Taxation Administration Act 1997 (TAS)

Taxation Administration Act 1997

An Act to provide for the administration and enforcement of taxation laws

[Royal Assent 14 January 1998]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1Preliminary1Short titleThis Act may be cited as the Taxation Administration Act 1997 . 2CommencementThis Act commences on a day to be proclaimed. 3InterpretationIn this Act – approval means an approval referred to in Division 2 of Part 6 ; approved form means a form approved by the Commissioner; assessment means – (a) an assessment made under Part 3 of the tax liability of a person; and (b) a reassessment; and (c) a compromise assessment; authorised officer means – (a) the Commissioner; and (b) a person appointed as an authorised officer under section 15 ; business day means a day other than a Saturday, a Sunday or a public holiday appointed under the Bank Holidays Act 1919 ; charge includes pass on; commencement day means the day on which this Act commences; Commissioner means the Commissioner of State Revenue referred to in section 7 ; compromise assessment means an assessment under section 22 ; function includes a duty; interest means interest payable under Division 1 of Part 5 ; interest rate means the interest rate referred to in section 35 ; investigation means an investigation under Part 9 ; non-reviewable decision means a decision referred to in section 5 ; penalty tax means a tax referred to in Division 2 of Part 5 ; premises includes land, a vehicle, a vessel and an aircraft; reassessment means reassessment of tax liability under section 19 ; record means – (a) any instrument, document, record, film, tape, disc or other device or medium on which information is recorded or stored mechanically, photographically, electronically, electromagnetically or otherwise; and (b) any other information kept in any form or device; required record is a record required to be kept under a taxation law; return means a return, statement, certificate, application, report or other record that – (a) is required or authorised under a taxation law to be lodged with the Commissioner or a specified person; and (b) is liable to tax or records matters in respect of which there is or may be a tax liability; tax means – (a) a tax or duty payable under a taxation law; and (b) interest and penalty tax; and (c) any other amount payable by a taxpayer under a taxation law; tax agent means a person engaged by a taxpayer for fee or reward, otherwise than as an employee, who prepares, or assists in the final preparation of, any instrument or return on behalf of the taxpayer; taxation law means a law referred to in section 4 ; tax default means a failure by a taxpayer to pay the whole or part of tax that the taxpayer is liable to pay; tax liability means a liability to pay tax; tax officer means – (a) an authorised officer; and (b) any other person engaged in the administration or execution of a taxation law; taxpayer means a person who – (a) is assessed as liable to pay an amount of tax; or (b) has paid an amount as tax; or (c) is liable or may be liable to pay tax; trustee includes – (a) a person who is a trustee under an implied or constructive trust; and (b) in relation to a deceased person, an executor of the will, or an administrator of the estate, of the deceased person; and (c) a receiver or manager of the property of a company, or a liquidator of a company for the purpose of its winding-up; and (d) a receiver, guardian, committee or manager of the property of a person under a legal or other disability; and (e) a person having possession, control or management of a business or property of a person who is under a legal or other disability; and (f) any person acting in a fiduciary capacity. 4Meaning of taxation lawsThe following are taxation laws: (a) this Act; (b) Financial Institutions Duty Act 1986 ; (c) Pay-roll Tax Act 1971 ; (d) Taxation (Reciprocal Powers) Act 1993 . 5Non-reviewable decisionsIf a provision of this Act provides that a decision is a non-reviewable decision, any court or administrative review body does not have jurisdiction or power to entertain any question as to the validity or correctness of the decision. 6Act binds Crown (1)  This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. (2) This section does not affect the liability of the Crown to tax under another taxation law. PART 2Tax officers7CommissionerThe Minister administering the Tasmanian State Service Act 1984 may appoint a person employed under that Act to be Commissioner of State Revenue, and that person holds that office in conjunction with a position or an office under that Act. 8Functions and powers of Commissioner (1) The Commissioner has the following functions: (a) the general administration of the taxation laws; (b) any other function imposed on him or her by any other Act. (2) The Commissioner may do anything necessary or convenient to give effect to the taxation laws. 9Functions and powers under Commonwealth ActThe Commissioner may perform the functions and exercise the powers of a State taxation officer under Taxation Administration Act 1953 of the Commonwealth. 10Legal proceedings (1) Legal proceedings may be taken by or against the Commissioner in the name "Commissioner of State Revenue". (2) A person who takes legal proceedings in the name of the Commissioner is taken to be authorised to take those proceedings, in the absence of evidence to the contrary. 11Deputy or Assistant Commissioner (1)  The Minister administering the Tasmanian State Service Act 1984 may appoint a person employed under that Act to be a Deputy Commissioner of State Revenue or an Assistant Commissioner of State Revenue, and that person holds that office in conjunction with a position or an office under that Act. (2) Subject to the direction and control of the Commissioner, a Deputy Commissioner or an Assistant Commissioner has the same functions as the Commissioner under a taxation law or another law under the general administration of the Commissioner. 12Other staffSubject to and in accordance with the Tasmanian State Service Act 1984 , there may be appointed any other persons that are necessary for the administration and execution of the taxation laws and other laws under the general administration of the Commissioner. 13Consultants and contractorsThe Commissioner may engage any consultants and contractors that may be necessary or convenient to perform the functions or exercise the powers of the Commissioner. 14DelegationThe Commissioner may delegate to any person any function or power of the Commissioner under a taxation law, other than this power of delegation. 15Authorised officersThe Commissioner may appoint persons as authorised officers for the purposes of the taxation laws. 16Identity cardsThe Commissioner is to issue an authorised officer with an identity card in an approved form – (a) containing the person’s name, signature and photograph; and (b) stating that the person is an authorised officer for the purposes of the taxation laws. 17Personal liabilityThe Commissioner or a tax officer is not personally liable for an honest act done or omission made in the execution of a taxation law. PART 3Assessment of tax liability18General power to make assessment (1) The Commissioner may make an assessment of a tax liability of a taxpayer. (2) The Commissioner may include in an assessment a determination that there is not a particular tax liability. 19Reassessment (1) The Commissioner may make one or more reassessments of a tax liability of a taxpayer. (2) The Commissioner may – (a) make a reassessment of a tax liability of a taxpayer after an amount previously assessed as being payable by the taxpayer has been paid; or (b) make a reassessment of a tax liability under which the taxpayer is assessed as having liabilities that are additional to, or greater than, those under the previous assessment. (3) The Commissioner must not make a reassessment of a tax liability more than 3 years after the initial assessment of the liability unless – (a) the reassessment is to adjust tax to give effect to a decision on an objection or appeal as to the initial assessment; or (b) at the time the initial assessment or a reassessment was made, all the facts and circumstances affecting the tax liability under the relevant taxation law of the person in respect of whom the assessment or reassessment was made were not fully and truly disclosed to the Commissioner. (4)  The time limited by subsection (3) applies even if the initial assessment is withdrawn. 20Instruments and returns to include all relevant information (1) A taxpayer and any tax agent of the taxpayer must include in an instrument that is liable to tax or in a statement that is produced to the Commissioner together with the instrument before the payment of tax, all information necessary for a proper assessment of the tax liability of the taxpayer in respect of the instrument.Penalty: In the case of – (a) a body corporate, a fine not exceeding 100 penalty units; or (b) in any other case, a fine not exceeding 20 penalty units. (2) A taxpayer and any tax agent of the taxpayer must include in a return required to be lodged with the Commissioner under a taxation law, in addition to the information required under that taxation law, any further information necessary for a proper assessment of the tax liability of the taxpayer in respect of the return or the matters to which the return relates.Penalty: In the case of – (a) a body corporate, a fine not exceeding 100 penalty units; or (b) in any other case, a fine not exceeding 20 penalty units. (3)  It is a defence in proceedings under this section – (a) for a taxpayer to prove that he or she reasonably relied on – (i) another person who was liable or required with the taxpayer to pay the tax or lodge the return; or (ii) a tax agent (whether engaged by the taxpayer or that other person) – to ensure that the requirements of this section are satisfied; or (b) for a tax agent to prove that he or she reasonably relied on information supplied by the taxpayer or by another person who was liable or required with the taxpayer to pay the tax or lodge the return. 21Information on which assessment is made (1) The Commissioner may make an assessment on the information that the Commissioner has from any source at the time the assessment is made. (2) If the Commissioner has insufficient information to make an exact assessment of a tax liability, the Commissioner may make an assessment by way of estimate. 22Compromise assessment (1) If it is difficult or impracticable for the Commissioner to determine a person’s tax liability under a taxation law without undue delay or expense because of the complexity or uncertainty of the case or for any other reason, the Commissioner may make an assessment of that liability in accordance with this section. (2) The Commissioner, with the agreement of a person, may assess the person’s tax liability in an amount specified in, or determined in accordance with, the agreement. (3) The Commissioner must not make a reassessment of a tax liability assessed under this section – (a) except with the agreement of the taxpayer; or (b) unless, in the opinion of the Commissioner – (i) the assessment under this section was procured by fraud; or (ii) there was a deliberate failure to disclose material information. (4) An assessment or reassessment made under this section with the agreement of a taxpayer is a non-reviewable decision. 23Withdrawal of assessmentThe Commissioner may withdraw an assessment within 3 years after the date of service of the notice of assessment, whether or not the amount of tax specified in the notice of assessment has been paid. 24Notice of assessment or withdrawal of assessment (1) If the Commissioner makes or withdraws an assessment, the Commissioner – (a) may serve a notice of assessment or withdrawal on the taxpayer; and (b) must serve such a notice on the taxpayer if the taxpayer so requests. (2) A notice of assessment is to – (a) be expressed to be an assessment of liability to a tax; and (b) show the amount of tax assessed; and (c) specify the rate of interest or penalty tax payable in respect of any tax default; and (d) specify the date on or before which any assessment is payable. 25Receipt of tax is not assessmentThe receipt by the Commissioner of a return or an amount as payment of a tax does not constitute the making of an assessment of tax liability. 26Validity of assessmentThe validity of an assessment is not affected because a provision of a taxation law has not been complied with. PART 4Refunds of tax27Application of Part (1) Proceedings for the refund or recovery of tax paid or purportedly paid under a taxation law, whether before or after the commencement of this Act, may only be brought as provided in this Part. (2)  Subsection (1) and section 28 do not apply to a taxpayer if the taxpayer claims to be entitled to receive a refund or to recover tax paid or purportedly paid under a taxation law by reason of the invalidity of a provision of that law. (3) This Part has effect despite the provisions of any other taxation law. 28Application for refund (1) A taxpayer may apply to the Commissioner for the refund of any tax paid or purportedly paid if the taxpayer claims to be entitled to the refund or recovery of that tax. (2) A taxpayer may not apply for a refund if the Commissioner has previously served a notice of assessment of the tax liability of the taxpayer in respect of the matter in respect of which the payment was made to the Commissioner. (3)  An application is to be – (a) in an approved form; and (b) lodged with the Commissioner within 3 years after the relevant payment was made. 29RefundThe Commissioner, if satisfied that the application is lodged in accordance with section 28 and that the applicant has overpaid an amount, is to – (a) refund the overpaid amount; or (b) apply the overpaid amount against any liability of the applicant under a taxation law or another Act of which the Commissioner has the general administration and refund any part of the overpayment that is not so applied. 30Recovery of overpaid amountsA taxpayer may bring proceedings for the recovery of an overpaid amount if the taxpayer lodged an application under section 28 . 31Refusal to refundThe Commissioner must not make a refund of tax to a person unless satisfied that the person – (a) has not charged to, or recovered from, and is not likely to charge to, or recover from, any other person any amount in respect of the whole or any part of that tax; or (b) having charged or recovered such an amount, is likely to reimburse, or take all reasonable steps to reimburse, each other person for the amount charged or recovered. 32Reimbursement after refund (1)  If a refund is made to a person to whom section 31(b) applies – (a) the person must – (i) within 90 days after receiving the refund, reimburse each other person for the amount charged to or recovered from that person; and (ii) notify the Commissioner in writing within 7 days after the end of that period that all amounts charged or recovered have been reimbursed; or (b) if the amount is not reimbursed within that period, the person, within 7 days after the end of that period, is to – (i) notify the Commissioner in writing of any amount not reimbursed; and (ii) pay any amount to the Commissioner, together with interest at a rate not exceeding 20% per annum as the Commissioner specifies from the date the refund was made to the date of payment. Penalty:  Fine not exceeding 50 penalty units. (2)  An amount payable under subsection (1)(b)(ii) is a debt due to the Crown. (3)  This section prevails over sections 29 and 30 . 33Application of certain sections Sections 31 and 32 apply in respect of proceedings for the refund or recovery of tax paid or purportedly paid as if – (a) a reference to the Commissioner in those sections, except in section 32(1)(b)(ii) , were a reference to the court; and (b) a reference to the making of a refund in those sections were a reference to the making of an order or decision that a refund be made. PART 5Interest and penalty taxDivision 1Interest34Interest in respect of tax defaults (1) If a tax default occurs, the taxpayer is liable to pay interest on the amount of tax unpaid calculated on a daily basis from the end of the last day for payment until the day it is paid at the interest rate. (2) Interest is payable in respect of a tax default that consists of a failure to pay penalty tax. (3) Interest is not payable in respect of a tax default that consists of a failure to pay interest. 35Interest rateThe interest rate is the sum of – (a) the market rate – (i) if an order is not in force under subparagraph (ii) , as published in the Commonwealth of Australia Gazette under section 214A(8) of the Income Tax Assessment Act 1936 of the Commonwealth; or (ii) as the Minister specifies by order published in the Gazette; and (b) the premium rate of 8% per annum. 36Minimum amount of interestInterest in respect of a tax default is not payable until the amount of that interest exceeds $20. 37Interest rate prevails over other interestIf judgment is given by, or entered in, a court for an amount of unpaid tax or an amount that includes an amount of unpaid tax, the interest rate payable under this Division continues to apply to the exclusion of any other interest rate until the tax is paid. 38Remission of interestThe Commissioner, in any circumstances the Commissioner considers appropriate, may remit interest payable by a taxpayer by any amount. Division 2Penalty tax39Penalty tax in respect of certain tax defaults (1) If a tax default occurs, the taxpayer is liable to pay penalty tax in addition to the amount of tax unpaid. (2) Penalty tax is in addition to interest. (3) Penalty tax is not payable in respect of a tax default that consists of a failure to pay – (a) interest; or (b) penalty tax previously imposed. 40Amount of penalty tax (1) The amount of penalty tax payable is 25% of the amount of tax unpaid. (2) The Commissioner may increase the amount of penalty tax payable to 75% of the amount of tax unpaid if satisfied that the tax default was caused wholly or partly by the intentional disregard by the taxpayer or a person acting on behalf of the taxpayer of a taxation law. (3) The Commissioner may determine that a penalty tax is not payable if satisfied that – (a) the taxpayer or a person acting on behalf of the taxpayer took reasonable care to comply with the taxation law; or (b) the tax default occurred solely because of circumstances not amounting to financial incapacity that are beyond the control of the taxpayer or a person acting on behalf of the taxpayer. 41Reduction in penalty tax for disclosure (1) The amount of penalty tax is to be reduced by 80% if, before the Commissioner informs the taxpayer that an investigation relating to the taxpayer is to be carried out, the taxpayer discloses to the Commissioner, in writing, sufficient information to enable the nature and extent of the tax default to be determined. (2) The amount of penalty tax is to be reduced by 20% if, after the Commissioner informs the taxpayer that an investigation relating to the taxpayer is to be carried out and before it is completed, the taxpayer discloses to the Commissioner, in writing, sufficient information to enable the nature and extent of the tax default to be determined. 42Increase in penalty tax for concealment (1) The amount of penalty tax is to be increased by 20% if, after the Commissioner has informed the taxpayer that an investigation is to be carried out and before the investigation is completed, the taxpayer took steps to prevent or hinder the Commissioner from becoming aware of the nature and extent of the tax default in whole or part. (2) For the purposes of this section, a taxpayer takes steps to prevent or hinder the Commissioner if the taxpayer – (a) deliberately damages or destroys records required to be kept under the taxation law to which the investigation relates; or (b) without reasonable excuse, refuses or fails to comply with a requirement made by the Commissioner under Part 9 for the purposes of determining the taxpayer’s tax liability; or (c) hinders or obstructs an authorised officer performing functions or exercising powers under that Part for that purpose. 43Minimum amount of penalty taxPenalty tax is not to be imposed if the amount of the penalty tax is less than $20. 44Time for payment of penalty taxA taxpayer is to pay penalty tax within the period specified for that purpose in a notice of assessment of the tax liability of the taxpayer. 45Remission of penalty taxThe Commissioner, in any circumstances the Commissioner considers appropriate, may remit penalty tax by any amount. PART 6ReturnsDivision 1General46Form of returnsA return is to be in an approved form. 47Time of lodgmentA return is taken to have been lodged by a person at the time the return is received by the Commissioner. 48Extending time or period for lodgmentThe Commissioner may extend the time or period for lodgment of a return by a person. Division 2Approval of special tax return arrangements49Approval of special tax return arrangements (1) Despite the provisions of another taxation law, the Commissioner, by written notice, may give approval for a special arrangement for the lodging of returns and payment of tax under the taxation law to – (a) a specified taxpayer or taxpayers of a specified class; or (b) a specified agent on behalf of a specified taxpayer or taxpayers of a specified class. (2) An approval may – (a) provide an exemption or a partial exemption for the taxpayer or taxpayers from specified provisions of the taxation law to which it applies; and (b) authorise the lodging of returns and payments of tax by electronic means. (3) An approval may be given on the initiative of the Commissioner or on application. (4) The Commissioner may vary or cancel an approval by written notice. 50Application for approval (1) An application for an approval under this Division is to be made to the Commissioner in an approved form. (2) The Commissioner may – (a) grant an application for an approval; or (b) refuse to grant the application. 51Conditions of approval (1) An approval is subject to any conditions specified by the Commissioner in the notice of approval or by subsequent written notice. (2) An approval may include – (a) conditions limiting the approval to matters of a specified class; and (b) conditions limiting the approval to transactions effected by instruments of a specified class; and (c) conditions requiring the lodging of returns at specified times and conditions as to the contents of the returns; and (d) conditions requiring payments of tax at specified times; and (e) conditions as to the means by which returns are to be lodged or payments of tax are to be made; and (f) if the approval provides an exemption from a requirement for the stamping of instruments, conditions as to the endorsement of the instruments; and (g) conditions requiring the taxpayer or agent to whom the approval was given to keep specified records. 52Effect of approval (1) A tax agent, taxpayer or taxpayers of a class specified in an approval must comply with any condition of the approval.Penalty: In the case of – (a) a body corporate, a fine not exceeding 100 penalty units; or (b) in any other case, a fine not exceeding 20 penalty units. (2)  Subsection (1) does not apply in relation to a matter if the provisions of a taxation law from which a taxpayer is exempted by the approval are complied with in relation to that matter. 53Stamping of instruments (1) An instrument is taken to be duly stamped but without affecting liability for the payment of tax in relation to the instrument under the relevant taxation law if – (a) an approval provides that the instrument is exempt from a requirement for the stamping; and (b) the instrument is endorsed in accordance with the conditions of the approval. (2) A person must not endorse an instrument otherwise than under and in accordance with an approval so as to suggest or imply that the instrument is properly so endorsed and as a result is taken to be duly stamped.Penalty: Fine not exceeding 100 penalty units. PART 7Collection of tax54Tax payable to CommissionerTax is payable to the Commissioner and is a debt due to the Crown. 55Recovery of taxThe Commissioner may recover any amount of unpaid tax in a court of competent jurisdiction. 56Joint and several liability (1) If 2 or more persons are jointly or severally liable to pay an amount under a taxation law, the Commissioner may recover the whole of the amount from them, or any of them, or any one of them. (2) A person who is jointly or severally liable to pay an amount of tax and who pays the amount to the Commissioner may recover a contribution from any other person who is liable to pay the whole or part of that amount. 57Collection of tax from third parties (1) The Commissioner, by notice in writing, may require any of the following persons instead of the taxpayer to pay any unpaid tax: (a) a person by whom any money is due or accruing or may become due to the taxpayer; (b) a person who holds or may subsequently hold money for or on account of the taxpayer; (c) a person who holds or may subsequently hold money on account of some other person for payment to the taxpayer; (d) a person who has authority from some other person to pay money to the taxpayer. (2) A copy of the notice is to be served on the taxpayer. (3)  The amount of money required to be paid by a person under subsection (1) is – (a) if the amount of the money held or due or authorised to be paid does not exceed the amount payable by the taxpayer to the Commissioner, all the money; or (b) if the amount of the money exceeds the amount payable, sufficient money to pay the amount payable. (4) A person required to pay money under this section must pay the money to the Commissioner at whichever of the following is the later: (a) on receipt of the notice; (b) when the money is held by the person; (c) after any period the Commissioner specifies. (5) A person subject to a requirement of the Commissioner under this section must comply with the requirement.Penalty: In the case of – (a) a body corporate, a fine not exceeding 100 penalty units; or (b) in any other case, a fine not exceeding 20 penalty units. (6)  If the whole or a part of an amount is paid by another person – (a) the Commissioner is to promptly notify the person to whom the notice is given of the payment; and (b) the notice is taken to be amended accordingly. (7)  In this section, tax includes a judgment debt and costs in respect of such an amount. 58Indemnification of third partyA person who makes a payment under section 57  – (a) is to be taken to be acting under the authority of the taxpayer and of all other persons concerned; and (b) is indemnified by this section in respect of the payment. 59Arrangements for payment of tax (1) The Commissioner may – (a) extend the time for payment of tax by a taxpayer; and (b) accept the payment of tax by instalments. (2) A decision of the Commissioner under this section may be made subject to any condition the Commissioner determines. PART 8Record keeping60Keeping records (1) A person must keep, or cause to be kept, all records that are necessary to enable the person’s tax liability under a taxation law to be properly assessed.Penalty: In the case of – (a) a body corporate, a fine not exceeding 500 penalty units; or (b) in any other case, a fine not exceeding 100 penalty units. (2)  Subsection (1) does not affect a provision of any other taxation law concerning the keeping of records. (3) The Commissioner, by written notice to a person who is required to keep a required record or cause a required record to be kept, may require the person to keep, or cause to be kept, additional records specified in the notice. (4)  A person must comply with a notice under subsection (3) .Penalty:  In the case of – (a) a body corporate, a fine not exceeding 500 penalty units; or (b) in any other case, a fine not exceeding 100 penalty units. 61AccessibilityA person must keep a required record so that it is able to be readily produced to the Commissioner when required.Penalty: In the case of – (a) a body corporate, a fine not exceeding 200 penalty units; or (b) in any other case, a fine not exceeding 40 penalty units. 62Form of record (1) A person must keep a required record in English or in a form that can be readily converted or translated into English.Penalty: In the case of – (a) a body corporate, a fine not exceeding 200 penalty units; or (b) in any other case, a fine not exceeding 40 penalty units. (2) The Commissioner may recover in a court of competent jurisdiction from a person referred to in subsection (1) the costs reasonably incurred in converting or translating a record into English. 63Period of retention (1) A person must retain a required record for not less than 5 years after whichever of the following is the later: (a) the date it was made or obtained; (b) the date of completion of the transaction or act to which it relates. Penalty:  In the case of – (a) a body corporate, a fine not exceeding 500 penalty units; or (b) in any other case, a fine not exceeding 100 penalty units. (2)  Subsection (1) does not apply to a person if the Commissioner authorises the person in writing to destroy the record before the end of the period referred to in that subsection. 64Destroying recordsA person must not intentionally damage or destroy a record required to be kept by a taxation law.Penalty: In the case of – (a) a body corporate, a fine not exceeding 500 penalty units; or (b) in any other case, a fine not exceeding 100 penalty units. PART 9Investigations and secrecyDivision 1Investigations65Notice of requirements (1) An authorised officer, by written notice, may require a person to do any one or more of the following for the purpose of a taxation law: (a) to provide any information specified in the notice; (b) to attend and give evidence before the authorised officer; (c) to provide the authorised officer with any record in the person’s custody or control that is specified in the notice. (2) If the requirement is made of a person to determine that person’s tax liability, the authorised officer is to indicate this in the notice, but the authorised officer is not otherwise required to identify a person in relation to whom any information or record is required under this section. (3) An authorised officer may require information or evidence that is not given orally to be provided in the form of or verified by a statutory declaration. (4) An authorised officer may require evidence that is given orally to be given on oath or by affirmation and for that purpose the authorised officer may administer an oath or affirmation. (5) An authorised officer may make a recording by any means of the evidence given orally by a person. 66Compliance with notice (1)  A person to whom the notice is given under section 65 must comply with the notice within the period specified in the notice or any extended period the Commissioner allows.Penalty: In the case of – (a) a body corporate, a fine not exceeding 500 penalty units; or (b) in any other case, a fine not exceeding 100 penalty units. (2)  The court, in addition to imposing a penalty on a person under subsection (1) , may order the person to comply, within the period specified in the order, with – (a) the requirement specified in the notice; and (b) any other requirement that could be made in relation to the person under a taxation law that the court considers necessary to ensure the effectiveness of the requirement referred to in paragraph (a) . 67Retention and inspection of records (1) An authorised officer may take and retain possession of any record provided under section 65 only – (a) with the consent of the owner or occupier of the premises; or (b) if it is not practicable to inspect or copy, or take extracts or notes from, that record on the premises. (2) An authorised officer is to permit a person who would be entitled to inspect the record if it were not in the possession of the authorised officer to inspect it at any reasonable time. (3)  This section does not – (a) prejudice a lien a person has on the record; or (b) limit or affect section 70 . 68Access to public recordsAn authorised officer may inspect and take copies of any public record relevant to the assessment or collection of tax kept under any Act without payment of any applicable fee. 69Expenses for attendance (1)  A person who is required to attend and give evidence orally is to be paid expenses in accordance with the scale of allowances to witnesses under the Rules of the Supreme Court. (2)  Subsection (1) does not apply to a person, or a representative of a person, whose liability under a taxation law is being investigated by the Commissioner. 70Entry on premises (1) An authorised officer may enter and remain on premises at any reasonable time if the authorised officer reasonably believes that there are records at the premises that are relevant to the administration of a taxation law. (2) The power of an authorised officer to enter premises may not be exercised unless the authorised officer produces his or her identity card if requested to do so by the owner or occupier of the premises or a person in physical occupation of the premises. (3) Before entering premises, the authorised officer must give the owner or occupier of the premises or a person in physical occupation of the premises reasonable notice of the intention to enter unless – (a) entry is made with the consent of the owner, occupier or person; or (b) the giving of notice would, in the opinion of the authorised officer, defeat the purpose for which it is intended to enter the premises. (4) The power of entry is not exercisable in relation to premises or a part of premises used for residential purposes except – (a) with the consent of the owner or occupier of the premises or part or a person in physical occupation of the premises or part; or (b) under the authority conferred by a search warrant under section 72 . 71Powers on entry (1) An authorised officer who has entered premises in accordance with section 70 may – (a) require any person at those premises to produce any record in the custody or possession or under the control of the person; and (b) require any person at those premises to answer questions or otherwise provide information; and (c) require the owner or occupier of the premises or any person physically in occupation of the premises to provide the authorised officer with any assistance and facilities reasonably necessary to enable the authorised officer to exercise any power under this Part; and (d) seize an instrument that ought to be but is not stamped or is insufficiently stamped. (2) An authorised officer is to issue a receipt for anything removed. (3) Anything seized may be destroyed by the Commissioner if – (a) the taxpayer refuses to accept its return; or (b) the taxpayer cannot be located or ceases to exist. (4)  This section does not limit or affect section 67 . 72Search warrants (1) The Commissioner may apply to a magistrate for a warrant to search any premises if the Commissioner reasonably believes that any records are to be found there to which the Commissioner would have access if they were kept on premises to which the Commissioner has access. (2) A magistrate, if satisfied that there are reasonable grounds for doing so, may issue a search warrant authorising the Commissioner – (a) to enter and search the premises; and (b) to seize any records found there to which access would otherwise have been available to the Commissioner. 73Obstruction of Commissioner or authorised officer (1)  A person must not – (a) prevent the Commissioner or an authorised officer from exercising a power under this Part; or (b) hinder or obstruct the Commissioner or an authorised officer in the exercise of that power; or (c) without reasonable excuse, fail to comply with a requirement made or to answer a question asked under this Part. Penalty:  In the case of – (a) a body corporate, a fine not exceeding 500 penalty units; or (b) in any other case, a fine not exceeding 100 penalty units. (2)  It is a defence in any proceedings for an offence under subsection (1) relating to entry onto premises for a person to prove that the authorised officer did not – (a) identify himself or herself as an authorised officer; and (b) warn the person that a failure to comply with the requirement may constitute an offence. 74Defence of reasonable complianceIt is a defence in any proceedings for an offence under this Part for a person to prove that he or she – (a) could not, by the exercise of reasonable diligence, have complied with the requirement to which the charge relates; or (b) complied with the requirement to the extent of their ability to do so. 75Impersonating Commissioner or authorised officerA person must not impersonate or falsely represent that he or she is the Commissioner or an authorised officer.Penalty: Fine not exceeding 100 penalty units. Division 2Secrecy76Prohibited disclosuresA person who is or was a tax officer must not disclose any information obtained under or in relation to the administration or execution of a taxation law except as permitted under this Part.Penalty: Fine not exceeding 100 penalty units. 77Permitted disclosures (1) A tax officer may disclose information obtained under or in relation to the administration of a taxation law – (a) with the consent of the person to whom the information relates or at the request of a person acting on behalf of that person; or (b) in connection with the administration or enforcement of a taxation law or a law of another State or Territory of the Commonwealth relating to taxation; or (c) for the purpose of any legal proceedings arising out of a taxation law or a report of those proceedings; or (d) in accordance with a requirement imposed under any Act; or (e) to any of the following: (i) the Ombudsman under the Ombudsman Act 1978 ; (ii) a police officer of or above the rank of Inspector; (iii) the State Archivist under the Archives Act 1983 ; (iv) the Australian Statistician; (v) the Auditor-General appointed under the Financial Management and Audit Act 1990 ; (vi) a prescribed person. (2) The Commissioner may disclose information obtained under or in relation to the administration of a taxation law unless that information is likely to identify a particular taxpayer. 78Prohibition on secondary disclosures of informationA person must not disclose any information obtained from a tax officer in accordance with section 77 unless – (a) the disclosure is made to enable the person to exercise a power conferred on the person by law for the purpose of the enforcement of a law or protecting the public revenue; and (b) the Commissioner consents to the disclosure. Penalty:  In the case of – (a) a body corporate, a fine not exceeding 500 penalty units; or (b) in any other case, a fine not exceeding 100 penalty units. 79Disclosure in courtA person who is or was a tax officer is not required to disclose or produce in any court any information obtained under or in relation to the administration or execution of a taxation law unless – (a) it is necessary to do so for the purposes of the administration or execution of a taxation law; or (b) the requirement is made to enable a person referred to in section 77(1)(e) to exercise a power conferred or perform a function imposed on the person by law. PART 10Objections and appealsDivision 1Objections80Objection (1) A taxpayer may object to – (a) an assessment, other than a compromise assessment; or (b) a decision of the Commissioner under a taxation law, unless that law states that the decision is a non-reviewable decision. (2)  An objection is to – (a) be in writing; and (b) state in full the grounds for the objection; and (c) be lodged with the Commissioner within the period referred to in section 82 or 83 . (3) The grounds for objection to a reassessment are limited to the reassessment. (4) A court or administrative review body does not have jurisdiction or power to consider any question concerning an assessment or decision of the Commissioner except as provided by this Part. (5)  Subsection (4) does not apply to a decision of the Commissioner under Part 7 , 8 , 9 or 11 . 81Onus of proofA person making an objection has the onus of proving his or her case. 82Time for lodging objection (1) An objection is to be lodged within 60 days after the date of service of the notice of the assessment or decision on the taxpayer. (2) An objection is taken to have been lodged when it is received by the Commissioner. 83Objections lodged out of time (1) The Commissioner may permit a person to lodge an objection after the 60-day period. (2)  The person seeking to lodge an objection out of time may apply in writing stating fully – (a) the circumstances concerning failure to lodge the objection within the 60-day period; and (b) the reasons for that failure. (3) The Commissioner may – (a) grant permission unconditionally or subject to conditions; or (b) refuse permission. (4) A decision by the Commissioner to refuse permission or to impose conditions on permission is a non-reviewable decision. 84Determination of objection (1) The Commissioner is to consider an objection and may – (a) allow the objection in whole or in part; or (b) disallow the objection. (2) The Commissioner may determine an objection that is subject to a right of appeal at any time before the hearing of the appeal proceedings commences. (3) The Commissioner may only delegate the function to consider and the power to determine an objection to a person who – (a) is not the person who made the assessment or decision to which the objection relates; and (b) is not the subordinate of the person referred to in paragraph (a) . 85Suspension of determination (1) The Commissioner, by written notice served on the objector, may suspend the determination of an objection for any period during which the objector, or another person having information relevant to the objection, fails to provide information relevant to the objection that the Commissioner has requested under a taxation law. (2)  The suspension of a determination takes effect on service of the notice of suspension. (3) The Commissioner, at the request of the objector, may suspend the determination of an objection pending the outcome of legal proceedings relating to a tax liability of the same kind as the tax liability that is the subject of the objection. 86Notice of determination (1) The Commissioner is to give notice to the objector of the determination of the objection. (2)  The notice of the determination is to state the grounds for disallowing an objection or for allowing an objection in part only. 87Recovery of tax pending objection or appealThe fact that an objection or appeal is pending does not affect the assessment or decision to which the objection or appeal relates and tax may be recovered as if no objection or appeal were pending. 88Payment of interest following unsuccessful objection Division 1 of Part 5 applies to an amount of tax required to be paid following the determination of an objection. Division 2Appeals89Right of appeal (1) A taxpayer may appeal to the Supreme Court against – (a) the Commissioner’s determination of the taxpayer’s objection; or (b) the Commissioner’s failure to determine the taxpayer’s objection. (2)  An appeal – (a) is to be made within 60 days after the date of service on the taxpayer of the notice of the Commissioner’s determination of the objection for an appeal under subsection (1)(a) ; or (b) is not to be made before 90 days after the objection was lodged for an appeal under subsection (1)(b) . (3) A taxpayer is not to make an appeal unless – (a) the whole of the amount of the tax to which the appeal relates has been paid; or (b) if that amount has not been paid, the Commissioner allows the taxpayer to make the appeal. (4) A taxpayer must give written notice to the Commissioner of the intention to make an appeal under subsection (1)(b) at least 14 days before the appeal is made. 90Grounds of appealUnless the Supreme Court otherwise orders, on an appeal – (a) the taxpayer’s case is limited to the grounds of the objection; and (b) the Commissioner’s case is limited to the grounds on which the objection was disallowed. 91Onus on appealOn an appeal, the taxpayer has the onus of proving his or her case. 92Orders of Court (1)  On the hearing of an appeal, the Supreme Court may – (a) make any order it thinks fit; and (b) by order, confirm, reduce, increase or vary the assessment or decision. (2)  The costs of the appeal are in the discretion of the Supreme Court. 93Giving effect to decision on appeal (1) Within 60 days after the decision on appeal becomes final, the Commissioner must take any action that is necessary to give effect to the decision. (2)  If an appeal to a court from a decision of the Supreme Court on an appeal is not instituted within 30 days after the day on which the decision is made, the decision is taken to be final at the end of that period. Division 3Refunds following successful objection or appeal94Refund of amountIf a taxpayer’s objection is allowed in whole or in part or a taxpayer’s appeal is upheld, the Commissioner must refund any amount paid in excess of a requirement for payment under the relevant taxation law. 95Payment of interestIn addition to an amount refunded under this Division the Commissioner is required to pay interest on the amount calculated at the market rate referred to in section 35(a) on a daily basis from whichever of the following is the later until the date of the refund: (a) the date of payment of the amount overpaid; (b) the date on which the Commissioner made the assessment to which the objection and appeal relates. PART 11MiscellaneousDivision 1Payment96Payment of tax (1) Tax may be paid to the Commissioner – (a) by a cash payment made at, or a bank cheque or postal money order delivered to, an office of the Commissioner; or (b) by any other means approved by the Commissioner. (2) An approval of the Commissioner may be – (a) general or limited to a particular tax, person or payment; and (b) unconditional or subject to any condition. (3) If the Commissioner approves payment by a personal cheque, payment is taken to be effected when – (a) the cheque is received by the Commissioner if that payment occurs when the Commissioner first presents the cheque to the bank for payment; or (b) payment occurs under the cheque following presentation by the Commissioner. (4) An approval of a means of payment other than personal cheque may include a stipulation as to when payment by that means is taken to be effected. (5) The Commissioner may vary or cancel an approval under this section. 97Adjustments (1) If a single amount of tax payable is not a multiple of a dollar, the Commissioner may decrease the amount to an amount not lower than the nearest dollar. (2) If the Commissioner aggregates 2 or more amounts of tax payable and the aggregated amount is not a multiple of a dollar, the Commissioner may decrease the aggregated amount to an amount not lower than the nearest dollar. 98Valuation of foreign currency (1) If a single amount involved in the calculation of tax is not in Australian currency, the amount is to be converted to Australian currency at the buy rate of exchange reported by the Reserve Bank and applicable at the date on which the liability to pay the tax arose. (2) This section is subject to a provision of another taxation law governing the calculation of tax where an amount involved in the calculation is not in Australian currency. 99AppropriationAny amount authorised or required to be paid by the Commissioner under this Act is to be paid from the Consolidated Fund which is appropriated by this section to the necessary extent. Division 2Evidentiary matters100Issue of documentsA document or a copy of a document bearing the written, printed or stamped signature or name of the Commissioner or a person described in the document as a delegate of the Commissioner is, in the absence of evidence to the contrary, taken to have been lawfully issued by the Commissioner. 101Evidence of assessmentProduction of a notice of assessment or of a document signed by the Commissioner purporting to be a copy of a notice of assessment is conclusive evidence – (a) of the due making of the assessment; and (b) that the amount and all particulars of the assessment are correct, except in any proceedings relating to objections or appeal in which it is proof in the absence of evidence to the contrary. 102Certificate evidenceA certificate signed by the Commissioner that states any of the following matters is admissible in proceedings under a taxation law and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate: (a) that the person named in the certificate is liable to pay tax; (b) that an assessment of tax has been made in relation to circumstances specified in the certificate; (c) that the amount of tax, a penalty or interest specified in the certificate is payable by a person named in the certificate or has been paid in whole or in part by or on behalf of a person so named; (d) that a document specified in the certificate was posted to, delivered to, or served personally on, a person named in the certificate on a day specified in the certificate; (e) that a person named in the certificate is, or is not, registered or licensed as required by the relevant taxation law; (f) that a return or statement required by a taxation law has been, or has not been, lodged by or on behalf of a person named in the certificate on or as at a day specified in the certificate; (g) that a person named in the certificate is, or was, an authorised officer on the date specified in the certificate. 103Copies and extracts of certain documentsA document signed by the Commissioner purporting to be a copy of, or an extract from, a return lodged with the Commissioner or a document issued by the Commissioner is admissible in proceedings under a taxation law without production of the original. Division 3General offences104False or misleading information and statements (1)  A person must not – (a) make a record required under a taxation law knowing it to contain any matter that is false or misleading; or (b) include in a record required under a taxation law any matter knowing it to be false or misleading. Penalty:  In the case of – (a) a body corporate, a fine not exceeding 500 penalty units; or (b) in any other case, a fine not exceeding 100 penalty units. (2) A person, for the purposes of a taxation law, must not – (a) make a statement, orally or in writing, to a tax officer knowing it to be false or misleading; or (b) omit any matter from a statement knowing that without that matter the statement is false or misleading; or (c) give information, orally or in writing, to a tax officer knowing it to be false or misleading. Penalty:  In the case of – (a) a body corporate, a fine not exceeding 500 penalty units; or (b) in any other case, a fine not exceeding 100 penalty units. 105Failure to lodge documentsA person must not fail to lodge a record or return that is required to be lodged by a taxation law.Penalty: In the case of – (a) a body corporate, a fine not exceeding 200 penalty units; or (b) in any other case, a fine not exceeding 40 penalty units. 106Defence relating to recordsA person is not guilty of an offence in relation to a requirement under Part 8 if the person proves that – (a) the person took reasonable care to comply with the requirement; or (b) non-compliance with the requirement was caused solely because of circumstances beyond the person’s control. 107Falsifying or concealing identityA taxpayer must not – (a) falsify or conceal the identity, or the address or location of a place of residence or business, of the taxpayer or of another person; or (b) by act or omission, do anything that facilitates the falsification or concealment of the identity, or the address or location of a place of residence or business, of the taxpayer or of another person. Penalty:  In the case of – (a) a body corporate, a fine not exceeding 500 penalty units; or (b) in any other case, a fine not exceeding 100 penalty units. 108Tax evasionA person must not, by a deliberate act or omission, evade or attempt to evade tax.Penalty: In the case of – (a) a body corporate, a fine not exceeding 1 000 penalty units; or (b) in any other case, a fine not exceeding 200 penalty units or a term of imprisonment not exceeding 2 years, or both. 109Offences by bodies corporate (1) If a body corporate contravenes a provision of a taxation law, a person who is concerned in, or takes part in, the management of the body corporate is taken to have contravened that provision. (2)  It is a defence in proceedings under subsection (1) for a person to prove that – (a) the body corporate contravened the provision without the person’s knowledge; or (b) the person was not in a position to influence the conduct of the body corporate in relation to its contravention of the provision; or (c) the person, if in that position, used all due diligence to prevent the contravention by the body corporate. (3) A person may be convicted of a contravention of a provision of a taxation law whether or not the body corporate has been convicted of its contravention. (4) This section does not affect a liability imposed on a body corporate for an offence committed by it against a taxation law. (5)  For the purpose of this section, the following persons are persons who are concerned in, or take part in, the management of a body corporate: (a) a director of the body corporate; (b) a secretary of the body corporate; (c) a receiver and manager of property of the body corporate; (d) an administrator of a deed of arrangement executed by the body corporate; (e) a liquidator of the body corporate appointed in a voluntary winding-up of the body corporate; (f) a trustee or other person administering a compromise or arrangement made between the body corporate and another person or other persons. 110Offences by partnerships and associationsA reference in a taxation law to an offence by a partnership or an unincorporated association is – (a) in the case of a partnership, a reference to each member of the partnership; and (b) in the case of an unincorporated association, a reference to each member of the committee of management of the association. 111Continuing offences (1)  A person may be convicted of a second or subsequent offence for a failure to do an act if the failure continues beyond the period or date in respect of which the person is convicted for the failure. (2)  The maximum penalty for the offence is the same whether it is a second or subsequent offence. 112Tax liability unaffected by payment of penaltyThe payment by a person of a penalty imposed by a court does not relieve the person from the payment of any other amount the person is liable to pay under a taxation law. 113Time for commencing prosecutionsA prosecution for an offence against a taxation law may be commenced at any time within 3 years after the alleged commission of the offence. Division 4Miscellaneous matters114Public officer of body corporate (1) The Commissioner, by written notice served on a body corporate, may require the body corporate to appoint, within a period specified in the notice, a natural person whose principal place of residence is in Tasmania as a public officer of the body corporate for the purposes of the taxation laws, and to keep the office of public officer constantly filled by such a person. (2) An appointment of a public officer is not duly made until written notice of the appointment, specifying the name and residential address of the officer, has been lodged with the Commissioner. (3) The Commissioner, by notice served on the person and the body corporate, may appoint a director, a secretary or an executive officer, within the meaning of the Corporations Law, of a body corporate as the public officer of the body corporate if the body corporate – (a) does not make an appointment as required; or (b) does not keep the office of public officer constantly filled as required. 115Liability of public officer (1) The public officer of a body corporate is answerable for the discharge of all obligations imposed on the body corporate under a taxation law and, in case of default, is liable to the same penalties. (2)  Anything that the public officer of a body corporate is required to do and does in his or her representative capacity is taken to have been done by the body corporate. (3) The absence or non-appointment of a public officer does not excuse the body corporate from the necessity of complying, or from a penalty for failure to comply, with a provision of a taxation law. (4) Any proceedings brought under a taxation law against the public officer of a body corporate are taken to have been brought against the body corporate, and the body corporate is liable jointly with the public officer for any penalty imposed on the public officer or for compliance with any order made against the public officer. 116Day of service of document or payment of moneyIf a document is served on or lodged with the Commissioner or a payment of money is tendered to the Commissioner at a time on a day that is after the ordinary hours of business when the offices of the Commissioner are open to the public on that day, the document or payment is taken to have been served on, lodged with or tendered to the Commissioner on the following business day. 117Service on agents and members (1) If a person has actual or apparent authority to accept service of a document on behalf of another person, the Commissioner, for the purposes of a taxation law, may serve a document on that person. (2) Service of a document on a member of a partnership or on a member of the committee of management of an unincorporated association or other body of persons constitutes, for the purposes of a taxation law, service of the document on each member of the partnership or on each member of the association or other body of persons. 118Service on body corporate (1) Service of a document on the public officer of a body corporate is sufficient service on the body corporate for the purposes of a taxation law. (2) If a body corporate does not have a public officer, service on a person acting or appearing to act in the business of the body corporate is sufficient service on the body corporate for the purpose of a taxation law. (3)  A document served on, or requirement made of, the public officer of a body corporate is taken to have been served on, or made of, the body corporate. 119Regulations (1)  The Governor may make regulations for the purpose of this Act. (2)  Regulations may be made so as to apply differently according to any matter, condition, limitation, restriction, exception or circumstance specified in the regulations. (3)  The regulations may – (a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and (b) in respect of such an offence, provide for the imposition of a fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues. (4)  The regulations may authorise any matter to be determined, applied or regulated by any person or body. (5)  The regulations may confer a power and impose a duty on a specified person or a specified class of persons. (6)  Regulations may contain provisions of a savings and transitional nature consequent on the enactment of this Act. (7)  A provision referred to in subsection (6) may take effect from the day on which this Act commences or a later day. 120Savings and transitionalThe savings and transitional provisions set out in Schedule 1 have effect. 121Administration of ActUntil provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  – (a) the administration of this Act is assigned to the Treasurer; and (b) the Department responsible to the Treasurer in relation to the administration of this Act is the Department of Treasury and Finance. Schedule 1Savings and transitional

Section 120

1.   Tax officers The person holding office as Commissioner of Pay-roll Tax immediately before the commencement day continues, on that day, as Commissioner of State Revenue under this Act. 2.   Assessments (1) Part 3 applies to the assessment of a tax liability whether the liability arises before, on or after the commencement day. (2)An assessment made under a taxation law before the commencement day is taken, on that day, to have been made under this Act. 3.   Refunds (1) Part 4 applies to the refund or recovery of tax paid before the commencement day. (2) Part 4 does not apply to an application for a refund made but not determined before the commencement day. 4.   Interest (1)Interest in respect of a tax default that occurred before the commencement day accrues from that day in accordance with Division 1 of Part 5 . (2)The Commissioner may remit interest in respect of any interest that accrued under a taxation law before the commencement day. 5.   Penalty tax (1) Division 2 of Part 5 does not apply to a tax default that occurred before the commencement day. (2)The Commissioner may remit penalty tax in respect of any penalty tax imposed on a taxpayer by a taxation law before the commencement day. 6.   Approval of special tax return arrangements Division 2 of Part 6 applies to an approval under a taxation law and in force immediately before the commencement day. 7.   Collection of unpaid tax (1) Part 7 applies to tax that is payable but unpaid immediately before the commencement day. (2)Any proceedings under a taxation law in relation to the recovery of unpaid tax not completed before the commencement day may, on or after that day, be completed under that law. 8.   Records Sections 61 , 62 , 63 and 64 apply to records kept under a taxation law before the commencement day. 9.   Secrecy Division 2 of Part 9 applies to information obtained by a tax officer or other person before the commencement day. 10.   Objections and appeals (1)The provisions of Part 10 apply on and after the commencement day in relation to – (a) any assessment made under a taxation law before that day as if it were an assessment under this Act; and (b) any decision of the Commissioner that may be the subject of objection under a taxation law in force immediately before the commencement day as if it were a decision that may be the subject of objection under that Part. (2) Subclause (1) does not apply to any assessment or decision if an objection has been lodged against it under a taxation law before the commencement day. (3)Appeal proceedings in relation to a decision on an objection lodged under a taxation law before the commencement day may be commenced or continued under that law. 11.   Evidence Sections 102 and 103 apply on and after the commencement day in relation to proceedings relating to a taxation law commenced on or after that commencement, whether the proceedings relate to matters or things occurring before, on or after that day.

[Second reading presentation speech made in:

House of Assembly on 1 DECEMBER 1997

Legislative Council on 9 DECEMBER 1997]