Section 42

Tax avoidance schemes 

(1) Despite anything in this Act, if the Commissioner is satisfied that—

• (a) a scheme has been entered into or carried out; 
• (b) a person has obtained a tax benefit in connection with the scheme; and 
• (c) having regard to the substance of the scheme, it would be concluded that the person, or any other, who entered into or carried out the scheme did so for the sole or main purpose of enabling the person referred to in paragraph (b) to obtain the tax benefit, 

the Commissioner may determine the excise duty liability of the person who obtained the tax benefit as if the scheme had not been entered into or carried out.

(2) If a determination is made under subsection (1), the Commissioner shall issue an assessment giving effect to the determination.

(3) A determination under subsection (1) shall be made within five years from the last day of the month in which the excise duty liability arose.

(4) In this section–– “scheme” includes a course of action, or an agreement, arrangement, promise, plan, proposal, or undertaking, whether express or implied, and whether or not legally enforceable;

• “tax benefit” means— 
• (a) a reduction in the liability of a person to pay excise duty, including a reduction of the liability to zero; 
• (b) an entitlement to a refund of excise duty; 
• (c) a postponement of a liability for the payment of excise duty;
• (d) any other advantage arising to the person because of a delay in payment of excise duty; 
• (e) anything that causes— 
•    (i) excisable goods not to be excisable goods or excisable services not to be excisable services; 
•    (ii) excisable goods or excisable services not
• to be subject to excise duty; or 
•    (iii) excisable goods or excisable services to be subject to a lower rate of excise duty.