Commonwealth Consolidated Acts

TAX LAWS AMENDMENT (REPEAL OF INOPERATIVE PROVISIONS) ACT 2006 - SCHEDULE 6

Part   1 -- Application provisions

1   Application of Schedule   1 and 2 amendments

Except as mentioned in items   2 and 3, the repeals and amendments made by Schedules   1 and 2 apply:

  (a)   so far as they affect assessments--to assessments for the 2006 - 07 income year and all later income years; and

  (b)   otherwise--to acts done or omitted to be done, or states of affairs existing, after the commencement of the repeals and amendments.

2   Application of Schedule   2 withholding tax amendments

The amendments made by items   337, 343 and 344 of Schedule   2 apply to income derived in the 2006 - 07 income year and later income years.

3   Application of TFN withholding tax amendments

(1)   The amendment made by item   949 of Schedule   2 applies to payments made on or after the day on which this Act receives the Royal Assent.

(2)   The repeal of Subdivision C of Division   3B of Part   VI of the Income Tax Assessment Act 1936 by item   163 of Schedule   1 to this Act, and the insertion of section   14 - 55 in Schedule   1 to the Taxation Administration Act 1953 by item   955 of Schedule   2 to this Act, apply to the 2006 - 07 income year and later income years.

(3)   The insertion of sections   14 - 50, 14 - 60, 14 - 65, 14 - 75 and 14 - 85 in Schedule   1 to the Taxation Administration Act 1953 by item   955 of Schedule   2 to this Act applies to tax payable in accordance with former section   221YHZR of the Income Tax Assessment Act 1936 as if:

  (a)   the tax were TFN withholding tax (payable under section   14 - 55 in that Schedule); and

  (b)   section   14 - 55 in that Schedule applied to the income year in respect of which the tax is payable.

4   Application of Schedule   3 and 4 amendments

The repeals and amendments made by Schedules   3 and 4 apply:

  (a)   so far as they affect assessments--to assessments for the 2007 - 08 income year and all later income years; and

  (b)   otherwise--to acts done or omitted to be done, or states of affairs existing, after the commencement of the amendments.

5   Application of Schedule   5 amendments

The repeals and amendments made by Schedule   5 apply to acts done or omitted to be done, or states of affairs existing, after the commencement of the amendments.

Part   2 -- General saving provisions

6   Object

The object of this Part is to ensure that, despite the repeals and amendments made by this Act, the full legal and administrative consequences of:

  (a)   any act done or omitted to be done; or

  (b)   any state of affairs existing; or

  (c)   any period ending;

before such a repeal or amendment applies, can continue to arise and be carried out, directly or indirectly through an indefinite number of steps, even if some or all of those steps are taken after the repeal or amendment applies.

7   Making and amending assessments, and doing other things, in relation to past matters

Even though an Act is repealed or amended by this Act, the repeal or amendment is disregarded for the purpose of doing any of the following under any Act or legislative instrument (within the meaning of the Legislative Instruments Act 2003 ):

  (a)   making or amending an assessment (including under a provision that is itself repealed or amended);

  (b)   exercising any right or power, performing any obligation or duty or doing any other thing (including under a provision that is itself repealed or amended);

in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.

Example 1:   On 31   July 1999, Greg Ltd lodged its annual return under former section   160ARE of the Income Tax Assessment Act 1936 . The return stated that the company had a credit on its franking account and that no franking deficit tax was payable for the 1998 - 99 franking year. Under former section   160ARH of that Act, the Commissioner was taken to have made an assessment consistent with the return.

  Following an audit undertaken after the repeal of Part   IIIAA of that Act, the Commissioner concludes that Greg Ltd fraudulently overfranked dividends it paid during the 1998 - 99 franking year, and had a franking account deficit for that franking year. As a result, the Commissioner considers that franking deficit tax and a penalty by way of additional tax are payable.

  The Commissioner can amend the assessment under former section   160ARN of that Act, because item   7 of this Schedule disregards the repeal of that section for the purposes of making an assessment in relation to the 1998 - 99 franking year. Item   7 will also disregard the repeal of Division   11 of former Part   IIIAA to the extent necessary for the Commissioner to assess Greg Ltd's liability to a penalty by way of additional tax.

  Despite the repeal of sections   160ARU and 160ARV, item   9 will ensure that the general interest charge will accrue on the unpaid franking deficit tax and penalty until they are paid.

  Item   7 will also preserve Greg Ltd's right, under former section   160ART of that Act, to object against the Commissioner's amended assessment (including the penalty), since the objection is the exercise of a right in relation to a franking year that ended before the repeal of Part   IIIAA.

Example 2:   During the 1997 - 98 income year, Duffy Property Ltd withheld amounts from its employees' wages as required by former Divisions   1AAA and 2 of Part   VI of the Income Tax Assessment Act 1936 . The company failed to notify the Commissioner of those amounts, and failed to remit them to the Commissioner.

  Following an audit undertaken after the repeal of those Divisions, the Commissioner discovers that the withheld amounts have not been remitted. The company's records are incomplete and the Commissioner is unable to completely ascertain the extent of its liability for the withheld amounts. Under section   222AGA of that Act, the Commissioner makes an estimate of the liability.

  Item   7 will disregard the repeal of section   220AAZA of that Act (which empowered the Commissioner to recover the amount of the estimate). Even though the estimate is made after the repeal, it relates to amounts withheld before the repeal.

8   Saving of provisions about effect of assessments

If a provision or part of a provision that is repealed or amended by this Act deals with the effect of an assessment, the repeal or amendment is disregarded in relation to assessments made, before or after the repeal or amendment applies, in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.

9   Saving of provisions about general interest charge, failure to notify penalty or late reconciliation statement penalty

If:

  (a)   a provision or part of a provision that is repealed or amended by this Act provides for the payment of:

  (i)   general interest charge, failure to notify penalty or late reconciliation statement penalty (all within the meaning of the Income Tax Assessment Act 1936 ); or

  (ii)   interest under the Taxation (Interest on Overpayments and Early Payments) Act 1983 ; and

  (b)   in a particular case, the period in respect of which the charge, penalty or interest is payable (whether under the provision or under the Taxation Administration Act 1953 ) has not begun, or has begun but not ended, when the provision is repealed or amended;

then, despite the repeal or amendment, the provision or part continues to apply in the particular case until the end of the period.

10   Repeals disregarded for the purposes of dependent provisions

If the operation of a provision (the subject provision ) of any Act or legislative instrument (within the meaning of the Legislative Instruments Act 2003 ) made under any Act depends to any extent on an Act, or a provision of an Act, that is repealed by this Act, the repeal is disregarded so far as it affects the operation of the subject provision.

11   Schedule does not limit operation of section   8 of the Acts Interpretation Act 1901

This Schedule does not limit the operation of section   8 of the Acts Interpretation Act 1901 .

Part   3 -- Other saving provisions and transitional provisions

12   Continued operation of repealed section   215 of the Income Tax Assessment Act 1936

If, just before the repeal of section   215 of the Income Tax Assessment Act 1936 by Schedule   1 to this Act, that section applied to:

  (a)   a liquidator of a company that was being wound up; or

  (b)   a receiver for debenture holders who had taken possession of assets of a company; or

  (c)   an agent for a non - resident who had been required by the agent's principal to wind up the business or realise the assets of the principal;

the section continues so to apply in spite of the repeal.

13   Continued operation of repealed sections   216 and 220 of the Income Tax Assessment Act 1936

If, just before the repeal of section   216 or 220 of the Income Tax Assessment Act 1936 by Schedule   1 to this Act, that section applied to a deceased taxpayer, the section continues so to apply in spite of the repeal.

14   Resolutions to which section   221B of the Income Tax Assessment Act 1936 applies

If a resolution to which section   221B of the Income Tax Assessment Act 1936 applied was in force just before the repeal of that section by Schedule   1 to this Act, section   446 - 5 in Schedule   1 to the Taxation Administration Act 1953 (as inserted by item   970 of Schedule   2 to this Act) applies to the resolution after the repeal.

15   Extended operation of subsection 265 - 45(2) in Schedule   1 to the Taxation Administration Act 1953

In addition to the operation that it has apart from this item, subsection 265 - 45(2) in Schedule   1 to the Taxation Administration Act 1953 also applies to an amount of a liability (within the meaning of that subsection) that a person pays after the repeal of section   259 of the Income Tax Assessment Act 1936 by item   166 of Schedule   1 to this Act, if the liability arose before 1   July 2000.

Notes to the Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006

Note 1

The Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006 as shown in this compilation comprises Act No.   101, 2006 amended as indicated in the Tables below.

For all relevant information pertaining to application, saving or transitional provisions see Table A.

Table of Acts

(a)   Subsection 2(1) (item   11) of the Tax Laws Amendment (2009 Measures No.   2) Act 2009 provides as follows:

  (1)   Each provision of this Act 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.

(b)   Subsection 2(1) (item   25) of the Statute Law Revision Act 2010 provides as follows:

  (1)   Each provision of this Act 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.

(c)   Subsection 2(1) (item   16) of the Tax Laws Amendment (2011 Measures No.   2) Act 2011 provides as follows:

  (1)   Each provision of this Act 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.

Table of Amendments

Table A

Application, saving or transitional provisions

Tax Laws Amendment (2011 Measures No.   2) Act 2011 (No.   41 , 2011 )

Schedule   5

56   Effect of omission

To avoid doubt, item   15 of Schedule   3 to the Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006 is taken never to have repealed item   49A of the table in section   30 - 105 of the Income Tax Assessment Act 1997.