Liability where the transparency option is exercised

(1) The withholding agent is liable for the tax wrongly not levied or refunded where the transparency option is exercised. Liability is excluded insofar as the withholding agent demonstrates that it did not intentionally or with gross negligence breach the duties imposed on it.
(2) The investor is liable for the tax wrongly not levied or refunded where the transparency option is exercised, where liability under subsection (1) is excluded or the liability debt is unrecoverable.
(3) The legal representative of the special investment fund is liable for the tax wrongly not levied or refunded where the transparency option is exercised, where liability under subsections (1) and (2) is excluded or the liability debt is unrecoverable. Liability requires that the legal representative had knowledge, at the time the tax deduction was waived or the capital gains tax refunded, of the absent conditions for a waiver or refund, and did not notify this to the withholding agent.