BANKRUPTCY ACT 1966

PART VI - ADMINISTRATION OF PROPERTY  

Division 3 - Property available for payment of debts  

Subdivision B - Superannuation contributions  

SECTION 128C   SUPERANNUATION CONTRIBUTIONS MADE TO DEFEAT CREDITORS - CONTRIBUTOR IS A THIRD PARTY  

128C(1)   Transfers that are void.  

If:


(a) a person (the transferor ) transfers property to another person, (the transferee ); and


(b) the transfer is by way of a contribution to an eligible superannuation plan for the benefit of a person who later becomes a bankrupt (the beneficiary ); and


(c) the transferor did so under a scheme to which the beneficiary was a party; and


(d) the property would probably have become part of the beneficiary ' s estate or would probably have been available to creditors if the property had not been transferred; and


(e) the beneficiary ' s main purpose in entering into the scheme was:


(i) to prevent the transferred property from becoming divisible among the beneficiary ' s creditors; or

(ii) to hinder or delay the process of making property available for division among the beneficiary ' s creditors; and


(f) the transfer occurred on or after 28 July 2006;

the transfer is void against the trustee in the beneficiary ' s bankruptcy.

128C(2)   [ Death benefits not applicable]  

For the purposes of paragraph (1)(b), disregard a benefit that is payable in the event of the death of a person.

128C(3)   Showing the beneficiary ' s main purpose in entering into the scheme.  

The beneficiary ' s main purpose in entering into the scheme is taken to be the purpose described in paragraph (1)(e) if it can reasonably be inferred from all the circumstances that, at the time when the beneficiary entered into the scheme, the beneficiary was, or was about to become, insolvent.

128C(4)   [ Factors when determining main purpose of scheme]  

In determining whether the beneficiary ' s main purpose in entering into the scheme was the purpose described in paragraph (1)(e), regard must be had to:


(a) whether, during any period ending before the scheme was entered into, the transferor had established a pattern of making contributions to one or more eligible superannuation plans for the benefit of the beneficiary; and


(b) if so, whether the transfer, when considered in the light of that pattern, is out of character.

128C(5)   [ Death benefit not applicable]  

For the purposes of paragraph (4)(a), disregard a benefit that is payable in the event of the death of a person.

128C(6)   Other ways of showing the beneficiary ' s main purpose in entering into a scheme.  

Subsections (3) and (4) do not limit the ways of establishing the beneficiary ' s main purpose in entering into a scheme.

128C(7)   Rebuttable presumption of insolvency.  

For the purposes of this section, a rebuttable presumption arises that the beneficiary was, or was about to become, insolvent at the time the beneficiary entered into the scheme if it is established that the beneficiary:


(a) had not, in respect of that time, kept such books, accounts and records as are usual and proper in relation to the business carried on by the beneficiary and as sufficiently disclose the beneficiary ' s business transactions and financial position; or


(b) having kept such books, accounts and records, has not preserved them.

128C(7A)   Refund of contributions tax etc.  

If:


(a) as a result of subsection (1), a transfer made by way of a contribution to an eligible superannuation plan is void against the trustee in the beneficiary ' s bankruptcy; and


(b) any of the following amounts was debited from the contribution:


(i) an amount in respect of tax in respect of the contribution;

(ii) a fee, or a charge, in respect of the contribution; and


(c) in compliance with a section 139ZQ notice that relates to the transfer, the trustee of the eligible superannuation plan pays an amount to the trustee in the beneficiary ' s bankruptcy; and


(d) the amount paid in compliance with the section 139ZQ notice exceeds the amount so debited;

the trustee in the beneficiary ' s bankruptcy must pay to the trustee of the eligible superannuation plan an amount equal to the amount so debited.

128C(8)   Protection of successors in title.  

This section does not affect the rights of a person who acquired property from the transferee in good faith and for at least the market value of the property.

128C(9)   Meaning of transfer of property and market value .  

For the purposes of this section:


(a) transfer of property includes a payment of money; and


(b) a person who does something that results in another person becoming the owner of property that did not previously exist is taken to have transferred the property to the other person; and


(c) the market value of property transferred is its market value at the time of the transfer.




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