Radiocommunications Taxes Collection (Penalties on Unpaid Tax) Determination 2015

EXPLANATORY STATEMENT

Issued by the Australian Communications and Media Authority

Radiocommunications Taxes Collection (Penalties on Unpaid Tax) Determination 2015

Purpose

The Radiocommunications Taxes Collection (Penalties on Unpaid Tax) Determination 2015 (the Determination) replaces the Radiocommunications Taxes Collection (Penalties on Unpaid Tax) Determination 1999 which is due to sunset on 1 April 2015.

Legislative Provisions

The Radiocommunications Taxes Collection (Penalties on Unpaid Tax) Determination 1999 is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA) and is due to sunset on 1 April 2015.

Subsection 7A (1) of the Radiocommunications Taxes Collection Act 1983 allows the ACMA to make determinations for, and in relation to, the penalty payable by a licensee in respect of apparatus licence tax that remains unpaid after the due day. 

Operation

The Determination sets out the penalty amounts and collection procedure of unpaid licence tax that the ACMA has determined and is payable by apparatus licence holders.

Public Consultation

Subsection 18(1) of the Legislative Instruments Act 2003 provides that the nature of an instrument may be such that consultation may be unnecessary or inappropriate.  The ACMA considers that it is unnecessary in this instance to consult on the Determination, in particular as the Determination is a remake of the Radiocommunications Taxes Collection (Penalties on Unpaid Tax) Determination 1999 and includes only minor changes such as updating references from the ACA to ACMA and improving its readability where required.  The method of calculating the penalty interest will not change.

Regulatory Impact

The Office of Best Practice Regulation (OBPR) has considered the matter and formed the opinion that no regulatory impact analysis is required for the Determination. The OBPR reference number is 18249.

Notes on sections

The provisions of the Determination are described in Attachment 1.

Statement of compatibility with human rights

Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the rule maker in relation to a legislative instrument to which section 42 (disallowance) of the Legislative Instruments Act 2003 applies to cause a statement of compatibility to be prepared in respect of that legislative instrument.

This statement has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The Determination, the effect of which is to remake the Radiocommunications Taxes Collection (Penalties on Unpaid Tax) Determination 1999, is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The ACMA has considered whether the Determination engages any applicable human rights or freedoms and has formed the view that it does not.  The Determination is compatible with human rights as it does not raise any human rights issues.

ATTACHMENT 1

NOTES ON SECTIONS

Section 1  Name of Determination

Section 1 provides for the citation of the Determination as the Radiocommunications Taxes Collection (Penalties on Unpaid Tax) Determination 2015.

Section 2  Commencement

Section 2 provides that the Determination commences on the day after it is registered.

Section 3  Revocation

Section 3 provides that the Radiocommunications Taxes Collection (Penalties on Unpaid Tax) Determination 1999 (FRLI No.F2005B00395) is revoked.

Section 4  Definitions

Section 4 defines the terms used in the Determination.

Section 5  Application of this Determination

Paragraph 5(1)(a) provides that the Determination applies to amounts of tax that become payable on or before the commencement of the Determination.  Subsection 5(2) provides that the penalties imposed by the Determination to the amounts of tax referred to in paragraph 5(1)(a) will apply from the end of the day before the Determination commences.

Paragraph 5(1)(b) provides that the Determination also applies to amounts of tax that become payable after the commencement of the Determination.

Section 6  Penalty interest on overdue tax

Subsection 6(1) provides that section 6 applies if a person is required to pay an amount of tax and that amount of tax is not paid by its due date.

Subsection 6(2) provides that if section 6 applies, the person is liable to pay penalty interest on the amount by way of penalty.

Subsection 6(3) provides that the penalty interest is payable to the ACMA and is a debt to the Commonwealth.

Section 7  Rate of penalty interest

Section 7 provides the rate at which penalty interest is payable for a day is the same rate as the general interest charge rate under section 8AAD of the Taxation Administration Act 1953.

Section 8  Payment of penalty interest

Section 8 provides that penalty interest is payable from the first day after the amount of tax becomes payable.

Section 9  Attribution of payments made to the ACMA  

This section provides that where a person is liable to pay an amount of tax and an amount of penalty interest and an amount of money is paid to the ACMA without any appropriation, then the person’s payment will be credited first to the penalty interest and, if all the penalty interest is paid, then to the amount of tax.

Section 10  Remission of penalty interest: general

This section provides that the ACMA may decide to remit all or part of an amount of penalty interest payable by a person (paragraph 10(1)(a)) or it may decide not to remit any part of amount of penalty interest payable by a person (paragraph 10(1)(b)).

A person may apply to the ACMA, in writing or orally, to have all or part of an amount of penalty interest remitted (subsection 10(2)).  However, a decision to remit all or any part of an amount of penalty interest can be made by the ACMA whether or not it has received an application for remission (paragraph 10(3)(a). 

The ACMA may only remit all or part of an amount for a reason set out in section 11 (paragraph 10(3)(b)).

If a person applies to the ACMA under subsection 10(2), the ACMA must make a decision either to remit or not to remit within 90 days, or if further information has been requested by the ACMA in writing, within 90 days of receiving the further information (subsection 10(4)).

If the ACMA fails to notify the person of a decision with the relevant 90 days, the ACMA is taken to have made a decision not to remit any part of the penalty interest.

Section 11  Remission of penalty interest: reasons

This section provides there will be a valid reason for remission of an amount of penalty interest if the ACMA is satisfied that:

• the delay in payment of the tax was not due to an act or omission of the person and was not caused by an act or omission of the person;
• the delay in payment was due to an act or omission of the person which the person has taken reasonable steps to mitigate and having regard to the nature of the circumstances, it would be fair and reasonable to remit all or part of the amount;
• it is not reasonably practicable to attempt to recover the penalty interest;
• the payment of all or part of the penalty interest would cause financial hardship to the person; or
• there are other circumstances by reason of which it would be fair and reasonable to remit all or part of the penalty interest.

Section 12  Remission of penalty interest: statements with decision  

This section provides that if the ACMA makes a decision to remit or not to remit an amount of penalty interest (under subsection 10(1)), the ACMA must give the person who is liable to pay penalty interest the following:

• a statement of decision and reasons for the decision;
• a statement that the person may apply for reconsideration of the decision;
• a statement to the effect that, if the person applies for reconsideration and is dissatisfied with the reconsidered decision, an application may be made to the AAT for review of the decision.

The validity of the decision is not affected by a failure by the ACMA to give the statements listed above.

Section 13  Reconsideration: general

Section 13 provides that a person may apply to the ACMA for reconsideration of a decision to remit or not to remit if the person is affected by the decision and is dissatisfied with it (subsection 13(1)).  Such an application must be:

• in writing in a form approved by the ACMA and it must state the reasons for the application (subsection 13(2)); and
• made within 28 days after the decision is made or before the end of any extension period granted by the ACMA.

The form approved by the ACMA for making such an application may provide for the making of a statutory declaration as part of verifying a statement made in the form.

Section 14  Reconsideration: decision

This section provides that, on receipt of an application for reconsideration that complies with section 13, the ACMA must reconsider the original decision and decide to confirm, vary or revoke that decision within 90 days.

If the ACMA does not tell the person about its decision within the 90 day period, the ACMA is taken to have made a decision to confirm the original decision.

Section 15  Reconsideration: statements with decision

This section provides that ACMA must give the person who applied for reconsideration the following:

• a statement of decision;
• a statement to the effect that an application may be made to the AAT for review of the decision; and
• a statement to the effect that the person may request a statement setting out the findings on material questions of fact, the evidence on which those findings were based and reasons for the decision under section 28 of the Administrative Appeals Tribunal Act 1975.

The validity of the decision is not affected by a failure by the ACMA to give the statements listed above.

Section 16  Application to AAT

Section 16 provides that an application may be made to the AAT for review of a decision made by the ACMA under paragraph 14 (1) (b).

Section 17  Judgment for payment of tax and penalty interest only

Where judgment is given by a court for the payment of an amount of tax and the judgment carries interest, this section provides that penalty interest will not cease to be payable because of the giving of the court judgment.  The penalty interest that would, but for subsection 17(4), be payable, is reduced by the amount of the judgment interest.

If section 18 applies, this section will not apply (subsection 17(2)).

Section 18  Judgment for payment of tax, penalty interest and other amounts

Where judgment is given by a court for the payment of an amount that includes an amount of tax and the judgment carries interest, this section provides that penalty interest will not cease to be payable because of the giving of the court judgment.  This section differs from section 17 which concerns a judgment for the payment of an amount of tax (and no other amount).  The penalty interest that would, but for subsection 18(3), be payable, is reduced by an amount proportionate to the amount of the judgment interest as the amount of tax is to the amount of the judgment debt.  For example, if the amount of tax is one half of the amount of the judgment debt, then the penalty interest will be reduced by half of the amount of the judgment interest.

Section 19  Rounding of amount of penalty interest

Section 19 provides for rounding of amounts of tax less than one cent.