Miscellaneous taxes: does paragraph 284-220(1)(e) of Schedule 1 to the Taxation Administration Act 1953 apply to increase the base penalty amount applicable to a subsection 284-75(3) penalty where the entity was liable to the same penalty for a previous accounting period?

MT 2007/1 clarified that where penalty is imposed under subsection 284-75(3) of Schedule 1 to the Taxation Administration Act 1953 (TAA) [1] for an accounting period, paragraph 284-220(1)(e) applies to increase the base penalty amount by 20% if a penalty was imposed under that subsection for a previous accounting period.

Prior to legislative amendment, subsection 284-220(1) stated that the base penalty amount 'for your shortfall amount, or for part of it,' was increased by 20% in the circumstances listed in paragraphs 284-220(1)(a) to (e). Paragraph 284-220(1)(e) referred to a penalty arising under subsection 284-75(3) for the failure to give the Commissioner a return, notice or other document where the taxpayer had previously been liable to a penalty under that subsection in an earlier accounting period.

However, an entity has a 'shortfall amount' only if an item in the table in subsection 284-80(1) applies to the entity. As none of the items in the table in subsection 284-80(1) deal with the failure to give the Commissioner a return, notice or other document there was some uncertainty as to the operation of paragraph 284-220(1)(e), due to the language of subsection 284-220(1).

This issue was clarified by the amendment of subsection 284-220(1) of Schedule 1 of the TAA, with effect from 3 October 2008, by the Tax Law Amendment (2008 Measures No. 4) Act 2008 . Therefore, MT 2007/1 is no longer required.