection 255-105(1).

             (2)  If the Court makes an order under subsection (1), the Court may also order you to comply with such other requirements made, or that could be made, in relation to you under the taxation law as the Court considers necessary to ensure the effectiveness of the requirement referred to in that subsection.

             (3)  An order under subsection (1) or (2) may require you to comply with the requirement on or before a day specified in the order.

             (4)  If an order under subsection (1) or (2) is not given to you orally by the court, the proper officer of the court must cause a copy of the order to be served on you in the prescribed manner, or otherwise as may be ordered by the court.

255-120   Offence

             (1)  You commit an offence if:

                     (a)  you are subject to an order under subsection 255-115(1) or (2); and

                     (b)  you fail to comply with the order.

Penalty:  50 penalty units or imprisonment for 12 months, or both.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

             (3)  Subsection (1) does not apply to the extent that you are not capable of complying with the order.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code .

15  Application

The amendments made by this Part apply in relation to a requirement to give security in relation to a tax-related liability if the Commissioner gives notice of the requirement under subsection 255-105(1) in Schedule 1 to the Taxation Administration Act 1953 on or after 1 July 2018.