Treasury Laws Amendment (Reuniting More Superannuation) Act 2021 (24 of 2021)

Schedule 1   Eligible rollover funds

Superannuation (Unclaimed Money and Lost Members) Act 1999

38   After Part 3B

Insert:

Part 3C - Payment of balances in accounts of eligible rollover funds to the Commissioner

Division 1 - Preliminary

21 Object of Part

The object of this Part is to set up a procedure for all account balances in eligible rollover funds to be paid to the Commissioner.

Note: Part 4B provides for the Commissioner, where possible, to unify any such account balance in respect of a person into a single active account held by a superannuation provider in respect of the person.

Division 2 - Statements on accounts of eligible rollover funds

21A Statements on accounts of eligible rollover funds

Statements for ERF low balance accounts held on 1 June 2021

(1) A superannuation provider who is a trustee of an eligible rollover fund must, by the end of 30 June 2021, give the Commissioner a statement, in the approved form, of information relevant to either or both of the following:

(a) each account (an ERF low balance account ) that, as at the end of 1 June 2021:

(i) was held by the fund on behalf of a person (an eligible rollover fund member ); and

(ii) had a balance of less than $6,000;

(b) the administration of any of the following in connection with each ERF low balance account held by the fund:

(i) this Part;

(ii) the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007;

(iii) the Income Tax Assessment Act 1997, Part 3AA of this Act, and Chapters 2 and 4 in Schedule 1 to the Taxation Administration Act 1953, so far as they relate to this Part or the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007.

Note 1: If an account is an ERF low balance account as at the end of 1 June 2021, it will remain an ERF low balance account even if the balance of the account subsequently equals or exceeds $6,000.

Note 2: If the balance of an account as at the end of 1 June 2021 equals or exceeds $6,000, it will not become an ERF low balance account even if the balance subsequently falls below $6,000.

(2) The statement under subsection (1) is not required to contain information relevant to an account that, as at the calculation time under subsection 21C(1) in relation to the account, is no longer held by the fund.

(3) If, at the end of 1 June 2021, there are no ERF low balance accounts held by the fund, the statement under subsection (1) must say so.

Statements for other accounts

(4) A superannuation provider who is a trustee of an eligible rollover fund must, by the end of 31 January 2022, give the Commissioner a statement, in the approved form, of information relevant to either or both of the following:

(a) each account (other than an ERF low balance account) that, as at the end of 1 June 2021, was held by the fund on behalf of a person (an eligible rollover fund member );

(b) the administration of any of the following in connection with each account held by the fund that is an account of a kind mentioned in paragraph (a):

(i) this Part;

(ii) the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007;

(iii) the Income Tax Assessment Act 1997, Part 3AA of this Act, and Chapters 2 and 4 in Schedule 1 to the Taxation Administration Act 1953, so far as they relate to this Part or the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007.

(5) The statement under subsection (4) is not required to contain information relevant to an account that, as at the calculation time under subsection 21C(1) in relation to the account, is no longer held by the fund.

Note 1: The Commissioner may defer the time for giving a statement required under this section: see section 388-55 in Schedule 1 to the Taxation Administration Act 1953.

Note 2: The Taxation Administration Act 1953 provides for offences and administrative penalties if a statement required under this section is not given when it must be: see sections 8C and 8E of that Act and Division 286 in Schedule 1 to that Act.

Note 3: The Taxation Administration Act 1953 provides for offences and administrative penalties if a statement required under this section includes false or misleading information: see sections 8K, 8M, 8N and 8R of that Act and Division 284 in Schedule 1 to that Act.

Note 4: The approved form may also require a statement required under this section to include certain tax file numbers: see subsection 25(3) of this Act.

21B Errors or omissions in statements

(1) A superannuation provider who becomes aware of a material error, or material omission, in any information in a statement of the superannuation provider under section 21A must give the corrected or omitted information to the Commissioner.

(2) The corrected or omitted information must be given:

(a) in the approved form; and

(b) no later than 30 days after the superannuation provider becomes aware of the error or omission.

Note 1: The Commissioner may defer the time for giving the information: see section 388-55 in Schedule 1 to the Taxation Administration Act 1953.

Note 2: The Taxation Administration Act 1953 provides for offences and administrative penalties if the information is not given when it must be: see sections 8C and 8E of that Act and Division 286 in Schedule 1 to that Act.

Division 3 - Payments in respect of accounts of eligible rollover funds

21C Payments in respect of accounts of eligible rollover funds

Provider must pay Commissioner

(1) A superannuation provider must pay the Commissioner (for the Commonwealth) the amount worked out under subsection (3) in respect of an eligible rollover fund member if the provider:

(a) is a trustee of an eligible rollover fund; and

(b) holds an account on behalf of the eligible rollover fund member at the time (the calculation time ) immediately before the earlier of:

(i) the time (if any) the payment is made; and

(ii) the time the payment is due and payable (assuming that the payment must be made).

Note 1: Subsection 21D(2) makes it an offence not to comply with a requirement under this subsection.

Note 2: The amount the superannuation provider must pay the Commissioner 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. Division 284 in that Schedule provides for administrative penalties connected with such liabilities.

Note 3: Section 21F provides for refunds of overpayments by the superannuation provider to the Commissioner.

(2) The amount is due and payable at the end of:

(a) 30 June 2021, if the account is an ERF low balance account; or

(b) 31 January 2022, if the account is not an ERF low balance account.

Note: The Commissioner may defer the time at which the amount is due and payable: see section 255-10 in Schedule 1 to the Taxation Administration Act 1953.

(3) The amount payable in respect of the eligible rollover fund member is the amount that would have been payable by the superannuation provider if the member had requested that the balance held in the account be rolled over or transferred to a complying superannuation fund (within the meaning of the SIS Act).

(4) For the purposes of subsection (3):

(a) work out the amount that would have been payable at the calculation time; and

(b) assume that the request were made before the calculation time; and

(c) assume that the eligible rollover fund member had not died before the calculation time.

Family Law payment splits

(5) If, as a result of a payment split that applies in relation to the account, the non-member spouse (or the non-member spouse's personal representative if the non-member spouse has died) is, or could in the future be, entitled to be paid an amount, then:

(a) for the purposes of subsection (3), take account only of the eligible roll-over fund member's entitlement to payment remaining after any reduction by the payment split (disregarding subsection 90XB(3) of the Family Law Act 1975); and

(b) the superannuation provider must also pay an amount (the non-member spouse amount ) to the Commissioner in respect of the non-member spouse; and

(c) the non-member spouse amount is due and payable at the same time as the amount payable under subsection (1); and

(d) the amount of the non-member spouse amount is the amount of the reduction mentioned in paragraph (a).

Note 1: Part VIIIB of the Family Law Act 1975 is about splitting amounts payable in respect of a superannuation interest between the parties to a marriage. Subsection 90XB(3) of that Act provides that the Part has effect subject to this Act.

Note 2: Subsection 21D(2) of this Act makes it an offence not to comply with a requirement under this subsection.

Miscellaneous

(6) Upon payment to the Commissioner of an amount as required under this section, the superannuation provider is discharged from further liability in respect of that amount.

(7) For the purposes of this section, ignore accounts with nil balances, or balances below nil, as at the calculation time mentioned in subsection (1).

21D Late payments

General interest charge on late payment

(1) If any of the amount a superannuation provider must pay under section 21C remains unpaid after it is due and payable, 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 time it is due and payable; and

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

(i) the amount unpaid when it is due and payable;

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

Offence of failing to make payment to Commissioner

(2) A person commits an offence if:

(a) the person is subject to a requirement under subsection 21C(1) or (5); and

(b) the person engages in conduct; and

(c) the person's conduct breaches the requirement.

Penalty for an offence against this subsection: 100 penalty units.

21E Payments by Commissioner in respect of persons for whom amounts have been paid to Commissioner

(1) This section applies in relation to a person if:

(a) a superannuation provider paid an amount to the Commissioner under section 21C in respect of the person; and

(b) the Commissioner is satisfied, on application in the approved form or on the Commissioner's own initiative, that it is possible for the Commissioner to pay the amount in accordance with subsection (2).

(2) The Commissioner must pay the amount:

(a) to a single fund if:

(i) the person has not died; and

(ii) the person directs the Commissioner to pay to the fund; and

(iii) the fund is a complying superannuation plan (within the meaning of the Income Tax Assessment Act 1997); or

(b) in accordance with subsection (4) if:

(i) the person has died; and

(ii) the Commissioner is satisfied that, if the superannuation provider had not paid the amount to the Commissioner, the provider would have been required to pay an amount or amounts ( death benefits ) to one or more other persons ( death beneficiaries ) because of the deceased person's death; or

(c) to the person's legal personal representative if the person has died but subparagraph (b)(ii) does not apply; or

(d) to the person if this paragraph applies (see subsection (3)).

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

(3) Paragraph (2)(d) applies if:

(a) subparagraph (2)(a)(ii) does not apply; and

(b) any of the following subparagraphs apply:

(i) the person has reached the eligibility age;

(ii) the amount is less than $200;

(iii) a terminal medical condition (within the meaning of the Income Tax Assessment Act 1997) exists in relation to the person; and

(c) the person has not died.

(4) In a case covered by paragraph (2)(b), the Commissioner must pay the amount under subsection (2) by paying to each death beneficiary the amount worked out using the following formula:

Formula to determine the amount payable to each death beneficiary

Note: If there is only one death beneficiary, the whole of the amount is payable to that beneficiary.

(5) If:

(a) the Commissioner makes a payment under subsection (2) to a fund, a legal personal representative or a person; and

(b) the payment is in accordance with paragraph (2)(a), (c) or (d);

the Commissioner must also pay to the fund, legal personal representative or person the amount of interest (if any) worked out in accordance with the regulations.

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

(6) If:

(a) the Commissioner makes a payment under subsection (2) to a death beneficiary; and

(b) the payment is in accordance with paragraph (2)(b);

the Commissioner must also pay to the death beneficiary the amount of interest (if any) worked out in accordance with the regulations.

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

(7) Regulations made for the purposes of subsection (5) or (6) may prescribe different rates for different periods over which the interest accrues. For this purpose, rate includes a nil rate.

(8) This section does not apply to an amount that is to be, is or has been, taken into account in determining whether the Commissioner must make a payment under subsection 20H(2) or (3).

Note: Subsections 20H(2) and (3) provide for payment by the Commissioner of amounts equal to amounts paid to the Commissioner under subsections 17(1), 20F(1), 20QD(1), 21C(1) and 24E(1) in respect of a person who:

(a) is identified in a notice under section 20C; or

(b) used to be the holder of a temporary visa.

Division 4 - Various rules for special cases

21F Refund of overpayment made by superannuation provider

If the Commissioner is satisfied that an amount a superannuation provider for a fund (the first fund ) has paid to the Commissioner under section 21C in respect of a person exceeded the amount (if any) that was payable under that section in respect of the person, 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 this section is appropriated by section 16 of the Taxation Administration Act 1953.

21G Commissioner may recover overpayment

(1) 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;

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

(2) 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.

(3) 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.

(4) Despite subsections (1) and (2), if the Commissioner gives a notice described in paragraph (3)(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.

(5) The Commissioner may revoke a notice described in paragraph (3)(a).

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

(7) A notice described in paragraph (3)(a) is not a legislative instrument.

21H Superannuation provider to return payment from Commissioner that cannot be credited

(1) If:

(a) a payment (the Commissioner's payment ) is made to a fund under subsection 21E(2) or (5) 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;

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.

(2) 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.

(3) If any of the amount the superannuation provider is liable to repay under subsection (1) 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.