Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further Election Commitments and Other Measures) Act 2011 (53 of 2011)
Schedule 1 Family tax benefit advance
Part 1 Amendments
A New Tax System (Family Assistance) Act 1999
8 At the end of Part 5 of Schedule 1
Add:
Division 4 - Reduction for family tax benefit advance
40 Reduction for family tax benefit advance
(1) Subject to subclause (2) and clauses 43 and 44, the amount by which an individual’s Part A rate is to be reduced under clause 5 or 25A to repay a family tax benefit advance is worked out using the following formula:
Member of a couple in a blended family
(2) If a determination under section 28 that an individual is eligible for a percentage (the section 28 percentage ) of the family tax benefit for FTB children of the individual is in force, the amount by which the individual’s Part A rate is to be reduced under clause 5 or 25A to repay the family tax benefit advance is worked out using the following formula:
Meaning of repayment period
(3) The repayment period in relation to a family tax benefit advance that is paid to an individual:
(a) begins on:
(i) the first day of the instalment period after the individual is paid the family tax benefit advance; or
(ii) if it is not practicable for the reduction to start on the day referred to in subparagraph (i) - the first day on which it is practicable to reduce the individual’s Part A rate; or
(iii) if the determination of the individual’s entitlement to the family tax benefit advance is a determination referred to in subsection 35B(3) of the Family Assistance Administration Act (regular family tax benefit advances) - the day the determination is made; or
(iv) such other day determined by the Secretary under this Division; and
(b) is a period of 182 days or such other period determined by the Secretary under this Division.
41 Standard reduction
(1) Subject to subclause (2), the standard reduction for a family tax benefit advance is the amount worked out using the following formula:
Member of a couple in a blended family
(2) If a determination under section 28 that an individual is eligible for a percentage (the section 28 percentage ) of the family tax benefit for FTB children of the individual is in force, the standard reduction for a family tax benefit advance paid to the individual is the amount worked out using the following formula:
Meaning of original repayment period
(3) The original repayment period for a family tax benefit advance is a period of 182 days, unless the Secretary has determined a different period for the advance under clause 42 or 51.
42 Secretary determines shorter repayment period
When determining an individual’s entitlement to a family tax benefit advance under section 35A of the Family Assistance Administration Act, the Secretary may determine that the repayment period for the family tax benefit advance is a period of less than 182 days, if the Secretary is satisfied that it is appropriate to determine the shorter repayment period having regard to:
(a) circumstances affecting the individual’s eligibility for family tax benefit; and
(b) circumstances affecting the rate of family tax benefit that the individual is entitled to be paid.
43 Part A rate insufficient to cover reduction - single family tax benefit advance
(1) This clause applies if:
(a) under clause 5 or 25A, the individual’s Part A rate is to be reduced to repay a family tax benefit advance (the unrepaid advance ); and
(b) the individual’s Part A rate is not to be reduced under clause 5 or 25A to repay any other family tax benefit advance; and
(c) the amount by which the individual’s Part A rate would be reduced under clause 5 or 25A to repay the unrepaid advance would exceed the amount of the individual’s Part A rate before reduction (the unreduced Part A rate ), if the amount were worked out under clause 40.
(2) Subject to clause 45, the Secretary must determine that the number of days in the repayment period for the unrepaid advance is to be increased so that the individual’s Part A rate is reduced under clause 5 or 25A by an amount that is no more than the individual’s unreduced Part A rate.
(3) If the individual’s unreduced Part A rate later exceeds the amount by which the individual’s Part A rate would be reduced under clause 40, the Secretary may determine that the number of days in the repayment period for the unrepaid advance is to be decreased.
(4) However, the amount by which the individual’s Part A rate is to be reduced as a result of a determination under subclause (3) must be no more than the standard reduction.
Note: The individual may also request that the Secretary determine a shorter or longer repayment period under clause 46 or 47.
44 Part A rate insufficient to cover reduction - multiple family tax benefit advances
(1) This clause applies if:
(a) under clause 5 or 25A, the individual’s Part A rate is to be reduced to repay more than one family tax benefit advance (the unrepaid advances ); and
(b) the sum of the amounts by which the individual’s Part A rate would be reduced under clause 5 or 25A to repay the unrepaid advances would exceed the amount of the individual’s Part A rate before reduction (the unreduced Part A rate ), if the amounts were worked out under clause 40.
(2) Subject to clause 45, the amount by which the individual’s Part A rate is to be reduced under clause 5 or 25A to repay the unrepaid advances is worked out using the following method statement:
Method statement
Step 1. Take each advance, in the order in which the advances were paid.
Step 2. If the unreduced Part A rate, less any amounts by which the individual’s Part A rate has been reduced under a previous application of this step, equals or exceeds the standard reduction for the advance, the individual’s Part A rate is to be reduced by an amount equal to the standard reduction.
Step 3. If the unreduced Part A rate, less any amounts by which the individual’s Part A rate has been reduced under a previous application of step 2, does not equal or exceed the standard reduction for the advance (but is greater than nil), the Secretary must determine that the number of days in the repayment period for the advance is to be increased so that the individual’s Part A rate is reduced by an amount that is no more than the remainder.
Step 4. If the unreduced Part A rate, less any amounts by which the individual’s Part A rate has been reduced under a previous application of step 2 or step 3, is nil, the Secretary must determine that the repayment period for the advance is to be suspended while the determination is in force.
(3) The Secretary may vary a determination made under step 3 of the method statement in subclause (2).
(4) The Secretary may revoke a determination made under step 4 of the method statement in subclause (2).
(5) Subject to clause 45, if the Secretary revokes a determination made under step 4 of the method statement in subclause (2) in relation to a family tax benefit advance, the Secretary must determine the number of days remaining in the repayment period for the advance.
(6) The Secretary must not vary a determination under subclause (3), or make a determination under subclause (5), in relation to a family tax benefit advance so that the amount by which the individual’s Part A rate is to be reduced under clause 5 or 25A to repay the advance is more than the standard reduction.
45 Part A rate insufficient to cover reduction - discretion to create FTB advance debt
(1) The Secretary may, instead of making a determination under subclause 43(2), step 3 of the method statement in subclause 44(2) or under subclause 44(5), determine that the amount of unrepaid family tax benefit advance is to be a debt.
Note: See subsection 71A(7) of the Family Assistance Administration Act.
(2) However, the Secretary must not make a determination under subclause (1) unless the individual’s Part A rate before reduction under clause 5 or 25A is less than the amount that would, under clause 26, be the FTB child rate for an FTB child who had not turned 18 if:
(a) the individual’s Part A rate were required to be worked out using Part 3 of this Schedule; and
(b) clause 27 did not apply.
46 Changing the repayment period - individual requests shorter period
Request for shorter repayment period
(1) The Secretary may determine that the number of days in a repayment period for a family tax benefit advance paid to an individual is to be decreased if:
(a) the individual has made a request in accordance with subclause (2) for a shorter repayment period; and
(b) the Secretary is satisfied that the individual would not suffer severe financial hardship if the number of days in the repayment period were decreased as determined.
(2) The request must be made in a form and manner, contain any information, and be accompanied by any documents, required by the Secretary.
Request for variation of the determination
(3) On the request of the individual, the Secretary may, in writing, vary the determination so as to increase the number of days in the repayment period.
(4) However, the Secretary must not vary the determination under subclause (3) if, as a result of the variation, the amount by which the individual’s Part A rate is to be reduced under clause 5 or 25A would be less than the standard reduction.
Note: If, after a variation under subclause (3), the reduction in the individual’s Part A rate under clause 5 or 25A would cause the individual to suffer severe financial hardship, the individual may request a longer repayment period under clause 47.
47 Changing the repayment period - individual requests longer period
Request for longer repayment period
(1) The Secretary may determine that the number of days in a repayment period for a family tax benefit advance paid to an individual is to be increased if:
(a) the individual has made a request in accordance with subclause (2) for a longer repayment period; and
(b) the Secretary is satisfied that:
(i) special circumstances relevant to the repayment of the advance exist in relation to the individual that could not reasonably have been foreseen at the time of the individual’s request for a family tax benefit advance; and
(ii) the individual would suffer severe financial hardship if the number of days in the repayment period were not increased as determined.
(2) The request must be made in a form and manner, contain any information, and be accompanied by any documents, required by the Secretary.
Secretary may vary the determination
(3) The Secretary may, in writing, vary the determination so as to reduce the number of days in the repayment period but only if:
(a) the Secretary is satisfied that the individual would not suffer severe financial hardship because of the variation; and
(b) the amount by which the individual’s Part A rate is to be reduced under clause 5 or 25A, as a result of the variation, is not greater than the standard reduction.
48 Changing the repayment period - recalculation of amount of unrepaid family tax benefit advance
(1) This clause applies if, during the repayment period for a family tax benefit advance, the amount of the family tax benefit advance that is unrepaid is increased, due to a variation in a determination, or a variation or substitution of a decision on review (other than a variation under subsection 28(2) or (6) of the Family Assistance Administration Act), so that the amount by which the individual’s Part A rate is to be reduced under clause 5 or 25A is an amount that is more than the standard reduction.
(2) The Secretary must determine that the number of days in a repayment period is to be increased so that the amount by which the individual’s Part A rate is to be reduced under clause 5 or 25A is an amount that is no more than the standard reduction.
Note: The individual may also request that the Secretary determine a shorter or longer repayment period under clause 46 or 47.
49 Suspension of repayment period
Request for suspension of repayment period
(1) The Secretary may determine that the repayment period for a family tax benefit advance paid to an individual is to be suspended while the determination is in force.
(2) However, the Secretary may only make a determination under subclause (1) if:
(a) the individual has made a request in accordance with subclause (3) for the repayment period to be suspended; and
(b) the Secretary is satisfied that:
(i) special circumstances relevant to the repayment of the advance exist in relation to the individual that could not reasonably have been foreseen at the time of the individual’s request for a family tax benefit advance; and
(ii) the individual would suffer severe financial hardship if the individual’s Part A rate were to be reduced for that period.
(3) The request must be made in a form and manner, contain any information, and be accompanied by any documents, required by the Secretary.
Secretary may revoke the suspension
(4) The Secretary may in writing, at any time, revoke the determination, but only if the Secretary is satisfied that the individual would not suffer severe financial hardship from the individual’s Part A rate being reduced under clause 5 or 25A as a result of the revocation.
Determination of repayment period on revocation of suspension
(5) If the Secretary revokes the determination, the Secretary must determine the number of days remaining in the repayment period so that the amount by which the individual’s Part A rate is to be reduced under clause 5 or 25A is an amount that is no more than the standard reduction.
Note: The individual may also request that the Secretary determine a shorter or longer repayment period under clause 46 or 47.
50 Repayment of family tax benefit advance by another method
(1) The Secretary may determine that an individual may repay all or part of an amount of unrepaid family tax benefit advance by a method other than by reduction under clause 5 or 25A if:
(a) the individual has made a request in accordance with subclause (2); and
(b) the method is acceptable to both the individual and the Secretary.
(2) The request must be made in a form and manner, contain any information, and be accompanied by any documents, required by the Secretary.
51 Recalculation of amount of unrepaid family tax benefit advance
(1) This clause applies if:
(a) an individual is paid a family tax benefit advance (the old advance ); and
(b) the individual’s Part A rate has been reduced under clause 5 or 25A to repay the old advance; and
(c) the repayment period for the old advance has expired; and
(d) due to a variation in a determination, or a variation or substitution of a decision on review (other than a variation under subsection 28(2) or (6) of the Family Assistance Administration Act), the reduction in the individual’s Part A rate under clause 5 or 25A has not been sufficient to repay the old advance; and
(e) at the time of the variation of the determination, or the variation or substitution of the decision on review:
(i) the individual is entitled to be paid family tax benefit by instalment; and
(ii) the individual’s Part A rate is greater than nil (before reduction under clause 5 or 25A).
Note: If a variation or review occurs during the repayment period for a family tax benefit advance, the Secretary may be required to make a determination under clause 48.
(2) The Secretary must determine that the individual is to be taken to have been paid a family tax benefit advance (the new advance ) equal to the amount of the old advance left unrepaid on the day on which the Part A rate is recalculated.
(3) If an individual is taken to have been paid a new advance under subclause (2), the individual is taken to have repaid the old advance.
(4) The Secretary must determine the repayment period for the new advance and the day on which the repayment period is to begin.
(5) The Secretary must not make a determination under subclause (4) that would cause the individual to suffer severe financial hardship.
(6) The Secretary may vary or revoke a determination made under subclause (2) or (4), if a subsequent variation in the determination, or a variation or substitution of the decision on review, occurs.