EXPLANATORY STATEMENT
STATUTORY RULES 1984 NO. 407
ISSUED BY THE AUTHORITY OF THE TREASURER
These regulations amending the Taxation Administration Regulations arise principally from changes in the taxation laws relating to penalties and prosecutions and to new rules concerning the departure from Australia of certain tax debtors. The changes were introduced by the Taxation Laws Amendment Act 1984, which was assented to on 19 October 1984. The relevant provisions of that Act will come into operation on 14 December 1984.
The amending Act inserted consolidated new provisions governing offences and prosecutions under the taxation laws in Part III of the Taxation Administration Act 1953 (the Act). The regulations will provide the necessary machinery and procedural framework to give effect to those consolidated offence and prosecution provisions. They will also provide the machinery necessary to give effect to the new provisions relating to departure prohibition. A further function of the regulations is to increase the maximum level of penalties for offences against the Principal Regulations.
Regulation 1 facilitates references to the Taxation Administration Regulations which are referred to as the “Principal Regulations.”
Regulation 2 is a minor drafting measure to amend regulation 2 of the Principal Regulations, which defines terms contained in those Regulations, and so provide a correct reference to the “Taxation Administration Act 1953”.
Paragraph (b) of the definition of “taxation law” in section 2 of the Act provides for Acts to be prescribed as being excluded from that definition. This provision enables terminated Acts and Acts of no practical importance to be
excluded. Regulation 3 will insert new regulation 2A in the Principal Regulations to prescribe, and thus exclude from the definition of “taxation law”, the Export Incentive-Grants Act 1971, the Pay-roll Tax Assessment Act-1941, the States Receipts Duties (Administration) Act 1970 and the Stevedoring Industry Charge Assessment Act 1947.
New regulation 2B, also to be inserted in the Principal Regulations by regulation 3, contains rules relating to evidence in prosecutions for offences against section 8C (failure to comply with a requirement under a taxation law), sub-section 8D(1) (failure to answer a question or to produce a book, paper, record or other document when attending before the Commissioner) and sub-section 8D(2) (refusal or failure to take an oath or make an affirmation when attending before the Commissioner). By sub-regulation 2B(1), a certificate in writing signed by the Commissioner, a Second Commissioner or a Deputy Commissioner certifying that a person refused or failed to do a particular act or thing will be prima facie evidence of the facts stated in it. Sub-regulation 2B(2) will deem, in the absence of proof to the contrary, a document purporting to be a certificate given under sub-regulation 2B(1) and signed by the Commissioner, a Second Commissioner or a Deputy Commissioner to be such a certificate and to have been duly given.
Section 8G of the Act authorises a court, in respect of a person convicted of an offence against section 8C or sub-section 8D(1) or (2), to order the person to comply with the requirement that has not been complied with and to do so within a specified time or at a specified place and time. New regulation 2C prescribes the manner of serving a copy of an order made under section 8G. By paragraph 2C(a), a copy of an order relating to a natural person must be either delivered to the person personally or left at, or sent by pre-paid post to, the last-known place of residence or business of the person. Paragraph 2C(b) requires that a copy of an order relating to a body corporate be left at, or sent by pre-paid post to, the head office, a registered office or a principal office of the body corporate.
Section 8ZG of the Act contains rules for the enforcement of orders made by a court upon the conviction of a person for a taxation offence where, in addition to imposing a fine or term of imprisonment, the court orders the person to pay an amount to the Commissioner. If the court does not have civil jurisdiction, or has civil jurisdiction but not to the extent of the amount ordered to be paid, sub-section 8ZG(2) requires an officer of the court to issue a certificate in a prescribed form containing prescribed particulars of the court order.
Sub-regulation 2D(1) specifies that the prescribed form of certificate be in accordance with Form 1 of the Schedule being inserted by regulation 6 and the prescribed particulars as listed in the sub-regulation.
Sub-section 8ZG(3) of the Act provides that a certificate issued under sub-section 8ZG(2) may be registered in a court having the appropriate civil jurisdiction. The procedure for registering a certificate issued under sub-section 8ZG(2) is set out in paragraph 2D(2)(a). Paragraph 2D(2)(b) provides that registration of a certificate relating to an order made more than 12 months before the day on which registration is sought is subject to the condition that leave to register the certificate has first been obtained from the court.
Sub-section 8ZJ(5) of the Act permits a person to elect to have a prosecution for certain taxation offences tried in the Supreme Court. Regulation 2E stipulates that an election for the purposes of sub-section 8ZJ(5) is to be in accordance with Form 2 in the Schedule being inserted by regulation 6. Such an election is required to be served on the person who instituted the prosecution and filed in the court in which the prosecution was instituted.
Regulation 4 will amend sub-regulation 8(4) of the Principal Regulations to increase from $40 to $500 the penalty for refusal or failure to comply with a requirement of a notice given to that person by the Chairman of a Board of Review under sub-regulation 8(3).
Regulation 5 will increase from $40 to $500 the penalty for contravention of existing regulation 13 which requires a person making an application to the Commissioner under section 14B of the Act for a tax clearance certificate to specify in the application or an accompanying document an address in Australia that is to be that person’s address for service under the Regulations.
Regulation 6 will add new regulations 16 to 19 and a Schedule to the Principal Regulations.
Pursuant to section 14S of the Act, the Commissioner of Taxation may, by order in accordance with the prescribed form, prohibit the departure from Australia of a person who is subject to a tax liability until the tax is paid or satisfactory arrangements are made for its payment. By new sub-regulation 16(1), Form 3 in the Schedule is the prescribed form for the purposes of orders issued under section 14S.
Paragraph 14S(4)(a) of the Act requires the Commissioner to cause a person in respect of whom a departure prohibition order is made to be informed, as prescribed, of the order. Sub-regulation 16(2) will provide that a person is informed, as prescribed, of the making of a departure prohibition order if a copy of the order is either delivered to the person personally or left at, or sent by pre-paid post to, the person’s last-known place of residence or business.
Sub-regulation-16(3) will prescribe the Comptroller-General of Customs and the Commissioner of Police of the Australian Federal Police as persons whom the Commissioner of Taxation may, if the Commissioner considers it appropriate, give a copy of a departure prohibition order and such information as is considered likely to facilitate the identification of the person to whom the order applies as authorised by sub-section 14S(4) of the Act.
The Commissioner is required, under sub-section 14T(4) of the Act, to give notification of revocation or variation of a departure prohibition order to certain persons and, under sub-section 14T(5), to give notification of refusal to revoke a departure prohibition order to the applicant. New sub-regulations 17(1) and (2) will prescribe the manner in which notification of decisions under sub-sections 14T(4) and (5) are to be served. The prescribed manner is the same as that prescribed by sub-regulation 16(2).
Under section 14U of the Act, the Commissioner may, in certain circumstances, issue a departure authorisation certificate to a person in respect of whom a departure prohibition order is in force. By sub-section 14U(3) of the Act, the Commissioner is required to cause a copy of a departure authorisation certificate to be served, as prescribed, on the person and, by sub-section 14U(4), to cause notification of a decision to refuse to issue such a certificate to be served, as prescribed, on the person. The prescribed manner of service of each document stipulated by sub-regulations 18(1) and (2) respectively is the same as that prescribed by sub-regulation 16(2).
The Taxation Laws Amendment Act 1984 inserted new section 16 in the Act to provide a single special appropriation out of the Consolidated Revenue Fund for refunds of taxes and related payments made by the Commissioner of Taxation. To prevent an amount being appropriated more than once, payments authorised by annual appropriation are excluded by sub-section 16(1) and paragraph 16(2) (a). For the purposes of sub-sub-paragraph 16(2) (a) (i) (B), it is necessary to exclude, by prescribing them in the regulations, a number of provisions of taxation laws that authorise payments which would be made out of annual appropriations of the Consolidated Revenue Fund but do not specify the Commissioner of Taxation as the person responsible to make the particular payments. The provisions are to be prescribed by new regulation 19.
The Schedule being inserted by regulation 6 contains 3 forms. Form 1 is the form of certificate to be issued by an officer of the court under sub-section 8ZG(2) of the Act as prescribed by new sub-regulation 2D(1). Form 2 is a Notice of Election to Have Case Tried in Supreme Court, as prescribed by regulation 2E for the. purposes of sub-section 8ZJ(5), and Form 3 is a Departure Prohibition Order as prescribed for the purposes of section 14S by new sub-regulation 16(1).