COMMONWEALTH OF AUSTRALIA
Taxation Administration Act 1953I, Chris Jordan AO, Commissioner of Taxation, make this determination under section 370-5 of Schedule 1 to the Taxation Administration Act 1953 .
1. Name of determination
This draft determination is the Taxation Administration (Remedial Power-Foreign Resident Capital Gains Withholding Tax) Determination 2017.
Each provision of this determination specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information
| Column 1
|| Column 2
|| Column 3
|1. The whole of this determination
||The first day this determination is no longer liable to be disallowed, or to be taken to have been disallowed, under section 42 of the Legislation Act 2003.
Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.
Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.
This draft determination is made under section 370-5 of Schedule 1 to the Taxation Administration Act 1953.
Each modification of the operation of a provision of a taxation law as set out in a Schedule to this draft determination is determined for the purposes of section 370-5 of Schedule 1 to the Taxation Administration Act 1953.
Schedule 1 - Modifications
1. Tax credit for recipient of withholding payments involving foreign residents and taxable Australian property
(1) The operation of:
- sections 18-15, 18-20 and 18-25 of Schedule 1 to the Taxation Administration Act 1953; and
- any other provision of a taxation law the operation of which is affected by the operation of any of those sections;
is modified in the way set out below.
(2) To the extent that an entity's entitlement to a credit referred to in section 18-15, 18-20 or 18-25 in that Schedule is in respect of an amount paid to the Commissioner under Subdivision 14-D in that Schedule, treat the entitlement as arising in the income year in which the transaction causing that application of Subdivision 14-D is recognised for income tax purposes for the entity.
(3) The modification applies in respect of transactions entered into on or after 1 July 2016.
1. Subsection 17(1) of the Legislation Act 2003 requires, before the making of a determination, that the rule-maker is satisfied that appropriate and reasonably practicable consultation has been undertaken.
2. As part of the consultation process, you are invited to comment on the draft determination and its accompanying draft explanatory statement.
Please forward your comments to the contact officer by the due date.
| Consultation questions
1. Are there instances, other than FRCGW, where there are misalignments in crediting amounts withheld and paid to the Commissioner?
2. Legislative instruments ordinarily apply prospectively and they cannot apply retrospectively to disadvantage an entity other than the Commonwealth (section 12 Legislation Act 2003). In the current case retrospective application is proposed to ensure entities have access to the benefit of this modification for transactions already entered into (see paragraphs 5-7). What application date should this instrument have? What characteristics of the present case would support a retrospective application date?
Chris Jordan AO
Commissioner of Taxation
Related Explanatory Statements:
CRP 2017/D1 - Explanatory Statement