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Schedule 1—Electronic sales suppression tools

Schedule 1 Electronic sales suppression tools

Part 1 Amendments

Income Tax Assessment Act 1997

1  Subsection 995-1(1)

Insert:

electronic sales suppression tool has the meaning given by section 8WAB of the Taxation Administration Act 1953 .

Taxation Administration Act 1953

2  After Subdivision B of Division 2 of Part III

Insert:

Subdivision BAA Offences relating to electronic sales suppression tools

8WAA   Object of this Subdivision

                   The object of this Subdivision is to deter the production, use and distribution of tools to manipulate or falsify electronic point of sale records to facilitate tax evasion.

8WAB   Interpretation

                   In this Subdivision:

electronic sales suppression tool means a device, software program or other thing, a part of any such thing, or a combination of any such things or parts, that meets the following conditions:

                     (a)  it is capable of falsifying, manipulating, hiding, obfuscating, destroying, or preventing the creation of, a record that:

                              (i)  an entity is required by a taxation law to keep or make; and

                             (ii)  is, or would be, created by a system that is or includes an electronic point of sale system;

                     (b)  a reasonable person would conclude that one of its principal functions is to falsify, manipulate, hide, obfuscate, destroy, or prevent the creation of, such records.

right to use includes right to possess.

supply has the meaning given by section 9-10 of the A New Tax System (Goods and Services Tax) Act 1999 .

8WAC   Producing or supplying electronic sales suppression tools

             (1)  A person commits an offence if the person manufactures, develops or publishes an electronic sales suppression tool.

Penalty:  5,000 penalty units.

             (2)  A person commits an offence if the person:

                     (a)  makes a supply of, or makes available for use, an electronic sales suppression tool or a right to use an electronic sales suppression tool; or

                     (b)  provides a service to an entity that involves the use of an electronic sales suppression tool.

Penalty:  5,000 penalty units.

             (3)  Subsections (1) and (2) do not apply to conduct undertaken by the person for the purpose of preventing or deterring tax evasion or enforcing a taxation law.

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

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

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

             (5)  Section 15.4 (extended geographical jurisdiction—category D) of the Criminal Code applies to an offence against subsection (1) if the electronic sales suppression tool is, at any time, used to modify records that a taxation law requires an entity to keep or make.

             (6)  Section 15.4 (extended geographical jurisdiction—category D) of the Criminal Code applies to an offence against subsection (2) if the person makes a supply of, or makes available for use, the electronic sales suppression tool or the right to use the tool to an entity that is required by a taxation law to keep or make any record.

8WAD   Possessing electronic sales suppression tools

             (1)  A person commits an offence if:

                     (a)  the person is required under, or pursuant to, a taxation law to keep or make a record; and

                     (b)  the person acquires, or has possession or control of, an electronic sales suppression tool or a right to use an electronic sales suppression tool.

Penalty:  500 penalty units.

             (2)  Subsection (1) does not apply to conduct undertaken by a person for the purpose of preventing or deterring tax evasion or enforcing a taxation law.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

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

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

8WAE   Incorrectly keeping records using electronic sales suppression tools

             (1)  A person commits an offence if:

                     (a)  the person is required under, or pursuant to, a taxation law to keep or make a record; and

                     (b)  the record is kept, made or altered with the use of an electronic sales suppression tool, or is prevented by the use of an electronic sales suppression tool from being kept, made or altered; and

                     (c)  as a result of the use:

                              (i)  the record does not correctly record and explain the matter, transaction, act or operation to which it relates; or

                             (ii)  the person does not keep or make the record in accordance with the taxation law.

Penalty:  1,000 penalty units.

             (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   At the end of Division 288 in Schedule 1

Add:

288-125   Producing or supplying electronic sales suppression tools

             (1)  You are liable to an administrative penalty of 60 penalty units if you:

                     (a)  manufacture, develop or publish an * electronic sales suppression tool; or

                     (b)  * supply or make available for use:

                              (i)  an electronic sales suppression tool; or

                             (ii)  a * right to use an electronic sales suppression tool; or

                     (c)  provide a service to an entity that involves the use of an electronic sales suppression tool.

             (2)  You are liable to an administrative penalty of 60 penalty units if you aid, abet, counsel or procure conduct for which subsection (1) makes an entity liable to an administrative penalty.

Note:          Division 298 contains machinery provisions for administrative penalties.

             (3)  You are not liable to an administrative penalty under this section for conduct undertaken for the purpose of preventing or deterring tax evasion or enforcing a * taxation law.

288-130   Possessing electronic sales suppression tools

             (1)  You are liable to an administrative penalty of 30 penalty units if:

                     (a)  you are required under, or pursuant to, a * taxation law (other than an * Excise Act) to keep or make a record; and

                     (b)  you acquire, or have possession or control of:

                              (i)  an * electronic sales suppression tool; or

                             (ii)  a * right to use an electronic sales suppression tool.

             (2)  You are liable to an administrative penalty of 30 penalty units if you aid, abet, counsel or procure conduct for which subsection (1) makes an entity liable to an administrative penalty.

Note:          Division 298 contains machinery provisions for administrative penalties.

             (3)  You are not liable to an administrative penalty under this section for conduct undertaken for the purpose of preventing or deterring tax evasion or enforcing a * taxation law.

288-135   Incorrectly keeping records using electronic sales suppression tools

             (1)  You are liable to an administrative penalty of 60 units if:

                     (a)  you are required under, or pursuant to, a * taxation law (other than an * Excise Act) to keep or make a record; and

                     (b)  the record is kept, made or altered with the use of an * electronic sales suppression tool, or is prevented by the use of an electronic sales suppression tool from being kept, made or altered; and

                     (c)  as a result of the use:

                              (i)  the record does not correctly record and explain the matter, transaction, act or operation to which it relates; or

                             (ii)  you do not keep or make the record in accordance with the taxation law.

             (2)  You are liable to an administrative penalty of 60 penalty units if you aid, abet, counsel or procure conduct for which subsection (1) makes an entity liable to an administrative penalty.

Note:          Division 298 contains machinery provisions for administrative penalties.

Part 2 Application and transitional provisions

4  Application of amendments

(1)       An entity may, as soon as practicable after the commencement of this Schedule, give the Commissioner a notice, in the approved form, of the fact that before 7.30 pm (by legal time in the Australian Capital Territory) on 9 May 2017 the entity acquired, or assumed possession or control of, an electronic sales suppression tool or the right to use an electronic sales suppression tool.

(2)       If notice is given in accordance with subitem (1), the Commissioner may give to the entity a direction to deal in a particular way, and by a particular date, with the tool or the right to use the tool so that the entity no longer has possession or control of the tool or the right.

(3)       If notice is given in accordance with subitem (1), neither subsection 8WAD(1) of the Taxation Administration Act 1953 nor subsection 288-130(1) in Schedule 1 to that Act applies in relation to the tool or the right to use the tool during the period beginning at the commencement of this Schedule and ending at the earlier of the following times:

                     (a)  if the entity is given a direction under subitem (2)—the date specified in the Commissioner’s direction;

                     (b)  6 months after commencement.