Taxation Administration Act 1997 (Tas)

Taxation Administration Act 1997 An Act to provide for the administration and enforcement of taxation laws [Royal Assent 14 January 1998] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Taxation Administration Act 1997 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation In this Act, unless the contrary intention appears – approval means an approval referred to in Division 2 of Part 6 ; approved form means a form approved by the Commissioner; assessment means – (a) an assessment made under Part 3 of the tax liability of a person; and (b) a reassessment; and (c) a compromise assessment; authorised officer means – (a) the Commissioner; and (b) a person appointed as an authorised officer under section 15 ; business day means a day other than a Saturday, a Sunday or a statutory holiday as defined in the Statutory Holidays Act 2000 ; charge includes pass on; commencement day means the day on which this Act commences; Commissioner means the Commissioner of State Revenue referred to in section 7 ; compromise assessment means an assessment under section 22 ; function includes a duty; interest means interest payable under Division 1 of Part 5 ; interest rate means the interest rate referred to in section 35 ; investigation means an investigation under Part 9 ; non-reviewable decision means a decision referred to in section 5 ; penalty tax means a tax referred to in Division 2 of Part 5 ; premises includes land, a vehicle, a vessel and an aircraft; reassessment means reassessment of tax liability under section 19 ; record means – (a) any instrument, document, record, film, tape, disc or other device or medium on which information is recorded or stored mechanically, photographically, electronically, electromagnetically or otherwise; and (b) any other information kept in any form or device; Recorder of Titles means the person appointed as Recorder of Titles under section 4(1) of the Land Titles Act 1980 ; required record is a record required to be kept under a taxation law; return means a return, statement, certificate, application, report or other record that – (a) is required or authorised under a taxation law to be lodged with the Commissioner or a specified person; and (b) is liable to tax or records matters in respect of which there is or may be a tax liability; tax means – (a) a tax or duty payable under a taxation law; and (b) interest and penalty tax; and (c) any other amount payable by a taxpayer under a taxation law; tax agent means a person engaged by a taxpayer for fee or reward, otherwise than as an employee, who prepares, or assists in the final preparation of, any instrument or return on behalf of the taxpayer; taxation law means a law referred to in section 4 ; tax default means a failure by a taxpayer to pay the whole or part of tax that the taxpayer is liable to pay; tax liability means a liability to pay tax; tax officer means – (a) an authorised officer; and (b) any other person engaged in the administration or execution of a taxation law; taxpayer means a person who – (a) is assessed as liable to pay an amount of tax; or (b) has paid an amount as tax; or (c) is liable or may be liable to pay tax; trustee includes – (a) a person who is a trustee under an implied or constructive trust; and (b) in relation to a deceased person, an executor of the will, or an administrator of the estate, of the deceased person; and (c) a receiver or manager of the property of a company, or a liquidator of a company for the purpose of its winding-up; and (d) a receiver, guardian, committee or manager of the property of a person under a legal or other disability; and (e) a person having possession, control or management of a business or property of a person who is under a legal or other disability; and (f) any person acting in a fiduciary capacity. 4. Meaning of taxation laws The following are taxation laws: (a) this Act; (ab) Debits Duties Act 2001 ; (ac) Duties Act 2001 ; (b) Land Tax Rating Act 2000 ; (ba) Land Tax Act 2000 ; (c) Pay-roll Tax Act 1971 ; (d) Payroll Tax Act 2008 . 5. Non-reviewable decisions If a provision of this Act provides that a decision is a non-reviewable decision, any court or administrative review body, including the Magistrates Court (Administrative Appeals Division), does not have jurisdiction or power to entertain any question as to the validity or correctness of the decision. 6. Act binds Crown (1) This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. (2) This section does not affect the liability of the Crown to tax under another taxation law. PART 2 - Tax officers 7. Commissioner The Minister administering the State Service Act 2000 may appoint a State Service officer or State Service employee to be Commissioner of State Revenue, and that officer or employee holds that office in conjunction with State Service employment. 8. Functions and powers of Commissioner (1) The Commissioner has the following functions: (a) the general administration of the taxation laws; (b) any other function imposed on him or her by any other Act. (2) The Commissioner may do anything necessary or convenient to give effect to the taxation laws. 9. Functions and powers under Commonwealth Act The Commissioner may perform the functions and exercise the powers of a State taxation officer under Taxation Administration Act 1953 of the Commonwealth. 10. Legal proceedings (1) Legal proceedings may be taken by or against the Commissioner in the name "Commissioner of State Revenue". (2) A person who takes legal proceedings in the name of the Commissioner is taken to be authorised to take those proceedings, in the absence of evidence to the contrary. 11. Deputy or Assistant Commissioner (1) The Minister administering the State Service Act 2000 may appoint a State Service officer or State Service employee to be a Deputy Commissioner of State Revenue or an Assistant Commissioner of State Revenue, and that officer or employee holds that office in conjunction with State Service employment. (2) Subject to the direction and control of the Commissioner, a Deputy Commissioner or an Assistant Commissioner has the same functions as the Commissioner under a taxation law or another law under the general administration of the Commissioner. 12. Other staff Subject to and in accordance with the State Service Act 2000 , there may be appointed any other persons that are necessary for the administration and execution of the taxation laws and other laws under the general administration of the Commissioner. 13. Consultants and contractors The Commissioner may engage any consultants and contractors that may be necessary or convenient to perform the functions or exercise the powers of the Commissioner. 14. Delegation The Commissioner may delegate to any person any function or power of the Commissioner under a taxation law, other than this power of delegation. 15. Authorised officers The Commissioner may appoint persons as authorised officers for the purposes of the taxation laws. 16. Identity cards The Commissioner is to issue an authorised officer with an identity card in an approved form – (a) containing the person's name, signature and photograph; and (b) stating that the person is an authorised officer for the purposes of the taxation laws. 17. Personal liability The Commissioner or a tax officer is not personally liable for an honest act done or omission made in the execution of a taxation law. PART 3 - Assessment of tax liability 18. General power to make assessment (1) The Commissioner may make an assessment of a tax liability of a taxpayer. (2) The Commissioner may include in an assessment a determination that there is not a particular tax liability. 19. Reassessment (1) The Commissioner may make one or more reassessments of a tax liability of a taxpayer. (2) The Commissioner may – (a) make a reassessment of a tax liability of a taxpayer after an amount previously assessed as being payable by the taxpayer has been paid; or (b) make a reassessment of a tax liability under which the taxpayer is assessed as having liabilities that are additional to, or greater than, those under the previous assessment. (3) The Commissioner must not make a reassessment of a tax liability more than 5 years after the initial assessment of the liability unless – (a) the reassessment is to adjust tax to give effect to a decision on an objection, review or appeal as to the initial assessment; or (b) at the time the initial assessment or a reassessment was made, all the facts and circumstances affecting the tax liability under the relevant taxation law of the person in respect of whom the assessment or reassessment was made were not fully and truly disclosed to the Commissioner; or (c) the initial assessment was an assessment by way of estimate under section 21(2) . (4) The time limited by subsection (3) applies even if the initial assessment is withdrawn. 19A. Effect on assessment of change in interpretation If an assessment is based on a particular interpretation of the applicable law or a particular practice of the Commissioner that was generally applied to assessments of that kind when the assessment was made, the Commissioner cannot make a reassessment based on an interpretation or practice that applied after the assessment was made, other than to give effect to a change in interpretation or practice brought about by a legislative change. 20. Instruments and returns to include all relevant information (1) A taxpayer and any tax agent of the taxpayer must include in an instrument that is liable to tax or in a statement that is produced to the Commissioner together with the instrument before the payment of tax, all information necessary for a proper assessment of the tax liability of the taxpayer in respect of the instrument. Penalty: In the case of – (a) a body corporate, a fine not exceeding 100 penalty units; or (b) in any other case, a fine not exceeding 20 penalty units. (2) A taxpayer and any tax agent of the taxpayer must include in a return required to be lodged with the Commissioner under a taxation law, in addition to the information required under that taxation law, any further information necessary for a proper assessment of the tax liability of the taxpayer in respect of the return or the matters to which the return relates. Penalty: In the case of – (a) a body corporate, a fine not exceeding 100 penalty units; or (b) in any other case, a fine not exceeding 20 penalty units. (3) It is a defence in proceedings under this section – (a) for a taxpayer to prove that he or she reasonably relied on – (i) another person who was liable or required with the taxpayer to pay the tax or lodge the return; or (ii) a tax agent (whether engaged by the taxpayer or that other person) – to ensure that the requirements of this section are satisfied; or (b) for a tax agent to prove that he or she reasonably relied on information supplied by the taxpayer or by another person who was liable or required with the taxpayer to pay the tax or lodge the return. 20A. Commissioner may require information to be provided (1) If an interest in land is transferred or there is a change of the beneficial ownership of an interest in land – (a) the transferee or the person who acquires the interest in the beneficial ownership; or (b) a tax agent of the transferee or of the person who acquires the interest in the beneficial ownership; or (c) a person who is authorised under an approval and who has the express or implied consent of – (i) the transferee or a tax agent of the transferee; or (ii) the person who acquires the interest in the beneficial ownership or the tax agent of that person – to so lodge the information – must lodge with the Commissioner, in the approved form, the information specified, in an approved form, to be required to be lodged in relation to the transfer or change in beneficial ownership. Penalty: In the case of – (a) a body corporate, a fine not exceeding 100 penalty units; or (b) in any other case, a fine not exceeding 20 penalty units. (1A) If an interest in land is transferred or there is a change of the beneficial ownership of an interest in land – (a) the transferor or the person who held the interest immediately before the change of the beneficial ownership; or (b) a tax agent of the transferor or of the person who held the interest immediately before the change of the beneficial ownership; or (c) a person who is authorised under an approval and who has the express or implied consent of – (i) the transferor or a tax agent of the transferor; or (ii) the person who held the interest immediately before the change of the beneficial ownership or the tax agent of that person – to so lodge the information – must lodge with the Commissioner, in the approved form, the information specified, in an approved form, to be required to be lodged in relation to the transfer or change in beneficial ownership. Penalty: In the case of – (a) a body corporate, a fine not exceeding 100 penalty units; or (b) in any other case, a fine not exceeding 20 penalty units. (2) The Commissioner, or an agent of the Commissioner, must not stamp or endorse an instrument that relates to a transfer of, or a change of the beneficial ownership of, an interest in land if the information specified, in an approved form for the purposes of subsection (1) or (1A) , to be required to be lodged in relation to the transfer or change in beneficial ownership has not been provided or has not been provided in the approved form for the purposes of subsection (1) or (1A) . (3) Subsection (2) does not apply in relation to an instrument that relates to a transfer of, or a change of the beneficial ownership of, an interest in land if the Commissioner has approved the stamping or endorsement of the instrument, or instruments of the kind specified in the approval, despite a failure to comply with that subsection. (4) A person referred to in subsection (1)(a) , (b) or (c) is to be taken to have complied with subsection (1) in relation to a transfer or change in beneficial ownership if another person referred to in subsection (1)(a) , (b) or (c) has complied with subsection (1) in relation to the transfer or change in beneficial ownership. (5) A person referred to in subsection (1A)(a) , (b) or (c) is taken to have complied with subsection (1A) in relation to a transfer or change in beneficial ownership if any of the following persons has complied with subsection (1A) in relation to the transfer or change in beneficial ownership: (a) another person referred to in subsection (1A)(a) , (b) or (c) ; (b) a person acting on behalf of the person referred to in subsection (1A)(a) , (b) or (c) ; (c) another person referred to in subsection (1)(a) , (b) or (c) . (6) Without limiting the information that may be specified in an approved form, for the purposes of subsection (1) or (1A) , as information required to be lodged in relation to a transfer or change in beneficial ownership, the information so specified may consist of, or include, information that is required to be provided by the State under Schedule 1, subsection 396-55 of the Taxation Administration Act 1953 of the Commonwealth. (7) As soon as practicable after receiving information under subsection (1) or (1A) , the Commissioner is to provide to – (a) the Valuer-General so much of the information as is required by the Valuer-General for the purposes of the Valuation of Land Act 2001 ; and (b) the Recorder of Titles so much of the information as is required by the Recorder of Titles for the purposes of the Land Titles Act 1980 . 21. Information on which assessment is made (1) The Commissioner may make an assessment on the information that the Commissioner has from any source at the time the assessment is made. (2) If the Commissioner has insufficient information to make an exact assessment of a tax liability, the Commissioner may make an assessment by way of estimate. 22. Compromise assessment (1) If it is difficult or impracticable for the Commissioner to determine a person's tax liability under a taxation law without undue delay or expense because of the complexity or uncertainty of the case or for any other reason, the Commissioner may make an assessment of that liability in accordance with this section. (2) The Commissioner, with the agreement of a person, may assess the person's tax liability in an amount specified in, or determined in accordance with, the agreement. (3) The Commissioner must not make a reassessment of a tax liability assessed under this section – (a) except with the agreement of the taxpayer; or (b) unless, in the opinion of the Commissioner – (i) the assessment under this section was procured by fraud; or (ii) there was a deliberate failure to disclose material information. (4) An assessment or reassessment made under this section with the agreement of a taxpayer is a non-reviewable decision. 23. Withdrawal of assessment The Commissioner may withdraw an assessment within 3 years after the date of service of the notice of assessment, whether or not the amount of tax specified in the notice of assessment has been paid. 24. Notice of assessment or withdrawal of assessment (1) If the Commissioner makes or withdraws an assessment, the Commissioner – (a) may serve a notice of assessment or withdrawal on the taxpayer; and (b) must serve such a notice on the taxpayer if the taxpayer so requests. (2) A notice of assessment is to – (a) be expressed to be an assessment of liability to a tax; and (b) show the amount of tax assessed; and (c) specify the rate of interest or penalty tax payable in respect of any tax default; and (d) specify the date on or before which any assessment is payable. 25. Receipt of tax is not assessment The receipt by the Commissioner of a return or an amount as payment of a tax does not constitute the making of an assessment of tax liability. 26. Validity of assessment The validity of an assessment is not affected because a provision of a taxation law has not been complied with. PART 4 - Refunds of tax 27. Application of Part (1) Proceedings for the refund or recovery of tax paid or purportedly paid under a taxation law, whether before or after the commencement of this Act, may only be brought as provided in this Part. (2) Subsection (1) and section 28 do not apply to a taxpayer if the taxpayer claims to be entitled to receive a refund or to recover tax paid or purportedly paid under a taxation law by reason of the invalidity of a provision of that law. (3) This Part has effect despite the provisions of any other taxation law. (4) An amount by which tax is overpaid is taken to be tax for the purpose of this Part. 28. Application for refund (1) A taxpayer may apply to the Commissioner for the refund of any tax paid or purportedly paid if the taxpayer claims to be entitled to the refund or recovery of that tax. (2) A taxpayer may not apply for, and is not entitled to, a refund if the Commissioner has previously served a notice of assessment of the tax liability of the taxpayer in respect of the matter in respect of which the payment was made to the Commissioner. (2A) Subsection (2) does not apply in relation to a refund of tax paid under the Land Tax Act 2000 . (3) An application in relation to an amount – (a) is to be in an approved form; and (b) is to be – (i) lodged with the Commissioner within 5 years after the date on which the amount was paid; or (ii) if the amount is one of 2 or more amounts, to which the application relates, that were instalments paid under section 13 of the Land Tax Act 2000 in the same financial year and were not paid under an arrangement under section 59 of this Act – lodged with the Commissioner within 4 years after the most recent payment in relation to those amounts was made. 29. Refund (1) The Commissioner, if satisfied that a person has overpaid an amount, is to – (a) refund the overpaid amount; or (b) apply the overpaid amount against any liability of the person under a taxation law, or another Act of which the Commissioner has the general administration, and refund any part of the overpayment that is not so applied. (2) The Commissioner may only take an action under subsection (1) in relation to an amount that a person has overpaid, if – (a) the person has lodged an application under section 28 in relation to the overpayment; or (b) the overpayment has been identified during an investigation conducted in accordance with Part 9 or Part 9A . (3) A person who has lodged an application under section 28 in relation to an amount is not entitled to a refund of the amount, or to have the amount applied against any liability referred to in subsection (1)(b) , unless the application is – (a) lodged with the Commissioner within 5 years after the date on which the amount was paid; or (b) if the amount is one of 2 or more amounts, to which the application relates, that were instalments paid under section 13 of the Land Tax Act 2000 in the same financial year and were not paid under an arrangement under section 59 of this Act – lodged with the Commissioner within 4 years after the most recent payment in relation to those amounts was made. 29AA. Effect on refund of change in interpretation If a person has paid, or purportedly paid, an amount of tax, the Commissioner cannot refund all or part of the amount based on a particular interpretation of the applicable law or a particular practice of the Commissioner that applied after the time at which it was paid, other than to give effect to a change in interpretation or practice brought about by a legislative change. 29A. Payment of interest (1) In addition to the amount of an overpayment of tax refunded under section 29 , the Commissioner is required to pay interest on the amount of the overpayment, calculated on a daily basis from the date of payment of the amount overpaid until the date the refund is approved by the Commissioner. (2) Interest is to be calculated at the rate specified as the market rate component in section 35(2) . (3) The Commissioner is not required to pay interest under subsection (1) on an amount refunded unless the amount of interest exceeds $20. (4) Despite subsection (1) , the Commissioner may apply, against any liability of a person under a taxation law, or another Act of which the Commissioner has the general administration, an amount of interest that the Commissioner would otherwise be required under that subsection to pay to the person. 30. Recovery of overpaid amounts A taxpayer may bring proceedings for the recovery of an overpaid amount if the taxpayer lodged an application under section 28 . 31. Refusal to refund The Commissioner must not make a refund of tax to a person unless satisfied that the person – (a) has not charged to, or recovered from, and is not likely to charge to, or recover from, any other person any amount in respect of the whole or any part of that tax; or (b) having charged or recovered such an amount, is likely to reimburse, or take all reasonable steps to reimburse, each other person for the amount charged or recovered. 32. Reimbursement after refund (1) If a refund is made to a person to whom section 31(b) applies – (a) the person must – (i) within 90 days after receiving the refund, reimburse each other person for the amount charged to or recovered from that person; and (ii) notify the Commissioner in writing within 7 days after the end of that period that all amounts charged or recovered have been reimbursed; or (b) if the amount is not reimbursed within that period, the person, within 7 days after the end of that period, is to – (i) notify the Commissioner in writing of any amount not reimbursed; and (ii) pay any amount to the Commissioner, together with interest at a rate not exceeding 20% per annum as the Commissioner specifies from the date the refund was made to the date of payment. Penalty: Fine not exceeding 50 penalty units. (2) An amount payable under subsection (1)(b)(ii) is a debt due to the Crown. (3) This section prevails over sections 29 and 30 . 33. Application of certain sections Sections 31 and 32 apply in respect of proceedings for the refund or recovery of tax paid or purportedly paid as if – (a) a reference to the Commissioner in those sections, except in section 32(1)(b)(ii) , were a reference to the court; and (b) a reference to the making of a refund in those sections were a reference to the making of an order or decision that a refund be made. PART 5 - Interest and penalty tax Division 1 - Interest 34. Interest in respect of tax defaults (1) If a tax default occurs, the taxpayer is liable to pay interest on the amount of tax unpaid calculated on a daily basis from the end of the last day for payment until the day it is paid at the interest rate. (2) Interest is payable in respect of a tax default that consists of a failure to pay penalty tax. (3) Interest is not payable in respect of a tax default that consists of a failure to pay interest. 34A. Imposition of interest where making of duty assessment delayed (1) If in the opinion of the Commissioner the actions of the taxpayer or the taxpayer's representative, or both the taxpayer and the taxpayer's representative, unnecessarily delay the making of a duty assessment, the Commissioner may impose interest from the end of the last day for payment until the day on which the duty is paid. (2) For the purposes of subsection (1) , the "last day for payment" is the last day of the period of 3 months after the liability for duty arises as provided in section 10 of the Duties Act 2001 . 35. Interest rate (1) The interest rate is the sum of – (a) the market rate component; and (b) the premium component. (2) The market rate component is – (a) unless an order is in force under paragraph (b) , the Bank Accepted Bill rate rounded to the second decimal place (rounding 0.005 upwards); or (b) the rate the Minister specifies by order published in the Gazette. (3) The Bank Accepted Bill rate in respect of any day is the yield rate for 90-day Bank Accepted Bills published by the Reserve Bank for the month of May in the financial year preceding the financial year in which the day occurs. (4) The premium component is – (a) unless an order is in force under paragraph (b) , 8% per annum; or (b) the rate the Minister specifies by order published in the Gazette. 36. Minimum amount of interest Interest in respect of a tax default is not payable until the amount of that interest exceeds $20. 37. Interest rate prevails over other interest If judgment is given by, or entered in, a court for an amount of unpaid tax or an amount that includes an amount of unpaid tax, the interest rate payable under this Division continues to apply to the exclusion of any other interest rate until the tax is paid. 38. Remission of interest (1) The Commissioner, in any circumstances the Commissioner considers appropriate, may remit interest payable by a taxpayer by any amount. (2) If the Commissioner remits any interest under this section, he or she may, at any time, reimpose all or part of the interest in any circumstances that the Commissioner considers appropriate. Division 2 - Penalty tax 39. Penalty tax in respect of certain tax defaults (1) If a tax default occurs, the taxpayer is liable to pay penalty tax in addition to the amount of tax unpaid. (2) Penalty tax is in addition to interest. (3) Penalty tax is not payable in respect of a tax default that consists of a failure to pay – (a) interest; or (b) penalty tax previously imposed. 40. Amount of penalty tax (1) The amount of penalty tax payable is 25% of the amount of tax unpaid. (2) The Commissioner may increase the amount of penalty tax payable to 75% of the amount of tax unpaid if satisfied that the tax default was caused wholly or partly by the intentional disregard by the taxpayer or a person acting on behalf of the taxpayer of a taxation law. (3) The Commissioner may determine that a penalty tax is not payable if satisfied that – (a) the taxpayer or a person acting on behalf of the taxpayer took reasonable care to comply with the taxation law; or (b) the tax default occurred solely because of circumstances not amounting to financial incapacity that are beyond the control of the taxpayer or a person acting on behalf of the taxpayer. 41. Reduction in penalty tax for disclosure (1) The amount of penalty tax is to be reduced by 80% if, before the Commissioner informs the taxpayer that an investigation relating to the taxpayer is to be carried out, the taxpayer discloses to the Commissioner, in writing, sufficient information to enable the nature and extent of the tax default to be determined. (2) The amount of penalty tax is to be reduced by 20% if, after the Commissioner informs the taxpayer that an investigation relating to the taxpayer is to be carried out and before it is completed, the taxpayer discloses to the Commissioner, in writing, information that identifies the precise nature and extent of the tax default without the need for further investigation by the Commissioner. 42. Increase in penalty tax for concealment (1) The amount of penalty tax is to be increased by 20% if, after the Commissioner has informed the taxpayer that an investigation is to be carried out and before the investigation is completed, the taxpayer took steps to prevent or hinder the Commissioner from becoming aware of the nature and extent of the tax default in whole or part. (2) For the purposes of this section, a taxpayer takes steps to prevent or hinder the Commissioner if the taxpayer – (a) deliberately damages or destroys records required to be kept under the taxation law to which the invest