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Schedule 1—Direction powers

Schedule 1 Direction powers

Part 1 Direction to pay superannuation guarantee charge

Taxation Administration Act 1953

1  At the end of Division 265 in Schedule 1

Add:

Subdivision 265-C Direction to pay superannuation guarantee charge

Guide to Subdivision 265-C

265-85   What this Subdivision is about

If you are liable to pay an amount of superannuation guarantee charge or certain related liabilities, the Commissioner may direct you to pay the amount.

If the amount is not paid, you may commit an offence.

Table of sections

265-90      Direction to pay superannuation guarantee charge

265-95      Offence

265-100    Variation or revocation

265-105    Effect of liability being reduced or ceasing to exist

265-110    Taxation objection

265-115    Extension of period to comply if taxation objection made

265-90   Direction to pay superannuation guarantee charge

             (1)  The Commissioner may, by written notice, give you a direction requiring you to pay to the Commissioner:

                     (a)  an amount of superannuation guarantee charge that is payable by you under the Superannuation Guarantee (Administration) Act 1992 ; or

                     (b)  if an estimate under Division 268 in this Schedule of an amount of a liability of yours to pay superannuation guarantee charge for a quarter under section 16 of the Superannuation Guarantee (Administration) Act 1992 is in force as referred to in subsection 268-10(5)—the amount of the estimate.

Note:          The direction does not create a separate liability to pay the amount. However, it may result in you committing an offence against subsection 265-95(1) if the amount is not paid.

             (2)  In deciding whether to give a direction under subsection (1), the Commissioner must have regard to the following matters:

                     (a)  your history of compliance with obligations to pay superannuation guarantee charge, and obligations to pay estimates under Division 268 of superannuation guarantee charge;

                     (b)  your history of compliance with other obligations under * taxation laws;

                     (c)  whether the amount mentioned in paragraph (1)(a) or (b) is substantial, having regard to the size and nature of your business;

                     (d)  any steps that you have taken to discharge the liability to pay the amount or dispute that the liability exists;

                     (e)  any other matter that the Commissioner considers relevant.

             (3)  The direction must:

                     (a)  set out the amount that you are required to pay to the Commissioner; and

                     (b)  if the amount referred to in paragraph (1)(a) or (b) relates to a * quarter—set out the quarter; and

                     (c)  specify the period before the end of which you must comply with the direction (which must end at least 21 days after the day the direction is given); and

                     (d)  explain the consequences of failing to comply with the direction; and

                     (e)  explain how you may have the Commissioner’s decision to give the direction reviewed.

             (4)  To avoid doubt, a single notice may relate to 2 or more directions, but must comply with subsection (3) in relation to each of them.

             (5)  A notice given under subsection (1) is not a legislative instrument.

265-95   Offence

             (1)  You commit an offence if:

                     (a)  you are given a direction under subsection 265-90(1); and

                     (b)  the liability to pay the amount set out in the direction is not discharged (whether by you or by another entity) before the end of the period specified in the direction under paragraph 265-90(3)(c).

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 if both of the following apply:

                     (a)  you took all reasonable steps to comply with the direction before the end of the period specified in the direction under paragraph 265-90(3)(c);

                     (b)  you took all reasonable steps to ensure that the liability was discharged before the direction was given.

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

265-100   Variation or revocation

             (1)  If the Commissioner has given you a direction under subsection 265-90(1), the Commissioner may, at any time before the end of the period specified in the direction under paragraph 265-90(3)(c), by written notice given to you:

                     (a)  vary the direction to reduce the amount that you are required to pay to the Commissioner in order to comply with the direction; or

                     (b)  vary the direction to extend the period specified in the notice of the direction under paragraph 265-90(3)(c); or

                     (c)  revoke the direction.

             (2)  To avoid doubt, the variation or revocation of a direction under subsection (1) does not affect any liability that you may have to pay an amount referred to in the direction.

265-105   Effect of liability being reduced or ceasing to exist

             (1)  If:

                     (a)  you have been given a direction under subsection 265-90(1) requiring you to pay an amount of a liability referred to in that subsection to the Commissioner; and

                     (b)  the period specified in the direction under paragraph 265-90(3)(c) has not expired; and

                     (c)  the liability is reduced (but not to nil);

the amount set out in the direction is taken to be reduced by the amount of the reduction referred to in paragraph (c).

             (2)  If:

                     (a)  you have been given a direction under subsection 265-90(1) requiring you to pay an amount of a liability referred to in that subsection to the Commissioner; and

                     (b)  the period specified in the direction under paragraph 265-90(3)(c) has not expired; and

                     (c)  either:

                              (i)  the liability is reduced to nil; or

                             (ii)  the liability ceases to exist;

the direction is taken to be revoked.

             (3)  You may be convicted of an offence against subsection 265-95(1) in relation to a direction under subsection 265-90(1) requiring you to pay an amount of a liability referred to in subsection 265-90(1) to the Commissioner even if:

                     (a)  the liability is reduced, or ceases to exist, after the end of the period specified in the direction under paragraph 265-90(3)(c); or

                     (b)  the liability is discharged after the end of that period; or

                     (c)  the liability is, after the end of that period, taken never to have existed, or taken not to have existed at a time on or before the end of that period.

265-110   Taxation objection

                   If you are dissatisfied with a decision of the Commissioner to give you a direction under subsection 265-90(1), you may, at any time before the end of the period specified in the direction under paragraph 265-90(3)(c), object against the decision in the manner set out in Part IVC.

265-115   Extension of period to comply if taxation objection made

             (1)  This section applies if:

                     (a)  the Commissioner gives you a direction under subsection 265-90(1); and

                     (b)  the period specified in the direction under paragraph 265-90(3)(c) has not expired; and

                     (c)  you:

                              (i)  make an objection in accordance with section 265-110 in relation to the Commissioner’s decision to give you the direction; or

                             (ii)  make an objection in the manner set out in Part IVC against a taxation decision that relates to your liability to pay an amount referred to in the direction.

             (2)  The period specified in the direction under paragraph 265-90(3)(c) is extended by one day for each day in the period that begins on the day the objection is made and ends at the end of the later of the following days:

                     (a)  the day 21 days after the day the Commissioner notifies you of the Commissioner’s decision under section 14ZY in relation to the objection;

                     (b)  if, before the end of the day referred to in paragraph (a), you:

                              (i)  apply to the * AAT in accordance with Division 4 of Part IVC for review of the Commissioner’s decision; or

                             (ii)  lodge an appeal against the Commissioner’s decision with the Federal Court of Australia under Division 5 of that Part;

                            the day the review or the appeal is finally determined.

             (3)  To avoid doubt, the extension of the period under subsection (2) does not affect any liability that you may have to pay an amount referred to in the direction.

2  Application of superannuation guarantee charge direction provisions

Subdivision 265-C in Schedule 1 to the Taxation Administration Act 1953 , as inserted by this Schedule, applies in relation to an amount referred to in paragraph 265-90(1)(a) in that Schedule, or an amount of an estimate referred to in paragraph 265-90(1)(b) in that Schedule, that first becomes payable on or after 1 July 2018.

Part 2 Education directions

Taxation Administration Act 1953

3  After paragraph 8C(1)(f)

Insert:

                    (fa)  to comply with an education direction in accordance with subsection 384-15(3) in Schedule 1; or

4  After Division 382 in Schedule 1

Insert:

Division 384 Education directions

Guide to Division 384

384-5   What this Division is about

If the Commissioner reasonably believes that you have failed to comply with certain obligations arising under taxation laws, the Commissioner may give you a direction requiring a specified course of education to be undertaken.

Table of sections

384-10      When an education direction may be given

384-15      Education direction

384-20      Approval of courses of education

384-25      Costs of course of education

384-30      Variation or revocation on Commissioner’s own initiative

384-35      Variation on request

384-40      Taxation objection

384-10   When an education direction may be given

             (1)  This section applies to you, and the Commissioner may give you an education direction under section 384-15, if the Commissioner reasonably believes that an item of the following table applies to you.

 

Education directions

Item

The item applies to you if…

1

You fail to pay an amount of a tax-related liability set out in subsection (2).

2

You fail to comply with an obligation to give a statement or information to the Commissioner under a taxation law set out in subsection (3).

3

You fail to comply with an obligation to keep records under a taxation law set out in subsection (3).

4

You fail to comply with an obligation under this Act that relates to a taxation law set out in subsection (3).

 

             (2)  The following table sets out tax-related liabilities for the purposes of subsection (1).

 

Item

Tax-related liability

1

Superannuation guarantee charge payable by you under the Superannuation Guarantee (Administration) Act 1992

2

An amount that is due and payable by you of an estimate under Division 268 of an amount of a liability referred to in paragraph 268-10(1)(b) (superannuation guarantee charge)

 

             (3)  The following table sets out taxation laws for the purposes of subsection (1).

 

Item

Taxation law

1

Superannuation Guarantee (Administration) Act 1992

 

384-15   Education direction

             (1)  If section 384-10 applies to you, the Commissioner may give you a written direction (an education direction ) requiring you to:

                     (a)  ensure that any of the following individuals undertakes a specified approved course of education (see section 384-20):

                              (i)  if you are an individual—you;

                             (ii)  an individual who makes, or participates in making, decisions that affect the whole, or a substantial part, of your business; and

                     (b)  provide the Commissioner with evidence that the individual has completed the course.

             (2)  The education direction must specify the period within which you must comply with the direction (which must be a period that is reasonable in the circumstances).

Note:          The period may be affected by the operation of subsection 384-35(7).

             (3)  You must comply with the direction within the specified period.

Note:          Failure to comply with this subsection is an offence against section 8C.

             (4)  You are taken to comply with the direction if, and only if:

                     (a)  an individual referred to in paragraph (1)(a) undertakes the specified approved course of education during the specified period; and

                     (b)  before the end of the specified period, you provide the Commissioner with evidence that the individual has completed the course.

             (5)  You are liable to an administrative penalty of 5 penalty units if you contravene subsection (3).

Note:          Division 298 contains machinery provisions for administrative penalties.

             (6)  An education direction is not a legislative instrument.

384-20   Approval of courses of education

             (1)  The Commissioner may, in writing, approve one or more courses of education for the purposes of giving education directions.

             (2)  A course approved under subsection (1) may be provided by the Commissioner or by another entity.

             (3)  An approval under subsection (1) is not a legislative instrument.

384-25   Costs of course of education

             (1)  The Commissioner or other entity providing an approved course of education may charge fees for the course.

             (2)  Any fees charged must not be such as to amount to taxation.

384-30   Variation or revocation on Commissioner’s own initiative

                   If the Commissioner has given you an education direction, the Commissioner may, at any time, vary or revoke the education direction by written notice given to you.

384-35   Variation on request

             (1)  If the Commissioner has given you an education direction, you may ask the Commissioner to vary the direction.

             (2)  The request must be made by written notice given to the Commissioner before the end of the period specified in the direction for the purposes of subsection 384-15(2).

             (3)  The request must set out the reasons for making the request.

             (4)  The Commissioner must decide:

                     (a)  to vary the direction in accordance with the request; or

                     (b)  to vary the direction otherwise than in accordance with the request; or

                     (c)  to refuse to vary the direction.

             (5)  If the Commissioner does not make a decision on the request before the end of 28 days after the day the Commissioner received the request, the Commissioner is taken, at the end of that period, to have decided to refuse the request.

             (6)  If the Commissioner makes a decision on the request before the end of the period referred to in subsection (5), the Commissioner must:

                     (a)  notify you of the Commissioner’s decision; and

                     (b)  if the decision is to vary the direction (whether or not in accordance with the request)—give you a copy of the varied direction; and

                     (c)  if the decision is to refuse to vary the direction, or to vary the direction otherwise than in accordance with the request—give you written reasons for the decision.

             (7)  If you make a request under this section, then, for the purposes of subsection 384-15(3), the period specified in the direction for the purposes of subsection 384-15(2) is taken to be extended by 1 day for each day in the period:

                     (a)  beginning at the start of the day the Commissioner receives the request; and

                     (b)  ending at the end of the day that the Commissioner notifies you that a decision has been made on the request.

384-40   Taxation objection

                   If you are dissatisfied with:

                     (a)  a decision of the Commissioner to give an education direction, or to vary one otherwise than in accordance with a request under section 384-35; or

                     (b)  a decision of the Commissioner under section 384-35 to refuse to vary an education direction;

you may object against the decision in the manner set out in Part IVC.

5  Application of education direction provisions

Division 384 in Schedule 1 to the Taxation Administration Act 1953 , as inserted by this Schedule, applies in relation to a failure referred to in subsection 384-10(1) in that Schedule that occurs on or after 1 July 2018 (including a failure to pay an amount that became payable before that day, and remains payable on or after that day).

Part 3 Consequential amendments

Administrative Decisions (Judicial Review) Act 1977

6  After paragraph (gab) of Schedule 1

Insert:

                  (gac)  decisions of the Commissioner of Taxation under Subdivision 265-C in Schedule 1 to the Taxation Administration Act 1953 that are referred to in section 265-110 in that Schedule;

                  (gad)  decisions of the Commissioner of Taxation under Division 384 in Schedule 1 to the Taxation Administration Act 1953 that are referred to in section 384-40 in that Schedule;

Taxation Administration Act 1953

7  After paragraph 14ZW(1)(bh)

Insert:

                    (bi)  if the taxation objection is made under section 265-110 in Schedule 1 to this Act (about directions to pay superannuation guarantee charge)—the period specified for the purposes of paragraph 265-90(3)(c) in the direction given to the person (subject to subsection 265-115(2)); or

                    (bj)  if the taxation objection is made under section 384-40 in Schedule 1 to this Act (about education directions)—the period specified for the purposes of subsection 384-15(2) in the direction given to the person (subject to subsection 384-35(7)); or

8  Paragraph 298-5(c) in Schedule 1

After “Division 16 or section”, insert “384-15,”.