Taxation Laws Amendment Act (No. 2) 1985 (Cth)
This compilation was prepared on 14 September 2010
taking into account amendments up to Act No. 75 of 2010
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section
Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra
TABLE OF PROVISIONS
Section
Short title [
Commencement [
PART II - AMENDMENTS OF THE AUSTRALIAN CAPITAL TERRITORY TAXATION
Principal Act
Secrecy
PART III - AMENDMENTS OF THE BANK ACCOUNT DEBITS TAX ADMINISTRATION
Principal Act
Secrecy
Principal Act
Officers to observe secrecy
Principal Act
13. Insertion of new section -
Election expenses of candidates for local governments, &c.
20. Insertion of new section -
Limitation of exemption from tax of income of certain
21. Assessment of income of superannuation funds to which section 23F
22. Assessment of income of superannuation funds established for benefit of
23. Insertion of new section -
121CC. Assessment of investment income of superannuation funds to
27. Insertion of new Division -
159GK. Effect of application of Division on assessability of
159GM. Special provision where cost of plant, &c., is also eligible
159GN. Effect of use of property under qualifying arrangement for
31. Rebate in respect of annual leave, long service leave and eligible
PART VI - AMENDMENTS OF THE PAY-ROLL TAX (TERRITORIES) ASSESSMENT
42. Insertion of new section -
Secrecy
45. Insertion of new Part -
PART IIIA - CO-OPERATION BETWEEN COMMONWEALTH AND STATE TAXATION
State taxation officers may refer matters to Commissioner for
Access to documents, &c.
Commissioner may obtain information and evidence
State taxation officers to observe secrecy in relation to
Provision of Commonwealth taxation information to State
Certification by State taxation officer of copies of,
48. Insertion of new section -
Certification by Commissioner of copies of, and extracts
PART X - AMENDMENT OF THE TAXATION (INTEREST ON OVERPAYMENTS) ACT
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985 - LONG TITLE
An Act to amend the law relating to taxation
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 1
Short title [
1. This Act may be cited as the Taxation Laws Amendment Act (No. 2) 1985.
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 2
Commencement [
2. This Act shall come into operation on the day on which it receives the
Royal Assent.
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 3
Principal Act
3.*1* The Australian Capital Territory Taxation (Administration) Act 1969 is
in this Part referred to as the Principal Act. *1*No. 42, 1969, as amended.
For previous amendments, see No. 216, 1973; Nos. 61 , 92 and 127, 1981; No.
127, 1982; No. 39, 1983; and No. 123, 1984.
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 4
Secrecy
4. Section 7 of the Principal Act is amended -
(a) by adding at the end of paragraph (2) (a) "or";
(b) by omitting from paragraph (2) (b) "function; or" and substituting
"function.";
(c) by omitting paragraph (2) (c); and
(d) by adding at the end the following sub-section: "(3) For the purposes of
this section, a person who, although not employed by the Commonwealth,
performs services for the Commonwealth shall be taken to be employed by the
Commonwealth.".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 5
Principal Act
5. The Bank Account Debits Tax Administration Act 1982*2* is in this Part
referred to as the Principal Act.
*2*No. 142, 1982, as amended. For previous amendments, see Nos. 39 and 110,
1983; Nos. 102 and 123, 1984; and No. 65, 1985.
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 6
Secrecy
6. Section 7 of the Principal Act is amended -
(a) by inserting after sub-section (1) the following sub-section: "(1A) For
the purposes of this section, a person who, although not appointed or employed
by the Commonwealth, performs services for the Commonwealth shall be taken to
be employed by the Commonwealth.";
(b) by adding at the end of paragraph (4) (a) "or";
(c) by omitting from paragraph (4) (b) "duty; or" and substituting "duty.";
and
(d) by omitting paragraph (4) (c).
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 7
Principal Act
7. The Gift Duty Assessment Act 1941*3* is in this Part referred to a s the
Principal Act.
*3*No. 52, 1941, as amended. For previous amendments, see No. 17, 1942; No.
14, 1947; No. 80, 1950; No. 1, 1953; No. 57, 1957; No. 73, 1963; No. 93, 1966;
No. 41, 1967; No. 97, 1972; No. 216, 1973; No. 24, 1978; Nos. 19 and 61, 1979;
Nos. 61 and 92, 1981; No. 39, 1983; No. 123, 1984; and No. 65, 1985
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 8
Officers to observe secrecy
8. Section 10 of the Principal Act is amended -
(a) by inserting after sub-section (1) the following sub-section: "(1A) For
the purposes of this section, a person who, although not appointed or employed
by the Commonwealth, performs services for the Commonwealth shall be taken to
be employed by the Commonwealth.";
(b) by omitting from sub-section (2) "any such information so acquired by
him" and substituting "any information respecting the affairs of another
person acquired by the officer as mentioned in sub-section (1)";
(c) by omitting paragraph (4) (c); and
(d) by omitting from paragraph (4) (ca) "State Act, or law of any country
outside Australia," and substituting "law of a foreign country".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 9
Principal Act
as the
Principal Act.
*4*No. 27, 1936, as amended. For previous amendments, see No. 88, 1936; No. 5,
1937; No. 46, 1938; No. 30, 1939; Nos. 17 and 65, 1940; Nos. 58 and 69, 1941;
Nos. 22 and 50, 1942; No. 10, 1943; Nos. 3 and 28, 1944; Nos. 4 and 37, 1945;
No . 6, 1946; Nos. 11 and 63, 1947; No. 44, 1948; No. 66, 1949; No. 48, 1950;
No. 44, 1951; Nos. 4, 28 and 90, 1952; Nos. 1, 28, 45 and 81, 1953; No. 43,
1954; Nos. 18 and 62, 1955; Nos. 25, 30 and 101, 1956; Nos. 39 and 65, 1957;
No. 55, 1958; Nos . 12, 70 and 85, 1959; Nos. 17, 18, 58 and 108, 1960; Nos.
17, 27 and 94, 1961; Nos. 39 and 98, 1962; Nos. 34 and 69, 1963; Nos. 46, 68,
110 and 115, 1964; Nos. 33, 103 and 143, 1965; Nos. 50 and 83, 1966; Nos. 19,
38, 76 and 85, 1967; Nos. 4, 60, 70, 87 and 148, 1968; Nos. 18, 93 and 101,
1969; No. 87, 1970; Nos. 6, 54 and 93, 1971; Nos. 5, 46, 47, 65 and 85, 1972;
Nos. 51, 52, 53, 164 and 165, 1973; No. 216, 1973 (as amended by No. 20,
1974); Nos. 26 and 126, 1974; Nos. 80 and 117, 1975; Nos. 50, 53, 56, 98, 143,
165 and 205, 1976; Nos. 57, 126 and 127, 1977; Nos. 36, 57, 87, 90, 123, 171
and 172, 1978; Nos. 12, 19, 27, 43, 62, 146, 147 and 149, 1979; Nos. 19, 24,
57, 58, 124, 133, 134 and 159, 1980; Nos. 61, 92, 108, 109, 110, 111, 154 and
175, 1981; Nos. 29, 38, 39, 76, 80, 106 and 123, 1982; Nos. 14, 25, 39, 49,
51, 54 and 103, 1983; Nos. 14, 47, 115, 123 and 124, 1984; and Nos. 47 and 49,
1985.
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 10
Officers to observe secrecy
10. Section 16 of the Principal Act is amended -
(a) by omitting from sub-section (1A) "the definition of 'officer' in
subsection (1)" and substituting "this section"; and
(b) by omitting paragraph (4) (c).
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 11
Exemptions
11. Section 23 of the Principal Act is amended -
(a) by omitting from sub-paragraph (g) (ii) "or" (last occurring); and
(b) by adding at the end of paragraph (g) the following word and
sub-paragraph:
"or (iv) a society, association or club established for the encouragement
or promotion of animal races;".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 12
Interpretation
12. Section 27A of the Principal Act is amended by inserting "as in force at
any time before the commencement of the Taxation Laws Amendment Act (No. 2)
1985" after "section 159N" in sub-paragraph (a) (ii) of the definition of
"undeducted purchase price" in sub-section (1).
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 13
13. After section 74 of the Principal Act the following section is inserted:
Election expenses of candidates for local governments, &c.
"74A. (1) In this section - 'eligible election expenditure', in relation to
a taxpayer, means expenditure incurred by the taxpayer, in the year of income
that commenced on 1 July 1985 or a subsequent year of income -
(a) in being elected as a member; or
(b) in contesting an election for membership, of a local governing body or
the Australian Capital Territory House of Assembly; 'local governing body'
means a local governing body established by or under a law of a State or
Territory; 'non-deductible amount', in relation to a taxpayer in respect of an
election as at the end of a year of income, means the total eligible election
expenditure incurred by the taxpayer before the end of the year of income in
respect of the election (including any such expenditure incurred in any
preceding year of income) reduced by -
(a) all deductions allowed or allowable to the taxpayer under this
section, in the year of income or a preceding year of income, in respect of
that expenditure; and
(b) all amounts that have been applied under sub-section (5) in preceding
years of income in reduction of amounts that would otherwise have been
included in the assessable income of the taxpayer in respect of the election;
'unused deduction limit', in relation to a taxpayer in respect of an election
as at the end of a year of income, means -
(a) where neither paragraph (b) nor (c) applies - $1,000;
(b) where -
(i) in a preceding year of income or preceding years of income, a
deduction or deductions are allowable or have been allowed to the taxpayer
under this section in respect of the election; and
(ii) paragraph (c) does not apply, $1,000 reduced by the amount of
that deduction or the sum of the amounts of those deductions; or
(c) where -
(i) in a preceding year of income or preceding years of income, a
deduction or deductions are allowable or have been allowed to the taxpayer
under this section in respect of the election; and
(ii) an amount or amounts have been included in the assessable income
of the taxpayer of a preceding year of income or preceding years of income
under subsection (4) in respect of the election, $1,000 reduced by the amount
(if any) by which the amount of the deduction, or the sum of the amounts of
the deductions, referred to in sub-paragraph (i) exceeds the amount, or the
sum of the amounts, included in assessable income as mentioned in
sub-paragraph (ii).
"(2) Subject to sub-section (3), eligible election expenditure incurred by a
taxpayer in a year of income is an allowable deduction.
"(3) The deduction allowable to a taxpayer under this section in a year of
income in respect of expenditure incurred in respect of an election shall not
exceed the unused deduction limit in respect of the election as at the end of
the year of income.
"(4) Subject to sub-section (5), where in a year of income the whole or any
-
(a) is reimbursed to the taxpayer; or
(b) is paid for the taxpayer by any other person or by an organisation, the
assessable income of the taxpayer of the year of income shall include the
amount reimbursed or paid.
"(5) The amount to be included under sub-section (4) in the assessable
income of a taxpayer of a year of income in respect of an election shall be
reduced by the non-deductible amount (if any) in relation to the taxpayer in
respect of the election as at the end of the year of income.".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 14
Gifts, calls on afforestation shares, pensions, &c.
14. Section 78 of the Principal Act is amended by inserting after
subparagraph (1) (a) (1xxxi) the following sub-paragraphs:
";(1xxxii) the Australian Academy of the Humanities for the Advancement of
Scholarship in Language, Literature, History, Philosophy and the Fine Arts;
(1xxxiii) the Royal Australian and New Zealand College of Psychiatrists,".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 15
Deductions for expenses of self-education
15. Section 82A of the Principal Act is amended by omitting sub-section (2)
and substituting the following sub-section:
"(2) In this section - 'educational assistance' means amounts (other than
amounts in the nature of an allowance for maintenance or accommodation)
payable under a scheme for the provision by the Commonwealth of assistance for
secondary education, technical or tertiary education or postgraduate study;
'expenses of self-education' means expenses necessarily incurred by the
taxpayer for or in connection with a prescribed course of education; 'net
amount of expenses of self-education' means the amount ascertained by
subtracting from the total amount of expenses of self-education incurred by
the taxpayer in the year of income the sum of -
(a) any payment or payments of educational assistance that were capable of
being claimed in the year of income by the taxpayer or by another person in
respect of the taxpayer other than -
(i) a payment the amount of which has been, or will be, included in
the assessable income of the taxpayer of any year of income; or
(ii) a payment that was capable of being claimed in a preceding year
of income; and
(b) any payment or payments (other than a payment the amount of which has
been, or will be, included in the assessable income of the taxpayer of any
year of income) received by the taxpayer, or that the taxpayer was entitled to
receive, in the year of income, from the taxpayer's employer, or from any
other person, in respect of -
(i) expenses of self-education that were incurred by the taxpayer
during the year of income; or
(ii) expenses of self-education in respect of which a deduction has
been allowed, or is allowable, or in respect of which a rebate of tax has been
allowed, or is allowable, in an assessment in respect of income derived by the
taxpayer in a preceding year of income; 'prescribed course of education' means
a course of education provided by a school, college, university or other place
of education, and undertaken by the taxpayer for the purpose of gaining
qualifications for use in the carrying on of a profession, business or trade
or in the course of any employment.".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 16
Deduction for contributions to fund for employees
16. Section 82AAC of the Principal Act is amended by adding at the end the
following sub-section:
"(3) A deduction is not allowable under this Subdivision in respect of an
amount or amounts paid to a fund in a year of income, being the year of income
commencing on 1 July 1985 or a subsequent year of income, if section 121CC
applies to the fund in relation to the year of income.".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 17
Deductions for superannuation contributions by eligible persons
17. Section 82AAT of the Principal Act is amended -
(a) by omitting from sub-section (1) "sub-section (2)" and substituting
"this section";
(b) by omitting from sub-section (2) "$1,200" and substituting "$1,500";
and
(c) by adding at the end of the following sub-section: "(3) A deduction is
not allowable under this section in respect of an amount or amounts paid to a
fund in a year of income, being the year of income commencing on 1 July 1985
or a subsequent year of income, if section 121CC applies to the fund in
relation to the year of income.".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 18
Interpretation
18. Section 82KH of the Principal Act is amended -
(a) by adding "or" at the end of paragraph (s) of the definition of
"relevant expenditure" in sub-section (1);
(b) by omitting paragraph (t) of the definition of "relevant expenditure" in
sub-section (1); and
(c) by omitting paragraph (1AD) (b).
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 19
Interpretation
19. Section 121B of the Principal Act is amended by inserting after the
definition of "ineligible approved deposit fund" the following definition:
"'investment income', in relation to a superannuation fund to which section
121CC applies in relation to the year of income, means the income of the fund
that, but for section 23F or 23FB, would be assessable income, other than
contributions to the fund, calculated as if the trustee of the fund were a
taxpayer in respect of that income, being a resident, less all amounts that
would be allowable deductions (other than the concessional deductions and
deductions in respect of benefits) if that income were assessable income;".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 20
20. After section 121B of the Principal Act the following section is
inserted:
Limitation of exemption from tax of income of certain
superannuation funds
"121C. (1) In this section, unless the contrary intention appears -
'agreement' means any agreement, arrangement or understanding whether formal
or informal, whether express or implied and whether or not enforceable, or
intended to be enforceable, by legal proceedings; 'associate' has the same
meaning in relation to a person as that expression has in relation to a person
in section 26AAB; 'employee', in relation to a company, includes a director of
the company; 'in-house asset', in relation to a superannuation fund, means an
asset of the fund that consists of a loan to, or an investment in, an employer
sponsor of the fund or an associate of an employer sponsor of the fund, but,
in a case where an employer sponsor of the fund is a life assurance company
and the contributions made by the employer sponsor are in respect of an
employee, or dependants of an employee, of the employer sponsor, does not
include an asset consisting of a life policy on the life of that employee;
'investment' means any mode of application of money for the purpose of gaining
interest, income or profit; 'life assurance company' means -
(a) a company registered under section 19 of the Life Insurance Act 1945;
or
(b) a public authority constituted by a law of a State or Territory, being a
public authority that carries on life business within the meaning of that
expression in sub-section 4(1) of the Life Insurance Act 1945; 'life policy'
has the same meaning as in sub-section 4 (1) of the Life Insurance Act 1945;
'superannuation fund' means a provident, benefit, superannuation or retirement
fund to which section 23F or 23FB applies in relation to the year of income.
"(2) Where an employee has, or dependants of an employee have, a right to
receive benefits from a superannuation fund -
(a) an employer of the employee;
(b) a company in which an employer of the employee has a controlling
interest; and
(c) if an employer of the employee is a company - a person who is connected
with that company, who contributes to the fund in respect of the employee or
dependants of the employee shall be taken, for the purpose of this section, to
be an employer sponsor of the fund.
"(3) For the purposes of paragraph (2) (c), a person is connected with a
company that is an employer of an employee if, and only if -
(a) the person has a controlling interest in the employer;
(b) the person is a company in which a controlling interest is held by a
person who also has a controlling interest in the employer; or
(c) the person is a beneficial owner of shares in the employer.
"(4) The investment income of a superannuation fund derived during the year
of income, being a superannuation fund that was established after 11 March
1985, is not exempt from income tax by virtue of section 23F or 23FB unless,
at all times during the year of income, the cost of the in-house assets of the
fund did not exceed 10% of the cost of all the assets of the fund. "(5) The
investment income of a superannuation fund derived during the year of income,
being a superannuation fund that was established before 12 March 1985, is not
exempt from income tax by virtue of section 23F or 23FB unless, at all times
during the year of income, the cost of the in-house assets of the fund did not
exceed -
(a) in the case of the year of income commencing on 1 July 1994 or a
preceding year of income -
(i) the cost of the in-house assets of the fund as at 11 March 1985;
or
(ii) 10% of the cost of all the assets of the fund, whichever is the
greater; and
(b) in any other case - 10% of the cost of all the assets of the fund.
"(6) Where the cost of the in-house assets of a superannuation fund as at 11
March 1985 exceeded 70% of the cost of all the assets of the fund, the cost of
the in-house assets of the fund as at 11 March 1985 shall be deemed, for the
purposes of sub-paragraph (5) (a) (i), to be equal to 70% of the cost of all
the assets of the fund as at 11 March 1985.
"(7) For the purposes of this section, the Commissioner shall disregard any
failure of the assets of a superannuation fund to comply with the maximum
levels of in-house assets specified in sub-section (4) or (5) if the
Commissioner is satisfied -
(a) that the trustee of the fund made a genuine and bona fide attempt to
ensure that the in-house assets of that fund did not exceed, at any time
during that year of income, the levels so specified; or
(b) that the failure was by reason of a temporary delay in investment, and
that, in all the circumstances, it would be reasonable to disregard that
failure.
"(8) This section does not apply, in relation to a year of income, to a
superannuation fund where -
(a) the terms and conditions applicable to the fund did not, at any time
during that year of income, make provision for benefits for residents; and
(b) no deductions have been allowed or are allowable in the assessment of
the taxable income of any taxpayer in respect of contributions made to the
fund during that year of income.
"(9) For the purposes of this section, where, in relation to a year of
income, the investment income of a superannuation fund consists of, or
includes, a portion of the income arising from certain assets -
(a) those assets shall be deemed to be assets of the fund; and
(b) the cost of those assets shall, in relation to any time during that year
of income, be such amount as, in the opinion of the Commissioner, is
reasonable in the circumstances.
"(10) Where -
(a) a particular asset of a superannuation fund was acquired without
consideration or for consideration other than the value of the asset when it
was acquired; or
(b) the whole or a part of the consideration for which a particular asset of
a superannuation fund was acquired was other than money, the cost of that
asset shall, for the purposes of this section, be such amount as, in the
opinion of the Commissioner, is reasonable in the circumstances.
"(11) Where -
(a) but for this sub-section, an asset of a superannuation fund consists of
a loan, or investment, other than an in-house asset;
(b) that loan or investment was made as the result of the entering into or
carrying out of an agreement; and
(c) any of the persons who entered into or carried out the agreement did so
for the purpose, or for purposes that included the purpose, of achieving the
result that a loan or investment would be made to or in, or to or in an
associate of, an employer sponsor of the fund, the asset is an in-house asset
of the fund for the purposes of this section.
"(12) Where -
(a) an asset of a superannuation fund consists of a loan to, or investment
in, a person other than - (i) an employer sponsor of the fund; or (ii) an
associate of an employer sponsor of the fund;
(b) the person has a financial link with an employer sponsor of the fund or
an associate of an employer sponsor of the fund; and
(c) sub-section (11) does not apply in relation to the asset, the cost of
the in-house assets of the fund shall be deemed, for the purposes of this
section, to be increased by such amount (if any) as, in the opinion of the
Commissioner, is reasonable in the circumstances.
"(13) For the purposes of sub-section (12) and this sub-section -
(a) a person has a financial link with a second person if an asset of the
first-mentioned person consists of a loan to, or an investment in, the second
person; and
(b) a person has a financial link with a second person if the firstmentioned
person has a financial link with a third person who has a financial link with
the second person (including a financial link with the second person by
another application or other applications of this paragraph). "(14) Subject to
sub-section (15), the cost of the in-house assets of a superannuation fund
shall be deemed, for the purposes of this section, to be increased by an
amount equal to the sum of -
(a) the amount of any subsisting guarantee given by the trustee of the fund
(whether jointly or otherwise) in relation to, or in relation to an associate
of, an employer sponsor of the fund;
(b) the amount of any subsisting mortgage given in respect of an asset of
the fund for the benefit of, or for the benefit of an associate of, an
employer sponsor of the fund (whether or not the mortgage was also given for
the benefit of other persons); and
(c) the amount of payments by way of calls in respect of shares in, or in an
associate of, an employer sponsor of the fund, that the trustee of the fund
is, or could become, liable to pay (whether jointly or otherwise).
"(15) Where -
(a) the trustee of a superannuation fund could become liable (whether
jointly or otherwise) to pay an amount by way of calls in respect of shares
in, or in an associate of, an employer sponsor of the fund; and
(b) the Commissioner is satisfied that the assets of the employer sponsor or
the associate of the employer sponsor, as the case may be, are sufficient to
enable it to pay any debts that it has incurred, or is reasonably likely to
incur, without requiring any of those calls to be paid, the Commissioner may
determine that the amount referred to in paragraph (a) shall be disregarded
for the purposes of paragraph (14) (c).
"(16) Where -
(a) an employer of an employee is a company;
(b) the employee has, or dependants of the employee have, a right to receive
benefits from a superannuation fund;
(c) the employee, or a dependant of the employee, is a beneficial owner of
shares in the employer;
(d) an asset of the fund consists of a loan to the employee, or the
dependant, referred to in paragraph (c); and
(e) but for this sub-section, the asset is an in-house asset of the fund,
the asset shall, for the purposes of this section, be deemed not to be an
inhouse asset of the fund if the Commissioner, having regard to -
(f) the amount of the loan;
(g) the value of the shares; and
(h) any other matters that the Commissioner considers relevant, is satisfied
that there are special circumstances by reason of which it would be reasonable
to treat the asset as not being an in-house asset of the fund.
"(17) Nothing in sub-section (14), (15) or (16) shall be construed as
permitting, by implication, the doing of an act or thing by or in relation to
a superannuation fund that could not be done without contravening whichever of
sections 23F or 23FB is applicable in relation to the fund.
"(18) Where a superannuation fund is in existence during part only of a year
of income, this section has effect as if references to all times during the
year of income were references to all times during the part of that year of
income during which the superannuation fund was in existence.".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 21
Assessment of income of superannuation funds to which section 23F applies
21. Section 121CA of the Principal Act is amended by inserting ", or, but
for section 121C, would be," after "other than income that is".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 22
Assessment of income of superannuation funds established for benefit of
employees and other persons
22. Section 121CB of the Principal Act is amended -
(a) by omitting "assessable"; and
(b) by inserting ", other than income that is, or, but for section 121C,
would be, exempt from income tax by virtue of section 23FB," after "fund in
the year of income".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 23
23. After section 121CB of the Principal Act the following section is
inserted:
Assessment of investment income of superannuation funds to which
section 23F or 23FB applies
"121CC. The trustee of a superannuation fund to which section 23F or 23FB
applies in relation to the year of income shall be assessed and is liable to
pay tax, at the rate declared by the Parliament for the purposes of this
section, upon the investment income of the fund of the year of income, to the
extent to which that income is, by virtue of section 121C, not exempt from
income tax.".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 24
Assessment of income of other superannuation funds
24. Section 121DA of the Principal Act is amended by inserting ", 121CC"
after "121CB".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 25
Assessment of income of certain superannuation funds
25. Section 121DAB of the Principal Act is amended by omitting from
paragraph (b) "or 121CB" and substituting ", 121CB or 121CC".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 26
Diverted income and diverted trust income
26. Section 121G of the Principal Act is amended -
(a) by omitting from paragraphs (4) (c), (5) (c) and (6) (c) "and"; and
(b) by inserting after paragraphs (4) (c), (5) (c) and (6) (c) the following
paragraph: "(d) if the taxpayer is the trustee of a provident, benefit,
superannuation or retirement fund, the relevant amount is not taken into
account in calculating the investment income of the fund of the year of income
for the purposes of section 121CC; and".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 27
27. After Division 16C of the Principal Act the following Division is
inserted in Part III:
"Division 16D - Certain arrangements relating to the use of property
Interpretation
"159GE. (1) In this Division - 'arrangement' includes -
(a) any agreement, arrangement, understanding, promise or undertaking,
whether express or implied, and whether or not enforceable, or intended to be
enforceable, by legal proceedings; and
(b) any scheme, plan, proposal, action, course of action or course of
conduct whether unilateral or otherwise; 'arrangement payment', in relation to
an arrangement relating to the use, or the control of the use, of an item of
property, means so much of any payment liable to be made under the arrangement
as represents consideration for any one or more of the following:
(a) the use of the item;
(b) the control of the use of the item;
(c) the sale or disposal of the item; 'arrangement period', in
relation to an item of eligible property that is, or is included in,
arrangement property in relation to an arrangement at a particular time, means
the period that is at that time the total period during which the arrangement
is likely to be in force in relation to that item of eligible property
(including any period before that time when the arrangement was in force in
relation to that item of eligible property); 'arrangement property' means
property that is, or is to be, used, or the use of which is, or is to be,
controlled, under an arrangement; 'assessable arrangement payment' means an
arrangement payment that, apart from this Division, would be included in whole
or in part in the assessable income of a taxpayer of a year of income;
'associate' means -
(a) in relation to a person other than an exempt public body - any
person who is an associate, within the meaning of subsection 26AAB (14), in
relation to the person; and
(b) in relation to an exempt public body -
(i) a partner of the exempt public body or a partnership in which
the exempt public body is a partner;
(ii) if a person who is an associate of the exempt public body by
virtue of sub-paragraph (i) is a natural person - the spouse or a child of
that person;
(iii) a trustee of a trust estate where the exempt public body or
another person who is an associate of the exempt public body by virtue of
another sub-paragraph of this paragraph benefits or is capable (whether by the
exercise of a power of appointment or otherwise) of benefiting under the
trust, either directly or through any interposed companies, partnerships or
trusts; or
(iv) a company where -
(A) the company is, or its directors are, accustomed or under
an obligation, whether formal or informal, to act in accordance with the
directions, instructions or wishes of the exempt public body, of a person who
is an associate of the exempt public body by virtue of another sub-paragraph
of this paragraph, of a company that is an associate of the exempt public body
by virtue of another application of this subparagraph or of any 2 or more such
persons; or
(B) the exempt public body is, the persons who are associates of
the exempt public body by virtue of sub-sub-paragraph (A) and the other
subparagraphs of this paragraph are, or the exempt public body and the persons
who are associates of the exempt public body by virtue of that
sub-sub-paragraph and those sub-paragraphs are, in a position to cast, or
control the casting of, more than 50% of the maximum number of votes that
might be cast at a general meeting of the company; 'capital expenditure
deduction' means a deduction under Division 10, 10AAA, 10AA, 10A, 10C or 10D;
'control' means effectively control; 'depreciation deduction' means a
deduction in respect of depreciation under Division 3; 'Division 10, 10AA or
10A property' means property in relation to which there has been incurred -
(a) allowable capital expenditure within the meaning of Division 10 or
10AA;
(b) expenditure taken into account in ascertaining an amount of
residual capital expenditure specified in paragraph 122C (1) (A); or
(c) capital expenditure specified in sub-section 124F (1) or 124JA
(1); 'Division 10AAA property' means property in relation to which there has
been incurred capital expenditure to which Division 10AAA applies; 'Division
10C or 10D property' means property in relation to which there has been
incurred qualifying expenditure within the meaning of Division 10C or 10D;
'effective life', in relation to an item of eligible property at a particular
time, means the period (if any) that the Commissioner estimates will be, or
would be, at that time the effective life of the property after that time
assuming that it is or would be maintained in reasonably good order and
condition; 'eligible amount', in relation to an item of eligible property,
means -
(a) where the item is an item of eligible depreciation property - the
amount that was the cost of the item of property to the taxpayer who owns the
item for the purposes of sub-section 62 (1) or that would have been the cost
of the item of property to the taxpayer for the purposes of that sub-section
if that sub-section had applied in relation to the item of property, as the
case requires; and
(b) where the item is an item of eligible capital expenditure property
- any amount of eligible capital expenditure in relation to the item of
property; 'eligible capital expenditure', in relation to an item of eligible
capital expenditure property, means expenditure by reason of which the item of
property is eligible capital expenditure property; 'eligible capital
expenditure property' means Division 10, 10AA or 10A property, Division 10AAA
property or Division 10C or 10D property; 'eligible depreciation property'
means plant or articles within the meaning of section 54; 'eligible property'
means -
(a) eligible depreciation property;
(b) Division 10, 10AA or 10A property;
(c) Division 10AAA property; or
(d) Division 10C or 10D property; 'eligible real property', means
eligible property that is -
(a) a building or a part of a building; or
(b) a structure that is a fixture or a part of such a structure;
'exempt public body' means -
(a) the Commonwealth, a State or a Territory;
(b) a municipal corporation or other local governing body, the income
of which is wholly exempt from tax; or
(c) a public authority -
(i) that is constituted by or under a law of the Commonwealth, a
State or a Territory; and
(ii) the income of which is wholly exempt from tax; 'payment
portion', in relation to an arrangement payment in relation to an eligible
amount in relation to an item of eligible property, means so much of the
arrangement payment as the Commissioner considers is attributable to the
eligible amount in relation to the item of eligible property; 'person'
includes an exempt public body; 'total notional principal', in relation to an
eligible amount in relation to an item of eligible property in relation to an
application period, means the sum of all notional principal amounts (if any)
in relation to payment portions of arrangement payments in relation to the
eligible amount in relation to the application period.
"(2) For the purposes of the definition of 'arrangement period' in
subsection (1), a reference in that definition to the total period during
which an arrangement is, at a particular time, likely to be in force in
relation to an item of eligible property that at that time is, or is included
in, arrangement property in relation to the arrangement is a reference to -
(a) where at that time the total period during which the arrangement was, or
is, to be in force in relation to that item of eligible property (including
any period before that time when the arrangement was in force in relation to
that item) was or is specified in or ascertainable in accordance with the
arrangement - that period; and
(b) in any other case - such period as would have been, or is, at that time
the period during which the arrangement would be, or is, likely to be in force
in relation to the item of property (including any period before that time
when the arrangement was in force in relation to the item), having regard to
the provisions of the arrangement and any other relevant circumstances in
relation to the arrangement, or in relation to the item of property.
"(3) Nothing in this Division prevents an item of eligible property from
being an item of eligible property by reason of the application of 2 or more
paragraphs of the definition of 'eligible property' in sub-section (1). "(4)
For the purposes of the definition of 'total notional principal' in
sub-section (1), where -
(a) under section 159GK there is an interest amount within the meaning of
that section in relation to a payment portion (not being a notional final
payment portion within the meaning of that section) in relation to an
arrangement payment; and
(b) the interest amount is less than the amount of the payment portion,
there shall be taken to be a notional principal amount in relation to the
payment portion of an amount equal to the difference between the interest
amount and the amount of the payment portion.
"(5) Where -
(a) under 2 or more successive arrangements relating to the use by a person,
or the control by a person of the use, of property owned by another person,
the same property is used by, or the use of the same property is controlled
by, the same person or by persons who, in relation to each other, are
associates; and
(b) the Commissioner considers that the arrangements should be taken, for
the purposes of this Division, to be a single arrangement, the arrangements
shall, for the purposes of this Division, be deemed to be a single arrangement
entered into at the same time as the first of the arrangements, coming into
force at the same time as the first of the arrangements and continuing in
force until the expiration of the second or last, as the case requires, of the
arrangements.
"(6) A reference in sub-section (5) to successive arrangements includes a
reference to -
(a) where the arrangement periods of 2 or more arrangements overlap - those
arrangements; and
(b) where there is a period between the expiration of an arrangement and the
commencement of another arrangement and the Commissioner considers that the
arrangements should be taken to be successive arrangements for the purposes of
that sub-section - those arrangements.
"(7) Where this Division applies in relation to an item of eligible property
in relation to a qualifying arrangement, a reference in this Division to the
application period in relation to that application of this Division in
relation to the item of eligible property is a reference to the period
commencing at the time at which this Division in that application commences to
apply and ending at the time at which this Division in that application ceases
to apply.
"(8) For the purposes of this Division, where one or more of the partners in
a partnership uses, or controls the use of, an item of property, each of the
partners in the partnership shall be taken to use, or to control the use of,
the item of property and the partnership shall be taken not to use, or to
control the use of, the item of property.
Residual amounts
"159GF. (1) Subject to sub-section 159GJ (1), in this Division a reference
to the residual amount at a particular time (in this sub-section referred to
as the 'relevant time') in relation to the eligible amount by reason of which
an item of property is eligible depreciation property at the relevant time is
a reference to the eligible amount reduced by -
(a) where the item of property was not dealt with by the taxpayer who owns
the item in the prescribed manner at any time during the period (in this
sub-section referred to as the 'relevant period') before the relevant time
when it was owned by the taxpayer - the total amount of depreciation that
would, but for any deduction denying provision, have been allowable to the
taxpayer under Division 3 in respect of that item of property for the relevant
period if -
(i) at all times during the relevant period the taxpayer had wholly
and exclusively dealt with the item of property in the prescribed manner;
(ii) the depreciation allowable for the relevant period were
calculated in accordance with paragraph 56 (1) (a); and
(iii) section 57AG did not apply in relation to the item of property;
(b) where the item of property was wholly and exclusively dealt with by the
taxpayer who owns the item in the prescribed manner at all times during the
relevant period - the total amount of depreciation that was or, but for any
deduction denying provision, would have been, allowed or allowable to the
taxpayer in respect of the item of property for that period under Division 3;
and
(c) in any other case - the total amount of depreciation that, but for any
deduction denying provision, would have been allowable to the taxpayer who
owns the item of property in respect of the item under Division 3 for the
relevant period if -
(i) the taxpayer had wholly and exclusively dealt with the item of
property in the prescribed manner at all times during the relevant period;
(ii) in respect of any part of the relevant period for which
depreciation was or, but for any deduction denying provision, would have been
allowed or allowable under Division 3 - the depreciation were allowable on the
same basis and at the same percentage as was or would have been allowed or
allowable for that part of the relevant period; and
(iii) in respect of any other part (in this sub-paragraph referred to
as the 'relevant part') of the relevant period - the depreciation were
allowable -
(A) where the relevant part was immediately succeeded by another
part of the relevant period in respect of which depreciation was or, but for
any deduction denying provision, would have been allowed or allowable under
Division 3 - on the same basis and at the same percentage as was or would have
been allowed or allowable in respect of that other part; and
(B) in any other case - on the same basis and at the same
percentage as was or, but for any deduction denying provision, would have been
allowed or allowable under Division 3 in respect of the part of the relevant
period for which depreciation was or would have been allowed or allowable,
being the part that immediately preceded the relevant part.
"(2) For the purposes of sub-section (1) -
(a) an item of eligible depreciation property shall be taken to be dealt
with by a taxpayer in the prescribed manner at a particular time if -
(i) the item of property is used by the taxpayer at that time for the
purpose of producing assessable income; or
(ii) the item of property is, at that time, installed ready for use
for the purpose of producing assessable income and held in reserve by the
taxpayer; and
(b) a reference to a deduction denying provision is a reference to a
provision of this Act that would have the effect of denying an entitlement in
whole or in part to a deduction otherwise wholly allowable under this Act.
"(3) Subject to sub-section 159GJ (2), where any of the following amounts
(in this sub-section referred to as the 'attributable amount'):
(a) an amount of residual previous capital expenditure within the meaning of
Division 10 or 10AA;
(b) an amount of residual capital expenditure within the meaning of Division
10, 10AA or 10A;
(c) an amount of residual (1 May 1981 to 18 August 1981) capital expenditure
within the meaning of Division 10 or 10AA;
(d) an amount of residual (19 August 1981 to 19 July 1982) capital
expenditure within the meaning of Division 10 or 10AA;
(e) so much as is unrecouped of an amount of allowable (post 19 July 1982)
capital expenditure within the meaning of Division 10 or 10AA, ascertained as
at the end of a year of income, is attributable in whole or in part to an
amount of expenditure (in this sub-section referred to as the 'relevant
expenditure') by reason of which an item of property is Division 10, 10AA or
10A property, in this Division a reference to the residual amount at any time
during the year of income in relation to the relevant expenditure is a
reference to so much of the attributable amount as is attributable to the
relevant expenditure.
"(4) Subject to sub-section 159GJ (3), in this Division a reference to the
residual amount at a particular time in relation to an amount of expenditure
by reason of which an item of property is Division 10AAA property is a
reference to the amount of expenditure reduced by any part of that expenditure
that has been allowed or is allowable as a deduction under Division 10AAA from
the assessable income of any taxpayer of a year of income preceding the year
of income in which the particular time occurs.
"(5) Subject to sub-section 159GJ (4), in this Division a reference to the
residual amount at a particular time in relation to an amount of expenditure
by reason of which an item of property is Division 10C or 10D property is a
reference to the residual capital expenditure within the meaning of Division
10C or 10D, as the case may be, at that time in relation to the amount of
expenditure.
Qualifying arrangements
"159GG. (1) For the purposes of this Division, where at any time (in this
sub-section referred to as the 'relevant time') any of the following
conditions is satisfied in relation to an arrangement relating to the use by a
person (in this sub-section referred to as the 'end-user'), or to the control
by a person (in this sub-section also referred to as the 'end-user') of the
use, of property owned by another person who is a party to the arrangement,
being property that is or includes an item of eligible property:
(a) the arrangement contains provision to the effect that -
(i) if -
(A) on the termination or expiration of the arrangement, the owner
sells or otherwise disposes of the whole of the arrangement property, or part
of the arrangement property that is or includes the item of eligible property,
to any person; and
(B) the owner or an associate receives in respect of the sale or
disposal no consideration, or consideration of an amount less than an amount
(in this sub-paragraph referred to as the 'guaranteed residual value')
specified in, or ascertainable under, the provision, the end-user or an
associate will pay to the owner or an associate an amount equal to the
guaranteed residual value, or to the amount by which the guaranteed residual
value exceeds the consideration, as the case may be;
(ii) at or after the termination or expiration of the arrangement, the
whole of the arrangement property or part of the arrangement property that is
or includes the item of eligible property is to be transferred (whether or not
for any consideration) to the end-user or an associate;
(iii) the end-user or an associate has or will have the right to
purchase or to require the transfer of the whole of the arrangement property
or part of the arrangement property that is or includes the item of eligible
property; or
(iv) the arrangement period in relation to the item of eligible
property in relation to the arrangement is a period that exceeds 1 year and
the end-user or an associate will be liable to carry out, to expend money in
respect of or to reimburse the owner or an associate for expenditure in
respect of, repairs that may be required to the whole of the arrangement
property or to part of the arrangement property that is or includes the item
of eligible property;
(b) the arrangement period in relation to the item of eligible property in
relation to the arrangement is equal to or greater than -
(i) where the item is an item of eligible real property - 50% of the
effective life of that item at the commencement of the arrangement period; or
(ii) in any other case - 75% of the effective life of that item at the
commencement of the arrangement period;
(c) the sum of -
(i) the payment portions of arrangement payments that were liable to
be made at or before the relevant time in relation to the eligible amount, or
in relation to all of the eligible amounts (including any eligible amount in
respect of expenditure incurred after the commencement of the arrangement
period), in relation to the item of eligible property; and
(ii) the payment portions of arrangement payments that, having regard
to the provisions of the arrangement and any other relevant circumstances, are
or were, at the relevant time, likely to become liable to be made after the
relevant time in relation to the eligible amount, or in relation to all of the
eligible amounts (including any eligible amount in respect of expenditure
that, having regard to the provisions of the arrangement and any other
relevant circumstances, is or was likely to be incurred during the arrangement
period), in relation to the item of eligible property, is equal to or greater
than 90% of the sum of -
(iii) the residual amount in relation to the eligible amount, or the
sum of the residual amounts in relation to the eligible amounts, in respect of
which expenditure was incurred before the commencement of the arrangement
period in relation to the item of eligible property, as ascertained at the
commencement of the arrangement period; and
(iv) the amount of any expenditure that was, or is likely to be,
incurred during the arrangement period, being expenditure giving rise to an
eligible amount in relation to the item of eligible property, the arrangement
shall be taken to be, or to have been, a qualifying arrangement in relation to
the item of eligible property -
(d) at the relevant time; and
(e) at all times before the relevant time when the arrangement was in force
in relation to the item of eligible property.
"(2) For the purposes of this Division, where -
(a) an item of eligible property is, or is included in, arrangement property
in relation to an arrangement relating to the use by a person (in this
sub-section referred to as the 'end-user'), or to the control by a person (in
this sub-section also referred to as the 'enduser') of the use, of property
owned by another person who is a party to the arrangement; and
(b) the ownership of the item of eligible property is transferred to the
end-user or an associate within 1 year after the arrangement ceases to be in
force (whether by termination or expiration) in relation to the item of
eligible property, the arrangement shall be taken to have been a qualifying
arrangement in relation to the item of eligible property at all times during
the period during which the arrangement was in force in relation to the item
of eligible property.
"(3) For the purposes of sub-sections (1) and (2) -
(a) a lease to a person of property owned by another person shall be taken
to be an arrangement relating to the use by the person of property owned by
the other person; and
(b) any arrangement entered into in relation to the lease referred to in
paragraph (a) shall be taken to be part of the arrangement referred to in that
paragraph.
"(4) Where, but for this sub-section, an arrangement would be a qualifying
arrangement in relation to an item of eligible property at a particular time
(in this sub-section referred to as the 'relevant time') and the Commissioner,
having regard to -
(a) the circumstances by reason of which the arrangement is a qualifying
arrangement in relation to that item of eligible property; and
(b) any other relevant circumstances, considers it unreasonable that the
arrangement should be a qualifying arrangement at the relevant time in
relation to the item of eligible property, the arrangement shall be taken not
to be a qualifying arrangement at the relevant time in relation to the item of
eligible property.
"(5) Where an arrangement is a qualifying arrangement in relation to an item
of eligible property at a particular time (in this sub-section referred to as
the 'relevant time') and the arrangement ceases to be a qualifying arrangement
in relation to that item of eligible property at a later time, the arrangement
shall not be taken not to have been a qualifying arrangement in relation to
that item of eligible property at the relevant time by reason of it ceasing to
be a qualifying arrangement in relation to that item of eligible property at
the later time.
Application of Division in relation to property
"159GH. (1) Subject to sub-section (2), where -
(a) at a particular time (in this sub-section referred to as the 'relevant
time') an arrangement is a qualifying arrangement under sub-section 159GG (1)
or (2) in relation to an item of eligible property; and
(b) either of the following conditions is satisfied:
(i) the qualifying arrangement was entered into after 5 o'clock in the
afternoon, by standard time in the Australian Capital Territory, on 15 May
1984 and the end-user referred to in sub-section 159GG (1) or (2) is an exempt
public body;
(ii) the arrangement was entered into after 5 o'clock in the
afternoon, by legal time in the Australian Capital Territory, on 16 December
1984 and the use of the property referred to in sub-section 159GG (1) or (2)
takes place, or will take place, outside Australia and is, or will be, wholly
or partly for the purpose of producing exempt income, this Division applies in
relation to the item of eligible property at the relevant time.
"(2) This Division does not apply in relation to an item of eligible
property at a particular time if at that time section 51AD applies to the item
of eligible property in relation to a taxpayer.
Effect of application of Division on certain deductions, &c.
"159GJ. (1) Where this Division applies in relation to an item of eligible
depreciation property -
(a) if -
(i) but for this section, Subdivision B of Division 3 would apply, or
would have applied, in relation to the item of eligible property in relation
to a taxpayer; and
(ii) this Division commences to apply before the expiration of 12
months after the item of property was first used, or installed ready for use,
by the taxpayer, Subdivision B of Division 3 does not apply, and shall be
deemed never to have applied, in relation to the item of eligible property in
relation to the taxpayer;
(b) in relation to any year of income the whole of which is included in or
comprises the application period - no depreciation deduction shall be
allowable to any taxpayer in relation to the item of property for that year of
income;
(c) in relation to any other year of income in which the whole or a part of
the application period occurs -
(i) in relation to any part (in this sub-section referred to as the
'pre-application part') of the year of income that precedes the application
period - there shall be allowable to a taxpayer as a depreciation deduction in
relation to the item of property -
(A) where this Division has not previously applied in relation to
the item of property - the same depreciation deduction (if any) as would,
apart from this Division, be allowable to the taxpayer; and
(B) in any other case - the same depreciation deduction (if any)
as would, but for this application of this section, be allowable to the
taxpayer;
(ii) in relation to the part of the year of income during which this
Division applies - no depreciation deduction shall be allowable to any
taxpayer in relation to the item of property; and
(iii) in relation to any part (in this sub-section referred to as the
'post-application part') of the year of income that occurs after the
application period (not being a part that occurs after the commencement of a
subsequent application period) -
(A) the residual amount in relation to the item of eligible
depreciation property at any time (in this sub-subparagraph referred to as the
'relevant time') during the post-application part is an amount ascertained in
accordance with the formula A + B - C, where -
A is the amount that, but for this application of this
section, would be the residual amount at the relevant time in relation to the
eligible amount (in this sub-paragraph referred to as the 'relevant eligible
amount') by reason of which the item is an item of eligible depreciation
property;
B is -
(a) where paragraph (b) of this component does not apply -
the amount that, in determining the residual amount in component A, would be
taken into account as depreciation under sub-section 159GF (1) in respect of
the application period; and
(b) where, in determining the residual amount in component
A, depreciation taken into account in respect of the post-application part
would be calculated in accordance with paragraph 56 (1) (a) - the amount that,
in determining the residual amount in component A, would be taken into account
under sub-section 159GF (1) as depreciation in respect of the application
period and the part of the post-application part before the relevant time;
and
C is -
(a) where paragraph (a) of component B applies - an amount
equal to the total notional principal in relation to the relevant eligible
amount in relation to the application period; and
(b) where paragraph (b) of component B applies - the sum of
-
(i) the total notional principal in relation to the
relevant eligible amount in relation to the application period; and
(ii) the amount that, in determining the residual amount
in component A, would be taken into account as depreciation under sub-section
159GF (1) in respect of the part of the post-application part before the
relevant time if the depreciated value of the item of eligible depreciation
property at the beginning of the year of income in which this Division ceases
to apply were equal to the residual amount at the beginning of the application
period as reduced by the total notional principal in relation to the relevant
eligible amount in relation to the application period;
(B) for the purposes of any application of sub-section 56 (2) or
section 59 in relation to the item of property in relation to the
post-application part - the depreciated value, within the meaning of Division
3, of the item of property at any time during the postapplication part shall
be taken to be an amount equal to the residual amount in relation to the
relevant eligible amount at that time as ascertained in accordance with
sub-sub-paragraph (A); and
(C) the depreciation deduction (if any) allowable to a taxpayer in
relation to the item of property in relation to the post-application part is
the depreciation deduction that would be allowable in respect of that period
if this Division did not apply and, in the case of an item of property in
relation to which paragraph 56 (1) (a) would, apart from this Division, apply,
if the depreciated value, within the meaning of Division 3, of the item of
property at the beginning of the year of income were equal to the residual
amount, as ascertained under sub-sub-paragraph (A), in relation to the
relevant eligible amount at the commencement of the post-application part;
(d) the residual amount at any time (in this paragraph referred to as the
'relevant time') after the year of income in which the application period ends
(not being a time after the commencement of a subsequent application period)
in relation to the eligible amount (in this paragraph referred to as the
'relevant eligible amount') by reason of which the item is an item of eligible
depreciation property is the amount that would be the residual amount in
relation to the relevant eligible amount in relation to the relevant time
under subsub-paragraph (1) (c) (iii) (A) if the post-application part referred
to in that sub-sub-paragraph extended to include the relevant time; and
(e) for the purpose of the application of Division 3 in relation to the item
of property at any time after the year of income in which the application
period ends - there shall be taken to have been allowed as a depreciation
deduction in relation to the item of property in relation to the application
period an amount equal to the total notional principal in relation to the
eligible amount by reason of which the item of property is eligible
depreciation property in relation to the application period.
"(2) Where this Division applies in relation to an item of Division 10, 10AA
or 10A property -
(a) no deduction is allowable to any taxpayer under Division 10, 10AA or 10A
in relation to any amount of expenditure (not being expenditure incurred after
the application period) by reason of which the item is Division 10, 10AA or
10A property for any year of income in which the whole or a part of the
application period occurs;
(b) the residual amount at any time after the application period (not being
a time after the commencement of a subsequent application period) in relation
to an amount of expenditure (not being expenditure incurred after the
application period) by reason of which the item is Division 10, 10AA or 10A
property is an amount equal to the amount that, but for this paragraph, would
be the residual amount at that time in relation to the amount of expenditure
under sub-section 159GF (3) reduced by an amount equal to the total notional
principal in relation to the amount of expenditure in relation to the
application period and any prior application period; and
(c) for the purposes of the application of Division 10, 10AA or 10A in
relation to an amount of expenditure (not being expenditure incurred after the
application period) by reason of which the item is Division 10, 10AA or 10A
property at any time after the application period, there shall be taken to
have been allowed in respect of the amount of expenditure a deduction under
whichever of those Divisions applies in respect of the amount of expenditure
of an amount equal to the total notional principal in relation to the amount
of expenditure in relation to the application period.
"(3) Where this Division applies in relation to an item of Division 10AAA
property -
(a) no deduction is allowable to any taxpayer under Division 10AAA in
relation to any amount of expenditure (not being expenditure incurred after
the application period) by reason of which the item is Division 10AAA property
for any year of income in which the whole or a part of the application period
occurs;
(b) the residual amount at any time after the application period (not being
a time after the commencement of a subsequent application period) in relation
to an amount of expenditure (not being expenditure incurred after the
application period) by reason of which the item is Division 10AAA property is
an amount equal to the amount that, but for this paragraph, would be the
residual amount at that time in relation to the amount of expenditure under
sub-section 159GF (4) reduced by an amount equal to the total notional
principal in relation to the amount of expenditure in relation to the
application period and any prior application period; and
(c) for the purposes of the application of Division 10AAA in relation to an
amount of expenditure (not being expenditure incurred after the application
period) by reason of which the item is Division 10AAA property for any year of
income after the year of income in which this Division ceases to apply - it
shall be taken to be a requirement of Division 10AAA that the deduction
allowable under that Division in respect of the amount of expenditure does not
exceed the residual amount in relation to the amount of expenditure as
ascertained in accordance with paragraph (b).
"(4) Where this Division applies in relation to an item of Division 10C or
10D property -
(a) in relation to any year of income the whole of which is included in or
comprises the application period - no deduction shall be allowable to any
taxpayer under Division 10C or 10D in relation to any amount of expenditure by
reason of which the item is Division 10C or 10D property for that year of
income;
(b) in relation to any other year of income in which the whole or a part of
the application period occurs -
(i) in relation to any part (in this sub-section referred to as the
'pre-application part') of the year of income that precedes the application
period - there shall be allowable to the taxpayer as a deduction under
Division 10C or 10D, as the case requires, in relation to an amount of
expenditure by reason of which the item is Division 10C or 10D property -
(A) where this Division has not previously applied in relation to
the amount of expenditure - the same deduction (if any) as would, apart from
this Division, be allowable under that Division; and
(B) in any other case - the same deduction (if any) as would, but
for this application of this section, be allowable under that Division;
(ii) in relation to the part of the year of income during which this
Division applies - no deduction shall be allowable to any taxpayer under
Division 10C or 10D in relation to any amount of expenditure by reason of
which the item is Division 10C or 10D property; and
(iii) in relation to any part (in this sub-section referred to as the
'post-application part') of the year of income that occurs after the
application period (not being a part that occurs after the commencement of a
subsequent application period) -
(A) the residual amount at any time during the postapplication
part in relation to an amount of expenditure (not being expenditure incurred
after the application period) by reason of which the item is Division 10C or
10D property is an amount equal to the amount that, but for this paragraph,
would be the residual amount at that time in relation to the amount of
expenditure under sub-section 159GF (5) reduced by an amount equal to the
total notional principal in relation to the amount of expenditure in relation
to the application period and any prior application period;
(B) for the purposes of any application of section 124ZE or 124ZK
in relation to an amount of expenditure (not being expenditure incurred after
the application period) by reason of which the item is Division 10C or 10D
property at any time during the post-application part - the residual capital
expenditure, within the meaning of Division 10C or 10D, as the case requires,
in relation to the amount of expenditure shall be taken to be an amount equal
to the residual amount at that time in relation to the amount of expenditure
as ascertained in accordance with sub-sub-paragraph (A); and
(C) the deduction (if any) allowable to a taxpayer in relation to
an amount of expenditure (not being expenditure incurred after the application
period) by reason of which the item is Division 10C or 10D property under
Division 10C or 10D, as the case requires, in relation to the post-application
part is the deduction (if any) that would be allowable to the taxpayer under
that Division in respect of that period if this Division (other than this
sub-sub-paragraph) did not apply and if it were a requirement of that Division
that the deduction did not exceed the residual amount in relation to the
amount of expenditure as ascertained in accordance with sub-sub-paragraph
(A);
(c) the residual amount at any time after the year of income in which the
application period ends (not being a time after the commencement of a
subsequent application period) in relation to an amount of expenditure (not
being expenditure incurred after the application period) by reason of which
the item is Division 10C or 10D property is the amount that, but for this
paragraph, would be the residual amount at that time in relation to the amount
of expenditure under sub-section 159GF (5) reduced by an amount equal to the
total notional principal in relation to the amount of expenditure in relation
to the application period and any prior application period; and
(d) in the application of Division 10C or 10D in relation to any year of
income after the year of income in which this Division ceases to apply, in
relation to an amount of expenditure (not being expenditure incurred after the
application period) by reason of which the item is Division 10C or 10D
property it shall be taken to be a requirement of Division 10C or 10D that the
deduction (if any) allowable to a taxpayer under that Division in respect of
the amount of expenditure does not exceed the residual amount in relation to
the amount of expenditure as ascertained in accordance with paragraph (c).
Effect of application of Division on assessability of arrangement payments
"159GK. (1) Where this Division applies in relation to an item of eligible
property in relation to which there is an assessable arrangement payment or
assessable arrangement payments in relation to a taxpayer in respect of the
application period, there shall be included in the assessable income of the
taxpayer so much only of any payment portion of each assessable arrangement
payment in relation to an eligible amount as does not exceed the interest
amount (if any) in relation to the payment portion.
"(2) For the purposes of sub-section (1), a reference to the interest amount
in relation to a payment portion of an assessable arrangement payment in
relation to an eligible amount is a reference to the amount (if any)
ascertained in accordance with the formula A(1+B)t - A, where -
A is the eligible principal in relation to the payment portion;
B is -
(a) where the sum of the payment portions of the likely arrangement
payments in relation to the eligible amount in respect of the likely
application period (including any notional final payment portion of an
arrangement payment) exceeds the residual amount, as ascertained at the
commencement of the application period, in relation to the eligible amount -
the fraction that is the effective annual interest rate, ascertained at the
commencement of the application period referred to in sub-section (1), at
which the sum of the present values of the payment portions equals the
residual amount; and
(b) in any other case - nil; and
t is the number of whole days in the arrangement payment period divided by
365.
"(3) For the purposes of sub-section (2) -
(a) a reference in that sub-section to the eligible principal in relation to
a payment portion of an arrangement payment in relation to an eligible amount
is a reference to -
(i) where the arrangement payment is the first arrangement payment in
the likely application period referred to in that sub-section - the residual
amount in relation to the eligible amount, as ascertained at the commencement
of the arrangement payment period in relation to the arrangement payment; and
(ii) in the case of any other arrangement payment - an amount
ascertained in accordance with the formula A - B + C, where -
A is the eligible principal in relation to the payment portion of
the immediately preceding arrangement payment;
B is the amount of the payment portion of the immediately
preceding arrangement payment; and
C is the interest amount in relation to the payment portion of the
immediately preceding arrangement payment; and
(b) a reference in that sub-section to the arrangement payment period in
relation to an arrangement payment is a reference to -
(i) where the arrangement payment is the first arrangement payment
liable to be made in respect of the application period referred to in that
sub-section - the period commencing at the beginning of the application period
and ending at the time at which the arrangement payment is liable to be made;
and
(ii) in the case of any other arrangement payment - the period
commencing at the time at which the immediately preceding arrangement payment
was liable to be made and ending at the time at which the arrangement payment
concerned is liable to be made.
"(4) Where the qualifying arrangement in relation to an item of eligible
property in relation to which this Division applies does not provide for the
sale or disposal of the item to a person who is a party to the qualifying
arrangement or to an associate, for the purposes of this section an
arrangement payment (not being an assessable arrangement payment) that
includes a payment portion (which portion is in this section referred to as a
'notional final payment portion') in relation to any eligible amount by reason
of which the item is an item of eligible property shall be taken to be liable
to be made at the end of the likely application period of an amount equal to
-
(a) where the qualifying arrangement is a qualifying arrangement by reason
of the application of sub-paragraph 159GG (1) (a) (i) - so much of the
guaranteed residual value referred to in that subparagraph as is attributable
to the eligible amount; or
(b) in any other case - the amount that in the opinion of the Commissioner
was, or would have been, at the commencement of the application period, the
market value at the end of the application period of so much of the item of
eligible property as is attributable to the eligible amount.
"(5) Where an amount of eligible capital expenditure is incurred in relation
to an item of eligible property at any time after this Division commences to
apply in relation to the item of eligible property, this section applies in
respect of that expenditure as if this Division had commenced to apply in
relation to the item of eligible property at the time at which the expenditure
was incurred.
"(6) In this section -
(a) 'likely application period', in relation to an application of this
Division, means the period that, having regard to the provisions of the
qualifying arrangement referred to in section 159GH and to any other relevant
circumstances, was, at the time at which that application of this Division
commenced, the likely length of the application period; and
(b) 'likely arrangement payment', in relation to a likely application
period, means an arrangement payment that, having regard to the provisions of
the qualifying arrangement referred to in section 159GH and to any other
relevant circumstances, was, at the time at which the likely application
period commenced, likely to become liable to be made during the likely
application period.
Special provision relating to Division 10C or 10D property
"159GL. (1) Where -
(a) section 159GH applies in relation to an item of Division 10C or 10D
property; and
(b) at the time at which that section commenced to apply in relation to the
item of property, the sum of the present values of the net Division 16D
amounts, for each year of income during which the whole or a part of the
likely application period occurs, in relation to an amount of expenditure by
reason of which the property is Division 10C or 10D property will be less than
the sum of the present values, at that time, of the net Division 10C or 10D
amounts for each such year of income in relation to the expenditure, sections
159GJ and 159GK do not apply in relation to the amount of expenditure in
relation to the application period.
"(2) In sub-section (1) -
(a) a reference to the net Division 10C or 10D amounts for a year of income
in relation to an amount of expenditure by reason of which an item of property
is Division 10C or 10D property is a reference to the sum of the payment
portions of any assessable arrangement payments likely to become liable to be
made in relation to the amount of expenditure in relation to that year of
income reduced by the deduction (if any) that, but for this Division, would be
allowable under Division 10C or 10D for the year of income in respect of the
amount of expenditure;
(b) a reference to the net Division 16D amounts for a year of income in
relation to an amount of expenditure by reason of which an item of property is
Division 10C or 10D property is a reference to the sum of so much of the
payment portions of any assessable arrangement payments likely to become
liable to be made during the year of income in relation to the amount of
expenditure as would, but for this section, be included in the assessable
income of any taxpayer of the year of income under section 159GK; and
(c) 'likely application period' has the same meaning as in section 159GK.
Special provision where cost of plant, &c., is also eligible capital
expenditure
"159GM. Where -
(a) at a particular time (in this section referred to as the 'relevant
time') an item of eligible property is both eligible depreciation property and
of income commencing on or before 1 July 1986 if the Commissioner is satisfied
that -
(a) an asset became an in-house asset of the fund on or after 12 March 1985
because of a decision made before that date; and
(b) there are special circumstances by reason of which it would be
reasonable to accept the fund as having complied with the requirements of that
sub-section.
(6) The amendments made by section 27 and paragraph 32 (c) apply to
assessments in respect of income of the year of income in which 15 May 1984
occurred and of all subsequent years of income.
(7) The amendment made by section 33 does not affect the jurisdiction of a
Board constituted under section 265 of the Principal Act in relation to any
application made under that section the consideration of which commenced or
commences before the twenty-eighth day after the day on which this Act
receives the Royal Assent.
(8) Where a Board constituted under section 265 of the Principal Act
included a person appointed before 10 June 1985 as a substitute for the
Secretary of the Department dealing with matters arising under the Customs Act
1901, the exercise of the jurisdiction of that Board in relation to an
application made under that section the consideration of which commenced or
commences before the twenty-eighth day after the day on which this Act
receives the Royal Assent shall not be called in question on a ground relating
to the validity, or continued validity, of the appointment of that person as a
substitute.
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 35
Provisional tax for 1985-86 year
35. For the purposes of the application of sub-section 221YC (1) of the
Income Tax Assessment Act 1936 (in this section referred to as the "Assessment
Act") in ascertaining the amount of provisional tax payable by a taxpayer in
respect of the year of income that commenced on 1 July 1985 (in this section
referred to as the "current year of income"), being a taxpayer who, if section
159N of the Assessment Act were not applicable in relation to the year of
income next preceding the current year of income (in this section referred to
as the "preceding year of income"), would, apart from this section, be liable
to pay provisional tax calculated in accordance with sub-section 221YC (1) or
(1A) of the Assessment Act in respect of the current year of income -
(a) if paragraph 221YC (1) (a) of the Assessment Act applies to the taxpayer
- the amount of provisional tax payable by the taxpayer in respect of the
current year of income by virtue of that paragraph is the amount ascertained
by deducting from the amount of income tax that would have been assessed in
respect of the amount that would have been the taxable income of the taxpayer
of the preceding year of income if -
(i) the taxable income of the taxpayer of the preceding year of income
had, except for the purpose of determining the notional income for the purpose
of section 59AB, 86 or 158D of the Assessment Act, been increased by 11%;
(ii) where, for the purposes of Division 6AA of Part III of the
Assessment Act -
(A) in the case of a taxpayer to whom Division 3 of Part IV of the
Income Tax (Rates) Act 1982 applied - the taxpayer's eligible taxable income
of the preceding year of income exceeded $416; or
(B) in the case of a taxpayer to whom Division 4 of Part IV of the
Income Tax (Rates) Act 1982 applied - the taxpayer had an eligible taxable
income of the preceding year of income, that eligible taxable income had been
increased by 11%;
(iii) for the purposes of section 156 of the Assessment Act, the
deemed taxable income from primary production of the taxpayer of the preceding
year of income had been increased by 11%;
(iv) the Income Tax (Rates) Act 1982, as that Act applies to
assessments in respect of the current year of income, had been in force and
applied to assessments in respect of the preceding year of income;
(v) the Medicare Levy Act 1984 had not applied in relation to
assessments in respect of the preceding year of income and the Medicare Levy
Act 1985 had applied in relation to such assessments as if references in that
last-mentioned Act to the year of income or financial year that commenced on 1
July 1985 included references to the year of income or the financial year, as
the case may be, that commenced on 1 July 1984;
(vi) where Division 16 of Part III of the Assessment Act applied in the
taxpayer's assessment in respect of the preceding year of income - that
Division had applied as if the conditions set out in sub-paragraphs (i) to (v)
(inclusive) were applicable for the purposes of making that assessment other
than for the purpose of determining the average income of the taxpayer for the
purposes of the application of that Division; and
(vii) the taxpayer had not been entitled to any rebate (other than a
rebate under section 156 of the Assessment Act applicable in relation to the
taxpayer in accordance with sub-paragraph (vi)) or credit in the taxpayer's
assessment, the sum of the rebates (other than a rebate under section 156 or
159N of the Assessment Act) and credits to which the taxpayer was entitled in
the taxpayer's assessment in respect of income of the preceding year of
income; and
(b) if paragraph 221YC (1)(b) of the Assessment Act applies to the taxpayer
- the amount of provisional tax payable by the taxpayer in respect of the
current year of income by virtue of that paragraph is -
(i) in a case where -
(A) paragraph 221YC (1)(a) of the Assessment Act would apply to
the taxpayer in relation to the current year of income but for sub-section
221YA (5) of that Act; and
(B) the taxpayer is a taxpayer to whom paragraph 221YA (5)(a) of
the Assessment Act applies, but paragraph 221YA (5)(b) of that Act does not
apply, in relation to the current year of income, the amount that would be
payable by the taxpayer under paragraph 221YC (1)(a) of the Assessment Act (as
affected by paragraph (a) of this section) if sub-section 221YA (5) were not
included in that Act and Division 16C of Part III of that Act were not
applicable in relation to the preceding year of income;
(ii) in the case where -
(A) paragraph 221YC (1) (a) of the Assessment Act would apply to
the taxpayer in relation to the current year of income but for sub-section
221YA (5) of that Act; and
(B) the taxpayer is a taxpayer to whom paragraph 221YA (5) (b) of
the Assessment Act applies, but paragraph 221YA (5) (a) of that Act does not
apply, in relation to the current year of income, the amount that would be
payable by the taxpayer under paragraph 221YC (1) (a) of the Assessment Act
(as affected by paragraph (a) of this section) if sub-section 221YA (5) were
not included in that Act and the taxable income of the taxpayer of the
preceding year of income had been increased by the sum of the deductions
allowed or allowable to the taxpayer under sections 77F, 124ZAF and 124ZAFA of
that Act in the taxpayer's assessment in respect of the preceding year of
income;
(iii) in the case where -
(A) paragraph 221YC (1) (a) of the Assessment Act would apply to
the taxpayer in relation to the current year of income but for sub-section
221YA (5) of that Act; and
(B) the taxpayer is a taxpayer to whom paragraphs 221YA (5) (a)
and (b) of the Assessment Act apply in relation to the current year of income,
the amount that would be payable by the taxpayer under paragraph 221YC (1) (a)
of the Assessment Act (as affected by paragraph (a) of this section) if -
(C) sub-section 221YA (5) were not included in the Assessment
Act;
(D) Division 16C of Part III of the Assessment Act were not
applicable in relation to the preceding year of income; and
(E) the amount that, but for this sub-sub-paragraph, would have
been the taxable income of the taxpayer of the preceding year of income had
been increased by the sum of the deductions allowed or allowable to the
taxpayer under sections 77F, 124ZAF and 124ZAFA of the Assessment Act in the
taxpayer's assessment in respect of the preceding year of income; and
(iv) in any other case - the amount that would be payable by the
taxpayer under paragraph (a) of this section if the provisions of that
paragraph applied to the taxpayer in relation to the taxpayer's income of the
current year of income and -
(A) the taxable income of the taxpayer of the preceding year of
income had been equal to the amount that the Commissioner estimates would have
been the provisional income of the taxpayer if Division 16C of Part III of the
Assessment Act were not applicable in relation to the preceding year of income
increased by the sum of the deductions (if any) allowed or allowable to the
taxpayer under sections 77F, 124ZAF and 124ZAFA of the Assessment Act in the
taxpayer's assessment in respect of the preceding year of income;
(B) for the purposes of Division 16 of Part III of the Assessment
Act, the deemed taxable income from primary production of the taxpayer of the
preceding year of income were such amount (if any) as the Commissioner
determines; and
(C) for the purposes of Division 6AA of Part III of the Assessment
Act, the amount of the eligible taxable income of the taxpayer of the
preceding year of income were such amount (if any) as the Commissioner
determines.
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 37
Principal Act
Part
referred to as the Principal Act.
*5*No. 77, 1971, as amended. For previous amendments, see No. 66, 1972; No.
216, 1973; No. 172, 1976; Nos. 55 and 62, 1978; Nos. 10, 19 and 64, 1979; Nos.
11 and 134, 1980; No. 69, 1981; Nos. 122 and 128, 1982; No. 39, 1983; No. 123,
1984; and Nos. 47 and 65, 1985.
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 38
Secrecy
38. Section 8 of the Principal Act is amended -
(a) by inserting after sub-section (1) the following sub-section: "(1A) For
the purposes of this section, a person who, although not appointed or employed
by the Commonwealth, performs services for the Commonwealth shall be taken to
be employed by the Commonwealth.";
(b) by omitting from sub-section (2) "any such information so acquired by
him" and substituting "any information respecting the affairs of another
person acquired by the officer as mentioned in sub-section (1)";
(c) by adding at the end of paragraph (4)(b) "or";
(d) by omitting paragraph (4)(c); and
(e) by omitting from paragraph (4)(d) "Commonwealth Statistician" and
substituting "Australian Statistician".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 39
Principal Act
39. The Sales Tax Assessment Act (No.1) 1930*6* is in this Part refer red to
as the Principal Act.
*6*No. 25, 1930, as amended. For previous amendments, see No. 62, 1930; No.
25, 1931; Nos. 39 and 64, 1932; Nos. 17 and 47, 1933; Nos. 16 and 29, 1934;
Nos. 8, 45 and 61, 1935; No. 78, 1936; Nos. 30 and 64, 1940; No. 54, 1942; No.
1, 1953; No. 40, 1962; No. 93, 1966; No. 216, 1973; No. 197, 1978; No. 19,
1979; No. 134, 1980; Nos. 51 and 122, 1982; No. 39, 1983; No. 123, 1984; and
No. 47, 1985.
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 40
Officers to observe secrecy
40. Section 10 of the Principal Act is amended -
(a) by omitting from sub-section (2) "Any person" and substituting "Any
officer";
(b) by omitting from sub-section (4) "or to the Commissioner of Income Tax
for any State, or the officer or authority administering any Act of a State
relating to Stamp Duties or Succession Duties (who is authorized by law to
afford similar information to the Commissioner, a Second Commissioner or a
Deputy Commissioner)"; and
(c) by adding at the end the following sub-sections:
"(6) In this section, 'officer' means a person -
(a) who is or has been appointed or employed by the Commonwealth; or
(b) to whom powers or functions have been delegated by the
Commissioner, and who, by reason of the appointment or employment or in the
course of the employment, or by reason of, or in the course of the exercise of
powers or the performance of functions under, the delegation, as the case may
be, may acquire or has acquired information with respect to the affairs of any
other person disclosed or obtained under or for the purposes of this Act.
"(7) For the purposes of this section, a person who, although not
appointed or employed by the Commonwealth, performs services for the
Commonwealth shall be taken to be employed by the Commonwealth.".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 41
Principal Act
as the
Principal Act.
*7*No. 53, 1934, as amended. For previous amendments, see No. 12, 1935; No.
78, 1936; No. 63, 1940; No. 1, 1953; No. 93, 1966; No. 216, 1973; No. 123,
1984; and No. 47, 1985.
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 42
42. After section 4 of the Principal Act the following section is inserted:
Secrecy
"4A. (1) In this section, 'officer' means a person -
(a) who is or has been appointed or employed by the Commonwealth; or
(b) to whom powers or functions have been delegated by the Commissioner, and
who, by reason of the appointment or employment or in the course of the
employment, or by reason of, or in the course of the exercise of powers or the
performance of functions under, the delegation, as the case may be, may
acquire or has acquired information with respect to the affairs of any other
person disclosed or obtained under or for the purposes of this Act.
"(2) For the purposes of this section, a person who, although not appointed
or employed by the Commonwealth, performs services for the Commonwealth shall
be taken to be employed by the Commonwealth.
"(3) Subject to sub-section (5), a person who is or has been an officer
shall not, except for the purposes of this Act or otherwise than in the
performance of the person's duties as an officer, directly or indirectly -
(a) make a record of any information with respect to the affairs of a second
person; or
(b) divulge or communicate to a second person any information with respect
to the affairs of a third person, being information disclosed or obtained
under or for the purposes of this Act and acquired by the person by reason of
the person's appointment or employment by the Commonwealth or in the course of
such employment, or by reason of the delegation to the person of powers or
functions by the Commissioner, or in the course of the exercise of such powers
or the performance of such functions, as the case may be. Penalty: $5,000 or
imprisonment for 12 months, or both.
"(4) Except where it is necessary to do so for the purpose of carrying into
effect the provisions of this Act, a person who is or has been an officer
shall not be required -
(a) to produce in court any document made or given under or for the purposes
of this Act; or
(b) to divulge or communicate to a court a matter or thing with respect to
information disclosed or obtained under or for the purposes of this Act, being
a document or information acquired by the person by reason of the person's
appointment or employment by the Commonwealth or in the course of such
employment, or by reason of the delegation to the person of powers or
functions by the Commissioner, or in the course of the exercise of such powers
or the performance of such functions, as the case may be.
"(5) Nothing in sub-section (3) shall be taken to prohibit the Commissioner,
a Deputy Commissioner or a person authorised by the Commissioner or a Deputy
Commissioner from communicating any information to a person performing, as an
officer, duties arising under an Act administered by the Commissioner for the
purpose of enabling the person to perform those duties or to the
Comptroller-General of Customs.
"(6) For the purposes of sub-section (3), an officer shall be deemed to have
communicated information to another person in contravention of that
sub-section if the officer communicates that information to any Minister.
"(7) An officer shall, if and when required by the Commissioner or a Deputy
Commissioner to do so, make an oath or declaration, in a manner and form
specified by the Commissioner in writing, to maintain secrecy in conformity
with the provisions of this section.".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 43
Principal Act
to as
the Principal Act.
*8*No. 1, 1953, as amended. For previous amendments, see Nos. 28, 39, 40 and
52, 1953; No. 18, 1955; No. 39, 1957; No. 95, 1959; No. 17, 1960; No. 75,
1964; No. 155, 1965; No. 93, 1966; No. 120, 1968; No. 216, 1973; No. 133,
1974; No. 37, 1976; Nos. 19 and 59, 1979; Nos. 39 and 117, 1983; No. 123,
1984; and Nos. 4, 47 and 65, 1985.
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 44
Secrecy
44. Section 3C of the Principal Act is amended -
(a) by inserting after sub-section (1) the following sub-section: "(1A) For
the purposes of this section, a person who, although not appointed or employed
by the Commonwealth, performs services for the Commonwealth shall be taken to
be employed by the Commonwealth.";
(b) by inserting in paragraph (5) (a) "of State of the Commonwealth, any
Minister of the Crown of a State or any Minister of the Northern Territory"
after "Minister"; and
(c) by adding at the end the following sub-section: "(7) For the purposes of
this section, information communicated to the Commissioner by a person
performing a function, or exercising a power, under a law of a State or of an
internal Territory relating to taxation shall be taken to have been acquired
by the Commissioner for the purposes of this Act.".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 45
45. After Part III of the Principal Act the following Part is inserted:
"PART IIIA - CO-OPERATION BETWEEN COMMONWEALTH
AND STATE TAXATION AUTHORITIES
"Division 1 - Interpretation
Interpretation
"13D. (1) In this Part, unless the contrary intention appears - 'Australian
Capital Territory' includes the Jervis Bay Territory; 'officer' means -
(a) an officer or employee of the Australian Public Service; or
(b) a State taxation officer; 'State' includes the Northern Territory;
'State Minister' means -
(a) in relation to a State other than the Northern Territory - a
Minister of the Crown of the State; or
(b) in relation to the Northern Territory - a Minister of the Northern
Territory; 'State tax law' means a law of a State relating to taxation; 'State
taxation officer' means -
(a) a person or authority, not being a State Minister, who or which is
for the time being authorised under a law of a State to perform the functions
of a State taxation officer under this Part; or
(b) a person, not being a State Minister, authorised by writing signed
by a person or authority referred to in paragraph (a) to act under this Part;
'Territory' means the Australian Capital Territory; 'Territory tax law' means
a law of the Territory relating to taxation; 'Territory taxation officer'
means -
(a) a person or authority, not being a Minister of State of the
Commonwealth, who or which is for the time being authorised under a law of the
Territory to perform the functions of a Territory taxation officer under this
Part; or
(b) a person, not being a Minister of State of the Commonwealth,
authorised by writing signed by a person or authority referred to in paragraph
(a) to act under this Part.
"(2) A reference in Division 3 or 4 to a State tax law includes a reference
to a Territory tax law.
"(3) A reference in Division 3 or 4 to a State taxation officer includes a
reference to a Territory taxation officer.
"Division 2 - Trans-border investigations
State taxation officers may refer matters to Commissioner for investigation
"13E. A State taxation officer may, by writing signed by the officer, refer
a matter arising under a State tax law to the Commissioner for investigation
in the Territory.
Access to documents, &c.
"13F. (1) Where, under section 13E, a matter is referred to the Commissioner
for investigation, the Commissioner may, by writing signed by the
Commissioner, authorise an officer to conduct an investigation into that
matter.
"(2) For the purposes of conducting an investigation into a matter referred
to the Commissioner under section 13E, an officer authorised under sub-section
(1) of this section to conduct the investigation -
(a) may, at all reasonable times, enter upon any land in the Territory;
(b) shall have full and free access at all reasonable times to all documents
in the Territory; and
(c) may take extracts from, and make copies of, any documents in the
Territory.
"(3) An officer who enters upon land pursuant to sub-section (2) is not
authorised to remain on the land if, on request by the occupier of the land,
the officer does not produce a certificate issued by the Commissioner stating
that he or she is an officer authorised under sub-section (1) to conduct an
investigation into a matter specified in the certificate.
Commissioner may obtain information and evidence
"13G. (1) Where, under section 13E, a matter is referred to the Commissioner
for investigation, the Commissioner may, for the purposes of conducting the
investigation in the Territory, by notice in writing, require any person,
including any officer employed in or in connection with any department of a
government or by any public authority -
(a) to furnish the Commissioner with such information as the Commissioner
requires;
(b) to attend before the Commissioner, or before an officer authorised by
the Commissioner for the purpose, at a time and place specified in the notice
and there answer questions; and
(c) to produce to the Commissioner, or to an officer authorised by the
Commissioner for the purpose, any documents in the custody or under the
control of the person.
"(2) The Commissioner may require the information or answers to be verified
or furnished, as the case may be, on oath or affirmation and either orally or
in writing, and for that purpose the Commissioner or an officer authorised by
the Commissioner may administer an oath or affirmation.
"(3) The oath or affirmation to be taken or made by a person for the
purposes of this section is an oath or affirmation that the information is or
the answers will be true.
"(4) The Commissioner may cause copies to be made of, or extracts to be
taken from, any documents that are produced pursuant to paragraph (1) (c).
"(5) A person required pursuant to paragraph (1) (b) to attend before the
Commissioner or an officer authorised by the Commissioner is entitled to
payment of an allowance in respect of his or her expenses of an amount
determined by the Commissioner in accordance with the regulations.
State taxation officers to observe secrecy in relation to trans-border
investigations
"13H. (1) A person who is or has been a State taxation officer shall not,
directly or indirectly, except for the purposes of the administration of a
State tax law, a Territory tax law or a taxation law, make a record of, or
divulge or communicate to another person, any information acquired by the
first-mentioned person by reason of the exercise of the powers conferred by
section 13F or 13G.
Penalty: $5,000 or imprisonment for 12 months, or both.
"(2) Except where it is necessary to do so for the purpose of carrying into
effect the provisions of a State tax law, a Territory tax law or a taxation
law, a person who is or has been a State taxation officer shall not be
required to divulge or communicate to a court any information, or to produce
in a court any document, acquired by the person by reason of the exercise of
the powers conferred by section 13F or 13G.
"(3) For the purposes of sub-section (1), a person shall be deemed to have
communicated information in contravention of that sub-section if the person
communicates that information to any Minister of State of the Commonwealth or
any State Minister.
"Division 3 - Provision of Commonwealth taxation information to State
taxation authorities
Provision of Commonwealth taxation information to State taxation
authorities
"13J. (1) Notwithstanding anything in a secrecy provision of a taxation law,
the Commissioner may communicate information disclosed or obtained under or
for the purposes of a taxation law to a State taxation officer for the
purposes of the administration of a State tax law if a State taxation officer
is authorised by law to communicate similar information to the Commissioner.
"(2) A person to whom information is communicated under sub-section (1), or
a person or employee under the control of the first-mentioned person, shall
not, directly or indirectly, except for the purposes of the administration of
a State tax law or a taxation law, and while he or she is, or after he or she
ceases to be, such a person, make a record of, or divulge or communicate to
any person, that information. Penalty: $5,000 or imprisonment for 12 months,
or both.
"(3) Except where it is necessary to do so for the purposes of carrying into
effect the provisions of a State tax law or a taxation law, a person to whom
information is communicated under sub-section (1) shall not be required to
divulge or communicate that information to any court.
"(4) For the purposes of sub-section (2), a person shall be deemed to have
communicated information in contravention of that sub-section if the person
communicates that information to any Minister of State of the Commonwealth or
any State Minister.
"(5) A reference in this section to a secrecy provision of a taxation law is
a reference to a provision that prohibits the communication or divulging of
information.
"(6) This section does not apply in relation to information disclosed or
obtained under or for the purposes of the Estate Duty Assessment Act 1914 or
regulations under that Act, but nothing in this section affects the power to
communicate any such information.
"Division 4 - Certification by State taxation officer of copies of, and
extracts from, documents
Certification by State taxation officer of copies of, and extracts from,
documents
"13K. (1) Where a document is obtained pursuant to a State tax law, a State
taxation officer may certify a copy of the document to be a true copy.
"(2) Where, pursuant to a State tax law, a copy is made of a document, a
State taxation officer may certify the copy to be a true copy.
"(3) Where a document is obtained pursuant to a State tax law, a State
taxation officer may certify an extract taken from the document to be a true
extract.
"(4) Where, pursuant to a State tax law, an extract is taken from a
document, a State taxation officer may certify the extract to be a true
extract.
"(5) Subject to sub-section (6), a document purporting to be a copy or
extract certified under sub-section (1), (2), (3) or (4) shall be received in
all courts and tribunals in proceedings arising out of a taxation law as
evidence as if it were the original.
"(6) Sub-section (5) does not apply in relation to a document if -
(a) in the case of proceedings for an offence - evidence is adduced that the
document is not a true copy or a true extract; or
(b) in any other case - it is proved that the document is not a true copy or
a true extract.
"(7) Where -
(a) pursuant to a State tax law, a copy (in this section referred to as the
'primary copy') is made of, or an extract (in this section referred to as the
'primary extract') is taken from, a document (in this section referred to as
the 'original document'); and
(b) pursuant to sub-section (2) or (4), a State taxation officer has
certified the primary copy to be a true copy of, or the primary extract to be
a true extract taken from, the original document, a State taxation officer may
-
(c) certify a copy of the primary copy or primary extract to be a true copy;
or
(d) certify an extract taken from the primary copy or primary extract to be
a true extract.
"(8) Subject to sub-section (9), a document purporting to be -
(a) a copy, certified under sub-section (7), of a primary copy of, or a
primary extract taken from, an original document; or
(b) an extract, certified under sub-section (7), taken from a primary copy
of, or a primary extract taken from, an original document, shall be received
in all courts and tribunals in proceedings arising out of a taxation law as
evidence as if it were the original document.
"(9) Sub-section (8) does not apply in relation to a document if -
(a) in the case of proceedings for an offence, evidence is adduced that -
(i) the document is not a true copy of, or a true extract taken from,
the primary copy or primary extract; or
(ii) the primary copy is not a true copy of, or the primary extract is
not a true extract taken from, the original document; document.". or
(b) in any other case, it is proved that -
(i) the document is not a true copy of, or a true extract taken from,
the primary copy or primary extract; or
(ii) the primary copy is not a true copy of, or the primary extract is
not a true extract taken from, the original document.".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 46
Commissioner may obtain information and evidence
46. Section 14I of the Principal Act is amended -
(a) by omitting from paragraph (1) (c) "books, documents and other papers"
and substituting "documents"; and
(b) by omitting from sub-section (2) "books, documents or other papers" and
substituting "documents".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 47
Access to documents, &c.
47. Section 14J of the Principal Act is amended -
(a) by omitting from paragraph (1) (b) "books, documents and other papers"
and substituting "documents"; and
(b) by omitting from paragraph (1) (c) "books, documents or other papers"
and substituting "documents".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 48
48. After section 15 of the Principal Act the following section is inserted:
Certification by Commissioner of copies of, and extracts from, documents
"15A. (1) Where a document is obtained pursuant to a taxation law, the
Commissioner may certify a copy of the document to be a true copy.
"(2) Where, pursuant to a taxation law, a copy is made of a document, the
Commissioner may certify the copy to be a true copy.
"(3) Where a document is obtained pursuant to a taxation law, the
Commissioner may certify an extract taken from the document to be a true
extract.
"(4) Where, pursuant to a taxation law, an extract is taken from a document,
the Commissioner may certify the extract to be a true extract.
"(5) Subject to sub-section (6), a document purporting to be a copy or
extract certified under sub-section (1), (2), (3) or (4) shall be received in
all courts and tribunals in proceedings arising out of a taxation law as
evidence as if it were the original.
"(6) Sub-section (5) does not apply in relation to a document if -
(a) in the case of proceedings for an offence - evidence is adduced that the
document is not a true copy or a true extract; or
(b) in any other case - it is proved that the document is not a true copy or
a true extract.
"(7) Where -
(a) pursuant to a taxation law, a copy (in this section referred to as the
'primary copy') is made of, or an extract (in this section referred to as the
'primary extract') is taken from, a document (in this section referred to as
the 'original document'); and
(b) pursuant to sub-section (2) or (4), the Commissioner has certified the
primary copy to be a true copy of, or the primary extract to be a true extract
taken from, the original document, the Commissioner may -
(c) certify a copy of the primary copy or primary extract to be a true copy;
or
(d) certify an extract taken from the primary copy or primary extract to be
a true extract.
"(8) Subject to sub-section (9), a document purporting to be -
(a) a copy, certified under sub-section (7), of a primary copy of, or a
primary extract taken from, an original document; or
(b) an extract, certified under sub-section (7), taken from a primary copy
of, or a primary extract taken from, an original document, shall be received
in all courts and tribunals in proceedings arising out of a taxation law as
evidence as if it were the original document.
"(9) Sub-section (8) does not apply in relation to a document if -
(a) in the case of proceedings for an offence, evidence is adduced that -
(i) the document is not a true copy of, or a true extract taken from,
the primary copy or primary extract; or
(ii) the primary copy is not a true copy of, or the primary extract is
not a true extract taken from, the original document; or
(b) in any other case, it is proved that -
(i) the document is not a true copy of, or a true extract taken from,
the primary copy or primary extract; or
(ii) the primary copy is not a true copy of, or the primary extract is
not a true extract taken from, the original document.".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 49
Principal Act
49. The Taxation (Interest on Overpayments) Act 1983*9* is in this Part
referred to as the Principal Act.
*9*No. 12, 1983, as amended. For previous amendments, see No. 123, 1984; and
Nos. 5, 47, 49 and 65, 1985.
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 50
Secrecy
50. Section 8 of the Principal Act is amended by inserting after subsection
(1) the following sub-section:
"(1A) For the purposes of this section, a person who, although not appointed
or employed by the Commonwealth, performs services for the Commonwealth shall
be taken to be employed by the Commonwealth.".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 51
Principal Act
51. The Tobacco Charges Assessment Act 1955*10* is in this Part referred to
as the Principal Act.
*10*No. 58, 1955, as amended. For previous amendments, see No. 43, 1962; No.
93, 1966; No. 216, 1973; No. 134, 1980; No. 122, 1982; No. 39, 1983; No. 123,
1984; and Nos. 47 and 65, 1985.
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 52
Secrecy
52. Section 10 of the Principal Act is amended -
(a) by inserting after sub-section (1) the following sub-section: "(1A) For
the purposes of this section, a person who, although not appointed or employed
by the Commonwealth, performs services for the Commonwealth shall be taken to
be employed by the Commonwealth.";
(b) by omitting from sub-section (2) "any such information so acquired by
him" and substituting "any information respecting the affairs of another
person acquired by the officer as mentioned in sub-section (1)";
(c) by omitting paragraph (4) (c); and
(d) by omitting from paragraph (4) (d) "Commonwealth Statistician" and
substituting "Australian Statistician".
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 53
Principal Act
53. The Wool Tax (Administration) Act 1964*11* is in this Part referred to
as the Principal Act.
*11*No. 30, 1964, as amended. For previous amendments, see No. 93, 1966; No.
216, 1973; No. 19, 1979; No. 134, 1980; No. 61, 1981; No. 122, 1982; No. 39,
1983; No. 123, 1984; and Nos. 47 and 65, 1985.
TAXATION LAWS AMENDMENT ACT (No. 2) 1985No. 123, 1985
- SECT 54
Secrecy
54. Section 8 of the Principal Act is amended -
(a) by inserting after sub-section (1) the following sub-section: "(1A) For
the purposes of this section, a person who, although not appointed or employed
by the Commonwealth, performs services for the Commonwealth shall be taken to
be employed by the Commonwealth.";
(b) by omitting from sub-section (2) "any such information so acquired by
him" and substituting "any information respecting the affairs of another
person acquired by the officer as mentioned in sub-section (1)";
(c) by omitting paragraph (4) (d); and
(d) by omitting from paragraph (4) (f) "Commonwealth Statistician" and
substituting "Australian Statistician".
The
Act No. 123, 1985 amended as indicated in the Tables below.
Act |
Number and year |
Date of Assent |
Date of commencement |
Application, saving or transitional provisions |
123, 1985 |
28 Oct 1985 |
28 Oct 1985 |
||
75, 2010 |
28 June 2010 |
Schedule 6 (item 37): 29 June 2010 |
— |
| |
Provision affected | How affected |
S. 36......................................... | rep. No. 75, 2010 |
0
0
0