INCOME TAX ASSESSMENT ACT 1997

CHAPTER 2 - LIABILITY RULES OF GENERAL APPLICATION  

PART 2-40 - RULES AFFECTING EMPLOYEES AND OTHER TAXPAYERS RECEIVING PAYG WITHHOLDING PAYMENTS  

Division 82 - Employment termination payments  

Subdivision 82-C - Key concepts  

Operative provisions

SECTION 82-130   What is an employment termination payment ?  

82-130(1)  
A payment is an employment termination payment if:


(a) it is received by you:


(i) in consequence of the termination of your employment; or

(ii) after another person ' s death, in consequence of the termination of the other person ' s employment; and


(b) it is received no later than 12 months after that termination (but see subsection (4)); and


(c) it is not a payment mentioned in section 82-135 .

Note 1:

If a payment would be an employment termination payment but for paragraph (b), see subsection (4) and section 83-295 .

Note 2:

The holding of an office is treated as employment for this Part: see section 80-5 . Also, the termination of employment is treated as including the termination of employment by retirement or by death: see section 80-10 .

Types of employment termination payment

82-130(2)  
A life benefit termination payment is an *employment termination payment to which subparagraph (1)(a)(i) applies.

82-130(3)  
A death benefit termination payment is an *employment termination payment to which subparagraph (1)(a)(ii) applies. Exemption from 12 month rule

82-130(4)  
Paragraph (1)(b) does not apply to you if:


(a) you are covered by a determination under subsection (5) or (7); or


(b) the payment is a *genuine redundancy payment or an *early retirement scheme payment.

Note:

The part of a genuine redundancy payment or an early retirement scheme payment worked out under section 83-170 is not an employment termination payment: see section 82-135 .

82-130(5)  
The Commissioner may determine, in writing, that paragraph (1)(b) does not apply to you if the Commissioner considers the time between the employment termination and the payment to be reasonable, having regard to the following:


(a) the circumstances of the employment termination, including any dispute in relation to the termination;


(b) the circumstances of the payment;


(c) the circumstances of the person making the payment;


(d) any other relevant circumstances.

82-130(6)  
A determination under subsection (5) is not a legislative instrument.

82-130(7)  
The Commissioner may, by legislative instrument, determine that paragraph (1)(b) does not apply to either or both of the following, as specified in the determination:


(a) a class of payments;


(b) a class of recipients of payments.

82-130(8)  
A determination under subsection (7) may provide for paragraph (1)(b) not to apply in circumstances relating to any (or all) of the following, as specified in the determination:


(a) a class of employment termination (including a class described by reference to disputes of a specified type);


(b) a class of payments;


(c) a class of persons making payments;


(d) the period after the employment termination until payment is received;


(e) any other relevant circumstances.


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