Division 142 – compare between Exposure Draft and Introduced draft

Division 142—Excess GST

Table of Subdivisions

142A Excess GST unrelated to adjustments

142B Excess GST related to cancelled supplies

142‑C Passed‑on GST

1421  What this Division is about

Amounts of excessExcess GST willis not to be refunded if this would give an entity a windfall gain.

Note:          Refunding excess GST to a supplier will give it a windfall gain if it has already passed on the excess GST in the price of the supply (and not reimbursed the recipient).

Subdivision 142A—Excess GST unrelated to adjustments

1425  When this Subdivision applies

(1)  This Subdivision applies in relation to the amount inif, after disregarding any amounts covered by subsection (2) if), your *assessed net amount for a tax period takes into account an amount of GST exceeding that which is payable.

Note:          This Subdivision can applyapplies whether or not you have paid, or been refunded, the assessed net amount.

            (2)  The amount (the extra GST) is the excess GST less any of it that:

                     (a)  is covered by a *decreasing adjustment attributable to a later tax period; or

                     (b)  is correctly attributable to a different tax period.

Example:    Sunny Co mistakenly reports a negative net amount of $4,000 made up of GST of $10,000 less input tax credits of $14,000. In fact, Sunny Co’s GST should have been $8,000 making its negative net amount $6,000. Sunny Co has extraexcess GST of $2,000.

            (2)  Disregard the following amounts:

                     (a)  an amount of GST that was correctly payable and attributable to the tax period, but which later becomes the subject of a *decreasing adjustment;

                     (b)  an amount of GST that is payable, but is correctly attributable to a different tax period.

14210  Refunding extrathe excess GST

(1)  For the purposes of each *taxation law, so much of the extra GST excess from subsection 142‑5(1) (the excess GST) as you have *passed on to another entity is taken to have always been:

(a)  payable; and

(b)  on a *taxable supply;

until you reimburse the other entity for the passedon GST.

Note 1:       If you reimburse the passedon GST so that this subsectionsection ceases to apply, you may there will be an adjustment event under paragraph 19‑10(1)(b) or (c). You will have a decreasing adjustment (see section 1955) and the other entity may have an increasing adjustment (see section 1980).

Note 2:       The rest of the extraexcess GST will be refunded as described in section 15575 in Schedule 1 to the Taxation Administration Act 1953.

              (2)          Subsection (1)Note 3:       While this section applies, paragraph 11‑5(b) (about taxable supplies) is satisfied for the corresponding acquisition by the other entity.

142‑15  When section 142‑10 does not apply for the purposes of how subsection 1115(2) (about creditable purpose) applies

Commissioner satisfied is inappropriate for that section to you.apply

            (3)  Subsection (1) does not apply        (1)      Treat section 142‑10 as never having applied to the extent that the Commissioner, on request, is satisfied that a refund of the extra GST:

                     (a)  its application would flow to be inconsistent with the entityprinciple that has effectively borne the cost of the extraexcess GST; and

             (b)  is not to be refunded if this would not give an entity a windfall gain.

              (4)          Subsection (1)Note:           Refusing to make the requested decision is a reviewable GST decision (see Subdivision 110‑F in Schedule 1 to the Taxation Administration Act 1953).

            (2)  A request for a decision under subsection (1) must be made in the *approved form.

If there never was a supply

            (3)  Treat section 142‑10 as never having applied to the extent that:

                     (a)  you treated the excess GST as payable on a supply, but in fact there never was a supply; and

                     (b)  you reimburse the other entity for the *passed‑on GST.

Note:          If you reimburse the passed‑on GST, you will be refunded an equivalent amount as described in section 155‑75 in Schedule 1 to the Taxation Administration Act 1953.

So far as it relates to your creditable acquisitions

            (4)  Section 142‑10 does not apply for the purposes of applying subsection 11‑15(2) (about creditable purpose) to you.

If the recipient knows you have not paid the excess GST

            (5)  Section 142‑10 does not apply for the purposes of applying a *taxation law to the other entity if, and while, that other entity knows, or could reasonably be expected to have known, that you have not paid the extraexcess GST to the Commissioner.

Note:          Subsection (1)Section 142‑10 still applies for the purposes of applying taxation laws to you.

14215  Working out if the extra GST has been passed on

                   For the purposes of section 14210:

                     (a)  some or all of the extra GST may pass on to the other entity even if:

                             (i)  a *tax invoice is not issued to or by that other entity; or

                            (ii)  a tax invoice issued to or by that other entity relates to that extra GST, but does not contain enough information to enable that extra GST to be clearly ascertained; and

                     (b)  if:

                             (i)  a tax invoice is issued to or by the other entity; and

                            (ii)  it contains enough information to enable some or all of the extra GST to be clearly ascertained;

                           the tax invoice is prima facie evidence of that part of the extra GST having passed on to that other entity.

Subdivision 142B—Excess GST related to cancelled supplies

14220  Refunding excess GST relating to cancelled supplies

(1)  This section applies If:

(a)  your *assessed net amount for a tax period takes into account an amount of GST on a supply; and

(b)  you have a *decreasing adjustment attributable to a later tax period as a result of the cancellation of the supply;.

the       (2)  Reduce:

                     (a)  your *decreasing adjustment is reduced ; and

                     (b)  if the *recipient of the supply has a corresponding *increasing adjustment—the recipient’s increasing adjustment;

to the extent that you have *passed on that GST to the *recipient of the supply, but not reimbursed the recipient for the passedon GST.

(2)  Subsection (1)3)    This section has effect despite sectionsections 1955 (which is about decreasing adjustments for supplies) and 19‑80 (about increasing adjustments for acquisitions).

Subdivision 142‑C—Passed‑on GST

142‑25  Working out if GST has been passed on

            (1)  Some or all of an amount of GST may have been passed on to another entity even if:

                     (a)  a *tax invoice is not issued to or by that other entity; or

                     (b)  a tax invoice issued to or by that other entity relates to that GST, but does not contain enough information to enable that GST to be clearly ascertained.

            (2)  If:

                     (a)  a *tax invoice is issued to or by another entity; and

                     (b)  it contains enough information to enable some or all of an amount of GST to be clearly ascertained;

the tax invoice is prima facie evidence of that part of that GST having *passed on to that other entity.

11  Section 195‑1

Insert:

passed on has a meaning affected by section 142‑25.

 

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