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TAXATION ADMINISTRATION ACT 1953

SCHEDULE 1 - COLLECTION AND RECOVERY OF INCOME TAX AND OTHER LIABILITIES    View history reference

Note: See section 3AA .

Chapter 2 - Collection, recovery and administration of income tax    View history reference

PART 2-5 - PAY AS YOU GO (PAYG) WITHHOLDING  

Division 18 - Recipient ' s entitlements and obligations    View history reference

Commissioner ' s Remedial Power

Note: A Commissioner ' s Remedial Power (CRP 2017/1) is relevant to this part of the tax law. Taxation Administration (Remedial Power - Foreign Resident Capital Gains Withholding) Determination 2017 (F2017L00992) modifies the operation of s 18-15 , 18-20 and 18-25 in Sch 1 to the Taxation Administration Act 1953 as follows:

To the extent that an entity ' s entitlement to a credit referred to in s 18-15 , 18-20 or 18-25 in Sch 1 to TAA is in respect of an amount paid to the Commissioner under Subdiv 14-D of Sch 1 to TAA, treat the entitlement as arising in the income year in which the transaction causing that application of Subdiv 14-D is recognised for income tax purposes for the entity. The modification applies in respect of transactions entered into on or after 1 July 2016.

An entity must treat a modification as not applying to it or any other entity if the modification would produce a less favourable result for it. The Commissioner is empowered by s 370-5 of Sch 1 to TAA to make modifications, by legislative instrument, to ensure the law is administered to achieve its intended purpose or object.

Subdivision 18-B - Refund of certain withheld amounts    View history reference

SECTION 18-70  REFUND OF WITHHELD AMOUNTS BY THE COMMISSIONER TO THE RECIPIENT  

 View history reference

18-70(1)  

An entity (the recipient ) may apply in writing to the Commissioner for the refund of an amount if:


(a) another entity (the payer ):

(i) withheld an amount purportedly under Division 12 from a payment made to, or received for, the recipient; or

(ia) paid the amount to the Commissioner purportedly under Division 13 for an *alienated personal services payment in relation to which an amount is included in the recipient ' s assessable income year under section 86-15 of the Income Tax Assessment Act 1997 ; or

(ii) paid to the Commissioner an amount purportedly under Division 14 for a *non-cash benefit provided to, or received for, the recipient; or

(iii) paid to the Commissioner an amount purportedly under Subdivision 14-D for *capital proceeds provided to, or applied on behalf of, the recipient; and
 View history reference


(b) either:

(i) the amount was so withheld, or paid to the Commissioner, in error; or

(ii) in the case of an amount withheld from a payment of an amount purported to have been paid by way of * parental leave pay or *dad and partner pay - the amount paid was not lawfully so payable; and
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(c) if subparagraph (a)(i), (ia) or (ii) applies - section 18-65 does not apply because the payer did not become aware of the matter mentioned in paragraph (b), or the recipient did not apply for a refund, as mentioned in subsection 18-65(1) ; and
 View history reference


(d) if subparagraph (a)(i) applies - the payer has already paid the withheld amount to the Commissioner.

18-70(1A)  

 View history reference
For the purposes of this section, if an entity has paid an amount to the Commissioner purportedly under Subdivision 12A-C (about deemed payments by AMITs), treat the entity as having withheld the amount purportedly under Division 12 .

18-70(2)  

The Commissioner must refund the amount if the application sets out:


(a) if the recipient has a *tax file number - that tax file number; or


(b) if the recipient does not have a tax file number but was taken to have quoted a tax file number to the payer before the amount was withheld or paid to the Commissioner - the basis on which the recipient was taken to have quoted the tax file number; or


(c) if the payment or *non-cash benefit was in respect of a *Part VA investment made by the recipient in the course or furtherance of an *enterprise carried on by it - the recipient ' s *ABN;

and the Commissioner is satisfied that it would be fair and reasonable to refund the amount, having regard to:


(d) the circumstances that gave rise to the withholding obligation (if any); and


(e) the nature of the matter mentioned in paragraph (1)(b); and
 View history reference


(f) any other matter the Commissioner considers relevant.

Note:

A person who is dissatisfied with a decision under this section may object against the decision in the manner set out in Part IVC .


 



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