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Schedule 3—GST estimates and director penalties

Schedule 3 GST estimates and director penalties

   

A New Tax System (Goods and Services Tax) Act 1999

1  Subsection 35-5(2) (note)

After “Part 3-10”, insert “and Divisions 268 and 269”.

Taxation Administration Act 1953

2  Division 268 in Schedule 1 (heading)

Repeal the heading, substitute:

Division 268 Estimates

3  Section 268-1 in Schedule 1

Omit:

              (b)     unpaid superannuation guarantee charge;

substitute:

      (b)     unpaid superannuation guarantee charge; or

       (c)     net amounts in respect of GST, wine equalisation tax and luxury car tax;

4  Section 268-1 in Schedule 1

Omit:

If you are given an estimate, you are liable to pay the amount of the estimate. That liability is distinct from your liability to pay the amounts required by Part 2-5 or the Superannuation Guarantee (Administration) Act 1992 . However, you can ensure that the Commissioner does not require you to pay more than the amounts not paid under that Part or Act.

substitute:

If you are given an estimate, you are liable to pay the amount of the estimate. That liability is distinct from your liability to pay the amounts required by Part 2-5 or the Superannuation Guarantee (Administration) Act 1992 . In the case of an estimate of a net amount that has been assessed by the Commissioner, that liability is distinct from your liability to pay the amount of the assessment. However, you can ensure that the Commissioner does not require you to pay more than the relevant unpaid amounts.

5  At the end of section 268-5 in Schedule 1

Add:

               ; or (c)  * net amounts under the * GST Act.

6  At the end of subsection 268-10(1) in Schedule 1

Add:

               ; or (c)  to pay a * net amount for a * tax period, to the extent that the net amount has not been assessed before the Commissioner makes the estimate.

7  After subsection 268-10(1A) in Schedule 1

Insert:

          (1B)  For the purposes of this Division, if you have a * net amount for a * tax period:

                     (a)  you are treated as being liable to pay that net amount; and

                     (b)  that liability is treated as having arisen on the day by which you must give your * GST return for the tax period to the Commissioner in accordance with Division 31 of the * GST Act; and

                     (c)  that liability is treated as being payable on that day; and

                     (d)  the entire amount of that liability is treated as being unpaid.

8  Subsection 268-20(2) in Schedule 1 (example)

Omit “The Commissioner”, substitute “In a case covered by paragraph 268-10(1)(a) or (b), the Commissioner”.

9  After subsection 268-20(4) in Schedule 1

Insert:

          (4A)  In a case covered by paragraph 268-10(1)(c) (estimate of liability in relation to net amount under GST Act), treat the reference in paragraph (4)(b) to the underlying liability as being a reference to a liability under Division 33 or 35 of the * GST Act for an * assessed net amount in respect of the underlying liability.

10  After subsection 268-30(4) in Schedule 1

Insert:

          (4A)  In a case covered by paragraph 268-10(1)(c) (estimate of liability in relation to net amount under GST Act), treat the references in paragraph (3)(a) and subsection (4) to the underlying liability as being references to a liability under Division 33 or 35 of the * GST Act for an * assessed net amount in respect of the underlying liability.

11  After subsection 268-80(1) in Schedule 1

Insert:

          (1A)  In a case covered by paragraph 268-10(1)(c) (estimate of liability in relation to net amount under GST Act), treat the reference in paragraph (1)(b) to the underlying liability as being a reference to a liability under Division 33 or 35 of the * GST Act for an * assessed net amount in respect of the underlying liability.

12  After subsection 268-90(2A) in Schedule 1

Insert:

          (2B)  In a case covered by paragraph 268-10(1)(c) (estimate of liability in relation to net amount under GST Act), the statutory declaration or affidavit must verify the following facts:

                     (a)  your * net amount for the * tax period;

                     (b)  what has been done to comply with Division 31 and 33 of the * GST Act (obligation to give GST return and liability in respect of assessed net amounts) in relation to that tax period;

                     (c)  your * taxable supplies and * creditable acquisitions that are attributable to that tax period;

                     (d)  your assessable dealings (within the meaning of the * Wine Tax Act) and * wine tax credits that are attributable to that tax period.

13  Section 269-1 in Schedule 1

Omit:

The directors of a company have a duty to ensure that the company either:

               (a)     meets its obligations under Subdivision 16-B (obligation to pay withheld amounts to the Commissioner) and Division 268 in this Schedule and Part 3 of the Superannuation Guarantee (Administration) Act 1992 (obligation to pay superannuation guarantee charge); or

              (b)     goes promptly into voluntary administration under the Corporations Act 2001 or into liquidation.

substitute:

This Division deals with obligations of a company:

       (a)     under Subdivision 16-B in this Schedule (obligation to pay withheld amounts to the Commissioner); and

      (b)     under Division 268 in this Schedule (obligation to pay estimates); and

       (c)     under Part 3 of the Superannuation Guarantee (Administration) Act 1992 (obligation to pay superannuation guarantee charge); and

      (d)     under Divisions 33 and 35 of the GST Act in respect of assessed net amounts; and

       (e)     under Division 162 of the GST Act in respect of GST instalments.

The directors of a company have a duty to ensure that the company either:

       (a)     meets those obligations; or

      (b)     goes promptly into voluntary administration under the Corporations Act 2001 or into liquidation.

14  Subparagraph 269-5(a)(iii) in Schedule 1

Repeal the subparagraph, substitute:

                            (iii)  Part 3 of the Superannuation Guarantee (Administration) Act 1992 (obligation to pay superannuation guarantee charge); and

                            (iv)  Divisions 33 and 35 of the * GST Act in respect of * assessed net amounts; and

                             (v)  Division 162 of the GST Act in respect of GST instalments (within the meaning of the GST Act); or

15  Subsection 269-10(1) in Schedule 1 (at the end of the table)

Add:

 

6

a * tax period ends

an * assessed net amount for the tax period in accordance with the * GST Act.

7

a GST instalment quarter (within the meaning of the * GST Act) ends

a GST instalment (within the meaning of the GST Act) for the quarter in accordance with the GST Act.

16  After paragraph 269-10(5)(b) in Schedule 1

Insert:

                   (ba)  in the case of an estimate of an underlying liability referred to in paragraph 268-10(1)(c) (net amount under GST Act)—the initial day is the last day of the * tax period to which the estimate relates; and

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

Add:

 

5

an * assessed net amount for a * tax period

the last day of the 3 months after the due day,

(a) if the company, on or before the last day mentioned in column 2, lodges its * GST return, for the tax period for the relevant * net amount—the extent (if any) to which the net amount (worked out from the information in the GST return and any other information that the company gives the Commissioner on or before that last day) is less than the company’s assessed net amount for the tax period; or

(b) otherwise—to any extent.

6

the amount of an estimate under Division 268 of a liability referred to in paragraph 268-10(1)(c) (net amount under GST Act),

the last day of the 3 months after the day by which the company was obliged to give its * GST return, for the tax period for the relevant * net amount, to the Commissioner in accordance with Division 31 of the * GST Act,

to any extent.

18  At the end of subsection 269-30(2) in Schedule 1

Add:

Note 3:       This subsection will not affect the operation of subsection (1) in respect of penalties that relate to GST instalments.

19  Subsection 269-30(3) in Schedule 1

Omit “item 1 or 2”, substitute “item 1, 2, 5 or 6”.

20  Subsection 269-35(3A) in Schedule 1 (heading)

Repeal the heading, substitute:

Superannuation guarantee charge and assessed net amounts—reasonably arguable position

21  Subsection 269-35(3A) in Schedule 1

After “the Superannuation Guarantee (Administration) Act 1992 ”, insert “or the * GST Act”.

22  Application

The amendments made by this Schedule apply in relation to:

                     (a)  net amounts and assessed net amounts for tax periods that start on or after the commencement of this Schedule; and

                     (b)  GST instalments for GST instalment quarters that start on or after the commencement of this Schedule.