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TAXATION ADMINISTRATION ACT 1953 - SECT 8W

Court may order payment of amount in addition to penalty

  (1)   Where:

  (a)   a person (in this subsection referred to as the convicted person ) is convicted before a court of:

  (i)   an offence against subsection   8K(1) or (1B) or section   8N, or against Division   136 or 137 of the Criminal Code in relation to a taxation law, in relation to a statement made to a taxation officer; or

  (ii)   an offence against subsection   8L(1) or (1A) or section   8Q in relation to the keeping of any accounts, accounting records or other records (in paragraph   (b) referred to as the relevant accounts ) or the making of a record; and

  (b)   the court is satisfied that the proper amount of a tax liability of the convicted person or another person exceeds the amount that would have been the amount of the tax liability if it were assessed or determined, as the case requires, on the basis that the statement were not false or misleading, on the basis of the relevant accounts as they were kept or on the basis that the record were correct, as the case may be;

the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding:

  (c)   in a case where the offence is an offence to which subsection   8R(2) applies or that is against Division   136 or 137 of the Criminal Code in relation to a taxation law--3 times the amount of the excess; or

  (d)   in any other case--double the amount of the excess.

  (1C)   If the conditions in section   705 - 315 of the Income Tax Assessment Act 1997 are satisfied, then for the purposes of any application of subsection   (1) of this section in relation to the errors mentioned in that section that were made in a statement that was made before the Commissioner became aware of the errors, the references in paragraphs   (1)(c) and (d) of this section to the excess are taken instead to be references to the amount worked out using the formula:

Start formula Tax on capital gain times open bracket 1 minus start fraction Adjusted reset cost base asset setting amount over Original reset cost base asset setting amount end fraction close bracket end formula

where:

"adjusted reset cost base asset setting amount" means:

  (a)   the tax cost setting amount, worked out under Division   705 of the Income Tax Assessment Act 1997 , for all assets of a kind referred to in section   705 - 35 of that Act as reset cost base assets that the head company of the relevant group held continuously from the time when the subsidiary member referred to in subsection   705 - 315(2) of that Act joined the group until the start of the head company's income year in which the Commissioner became aware of the errors mentioned in section   705 - 315 of that Act;

less:

  (b)   the head company's deductions under Division   40 (except under Subdivision   40 - F, 40 - G, 40 - H or 40 - I) or Subdivision   328 - D of the Income Tax Assessment Act 1997 for those assets for all income years before the earliest income year for which the Commissioner could amend the head company's assessment to correct any of the errors.

"original reset cost base asset setting amount" means the tax cost setting amount, worked out under Division   705 of the Income Tax Assessment Act 1997 , for all reset cost base assets that the subsidiary member held at the time it joined the group, other than assets that the head company no longer held at the start of the earliest income year for which the Commissioner could amend the head company's assessment to correct any of the errors.

"tax on capital gain" means the product of:

  (a)   the capital gain (within the meaning of the Income Tax Assessment Act 1997 ) that the head company makes as a result of CGT event L6 happening as mentioned in section   104 - 525 of that Act; and

  (b)   the corporate tax rate (within the meaning of that Act) in respect of taxable income for the income year in which that CGT event happens.

  (2)   Where:

  (a)   a person (in this subsection referred to as the convicted person ) is convicted before a court of an offence against section   8T or 8U in relation to an act or omission; and

  (b)   the court is satisfied that the purpose of, or one of the purposes of, the act or omission was to facilitate the avoidance of an amount of a tax liability of the convicted person or another person;

the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding:

  (c)   in a case where the offence is an offence to which subsection   8V(2) applies--3 times that amount; or

  (d)   in any other case--double that amount.

  (2A)   If:

  (a)   a person (the convicted person ) is convicted before a court of:

  (i)   an offence against subsection   8K(1) or (1B) or section   8N, or against Division   136 or 137 of the Criminal Code in relation to a taxation law, in relation to a statement made to a taxation officer; or

  (ii)   an offence against subsection   8L(1) or (1A) or section   8Q in relation to the keeping of any records; and

  (b)   the offence relates to the Product Grants and Benefits Administration Act 2000 ; and

  (c)   the court is satisfied that the amount that would have been the amount of a product grant or benefit payable to the convicted person or another person, determined on the basis that:

  (i)   the statement were not false or misleading; or

  (ii)   on the basis of those records as they were kept;

    as the case may be, exceeds the proper amount of the product grant or benefit payable to the convicted person or the other person;

the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding:

  (d)   in a case where the offence is an offence to which subsection   8R(2) applies, or that is against Division   136 or 137 of the Criminal Code in relation to a taxation law--3 times the amount of the excess; or

  (e)   in any other case--double the amount of the excess.

  (3)   A reference in this section to a conviction of a person for an offence includes a reference to the making of an order under section   19B of the Crimes Act 1914 in relation to the person in respect of the offence.

  (4)   In this section:

"CGT event" has the same meaning as in the Income Tax Assessment Act 1997 .

"head company" has the same meaning as in the Income Tax Assessment Act 1997 .

"product grant or benefit" means a grant or benefit payable under the Product Grants and Benefits Administration Act 2000 .

"subsidiary member" has the same meaning as in the Income Tax Assessment Act 1997 .

"tax cost setting amount" has the same meaning as in the Income Tax Assessment Act 1997 .


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