Tax Laws Amendment (2009 Measures No. 1) Act 2009 (27 of 2009)

Schedule 2   Unclaimed superannuation money

Part 1   Amendment of the Superannuation (Unclaimed Money and Lost Members) Act 1999

23   After section 18

Insert:

18A Refund of overpayment made by superannuation provider

(1) This section applies if:

(a) a superannuation provider for a fund (the first fund ) has made a payment under subsection 17(1) in respect of a person; and

(b) the Commissioner is satisfied that the amount paid exceeded the amount (if any) that was payable under that subsection in respect of the person.

(2) The Commissioner must pay the excess:

(a) to the superannuation provider; or

(b) to a superannuation provider for another fund if the Commissioner is satisfied that:

(i) the first fund no longer exists; and

(ii) the other fund provides rights relating to the person equivalent to those provided by the first fund.

Note: Money for payments under subsection (2) is appropriated by section 16 of the Taxation Administration Act 1953.

18B Commissioner may recover overpayment

(1) This section applies if:

(a) the Commissioner makes a payment in respect of a person under, or purportedly under, this Part; and

(b) the amount paid exceeds the amount (if any) properly payable under this Part in respect of the person.

(2) The Commissioner may recover all or part of the excess from a person (the debtor ) described in subsection (3) as a debt due by the debtor to the Commonwealth if the conditions specified in subsection (4) are met.

(3) The persons from whom the Commissioner may recover are as follows:

(a) the person to whom the payment was made (whether the payment was made to the person in his or her own right or as the legal personal representative of someone else who had died);

(b) the superannuation provider for the fund to which the payment was made;

(c) if the payment, or an amount wholly or partly attributable to that payment, was transferred to another fund - the superannuation provider for that other fund.

(4) The conditions for recovery are that:

(a) the Commissioner gave the debtor written notice, as prescribed by the regulations, of the proposed recovery and the amount to be recovered; and

(b) at least 28 days have passed since the notice was given; and

(c) the amount recovered is not more than the amount specified in the notice.

(5) Despite subsections (2) and (3), if the Commissioner gives a notice described in paragraph (4)(a) to a superannuation provider for a fund, and the fund does not hold an amount attributable to the payment, the Commissioner cannot recover from the superannuation provider.

(6) The Commissioner may revoke a notice described in paragraph (4)(a).

(7) The total of the amounts recovered from different debtors in relation to the same excess must not be more than the excess.

(8) A notice described in paragraph (4)(a) is not a legislative instrument.

18C Superannuation provider to return payment from Commissioner that cannot be credited

Scope

(1) This section applies if:

(a) a payment (the Commissioner’s payment ) is made to a fund under subsection 17(2) in accordance with a person’s direction; and

(b) the superannuation provider for the fund has not credited the payment to an account for the benefit of the person by the time (the repayment time ) that is the end of the 28th day after the day on which the Commissioner’s payment was made.

Repayment

(2) The superannuation provider is liable to repay the Commissioner’s payment to the Commonwealth. The repayment is due and payable at the repayment time.

Note: The amount the superannuation provider is liable to repay is a tax-related liability for the purposes of the Taxation Administration Act 1953. Division 255 in Schedule 1 to that Act deals with payment and recovery of tax-related liabilities.

(3) The superannuation provider must give the Commissioner, in the approved form, information relating to the Commissioner’s payment when repaying it.

Note: The Taxation Administration Act 1953 provides for offences and administrative penalties if the form is not given when it must be or includes false or misleading information: see sections 8C, 8K and 8N of that Act and Divisions 284 and 286 in Schedule 1 to that Act.

General interest charge

(4) If any of the amount the superannuation provider is liable to repay under subsection (2) remains unpaid by the superannuation provider after the repayment time, the superannuation provider is liable to pay general interest charge on the unpaid amount for each day in the period that:

(a) starts at the repayment time; and

(b) ends at the end of the last day on which either of the following remains unpaid:

(i) the amount unpaid at the repayment time;

(ii) general interest charge on any of the amount.

Part 3AA - Register of unclaimed money