Commonwealth Consolidated Acts

BUDGET SAVINGS (OMNIBUS) ACT 2016 - SCHEDULE 23

Part   1 -- Reporting by employers

Division   1--Main amendments

Taxation Administration Act 1953

1   After Division   388 in Schedule   1

Insert:

Division   389 -- Reporting by employers

Guide to Division   389

389 - 1   What this Division is about

Table of sections

389 - 5   Required reporting by substantial employers

389 - 10   Exemptions

389 - 15   Voluntary reporting by employers

389 - 20   Effect on reporting requirements under Subdivision   16 - C

389 - 25   Grace periods for correcting false or misleading notifications

389 - 5   Required reporting by substantial employers

  (1)   If:

  (a)   there is an amount of a kind referred to in column 1 of an item in the following table that arises as a result of conduct of an entity (such as payment of an amount or provision of a benefit); and

  (b)   the entity has been a * substantial employer at any time on or after 1   April 2018 (whether or not the entity is currently a substantial employer);

the entity must notify the Commissioner of the amount on or before the day referred to in column 2 of that item.

Note:   Section   286 - 75 provides an administrative penalty for breach of this section.

  (2)   The notification must be in the * approved form. However, the approved form must not require information about an amount unless it is:

  (a)   the amount to be notified under subsection   ( 1); or

  (b)   an amount of a kind determined by the Commissioner under subsection   ( 3).

  (3)   The Commissioner may, by legislative instrument, determine kinds of amounts for the purposes of paragraph   ( 2)(b).

  (4)   In applying item   1 of the table in subsection   ( 1), a requirement to withhold a nil amount is to be treated as a requirement to withhold an amount.

  (5)   This section does not apply to an entity to the extent (if any) that the entity is covered by an exemption under section   389 - 10 for the income year in which the entity's conduct occurs.

  (6)   An entity is a substantial employer at a particular time if, on the most recent 1   April occurring before that time:

  (a)   20 or more individuals were employees of the entity; or

  (b)   if the entity was a member of a * wholly - owned group on that 1   April--the total number of employees of all of the members of the group was 20 or more.

389 - 10   Exemptions

Exempting classes of entities

  (1)   The Commissioner may, by legislative instrument, exempt a class of entities from section   389 - 5 for one or more income years.

  (2)   The exemption may be limited to the extent specified in the instrument.

Exempting particular entities

  (3)   The Commissioner may, on application by an entity (an exemption application ) or on the Commissioner's own initiative, exempt the entity from section   389 - 5 for one or more income years.

  (4)   The exemption may be limited to the extent specified in the notice under paragraph   ( 5)(a).

  (5)   The Commissioner must notify the entity in writing if:

  (a)   the Commissioner exempts the entity under subsection   ( 3); or

  (b)   refuses an exemption application by the entity.

  (6)   The Commissioner is taken to have refused an exemption application if the Commissioner fails to notify the entity in writing of the Commissioner's decision on the application within 60 days after the application is made.

  (7)   The entity may object, in the manner set out in Part   IVC, against:

  (a)   a decision of the Commissioner to refuse an exemption application; or

  (b)   a decision of the Commissioner to limit the extent of an exemption under subsection   ( 4).

389 - 15   Voluntary reporting by employers

Section   389 - 5 amounts

  (1)   An entity that is not, and has not at any time on or after 1   April 2018 been, a * substantial employer may notify the Commissioner of an amount that it would be required to notify under section   389 - 5 if it were a substantial employer.

  (2)   The notification:

  (a)   must be given on or before the day on or before which the entity would be required to notify under section   389 - 5 if it were a * substantial employer; and

  (b)   must be in the form approved for the purposes of subsection   ( 2) of that section.

Other amounts

  (3)   If:

  (a)   an amount arises as a result of conduct of an entity (such as payment of an amount or provision of a benefit); and

  (b)   the amount is an amount of a kind referred to in column 1 of an item in the following table;

the entity may notify the Commissioner of the amount on or before the day referred to in column 2 of that item.

  (4)   The notification must be in the * approved form.

Note:   The approved form may require information about other amounts, in addition to the amount to be notified: see paragraph   388 - 50(1)(c).

389 - 20   Effect on reporting requirements under Subdivision   16 - C

  (1)   An entity is not required to comply with a requirement of:

  (a)   section   16 - 150 (Commissioner must be notified of amounts); or

  (b)   section   16 - 153 (annual reports--other payments); or

  (c)   section   16 - 155 (annual payment summary); or

  (d)   section   16 - 160 (part - year payment summary); or

  (e)   section   16 - 165 (payment summaries for superannuation lump sums and payments for termination of employment); or

  (f)   section   16 - 175 in relation to compliance with any requirements under section   16 - 155, 16 - 160 or 16 - 165;

to give a notice, report or statement to the extent that it would relate to an amount that the entity has notified under section   389 - 5 or 389 - 15.

  (2)   However, paragraphs   ( 1)(b), (c) and (e) do not apply, in relation to requirement to give a notice, report or statement relating to payments made in a * financial year, unless, within 14 days after the end of the financial year, the entity makes a declaration to the Commissioner that:

  (a)   states that the entity has notified under section   389 - 5 or 389 - 15 all the information that the entity would otherwise be required to give under sections   16 - 153, 16 - 155 and 16 - 165 relating to payments made in the financial year; and

  (b)   is in the * approved form.

389 - 25   Grace periods for correcting false or misleading notifications

When notifications can be corrected

  (1)   An entity that has made a statement (a withholding statement ) under section   389 - 5 notifying an amount under item   1 or 2 of the table in subsection   389 - 5(1) (and no other item in that table) may correct the statement:

  (a)   within the period determined by the Commissioner under subsection   ( 2); or

  (b)   if paragraph   ( a) does not apply but the entity is covered by a determination under subsection   ( 5)--within the period specified in that determination.

Note:   Correcting the statement can protect the person from liability for a false or misleading withholding statement: see subsections   8K(2A), 8N(2) and 284 - 75(8).

Determinations for particular entities

  (2)   The Commissioner may determine the period within which the entity may correct a withholding statement.

  (3)   The Commissioner must give the entity written notice of the determination.

  (4)   The entity may object, in the manner set out in Part   IVC, against a decision of the Commissioner determining a period under subsection   ( 2) relating to the entity.

Determinations for classes of entities

  (5)   The Commissioner may, by legislative instrument, determine the period within which entities included in a class of entities specified in the determination may correct a withholding statement.

Division   2--Other amendments

Income Tax Assessment Act 1997

2   Subsection   995 - 1(1) (at the end of the definition of BAS provisions )

Add:

  ; and (d)   Division   389 in Schedule   1 to the Taxation Administration Act 1953 .

3   Subsection   995 - 1(1)

Insert:

"substantial employer" has the meaning given by subsection   389 - 5(6) in Schedule   1 to the Taxation Administration Act 1953 .

Taxation Administration Act 1953

4   After section   8AAZLGA

Insert:

8AAZLGB   Retaining refunds until notification under Division   389 or ascertainment of liability

Commissioner may retain an amount

  (1)   The Commissioner may retain an amount that he or she otherwise would have to refund to an entity under section   8AAZLF, if:

  (a)   the Commissioner reasonably believes that the entity has made a payment as a result of which the entity:

  (i)   is, or will be, required to notify the Commissioner under section   389 - 5 in Schedule   1; or

  (ii)   may notify the Commissioner under section   389 - 15 in that Schedule; and

  (b)   the entity has not notified the Commissioner of the amount under that section; and

  (c)   the notification affects or may affect the amount that the Commissioner refunds to the entity.

  (2)   The Commissioner must inform the entity that he or she has retained the amount under this section. He or she must do so within 14 days after the day on which the relevant RBA surplus or credit arose.

How long the amount may be retained

  (3)   The Commissioner may retain the amount until:

  (a)   the entity has given the Commissioner that notification (including notification of a nil amount); or

  (b)   if subparagraph   ( 1)(a)(i) applied--the Commissioner becomes reasonably satisfied that the entity is not required to give that notification; or

  (c)   the Commissioner becomes reasonably satisfied that the entity does not have a liability (a PAYGW liability ) to pay to the Commissioner an amount of a kind referred to in item   1 of the table in subsection   389 - 5(1) in Schedule   1; or

  (d)   the Commissioner ascertains (including as a result of making an estimate) the total amount of the entity's outstanding PAYGW liabilities;

whichever happens first.

Note:   Interest is payable under the Taxation (Interest on Overpayments and Early Payments) Act 1983 if the Commissioner is late in making the payment under subsection   ( 3).

Objecting to the decision to retain the amount

  (4)   The entity may object to a decision of the Commissioner to retain the amount under this section in the manner set out in Part   IVC, if the entity is dissatisfied with the decision.

Note:   For the start of the period for objecting to the decision, see paragraph   14ZW(1)(aae) and subsection   14ZW(4).

  (5)   Before the end of the 7 days after the start of the period during which, under section   14ZW, the entity may object to the decision, the Commissioner must notify the entity, in writing, that the entity may object to the decision.

  (6)   A failure to comply with subsection   ( 5) does not affect the validity of the decision.

5   After subsection   8K(2)

Insert:

  (2A)   Subsection   ( 1) or (1B) does not apply if:

  (a)   the statement (the original statement ) was made under section   389 - 5 in Schedule   1 notifying an amount under item   1 or 2 of the table in subsection   389 - 5(1) in that Schedule (and no other item in that table); and

  (b)   the original statement related to the financial year in which it was made; and

  (c)   the person who made the original statement makes a further statement to a taxation officer that corrects the original statement in each of the respects in which it is false or misleading in a material particular; and

  (d)   the further statement:

  (i)   is in the approved form; and

  (ii)   if subsection   389 - 25(1) in that Schedule provides for a period for correcting the original statement--is made within that period; and

  (iii)   without limiting subparagraph   ( ii), is made within 14 days after the end of the financial year in which the original statement was made.

Note:   A defendant bears an evidential burden in relation to the matters in subsection   ( 2A), see subsection   13.3(3) of the Criminal Code .

6   Section   8N

Before "A person", insert "(1)".

7   At the end of section   8N

Add:

  (2)   This section does not apply if:

  (a)   the statement (the original statement ) was made under section   389 - 5 in Schedule   1 notifying an amount under item   1 or 2 of the table in subsection   389 - 5(1) in that Schedule (and no other item in that table); and

  (b)   the original statement related to the financial year in which it was made; and

  (c)   the person who made the original statement makes a further statement to a taxation officer that corrects the original statement in each of the respects in which it is false or misleading in a material particular; and

  (d)   the further statement:

  (i)   is in the approved form; and

  (ii)   if subsection   389 - 25(1) in that Schedule provides for a period for correcting the original statement--is made within that period; and

  (iii)   without limiting subparagraph   ( ii), is made within 14 days after the end of the financial year in which the original statement was made.

Note:   A defendant bears an evidential burden in relation to the matters in subsection   ( 2), see subsection   13.3(3) of the Criminal Code .

8   After paragraph   14ZW(1)(aad)

Insert:

  (aae)   if the taxation objection is made under subsection   8AAZLGB(4) of this Act (retaining refunds until notification under Division   389 or ascertainment of liability)--the period:

  (i)   starting at the end of the 60 day period after the end of the day before which, under subsection   8AAZLGB(2), the Commissioner is required to inform the entity mentioned in section   8AAZLGB that the Commissioner has retained an amount under that section; and

  (ii)   ending on the day (if any) on which, under subsection   8AAZLGB(3), the Commissioner ceases to be entitled to retain the amount; or

9   At the end of section   16 - 150 in Schedule   1

Add:

Note:   This section does not apply to amounts that an employer notifies to the Commissioner under Division   389: see section   389 - 20.

10   At the end of subsection   16 - 153(1) in Schedule   1

Add:

Note:   A report under this subsection will not cover amounts that an employer notifies to the Commissioner under Division   389: see section   389 - 20.

11   At the end of subsection   16 - 153(2) in Schedule   1

Add:

Note:   A report under this subsection will not cover amounts that an employer notifies to the Commissioner under Division   389: see section   389 - 20.

12   At the end of subsection   16 - 155(2) in Schedule   1

Add:

Note:   A payment summary under this section will not cover amounts that an employer notifies to the Commissioner under Division   389: see section   389 - 20.

13   At the end of subsection   16 - 160(1) in Schedule   1

Add:

Note:   A payment summary under this section will not cover amounts that an employer notifies to the Commissioner under Division   389: see section   389 - 20.

14   Paragraph 16 - 160(1)(c) in Schedule   1

Omit "or" (last occurring).

15   Paragraph 16 - 160(1)(d) in Schedule   1

Repeal the paragraph.

16   Subsection   16 - 160(2) in Schedule   1

Repeal the subsection, substitute:

  (2)   The payer must comply with the request within 14 days after receiving it, unless:

  (a)   the recipient is an individual and has a * reportable fringe benefits amount, for the income year ending at the end of that * financial year, in respect of his or her employment (within the meaning of the Fringe Benefits Tax Assessment Act 1986 ) by the payer; or

  (b)   the payer has made * reportable employer superannuation contributions, in respect of the recipient's employment, during the financial year.

17   At the end of section   16 - 165 in Schedule   1

Add:

Note:   A payment summary under this section will not cover amounts that an employer notifies to the Commissioner under Division   389: see section   389 - 20.

18   Subsection   269 - 30(2) in Schedule   1 (cell at table item   1, column 3)

Repeal the cell, substitute:

19   At the end of section   284 - 75 in Schedule   1

Add:

Further exception to subsection   ( 1)

  (8)   You are not liable to an administrative penalty under subsection   ( 1) if:

  (a)   you made the statement (the original statement ) under section   389 - 5 notifying an amount under item   1 or 2 of the table in subsection   389 - 5(1) (and no other item in that table); and

  (b)   the original statement related to the * financial year in which you made it; and

  (c)   you make a further statement to a taxation officer that corrects the original statement in each of the respects in which it is false or misleading in a material particular; and

  (d)   the further statement:

  (i)   is in the * approved form; and

  (ii)   if subsection   389 - 25(1) in that Schedule provides for a period for correcting the original statement--is made within that period; and

  (iii)   without limiting subparagraph   ( ii), is made within 14 days after the end of the financial year in which the original statement was made.

20   At the end of subsection   286 - 75(1) in Schedule   1

Add:

Note:   You may not be liable to a penalty in relation to a failure to notify an amount referred to in item   1 or 2 of the table in section   389 - 5 during the period provided for by subitem   22(2) of Schedule   23 to the Budget Savings (Omnibus) Act 2016 .

Taxation (Interest on Overpayments and Early Payments) Act 1983

21   Section   12AF ( paragraph   ( b) of the definition of RBA interest day )

Repeal the paragraph, substitute:

  (b)   if, by the day applicable under paragraph   ( a), the person has not given the Commissioner a notification that:

  (i)   is required for the refund under section   8AAZLG or 8AAZLGB (as the case requires) of the Taxation Administration Act 1953 ; and

  (ii)   that is accurate so far as it relates to the refund;

    the day on which that notification is given to the Commissioner;

Division   3--Application

22   Application--required reporting

(1)   The amendments made by this Part apply in relation to an amount that an entity is required to notify to the Commissioner if the requirement to notify arises on or after the following day (the application day ):

  (a)   the day determined under item   24;

  (b)   if no such day is determined:

  (i)   if the entity was a substantial employer immediately before 1   July 2018--1   July 2018; or

  (ii)   otherwise--the first 1   July after which the entity first becomes a substantial employer after 1   July 2018.

(2)   Despite subitem   ( 1), the entity is not liable to a penalty under subsection   286 - 75(1) in Schedule   1 to the Taxation Administration Act 1953 in relation to a failure to notify the Commissioner under section   389 - 5 in that Schedule if:

  (a)   the failure relates to an amount referred to in item   1 or 2 of the table in section   389 - 5 in that Schedule; and

  (b)   the failure occurs during the 12 month period following the entity's application day; and

  (c)   the Commissioner has not, during that period but before that failure, given to the entity a written notice that:

  (i)   related to an earlier failure by the entity to notify the Commissioner under section   389 - 5 in that Schedule; and

  (ii)   advised the entity that a further failure to comply with that section may result in the entity being liable to an administrative penalty.

23   Application--voluntary reporting

The amendments made by this Part apply in relation to an amount that an entity may notify to the Commissioner if the entitlement to notify arises on or after the following day (the application day):

  (a)   the day determined under item   24;

  (b)   if no such day is determined--1   July 2018.

24   Determining the application day

The Commissioner may, by legislative instrument, determine a day that is later than 1   July 2018 to be the application day.

Part   2 -- Choice of fund

Superannuation Guarantee (Administration) Act 1992

25   Paragraph 32C(2B)(b)

Omit "gives the employer written notice", substitute "or the Commissioner gives the employer notice".

26   Paragraph 32C(2B)(c)

Omit "that the employee included in the written notice", substitute "included in the notice".

27   Subparagraph 32C(2B)(c)(i)

Repeal the subparagraph, substitute:

  (i)   within 21 days after the employer is given the notice; and

28   Subsection   32F(1)

Repeal the subsection, substitute:

  (1)   If an employee wants a fund to be a chosen fund for the employee, the employee must:

  (a)   give the employer written notice to that effect; or

  (b)   give the Commissioner a notice to that effect in the approved form.

Note:   A fund can only be a chosen fund if the employer is able to make contributions to the fund for the benefit of the employee (see subsection   32G(2)).

29   Subsection   32F(2)

Omit "gives the notice to the employer", substitute "or the Commissioner gives the notice to the employer,".

30   Paragraph 32F(3)(a)

After "the employer", insert "or the Commissioner".

31   Subsection   32FA(1)

Omit "if the employee does not provide, together with the notice under that section", substitute "and notified under paragraph   32F(1)(a) if the employee does not provide, together with the notice".

32   Paragraph 32H(1)(b)

Omit "the employee has not given", substitute "neither the employee nor the Commissioner has given".

33   After subsection   32H(1)

Insert:

  (1A)   The employee may give the employer a written notice, or give the Commissioner a notice in the approved form, stating that the old fund continues to be a chosen fund for the employee.

34   Before section   32X

Insert:

32W   Disclosing tax file numbers provided in standard choice forms

    A taxation officer (within the meaning of the Income Tax Assessment Act 1997 ) may disclose another person's tax file number (within the meaning of that Act) if:

  (a)   the other person provided the number to the Commissioner in a notice given to the Commissioner under paragraph   32F(1)(b); and

  (b)   the disclosure is to the other person's employer.

Taxation Administration Act 1953

35   Subsection   355 - 50(2) in Schedule   1 (at the end of the table)

Add:

36   Application

(1)   The amendments made by items   34 and 35 apply in relation to disclosures of information on or after 1   January 2017 (whether the information was acquired before, on or after that day).

(2)   The other amendments made to the Superannuation Guarantee (Administration) Act 1992 by this Part apply in relation to notices given on or after 1   January 2017.

Part   3 -- TFN declarations

Income Tax Assessment Act 1936

37   Subsection   202C(2)

After "the declaration", insert "must be made to the payer or the Commissioner, and".

38   After subsection   202CF(1)

Insert:

  (1A)   However, subsection   ( 1) does not apply if the recipient's tax file number has been disclosed to the payer under section   202CG before the end of that 14 day period.

39   At the end of Division   3 of Part   VA

Add:

202CG   Disclosing recipients' tax file numbers to payers

    A taxation officer (within the meaning of the Income Tax Assessment Act 1997 ) may disclose a recipient's tax file number to a payer of the recipient if the recipient provided the number to the Commissioner in a TFN declaration.

Superannuation Industry (Supervision) Act 1993

40   At the end of section   299C

Add:

  (4)   A disclosure of the employee's tax file number to the employer under section   202CG of the Income Tax Assessment Act 1936 is taken, for the purposes of this section, to be a quotation of the number by the employee to his or her employer in connection with the operation of Division   3 of Part   VA of that Act.

41   Application

(1)   The amendment made by item   37 applies in relation to declarations made on or after 1   January 2017.

(2)   The amendment made by item   38 applies in relation to relationships (of a kind referred to in subsection   202CF(1) of the Income Tax Assessment Act 1936 ) commenced on or after 1   January 2017.

(3)   The amendments made by items   39 and 40 apply in relation to disclosures of tax file numbers on or after 1   January 2017 (whether the information was acquired before, on or after that day).

Part   4 -- TFN validation

Income Tax Assessment Act 1936

42   After section   202CE

Insert:

202CEA   Validation notices

  (1)   The Commissioner may give a payer a notice under subsection   ( 2) if:

  (a)   the payer gives the Commissioner information that the payer believes to be:

  (i)   the full name, tax file number and date of birth of a person; or

  (ii)   the full name, tax file number, date of birth and address of a person; and

  (b)   the Commissioner is satisfied that:

  (i)   the person is a recipient of the payer; and

  (ii)   the recipient has made a TFN declaration in relation to the payer; and

  (c)   the Commissioner is satisfied, having regard to the information (if any) that the Commissioner has recorded for the tax file number given, that it is reasonable to give the notice.

  (2)   The notice must state whether or not the Commissioner is able to validate the information given.

  (3)   To avoid doubt, a notice that the Commissioner is not able to validate the information is not a notice under subsection   202CE(3).

  (4)   If a person states his or her tax file number in a TFN declaration in relation to the payer, the payer may use the tax file number in a manner connecting it with the person's identity for the purpose of asking the Commissioner to validate information about the person under this section.

43   Application

The amendment made by this Part applies in relation to information given to the Commissioner on or after 1   January 2017.