139BLate payment penalty

1. This section applies to a taxpayer if and to the extent to which the taxpayer does not pay by the default date an amount of tax (the unpaid tax), calculated by the taxpayer as payable or for which the taxpayer is assessed, and—

2. the unpaid tax is provisional tax or a penalty relating to a failure to pay provisional tax:
3. ignoring any failure to pay for which a penalty or interest is remitted under section 183AA, the Commissioner determines that the taxpayer has failed to pay on time an amount of tax due for payment in the period—
   1. beginning with the later of 1 April 2008 and the day 2 years before the default date; and
   2. ending before the default date:
4. ignoring any failure to pay for which a penalty or interest is remitted under section 183AA, the Commissioner determines that the taxpayer has paid on time amounts of tax due for payment in the period referred to in paragraph (b) and—
   1. the Commissioner gives the taxpayer a notice setting a further date for payment of the unpaid tax; and
   2. the taxpayer does not pay the unpaid tax before the date that is the earlier of the further date and the date that is 1 month after the date of the notice.

5. Repealed

6. The taxpayer is liable to pay a late payment penalty consisting of—

7. an initial late payment penalty equal to the total of—
   1. 1% of the unpaid tax; and
   2. 4% of the amount of tax to pay at the end of the sixth day after the day on which a penalty under subparagraph (i) is imposed; and
8. an incremental late payment penalty equal to 1% of the amount of tax to pay determined on each day that falls 1 month after a day on which a penalty is imposed under—
   1. this subsection:
   2. subsection (2A)(a) or (2B) as they were before the enactment of section 243 of the Taxation (Business Taxation and Remedial Matters) Act 2007.

9. Repealed

10. Despite subsection (2)(b), a taxpayer is not liable to pay an incremental late payment penalty to the extent to which the relevant tax to pay is—

11. GST for a GST return period ending within 8 days of 31 March 2017:
12. GST for a GST return period ending after 31 March 2017:
13. further income tax under section OB 65, OB 66, OK 21, or OK 22 of the Income Tax Act 2007 imposed for the 2018–19 and later income years:
14. imputation additional tax under section OB 71 or OB 72 of that Act imposed for the 2018–19 and later income years:
15. provisional tax or income tax for the 2017–18 or later income years:
16. described in section MF 5 or MF 6 of the Income Tax Act 2007, or is otherwise the overpayment or over-crediting of WFF tax credits, and relates to the 2017–18 or later income years:
17. civil penalties for tax and periods described in paragraphs (a) to (d):
18. an electronic sales suppression penalty under section 141EE.

19. An initial late payment penalty is added to the unpaid tax to which it relates—

20. on the day after the default date for the unpaid tax, if it is imposed under subsection (2)(a)(i):
21. at the end of the sixth day after the day referred to in paragraph (a), if it is imposed under subsection (2)(a)(ii).

22. Repealed

23. The part of an initial late payment penalty imposed under subsection (2)(a)(ii) is not to be added if the Commissioner has exercised powers available under section 157 or schedule 5, part C, clause 4(3) of this Act or section 43 of the Goods and Services Tax Act 1985 or any similar tax law before the end of the 6th day after the day on which an initial late payment penalty is imposed under subsection (2)(a)(i) and has received the tax withheld or deducted in accordance with the requirements of a notice issued as a result of the Commissioner exercising those powers.

24. An incremental late payment penalty is to be added to the tax to pay to which it relates on the day after the last day of successive monthly intervals during which the tax to pay remains unpaid.

25. If an incremental late payment penalty would, apart from this subsection, be added to any tax to pay on a date that does not exist in a month, the penalty is to be added to the tax to pay on the last day of the month.

26. An incremental late payment penalty is not to be added if, for a month during which the tax to pay remains unpaid, the Commissioner has exercised powers available under section 157 or schedule 5, part C, clause 4(3) of this Act or section 43 of the Goods and Services Tax Act 1985 or any similar tax law and has received the tax withheld or deducted in accordance with the requirements for the month of a notice issued as a result of the Commissioner exercising those powers.

27. A taxpayer is liable to pay a late payment penalty under subsection (2) in relation to a default date if—

28. the Commissioner has given the taxpayer a notice of a further date for the payment of unpaid tax under subsection (1)(c)(i); and
29. after giving the notice, the Commissioner becomes aware of a default by the taxpayer that arose before the date of the notice; and
30. the further date for payment referred to in paragraph (a)—
    1. falls outside the period referred to in subsection (1)(b); and
    2. should have been given in relation to the default referred to in paragraph (b).

31. If the taxpayer enters into an instalment arrangement for the default under section 177B and a late payment penalty is imposed under section 139BA(1), the taxpayer is treated for the purposes of this section as paying on time, to the extent of the default, the amount of tax due for payment.

32. In this section and section 139BA—

33. the term default date means, for an amount of tax,—
    1. its due date; or
    2. its collection date, described in section 142A(6), if the amount has a new due date set under section 142A(5):
34. the term tax to pay means, at any time, an amount equal to the unpaid tax together with any late payment penalty that has been imposed in whole or in part in respect of the unpaid tax, to the extent that at that time the amount remains unpaid:
35. the unpaid tax is deemed to be the last part of any tax to pay that a taxpayer pays:
36. for a person that section 120KBB applies to, the term unpaid tax includes, for a failure to pay 1 or more of any of the instalments of provisional tax other than the final instalment on the relevant instalment dates for the tax year, the amount of unpaid tax given by section 120KBB(3) for the date:
37. the term unpaid tax includes an amount of tax that must be withheld or deducted and paid to the Commissioner under a tax law but does not include a late payment penalty or a shortfall penalty imposed under section 141ED.