Taxation Administration Act 1953

s 284-80 — Shortfall amounts

(1) You have a shortfall amount if an item in this table applies to you. That amount is the amount by which the relevant liability, or the payment or credit, is less than or more than it would otherwise have been. Shortfall amounts Item You have a shortfall amount in this situation: 1 A * tax ‑ related liability of yours for an accounting period, or for a * taxable importation, or under the Superannuation (Unclaimed Money and Lost Members) Act 1999 , worked out on the basis of the statement is less than it would be if the statement were not false or misleading 2 An amount that the Commissioner must pay or credit to you under a * taxation law (other than the * Excise Acts) for an accounting period, or under a tourist refund scheme under Division 168 of the * GST Act or Division 25 of the A New Tax System (Wine Equalisation Tax) Act 1999 , worked out on the basis of the statement is more than it would be if the statement were not false or misleading 3 A * tax ‑ related liability of yours for an accounting period worked out on the basis of the statement is less than it would be if the statement did not treat an * income tax law, the * Minimum Tax law or the * petroleum resource rent tax law as applying in a way that was not * reasonably arguable 4 An amount that the Commissioner must pay or credit to you under an * income tax law, the * Minimum Tax law or the * petroleum resource rent tax law for an accounting period worked out on the basis of the statement is more than it would be if the statement did not treat an income tax law or the petroleum resource rent tax law as applying in a way that was not * reasonably arguable 5 You are liable to pay to the Commissioner an amount of * excess exploration credit tax (2) However, if: (a) your shortfall amount arises in the situation covered by both item 1 in the table and item 1, 2 or 3 in the table in subsection 284 ‑ 90(1); and (b) the statement is false or misleading because of errors mentioned in section 705 ‑ 315 of the Income Tax Assessment Act 1997 that were made in it and it was made before the Commissioner became aware of the errors, your shortfall amount is instead the amount worked out using the 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 income year in which the Commissioner became aware 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 that the * head company makes as a result of * CGT event L6 happening as mentioned in section 104 ‑ 525 of the Income Tax Assessment Act 1997 ; and (b) the * corporate tax rate in respect of taxable income for the income year in which that CGT event happens.

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Amended by No 16 of 2003, effective sch 4 (items 8 ‑ 10), sch 6 (items 11, 12), sch 14 (items 8 ‑ 12), sch 23 (item 14), sch 24 (items 1 ‑ 19): 24 Oct 2002 (s 2(1) items 3, 4, 9, 13, 14) sch 28 (items 14 ‑ 18, 19(3)): 29 June 2002 (s 2(1) items 17, 19) | Amended by No 107 of 2003, effective sch 2 (items 15 ‑ 26, 40), sch 7 (items 19 ‑ 22): Royal Assent | Amended by No 75 of 2005, effective 29 June 2005 | Amended by No 151 of 2008, effective sch 1 (items 23 ‑ 26): 18 Dec 2008 ( see F2008L04636) | Amended by No 56 of 2010, effective s 4(2), sch 3 (items 9, 10(1), (5)), sch 5 (items 191 ‑ 193), sch 6 (items 12 ‑ 14, 27 ‑ 36, 44 ‑ 53, 110, 111, 116, 159, 160): 3 June 2010 (s 2(1) items 1, 7, 11, 15, 20, 23) sch 1 (item 8): 17 Dec 2010 (s 2(1) item 4) sch 2 (items 3, 4), sch 6 (items 58 ‑ 97, 101 ‑ 105): 4 June 2010 (s 2(1) items 6, 16, 17) | Amended by No 41 of 2011, effective sch 5 (items 10 ‑ 14, 21 ‑ 23): 28 June 2011 sch 5 (item 24): 1 July 2011 ( see s 2(1)) sch 5 (items 34, 35, 146, 147, 168 ‑ 172, 401 ‑ 411, 421, 422): Royal Assent | Amended by No 14 of 2012, effective sch 1, sch 2 (items 1 ‑ 9): 1 July 2012 (s 2(1) items 2, 3) sch 2 (items 17 ‑ 28): never commenced (s 2(1) item 4) | Amended by No 88 of 2013, effective sch 5 (items 22 ‑ 27): 1 July 2013 (s 2(1) item 10) sch 6 (items 44 ‑ 48, 66): 29 June 2013 (s 2(1) item 14) sch 7 (items 167 ‑ 183): 1 July 2012 (s 2(1) item 11) sch 7 (item 225): 28 June 2013 (s 2(1) item 23) | Amended by No 96 of 2014, effective sch 1 (items 54 ‑ 108, 122 ‑ 124), sch 2 (items 41 ‑ 43): 30 Sept 2014 (s 2(1) item 2, F2014L01256) | Amended by No 21 of 2015, effective sch 1 (items 18 ‑ 49), sch 5, sch 7 (items 33 ‑ 43): 20 Mar 2015 (s 2(1) items 2, 6, 15) sch 2 (items 39 ‑ 46): 1 May 2015 (s 2(1) item 3) sch 4 (items 8, 9): 1 July 2015 (s 2(1) item 5) sch 6 (items 26 ‑ 37, 73): 19 Mar 2015 (s 2(1) item 11, 13) sch 6 (items 60 ‑ 72, 74 ‑ 79): never commenced (s 2(1) items 12, 14) | Amended by No 134 of 2024, effective sch 1 (items 32 ‑ 64, 68, 69): 11 Dec 2024 (s 2(1) item 1)

s 284-85 — Amount of penalty

(1) Work out the * base penalty amount under section 284 ‑ 90. If the base penalty amount is not increased under section 284 ‑ 220 or reduced under section 284 ‑ 225, this is the amount of the penalty. (2) Otherwise, use this formula: where: BPA is the * base penalty amount. increase % is the percentage increase (if any) under section 284 ‑ 220. reduction % is the percentage reduction (if any) under section 284 ‑ 225.

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4))

s 284-90 — Base penalty amount

(1) The base penalty amount under this Subdivision is worked out using this table and subsections (1A) to (2), and section 284 ‑ 224 if relevant: Base penalty amount Item In this situation: The base penalty amount is: 1 You have a * shortfall amount as a result of a statement described in subsection 284 ‑ 75(1) or (4) and the amount, or part of the amount, resulted from intentional disregard of a * taxation law (other than the * Excise Acts) by you or your agent 75% of your * shortfall amount or part 2 You have a * shortfall amount as a result of a statement described in subsection 284 ‑ 75(1) or (4) and the amount, or part of the amount, resulted from recklessness by you or your agent as to the operation of a * taxation law (other than the * Excise Acts) 50% of your * shortfall amount or part 3 You have a * shortfall amount as a result of a statement described in subsection 284 ‑ 75(1) or (4) and the amount, or part of the amount, resulted from a failure by you or your agent to take reasonable care to comply with a * taxation law (other than the * Excise Acts) 25% of your * shortfall amount or part 3A A statement described in subsection 284 ‑ 75(1) or (4) was false or misleading because of intentional disregard of a * taxation law (other than the * Excise Acts) by you or your * agent but did not result in you having a * shortfall amount 60 penalty units 3B A statement described in subsection 284 ‑ 75(1) or (4) was false or misleading because of recklessness by you or your * agent as to the operation of a * taxation law (other than the * Excise Acts) but did not result in you having a * shortfall amount 40 penalty units 3C A statement described in subsection 284 ‑ 75(1) or (4) was false or misleading because of a failure by you or your * agent to take reasonable care to comply with a * taxation law (other than the * Excise Acts) but did not result in you having a * shortfall amount 20 penalty units 4 You have a * shortfall amount, all or part of which resulted from you or your agent treating an * income tax law or the * petroleum resource rent tax law as applying to a matter or identical matters in a particular way that was not * reasonably arguable, and that amount is more than your * reasonably arguable threshold. 25% of your * shortfall amount or part 5 You have a * shortfall amount because of section 284 ‑ 30 (about trusts) and: (a) your shortfall amount or part of it resulted from you or your agent treating an * income tax law as applying to a matter or identical matters in a particular way that was not * reasonably arguable; and (b) because of that treatment, the trust’s net income would have been reduced, or the trust’s * tax loss would have been increased, for the income year by more than the trust’s * reasonably arguable threshold 25% of your * shortfall amount or part 6 You have a * shortfall amount because of section 284 ‑ 35 (about partnerships) and: (a) your shortfall amount or part of it resulted from you or your agent treating an * income tax law as applying to a matter or identical matters in a particular way that was not * reasonably arguable; and (b) because of that treatment, the partnership net income would have been reduced, or the partnership loss would have been increased, for the income year by more than the partnership’s * reasonably arguable threshold 25% of your * shortfall amount or part 6A (a) you have a * shortfall amount for a * Fiscal Year, all or part of which resulted from you or your agent treating the * Minimum Tax law as applying to a matter or identical matters in a particular way that was not * reasonably arguable; and (b) that amount is more than your threshold for the Fiscal Year under subsection (3A). 25% of your shortfall amount or part 7 You are liable to an administrative penalty under subsection 284 ‑ 75(3) 75% of the tax ‑ related liability concerned (1A) The * base penalty amount in an item of the table in subsection (1) that applies to you is taken to be doubled if: (a) on or before the day (your trigger day ) applying to you under subsection (4) for that table item: (i) the Commissioner has made an assessment of your income tax for one or more income years; or (ii) the Commissioner has made a determination under subsection 960 ‑ 555(3) of the Income Tax Assessment Act 1997 in relation to you, or in relation to the * global parent entity for the group of which you are a member, for a period; or (iii) you have given the Commissioner statements in accordance with Subdivision 815 ‑ E of that Act for an income year or another 12 month period; or (iv) you were a * subsidiary member of a * consolidated group or a * MEC group for one or more income years, and the Commissioner has made an assessment of the income tax of another entity that was a * member of the group for one or more of those income years; and (b) you were a * significant global entity for: (i) whichever of those income years or periods that ends on the most recent day; or (ii) if more than one of them ends on that most recent day—any of those income years or periods that ends on that most recent day. Note: For subparagraph (a)(iii), you may be allowed to give statements for a 12 month period other than an income year (see section 815 ‑ 360 of the Income Tax Assessment Act 1997 ). (1B) However, subsection (1A) is taken never to have applied to you in relation to your trigger day if: (a) the Commissioner makes an assessment of: (i) your income tax for the income year that includes your trigger day; or (ii) if you were a * subsidiary member of a * consolidated group or a * MEC group for the income year that includes your trigger day—the income tax, for that income year, of another * member of that group; and (b) you are not a * significant global entity for that income year. (1C) The * base penalty amount in an item of the table in subsection (1) that applies to a * Group Entity of an * Applicable MNE Group for a * Fiscal Year is taken to be doubled if the base penalty amount arises in relation to * Australian IIR/UTPR tax or * Australian DMT tax in relation to the Applicable MNE Group. (2) If 2 or more items in that table apply and one of them produces a greater * base penalty amount than any of the others, use that item. (3) An entity’s reasonably arguable threshold for an income year is: (a) unless paragraph (b) applies—the greater of $10,000 or 1% of whichever of the following applies: (i) the income tax payable by the entity for the income year, worked out on the basis of the entity’s * income tax return; (ii) the * petroleum resource rent tax payable by the entity for the year of tax (within the meaning of the Petroleum Resource Rent Tax Assessment Act 1987 ) most closely corresponding to the income year, worked out on the basis of the entity’s return under Division 1 of Part VI of that Act; or (b) if the entity is a trust or partnership—the greater of the following amounts: (i) $20,000; (ii) 2% of the entity’s * net income (if any) for the income year worked out on the basis of the entity’s * income tax return. (3A) For the purposes of item 6A of the table in subsection (1), an entity’s threshold for a * Fiscal Year is the greater of: (a) $10,000; and (b) 1% of whichever of the following applies: (i) the amount of * Australian IIR/UTPR tax payable by the entity for the Fiscal Year, worked out on the basis of the entity’s * Australian IIR/UTPR tax return for the Fiscal Year; (ii) the amount of * Australian DMT tax payable by the entity for the Fiscal Year, worked out on the basis of the entity’s * Australian DMT tax return for the Fiscal Year. (4) For the purposes of paragraph (1A)(a), the following day applies to you for the relevant item of the table in subsection (1): (a) for any of table items 1 to 3C—the day you made the statement referred to in that item; (b) for any of table items 4 to 6A —the day you made the statement to which that item relates and that is referred to in subsection 284 ‑ 75(2); (c) for table item 7—the day the return, notice or other document to which that item relates, and that is referred to in subsection 284 ‑ 75(3), was required to be given.

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Amended by No 75 of 2005, effective 29 June 2005 | Amended by No 56 of 2010, effective s 4(2), sch 3 (items 9, 10(1), (5)), sch 5 (items 191 ‑ 193), sch 6 (items 12 ‑ 14, 27 ‑ 36, 44 ‑ 53, 110, 111, 116, 159, 160): 3 June 2010 (s 2(1) items 1, 7, 11, 15, 20, 23) sch 1 (item 8): 17 Dec 2010 (s 2(1) item 4) sch 2 (items 3, 4), sch 6 (items 58 ‑ 97, 101 ‑ 105): 4 June 2010 (s 2(1) items 6, 16, 17) | Amended by No 41 of 2011, effective sch 5 (items 10 ‑ 14, 21 ‑ 23): 28 June 2011 sch 5 (item 24): 1 July 2011 ( see s 2(1)) sch 5 (items 34, 35, 146, 147, 168 ‑ 172, 401 ‑ 411, 421, 422): Royal Assent | Amended by No 14 of 2012, effective sch 1, sch 2 (items 1 ‑ 9): 1 July 2012 (s 2(1) items 2, 3) sch 2 (items 17 ‑ 28): never commenced (s 2(1) item 4) | Amended by No 88 of 2013, effective sch 5 (items 22 ‑ 27): 1 July 2013 (s 2(1) item 10) sch 6 (items 44 ‑ 48, 66): 29 June 2013 (s 2(1) item 14) sch 7 (items 167 ‑ 183): 1 July 2012 (s 2(1) item 11) sch 7 (item 225): 28 June 2013 (s 2(1) item 23) | Amended by No 101 of 2013, effective sch 1 (items 9, 10), sch 2 (items 3 ‑ 7, 44 ‑ 50): 29 June 2013 (s 2(1) items 2, 3) sch 2 (items 58, 59): 8 Sept 2012 (s 2(1) item 4) | Amended by No 96 of 2014, effective sch 1 (items 54 ‑ 108, 122 ‑ 124), sch 2 (items 41 ‑ 43): 30 Sept 2014 (s 2(1) item 2, F2014L01256) | Amended by No 27 of 2017, effective sch 1 (items 44 ‑ 49, 52), sch 2: 1 July 2017 (s 2(1) items 4, 5) | Amended by No 64 of 2020, effective sch 3 (items 124 ‑ 145): 1 July 2020 (s 2(1) item 5) sch 3 (items 302 ‑ 321, 325, 326): 1 Oct 2020 (s 2(1) item 6) | Amended by No 134 of 2024, effective sch 1 (items 32 ‑ 64, 68, 69): 11 Dec 2024 (s 2(1) item 1)

s 284-95 — Joint and several liability of directors of corporate trustee that makes a false or misleading statement

(1) This section applies if a trustee of a * self managed superannuation fund, or of a fund that is treated as a self managed superannuation fund under subsection 10(4) of the Superannuation Industry (Supervision) Act 1993 : (a) is liable to an administrative penalty under subsection 284 ‑ 75(1) or (4); and (b) is a body corporate. (2) The directors of the body corporate at the time it becomes liable to the penalty are jointly and severally liable to pay the amount of the * tax ‑ related liability in respect of the penalty. Note: See section 265 ‑ 45 for rules on joint liability.

Amendment history: Inserted by No 56 of 2010, effective s 4(2), sch 3 (items 9, 10(1), (5)), sch 5 (items 191 ‑ 193), sch 6 (items 12 ‑ 14, 27 ‑ 36, 44 ‑ 53, 110, 111, 116, 159, 160): 3 June 2010 (s 2(1) items 1, 7, 11, 15, 20, 23) sch 1 (item 8): 17 Dec 2010 (s 2(1) item 4) sch 2 (items 3, 4), sch 6 (items 58 ‑ 97, 101 ‑ 105): 4 June 2010 (s 2(1) items 6, 16, 17)

s 284-140 — What this Subdivision is about

You are liable to an administrative penalty if you attempt to reduce your tax ‑ related liabilities or increase your credits through a scheme. This Subdivision sets out when the penalties apply and how the amounts of the penalties are calculated. Table of sections Operative provisions 284 ‑ 145 Liability to penalty 284 ‑ 150 Scheme benefits and scheme shortfall amounts 284 ‑ 155 Amount of penalty 284 ‑ 160 Base penalty amount : schemes 284 ‑ 165 Exception—threshold for penalty arising from cross ‑ border transfer pricing

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4))

s 284-145 — Liability to penalty

(1) You are liable to an administrative penalty if: (a) you would, apart from a provision of a * taxation law or action taken under such a provision (the adjustment provision ), get a * scheme benefit from a * scheme; and (b) having regard to any relevant matters, it is reasonable to conclude that: (i) an entity that (alone or with others) entered into or carried out the scheme, or part of it, did so with the sole or dominant purpose of that entity or another entity getting a scheme benefit from the scheme; or (ia) for a scheme to which Part IVA of the Income Tax Assessment Act 1936 applies because of section 177DA of that Act—an entity that (alone or with others) entered into or carried out the scheme, or part of it, did so for a principal purpose of, or for more than one principal purpose that includes a purpose of, that entity or another entity getting a scheme benefit from the scheme; or (ii) for a scheme referred to in Division 165 of the * GST Act or Division 75 of the Fuel Tax Act 2006 —the principal effect of the scheme, or of part of the scheme, is that you would, apart from the adjustment provision, get the scheme benefit from the scheme directly or indirectly. (2A) You are also liable to an administrative penalty if: (a) you would, apart from a determination under section 815 ‑ 30 of the Income Tax Assessment Act 1997 (also the adjustment provision ), get a * scheme benefit from a * scheme; and (b) neither subparagraph (1)(b)(i) nor subparagraph (1)(b)(ia) is satisfied for the scheme. (2B) You are also liable to an administrative penalty if: (a) to give effect to Subdivision 815 ‑ B or 815 ‑ C of the Income Tax Assessment Act 1997 (also the adjustment provision ) in relation to a * scheme, the Commissioner: (i) amends your assessment for an income year; or (ii) serves you with one or more notices under subsection 128C(7) of the Income Tax Assessment Act 1936 in respect of income that is taken because of the application of the adjustment provision to have been derived in the income year; and (b) as a result, you are liable to pay an additional amount of income tax or * withholding tax (as the case requires). Note: Subdivisions 815 ‑ B and 815 ‑ C of the Income Tax Assessment Act 1997 apply the arm’s length principle (about transfer pricing) to entities and permanent establishments respectively. (2C) You are also liable to an administrative penalty if: (a) you are the trustee of a * managed investment trust in relation to an income year; and (b) to give effect to Subdivision 275 ‑ L of the Income Tax Assessment Act 1997 (also the adjustment provision ) in relation to a * scheme, the Commissioner amends your assessment for the income year; and (c) as a result, you are liable to pay an additional amount of income tax (as the case requires). Note: Subdivision 275 ‑ L of the Income Tax Assessment Act 1997 applies to non ‑ arm’s length income of managed investment trusts. (3) It does not matter whether the * scheme, or any part of the scheme, was entered into or carried out inside or outside Australia.

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Amended by No 73 of 2006, effective sch 5 (items 39 ‑ 60, 160 ‑ 165): 1 July 2006 (s 2(1) items 18, 19, 21) | Amended by No 115 of 2012, effective sch 1 (items 13, 14): 8 Sept 2012 (s 2) | Amended by No 101 of 2013, effective sch 1 (items 9, 10), sch 2 (items 3 ‑ 7, 44 ‑ 50): 29 June 2013 (s 2(1) items 2, 3) sch 2 (items 58, 59): 8 Sept 2012 (s 2(1) item 4) | Amended by No 170 of 2015, effective sch 1 (items 4A ‑ 7), sch 2 (items 5 ‑ 7), sch 3: 11 Dec 2015 (s 2(1) item 1) | Amended by No 53 of 2016, effective sch 1 (items 2 ‑ 4), sch 3 (items 5 ‑ 23), sch 4 (items 6 ‑ 9), sch 5 (items 73 ‑ 75), sch 6 (items 35 ‑ 68), sch 8 (item 1): 5 May 2016 (s 2(1) items 2, 4) sch 7 (items 1, 2): 1 July 2014 (s 2(1) item 3)

s 284-150 — Scheme benefits and scheme shortfall amounts

(1) An entity gets a scheme benefit from a * scheme if: (a) a * tax ‑ related liability of the entity for an accounting period is, or could reasonably be expected to be, less than it would be apart from the scheme or a part of the scheme; or (b) an amount that the Commissioner must pay or credit to the entity under a * taxation law for an accounting period is, or could reasonably be expected to be, more than it would be apart from the scheme or a part of the scheme. (2) The amount of the * scheme benefit that you would, apart from the adjustment provision, have got from the * scheme is called your scheme shortfall amount . (3) However, to the extent that your scheme shortfall amount is due to errors mentioned in section 705 ‑ 315 of the Income Tax Assessment Act 1997 that were made in a statement that was made before the Commissioner became aware of the errors, your scheme shortfall amount is instead the amount worked out using the 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 income year in which the Commissioner became aware 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 joining time, 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 that the * head company makes as a result of * CGT event L6 happening as mentioned in section 104 ‑ 525 of the Income Tax Assessment Act 1997 ; and (b) the * corporate tax rate in respect of taxable income for the income year in which that CGT event happens. Scheme shortfall amount for cross ‑ border transfer pricing (4) Despite subsection (2), your scheme shortfall amount for a * scheme to which subsection 284 ‑ 145(2B) applies is the total amount of additional income tax and * withholding tax you are liable to pay as mentioned in that subsection. (5) Disregard your * scheme shortfall amount for a * scheme to which subsection 284 ‑ 145(1) applies to the extent that scheme shortfall amount is attributable to additional tax that is, or is part of, your scheme shortfall amount for a scheme to which subsection 284 ‑ 145(2B) applies. Scheme shortfall amount for managed investment trust non ‑ arm’s length income (6) Despite subsection (2), your scheme shortfall amount for a * scheme to which subsection 284 ‑ 145(2C) applies is the total amount of additional income tax you are liable to pay as mentioned in that subsection. (7) Disregard your * scheme shortfall amount for a * scheme to which subsection 284 ‑ 145(1) applies to the extent that scheme shortfall amount is attributable to additional tax that is, or is part of, your scheme shortfall amount for a scheme to which subsection 284 ‑ 145(2C) applies.

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Amended by No 16 of 2003, effective sch 4 (items 8 ‑ 10), sch 6 (items 11, 12), sch 14 (items 8 ‑ 12), sch 23 (item 14), sch 24 (items 1 ‑ 19): 24 Oct 2002 (s 2(1) items 3, 4, 9, 13, 14) sch 28 (items 14 ‑ 18, 19(3)): 29 June 2002 (s 2(1) items 17, 19) | Amended by No 107 of 2003, effective sch 2 (items 15 ‑ 26, 40), sch 7 (items 19 ‑ 22): Royal Assent | Amended by No 56 of 2010, effective s 4(2), sch 3 (items 9, 10(1), (5)), sch 5 (items 191 ‑ 193), sch 6 (items 12 ‑ 14, 27 ‑ 36, 44 ‑ 53, 110, 111, 116, 159, 160): 3 June 2010 (s 2(1) items 1, 7, 11, 15, 20, 23) sch 1 (item 8): 17 Dec 2010 (s 2(1) item 4) sch 2 (items 3, 4), sch 6 (items 58 ‑ 97, 101 ‑ 105): 4 June 2010 (s 2(1) items 6, 16, 17) | Amended by No 101 of 2013, effective sch 1 (items 9, 10), sch 2 (items 3 ‑ 7, 44 ‑ 50): 29 June 2013 (s 2(1) items 2, 3) sch 2 (items 58, 59): 8 Sept 2012 (s 2(1) item 4) | Amended by No 53 of 2016, effective sch 1 (items 2 ‑ 4), sch 3 (items 5 ‑ 23), sch 4 (items 6 ‑ 9), sch 5 (items 73 ‑ 75), sch 6 (items 35 ‑ 68), sch 8 (item 1): 5 May 2016 (s 2(1) items 2, 4) sch 7 (items 1, 2): 1 July 2014 (s 2(1) item 3)

s 284-155 — Amount of penalty

(1) Work out the * base penalty amount under section 284 ‑ 160. If the base penalty amount is not increased under section 284 ‑ 220 or reduced under section 284 ‑ 225, this is the amount of the penalty. (2) Otherwise, use this formula: where: BPA is the * base penalty amount. increase % is the percentage increase (if any) under section 284 ‑ 220. reduction % is the percentage reduction (if any) under section 284 ‑ 225. (3) However, the amount of the penalty is twice the amount worked out under subsection (1) or (2) of this section if: (a) you are a * significant global entity during an income year that consists of, or includes all or part of, the accounting period to which your * scheme shortfall amount relates; and (b) it is not * reasonably arguable that the adjustment provision does not apply.

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Amended by No 170 of 2015, effective sch 1 (items 4A ‑ 7), sch 2 (items 5 ‑ 7), sch 3: 11 Dec 2015 (s 2(1) item 1)

s 284-160 — Base penalty amount : schemes

(1) The base penalty amount for a * scheme to which subsection 284 ‑ 145(1) or (2C) applies is, subject to section 284 ‑ 224: (a) 50% of your * scheme shortfall amount; or (b) 25% of your scheme shortfall amount if it is * reasonably arguable that the adjustment provision does not apply. (2) The base penalty amount for a * scheme to which subsection 284 ‑ 145(2A) applies is, subject to section 284 ‑ 224: (a) 25% of your * scheme shortfall amount; or (b) 10% of your scheme shortfall amount if it is * reasonably arguable that the adjustment provision does not apply. (3) The base penalty amount for a * scheme to which subsection 284 ‑ 145(2B) applies is worked out using this table and section 284 ‑ 224 if relevant: Base penalty amount Item Column 1 In this situation: Column 2 The base penalty amount is: 1 having regard to any relevant matters, it is reasonable to conclude that an entity that (alone or with others) entered into or carried out the * scheme, or part of it, did so with the sole or dominant purpose of that entity or another entity getting a * transfer pricing benefit from the scheme the sum of: (a) 50% of your * scheme shortfall amount, to the extent that it is not attributable as mentioned in paragraph (b); and (b) 25% of your scheme shortfall amount, to the extent (if any) that it is attributable to the entity, or the entity’s agent, treating the adjustment provision as applying (including not applying) to a matter (or identical matters) in a particular way that is * reasonably arguable 2 item 1 does not apply the sum of: (a) 25% of your * scheme shortfall amount, to the extent that it is not attributable as mentioned in paragraph (b); and (b) 10% of your scheme shortfall amount, to the extent (if any) that it is attributable to the entity, or the entity’s agent, treating the adjustment provision as applying (including not applying) to a matter (or identical matters) in a particular way that is * reasonably arguable Note: For special rules about when transfer pricing treatment is not reasonably arguable, see Subdivision 284 ‑ E.

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Amended by No 56 of 2010, effective s 4(2), sch 3 (items 9, 10(1), (5)), sch 5 (items 191 ‑ 193), sch 6 (items 12 ‑ 14, 27 ‑ 36, 44 ‑ 53, 110, 111, 116, 159, 160): 3 June 2010 (s 2(1) items 1, 7, 11, 15, 20, 23) sch 1 (item 8): 17 Dec 2010 (s 2(1) item 4) sch 2 (items 3, 4), sch 6 (items 58 ‑ 97, 101 ‑ 105): 4 June 2010 (s 2(1) items 6, 16, 17) | Amended by No 101 of 2013, effective sch 1 (items 9, 10), sch 2 (items 3 ‑ 7, 44 ‑ 50): 29 June 2013 (s 2(1) items 2, 3) sch 2 (items 58, 59): 8 Sept 2012 (s 2(1) item 4) | Repealed and substituted by No 101 of 2013, effective sch 1 (items 9, 10), sch 2 (items 3 ‑ 7, 44 ‑ 50): 29 June 2013 (s 2(1) items 2, 3) sch 2 (items 58, 59): 8 Sept 2012 (s 2(1) item 4) | Amended by No 53 of 2016, effective sch 1 (items 2 ‑ 4), sch 3 (items 5 ‑ 23), sch 4 (items 6 ‑ 9), sch 5 (items 73 ‑ 75), sch 6 (items 35 ‑ 68), sch 8 (item 1): 5 May 2016 (s 2(1) items 2, 4) sch 7 (items 1, 2): 1 July 2014 (s 2(1) item 3)

s 284-165 — Exception—threshold for penalty arising from cross ‑ border transfer pricing

(1) You are not liable to an administrative penalty under subsection 284 ‑ 145(2B) if your * scheme shortfall amount is equal to or less than your * reasonably arguable threshold. (2) You are also not liable to an administrative penalty under that subsection if: (a) you have the * scheme shortfall amount because of section 284 ‑ 30 (about trusts); and (b) the amount by which the trust would, apart from the application of Subdivision 815 ‑ B or 815 ‑ C of the Income Tax Assessment Act 1997 , have had a greater * net income, or a lesser * tax loss, is equal to or less than the trust’s * reasonably arguable threshold. (3) You are also not liable to an administrative penalty under that subsection if: (a) you have the * scheme shortfall amount because you are a partner in a partnership that participated in the * scheme; and (b) the amount by which the partnership would, apart from the application of Subdivision 815 ‑ B or 815 ‑ C of that Act, have had a greater * net income, or a lesser * partnership loss, is equal to or less than the partnership’s * reasonably arguable threshold. Nil amounts (4) For the purposes of this section: (a) treat a trust or a partnership that has no * net income for an income year as having a net income for the year of a nil amount; and (b) treat a trust that has no * tax loss for an income year as having a tax loss for the year of a nil amount; and (c) treat a partnership that has no * partnership loss for an income year as having a partnership loss for the year of a nil amount.

Amendment history: Inserted by No 101 of 2013, effective sch 1 (items 9, 10), sch 2 (items 3 ‑ 7, 44 ‑ 50): 29 June 2013 (s 2(1) items 2, 3) sch 2 (items 58, 59): 8 Sept 2012 (s 2(1) item 4)

s 284-220 — Increase in base penalty amount

(1) The * base penalty amount is increased by 20% if: (a) you took steps to prevent or obstruct the Commissioner from finding out about a * shortfall amount, or the false or misleading nature of a statement, in relation to which the base penalty amount was calculated; or (b) you: (i) became aware of such a shortfall amount after a statement had been made to the Commissioner about the relevant * tax ‑ related liability; or (ii) became aware of the false or misleading nature of a statement made to the Commissioner or another entity after the statement had been made; and you did not tell the Commissioner or other entity about it within a reasonable time; or (c) the base penalty amount was worked out using item 1, 2 or 3 of the table in subsection 284 ‑ 90(1) and a base penalty amount for you was worked out under one of those items previously; or (ca) the base penalty amount was worked out using item 3A, 3B or 3C of the table in subsection 284 ‑ 90(1) and a base penalty amount for you was worked out under one of those items previously; or (d) the base penalty amount was worked out using item 4, 5, 6 or 6A of that table and a base penalty amount for you was worked out under that item previously; or (e) your liability to a penalty arises under subsection 284 ‑ 75(3) and you were previously liable to a penalty under that subsection. (2) The * base penalty amount for your * scheme shortfall amount, or for part of it, for an accounting period is increased by 20% if: (a) you took steps to prevent or obstruct the Commissioner from finding out about the scheme shortfall amount or the part; or (b) a base penalty amount for you was worked out under section 284 ‑ 160 for a previous accounting period.

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Amended by No 75 of 2005, effective 29 June 2005 | Amended by No 97 of 2008, effective sch 3 (items 177 ‑ 185): Royal Assent | Amended by No 56 of 2010, effective s 4(2), sch 3 (items 9, 10(1), (5)), sch 5 (items 191 ‑ 193), sch 6 (items 12 ‑ 14, 27 ‑ 36, 44 ‑ 53, 110, 111, 116, 159, 160): 3 June 2010 (s 2(1) items 1, 7, 11, 15, 20, 23) sch 1 (item 8): 17 Dec 2010 (s 2(1) item 4) sch 2 (items 3, 4), sch 6 (items 58 ‑ 97, 101 ‑ 105): 4 June 2010 (s 2(1) items 6, 16, 17) | Amended by No 134 of 2024, effective sch 1 (items 32 ‑ 64, 68, 69): 11 Dec 2024 (s 2(1) item 1)

s 284-224 — Reduction of base penalty amount if law was applied in an accepted way

(1) If, apart from this section, you would have a * base penalty amount because you or your * agent treated a * taxation law as applying in a particular way, and that way agreed with: (a) advice given to you or your agent by or on behalf of the Commissioner; or (b) general administrative practice under that law; or (c) a statement in a publication approved in writing by the Commissioner; your base penalty amount is reduced to the extent that it was caused by that treatment. (2) For the purposes of subsection (1) it does not matter whether the * base penalty amount also relates to: (a) a statement; or (b) a failure to give the Commissioner a return, notice or other document when required; or (c) a * scheme.

Amendment history: Inserted by No 56 of 2010, effective s 4(2), sch 3 (items 9, 10(1), (5)), sch 5 (items 191 ‑ 193), sch 6 (items 12 ‑ 14, 27 ‑ 36, 44 ‑ 53, 110, 111, 116, 159, 160): 3 June 2010 (s 2(1) items 1, 7, 11, 15, 20, 23) sch 1 (item 8): 17 Dec 2010 (s 2(1) item 4) sch 2 (items 3, 4), sch 6 (items 58 ‑ 97, 101 ‑ 105): 4 June 2010 (s 2(1) items 6, 16, 17)

s 284-225 — Reduction of base penalty amount if you voluntarily tell the Commissioner

(1) The * base penalty amount for your * shortfall amount or * scheme shortfall amount, for part of it or for your false or misleading statement is reduced by 20% if: (a) the Commissioner tells you that an examination is to be made of your affairs relating to a * taxation law for a relevant period; and (b) after that time, you voluntarily tell the Commissioner, in the * approved form, about the shortfall, the part of it or the false or misleading nature of the statement; and (c) telling the Commissioner can reasonably be estimated to have saved the Commissioner a significant amount of time or significant resources in the examination. (2) The * base penalty amount for your * shortfall amount or * scheme shortfall amount, for part of it or for your false or misleading statement is reduced under subsection (3), (4) or (4A) if you voluntarily tell the Commissioner, in the * approved form, about the shortfall amount, the part of it or the false or misleading nature of the statement before : (a) the day the Commissioner tells you that an examination is to be made of your affairs relating to a * taxation law for a relevant period; or (b) if the Commissioner makes a public statement requesting entities to make a voluntary disclosure by a particular earlier day about a * scheme or transaction that applies to your affairs—that earlier day. (3) The * base penalty amount for your * shortfall amount, or for part of it, is: (a) reduced by 80% if the shortfall amount, or the part of it, is $1,000 or more; or (b) reduced to nil if the shortfall amount, or the part of it, is less than $1,000. (4) The * base penalty amount for your * scheme shortfall amount, or for part of it, is reduced by 80%. (4A) The * base penalty amount for your false or misleading statement that does not result in you having a * shortfall amount is reduced to nil. (5) If you voluntarily tell the Commissioner, in the * approved form, about your * shortfall amount or * scheme shortfall amount, part of it or the false or misleading nature of the statement after the Commissioner tells you that an examination is to be conducted of your affairs relating to a * taxation law for a relevant period, the Commissioner may treat you as having done so before being told about the examination if the Commissioner considers it appropriate to do so in the circumstances.

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Amended by No 58 of 2006, effective sch 7 (items 131 ‑ 169, 217 ‑ 219): 22 June 2006 (s 2(1) items 6, 24) | Amended by No 56 of 2010, effective s 4(2), sch 3 (items 9, 10(1), (5)), sch 5 (items 191 ‑ 193), sch 6 (items 12 ‑ 14, 27 ‑ 36, 44 ‑ 53, 110, 111, 116, 159, 160): 3 June 2010 (s 2(1) items 1, 7, 11, 15, 20, 23) sch 1 (item 8): 17 Dec 2010 (s 2(1) item 4) sch 2 (items 3, 4), sch 6 (items 58 ‑ 97, 101 ‑ 105): 4 June 2010 (s 2(1) items 6, 16, 17)

s 284-250 — Undocumented transfer pricing treatment not reasonably arguable

This Division has effect in relation to an entity as if a matter was not * reasonably arguable if: (a) the matter is a particular way of applying (including not applying) Subdivision 815 ‑ B or 815 ‑ C of the Income Tax Assessment Act 1997 to a matter (or identical matters); and (b) the entity does not have records that meet the requirements in this Subdivision for the application of the Subdivision mentioned in paragraph (a) to that matter (or those matters) in that way. Note: For the Commissioner’s power to remit an administrative penalty imposed by this Part, see section 298 ‑ 20.

Amendment history: Inserted by No 101 of 2013, effective sch 1 (items 9, 10), sch 2 (items 3 ‑ 7, 44 ‑ 50): 29 June 2013 (s 2(1) items 2, 3) sch 2 (items 58, 59): 8 Sept 2012 (s 2(1) item 4)

s 284-255 — Documentation requirements

(1) Records kept by an entity meet the requirements in this Subdivision for the application (or non ‑ application) of Subdivision 815 ‑ B or 815 ‑ C of the Income Tax Assessment Act 1997 to a matter (or identical matters) in a particular way if the records: (a) are prepared before the time by which the entity lodges its * income tax return for the income year relevant to the matter (or matters); and (b) are in English, or readily accessible and convertible into English; and (c) explain the particular way in which the Subdivision applies (or does not apply) to the matter (or matters); and (d) explain why the application of the Subdivision to the matter (or matters) in that way best achieves the consistency mentioned in section 815 ‑ 135 or 815 ‑ 235 of that Act (as the case requires) (about guidance material). (2) Without limiting subsection (1), the records must allow each of the following to be readily ascertained: (a) the * arm’s length conditions relevant to the matter (or matters); (b) the particulars of the method used and comparable circumstances relevant to identifying those arm’s length conditions; (c) unless the records are for the non ‑ application of the Subdivision to a matter (or matters)—the result that the application of the Subdivision in that particular way, as compared to the non ‑ application of the Subdivision, has for the operation of this Act in relation to the entity; (d) for Subdivision 815 ‑ B—the actual conditions relevant to the matter (or matters); (e) for Subdivision 815 ‑ C: (i) the actual profits mentioned in paragraph 815 ‑ 220(1)(a) of that Act and the * arm’s length profits, to the extent that they are relevant to the matter (or matters); and (ii) the particulars of the activities and circumstances mentioned in subsection 815 ‑ 225(1) of that Act, to the extent they are relevant to the matter (or matters).

Amendment history: Inserted by No 101 of 2013, effective sch 1 (items 9, 10), sch 2 (items 3 ‑ 7, 44 ‑ 50): 29 June 2013 (s 2(1) items 2, 3) sch 2 (items 58, 59): 8 Sept 2012 (s 2(1) item 4)

s 286-1 — What this Division is about

You are liable to an administrative penalty if you are required to give a return, statement, notice or other document by a particular time and you do not do so. This Division sets out when the penalty applies and how the amounts of the penalty are calculated.

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Amended by No 117 of 2002, effective sch 11 (items 12 ‑ 15), sch 14 (items 14, 15): 24 Oct 2002 (s 2(1) item 9)

s 286-25 — Object of Division

The object of this Division is to provide a uniform administrative penalty regime for all * taxation laws to enable administrative penalties to apply for failure to give returns, notices, statements or other documents on time.

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Amended by No 117 of 2002, effective sch 11 (items 12 ‑ 15), sch 14 (items 14, 15): 24 Oct 2002 (s 2(1) item 9)

s 286-75 — Liability to penalty

(1) You are liable to an administrative penalty if: (a) you are required under a * taxation law to give a return, notice, statement or other document to the Commissioner in the * approved form by a particular day; and (b) you do not give the return, notice, statement or document to the Commissioner in the approved form by that day. Note: You may not be liable to a penalty in relation to a failure to notify an amount referred to in an item of the table in subsection 389 ‑ 5(1) during the period provided for by subitem 22(2) of Schedule 23 to the Budget Savings (Omnibus) Act 2016 (see also item 16 of Schedule 3 to the Treasury Laws Amendment (2018 Measures No. 4) Act 2019 ). (1A) However, you are not liable to an administrative penalty under subsection (1) if: (a) you engage a * registered tax agent or BAS agent; and (b) you give the registered tax agent or BAS agent all relevant taxation information to enable the agent to give a return, notice, statement or other document to the Commissioner in the * approved form by a particular day; and (c) the registered tax agent or BAS agent does not give the return, notice, statement or other document to the Commissioner in the approved form by that day; and (d) the failure to give the return, notice, statement or other document to the Commissioner did not result from: (i) intentional disregard by the registered tax agent or BAS agent of a * taxation law; or (ii) recklessness by the agent as to the operation of a taxation law. (1B) If you wish to rely on subsection (1A), you bear an evidential burden in relation to paragraph (1A)(b). (2) Subsection (1) does not apply to a return, notice, statement or other document under any of these Acts: (a) the Superannuation Contributions Tax (Assessment and Collection) Act 1997 ; (b) the Superannuation Guarantee (Administration) Act 1992 ; or (c) the Superannuation (Self Managed Superannuation Funds) Supervisory Levy Imposition Act 1991 . (2AAA) You are also liable to an administrative penalty if: (a) you are required under subsection 115 ‑ 235(1) of the Income Tax Assessment Act 1997 (giving information to beneficiaries) to prepare and give a statement to an entity (other than the Commissioner) by a particular day; and (b) you do not give the statement to the entity by that day. (2AA) You are also liable to an administrative penalty if: (a) you are required under section 136 ‑ 90 (about commutation authorities) to give a notice to an entity (other than the Commissioner) in the * approved form by a particular day; and (b) you do not give the notice in the approved form to the entity by that day. (2AB) You are also liable to an administrative penalty if: (a) you are required under section 276 ‑ 455 of the Income Tax Assessment Act 1997 (AMMA statements) to give information to an entity (other than the Commissioner) by a particular day; and (b) you do not give the information to the entity by that day. (2A) You are also liable to an administrative penalty if: (a) you are required under Division 390 to give a statement to an entity (other than the Commissioner) in the * approved form by a particular day; and (b) you do not give the statement in the approved form to the other entity by that day. (2BA) You are also liable to an administrative penalty if: (a) you are required under Division 392 (Employee share scheme reporting) to give a statement to an entity (other than the Commissioner) in the * approved form by a particular day; and (b) you do not give the statement in the approved form to the entity by that day. (4) You are also liable to an administrative penalty if: (a) you are required under section 713 ‑ 540 of the Income Tax (Transitional Provisions) Act 1997 to notify another entity of the happening of an event by a particular day; and (b) you do not notify the other entity of the happening of that event by that day. (5) Subsection (6) applies if: (a) an entity is liable to an administrative penalty under subsection (1) or (2A) as the * superannuation provider in relation to a * self managed superannuation fund; and (b) the entity is a body corporate. (6) The directors of the body corporate at the time it becomes liable to the penalty are jointly and severally liable to pay the amount of the * tax ‑ related liability in respect of the penalty. Note: See section 265 ‑ 45 for rules on joint liability. (7) You are also liable to an administrative penalty if: (a) you are required under subsections 57 ‑ 7(2) and (3) of the A New Tax System (Goods and Services Tax) Act 1999 to notify another entity by a particular day; and (b) you do not give the notice in the * approved form to the entity by that day.

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Amended by No 117 of 2002, effective sch 11 (items 12 ‑ 15), sch 14 (items 14, 15): 24 Oct 2002 (s 2(1) item 9) | Amended by No 16 of 2003, effective sch 4 (items 8 ‑ 10), sch 6 (items 11, 12), sch 14 (items 8 ‑ 12), sch 23 (item 14), sch 24 (items 1 ‑ 19): 24 Oct 2002 (s 2(1) items 3, 4, 9, 13, 14) sch 28 (items 14 ‑ 18, 19(3)): 29 June 2002 (s 2(1) items 17, 19) | Amended by No 9 of 2007, effective sch 1 (items 19 ‑ 24), sch 2 (items 4, 5), sch 4 (items 11 ‑ 16), sch 5 (items 31 ‑ 36): 15 Mar 2007 (s 2(1) items 2 ‑ 8) | Amended by No 45 of 2008, effective sch 1 (items 53 ‑ 66), sch 4 (item 64), sch 6 (items 18 ‑ 21), sch 7 (item 56): 26 June 2008 | Amended by No 114 of 2009, effective sch 1 (items 14 ‑ 26), sch 2: 1 Mar 2010 (s 2(1) items 2, 4) | Amended by No 133 of 2009, effective sch 1 (items 2 ‑ 5, 78 ‑ 82, 86, 87): 14 Dec 2009 sch 3 (items 41 ‑ 45): Royal Assent | Amended by No 93 of 2011, effective sch 3 (items 109 ‑ 111), sch 4 (items 1 ‑ 6): Royal Assent | Amended by No 14 of 2012, effective sch 1, sch 2 (items 1 ‑ 9): 1 July 2012 (s 2(1) items 2, 3) sch 2 (items 17 ‑ 28): never commenced (s 2(1) item 4) | Amended by No 96 of 2014, effective sch 1 (items 54 ‑ 108, 122 ‑ 124), sch 2 (items 41 ‑ 43): 30 Sept 2014 (s 2(1) item 2, F2014L01256) | Amended by No 21 of 2015, effective sch 1 (items 18 ‑ 49), sch 5, sch 7 (items 33 ‑ 43): 20 Mar 2015 (s 2(1) items 2, 6, 15) sch 2 (items 39 ‑ 46): 1 May 2015 (s 2(1) item 3) sch 4 (items 8, 9): 1 July 2015 (s 2(1) item 5) sch 6 (items 26 ‑ 37, 73): 19 Mar 2015 (s 2(1) item 11, 13) sch 6 (items 60 ‑ 72, 74 ‑ 79): never commenced (s 2(1) items 12, 14) | Amended by No 70 of 2015, effective sch 1 (items 151 ‑ 174, 195 ‑ 205): 1 July 2015 (s 2(1) items 3, 6) sch 6 (items 51 ‑ 59): 25 June 2015 (s 2(1) item 17) | Amended by No 52 of 2016, effective sch 1 (items 37 ‑ 39), sch 2 (items 17A, 25 ‑ 27), sch 3 (items 14, 15): 1 July 2016 (s 2(1) item 1) | Amended by No 53 of 2016, effective sch 1 (items 2 ‑ 4), sch 3 (items 5 ‑ 23), sch 4 (items 6 ‑ 9), sch 5 (items 73 ‑ 75), sch 6 (items 35 ‑ 68), sch 8 (item 1): 5 May 2016 (s 2(1) items 2, 4) sch 7 (items 1, 2): 1 July 2014 (s 2(1) item 3) | Amended by No 55 of 2016, effective sch 23 (items 1, 4 ‑ 20, 22 ‑ 24, 35, 36): 1 Oct 2016 (s 2(1) item 25) | Amended by No 81 of 2016, effective sch 1 (items 10 ‑ 25, 33, 36), sch 2 (items 19, 20), sch 10 (items 55 ‑ 65, 86 ‑ 93): 1 Jan 2017 (s 2(1) items 2, 6) sch 10 (items 1, 29 ‑ 47, 49 ‑ 54): 1 July 2018 (s 2(1) item 5) | Amended by No 8 of 2019, effective sch 1 (items 1 ‑ 5, 7, 8), sch 2, sch 3 (items 2 ‑ 10), sch 4 (items 1 ‑ 7, 18), sch 5, sch 7 (item 2), sch 8 (items 9 ‑ 11, 16 ‑ 19, 48 ‑ 63): 1 Apr 2019 (s 2(1) items 2, 3, 5, 7, 11) sch 3 (items 11 ‑ 16): 23 June 2020 (s 2(1) item 4) sch 6 (items 3, 4): 1 July 2018 (s 2(1) item 6) | Amended by No 57 of 2025, effective sch 1 (items 151 ‑ 181, 183): 1 July 2026 (s 2(1) item 1) | Amended by No 49 of 2026, effective sch 1 (items 52, 53, 80, 81): 1 July 2026 (s 2(1) items 2, 4)

s 286-80 — Amount of penalty

(1) The amount of the penalty is worked out in this way: (a) work out the * base penalty amount under subsection (2); and (b) work out whether the base penalty amount is increased under subsection (3), (4), (4A) or (4C). (2) The base penalty amount is: (a) for failing to give a return, notice or other document on time or in the * approved form, as mentioned in subsection 286 ‑ 75(1), (2AAA), (2AA), (2AB), (2A), (2B), (2BA) or (2C)—1 penalty unit for each period of 28 days or part of a period of 28 days starting on the day when the document is due and ending when you give it (up to a maximum of 5 penalty units); or (c) for failing to notify the happening of an event as mentioned in subsection 286 ‑ 75(4)—1 penalty unit for each period of 28 days or part of a period of 28 days starting on the day when the notification is due and ending when you notify the happening of the event (up to a maximum of 5 penalty units). Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit. Example: An entity lodges a return 31 days late. The base penalty amount under subsection (2) is 2 penalty units. (3) The * base penalty amount is multiplied by 2 if: (a) the entity concerned is a * medium withholder for the month in which the return, notice or other document was required to be given; or (b) the entity’s assessable income for the income year in which the return, notice or other document is required to be given is more than $1 million but less than $20 million; or (c) the entity’s * current GST turnover worked out at a time in the month in which the return, notice or other document was required to be given is more than $1 million but less than $20 million. (4) The * base penalty amount is multiplied by 5 if: (a) the entity concerned is a * large withholder for the month when the return, notice or other document was required to be given; or (b) the entity’s assessable income for the income year in which the return, notice or other document is required to be given is $20 million or more; or (c) the entity’s * current GST turnover worked out at a time in the month in which the return, notice or other document was required to be given is $20 million or more. (4A) Neither subsection (3) nor (4) applies to the entity, and the * base penalty amount is multiplied by 500, if: (a) the failure referred to in subsection (2) is a failure to give a return, notice or other document on time or in the * approved form, as mentioned in subsection 286 ‑ 75(1); and (b) on or before the day the return, notice or other document is required to be given: (i) the Commissioner has made an assessment of the entity’s income tax for one or more income years; or (ii) the Commissioner has made a determination under subsection 960 ‑ 555(3) of the Income Tax Assessment Act 1997 in relation to the entity, or in relation to the * global parent entity for the group of which the entity is a member, for a period; or (iii) the entity has given the Commissioner statements in accordance with Subdivision 815 ‑ E of that Act for an income year or another 12 month period; or (iv) the entity was a * subsidiary member of a * consolidated group or a * MEC group for one or more income years, and the Commissioner has made an assessment of the income tax of another entity that was a * member of the group for one or more of those income years; and (c) the entity was a * significant global entity for: (i) whichever of those income years or periods that ends on the most recent day; or (ii) if more than one of them ends on that most recent day—any of those income years or periods that ends on that most recent day. Note: For subparagraph (b)(iii), an entity may be allowed to give statements for a 12 month period other than an income year (see section 815 ‑ 360 of the Income Tax Assessment Act 1997 ). (4B) However, subsection (4A) is taken never to have applied to the entity in relation to the day the return, notice or other document is required to be given if: (a) the Commissioner makes an assessment of: (i) the entity’s income tax for the income year that includes that day; or (ii) if the entity was a * subsidiary member of a * consolidated group or a * MEC group for the income year that includes that day—the income tax, for that income year, of another * member of that group; and (b) the entity is not a * significant global entity for that income year. (4C) Neither subsection (3) nor (4) applies to the entity, and the * base penalty amount is multiplied by 500, if: (a) the base penalty amount arises in relation to * Australian IIR/UTPR tax or * Australian DMT tax in relation to an * Applicable MNE Group for a * Fiscal Year; and (b) the entity concerned is a * Group Entity of the Applicable MNE Group. (5) In working out the * base penalty amount, the amount of a penalty unit is the amount applying at the start of the relevant 28 day period. (6) The fact that you have not yet given the relevant return, notice or other document does not prevent the Commissioner notifying you that you are liable to an administrative penalty under this Subdivision. That penalty may be later increased under this section. Note: The Commissioner is required to notify you of an administrative penalty: see section 298 ‑ 10.

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Amended by No 117 of 2002, effective sch 11 (items 12 ‑ 15), sch 14 (items 14, 15): 24 Oct 2002 (s 2(1) item 9) | Amended by No 16 of 2003, effective sch 4 (items 8 ‑ 10), sch 6 (items 11, 12), sch 14 (items 8 ‑ 12), sch 23 (item 14), sch 24 (items 1 ‑ 19): 24 Oct 2002 (s 2(1) items 3, 4, 9, 13, 14) sch 28 (items 14 ‑ 18, 19(3)): 29 June 2002 (s 2(1) items 17, 19) | Amended by No 9 of 2007, effective sch 1 (items 19 ‑ 24), sch 2 (items 4, 5), sch 4 (items 11 ‑ 16), sch 5 (items 31 ‑ 36): 15 Mar 2007 (s 2(1) items 2 ‑ 8) | Amended by No 80 of 2007, effective 21 June 2007 | Amended by No 45 of 2008, effective sch 1 (items 53 ‑ 66), sch 4 (item 64), sch 6 (items 18 ‑ 21), sch 7 (item 56): 26 June 2008 | Amended by No 133 of 2009, effective sch 1 (items 2 ‑ 5, 78 ‑ 82, 86, 87): 14 Dec 2009 sch 3 (items 41 ‑ 45): Royal Assent | Amended by No 93 of 2011, effective sch 3 (items 109 ‑ 111), sch 4 (items 1 ‑ 6): Royal Assent | Amended by No 14 of 2012, effective sch 1, sch 2 (items 1 ‑ 9): 1 July 2012 (s 2(1) items 2, 3) sch 2 (items 17 ‑ 28): never commenced (s 2(1) item 4) | Amended by No 96 of 2014, effective sch 1 (items 54 ‑ 108, 122 ‑ 124), sch 2 (items 41 ‑ 43): 30 Sept 2014 (s 2(1) item 2, F2014L01256) | Amended by No 53 of 2016, effective sch 1 (items 2 ‑ 4), sch 3 (items 5 ‑ 23), sch 4 (items 6 ‑ 9), sch 5 (items 73 ‑ 75), sch 6 (items 35 ‑ 68), sch 8 (item 1): 5 May 2016 (s 2(1) items 2, 4) sch 7 (items 1, 2): 1 July 2014 (s 2(1) item 3) | Amended by No 27 of 2017, effective sch 1 (items 44 ‑ 49, 52), sch 2: 1 July 2017 (s 2(1) items 4, 5) | Amended by No 55 of 2017, effective sch 1 (items 23, 24, 32): 1 July 2017 (s 2(1) items 5, 7) | Amended by No 64 of 2020, effective sch 3 (items 124 ‑ 145): 1 July 2020 (s 2(1) item 5) sch 3 (items 302 ‑ 321, 325, 326): 1 Oct 2020 (s 2(1) item 6) | Amended by No 134 of 2024, effective sch 1 (items 32 ‑ 64, 68, 69): 11 Dec 2024 (s 2(1) item 1) | Amended by No 49 of 2026, effective sch 1 (items 52, 53, 80, 81): 1 July 2026 (s 2(1) items 2, 4)

s 288-10 — Penalty for non ‑ electronic notification

An entity that: (a) under subsection 31 ‑ 25(2) of the * GST Act, is required to * lodge a * GST return electronically; or (aa) under subsection 45 ‑ 20(2A) in this Schedule, is required to give a notification electronically; or (b) under section 388 ‑ 80 in this Schedule, is required to notify another * BAS amount electronically; but lodges, gives or notifies it in another way, is liable to an administrative penalty of 5 penalty units. Note 1: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit. Note 2: Division 298 contains machinery provisions for administrative and civil penalties.

Amendment history: Inserted by No 179 of 1999, effective sch 1 (items 1 ‑ 4, 7, 8), sch 2 (items 1 ‑ 4, 86 ‑ 93, 103 ‑ 107, 130, 131), sch 3 (items 1, 2), sch 4, sch 5 (items 69, 73, 74), sch 6 (items 14 ‑ 24), sch 10 (items 1 ‑ 18), sch 12 (item 21), sch 14: 22 Dec 1999 (s 2(1) ‑ (6), (7)(b), (c)) sch 2 (items 94 ‑ 102), sch 11 (items 111, 112), sch 12 (items 4 ‑ 20), sch 15 (items 9 ‑ 18): 1 July 2000 (s 2(8), (9)(b), (12)) | Amended by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Amended by No 101 of 2004, effective sch 11 (items 3 ‑ 15): 22 Dec 1999 (s 2(1) item 12) sch 11 (item 130): 30 June 2001 (s 2(1) item 15) sch 11 (items 155 ‑ 160, 163, 164): 30 June 2004 (s 2(1) items 17, 18) | Amended by No 32 of 2006, effective 6 Apr 2006 | Amended by No 124 of 2013, effective sch 1 (items 1 ‑ 36, 45 ‑ 49), sch 5 (items 1 ‑ 6, 8): 29 June 2013 (s 2(1) items 2, 10) sch 11 (items 26, 27): 30 June 2013 (s 2(1) item 17)

s 288-20 — Penalty for non ‑ electronic payment

An entity that: (a) under subsection 33 ‑ 10(2) of the * GST Act, is required to pay an * assessed net amount for a tax period electronically; or (b) under section 8AAZMA, or section 45 ‑ 72 in this Schedule, is required to pay an amount electronically; but pays it another way, is liable to an administrative penalty of 5 penalty units for each payment of one or more such amounts. Note 1: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit. Note 2: Division 298 contains machinery provisions for administrative and civil penalties.

Amendment history: Inserted by No 179 of 1999, effective sch 1 (items 1 ‑ 4, 7, 8), sch 2 (items 1 ‑ 4, 86 ‑ 93, 103 ‑ 107, 130, 131), sch 3 (items 1, 2), sch 4, sch 5 (items 69, 73, 74), sch 6 (items 14 ‑ 24), sch 10 (items 1 ‑ 18), sch 12 (item 21), sch 14: 22 Dec 1999 (s 2(1) ‑ (6), (7)(b), (c)) sch 2 (items 94 ‑ 102), sch 11 (items 111, 112), sch 12 (items 4 ‑ 20), sch 15 (items 9 ‑ 18): 1 July 2000 (s 2(8), (9)(b), (12)) | Amended by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Amended by No 101 of 2004, effective sch 11 (items 3 ‑ 15): 22 Dec 1999 (s 2(1) item 12) sch 11 (item 130): 30 June 2001 (s 2(1) item 15) sch 11 (items 155 ‑ 160, 163, 164): 30 June 2004 (s 2(1) items 17, 18) | Amended by No 32 of 2006, effective 6 Apr 2006 | Amended by No 58 of 2006, effective sch 7 (items 131 ‑ 169, 217 ‑ 219): 22 June 2006 (s 2(1) items 6, 24) | Amended by No 39 of 2012, effective sch 1 (items 1, 2, 29, 190 ‑ 223, 231 ‑ 240): 1 July 2012 (s 2(1) item 2) sch 1 (items 255 ‑ 264): 1 Jan 2017 (s 2(1) item 3) sch 4 (items 19 ‑ 24): 15 Apr 2012 (s 2(1) item 8) | Amended by No 124 of 2013, effective sch 1 (items 1 ‑ 36, 45 ‑ 49), sch 5 (items 1 ‑ 6, 8): 29 June 2013 (s 2(1) items 2, 10) sch 11 (items 26, 27): 30 June 2013 (s 2(1) item 17)

s 288-25 — Penalty for failure to keep or retain records

(1) You are liable to an administrative penalty of 20 penalty units if: (a) a provision of a * taxation law requires you to keep or retain a record; and (b) you do not keep or retain that record in the manner required by that law. (2) Subsection (1) does not apply to: (a) documents required to be retained under Part X of the Fringe Benefits Tax Assessment Act 1986 (about statutory evidentiary documents); or (b) documents required to be kept or retained under Division 900 of the Income Tax Assessment Act 1997 (about substantiation of expenses); or (c) if you are given a * tax ‑ records education direction—documents to which a record ‑ keeping failure specified in the direction relates, unless you have not complied with the direction. Note 1: For paragraph (c): (a) for tax ‑ records education directions, see section 384 ‑ 12; and (b) for whether you have complied with the direction, see subsection 384 ‑ 15(3). Note 2: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Amended by No 84 of 2022, effective sch 1 (items 1 ‑ 15, 17 ‑ 20), sch 2: 1 Jan 2023 (s 2(1) item 2) sch 4: 13 Dec 2022 (s 2(1) item 3)

s 288-30 — Penalty for failure to retain or produce declarations

You are liable to an administrative penalty of 20 penalty units if: (a) a provision of a * taxation law requires you to retain or produce a declaration you made about an agent giving an * approved form to the Commissioner on your behalf; and (b) you do not retain or produce that declaration in the manner required by that law. Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4))

s 288-35 — Penalty for preventing access etc.

You are liable to an administrative penalty of 20 penalty units if: (a) a provision of a * taxation law confers a power on an officer authorised under that law: (i) to enter or remain on land, premises or a place that you occupy; or (ii) to have access to documents, goods or other property in your possession; or (iii) to inspect, copy or take extracts from documents in your possession; or (iv) to inspect, examine, count, measure, weigh, gauge, test or analyse any goods or other property in your possession and, to that end, take samples; and (b) you refuse to provide the officer with all reasonable facilities for the officer effectively to exercise that power in accordance with that law. Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4))

s 288-40 — Penalty for failing to register or cancel registration

You are liable to an administrative penalty of 20 penalty units if you fail to apply for registration, or to apply for cancellation of registration, as required by the * GST Act. Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Amendment history: Inserted by No 92 of 2000, effective sch 1 (items 10, 10A, 11), sch 4 (item 10), sch 6 (items 8 ‑ 10), sch 7 (items 31 ‑ 33), sch 9 (items 12 ‑ 16, 18), sch 11 (item 17): 1 July 2000 (s 2(1), (3))

s 288-45 — Penalty for failing to issue tax invoice etc.

(1) You are liable to an administrative penalty of 20 penalty units if you fail to issue a tax invoice as required by section 29 ‑ 70 of the * GST Act. (2) You are liable to an administrative penalty of 20 penalty units if you fail to issue an adjustment note as required by section 29 ‑ 75 of the * GST Act. (2A) You are liable to an administrative penalty of 20 penalty units if you fail to give a notice as required by subsection 84 ‑ 89(3) of the * GST Act. (3) You are liable to an administrative penalty of 20 penalty units if you fail to issue a third party adjustment note as required by section 134 ‑ 20 of the * GST Act. Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Amendment history: Inserted by No 92 of 2000, effective sch 1 (items 10, 10A, 11), sch 4 (item 10), sch 6 (items 8 ‑ 10), sch 7 (items 31 ‑ 33), sch 9 (items 12 ‑ 16, 18), sch 11 (item 17): 1 July 2000 (s 2(1), (3)) | Amended by No 21 of 2010, effective sch 1 (items 24 ‑ 29): Royal Assent | Amended by No 77 of 2017, effective sch 1 (items 61 ‑ 66): 1 July 2017 (s 2(1) item 1)

s 288-46 — Penalty for failing to ensure tax information about supplies of low value goods is included in customs documents

You are liable to an administrative penalty of 20 penalty units if: (a) you are required by section 84 ‑ 93 of the * GST Act to ensure that the information set out in subsection 84 ‑ 93(2) of that Act is included in one or more of the documents referred to in subsection 84 ‑ 93(3) of that Act; but (b) you fail to take reasonable steps to do so.

Amendment history: Inserted by No 77 of 2017, effective sch 1 (items 61 ‑ 66): 1 July 2017 (s 2(1) item 1)

s 288-50 — Penalty for both principal and agent issuing certain documents

An entity is liable to an administrative penalty of 20 penalty units if both the entity and its agent issue: (a) separate tax invoices relating to the same taxable supply, contrary to subsection 153 ‑ 15(2) of the * GST Act; or (b) separate adjustment notes, or third party adjustment notes, for the same decreasing adjustment, contrary to subsection 153 ‑ 20(2) of that Act. Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Amendment history: Inserted by No 92 of 2000, effective sch 1 (items 10, 10A, 11), sch 4 (item 10), sch 6 (items 8 ‑ 10), sch 7 (items 31 ‑ 33), sch 9 (items 12 ‑ 16, 18), sch 11 (item 17): 1 July 2000 (s 2(1), (3)) | Amended by No 21 of 2010, effective sch 1 (items 24 ‑ 29): Royal Assent

s 288-70 — Administrative penalties for life insurance companies

Complying superannuation asset pool—calculation of an amount (1) A * life insurance company is liable to an administrative penalty if the company: (a) is required to calculate a particular amount under section 320 ‑ 175 of the Income Tax Assessment Act 1997 ; but (b) fails to do so within the period of 60 days that is required by that section. Complying superannuation asset pool—transfer following valuation (2) A * life insurance company is liable to an administrative penalty if the company: (a) is required to transfer assets having a particular * transfer value from its * complying superannuation assets under subsection 320 ‑ 180(1) of the Income Tax Assessment Act 1997 ; but (b) fails to do so within the period of 30 days that is required by subsection 320 ‑ 180(2) of that Act. Segregated exempt assets—calculation of an amount (3) A * life insurance company is liable to an administrative penalty if the company: (a) is required to calculate a particular amount under section 320 ‑ 230 of the Income Tax Assessment Act 1997 ; but (b) fails to do so within the period of 60 days that is required by that section. Segregated exempt assets—transfer following valuation (4) A * life insurance company is liable to an administrative penalty if the company: (a) is required to transfer assets having a particular * transfer value from its * segregated exempt assets under subsection 320 ‑ 235(1) of the Income Tax Assessment Act 1997 ; but (b) fails to do so within the period of 30 days that is required by subsection 320 ‑ 235(2) of that Act. How to work out the administrative penalty (5) The administrative penalty under subsection (1), (2), (3) or (4) for a failure to make a calculation or transfer is equal to 5 penalty units for each period of 28 days or part of a period of 28 days: (a) starting immediately after the end of the period mentioned in paragraph (b) of that subsection; and (b) ending at the end of the day on which the calculation or transfer is made. However, the maximum penalty for that failure must not exceed 25 penalty units. Note 1: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit. Note 2: Division 298 contains machinery provisions for the penalties provided by this section.

Amendment history: Inserted by No 83 of 2004, effective sch 1 (item 84): 30 June 2000 (s 2(1) item 2) sch 1 (item 107): 17 Dec 2003 (s 2(1) item 11) sch 1 (items 125, 126(1), (6), (11)): 25 June 2004 (s 2(1) item 12) | Amended by No 45 of 2008, effective sch 1 (items 53 ‑ 66), sch 4 (item 64), sch 6 (items 18 ‑ 21), sch 7 (item 56): 26 June 2008 | Amended by No 70 of 2015, effective sch 1 (items 151 ‑ 174, 195 ‑ 205): 1 July 2015 (s 2(1) items 3, 6) sch 6 (items 51 ‑ 59): 25 June 2015 (s 2(1) item 17)

s 288-75 — Administrative penalty for a copyright or resale royalty collecting society

(1) A * copyright collecting society is liable to an administrative penalty of 20 penalty units if the society fails to give a notice as required by section 410 ‑ 5 of the Income Tax Assessment Act 1997 . (2) The * resale royalty collecting society is liable to an administrative penalty of 20 penalty units if the society fails to give a notice as required by section 410 ‑ 50 of the Income Tax Assessment Act 1997 . Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Amendment history: Inserted by No 23 of 2005, effective sch 2 (items 13, 14(2)), sch 3 (items 103 ‑ 109, 111(3)): Royal Assent | Repealed and substituted by No 126 of 2009, effective sch 1 (items 19, 20): 9 June 2010 ( see s 2(1))

s 288-80 — Administrative penalty for over declaring conduit foreign income

(1) An * Australian corporate tax entity is liable to an administrative penalty if: (a) the entity makes a * frankable distribution that has an * unfranked part; and (b) the entity declares an amount of the unfranked part to be * conduit foreign income; and (c) the sum of the amounts declared exceeds the amount of the entity’s conduit foreign income at: (i) if the entity declares the distribution before making the distribution—the time of the declaration; or (ii) otherwise—the time the distribution is made. (2) The amount of the penalty is the sum of the amounts worked out under subsections (3) and (4). (3) The amount is: where: Australian membership interests means the number of * membership interests or * non ‑ share equity interests in the entity that are not covered by the definition of foreign membership interests in subsection (4). total membership interests means the number of * membership interests or * non ‑ share equity interests in the entity held by entities that are entitled to receive the * distribution. (4) The amount is: where: applicable withholding tax rate means 50% of the rate of tax set out in paragraph 7(a) of the Income Tax (Dividends, Interest and Royalties Withholding Tax) Act 1974 . foreign membership interests means the number of * membership interests or * non ‑ share equity interests in the entity held by entities that are entitled to receive the * distribution and in relation to whom the entity is required to withhold amounts under section 12 ‑ 210 disregarding the operation of section 12 ‑ 300 (about limits on the amount withheld). total membership interests means the number of * membership interests or * non ‑ share equity interests in the entity held by entities that are entitled to receive the * distribution.

Amendment history: Inserted by No 147 of 2005, effective sch 2 (item 25): Royal Assent | Amended by No 143 of 2007, effective sch 1 (items 212, 222, 225, 226), sch 4 (items 47, 48, 51, 52), sch 5 (items 29, 30, 48(1), (4), (5)), sch 7 (items 99 ‑ 102, 104(3)): 24 Sept 2007 (s 2(1) items 2, 4, 5, 7, 11) sch 5 (item 47): 15 Mar 2007 (s 2(1) item 6) | Amended by No 12 of 2012, effective sch 6 (items 27 ‑ 29): 22 Dec 1999 (s 2(1) item 11) sch 6 (items 84 ‑ 93, 186, 187, 191, 192, 212, 213, 218, 241 ‑ 246, 248 ‑ 251): 21 Mar 2012 (s 2(1) items 14, 31) sch 6 (item 182): 3 Oct 2008 (s 2(1) item 30)

s 288-85 — Failure by Reporting Financial Institution to obtain self ‑ certification

An entity that: (a) is: (i) a Reporting Financial Institution (within the meaning of the * CRS); or (ii) an institution that a notice under subsection 396 ‑ 130(5) requires to act as a Reporting Financial Institution; and (b) is required to obtain a self ‑ certification, in relation to an account maintained by the institution, when applying the due diligence procedures described in the CRS; and (c) fails to obtain the self ‑ certification: (i) if the account is a Reportable Account (within the meaning of the CRS) or an account that a notice under subsection 396 ‑ 130(2) requires the entity to treat as a Reportable Account—by the time by which a statement under subsection 396 ‑ 105(2) relating to the account must be given to the Commissioner; or (ii) otherwise—by the time by which such a statement would be required to be given to the Commissioner if the account were such a Reportable Account; is liable to an administrative penalty of 1 penalty unit.

Amendment history: Inserted by No 9 of 2007, effective sch 1 (items 19 ‑ 24), sch 2 (items 4, 5), sch 4 (items 11 ‑ 16), sch 5 (items 31 ‑ 36): 15 Mar 2007 (s 2(1) items 2 ‑ 8) | Repealed by No 56 of 2010, effective s 4(2), sch 3 (items 9, 10(1), (5)), sch 5 (items 191 ‑ 193), sch 6 (items 12 ‑ 14, 27 ‑ 36, 44 ‑ 53, 110, 111, 116, 159, 160): 3 June 2010 (s 2(1) items 1, 7, 11, 15, 20, 23) sch 1 (item 8): 17 Dec 2010 (s 2(1) item 4) sch 2 (items 3, 4), sch 6 (items 58 ‑ 97, 101 ‑ 105): 4 June 2010 (s 2(1) items 6, 16, 17) | Inserted by No 23 of 2016, effective sch 1 (items 2, 8 ‑ 11, 13 ‑ 15, 19): 19 Mar 2016 (s 2(1) items 2, 4, 6, 8) sch 1 (items 3 ‑ 7, 12): never commenced (s 2(1) items 3, 5)

s 288-95 — Failing to comply etc. with release authority

(2) A * superannuation provider that has been given a transitional release authority in accordance with section 292 ‑ 80B of the Income Tax (Transitional Provisions) Act 1997 and that fails to comply with subsection 292 ‑ 80C(1) of that Act is liable to an administrative penalty of 20 penalty units. (3) A * superannuation provider that fails to comply with section 131 ‑ 35 (about release authorities for superannuation) is liable to an administrative penalty of 20 penalty units. (4) A * superannuation provider that fails to comply with section 135 ‑ 75 (about release authorities for debt account discharge liabilities) is liable to an administrative penalty of 20 penalty units. (5) A * superannuation provider that fails to comply with section 139 ‑ 135 (about release authorities following a perpetrator contributions release order) is liable to an administrative penalty of 20 penalty units.

Amendment history: Inserted by No 9 of 2007, effective sch 1 (items 19 ‑ 24), sch 2 (items 4, 5), sch 4 (items 11 ‑ 16), sch 5 (items 31 ‑ 36): 15 Mar 2007 (s 2(1) items 2 ‑ 8) | Amended by No 75 of 2012, effective sch 4 (items 13 ‑ 16, 20), sch 5, sch 7: Royal Assent | Amended by No 82 of 2013, effective sch 3 (items 2 ‑ 5, 14 ‑ 37, 39): 28 June 2013 (s 2) | Amended by No 118 of 2013, effective sch 1 (items 2, 29 ‑ 36, 81 ‑ 84, 101 ‑ 110): 29 June 2013 (s 2(1) items 2, 10, 11) | Amended by No 21 of 2015, effective sch 1 (items 18 ‑ 49), sch 5, sch 7 (items 33 ‑ 43): 20 Mar 2015 (s 2(1) items 2, 6, 15) sch 2 (items 39 ‑ 46): 1 May 2015 (s 2(1) item 3) sch 4 (items 8, 9): 1 July 2015 (s 2(1) item 5) sch 6 (items 26 ‑ 37, 73): 19 Mar 2015 (s 2(1) item 11, 13) sch 6 (items 60 ‑ 72, 74 ‑ 79): never commenced (s 2(1) items 12, 14) | Amended by No 81 of 2016, effective sch 1 (items 10 ‑ 25, 33, 36), sch 2 (items 19, 20), sch 10 (items 55 ‑ 65, 86 ‑ 93): 1 Jan 2017 (s 2(1) items 2, 6) sch 10 (items 1, 29 ‑ 47, 49 ‑ 54): 1 July 2018 (s 2(1) item 5) | Amended by No 47 of 2026, effective sch 1 (items 1 ‑ 4): 21 May 2026 (s 2(1) item 1)

s 288-100 — Excess money paid under release authority

(1) A person is liable for an administrative penalty of 20 penalty units if: (a) the person gives one or more * superannuation providers a release authority in accordance with section 292 ‑ 80B of the Income Tax (Transitional Provisions) Act 1997 ; and (b) the total of the amounts paid by the superannuation provider or providers to the person and the Commissioner as a result of being given the release authority exceeds the amount required to be paid in respect of the release authority under section 292 ‑ 80C of that Act. (2) An individual is liable to an administrative penalty of 20 penalty units if one or more * superannuation benefits that the individual receives (or is taken to receive), paid in relation to a release authority issued in accordance with Subdivision 135 ‑ A in this Schedule, is assessable income to any extent.

Amendment history: Inserted by No 9 of 2007, effective sch 1 (items 19 ‑ 24), sch 2 (items 4, 5), sch 4 (items 11 ‑ 16), sch 5 (items 31 ‑ 36): 15 Mar 2007 (s 2(1) items 2 ‑ 8) | Amended by No 82 of 2013, effective sch 3 (items 2 ‑ 5, 14 ‑ 37, 39): 28 June 2013 (s 2) | Amended by No 81 of 2016, effective sch 1 (items 10 ‑ 25, 33, 36), sch 2 (items 19, 20), sch 10 (items 55 ‑ 65, 86 ‑ 93): 1 Jan 2017 (s 2(1) items 2, 6) sch 10 (items 1, 29 ‑ 47, 49 ‑ 54): 1 July 2018 (s 2(1) item 5)

s 288-105 — Superannuation provider to calculate crystallised pre ‑ July 83 amount of superannuation interest by 30 June 2008

(1) An entity is liable to an administrative penalty of 5 penalty units if: (a) the entity is the * superannuation provider in relation to a * superannuation plan (other than a * constitutionally protected fund) on 30 June 2008; and (b) the entity has not ensured that the crystallised pre ‑ July 83 amount in relation to each superannuation interest in the plan has been calculated on or before that day. (2) For the purpose of paragraph (1)(b), disregard a * superannuation interest unless the * element taxed in the fund of the * taxable component of the interest exceeds nil just before 1 July 2007. (3) For the purpose of paragraph (1)(b), disregard a * superannuation interest that supported a * superannuation income stream just before 1 July 2007.

Amendment history: Inserted by No 9 of 2007, effective sch 1 (items 19 ‑ 24), sch 2 (items 4, 5), sch 4 (items 11 ‑ 16), sch 5 (items 31 ‑ 36): 15 Mar 2007 (s 2(1) items 2 ‑ 8)

s 288-110 — Contravention of superannuation data and payment regulation or standard

Liability to penalty—RSA providers and trustees of eligible superannuation entities (1) An entity is liable to an administrative penalty if the entity contravenes: (a) subsection 34M(1) of the Superannuation Industry (Supervision) Act 1993 ; or (b) subsection 45D(1) of the Retirement Savings Accounts Act 1997 . (2) An entity is liable to an administrative penalty if the entity contravenes: (a) subsection 34P(6) of the Superannuation Industry (Supervision) Act 1993 ; or (b) subsection 45F(6) of the Retirement Savings Accounts Act 1997 . Liability to penalty—employers (3) An entity is liable to an administrative penalty if the entity contravenes: (a) subsection 34N(1) of the Superannuation Industry (Supervision) Act 1993 ; or (b) subsection 45E(1) of the Retirement Savings Accounts Act 1997 . (4) An entity is liable to an administrative penalty if the entity contravenes: (a) subsection 34Q(6) of the Superannuation Industry (Supervision) Act 1993 ; or (b) subsection 45G(6) of the Retirement Savings Accounts Act 1997 . Amount of the penalty (5) The amount of the penalty is: (a) for an administrative penalty under subsection (1) or (3) — 4 penalty units; or (b) for an administrative penalty under subsection (2) or (4)—10 penalty units. Note: The Commissioner is required to notify you of an administrative penalty: see section 298 ‑ 10.

Amendment history: Inserted by No 91 of 2012, effective sch 1 (items 3, 20): 29 June 2012 | Amended by No 158 of 2012, effective sch 2 (item 69): 31 Jan 2013 (s 2(1) item 5) sch 3: 28 Nov 2012 (s 2(1) item 6) sch 4 (item 74): 29 Nov 2012 (s 2(1) item 10)

s 288-115 — AMIT under or over resulting from intentional disregard of or recklessness as to taxation law

(1) An entity is liable to an administrative penalty if: (a) the entity is a trustee of an * AMIT for an income year (the base year ); and (b) the AMIT has an * under or * over for the base year; and (c) at least one of the items in the table in subsection (3) applies in respect of the under or over. (2) To avoid doubt, subsection (1) has a separate operation in respect of each * under or * over mentioned in paragraph (1)(b). (3) The amount of the penalty is 47% of the amount worked out using this table: Amount of penalty Item Column 1 In this situation … Column 2 in the case of an * under or * over covered by subsection (5), the amount is: Column 3 in the case of an * under or * over covered by subsection (6), the amount is: 1 if the * under or * over resulted from intentional disregard of a * taxation law (other than the * Excise Acts) by the trustee of the * AMIT or the trustee’s agent 75% of the under or over 30% of the under or over 2 if the * under or * over resulted from recklessness by the trustee of the * AMIT or the trustee’s agent as to the operation of a * taxation law (other than the * Excise Acts) 50% of the under or over 20% of the under or over (4) Despite subsection (3): (a) if the penalty specified under column 3 of item 1 of the table in that subsection is less than 60 penalty units—the amount of the penalty is 60 penalty units; and (b) if the penalty specified under column 3 of item 2 of the table in that subsection is less than 40 penalty units—the amount of the penalty is 40 penalty units. (5) This subsection covers the following: (a) an * under of: (i) a character relating to assessable income; or (ii) a character relating to * exempt income; or (iii) a character relating to * non ‑ assessable non ‑ exempt income; (b) an * over of a character relating to a * tax offset. (6) This subsection covers the following: (a) an * over of: (i) a character relating to assessable income; or (ii) a character relating to * exempt income; or (iii) a character relating to * non ‑ assessable non ‑ exempt income; (b) an * under of a character relating to a * tax offset. (7) If both items in the table in subsection (3) apply, use item 1 and not item 2. (8) If the income year corresponds to a financial year that is a temporary budget repair levy year (within the meaning of section 4 ‑ 11 of the Income Tax (Transitional Provisions) Act 1997 ), treat the reference in subsection (3) to 47% as instead being a reference to 49%.

Amendment history: Inserted by No 52 of 2016, effective sch 1 (items 37 ‑ 39), sch 2 (items 17A, 25 ‑ 27), sch 3 (items 14, 15): 1 July 2016 (s 2(1) item 1) | Inserted by No 53 of 2016, effective sch 1 (items 2 ‑ 4), sch 3 (items 5 ‑ 23), sch 4 (items 6 ‑ 9), sch 5 (items 73 ‑ 75), sch 6 (items 35 ‑ 68), sch 8 (item 1): 5 May 2016 (s 2(1) items 2, 4) sch 7 (items 1, 2): 1 July 2014 (s 2(1) item 3)

s 288-120 — Prohibited offsets of liabilities using interest etc. accrued on farm management deposits

(1) The person who made or is making a * farm management deposit is liable to an administrative penalty if: (a) the fact that the person made or is making the deposit is the reason why, or one of the reasons why, an amount of interest payable to the * FMD provider in respect of loans or other debts falls short of what it would otherwise be; and (b) the shortfall: (i) contravenes a requirement, contained in the agreement mentioned in paragraph 393 ‑ 20(1)(b) of the Income Tax Assessment Act 1997 in relation to the deposit, as set out in item 8 of the table in section 393 ‑ 35 of that Act; or (ii) would contravene such a requirement if it were contained in that agreement. (2) The amount of the penalty is 200% of so much of the shortfall as contravenes that requirement, or would contravene such a requirement.

s 288-125 — Producing or supplying electronic sales suppression tools

(1) You are liable to an administrative penalty of 60 penalty units if you: (a) manufacture, develop or publish an * electronic sales suppression tool; or (b) * supply or make available for use: (i) an electronic sales suppression tool; or (ii) a * right to use an electronic sales suppression tool; or (c) provide a service to an entity that involves the use of an electronic sales suppression tool. (2) You are liable to an administrative penalty of 60 penalty units if you aid, abet, counsel or procure conduct for which subsection (1) makes an entity liable to an administrative penalty. Note: Division 298 contains machinery provisions for administrative penalties. (3) You are not liable to an administrative penalty under this section for conduct undertaken for the purpose of preventing or deterring tax evasion or enforcing a * taxation law.

Amendment history: Inserted by No 121 of 2018, effective sch 1 (items 2 ‑ 4), sch 2: 4 Oct 2018 (s 2(1) item 1)

s 288-130 — Possessing electronic sales suppression tools

(1) You are liable to an administrative penalty of 30 penalty units if: (a) you are required under, or pursuant to, a * taxation law (other than an * Excise Act) to keep or make a record; and (b) you acquire, or have possession or control of: (i) an * electronic sales suppression tool; or (ii) a * right to use an electronic sales suppression tool. (2) You are liable to an administrative penalty of 30 penalty units if you aid, abet, counsel or procure conduct for which subsection (1) makes an entity liable to an administrative penalty. Note: Division 298 contains machinery provisions for administrative penalties. (3) You are not liable to an administrative penalty under this section for conduct undertaken for the purpose of preventing or deterring tax evasion or enforcing a * taxation law.

Amendment history: Inserted by No 121 of 2018, effective sch 1 (items 2 ‑ 4), sch 2: 4 Oct 2018 (s 2(1) item 1)

s 288-135 — Incorrectly keeping records using electronic sales suppression tools

(1) You are liable to an administrative penalty of 60 units if: (a) you are required under, or pursuant to, a * taxation law (other than an * Excise Act) to keep or make a record; and (b) the record is kept, made or altered with the use of an * electronic sales suppression tool, or is prevented by the use of an electronic sales suppression tool from being kept, made or altered; and (c) as a result of the use: (i) the record does not correctly record and explain the matter, transaction, act or operation to which it relates; or (ii) you do not keep or make the record in accordance with the taxation law. (2) You are liable to an administrative penalty of 60 penalty units if you aid, abet, counsel or procure conduct for which subsection (1) makes an entity liable to an administrative penalty. Note: Division 298 contains machinery provisions for administrative penalties.

Amendment history: Inserted by No 121 of 2018, effective sch 1 (items 2 ‑ 4), sch 2: 4 Oct 2018 (s 2(1) item 1)

s 288-140 — Penalty for failing to publish information on time

(1) You are liable to an administrative penalty if: (a) you are required under subsection 3D(3) or 3DB(2) to publish information by giving a document containing the information to the Commissioner in the * approved form by a particular day; and (b) you do not publish the information by giving the document to the Commissioner in the approved form by that day. (2) The amount of the penalty is 500 penalty units for each period of 28 days or part of a period of 28 days: (a) starting on the day mentioned in paragraph (1)(a); and (b) ending when you publish the information by giving the document to the Commissioner in the approved form; up to a maximum of 2,500 penalty units. Note: Division 298 contains machinery provisions for administrative penalties.

Amendment history: Inserted by No 138 of 2024, effective sch 1 (items 13 ‑ 25), sch 4: 1 Jan 2025 (s 2(1) items 2, 5)

s 290-5 — Objects of this Division

The objects of this Division are: (a) to deter the promotion of tax avoidance * schemes and tax evasion schemes; and (aa) to deter the promotion of schemes on the basis of conformity with a * public ruling, * private ruling or * oral ruling if the scheme is materially different from that described in the ruling; and (b) to deter the implementation of schemes that have been promoted on the basis of conformity with a public ruling, private ruling or oral ruling in a way that is materially different from that described in the ruling.

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006 | Amended by No 37 of 2024, effective sch 1 (items 5 ‑ 37), sch 2: 1 July 2024 (s 2(1) item 2) sch 4 (items 1 ‑ 3, 5): 1 June 2024 (s 2(1) item 3)

s 290-10 — Extra ‑ territorial application

This Division extends to acts, omissions, matters and things outside Australia.

Amendment history: Inserted by No 84 of 2013, effective sch 8 (items 33 ‑ 37): 28 June 2013 (s 2(1) item 4)

s 290-50 — Civil penalties

Promoter of tax exploitation scheme (1) An entity must not engage in conduct that results in that or another entity being a * promoter of a * tax exploitation scheme. Promoting scheme otherwise than in accordance with ruling (1A) An entity must not engage in conduct that results in a * scheme that is materially different from that described in a * public ruling, * private ruling or * oral ruling being promoted on the basis of conformity with that ruling. Implementing scheme otherwise than in accordance with ruling (2) An entity must not engage in conduct that results in a * scheme that has been promoted on the basis of conformity with a * public ruling, * private ruling or * oral ruling (whether or not the ruling actually relates to the scheme) being implemented in a way that is materially different from that described in the ruling. Note: A scheme will not have been implemented in a way that is materially different from that described in a ruling if the tax outcome for participants in the scheme is the same as that described in the ruling. (2A) For the purposes of subsections (1A) and (2), disregard: (a) subsection 82KZMGA(1A) of the Income Tax Assessment Act 1936 ; and (b) subsection 394 ‑ 10(5A) of the Income Tax Assessment Act 1997 . Note 1: Those 2 subsections relate to forestry managed investment schemes. Note 2: The effect of this subsection is that a scheme will have been implemented in a way that is materially different from that described in a ruling if the tax outcome for participants in the scheme is the same as that described in the ruling only because of the operation of the subsections mentioned in paragraphs (a) and (b). Civil penalty (3) If the Federal Court of Australia is satisfied, on application by the Commissioner, that an entity has contravened subsection (1), (1A) or (2), the Court may order the entity to pay a civil penalty to the Commonwealth. Note: If the entity is a registered tax agent or BAS agent, being penalised under this subsection may affect the continued registration of the entity: see section 20 ‑ 45 and Subdivision 40 ‑ A of the Tax Agent Services Act 2009 . Amount of penalty (4) The maximum amount of the penalty for a contravention by an entity is the greater of: (a) 5,000 penalty units; and (b) 3 times the total value of all benefits received or receivable (directly or indirectly) by the entity and * associates of the entity in respect of the * scheme. Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit. (4A) Despite subsection (4), the maximum amount of the penalty for a contravention by an entity that is a body corporate is the greatest of the following: (a) 50,000 penalty units; (b) 3 times the total value of all benefits received or receivable (directly or indirectly) by the entity and * associates of the entity in respect of the * scheme; (c) either: (i) 10% of the * aggregated turnover of the entity for the most recent income year to end before the entity contravened, or began to contravene, the provision; or (ii) if the amount worked out under subparagraph (i) is greater than an amount equal to 2.5 million penalty units—2.5 million penalty units. Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit. (4B) Despite subsections (4) and (4A), the maximum amount of the penalty for a contravention by an entity that is: (a) a partner in a partnership that is a * significant global entity; or (b) a trustee of a trust that is a significant global entity; is the greatest of the following: (c) 50,000 penalty units; (d) 3 times the total value of all benefits received or receivable (directly or indirectly) by the significant global entity and * associates of the significant global entity in respect of the * scheme; (e) either: (i) 10% of the * aggregated turnover of the significant global entity for the most recent income year to end before the entity contravened, or began to contravene, the provision; or (ii) if the amount worked out under subparagraph (i) is greater than an amount equal to 2.5 million penalty units—2.5 million penalty units. Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit. Principles relating to penalties (5) In deciding what penalty is appropriate for a contravention of subsection (1), (1A) or (2) by an entity, the Federal Court of Australia may have regard to all matters it considers relevant, including: (a) the amount of the benefit received or receivable (directly or indirectly) by the entity and * associates of the entity in respect of the * scheme; and (b) the deterrent effect that any penalty may have; and (c) the amount of loss or damage incurred by scheme participants; and (d) the nature and extent of the contravention; and (e) the circumstances in which the contravention took place, including the deliberateness of the entity’s conduct and whether there was an honest and reasonable mistake of law; and (f) the period over which the conduct extended; and (g) whether the entity took any steps to avoid the contravention; and (h) whether the entity has previously been found by the Court to have engaged in the same or similar conduct; and (i) the degree of the entity’s cooperation with the Commissioner. Recovery of penalty (6) The penalty is a civil debt payable to the Commonwealth, and the Commissioner may, on behalf of the Commonwealth, enforce an order for an entity to pay the penalty as if it were an order made in civil proceedings against the entity to recover a debt due by the entity. The debt arising from the order is taken to be a judgment debt.

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006 | Amended by No 56 of 2010, effective s 4(2), sch 3 (items 9, 10(1), (5)), sch 5 (items 191 ‑ 193), sch 6 (items 12 ‑ 14, 27 ‑ 36, 44 ‑ 53, 110, 111, 116, 159, 160): 3 June 2010 (s 2(1) items 1, 7, 11, 15, 20, 23) sch 1 (item 8): 17 Dec 2010 (s 2(1) item 4) sch 2 (items 3, 4), sch 6 (items 58 ‑ 97, 101 ‑ 105): 4 June 2010 (s 2(1) items 6, 16, 17) | Amended by No 37 of 2024, effective sch 1 (items 5 ‑ 37), sch 2: 1 July 2024 (s 2(1) item 2) sch 4 (items 1 ‑ 3, 5): 1 June 2024 (s 2(1) item 3)

s 290-55 — Exceptions

Reasonable mistake or reasonable precautions (1) The Federal Court of Australia must not order the entity to pay a civil penalty if the entity satisfies the Court: (a) that the conduct in respect of which the proceedings were instituted was due to a reasonable mistake of fact; or (b) that: (i) the conduct in respect of which the proceedings were instituted was due to the act or default of another entity, to an accident or to some other cause beyond the entity’s control; and (ii) the entity took reasonable precautions and exercised due diligence to avoid the conduct. (2) The other entity referred to in paragraph (1)(b) does not include: (a) someone who was an employee or agent of the entity when the alleged conduct occurred; or (b) if the entity is a body corporate—someone who was a director of the entity when the alleged conduct occurred; or (c) if the entity is a partner in a partnership—someone who was also a partner in the partnership when the alleged conduct occurred; or (d) if the entity is a trustee of a trust that has more than one trustee—someone who was also a trustee of the trust when the alleged conduct occurred. Reliance on advice from the Commissioner (3) The Commissioner must not make an application under section 290 ‑ 50 for conduct referred to in subsection 290 ‑ 50(1) in relation to an entity’s involvement in a * scheme if: (a) the scheme is based on treating a * taxation law as applying in a particular way; and (b) that way agrees with: (i) advice given to the entity or the entity’s agent by or on behalf of the Commissioner; or (ii) a statement in a publication approved in writing by the Commissioner. Time limitation (4) The Commissioner must not make an application under section 290 ‑ 50 in relation to an entity’s involvement in a * tax exploitation scheme more than 6 years after the entity last engaged in conduct that resulted in the entity or another entity being a * promoter of the tax exploitation scheme. (5) The Commissioner must not make an application under section 290 ‑ 50 in relation to an entity’s involvement in a * scheme that has been promoted on the basis of conformity with a * public ruling, * private ruling or * oral ruling more than 6 years after the entity last engaged in conduct in relation to: (a) if the scheme has been implemented—the implementation of the scheme; or (b) if the scheme has not been implemented—the promotion of the scheme. (6) However, the limitation in subsection (4) or (5) does not apply to * schemes that involve, or if implemented would involve, tax evasion. Exception where entity does not know result of conduct (7) The Federal Court of Australia must not order an entity to pay a civil penalty in relation to the entity’s engaging in conduct: (a) that results in another entity being a * promoter of a * tax exploitation scheme; or (aa) that results in a * scheme that is materially different from that described in a * public ruling, * private ruling or * oral ruling being promoted on the basis of conformity with that ruling; or (b) that results in a scheme that has been promoted on the basis of conformity with a public ruling, private ruling or oral ruling being implemented in a way that is materially different from that described in the ruling; if the entity satisfies the Court that the entity did not know, and could not reasonably be expected to have known, that the entity’s conduct would produce that result. (7A) The other entity referred to in paragraph (7)(a) does not include: (a) if the entity mentioned first in subsection (7) is a partner in a partnership: (i) the partnership; or (ii) someone who was a partner in the partnership when the alleged conduct occurred; or (b) if the entity mentioned first in subsection (7) is a trustee of a trust: (i) the trust; or (ii) if the trust has more than one trustee—someone who was also a trustee of the trust when the alleged conduct occurred. Employees (8) The Commissioner must not make an application under section 290 ‑ 50 in relation to an individual’s involvement in a * scheme as an employee if the Federal Court of Australia has ordered the individual’s employer to pay a civil penalty under this Division in relation to the same scheme.

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006 | Amended by No 37 of 2024, effective sch 1 (items 5 ‑ 37), sch 2: 1 July 2024 (s 2(1) item 2) sch 4 (items 1 ‑ 3, 5): 1 June 2024 (s 2(1) item 3)

s 290-60 — Meaning of promoter

(1) An entity is a promoter of a * tax exploitation scheme if: (a) the entity: (i) markets the scheme; or (ii) otherwise encourages the growth of the scheme or interest in it; and (b) the entity or an * associate of the entity receives (directly or indirectly) a benefit in respect of that marketing or encouragement; and (c) having regard to all relevant matters, it is reasonable to conclude that the entity has had a substantial role in respect of that marketing or encouragement. (2) However, an entity is not a promoter of a * tax exploitation scheme merely because the entity provides advice about the * scheme. (3) An employee is not to be taken to have had a substantial role in respect of that marketing or encouragement merely because the employee distributes information or material prepared by another entity.

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006 | Amended by No 37 of 2024, effective sch 1 (items 5 ‑ 37), sch 2: 1 July 2024 (s 2(1) item 2) sch 4 (items 1 ‑ 3, 5): 1 June 2024 (s 2(1) item 3)

s 290-65 — Meaning of tax exploitation scheme

(1) A * scheme is a tax exploitation scheme if, at the time of the conduct mentioned in subsection 290 ‑ 50(1): (a) one of these conditions is satisfied: (i) if the scheme has been implemented—it is reasonable to conclude that an entity that (alone or with others) entered into or carried out the scheme did so with the sole or dominant purpose of that entity or another entity getting a * scheme benefit from the scheme; (ii) if the scheme has not been implemented—it is reasonable to conclude that, if an entity (alone or with others) had entered into or carried out the scheme, it would have done so with the sole or dominant purpose of that entity or another entity getting a scheme benefit from the scheme; and (b) one of these conditions is satisfied: (i) if the scheme has been implemented—it is not * reasonably arguable that the scheme benefit is available at law; (ii) if the scheme has not been implemented—it is not reasonably arguable that the scheme benefit would be available at law if the scheme were implemented. Note: The condition in paragraph (b) would not be satisfied if the implementation of the scheme for all participants were in accordance with binding advice given by or on behalf of the Commissioner of Taxation (for example, if that implementation were in accordance with a public ruling under this Act, or all participants had private rulings under this Act and that implementation were in accordance with those rulings). (1A) A * scheme is also a tax exploitation scheme if, at the time of the conduct mentioned in subsection 290 ‑ 50(1): (a) one of these conditions is satisfied: (i) if the scheme has been implemented—Part IVA of the Income Tax Assessment Act 1936 applies to the scheme because of section 177DA or 177J of that Act; (ii) if the scheme has not been implemented—it is reasonable to conclude that, had the scheme been entered into or carried out, Part IVA of that Act would apply to the scheme because of section 177DA or 177J of that Act; and (b) one of these conditions is satisfied: (i) if the scheme has been implemented—it is reasonable to conclude that an entity that (alone or with others) entered into or carried out the scheme, or part of it, did so for a principal purpose of, or for more than one principal purpose that includes a purpose of, that entity or another entity getting a * scheme benefit from the scheme; (ii) if the scheme has not been implemented—it is reasonable to conclude that if an entity (alone or with others) had entered into or carried out the scheme, it would have done so for a principal purpose of, or for more than one principal purpose that includes a purpose of, that entity or another entity getting a scheme benefit from the scheme; and (c) one of these conditions is satisfied: (i) if the scheme has been implemented—it is not * reasonably arguable that the scheme benefit is available at law; (ii) if the scheme has not been implemented—it is not reasonably arguable that the scheme benefit would be available at law if the scheme were implemented. (2) In deciding whether it is * reasonably arguable that a * scheme benefit would be available at law, take into account any thing that the Commissioner can do under a * taxation law. Example: The Commissioner may cancel a tax benefit obtained by a taxpayer in connection with a scheme under section 177F of the Income Tax Assessment Act 1936 .

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006 | Amended by No 37 of 2024, effective sch 1 (items 5 ‑ 37), sch 2: 1 July 2024 (s 2(1) item 2) sch 4 (items 1 ‑ 3, 5): 1 June 2024 (s 2(1) item 3)

s 290-120 — Conduct to which this Subdivision applies

This Subdivision applies to conduct of the kind referred to in subsection 290 ‑ 50(1), (1A) or (2).

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006 | Amended by No 37 of 2024, effective sch 1 (items 5 ‑ 37), sch 2: 1 July 2024 (s 2(1) item 2) sch 4 (items 1 ‑ 3, 5): 1 June 2024 (s 2(1) item 3)

s 290-125 — Injunctions

If an entity has engaged, is engaging or is proposing to engage in conduct to which this Subdivision applies or would apply, the Federal Court of Australia may, on the application of the Commissioner, grant an injunction: (a) restraining the entity from engaging in the conduct; and (b) if, in the Court’s opinion, it is desirable to do so—requiring the entity to do something.

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006

s 290-130 — Interim injunctions

The Federal Court of Australia may, before considering an application for an injunction under section 290 ‑ 125, grant an interim injunction restraining an entity from engaging in conduct to which this Subdivision applies.

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006

s 290-135 — Delay in making ruling

If: (a) an entity applied in writing to the Commissioner for a * public ruling, * private ruling or * oral ruling in relation to a * scheme; and (b) the Commissioner has neither made the ruling nor told the entity in writing that the Commissioner has declined to make the ruling; the Commissioner must not make an application under section 290 ‑ 125 in relation to conduct or proposed conduct by an entity in relation to the scheme until the Commissioner makes the ruling or tells the entity in writing that the Commissioner has declined to make the ruling.

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006 | Amended by No 37 of 2024, effective sch 1 (items 5 ‑ 37), sch 2: 1 July 2024 (s 2(1) item 2) sch 4 (items 1 ‑ 3, 5): 1 June 2024 (s 2(1) item 3)

s 290-140 — Discharge etc. of injunctions

The Federal Court of Australia may discharge or vary an injunction granted under this Subdivision.

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006

s 290-145 — Certain limits on granting injunctions not to apply

Restraining injunctions (1) The power of the Federal Court of Australia under this Subdivision to grant an injunction restraining an entity from engaging in conduct of a particular kind may be exercised: (a) if the Court is satisfied that the entity has engaged in conduct of that kind—whether or not it appears to the Court that the entity intends to engage again, or to continue to engage, in conduct of that kind; or (b) if it appears to the Court that, if an injunction is not granted, it is likely that the entity will engage in conduct of that kind—whether or not the entity has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to anyone if the entity engages in conduct of that kind. Performance injunctions (2) The power of the Federal Court of Australia under this Subdivision to grant an injunction requiring an entity to do something may be exercised: (a) if the Court is satisfied that the entity has refused or failed to do that thing—whether or not it appears to the Court that the entity intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or (b) if it appears to the Court that, if an injunction is not granted, it is likely that the entity will refuse or fail to do that thing—whether or not the entity has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to anyone if the entity refuses or fails to do that act or thing.

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006

s 290-150 — Other powers of the Federal Court unaffected

The powers conferred on the Federal Court of Australia under this Subdivision are in addition to, and not instead of, any other powers of the Court, however conferred.

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006

s 290-200 — Voluntary undertakings

(1) The Commissioner may accept a written undertaking given by an entity for the purposes of this section in connection with furthering the objects of this Division. (2) The entity may withdraw or vary the undertaking at any time, but only with the consent of the Commissioner. (3) If the Commissioner considers that the entity that gave the undertaking has breached any of its terms, the Commissioner may apply to the Federal Court of Australia for an order under subsection (4). (4) If the Court is satisfied that the entity has breached a term of the undertaking, the Court may make one or both of the following orders: (a) an order directing the entity to comply with that term of the undertaking; (b) any other order that the Court considers appropriate.

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006

s 295-70 — What this Subdivision is about

A person is liable to a civil penalty if the person possesses 2 kilograms or more of tobacco and the person: (a) does not provide certain documents (such as a tax invoice) indicating how the person obtained the tobacco; or (b) has stated that the possession was engaged in on behalf of or at the request of another person, but does not provide information enabling the other person to be identified and located. However, the person will not be liable to the civil penalty in certain circumstances, such as where: (a) the person is an individual, and possesses the tobacco for his or her personal use; or (b) the person has reasonable grounds to suspect that excise duty or customs duty has been paid on the tobacco, or excise duty and customs duty is not payable on the tobacco. Table of sections 295 ‑ 75 Possession of tobacco without relevant documentation etc. 295 ‑ 80 Things treated as tobacco

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2)

s 295-75 — Possession of tobacco without relevant documentation etc.

(1) A person contravenes this subsection if: (a) the person possesses a thing; and (b) the thing is tobacco; and (c) the place in which the person possesses the tobacco is in Australia but not in an external Territory; and (d) the condition in subsection (2) is satisfied; and (e) the weight of the tobacco equals or exceeds 2 kilograms. (2) For the purposes of paragraph (1)(d), the condition in this subsection is satisfied if: (a) the person has not provided any of the following: (i) a * tax invoice indicating how the person obtained the tobacco; (ii) a bill of lading indicating how the person obtained the tobacco; (iii) a customs declaration indicating how the person obtained the tobacco; or (b) the person: (i) has stated that the possession was engaged in on behalf of or at the request of another person; and (ii) has not provided information enabling the other person to be identified and located. (3) A person is liable to a civil penalty if the person contravenes subsection (1). Penalty: 100 penalty units. (4) Section 308 ‑ 510 applies to this section in the same way that it applies to Division 308. (5) Subsection (1) does not apply if: (a) the person is an individual; and (b) the person possesses the tobacco for his or her personal use. (6) Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force: (a) a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or (b) a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco. (7) Subsection (1) does not apply if: (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 . (8) Subsection (1) does not apply if: (a) the person has permission (within the meaning of the Excise Act 1901 ): (i) to possess the tobacco; or (ii) to move the tobacco; or (b) the tobacco is covered by an authority under section 55 of that Act; or (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act. (9) Subsection (1) does not apply if: (a) any of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or (b) the person has reasonable grounds to suspect that any of those circumstances exist. (10) If person wishes to rely on subsection (5), (6), (7), (8) or (9) in civil penalty proceedings, the person bears an * evidential burden in relation to that matter.

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2) | Amended by No 51 of 2024, effective sch 1 (item 169, 189): 1 July 2024 (s 2(1) item 1)

s 295-80 — Things treated as tobacco

(1) For the purposes of this Division, treat as tobacco any thing (including moisture) added to the tobacco leaf during manufacturing or processing. (2) To avoid doubt, for the purposes of this Division: (a) treat tobacco seed, tobacco plant (whether or not in the ground) and tobacco leaf as tobacco; and (b) treat cigars, cigarettes and snuff as tobacco.

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2)

s 298-5 — Scope of Subdivision

This Subdivision applies if: (a) an administrative penalty is imposed on an entity by another Division in this Part; or (b) a penalty is imposed on an entity by Subdivision 162 ‑ D of the * GST Act; or (c) an administrative penalty is imposed on an entity by a provision of Subdivision 12 ‑ H, 14 ‑ D or 14 ‑ E, Division 16 or section 384 ‑ 17, 420 ‑ 5, 426 ‑ 120 or 426 ‑ 195 in this Schedule; or (d) an administrative penalty is imposed on an entity by section 166 of the Superannuation Industry (Supervision) Act 1993 .

Amendment history: Inserted by No 179 of 1999, effective sch 1 (items 1 ‑ 4, 7, 8), sch 2 (items 1 ‑ 4, 86 ‑ 93, 103 ‑ 107, 130, 131), sch 3 (items 1, 2), sch 4, sch 5 (items 69, 73, 74), sch 6 (items 14 ‑ 24), sch 10 (items 1 ‑ 18), sch 12 (item 21), sch 14: 22 Dec 1999 (s 2(1) ‑ (6), (7)(b), (c)) sch 2 (items 94 ‑ 102), sch 11 (items 111, 112), sch 12 (items 4 ‑ 20), sch 15 (items 9 ‑ 18): 1 July 2000 (s 2(8), (9)(b), (12)) | Repealed and substituted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Repealed and substituted by No 73 of 2001, effective sch 1 (items 21, 22, 58 ‑ 62(1)), sch 2 (items 1 ‑ 40, 53, 86 ‑ 95(1)), sch 3 (items 20 ‑ 33), sch 4 (items 1, 10), sch 5: 30 June 2001 (s 2(1)) sch 2 (items 48 ‑ 52): 1 Jan 2001 (s 2(2)) sch 3 (items 35, 36): 1 Apr 2001 (s 2(3)) | Amended by No 101 of 2004, effective sch 11 (items 3 ‑ 15): 22 Dec 1999 (s 2(1) item 12) sch 11 (item 130): 30 June 2001 (s 2(1) item 15) sch 11 (items 155 ‑ 160, 163, 164): 30 June 2004 (s 2(1) items 17, 18) | Repealed and substituted by No 32 of 2006, effective 6 Apr 2006 | Amended by No 58 of 2006, effective sch 7 (items 131 ‑ 169, 217 ‑ 219): 22 June 2006 (s 2(1) items 6, 24) | Amended by No 80 of 2006, effective sch 4 (items 10 ‑ 14), sch 6 (items 10, 11), sch 7 (items 4 ‑ 6): Royal Assent | Amended by No 4 of 2007, effective sch 2 (items 17 ‑ 21): Royal Assent | Amended by No 9 of 2007, effective sch 1 (items 19 ‑ 24), sch 2 (items 4, 5), sch 4 (items 11 ‑ 16), sch 5 (items 31 ‑ 36): 15 Mar 2007 (s 2(1) items 2 ‑ 8) | Amended by No 15 of 2007, effective sch 1 (items 366 ‑ 393, 406(1) ‑ (3)), sch 3 (items 61 ‑ 66), sch 4 (item 12): 15 Mar 2007 (s 2(1) items 2, 8, 12) | Amended by No 32 of 2008, effective sch 1 (items 1, 24 ‑ 58): Royal Assent | Amended by No 88 of 2009, effective sch 2 (items 16 ‑ 22, 25 ‑ 31): 1 Oct 2009 sch 2 (item 24): 1 Jan 2010 sch 5 (items 233 ‑ 236, 239 ‑ 243, 246 ‑ 257): Royal Assent | Amended by No 11 of 2014, effective sch 2 (items 26, 27): 1 July 2014 (s 2(1) item 3) | Amended by No 110 of 2014, effective sch 4 (items 2, 3), sch 5 (items 68 ‑ 75, 123 ‑ 140): 16 Oct 2014 (s 2(1) items 3, 4, 7) | Amended by No 10 of 2016, effective sch 2 (item 31): 5 May 2016 (s 2(1) item 5) | Amended by No 8 of 2019, effective sch 1 (items 1 ‑ 5, 7, 8), sch 2, sch 3 (items 2 ‑ 10), sch 4 (items 1 ‑ 7, 18), sch 5, sch 7 (item 2), sch 8 (items 9 ‑ 11, 16 ‑ 19, 48 ‑ 63): 1 Apr 2019 (s 2(1) items 2, 3, 5, 7, 11) sch 3 (items 11 ‑ 16): 23 June 2020 (s 2(1) item 4) sch 6 (items 3, 4): 1 July 2018 (s 2(1) item 6) | Amended by No 49 of 2019, effective sch 4 (items 105 ‑ 111): 1 July 2019 (s 2(1) item 12) | Amended by No 84 of 2022, effective sch 1 (items 1 ‑ 15, 17 ‑ 20), sch 2: 1 Jan 2023 (s 2(1) item 2) sch 4: 13 Dec 2022 (s 2(1) item 3) | Amended by No 52 of 2024, effective sch 3 (items 6 ‑ 34): 29 June 2024 (s 2(1) item 3)

s 298-10 — Notification of liability

The Commissioner must give written notice to the entity of the entity’s liability to pay the penalty and of the reasons why the entity is liable to pay the penalty. The Commissioner is not required to give reasons if he or she decides to remit all of the penalty. Note: Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons.

Amendment history: Inserted by No 179 of 1999, effective sch 1 (items 1 ‑ 4, 7, 8), sch 2 (items 1 ‑ 4, 86 ‑ 93, 103 ‑ 107, 130, 131), sch 3 (items 1, 2), sch 4, sch 5 (items 69, 73, 74), sch 6 (items 14 ‑ 24), sch 10 (items 1 ‑ 18), sch 12 (item 21), sch 14: 22 Dec 1999 (s 2(1) ‑ (6), (7)(b), (c)) sch 2 (items 94 ‑ 102), sch 11 (items 111, 112), sch 12 (items 4 ‑ 20), sch 15 (items 9 ‑ 18): 1 July 2000 (s 2(8), (9)(b), (12)) | Amended by No 75 of 2005, effective 29 June 2005 | Amended by No 55 of 2017, effective sch 1 (items 23, 24, 32): 1 July 2017 (s 2(1) items 5, 7)

s 298-15 — Due date for penalty

The penalty becomes due for payment on the day specified in the notice, which must be at least 14 days after the notice is given to the entity. Note: For provisions about collection and recovery of the penalty, see Part 4 ‑ 15.

Amendment history: Inserted by No 179 of 1999, effective sch 1 (items 1 ‑ 4, 7, 8), sch 2 (items 1 ‑ 4, 86 ‑ 93, 103 ‑ 107, 130, 131), sch 3 (items 1, 2), sch 4, sch 5 (items 69, 73, 74), sch 6 (items 14 ‑ 24), sch 10 (items 1 ‑ 18), sch 12 (item 21), sch 14: 22 Dec 1999 (s 2(1) ‑ (6), (7)(b), (c)) sch 2 (items 94 ‑ 102), sch 11 (items 111, 112), sch 12 (items 4 ‑ 20), sch 15 (items 9 ‑ 18): 1 July 2000 (s 2(8), (9)(b), (12)) | Amended by No 44 of 2000, effective sch 1, sch 3 (items 55 ‑ 67), sch 4 (items 17 ‑ 48): 22 Dec 1999 (s 2(1)) sch 2 (item 12): 1 Apr 2000 (s 2(2)) sch 3 (item 68): 1 July 2000 (s 2(8))

s 298-20 — Remission of penalty

(1) The Commissioner may remit all or a part of the penalty. (2) If the Commissioner decides: (a) not to remit the penalty; or (b) to remit only part of the penalty; the Commissioner must give written notice of the decision and the reasons for the decision to the entity. Note: Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons. (3) If: (a) the Commissioner refuses to any extent to remit an amount of penalty; and (b) the amount of penalty payable after the refusal is more than 2 penalty units; and Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit. (c) the entity is dissatisfied with the decision; the entity may object against the decision in the manner set out in Part IVC.

Amendment history: Inserted by No 179 of 1999, effective sch 1 (items 1 ‑ 4, 7, 8), sch 2 (items 1 ‑ 4, 86 ‑ 93, 103 ‑ 107, 130, 131), sch 3 (items 1, 2), sch 4, sch 5 (items 69, 73, 74), sch 6 (items 14 ‑ 24), sch 10 (items 1 ‑ 18), sch 12 (item 21), sch 14: 22 Dec 1999 (s 2(1) ‑ (6), (7)(b), (c)) sch 2 (items 94 ‑ 102), sch 11 (items 111, 112), sch 12 (items 4 ‑ 20), sch 15 (items 9 ‑ 18): 1 July 2000 (s 2(8), (9)(b), (12)) | Amended by No 75 of 2005, effective 29 June 2005

s 298-25 — General interest charge on unpaid penalty

If any of the penalty remains unpaid after it is due, the entity is liable to pay the * general interest charge on the unpaid amount of the penalty for each day in the period that: (a) started at the beginning of the day by which the amount was due to be paid; and (b) finishes at the end of the last day, at the end of which, any of the following remains unpaid: (i) the amount; (ii) general interest charge on any of the amount. Note: The general interest charge is worked out under Part IIA.

Amendment history: Inserted by No 179 of 1999, effective sch 1 (items 1 ‑ 4, 7, 8), sch 2 (items 1 ‑ 4, 86 ‑ 93, 103 ‑ 107, 130, 131), sch 3 (items 1, 2), sch 4, sch 5 (items 69, 73, 74), sch 6 (items 14 ‑ 24), sch 10 (items 1 ‑ 18), sch 12 (item 21), sch 14: 22 Dec 1999 (s 2(1) ‑ (6), (7)(b), (c)) sch 2 (items 94 ‑ 102), sch 11 (items 111, 112), sch 12 (items 4 ‑ 20), sch 15 (items 9 ‑ 18): 1 July 2000 (s 2(8), (9)(b), (12)) | Amended by No 101 of 2006, effective sch 3, 4: 1 Jan 2008 Remainder: Royal Assent

s 298-30 — Assessment of penalties under Division 284 or section 288 ‑ 115

(1) The Commissioner must make an assessment of the amount of an administrative penalty under Division 284 or section 288 ‑ 115. (2) An entity that is dissatisfied with such an assessment made about the entity may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953 .

Amendment history: Inserted by No 91 of 2000, effective sch 1, sch 2 (items 68 ‑ 120, 142A, 143, 144): 1 July 2000 (s 3(1)) sch 3 (items 1 ‑ 16): 22 Dec 1999 (s 3(4)) | Amended by No 2 of 2015, effective sch 2 (items 8 ‑ 20, 72, 73, 90 ‑ 99), sch 4 (items 75 ‑ 79): 25 Feb 2015 (s 2(1) items 3, 5, 6) sch 2 (items 66 ‑ 71): 1 July 2015 (s 2(1) item 4) | Amended by No 53 of 2016, effective sch 1 (items 2 ‑ 4), sch 3 (items 5 ‑ 23), sch 4 (items 6 ‑ 9), sch 5 (items 73 ‑ 75), sch 6 (items 35 ‑ 68), sch 8 (item 1): 5 May 2016 (s 2(1) items 2, 4) sch 7 (items 1, 2): 1 July 2014 (s 2(1) item 3)

s 298-80 — Application of Subdivision

This Subdivision applies for the purposes of the following provisions (the civil penalty provisions ): (a) Division 290 of this Schedule (civil penalties for the promotion and implementation of schemes); (aa) subsection 295 ‑ 75(1) in this Schedule (possession of tobacco without relevant documentation); (b) Part 5 of the Tax Agent Services Act 2009 (civil penalties for providing tax agent services while unregistered and for certain conduct when providing tax agent services).

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006 | Repealed and substituted by No 114 of 2009, effective sch 1 (items 14 ‑ 26), sch 2: 1 Mar 2010 (s 2(1) items 2, 4) | Amended by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2)

s 298-85 — Civil evidence and procedure rules for civil penalty orders

The Federal Court of Australia must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order under the civil penalty provisions.

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006

s 298-90 — Civil proceedings after criminal proceedings

The Court must not make a civil penalty order under the civil penalty provisions against an entity if the entity has been convicted of an offence constituted by conduct that is substantially the same as the conduct in relation to which the civil penalty order would be made.

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006

s 298-95 — Criminal proceedings during civil proceedings

(1) Proceedings for a civil penalty order under the civil penalty provisions against an entity are stayed if: (a) criminal proceedings are started or have already been started against the entity for an offence; and (b) the offence is constituted by conduct that is substantially the same as the conduct in relation to which the civil penalty order would be made. (2) The proceedings for the order may be resumed if the entity is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006

s 298-100 — Criminal proceedings after civil proceedings

Criminal proceedings may be started against an entity for conduct that is substantially the same as conduct in relation to which a civil penalty order under the civil penalty provisions could be made regardless of whether a civil penalty order has been made against the entity.

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006

s 298-105 — Evidence given in proceedings for penalty not admissible in criminal proceedings

Evidence of information given or evidence of production of documents by an entity is not admissible in criminal proceedings against the entity if: (a) the entity previously gave the evidence or produced the documents in proceedings for a civil penalty order under the civil penalty provisions against the entity (whether or not the order was made); and (b) the conduct alleged to constitute the offence is substantially the same as the conduct in relation to which the civil penalty order was sought. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the entity in the proceedings for the civil penalty order.

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006

s 298-110 — Civil double jeopardy

If an entity is ordered to pay a civil penalty under the civil penalty provisions in respect of particular conduct, the entity is not liable to a civil penalty under some other provision of a * Commonwealth law in respect of that conduct. Taxation Administration Act 1953 No. 1, 1953 Compilation No. 225 Compilation date: 1 July 2026 Includes amendments: Act No. 57, 2025 and Act No. 49, 2026 This compilation is in 4 volumes Volume 1: Parts I to V sections 1 to 18 Schedule 1 Chapter 2, Part 2 ‑ 1 to Part 2 ‑ 5 sections 6 ‑ 1 to 21 ‑ 5 Volume 2: Schedule 1 Chapter 2, Part 2 ‑ 10 to Chapter 4, Part 4 ‑ 25 sections 45 ‑ 1 to 298 ‑ 110 Volume 3: Schedule 1 Chapter 4, Part 4 ‑ 30 to Chapter 5, Part 5 ‑ 100 sections 308 ‑ 1 to 990 ‑ 5 Volume 4: Endnotes Each volume has its own contents About this compilation This compilation This is a compilation of the Taxation Administration Act 1953 that shows the text of the law as amended and in force on 1 July 2026 (the compilation date ). The notes at the end of this compilation (the endnotes ) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). Application, saving and transitional provisions If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Presentational changes The Legislation Act 2003 provides for First Parliamentary Counsel to make presentational changes to a compilation. Presentational changes are applied to give a more consistent look and feel to legislation published on the Register, and enable the user to more easily navigate those documents. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. Any modifications affecting the law are accessible on the Register. Self ‑ repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents

Amendment history: Inserted by No 32 of 2006, effective 6 Apr 2006

s 308-1 — What this Division is about

This Division sets out offences and related provisions relating to tobacco.

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2)

s 308-5 — What this Subdivision is about

This Subdivision sets out offences for the possession, sale or buying of tobacco of various quantities where it is reasonable to suspect that none of the following circumstances exist: (a) excise duty has been paid on the tobacco; (b) customs duty has been paid on the tobacco; (c) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (d) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth. This Subdivision sets out defences to those offences, such as where an accused person has a relevant permission or licence under excise or customs legislation. Table of sections 308 ‑ 10 Possession of tobacco (500 kilograms or above)—reasonable suspicion offence 308 ‑ 15 Possession of tobacco (100 kilograms or above)—reasonable suspicion offence 308 ‑ 20 Possession of tobacco (5 kg or above)—reasonable suspicion offence 308 ‑ 25 Sale of tobacco (500 kilograms or above)—reasonable suspicion offence 308 ‑ 30 Sale of tobacco (100 kilograms or above)—reasonable suspicion offence 308 ‑ 35 Sale of tobacco (5 kg or above)—reasonable suspicion offence 308 ‑ 40 Buying of tobacco (500 kilograms or above)—reasonable suspicion offence 308 ‑ 45 Buying of tobacco (100 kilograms or above)—reasonable suspicion offence 308 ‑ 50 Buying of tobacco (5 kg or above)—reasonable suspicion offence 308 ‑ 55 Matters taken to satisfy “reasonable to suspect” requirement

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2)

s 308-10 — Possession of tobacco (500 kilograms or above)—reasonable suspicion offence

(1) A person commits an offence if: (a) the person possesses a thing; and (b) the thing is tobacco (other than tobacco seed or tobacco plant); and (c) the place in which the person possesses the tobacco is in Australia but not in an external Territory; and (d) it is reasonable to suspect that none of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and (e) the weight of the tobacco is 500 kilograms or above. Penalty: 5 years imprisonment or the greater of the following, or both 5 years imprisonment and the greater of the following: (a) 1,000 penalty units; (b) the amount mentioned in subsection (2) multiplied by 5. (2) For the purposes of the penalty in subsection (1), the amount is: (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were * excisable goods and entered for home consumption on the day mentioned in subsection (3); or (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil. (3) For the purposes of subsection (2), the day is: (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or (b) otherwise—the day on which the prosecution for the offence is instituted. (4) Absolute liability applies to paragraph (1)(c). (5) Absolute liability applies to paragraph (1)(d). (6) Absolute liability applies to paragraph (1)(e). (7) Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force: (a) a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or (b) a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco. Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ). (8) Subsection (1) does not apply if: (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 . Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code ). (9) Subsection (1) does not apply if: (a) the person has permission (within the meaning of the Excise Act 1901 ): (i) to possess the tobacco; or (ii) to move the tobacco; or (b) the tobacco is covered by an authority under section 55 of that Act; or (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act. Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code ). (10) Subsection (1) does not apply if: (a) any of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or (b) the person has reasonable grounds to suspect that any of those circumstances exist. Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code ).

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2) | Amended by No 51 of 2024, effective sch 1 (item 169, 189): 1 July 2024 (s 2(1) item 1)

s 308-15 — Possession of tobacco (100 kilograms or above)—reasonable suspicion offence

(1) A person commits an offence if: (a) the person possesses a thing; and (b) the thing is tobacco (other than tobacco seed or tobacco plant); and (c) the place in which the person possesses the tobacco is in Australia but not in an external Territory; and (d) it is reasonable to suspect that none of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and (e) the weight of the tobacco is 100 kilograms or above. Penalty: 2 years imprisonment or the greater of the following, or both 2 years imprisonment and the greater of the following: (a) 500 penalty units; (b) the amount mentioned in subsection (2) multiplied by 5. (2) For the purposes of the penalty in subsection (1), the amount is: (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were * excisable goods and entered for home consumption on the day mentioned in subsection (3); or (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil. (3) For the purposes of subsection (2), the day is: (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or (b) otherwise—the day on which the prosecution for the offence is instituted. (4) Absolute liability applies to paragraph (1)(c). (5) Absolute liability applies to paragraph (1)(d). (6) Absolute liability applies to paragraph (1)(e). (7) Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force: (a) a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or (b) a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco. Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ). (8) Subsection (1) does not apply if: (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 . Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code ). (9) Subsection (1) does not apply if: (a) the person has permission (within the meaning of the Excise Act 1901 ): (i) to possess the tobacco; or (ii) to move the tobacco; or (b) the tobacco is covered by an authority under section 55 of that Act; or (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act. Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code ). (10) Subsection (1) does not apply if: (a) any of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or (b) the person has reasonable grounds to suspect that any of those circumstances exist. Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code ).

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2) | Amended by No 51 of 2024, effective sch 1 (item 169, 189): 1 July 2024 (s 2(1) item 1)

s 308-20 — Possession of tobacco (5 kg or above)—reasonable suspicion offence

(1) A person commits an offence if: (a) the person possesses a thing; and (b) the thing is tobacco (other than tobacco seed or tobacco plant); and (c) the place in which the person possesses the tobacco is in Australia but not in an external Territory; and (d) it is reasonable to suspect that none of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and (e) the weight of the tobacco is 5 kilograms or above. Penalty: The greater of the following: (a) 200 penalty units; (b) the amount mentioned in subsection (2) multiplied by 5. (2) For the purposes of the penalty in subsection (1), the amount is: (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were * excisable goods and entered for home consumption on the day mentioned in subsection (3); or (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil. (3) For the purposes of subsection (2), the day is: (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or (b) otherwise—the day on which the prosecution for the offence is instituted. (4) Absolute liability applies to paragraph (1)(c). (5) Absolute liability applies to paragraph (1)(d). (6) Absolute liability applies to paragraph (1)(e). (7) Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force: (a) a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or (b) a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco. Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ). (8) Subsection (1) does not apply if: (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 . Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code ). (9) Subsection (1) does not apply if: (a) the person has permission (within the meaning of the Excise Act 1901 ): (i) to possess the tobacco; or (ii) to move the tobacco; or (b) the tobacco is covered by an authority under section 55 of that Act; or (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act. Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code ). (10) Subsection (1) does not apply if: (a) any of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or (b) the person has reasonable grounds to suspect that any of those circumstances exist. Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code ).

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2) | Amended by No 51 of 2024, effective sch 1 (item 169, 189): 1 July 2024 (s 2(1) item 1)

s 308-25 — Sale of tobacco (500 kilograms or above)—reasonable suspicion offence

(1) A person commits an offence if: (a) the person sells a thing; and (b) the thing is tobacco (other than tobacco seed or tobacco plant); and (c) the tobacco is in Australia but not in an external Territory; and (d) it is reasonable to suspect that none of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and (e) the weight of the tobacco is 500 kilograms or above. Penalty: 5 years imprisonment or the greater of the following, or both 5 years imprisonment and the greater of the following: (a) 1,000 penalty units; (b) the amount mentioned in subsection (2) multiplied by 5. (2) For the purposes of the penalty in subsection (1), the amount is: (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were * excisable goods and entered for home consumption on the day mentioned in subsection (3); or (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil. (3) For the purposes of subsection (2), the day is: (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or (b) otherwise—the day on which the prosecution for the offence is instituted. (4) Absolute liability applies to paragraph (1)(c). (5) Absolute liability applies to paragraph (1)(d). (6) Absolute liability applies to paragraph (1)(e). (7) Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force: (a) a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or (b) a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco. Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ). (8) Subsection (1) does not apply if: (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 . Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code ). (9) Subsection (1) does not apply if: (a) the person has permission (within the meaning of the Excise Act 1901 ): (i) to possess the tobacco; or (ii) to move the tobacco; or (b) the tobacco is covered by an authority under section 55 of that Act; or (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act. Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code ). (10) Subsection (1) does not apply if: (a) any of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or (b) the person has reasonable grounds to suspect that any of those circumstances exist. Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code ).

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2) | Amended by No 51 of 2024, effective sch 1 (item 169, 189): 1 July 2024 (s 2(1) item 1)

s 308-30 — Sale of tobacco (100 kilograms or above)—reasonable suspicion offence

(1) A person commits an offence if: (a) the person sells a thing; and (b) the thing is tobacco (other than tobacco seed or tobacco plant); and (c) the tobacco is in Australia but not in an external Territory; and (d) it is reasonable to suspect that none of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and (e) the weight of the tobacco is 100 kilograms or above. Penalty: 2 years imprisonment or the greater of the following, or both 2 years imprisonment and the greater of the following: (a) 500 penalty units; (b) the amount mentioned in subsection (2) multiplied by 5. (2) For the purposes of the penalty in subsection (1), the amount is: (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were * excisable goods and entered for home consumption on the day mentioned in subsection (3); or (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil. (3) For the purposes of subsection (2), the day is: (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or (b) otherwise—the day on which the prosecution for the offence is instituted. (4) Absolute liability applies to paragraph (1)(c). (5) Absolute liability applies to paragraph (1)(d). (6) Absolute liability applies to paragraph (1)(e). (7) Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force: (a) a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or (b) a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco. Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ). (8) Subsection (1) does not apply if: (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 . Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code ). (9) Subsection (1) does not apply if: (a) the person has permission (within the meaning of the Excise Act 1901 ): (i) to possess the tobacco; or (ii) to move the tobacco; or (b) the tobacco is covered by an authority under section 55 of that Act; or (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act. Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code ). (10) Subsection (1) does not apply if: (a) any of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or (b) the person has reasonable grounds to suspect that any of those circumstances exist. Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code ).

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2) | Amended by No 51 of 2024, effective sch 1 (item 169, 189): 1 July 2024 (s 2(1) item 1)

s 308-35 — Sale of tobacco (5 kg or above)—reasonable suspicion offence

(1) A person commits an offence if: (a) the person sells a thing; and (b) the thing is tobacco (other than tobacco seed or tobacco plant); and (c) the tobacco is in Australia but not in an external Territory; and (d) it is reasonable to suspect that none of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and (e) the weight of the tobacco is 5 kilograms or above. Penalty: The greater of the following: (a) 200 penalty units; (b) the amount mentioned in subsection (2) multiplied by 5. (2) For the purposes of the penalty in subsection (1), the amount is: (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were * excisable goods and entered for home consumption on the day mentioned in subsection (3); or (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil. (3) For the purposes of subsection (2), the day is: (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or (b) otherwise—the day on which the prosecution for the offence is instituted. (4) Absolute liability applies to paragraph (1)(c). (5) Absolute liability applies to paragraph (1)(d). (6) Absolute liability applies to paragraph (1)(e). (7) Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force: (a) a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or (b) a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco. Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ). (8) Subsection (1) does not apply if: (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 . Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code ). (9) Subsection (1) does not apply if: (a) the person has permission (within the meaning of the Excise Act 1901 ): (i) to possess the tobacco; or (ii) to move the tobacco; or (b) the tobacco is covered by an authority under section 55 of that Act; or (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act. Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code ). (10) Subsection (1) does not apply if: (a) any of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or (b) the person has reasonable grounds to suspect that any of those circumstances exist. Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code ).

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2) | Amended by No 51 of 2024, effective sch 1 (item 169, 189): 1 July 2024 (s 2(1) item 1)

s 308-40 — Buying of tobacco (500 kilograms or above)—reasonable suspicion offence

(1) A person commits an offence if: (a) the person buys a thing; and (b) the thing is tobacco (other than tobacco seed or tobacco plant); and (c) the tobacco is in Australia but not in an external Territory; and (d) it is reasonable to suspect that none of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and (e) the weight of the tobacco is 500 kilograms or above. Penalty: 5 years imprisonment or the greater of the following, or both 5 years imprisonment and the greater of the following: (a) 1,000 penalty units; (b) the amount mentioned in subsection (2) multiplied by 5. (2) For the purposes of the penalty in subsection (1), the amount is: (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were * excisable goods and entered for home consumption on the day mentioned in subsection (3); or (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil. (3) For the purposes of subsection (2), the day is: (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or (b) otherwise—the day on which the prosecution for the offence is instituted. (4) Absolute liability applies to paragraph (1)(c). (5) Absolute liability applies to paragraph (1)(d). (6) Absolute liability applies to paragraph (1)(e). (7) Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force: (a) a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or (b) a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco. Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ). (8) Subsection (1) does not apply if: (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 . Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code ). (9) Subsection (1) does not apply if: (a) the person has permission (within the meaning of the Excise Act 1901 ): (i) to possess the tobacco; or (ii) to move the tobacco; or (b) the tobacco is covered by an authority under section 55 of that Act; or (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act. Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code ). (10) Subsection (1) does not apply if: (a) any of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or (b) the person has reasonable grounds to suspect that any of those circumstances exist. Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code ).

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2) | Amended by No 51 of 2024, effective sch 1 (item 169, 189): 1 July 2024 (s 2(1) item 1)

s 308-45 — Buying of tobacco (100 kilograms or above)—reasonable suspicion offence

(1) A person commits an offence if: (a) the person buys a thing; and (b) the thing is tobacco (other than tobacco seed or tobacco plant); and (c) the tobacco is in Australia but not in an external Territory; and (d) it is reasonable to suspect that none of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and (e) the weight of the tobacco is 100 kilograms or above. Penalty: 2 years imprisonment or the greater of the following, or both 2 years imprisonment and the greater of the following: (a) 500 penalty units; (b) the amount mentioned in subsection (2) multiplied by 5. (2) For the purposes of the penalty in subsection (1), the amount is: (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were * excisable goods and entered for home consumption on the day mentioned in subsection (3); or (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil. (3) For the purposes of subsection (2), the day is: (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or (b) otherwise—the day on which the prosecution for the offence is instituted. (4) Absolute liability applies to paragraph (1)(c). (5) Absolute liability applies to paragraph (1)(d). (6) Absolute liability applies to paragraph (1)(e). (7) Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force: (a) a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or (b) a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco. Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ). (8) Subsection (1) does not apply if: (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 . Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code ). (9) Subsection (1) does not apply if: (a) the person has permission (within the meaning of the Excise Act 1901 ): (i) to possess the tobacco; or (ii) to move the tobacco; or (b) the tobacco is covered by an authority under section 55 of that Act; or (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act. Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code ). (10) Subsection (1) does not apply if: (a) any of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or (b) the person has reasonable grounds to suspect that any of those circumstances exist. Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code ).

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2) | Amended by No 51 of 2024, effective sch 1 (item 169, 189): 1 July 2024 (s 2(1) item 1)

s 308-50 — Buying of tobacco (5 kg or above)—reasonable suspicion offence

(1) A person commits an offence if: (a) the person buys a thing; and (b) the thing is tobacco (other than tobacco seed or tobacco plant); and (c) the tobacco is in Australia but not in an external Territory; and (d) it is reasonable to suspect that none of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and (e) the weight of the tobacco is 5 kilograms or above. Penalty: The greater of the following: (a) 200 penalty units; (b) the amount mentioned in subsection (2) multiplied by 5. (2) For the purposes of the penalty in subsection (1), the amount is: (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were * excisable goods and entered for home consumption on the day mentioned in subsection (3); or (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil. (3) For the purposes of subsection (2), the day is: (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or (b) otherwise—the day on which the prosecution for the offence is instituted. (4) Absolute liability applies to paragraph (1)(c). (5) Absolute liability applies to paragraph (1)(d). (6) Absolute liability applies to paragraph (1)(e). (7) Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force: (a) a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or (b) a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco. Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ). (8) Subsection (1) does not apply if: (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 . Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code ). (9) Subsection (1) does not apply if: (a) the person has permission (within the meaning of the Excise Act 1901 ): (i) to possess the tobacco; or (ii) to move the tobacco; or (b) the tobacco is covered by an authority under section 55 of that Act; or (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act. Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code ). (10) Subsection (1) does not apply if: (a) any of the following circumstances exist: (i) * excise duty has been paid on the tobacco; (ii) * customs duty has been paid on the tobacco; (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or (b) the person has reasonable grounds to suspect that any of those circumstances exist. Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code ).

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2) | Amended by No 51 of 2024, effective sch 1 (item 169, 189): 1 July 2024 (s 2(1) item 1)

s 308-55 — Matters taken to satisfy “reasonable to suspect” requirement

(1) Without limiting paragraphs 308 ‑ 10(1)(d), 308 ‑ 15(1)(d), 308 ‑ 20(1)(d), 308 ‑ 25(1)(d), 308 ‑ 30(1)(d), 308 ‑ 35(1)(d), 308 ‑ 40(1)(d), 308 ‑ 45(1)(d) and 308 ‑ 50(1)(d), those paragraphs are taken to be satisfied if any of the following circumstances exist: (a) the tobacco is not in retail packaging that complies with the requirements in Chapter 3 of the Public Health (Tobacco and Other Products) Act 2023 ; (b) the tobacco does not comply with the requirements for a tobacco product in Chapter 3 of the Public Health (Tobacco and Other Products) Act 2023 ; (c) in the case of buying or selling: (i) an information standard has been made under subsection 134(1) or 135(1) of Schedule 2 to the Competition and Consumer Act 2010 for tobacco (or for a particular kind of tobacco); and (ii) the supplier does not comply with the standard in supplying the tobacco; (d) if a safety standard has been made or declared under subsection 104(1) or 105(1) of Schedule 2 to the Competition and Consumer Act 2010 for tobacco (or for a particular kind of tobacco)—the tobacco does not comply with the standard; (e) a permanent ban or an interim ban on consumer goods in force under Part 3 ‑ 3 of Schedule 2 to the Competition and Consumer Act 2010 applies to the tobacco; (ea) a permanent ban under Chapter 4 of the Public Health (Tobacco and Other Products) Act 2023 applies to the tobacco; (f) in the case of buying or selling—the price of the tobacco, or the advertised or offered price for the tobacco, is less than the sum of the following amounts: (i) the lower of the amount of * excise duty or * customs duty that would apply to the tobacco, assuming that such duty were applicable to the tobacco and that no exemption or reduction of such duty were applicable; (ii) the amount of * GST that would apply to the sale of the tobacco, assuming that GST were applicable to the sale; (g) in the case of buying or selling: (i) a law of a State or Territory that applies to the buying or selling of the tobacco makes it unlawful to buy or sell tobacco in certain circumstances; and (ii) the buying or selling happens in such circumstances; (h) the person has not provided any of the following: (i) a * tax invoice indicating how the person obtained the tobacco; (ii) a bill of lading indicating how the person obtained the tobacco; (iii) a customs declaration indicating how the person obtained the tobacco; (i) the person: (i) has stated that the possession, selling or buying was engaged in on behalf of or at the request of another person; and (ii) has not provided information enabling the other person to be identified and located; (j) in the case of selling: (i) the * GST law requires the person to give the buyer of the tobacco a tax invoice in respect of the sale; and (ii) the person fails to meet that requirement; (k) the tobacco is tobacco leaf that: (i) has not been subjected to any process; or (ii) has been subjected only to the process of curing the leaf as stripped from the plant. (2) To avoid doubt, subsection (1) does not apply for the purposes of subsections 308 ‑ 10(10), 308 ‑ 15(10), 308 ‑ 20(10), 308 ‑ 25(10), 308 ‑ 30(10), 308 ‑ 35(10), 308 ‑ 40(10), 308 ‑ 45(10) and 308 ‑ 50(10).

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2) | Amended by No 119 of 2023, effective sch 1 (items 18–20): 1 Apr 2024 (s 2(1) item 2)

s 308-105 — What this Subdivision is about

This Subdivision sets out offences for the possession, manufacturing or production of tobacco of various quantities where: (a) the tobacco is excisable goods, tobacco seed or tobacco plant, or tobacco leaf that has not been subjected to any relevant process; and (b) if excise duty is payable on the tobacco, the full amount of that excise duty has not been paid. This Subdivision sets out defences to those offences, such as where an accused person has a relevant permission or licence under excise or customs legislation. Table of sections 308 ‑ 110 Possession of tobacco (500 kg or above)—fault ‑ based offence 308 ‑ 115 Possession of tobacco (100 kg or above)—fault ‑ based offence 308 ‑ 120 Possession of tobacco (5 kg or above)—fault ‑ based offence 308 ‑ 125 Manufacture or production of tobacco (500 kg or above)—fault ‑ based offence 308 ‑ 130 Manufacture or production of tobacco (100 kg or above)—fault ‑ based offence 308 ‑ 135 Manufacture or production of tobacco (5 kg or above)—fault ‑ based offence

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2)

s 308-110 — Possession of tobacco (500 kg or above)—fault ‑ based offence

(1) A person commits an offence if: (a) the person possesses a thing; and (b) the thing is tobacco; and (c) the place in which the person possesses the tobacco is in Australia but not in an external Territory; and (d) the tobacco is: (i) * excisable goods; or (ii) tobacco seed or tobacco plant; or (iii) tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and (e) in a case where the tobacco is excisable goods: (i) * excise duty is payable on the tobacco; and (ii) the full amount of excise duty has not been paid on the tobacco; and (f) the weight of the tobacco is 500 kilograms or above. Penalty: 10 years imprisonment or the greater of the following, or both 10 years imprisonment and the greater of the following: (a) 1,500 penalty units; (b) the amount mentioned in subsection (2) multiplied by 5. (2) For the purposes of the penalty in subsection (1), the amount is: (a) for tobacco (other than tobacco plant or tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were * excisable goods and entered for home consumption on the day mentioned in subsection (3); or (b) for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that: (i) for tobacco plant—the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (ii) for tobacco leaf—the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (c) for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil. (3) For the purposes of subsection (2), the day is: (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or (b) otherwise—the day on which the prosecution for the offence is instituted. (4) Absolute liability applies to paragraph (1)(c). (5) Absolute liability applies to paragraph (1)(f). (6) Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force: (a) a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or (b) a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco. Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code ). (7) Subsection (1) does not apply if: (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 . Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ). (8) Subsection (1) does not apply if: (a) the person has permission (within the meaning of the Excise Act 1901 ): (i) to possess the tobacco; or (ii) to move the tobacco; or (b) the tobacco is covered by an authority under section 55 of that Act; or (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act. Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code ).

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2) | Amended by No 51 of 2024, effective sch 1 (item 169, 189): 1 July 2024 (s 2(1) item 1)

s 308-115 — Possession of tobacco (100 kg or above)—fault ‑ based offence

(1) A person commits an offence if: (a) the person possesses a thing; and (b) the thing is tobacco; and (c) the place in which the person possesses the tobacco is in Australia but not in an external Territory; and (d) the tobacco is: (i) * excisable goods; or (ii) tobacco seed or tobacco plant; or (iii) tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and (e) in a case where the tobacco is excisable goods: (i) * excise duty is payable on the tobacco; and (ii) the full amount of excise duty has not been paid on the tobacco; and (f) the weight of the tobacco is 100 kilograms or above. Penalty: 5 years imprisonment or the greater of the following, or both 5 years imprisonment and the greater of the following: (a) 1,000 penalty units; (b) the amount mentioned in subsection (2) multiplied by 5. (2) For the purposes of the penalty in subsection (1), the amount is: (a) for tobacco (other than tobacco plant or tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were * excisable goods and entered for home consumption on the day mentioned in subsection (3); or (b) for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that: (i) for tobacco plant—the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (ii) for tobacco leaf—the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (c) for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil. (3) For the purposes of subsection (2), the day is: (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or (b) otherwise—the day on which the prosecution for the offence is instituted. (4) Absolute liability applies to paragraph (1)(c). (5) Absolute liability applies to paragraph (1)(f). (6) Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force: (a) a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or (b) a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco. Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code ). (7) Subsection (1) does not apply if: (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 . Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ). (8) Subsection (1) does not apply if the person has permission (within the meaning of the Excise Act 1901 ): (a) to possess the tobacco; or (b) to move the tobacco; or (c) to deliver the tobacco for home consumption without entering it for that purpose. Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code ).

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2) | Amended by No 51 of 2024, effective sch 1 (item 169, 189): 1 July 2024 (s 2(1) item 1)

s 308-120 — Possession of tobacco (5 kg or above)—fault ‑ based offence

(1) A person commits an offence if: (a) the person possesses a thing; and (b) the thing is tobacco; and (c) the place in which the person possesses the tobacco is in Australia but not in an external Territory; and (d) the tobacco is: (i) * excisable goods; or (ii) tobacco seed or tobacco plant; or (iii) tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and (e) in a case where the tobacco is excisable goods: (i) * excise duty is payable on the tobacco; and (ii) the full amount of excise duty has not been paid on the tobacco; and (f) the weight of the tobacco is 5 kilograms or above. Penalty: The greater of the following: (a) 500 penalty units; (b) the amount mentioned in subsection (2) multiplied by 5. (2) For the purposes of the penalty in subsection (1), the amount is: (a) for tobacco (other than tobacco plant or tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were * excisable goods and entered for home consumption on the day mentioned in subsection (3); or (b) for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that: (i) for tobacco plant—the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (ii) for tobacco leaf—the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (c) for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil. (3) For the purposes of subsection (2), the day is: (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or (b) otherwise—the day on which the prosecution for the offence is instituted. (4) Absolute liability applies to paragraph (1)(c). (5) Absolute liability applies to paragraph (1)(f). (6) Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force: (a) a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or (b) a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco. Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code ). (7) Subsection (1) does not apply if: (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 . Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ). (8) Subsection (1) does not apply if the person has permission (within the meaning of the Excise Act 1901 ): (a) to possess the tobacco; or (b) to move the tobacco; or (c) to deliver the tobacco for home consumption without entering it for that purpose. Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code ).

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2) | Amended by No 51 of 2024, effective sch 1 (item 169, 189): 1 July 2024 (s 2(1) item 1)

s 308-125 — Manufacture or production of tobacco (500 kg or above)—fault ‑ based offence

(1) A person commits an offence if: (a) the person manufactures or produces a thing; and (b) the thing is tobacco; and (c) the place in which the person manufactures or produces the tobacco is in Australia but not in an external Territory; and (d) the tobacco is: (i) * excisable goods; or (ii) tobacco seed or tobacco plant; or (iii) tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and (e) in a case where the tobacco is excisable goods: (i) * excise duty is payable on the tobacco; and (ii) the full amount of excise duty has not been paid on the tobacco; and (f) the weight of the tobacco is 500 kilograms or above. Penalty: 10 years imprisonment or the greater of the following, or both 10 years imprisonment and the greater of the following: (a) 1,500 penalty units; (b) the amount mentioned in subsection (2) multiplied by 5. (2) For the purposes of the penalty in subsection (1), the amount is: (a) for tobacco (other than tobacco plant or tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were * excisable goods and entered for home consumption on the day mentioned in subsection (3); or (b) for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that: (i) for tobacco plant—the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (ii) for tobacco leaf—the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (c) for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil. (3) For the purposes of subsection (2), the day is: (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or (b) otherwise—the day on which the prosecution for the offence is instituted. (4) Absolute liability applies to paragraph (1)(c). (5) Absolute liability applies to paragraph (1)(f). (6) Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force: (a) a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or (b) a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco. Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code ). (7) Subsection (1) does not apply if: (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 . Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ).

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2) | Amended by No 51 of 2024, effective sch 1 (item 169, 189): 1 July 2024 (s 2(1) item 1)

s 308-130 — Manufacture or production of tobacco (100 kg or above)—fault ‑ based offence

(1) A person commits an offence if: (a) the person manufactures or produces a thing; and (b) the thing is tobacco; and (c) the place in which the person manufactures or produces the tobacco is in Australia but not in an external Territory; and (d) the tobacco is: (i) * excisable goods; or (ii) tobacco seed or tobacco plant; or (iii) tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and (e) in a case where the tobacco is excisable goods: (i) * excise duty is payable on the tobacco; and (ii) the full amount of excise duty has not been paid on the tobacco; and (f) the weight of the tobacco is 100 kilograms or above. Penalty: 5 years imprisonment or the greater of the following, or both 5 years imprisonment and the greater of the following: (a) 1,000 penalty units; (b) the amount mentioned in subsection (2) multiplied by 5. (2) For the purposes of the penalty in subsection (1), the amount is: (a) for tobacco (other than tobacco plant or tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were * excisable goods and entered for home consumption on the day mentioned in subsection (3); or (b) for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that: (i) for tobacco plant—the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (ii) for tobacco leaf—the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or (c) for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil. (3) For the purposes of subsection (2), the day is: (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or (b) otherwise—the day on which the prosecution for the offence is instituted. (4) Absolute liability applies to paragraph (1)(c). (5) Absolute liability applies to paragraph (1)(f). (6) Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force: (a) a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or (b) a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco. Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code ). (7) Subsection (1) does not apply if: (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 . Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ).

Amendment history: Inserted by No 82 of 2018, effective sch 1 (items 4 ‑ 6, 25): 25 Aug 2018 (s 2(1) item 2) | Amended by No 51 of 2024, effective sch 1 (item 169, 189): 1 July 2024 (s 2(1) item 1)