taxation (interest on overpayments) act 1986file/86-35a020.docx · web viewocpc-vic, word 2007,...

Version No. 020

Taxation (Interest on Overpayments) Act 1986

No. 35 of 1986

Version incorporating amendments as at14 November 2012

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purpose 12 Commencement 13 Definitions 14 Repealed 35 Secrecy provisions 4

PART 2—ENTITLEMENT TO INTEREST 5

6 Entitlement to interest 57 Amount of interest 68 Payment of interest in case of appeal 89 Small amounts of interest not to be paid 9

PART 3—MISCELLANEOUS 10

10 Commissioner may apply interest as credit 1011 Payments to be made out of Consolidated Fund 10

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ENDNOTES 11

1. General Information 11

2. Table of Amendments 12

3. Explanatory Details 14

1

Version No. 020

Taxation (Interest on Overpayments) Act 1986

No. 35 of 1986

Version incorporating amendments as at14 November 2012

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1 Purpose

The purpose of this Act is to make provision for the payment of interest in respect of certain overpayments of tax.

2 Commencement

This Act comes into operation on the twenty-eighth day after the day on which it receives the Royal Assent.

3 Definitions

(1) In this Act—

Commissioner means Commissioner of State Revenue under the Taxation Administration Act 1997;

decision to which this Act applies means—

(a) a decision of the Commissioner upon an objection; or

(b) a decision of the Tribunal; or

1

S. 3(1) def. of Commiss-ioner inserted by No. 40/1997 s. 138(Sch. 2 item 14.1(a)).

S. 3(1) def. of decision to which this Act applies amended by Nos 119/1994 s. 35, 40/1997 s. 138(Sch. 2 item 14.1(b) (i)(ii)).

(c) a decision of a court in relation to—

(i) an objection; or

(ii) a decision of the Tribunal; or

(d) a decision of the Commissioner upon a decision on an objection under Part III of the Valuation of Land Act 1960;

* * * * *

objection means an objection under section 24A of the Land Tax Act 1958;

person includes—

(a) a body politic; and

(b) a body corporate; and

(c) a partnership; and

(d) any other unincorporated association or body of persons;

* * * * *

2

S. 3(1) def. of Deputy Commiss-ioner repealed by No. 40/1997 s. 138(Sch. 2 item 14.1(c)).

S. 3(1) def. of objection amended by Nos 36/1997 s. 20(5)(a)(i), 40/1997 s. 138(Sch. 2 item 14.1(d)), 79/2000 s. 285(Sch. 1 item 7(a)), substituted by No. 36/2010 s. 20(1).

s. 3

S. 3(1) def. of relevant Commiss-ioner amended by No. 36/1997 s. 20(5)(a)(ii), repealed by No. 40/1997 s. 138(Sch. 2 item 14.1(c)).

s. 3

relevant tax means—

(a) amounts payable under the Business Franchise Acts;

* * * * *

* * * * *

(d) tax payable under the Land Tax Act 1958;

* * * * *

* * * * *

Tribunal means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998.

(2) A reference in this Act to a liability of a person to the State is a reference to a liability of the person to the State arising under, or by virtue of, an Act under which relevant tax is payable.

* * * * *

5 Secrecy provisions

(1) If a person employed for the purposes of or in connexion with the administration of a relevant Act acquires information with respect to the affairs of any other person disclosed or obtained under or for the purposes of this Act, the secrecy

3

S. 3(1) def. of relevant tax amended by Nos 36/1997 s. 20(5)(a)(iii), 40/1997 s. 138(Sch. 2 item 14.1(e)), 79/2000 s. 285(Sch. 1 item 7(b)).

S. 3(1) def. of Tribunal substituted by No. 47/1999 s. 24.

S. 4 repealed by No. 40/1997 s. 138(Sch. 2 item 14.2).

s. 5

provisions of the relevant Act apply to that person and to the disclosure of any such information as if the information were information acquired under the relevant Act or by reason of the person being so employed.

(2) In subsection (1)—

relevant Act means—

(a) the Business Franchise (Petroleum Products) Act 1979;

* * * * *

* * * * *

(d) the Land Tax Act 1958;

* * * * *

(f) the Stamps Act 1958;

secrecy provisions means the provisions of—

* * * * *

* * * * *

* * * * *

(d) section 4 of the Land Tax Act 1958;

* * * * *

(f) section 140A of the Stamps Act 1958.

_______________

4

S. 5(2) def. of relevant Act amended by Nos 36/1997 s. 20(5)(b)(i), 40/1997 s. 138(Sch. 2 item 14.3), 36/2010 s. 20(2).

S. 5(2) def. of secrecy provisions amended by Nos 36/1997 s. 20(5)(b)(ii), 40/1997 s. 138(Sch. 2 item 14.3), 36/2010 s. 20(3).

s. 5

PART 2—ENTITLEMENT TO INTEREST

6 Entitlement to interest

(1) Subject to section 8, where—

(a) an amount of relevant tax is paid by a person to the Commissioner (in this subsection referred to as the amount paid); and

(b) as a result of a decision to which this Act applies, the whole or a part of the amount paid is overpaid by the person and is refunded to the person or applied against any liability of the person to the State—

interest calculated in accordance with subsections (2) and (3) and section 7 is payable to the person in respect of—

(c) in a case where the whole of the amount paid is so refunded or applied—the amount paid; or

(d) in a case where a part of the amount paid is so refunded or applied—the part of the amount paid so refunded or applied.

(2) Where an amount of relevant tax has, whether by agreement or otherwise, been paid by a person to the Commissioner in instalments, each instalment shall, for the purposes of section 7(1), be treated as a separate amount of relevant tax paid by the person to the Commissioner.

s. 6

S. 6(1)(a) amended by No. 40/1997 s. 138(Sch. 2 item 14.4).

S. 6(2) amended by No. 40/1997 s. 138(Sch. 2 item 14.4).

Part 1—Preliminary

Taxation (Interest on Overpayments) Act 1986No. 35 of 1986

5

(3) Where—

(a) an amount of relevant tax has, whether by agreement or otherwise, been paid by a person to the Commissioner in instalments; and

(b) as a result of a decision to which this Act applies, a part only of the amount of relevant tax is overpaid by the person and is refunded to the person or applied against any liability of the person to the State—

the amount so refunded or applied shall, for the purposes of section 7(1), be attributed to the instalments in reverse order to the order in which the instalments were paid to the Commissioner.

(4) Where the Commissioner applies an amount that has been paid to the Commissioner by a person against the liability of another person to pay an amount of relevant tax, the other person shall, for the purposes of this Act, be deemed to have paid to the Commissioner, to the extent of the amount so applied and on the day on which the amount is so applied, the amount of relevant tax.

7 Amount of interest

(1) Interest payable to a person by virtue of section 6 in respect of an amount of relevant tax, or the part of an amount of relevant tax, refunded to the person, or applied against any liability of the person to the State, as a result of a decision to which this Act applies shall be calculated—

(a) in respect of the period that commenced on whichever is the latest of the following days, namely—

S. 6(3) amended by No. 40/1997 s. 138(Sch. 2 item 14.5(b)).

S. 6(3)(a) amended by No. 40/1997 s. 138(Sch. 2 item 14.5(a)).

S. 6(4) amended by No. 40/1997 s. 138(Sch. 2 item 14.6 (a)(b)).

s. 7Part 1—Preliminary


6

(i) the day on which notice of the assessment, determination or decision, being the assessment, determination or decision in relation to which the decision to which this Act applies was made, was issued to the person by the Commissioner; or

(ii) the day on which the amount of relevant tax was paid to the Commissioner; or

(iii) the date of commencement of this section—

and ended on the day on which the amount of the relevant tax or the part of the amount of relevant tax, as the case may be, was so refunded or applied; and

(b) at the interest rate from time to time applying under this section.

(2) The interest rate is—

(a) unless an order is in force under paragraph (b), the Bank Accepted Bills rate; or

(b) the rate specified for the time being by order of the Minister published in the Government Gazette.

(3) The Bank Accepted Bills rate in respect of any day is the average of the daily yields for 90 day Bank Accepted Bills published by the Reserve

S. 7(1)(a)(i) amended by No. 40/1997 s. 138(Sch. 2 item 14.7).

S. 7(1)(a)(ii) amended by No. 40/1997 s. 138(Sch. 2 item 14.7).

s. 7

S. 7(1)(b) substituted by No. 47/1999 s. 25(1).

S. 7(2) substituted by No. 47/1999 s. 25(2).

S. 7(2)(a) amended by No. 36/2005 s. 39(1).

S. 7(3) substituted by Nos 47/1999 s. 25(2), 36/2005 s. 39(2).

Part 1—Preliminary


7

Bank of Australia for the month of May in the financial year preceding the financial year in which the day occurs.

(3A) The Bank Accepted Bills rate must be rounded to the second decimal place (rounding 0005 upwards).

(4) Where an amount of interest calculated in accordance with subsection (1) is not a multiple of 1 cent, the amount of the interest shall be—

(a) if the amount of the interest is a multiple of 05 cent—increased by 05 cent; or

(b) in any other case—increased or decreased, as the case requires, to the nearest multiple of 1 cent.

8 Payment of interest in case of appeal

(1) If an appeal lies from a decision to which this Act applies, being a decision of a court or the Tribunal, interest payable to a person by virtue of section 6 as a result of that decision is not payable until—

(a) if an appeal against the decision is not lodged before the expiration of the period during which such an appeal may be lodged without leave—the expiration of that period; or

(b) if such an appeal is lodged—the appeal is withdrawn, dismissed or struck out; or

(c) if special leave of the High Court of Australia is given for an appeal against the decision—the expiration of the period within which an appeal may be lodged or, if an

S. 7(3A) inserted by No. 47/1999 s. 25(2), amended by No. 36/2005 s. 39(3).



8

appeal is lodged, the appeal is withdrawn, dismissed or struck out.

(2) Interest is not payable to a person by virtue of section 6 as a result of a decision to which this Act applies, being a decision of a court or the Tribunal, if, as a result of an appeal against the decision, the decision does not have effect.

9 Small amounts of interest not to be paid

Where the amount of interest that would, but for this section, be payable under this Act to a person in respect of an amount of relevant tax, or the part of an amount of relevant tax, refunded to the person, or applied against any liability of the person to the State as a result of a decision to which this Act applies is less than 50 cents, interest is not payable under this Act in respect of the amount of relevant tax or the part of the amount of relevant tax, as the case may be.

_______________



9

PART 3—MISCELLANEOUS

10 Commissioner may apply interest as credit

The Commissioner may apply an amount of interest payable under this Act to a person in total or partial discharge of a liability of the person to the State.

11 Payments to be made out of Consolidated Fund

Payments of interest under this Act shall be made out of the Consolidated Fund, which is hereby to the necessary extent appropriated accordingly.

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S. 10 amended by No. 40/1997 s. 138(Sch. 2 item 14.8).



10

ENDNOTES

1. General InformationMinister's second reading speech—

Legislative Assembly: 10 April 1986

Legislative Council: 6 May 1986

The long title for the Bill for this Act was "A Bill to make provision for the payment of interest in respect of certain overpayments of tax to amend certain Acts and for other purposes.".

The Taxation (Interest on Overpayments) Act 1986 was assented to on 20 May 1986 and came into operation on 17 June 1986: section 2.

EndnotesPart 1—Preliminary


11

2. Table of AmendmentsThis Version incorporates amendments made to the Taxation (Interest on Overpayments) Act 1986 by Acts and subordinate instruments

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

State Taxation (Amendment) Act 1994, No. 119/1994Assent Date: 20.12.94Commencement Date: S. 35 on 20.12.94: s. 2(1)Current State: This information relates only to the provision/s

amending the Taxation (Interest on Overpayments) Act 1986

Gas Industry (Amendment) Act 1997, No. 36/1997Assent Date: 3.6.97Commencement Date: S. 20(5) on 1.7.97: Special Gazette (No. 58) 3.6.97

p. 2Current State: This information relates only to the provision/s


Taxation Administration Act 1997, No. 40/1997Assent Date: 3.6.97Commencement Date: Pt 1 (ss 1–6) on 3.6.97: s. 2(1); rest of Act on 1.7.97:

Government Gazette 12.6.97 p. 1330Current State: All of Act in operation

State Taxation Acts (Amendment) Act 1999, No. 47/1999Assent Date: 8.6.99Commencement Date: S. 24 on 8.6.99: s. 2(1); s. 25 on 1.7.99: s. 2(3)Current State: This information relates only to the provision/s


Duties Act 2000, No. 79/2000Assent Date: 28.11.00Commencement Date: S. 285(Sch. 1 item 7) on 1.7.01: s. 2Current State: This information relates only to the provision/s


State Taxation Acts (General Amendment) Act 2005, No. 36/2005Assent Date: 28.6.05Commencement Date: S. 39 on 29.6.05: s. 2(1)Current State: This information relates only to the provision/s




12

State Taxation Acts Amendment Act 2010, No. 36/2010Assent Date: 15.6.10Commencement Date: S. 20 on 16.6.10: s. 2(1)Current State: This information relates only to the provision/s


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13

3. Explanatory DetailsNo entries at date of publication.



14

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