PART 3
-
ASSESSMENT AND COLLECTION OF SURCHARGE
SECTION 15
WHEN SURCHARGE WILL BECOME PAYABLE
Explanation of section
15(1)
This section makes provision for the deferment of the liability of a member of a constitutionally protected superannuation fund to pay surcharge, and for interest to accrue on the deferred amount.
Accounts to be kept
15(2)
The Commissioner is to keep a surcharge debt account for each member of a constitutionally protected superannuation fund.
Account to be debited for surcharge
15(3)
The Commissioner is to debit the account for surcharge assessed to be payable on the member
'
s surchargeable contributions.
Interest to be debited
15(4)
If the member
'
s account is in debit at the end of a financial year, the Commissioner is to debit the account for interest on the amount by which the account is in debit, calculated at the Treasury bond rate for the last day of the financial year for bonds with a 10 year term.
Rate of interest
15(5)
The
Treasury bond rate
for the last day of a financial year for bonds with a 10 year term is:
(a)
if any Treasury bonds with that term were issued on that day
-
the annual yield on those bonds; or
(b)
otherwise
-
the annual yield on Treasury bonds with that term, as published by the Reserve Bank of Australia for that day.
Payment to be made when benefit becomes payable
15(6)
Subject to subsection
(6A)
, when a superannuation benefit (within the meaning of the
Income Tax Assessment Act 1997
) becomes payable by a superannuation provider for the benefit of a member whose surcharge debt account is in debit, the member is liable to pay to the Commissioner the lesser of:
(a)
the amount by which the account is in debit; or
(b)
the total of the following amounts:
(i)
15% of the employer-financed component of any part of the benefits payable to the member that accrued between 20 August 1996 and 1 July 2003;
(ii)
14.5% of the employer-financed component of any part of the benefits payable to the member that accrued in the 2003-2004 financial year;
(iii)
12.5% of the employer-financed component of any part of the benefits payable to the member that accrued in the 2004-2005 financial year;
(iv)
(Repealed by No 102 of 2005)
History
S 15(6) amended by No 15 of 2007, s 3 and Sch 1 item 333, by substituting
"
a superannuation benefit (within the meaning of the
Income Tax Assessment Act 1997
)
"
for
"
a lump sum, or a pension,
"
, applicable to the 2007-2008 income year and later years.
S 15(6) amended by No 102 of 2005, s 3 and Sch 1 item 29, by repealing para (b)(iv), effective 12 August 2005. Para (b)(iv) formerly read:
(iv)
10% of the employer-financed component of any part of the benefits payable to the member that accrued after 30 June 2005.
S 15(6) amended by No 106 of 2004, s 3 and Sch 2 item 8, by substituting paras (b)(iii) and (iv), applicable in relation to benefits that become payable on or after 1 July 2004. Paras (b)(iii) and (iv) formerly read:
(iii)
13.5% of the employer-financed component of any part of the benefits payable to the member that accrued in the 2004-2005 financial year;
(iv)
12.5% of the employer-financed component of any part of the benefits payable to the member that accrued after 30 June 2005.
S 15(6) amended by No 112 of 2003, s 3 and Sch 1 item 29, by substituting para (b), effective 1 July 2003. Act No 112 of 2003 contains the following application provision:
33 Application of items 24 to 30
33
The amendments made by items 24 to 30 apply in relation to benefits that become payable on or after 1 July 2003.
Note: The Acts amended by items 24 to 30 continue to apply in relation to benefits that become payable before 1 July 2003 as if the amendments made by those items had not been made.
Para (b) formerly read:
(b)
15% of the employer-financed component of that part of the benefits payable to the member that accrued after 20 August 1996.
S 15(6) amended by No 114 of 2001, s 3 and Sch 1 item 36, by substituting
"
Subject to subsection (6A), when
"
for
"
When
"
, effective 28 December 2002.
15(6AA)
If:
(a)
a payment split applies to a splittable payment in respect of an interest that a person has as a member; and
(b)
the splittable payment becomes payable in circumstances where the member
'
s surcharge account is in debit;
then the member is liable to pay to the Commissioner the lesser of:
(c)
the amount by which the account is in debit; and
(d)
the total of the following amounts:
(i)
15% of the employer-financed component of any part of the benefits that would have been payable to the member but for the payment split and that accrued between 20 August 1996 and 1 July 2003;
(ii)
14.5% of the employer-financed component of any part of the benefits that would have been payable to the member but for the payment split and that accrued in the 2003-2004 financial year;
(iii)
12.5% of the employer-financed component of any part of the benefits that would have been payable to the member but for the payment split and that accrued in the 2004-2005 financial year;
(iv)
(Repealed by No 102 of 2005)
History
S 15(6AA) amended by No 102 of 2005, s 3 and Sch 1 item 30, by repealing para (d)(iv), effective 12 August 2005. Para (d)(iv) formerly read:
(iv)
10% of the employer-financed component of any part of the benefits that would have been payable to the member but for the payment split and that accrued after 30 June 2005.
S 15(6AA) amended by No 106 of 2004, s 3 and Sch 2 item 9, by substituting paras (d)(iii) and (iv), applicable in relation to benefits that become payable on or after 1 July 2004. Paras (d)(iii) and (iv) formerly read:
(iii)
13.5% of the employer-financed component of any part of the benefits that would have been payable to the member but for the payment split and that accrued in the 2004-2005 financial year;
(iv)
12.5% of the employer-financed component of any part of the benefits that would have been payable to the member but for the payment split and that accrued after 30 June 2005.
S 15(6AA)(d) substituted by No 112 of 2003, s 3 and Sch 1 item 30, effective 1 July 2003. For application provisions see note under s 15(6). Para (d) formerly read:
(d)
15% of the employer-financed component of that part of the benefits that would have been payable to the member but for the payment split and that accrued after 20 August 1996.
S 15(6AA) inserted by No 114 of 2001, s 3 and Sch 1 item 37, effective 28 December 2002.
Payment to be made if fund ceases to be a constitutionally protected superannuation fund
15(6A)
If a superannuation fund ceases to be a constitutionally protected superannuation fund at a time when a member
'
s surcharge debt account is in debit, the member is liable to pay to the Commissioner the lesser of:
(a)
the amount by which the account is in debit; or
(b)
the total of the following amounts:
(i)
15% of the employer-financed component of any part of the value of the age retirement benefits of the member when the fund ceased to be a constitutionally protected superannuation fund that accrued between 20 August 1996 and 1 July 2003;
(ii)
14.5% of the employer-financed component of any part of the value of the age retirement benefits of the member when the fund ceased to be a constitutionally protected superannuation fund that accrued in the 2003-2004 financial year;
(iii)
12.5% of the employer-financed component of any part of the value of the age retirement benefits of the member when the fund ceased to be a constitutionally protected superannuation fund that accrued in the 2004-2005 financial year;
(iv)
(Repealed by No 102 of 2005)
History
S 15(6A) amended by No 102 of 2005, s 3 and Sch 1 item 31, by repealing para (b)(iv), effective 12 August 2005. Para (b)(iv) formerly read:
(iv)
10% of the employer-financed component of any part of the value of the age retirement benefits of the member when the fund ceased to be a constitutionally protected superannuation fund that accrued after 30 June 2005.
S 15(6A) amended by No 106 of 2004, s 3 and Sch 2 item 10, by substituting paras (b)(iii) and (iv), applicable in relation to superannuation funds that cease to be constitutionally protected superannuation funds on or after 1 July 2004. Paras (b)(iii) and (iv) formerly read:
(iii)
13.5% of the employer-financed component of any part of the value of the age retirement benefits of the member when the fund ceased to be a constitutionally protected superannuation fund that accrued in the 2004-2005 financial year;
(iv)
12.5% of the employer-financed component of any part of the value of the age retirement benefits of the member when the fund ceased to be a constitutionally protected superannuation fund that accrued after 30 June 2005.
S 15(6A) amended by No 112 of 2003, s 3 and Sch 1 item 31, by substituting para (b), effective 1 July 2003. Act No 112 of 2003 contains the following application provision:
35 Application of item 31
35
The amendment made by item 31 applies in relation to superannuation funds that cease to be constitutionally protected superannuation funds on or after 1 July 2003.
Note: The Act amended by item 31 continues to apply in relation to superannuation funds that cease to be constitutionally protected superannuation funds before 1 July 2003 as if the amendment made by item 31 had not been made.
Para (b) formerly read:
(b)
15% of the employer-financed component of that part of the value of the age retirement benefits of the member at the time when the fund ceased to be a constitutionally protected superannuation fund that accrued after 20 August 1996.
S 15(6A) inserted by No 168 of 2001, s 3 and Sch 2 item 6, effective 1 July 2000.
15(7)
If a member becomes liable to pay an amount to the Commissioner under subsection
(6)
or (6A)
†
or
(6A)
, the Commissioner must give the member a notice stating that the member is liable to pay the amount. The notice must contain the date on which it is issued.
History
S 15(7) amended by No 51 of 2002, s 3 and Sch 6 item 8, by inserting
"
or (6A)
"
before
"
, the Commissioner
"
, effective 29 June 2002.
S 15(7) amended by No 114 of 2001, s 3 and Sch 1 item 38, by inserting
"
or (6A)
"
(
†
second occurring) after
"
subsection (6)
"
, effective 28 December 2002.
15(8)
The amount is payable within 3 months after the date of issue of the notice and the notice is to state that the amount is so payable. Payment of the amount results in a nil balance in the account.
Note:
For provisions about collection and recovery of superannuation contributions surcharge and other related amounts, see Part 4-15 in Schedule 1 to the
Taxation Administration Act 1953
.
History
S 15(8) amended by No 44 of 2000, s 3 and Sch 3 item 52, by omitting
"
or within such further period as the Commissioner allows
"
, effective 1 July 2000. Despite this amendment, anything done under s 15(8) before 1 July 2000 continues to have effect on and after that day as if the subsection had not been so amended. S 15(8) formerly read:
15(8)
The amount is payable within 3 months after the date of issue of the notice or within such further period as the Commissioner allows and the notice is to state that the amount is so payable. Payment of the amount results in a nil balance in the account.
S 15(8) amended by No 44 of 2000, s 3 and Sch 3 item 54, by inserting the Note, effective 22 December 1999.
Person may direct superannuation provider to pay amount to Commissioner.
15(8A)
If:
(a)
a person is liable to pay an amount to the Commissioner under subsection
(6)
or (6A)
†
or
(6A)
; and
(b)
a superannuation benefit (within the meaning of the
Income Tax Assessment Act 1997
) is not payable by the superannuation provider for the benefit of the person because the person has become:
(i)
a member of another superannuation fund; or
(ii)
a member of an approved deposit fund; or
(iii)
the holder of an RSA; or
(iv)
the purchaser of an annuity from a life assurance company or from a registered organisation;
the person may direct the trustee of the other superannuation fund or the approved deposit fund, the RSA provider, the life assurance company or the registered organisation to pay to the Commissioner the whole or a part of the amount referred to in paragraph
(a)
and to make any necessary reductions in the benefits to which the person would otherwise be entitled from the other superannuation fund, the approved deposit fund, or the RSA or to the amount of the annuity to which the person would otherwise be entitled.
History
S 15(8A) amended by No 15 of 2007, s 3 and Sch 1 item 334, by substituting
"
a superannuation benefit (within the meaning of the
Income Tax Assessment Act 1997
) is not payable
"
for
"
neither a lump sum nor a pension is payable
"
in para (b), applicable to the 2007-2008 income year and later years.
S 15(8A)(a) amended by No 114 of 2001, s 3 and Sch 1 item 39, by inserting
"
or (6A)
"
(
†
second occurring) after
"
subsection (6)
"
, effective 28 December 2002.
S 15(8A) inserted by No 131 of 1999, s 3 and Sch 2 item 9, effective 7 December 1997. For transitional provisions, see the history note under s 6.
Member of former constitutionally protected superannuation fund may direct superannuation provider to pay amount to Commissioner
15(8AA)
If a person is liable to pay an amount to the Commissioner under subsection
(6A)
, the person may direct the superannuation provider to pay to the Commissioner the whole or a part of that amount and to make any necessary reductions in the benefits to which the person would otherwise be entitled.
History
S 15(8AA) inserted by No 168 of 2001, s 3 and Sch 2 item 7, effective 1 July 2000.
Superannuation provider to comply with direction
15(8B)
A superannuation provider to whom a direction is given under subsection
(8A)
or
(8AA)
must comply with the direction.
History
S 15(8B) amended by No 168 of 2001, s 3 and Sch 2 item 8, by inserting
"
(8AA)
"
, effective 1 July 2000.
S 15(8B) inserted by No 131 of 1999, s 3 and Sch 2 item 9, effective 7 December 1997. For transitional provisions, see the history note under s 6.
Surcharge debt may be reduced
15(9)
The member may make payments to the Commissioner for the purpose of reducing the amount by which the surcharge debt account is in debit.
What happens if debt reduced.
15(10)
If a member makes a payment under subsection
(9)
, the Commissioner is to:
(a)
acknowledge receipt of the payment to the member; and
(b)
credit the payment to the surcharge debt account; and
(c)
notify the member of the revised balance of the surcharge debt account.
Definitions
15(11)
In this section:
payment split
means a payment split within the meaning of Part
VIIIB
or
VIIIC
of the
Family Law Act 1975
.
splittable payment
means a splittable payment within the meaning of Part
VIIIB
or
VIIIC
of the
Family Law Act 1975
.
History
S 15(11) substituted by No 112 of 2020, s 3 and Sch 3 item 97, effective 28 September 2022. For transitional provision, see note under s
12(8)
. S 15(11) formerly read:
15(11)
In this section:
payment split
means a payment split under Part VIIIB of the
Family Law Act 1975
.
splittable payment
has the same meaning as in Part VIIIB of the
Family Law Act 1975
.
History
S 15(11) inserted by No 114 of 2001, s 3 and Sch 1 item 40, effective 28 December 2002.