Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997
PART 1 - PRELIMINARY
SECTION 1
1
SHORT TITLE
This Act may be cited as the
Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997.
SECTION 2
2
COMMENCEMENT
This Act commences on the day on which it receives the Royal Assent.
SECTION 3
ACT TO BIND CROWN
3(1)
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
History
S 3(1) amended by No 59 of 2015, s 3 and Sch 2 item 339, by substituting "and of the Northern Territory" for ", of the Northern Territory and of Norfolk Island", effective 1 July 2016.
3(2)
Nothing in this Act permits the Crown to be prosecuted for an offence.
SECTION 4
4
EXTENSION TO NORFOLK ISLAND
This Act extends to Norfolk Island.
SECTION 5
5
OBJECT OF ACT
The object of this Act is to provide for the assessment and collection of the superannuation contributions surcharge payable on surchargeable contributions for high-income members of constitutionally protected superannuation funds.
SECTION 6
6
SIMPLIFIED OUTLINE OF ACT
The following is a simplified outline of this Act.
(a) If there are surchargeable contributions for a member for the 1996-97 financial year or a later financial year (being a financial year that ends before 1 July 2005), the Commissioner will calculate the member's adjusted taxable income for the financial year.
(b) If the amount calculated is greater than the surcharge threshold amount, the Commissioner will calculate the rate of surcharge and the amount of the surcharge payable on the surchargeable contributions. Only surchargeable contributions calculated for a period after 7.30 pm on 20 August 1996 are subject to surcharge.
(c) For a defined benefits superannuation scheme, the surcharge is payable on an amount calculated to be the actuarial value of the benefits that accrued to, and the value of the administration expenses and risk benefits provided in respect of, the member for the financial year.
(d) If, after the assessment of surcharge, the member's adjusted taxable income is found to be different from the amount that was previously calculated or the surchargeable contributions are found to be different from the amount on which the assessment was based, the Commissioner may amend the assessment.
(e) The member is liable to pay the surcharge on the member's surchargeable contributions for a financial year, but the surcharge is not payable before benefits become payable.
(f) If liability for surcharge is increased as a result of an amendment of an assessment, interest is payable on the additional surcharge.
(g) A member may object against an assessment of surcharge in the way set out in Part IVC of the Taxation Administration Act 1953 for objecting against assessments of income tax.
(h) A late payment penalty applies if surcharge is not paid on time.
History
S 6 amended by No 102 of 2005, s 3 and Sch 1 item 23, by inserting ``(being a financial year that ends before 1 July 2005)'' after ``later financial year'' in para (a), effective 12 August 2005.
S 6 substituted by No 131 of 1999, s 3 and Sch 2 item 1, effective 7 December 1997. S 6 formerly read:
OUTLINE OF ACT
6
The following is a simplified outline of this Act.
• If there are surchargeable contributions for a member for the 1996-97 financial year or a later financial year, the Commissioner will calculate the member's adjusted taxable income for the financial year.
• If the amount calculated is greater than the surcharge threshold amount, the Commissioner will calculate the rate of surcharge and make an assessment, directed to the member, of surcharge payable on the contributions. Only contributions paid, or relating to a time, after 7.30 pm on 20 August 1996 are subject to surcharge.
• If the contributions are held under a defined benefits superannuation scheme, the surcharge is payable on an amount calculated by reference to a notional surchargeable contributions factor determined for the member and the member's annual salary for the purposes of the scheme.
• If, after the assessment of surcharge, the member's adjusted taxable income is found to be different from the amount that was previously calculated or the surchargeable contributions are found to be different from the amount on which the assessment was based, the Commissioner may amend the assessment.
• The member is liable to pay the surcharge on the member's surchargeable contributions for a financial year, but the surcharge is not payable until benefits become payable.
• If liability for surcharge is increased as a result of an amendment of an assessment, general interest charge is payable on the additional surcharge.
• The provisions in the Taxation Administration Act 1953 for objecting against assessments of income tax apply to assessments of surcharge in so far as the assessments relate to the calculation of a member's adjusted taxable income.
• A late payment penalty applies if surcharge is not paid on time.
No 131 of 1999, Sch 2, contained the following transitional provisions:
Transitional - superannuation providers to give corrective statements
25
If a superannuation provider has, before the commencement of this item [13.10.99], given a statement to the Commissioner under section 12 of the Superannuation Contributions Tax (Members of Constitutionally Protected Funds) Assessment and Collection Act 1997 that did not comply with the requirements that would have applied if the amendments made by items of this Schedule that are taken to have commenced on 5 June 1997 had been in force, the provider must give to the Commissioner not later than a date fixed by the Minister by notice published in the Gazette, in substitution for the first-mentioned statement, a further statement that complies with those requirements.
Transitional - retrospective objections
26
If a notice of assessment was given to a member before the day on which this Act received the Royal Assent [13.10.99]:
(a)
if the member did not object against the assessment before that day, then, for the purpose of calculating under section 14ZW of the Taxation Administration Act 1953 the period within which the member may object against the assessment, the notice is taken to have been served on that day; and
(b)
if the member objected against the assessment before the day on which this Act received the Royal Assent, the member may make a further objection against the assessment and, for the purpose of calculating under section 14ZW of the Taxation Administration Act 1953 the period within which the member may make the further objection against the assessment, the notice is taken to have been served on that day.
Transitional - amendments of assessments
27
Nothing in section 15A of the Superannuation Contributions Tax (Members of Constitutionally Protected Funds) Assessment and Collection Act 1997 prevents the amendment of an assessment for the purpose of giving effect:
(a)
to any amendment made by this Schedule or to item 25 or 26; or
(b)
to anything done under a provision of that Act as amended by this Schedule or under item 25 or 26.
S 6 amended by No 11 of 1999, s 3 and Sch 1 items 327 and 328, by substituting ``general interest charge'' for ``interest'' and by omitting ``• The Commissioner may remit interest or late payment penalty: a refusal to remit is reviewable by the Administrative Appeal Tribunal.'', applicable in relation to amounts that are to be paid on or after 1 July 1999.
SECTION 7
7
EXCLUSION OF CERTAIN MEMBERS
This Act does not apply to a person who is a member because he or she is a judge of a court of a State at the commencement of this Act.
PART 2 - LIABILITY TO SURCHARGE
SECTION 8
SUPERANNUATION CONTRIBUTIONS SURCHARGE
8(1)
Financial years to which surcharge applies.
Superannuation contributions surcharge is payable on a member's surchargeable contributions for the financial year that began on 1 July 1996 or a later financial year that ends before 1 July 2005.
History
S 8(1) amended by No 102 of 2005, s 3 and Sch 1 item 2, by inserting ``that ends before 1 July 2005'' at the end, effective 12 August 2005.
8(2)
No surcharge is payable unless adjusted taxable income is greater than surcharge threshold.
Surcharge is not payable for a financial year unless the member's adjusted taxable income for the financial year is greater than the surcharge threshold for the financial year.
8(3)
No surcharge is payable by residents of external Territories.
Surcharge is not payable for a financial year if the person who would be liable to pay the surcharge is a Territory resident for the purposes of Division 1A of Part III of the Income Tax Assessment Act as it applies to the year of income that comprises that financial year.
SECTION 9
SURCHARGEABLE CONTRIBUTIONS
9(1)
Application.
This section explains what are the surchargeable contributions of a member for a financial year and how they are to be worked out.
History
S 9(1) substituted by No 131 of 1999, s 3 and Sch 2 item 2, effective 7 December 1997. For transitional provisions, see the history note under s 6. S 9(1) formerly read:
9(1)
This section explains what are a member's surchargeable contributions for a financial year.
• In the case of members of accumulated benefits schemes, the surchargeable contributions are calculated by reference to amounts actually paid to the superannuation providers.
• In the case of members of defined benefits schemes, the surchargeable contributions are based on their respective annual salaries multiplied by a notional factor to equate the effective increase in the values of the benefits under the schemes in the financial year to the level of contributions to equivalent accumulated benefits schemes.
9(2)
Member other than a member of a defined benefits superannuation scheme.
If:
(a)
there are any contributed amounts for a financial year in relation to a member other than a member of a defined benefits superannuation scheme; and
(b)
the constitutionally protected superannuation fund is a complying superannuation fund for the purposes of the year of income comprising the financial year;
the
surchargeable contributions
of the member for the financial year are the sum of:
(c)
so much of the amounts referred to in subparagraph (a)(i) of the definition of
contributed amounts
in section
38 as:
(i)
are taxable contributions under subparagraph 274(1)(a)(i), (b)(ii), (ba)(i) or (ba)(iv) or paragraph 274(1)(d) or (e) of the Income Tax Assessment Act; or
(ii)
are allowed as deductions to the member under section 82AAT of that Act; or
(iii)
subject to subsection (3), constitute amounts accrued after 20 August 1996 that are eligible termination payments under paragraph (a) of the definition of
eligible termination payment
in subsection 27A(1) of that Act and are rolled-over on or after 1 July 1997; and
(d)
any amounts referred to in subparagraph (a)(ii) or (iii) of the definition of
contributed amount
in section
38.
History
S 9(2)(b) amended by No 168 of 2001, s 3 and Sch 2 item 4, by omitting ``and'' at the end, effective 1 July 2000.
S 9(2) amended by No 96 of 2001, s 3 and Sch 2 item 1, by substituting para (c)(iii), effective 7 December 1997. Act No 96 of 2001, Sch 2 item 8, contained the following application provision:
8
Amendment of assessments.
Nothing in the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 prevents the amendment of an assessment of surcharge on a member's surchargeable contributions for a financial year for the purpose of giving effect to an amendment of that Act made by this Schedule or Schedule 1 if the Commissioner has sufficient information to satisfy himself or herself that the amendment is required or permitted for that purpose and the amendment does not increase the amount of surcharge payable in respect of those contributions.
Para (c)(iii) formerly read:
(iii)
subject to subsection (2A), are specified roll-over amounts that constitute amounts accrued after 20 August 1996 that are eligible termination payments under paragraph (a) of the definition of
eligible termination payment
in subsection 27A(1) of that Act and are rolled over on or after 1 July 1997; and
S 9(2) substituted by No 131 of 1999, s 3 and Sch 2 item 2, effective 7 December 1997. For transitional provisions, see the history note under s 6. S 9(2) formerly read:
9(2)
When amounts are paid to superannuation (accumulated benefits) provider.
If:
(a)
either of the following applies:
(i)
any amounts are paid for or by a member to a superannuation (accumulated benefits) provider for a financial year;
(ii)
there is an allocated surplus amount in relation to a member in respect of a financial year after the 1996-97 financial year; and
(b)
the constitutionally protected superannuation fund is a complying superannuation fund for the purposes of the year of income comprising the financial year,
the member's
surchargeable contributions
for the financial year are the sum of:
(c)
so much of the amounts referred to in subparagraph (a)(i) as:
(i)
would be taxable contributions under subparagraph 274(1)(a)(i) or (b)(ii) or paragraph 274(1)(e) of the Income Tax Assessment Act if the fund were not a constitutionally protected superannuation fund; or
(ii)
are allowed as deductions to the member under section 82AAT of that Act; or
(iii)
subject to subsection (3), are specified roll-over amounts that constitute amounts accrued after 20 August 1996 that are eligible termination payments under paragraph (a) of the definition of
eligible termination payment
in subsection 27A(1) of that Act and are rolled over on or after 1 July 1997; and
(d)
any allocated surplus amounts referred to in subparagraph (a)(ii).
9(3)
[Eligible termination payments]
If an eligible termination payment within the meaning of subparagraph (2)(c)(iii) has been made or is made to or for a taxpayer after 20 August 1996, surcharge is payable only on the part of the reduced amount of the eligible termination payment that is worked out using the formula:
Post-20 August 1996 period
Total period |
× |
Eligible termination payment |
where:
post-20 August 1996 period
means the number of days in the period of the taxpayer's employment for which the eligible termination payment was made that occurred after 20 August 1996.
reduced amount
of an eligible termination payment is the amount remaining after deducting from the amount of the payment any post-June 1994 invalidity component or CGT exempt component of the payment or any part of the payment that was made from an employee share acquisition scheme.
total period
means the number of days in the period of the taxpayer's employment for which the eligible termination payment was made.
History
S 9(3) amended by No 96 of 2001, s 3 and Sch 2 items 2 and 3, by substituting all the words before the formula and by inserting the definition of ``reduced amount'', effective 7 December 1997. For application provision, see the history note to s 9(2). The words before the formula formerly read:
If an eligible termination payment within the meaning of subparagraph (2)(c)(iii) has been made or is made to or for a taxpayer after 20 August 1996 and before 20 August 2001, surcharge is payable only on the part of the eligible termination payment that is worked out using the formula:
9(4)
Member of defined benefits superannuation scheme.
The
surchargeable contributions
for a financial year of a member of a defined benefits superannuation scheme are the amounts that constitute the actuarial value of the benefits that accrued to, and the value of the administration expenses and risk benefits provided in respect of, the member for the financial year.
History
S 9(4) substituted by No 131 of 1999, s 3 and Sch 2 item 3, effective 7 December 1997. For transitional provisions, see the history note under S 6. S 9(4) formerly read:
9(4)
Defined benefits superannuation scheme.
The
surchargeable contributions
for a financial year of a member of a defined benefits superannuation scheme are taken to be the amount worked out using the formula:
| Annual salary |
× |
Notional surchargeable
contributions factor |
where:
annual salary
means:
(a)
if paragraph (b) does not apply - the amount that is the member's annual salary for the financial year; or
(b)
if another amount is taken to be the member's annual salary for the purposes of the scheme as it applies to the member for the financial year - that other amount.
notional surchargeable contributions factor
means the notional surchargeable contributions factor applying to the member for the financial year.
9(5)
Value of benefits and expenses - financial year earlier than 1999-2000 financial year.
The
actuarial value of the benefits that accrued to, and the value of the administration expenses and risk benefits provided in respect of,
a member of a defined benefits superannuation scheme for the 1996-97 financial year or for either of the next 2 financial years isthe amount worked out using the formula:
| Annual salary × Notional surchargeable contributions factor |
where:
annual salary
means:
(a)
if paragraph (b) does not apply - the amount that is the member's annual salary for the financial year; or
(b)
if another amount is taken to be the member's annual salary for the purposes of the scheme as it applies to the member for the financial year - that other amount.
notional surchargeable contributions factor
means the factor applying to the member for the financial year worked out by an eligible actuary in accordance with:
(a)
the method set out in Superannuation Contributions Ruling SCR 97/1; or
(b)
if the Commissioner approves in writing another method as being appropriate in relation to the member for the financial year, being a method that excludes contributions made by the member for which the member is not entitled to an income tax deduction under the Income Tax Assessment Act or under the
Income Tax Assessment Act 1997 - the method so approved.
History
S 9(5) substituted by No 131 of 1999, s 3 and Sch 2 item 3, effective 7 December 1997. For transitional provisions, see the history note under s 6. S 9(5) formerly read:
9(5)
Transitional provision for 1996-97 financial year.
For the 1996-97 financial year, a member's
surchargeable contributions
are:
(a)
if any amounts were paid for or by the member to a superannuation (accumulated benefits) provider for the financial year or there is an allocated surplus amount in relation to the member in respect of the financial year - the part of so much of those amounts that would otherwise be the member's surchargeable contributions as was paid to the provider or allocated for the member's benefit after 7.30 pm by legal time in the Australian Capital Territory on 20 August 1996; or
(b)
if the member is a member of a defined benefits superannuation scheme - so much of the amounts that would otherwise be the member's surchargeable contributions as is certified by an eligible actuary, according to Australian actuarial practice, to relate to the part of the financial year that started immediately after 7.30 pm by legal time in the Australian Capital Territory on 20 August 1996.
9(6)
Value of benefits and expenses - 1999-2000 financial year or a later financial year.
The
actuarial value of the benefits that accrued to, and the value of the administration expenses and risk benefits provided in respect of,
a member of a defined benefits superannuation scheme for the 1999-2000 financial year or a later financial year is an amount worked out using:
(a)
the method set out in the regulations, being a method that excludes Government co-contributions made under the
Superannuation (Government Co-contribution for Low Income Earners) Act 2003 and contributions made by the member for which the member is not entitled to an income tax deduction under the Income Tax Assessment Act or under the
Income Tax Assessment Act 1997; or
(b)
if the Commissioner approves in writing another method as being appropriate in relation to the member for the financial year, being a method that excludes Government co-contributions made under the
Superannuation (Government Co-contribution for Low Income Earners) Act 2003 and contributions made by the member for which the member is not entitled to an income tax deduction under the Income Tax Assessment Act or under the
Income Tax Assessment Act 1997 - the method so approved.
History
S 9(6) amended by No 111 of 2003, s 3 and Sch 1 items 20 and 21, by inserting ``Government co-contributions made under the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 and'' after ``excludes'' in paras (a) and (b), applicable in relation to contributions made to complying superannuation funds and RSAs on or after 1 July 2003.
S 9(6) inserted by No 131 of 1999, s 3 and Sch 2 item 3, effective 7 December 1997. For transitional provisions, see the history note under s 6.
9(7)
Regulations.
Regulations made for the purposes of paragraph (6)(a) may specify, or make provision for the Commissioner to specify in writing, different methods in relation to different superannuation schemes, different classes of superannuation schemes or different classes of members of a superannuation scheme.
History
S 9(7) inserted by No 131 of 1999, s 3 and Sch 2 item 3, effective 7 December 1997. For transitional provisions, see the history note under s 6.
9(8)
Transitional provision for 1996-97 financial year.
For the 1996-97 financial year, a member's surchargeable contributions are to be worked out only for the part of that financial year that started immediately after 7.30 pm by legal time in the Australian Capital Territory on 20 August 1996.
History
S 9(8) inserted by No 131 of 1999, s 3 and Sch 2 item 3, effective 7 December 1997. For transitional provisions, see the history note under s 6.
9(9)
Reduced surchargeable contributions
The amount of the
surchargeable contributions
of a member for a financial year is the amount worked out under subsection (2) or (4) (as appropriate), reduced by the amount worked out under subsection (10), if:
(a)
an eligible termination payment is made to the member in the financial year from the constitutionally protected superannuation fund; and
(b)
the eligible termination payment has an excessive component.
History
S 9(9) inserted by No 142 of 2003, s 3 and Sch 6 item 16, applicable to eligible termination payments (as defined in section 27A of the Income Tax Assessment Act 1936) made on or after 1 July 2002.
9(10)
The amount of the reduction is worked out as follows:
Amount of the reduction
Step 1.
Work out the amount that would have been the taxed element of the retained amount of the post-June 83 component of the eligible termination payment if the amount of the excessive component of the eligible termination payment had been nil.
Step 2.
Work out the taxed element of the retained amount of the post-June 83 component of the eligible termination payment.
Step 3.
Subtract the result of step 2 from the result of step 1.
Step 4.
Divide the result of step 3 by 0.85.
Step 5.
Subtract the result of step 3 from the result of step 4.
Step 6.
Add the result of step 5 to the excessive component of the eligible termination payment.
Step 7.
Identify the amount of the surchargeable contribution (apart from subsection (9)) of the member reported for the financial year by the entity that paid the eligible termination payment.
Step 8.
Identify the lesser of the results of steps 6 and 7 (or either result if they are the same).
History
S 9(10) inserted by No 142 of 2003, s 3 and Sch 6 item 16, applicable to eligible termination payments (as defined in section 27A of the Income Tax Assessment Act 1936) made on or after 1 July 2002.
SECTION 10
SURCHARGE THRESHOLD
10(1)
Surcharge threshold for 1996-97 financial year.
The
surcharge threshold
for the 1996-97 financial year is $70,000.
10(2)
Surcharge threshold for later financial year.
The
surcharge threshold
for a later financial year is the amount calculated using the formula:
| Previous surcharge threshold × Indexation factor |
where:
previous surcharge threshold
means the surcharge threshold for the financial year immediately before the financial year for which the surcharge threshold is being calculated.
indexation factor
means the number calculated under subsections (4) and (5) for the financial year for which the surcharge threshold is being calculated.
10(3)
Rounding off of amount of surcharge threshold.
If an amount worked out for the purposes of subsection (2) is an amount of dollars and cents:
(a)
if the number of cents is less than 50 - the amount is to be rounded down to the nearest whole dollar; or
(b)
otherwise - the amount is to be rounded up to the nearest whole dollar.
10(4)
Indexation factor.
The
indexation factor
for a financial year is the number, calculated to 3 decimal places, using the formula:
Index number for last quarter in current March year
Index number for last quarter in previous March year |
where:
index number
, for a quarter, means the estimate of full-time adult average weekly ordinary time earnings for the middle month of the quarter published by the Australian Statistician.
current March year
means the period of 12 months ending on 31 March immediately before the financial year for which the surcharge threshold is being calculated.
previous March year
means the period of 12 months immediately before the current March year.
10(5)
Rounding up of indexation factor.
If the number calculated under subsection (4) for a financial year would, if it were worked out to 4 decimal places, end with a number greater than 4, the number so calculated is increased by 0.001.
10(6)
Change in index numbers.
If at any time, whether before or after the commencement of this Act, the Australian Statistician has published or publishes an index number for a quarter in substitution for an index number previously published for the quarter, the publication of the later index number is to be disregarded.
10(7)
Surcharge threshold to be published.
The Commissioner must publish before, or as soon as practicable after, the start of the 1997-98 financial year, and before the start of each later financial year (being a financial year that ends before 1 July 2005), the surcharge threshold for the financial year.
Note:
For the purposes of this section,
Australian Statistician
means the Australian Statistician referred to in subsection 5(2) of the Australian Bureau of Statistics Act 1975.
History
S 10(7) amended by No 102 of 2005, s 3 and Sch 1 item 24, by inserting ``(being a financial year that ends before 1 July 2005)'' after ``each later financial year'', effective 12 August 2005.
SECTION 11
MEMBER LIABLE TO PAY SURCHARGE
11(1)
[Member liable]
The superannuation contributions surcharge on a member's surchargeable contributions for a financial year is payable by the member.
11(2)
No surcharge payable if member dies.
However, surcharge is not payable on surchargeable contributions for a member for a financial year in which the member dies or a later financial year.
History
S 11(2) inserted by No 131 of 1999, s 3 and Sch 2 item 4, effective 7 December 1997. For transitional provisions, see the history note under s 6.
PART 3 - ASSESSMENT AND COLLECTION OF SURCHARGE
SECTION 12
SUPERANNUATION PROVIDERS TO GIVE STATEMENTS
Application
12(1)
This section applies in respect of every member.
Superannuation provider to give statement to Commissioner at end of financial year
12(2)
Each superannuation provider must, after the end of each financial year (being a financial year that ends before 1 July 2005) but not later than the notification date for the financial year or such later date (if any) as the Commissioner allows, give the Commissioner, in respect of each person who, at the end of the financial year, was a member of the constitutionally protected superannuation fund of which the provider was the trustee, a statement setting out:
(a)
the member's name, the address of the member's place of residence or place of business or employment, the date of the member's birth and, if given to the provider in connection with the operation or the possible future operation of this Act, the member's tax file number; and
(b)
the particulars referred to in subsection
(5); and
(c)
any other matters required by the regulations.
History
S 12(2) amended by No 102 of 2005, s 3 and Sch 1 item 25, by inserting "(being a financial year that ends before 1 July 2005)" after "the end of each financial year", effective 12 August 2005.
Superannuation provider that pays out contributed amounts
12(3)
If, after 7.30 pm by legal time in the Australian Capital Territory on 20 August 1996 and before 1 July 2005, any of the contributed amounts in relation to the member were or are paid by a superannuation provider:
(a)
to the member; or
(b)
to the member, or to a person other than a member, under a payment split;
then the provider must, not later than the notification date for the financial year in which the payment was or is made or such later date (if any) as the Commissioner allows, give the Commissioner a statement setting out:
(c)
the member's name, the address of the member's place of residence or place of business or employment, the date of the member's birth and, if given to the provider in connection with the operation or the possible future operation of this Act, the member's tax file number; and
(d)
the particulars referred to in subsection
(5); and
(e)
the date of the payment; and
(f)
any other information required by the regulations.
History
S 12(3) amended by No 102 of 2005, s 3 and Sch 1 item 26, by inserting "and before 1 July 2005" after "20 August 1996", effective 12 August 2005.
S 12(3) substituted by No 114 of 2001, s 3 and Sch 1 item 33, effective 28 December 2002. S 12(3) formerly read:
12(3)
Superannuation provider that pays out contributed amounts to the member.
If, after 7.30 pm by legal time in the Australian Capital Territory on 20 August 1996, any of the contributed amounts in relation to the member were or are paid by a superannuation provider to the member, the provider must, not later than the notification date for the financial year in which the payment was or is made or such later date (if any) as the Commissioner allows, give the Commissioner a statement setting out:
(a)
the member's name, the address of the member's place of residence or place of business or employment, the date of the member's birth and, if given to the provider in connection with the operation or the possible future operation of this Act, the member's tax file number; and
(b)
the particulars referred to in subsection (5); and
(c)
the date of the payment; and
(d)
any other information required by the regulations.
Information to be given to member
12(4)
A superannuation provider who is required to give a statement to the Commissioner under subsection
(2) or
(3) for a financial year earlier than the 1998-99 financial year must, not later than 12 months after the statement is given, give to the member the particulars referred to in subsection
(5) that are required to be included in the statement.
History
S 12(4) amended by No 131 of 1999, s 3 and Sch 2 item 5, by inserting "for a financial year earlier than the 1998-99 financial year" after "subsection (2) or (3)", effective 7 December 1997. For transitional provisions, see the history note under s 6.
Member may request provider to give particulars
12(4A)
If a member requests a superannuation provider who has given a statement to the Commissioner under this section for the 1998-99 financial year or a later financial year to give to the member the particulars referred to in subsection
(7) relating to the member that are included in the statement (other than particulars that the provider has previously given to the member), the provider must comply with the request within 30 days after receiving it.
History
S 12(4A) inserted by No 131 of 1999, s 3 and Sch 1 item 6, effective 7 December 1997. For transitional provisions, see the history note under s 6.
How particulars are to be given
12(4B)
The particulars to be given to a member under subsection
(4A) are to be given:
(a)
if the request asked for them to be given in writing - in writing; or
(b)
otherwise - in such manner as the superannuation provider considers appropriate.
History
S 12(4B) inserted by No 131 of 1999, s 3 and Sch 1 item 6, effective 7 December 1997. For transitional provisions, see the history note under s 6.
Particulars to be included in statements
12(5)
The particulars that are required to be given ina statement under this section are the total of the contributed amounts (if any) in relation to the member for the financial year and:
(a)
if the statement is given by a superannuation (accumulated benefits) provider:
(i)
if any of those amounts are amounts referred to in subparagraph (a)(i) of the definition of
contributed amounts
in section 38 - the total of so much of those amounts as are taxable contributions referred to in subparagraph 9(2)(c)(i); and
(ii)
the total of any of those amounts that are amounts referred to in subparagraph (a)(ii) or (iii) of that definition; and
(b)
if the statement is given by a superannuation (defined benefits) provider - the amount of the surchargeable contributions of the member for the financial year.
History
S 12(5) amended by No 96 of 2001, s 3 and Sch 2 item 4, by omitting "and the total of so much of those amounts as are specified roll-over amounts referred to in subparagraph 9(2)(c)(iii)" after "subparagraph 9(2)(c)(i)" in para (a)(i), effective 7 December 1997. For application provision, see the history note to s 9(2).
S 12(5) substituted by No 131 of 1999, s 3 and Sch 2 item 7, effective 7 December 1997. For transitional provisions, see the history note under s 6. S 12(5) formerly read:
12(5)
Particulars to be included in statements.
The particulars that are required to be given in a statement under paragraph (2)(c) or (3)(b) are the total of the contributed amounts (if any) in relation to the member for the financial year and:
(a)
if the statement is given by a superannuation (accumulated benefits) provider:
(i)
the total of so much of those contributed amounts as are referred to in subparagraph 9(2)(c)(i); and
(ii)
the total of so much of those contributed amounts as are specified roll-over amounts referred to in subparagraph 9(2)(c)(iii); and
(iii)
the total of the allocated surplus amounts referred to in paragraph 9(2)(d); or
(b)
if the statement is given by a superannuation (defined benefits) provider - the amount, calculated under subsection 9(4), of the member's surchargeable contributions for the financial year.
12(6)
If:
(a)
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; or
(b)
a payment split applies to a splittable payment in respect of an interest that a person has as a member;
(being a member who was a member at any time after 7.30 pm by legal time in the Australian Capital Territory on 20 August 1996 and before 1 July 2005), then the provider must give the Commissioner a statement setting out:
(c)
the member's name, the address of the member's place of residence or place of business or employment, the date of the member's birth and, if given to the provider in connection with the operation or the possible future operation of this Act, the member's tax file number; and
(d)
the date on which the superannuation benefit became payable; and
(e)
the particulars in relation to the benefits referred to in paragraph
15(6)(b) or (6A)(d) (as the case requires); and
(f)
any other information required by the regulations.
History
S 12(6) amended by No 15 of 2007, s 3 and Sch 1 items 331 and 332, by substituting "a superannuation benefit (within the meaning of the Income Tax Assessment Act 1997)" for "a lump sum, or a pension," in para (a) and substituting "the superannuation benefit" for "the lump sum or pension" in para (d), applicable to the 2007-2008 income year and later years.
S 12(6) amended by No 102 of 2005, s 3 and Sch 1 item 27, by inserting "(being a member who was a member at any time after 7.30 pm by legal time in the Australian Capital Territory on 20 August 1996 and before 1 July 2005)," before "then the provider", effective 12 August 2005.
S 12(6) substituted by No 114 of 2001, s 3 and Sch 1 item 34, effective 28 December 2002. S 12(6) formerly read:
12(6)
Superannuation provider to give statement to Commissioner when benefit becomes payable.
If a lump sum, or a pension, becomes payable by a superannuation provider for the benefit of a member, the provider must give the Commissioner a statement setting out:
(a)
the member's name, the address of the member's place of residence or place of business or employment, the date of the member's birth and, if given to the provider in connection with the operation or the possible future operation of this Act, the member's tax file number; and
(b)
the date on which the lump sum or pension became payable; and
(c)
the particulars in relation to the benefits referred to in paragraph 15(6)(b); and
(d)
any other information required by the regulations.
Particulars to be included in statement under subsection (6)
12(7)
The statement required to be given by a superannuation provider to the Commissioner under subsection
(6) is to be given before:
(a)
if the provider is informed by the member, on or before the tenth day of the month after the month (the
payment month
) in which the lump sum was paid or the pension began to be paid, that:
(i)
the member had applied to the Commissioner for the issue of a tax file number; and
(ii)
the Commissioner had neither granted nor refused the application;
the end of the 14th day of the second month after the payment month; or
(b)
otherwise - the end of the 14th day of the month after the payment month;
or before the end of such further period as the Commissioner allows.
Definitions
12(8)
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 12(8) substituted by No 112 of 2020, s 3 and Sch 3 item 96, effective 28 September 2022. No 112 of 2020, s 3 and Sch 4 item 6 contains the following transitional provision:
…
Part 5 - Transitional rules
6 Transitional rules
(1)
The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Act.
(2)
Without limiting subitem (1), rules made under this item before the end of the period of 12 months starting on the day this Schedule commences may provide that provisions of this Act, or any other Act or instrument, have effect with any modifications prescribed by the rules. Those provisions then have effect as if they were so modified.
(3)
Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply in relation to rules made under this item before the end of the period of 12 months starting on the day this Schedule commences.
(4)
To avoid doubt, the rules may not do the following:
(a)
create an offence or civil penalty;
(b)
provide powers of:
(i)
arrest or detention; or
(ii)
entry, search or seizure;
(c)
impose a tax;
(d)
set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e)
directly amend the text of this Act.
(5)
This Schedule (other than subitem (4)) does not limit the rules that may be made under this item.
S 12(8) formerly read:
12(8)
Definitions.
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.
S 12(8) inserted by No 114 of 2001, s 3 and Sch 1 item 35, effective 28 December 2002.
SECTION 13
GIVING OF INFORMATION IN CERTAIN FORM
13(1)
Notice stating how information to be given.
The Commissioner may, by notice published in the Gazette, set out the way in which information to be contained in a statement under section 12 is to be given.
13(2)
Date of effect of notice.
The notice has effect on and after the day stated in the notice.
13(3)
Superannuation provider to comply with notice.
If any of the information that a superannuation provider is required to give under section 12 is kept by or on behalf of the provider by a data processing device, the provider must give the information in a way set out in the notice.
13(4)
Exemption.
The Commissioner may, by legislative instrument, exempt a superannuation provider from subsection (3).
History
S 13(4) amended by No 58 of 2006, s 3 and Sch 7 item 266, by substituting "legislative instrument" for "writing", effective 22 June 2006.
13(5)
(Repealed by No No 58 of 2006)
History
S 13(5) repealed by No 58 of 2006, s 3 and Sch 7 item 267, effective 22 June 2006. S 13(5) formerly read:
13(5)
Disallowable instrument.
An exemption under subsection (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
SECTION 14
ASSESSMENT OF LIABILITY TO PAY SURCHARGE
14(1)
Commissioner to assess surcharge.
For each financial year (being a financial year that ends before 1 July 2005) for which there are surchargeable contributions for a member, the Commissioner must make an assessment that:
(a)
calculates the member's adjusted taxable income; and
(b)
if the adjusted taxable income is greater than the surcharge threshold:
(i)
calculates the surchargeable contributions; and
(ii)
calculates the rate of surcharge that applies to the member; and
(iii)
specifies the amount of the surcharge payable or, if no surcharge is payable, states that a nil amount of surcharge is payable; and
(c)
if the adjusted taxable income is equal to or less than the surcharge threshold - states that a nil amount of surcharge is payable.
History
S 14(1) amended by No 102 of 2005, s 3 and Sch 1 item 28, by inserting ``(being a financial year that ends before 1 July 2005)'' after ``each financial year'', effective 12 August 2005.
14(2)
What happens if member dies.
If:
(a)
a member has died, whether before or after the commencement of this subsection; and
(b)
after the death an assessment was or is made of surcharge on the member's surchargeable contributions for the financial year in which the member died or a later financial year;
the assessment is taken not to have been made.
14(3)
Notice of assessment.
When an assessment (including an amended assessment) is made, the Commissioner must, subject to subsection (4), give notice of the assessment:
(a)
if paragraph (b) does not apply-to the member; or
(b)
if the assessment:
(i)
relates to the period when the relevant superannuation fund was a constitutionally protected superannuation fund; and
(ii)
is made after that superannuation fund ceases to be a constitutionally protected superannuation fund;
to the superannuation provider.
History
S 14(3) substituted by No 168 of 2001, s 3 and Sch 2 item 5, effective 1 July 2000. S 14(3) formerly read:
14(3)
Notice of assessment and determination
When an assessment (including an amended assessment) is made, the Commissioner must, subject to subsection (4), give notice of the assessment to the member.
14(4)
No notice if nil amount assessed.
The Commissioner is not required under subsection (3) to give a notice of an assessment if the assessment states that a nil amount of surcharge is payable.
14(5)
Particulars in notice of assessment.
A notice of assessment must include particulars of the matters contained in the assessment under subsection (1).
14(6)
How a notice is to be given.
A notice of assessment may be given in any manner prescribed by the regulations.
14(7)
Non-compliance not to affect validity of assessment.
The validity of any assessment is not affected by any non-compliance with a provision of this Act.
History
S 14 substituted by No 131 of 1999, s 3 and Sch 2 item 8, effective 7 December 1997. For transitional provisions, see the history note under s 6. S 14 formerly read:
ASSESSMENT OF LIABILITY TO PAY SURCHARGE
14(1)
Commissioner to assess surcharge.
For each financial year for which there are surchargeable contributions for a member, the Commissioner must:
(a)
calculate the member's adjusted taxable income; and
(b)
if the adjusted taxable income is greater than the surcharge threshold:
(i)
calculate the surchargeable contributions; and
(ii)
calculate the rate of surcharge that applies to the member; and
(iii)
make an assessment, directed to the member, of any surcharge payable.
14(2)
Information to be included in an assessment.
An assessment of surcharge must set out the member's adjusted taxable income for the financial year, the amount of surchargeable contributions and the amount of surcharge payable.
14(3)
Copy of assessment to be given to member.
When an assessment (including an amended assessment) is made, the Commissioner must give it to the member.
14(4)
Nil assessment.
If the Commissioner calculates that no surcharge is payable on a member's surchargeable contributions for a financial year, the calculation is taken, for the purposes of this Act other than subsection (3), to be an assessment on which a nil amount of surcharge was due and payable.
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)
Hide history note
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.
SECTION 15A
PERIODS WITHIN WHICH ASSESSMENTS MAY BE AMENDED
15A(1)
General provision.
The Commissioner may, subject to this section, at any time amend an assessment of surcharge on a member's surchargeable contributions by making such alterations or additions as the Commissioner thinks necessary, even though surcharge has been paid in respect of the assessment. Such an amendment may be made on the Commissioner's own initiative or at the request of the member.
15A(2)
Period for making further amendment.
If:
(a)
an assessment has been amended in any particular in a way that effected a reduction in the amount of surcharge payable; and
(b)
for the purposes of making the amendment, the Commissioner accepted a statement made by or on behalf of a member;
the Commissioner may, within 4 years from the date of service of the notice of the amended assessment, further amend the assessment in, or in respect of, that particular in a way that increases the amount of the surcharge payable to the extent that the Commissioner considers necessary.
15A(3)
Period where avoidance of surcharge.
Subject to this section, if there has been an avoidance of surcharge, the Commissioner may:
(a)
if the Commissioner is of the opinion that the avoidance of surcharge is due to fraud or evasion - at any time; or
(b)
in any other case - within 4 years from the date upon which the surcharge became due and payable under the assessment;
amend the assessment by making such alterations or additions as the Commissioner thinks necessary to correct the assessment.
15A(4)
Period where amendment reduces surcharge.
An amendment effecting a reduction in the amount of surcharge payable under an assessment is not to be made after the end of 4 years from the date upon which the surcharge became due and payable under the assessment.
15A(5)
Application or request for extension of period.
If:
(a)
the Commissioner has begun an examination of the affairs of a member; and
(b)
the examination was not completed within the period within which the Commissioner may amend an assessment to which the examination relates under subsection (3) or, if that period has been extended by any previous order or orders of the Federal Court of Australia made under subsection (6), or by any previous consent or consents of the member given under subsection (7), within that period as so extended;
the Commissioner may, before the end of the period referred to in paragraph (b) of this subsection, apply to the Federal Court for an order extending, or request the member to consent to the extension of, the period within which the Commissioner may amend the assessment under paragraph (3)(b).
15A(6)
Court may extend period.
If, on application made to the Federal Court of Australia in accordance with subsection (5), the Court is satisfied that it was not reasonably practicable, or it was inappropriate, for the Commissioner to complete the examination within the period referred to in paragraph (5)(b) because of any action taken by the member or any failure of the member to take action that it would have been reasonable for the member to take, the Court may make an order extending the period within which the Commissioner may amend the assessment under paragraph (3)(b) for such period as the Court considers appropriate.
15A(7)
Member or provider may extend period.
If a request is made to the member in accordance with subsection (5), the member may, by writing, consent to the extension of the period within which the Commissioner may amend the assessment under paragraph (3)(b) for such period as is specified in the instrument of consent.
15A(8)
Meaning of take action.
In subsection (6), a reference to action taken by a member includes a reference to the institution by the member of a proceeding before a court or tribunal.
15A(9)
Period for further amendment reducing surcharge.
If an assessment has, under this section, been amended in any particular, the Commissioner may, within 4 years from the date upon which surcharge became due under the amended assessment, make, in or in respect of that particular, such further amendment of the assessment as, in the Commissioner's opinion, is necessary to effect such reduction in the amount of surcharge payable under the assessment as is just.
15A(10)
Case whensubsection (9) does not apply.
Subsection (9) does not authorise the further amendment of an earlier further amendment of an assessment made under subsection (2).
15A(11)
Assessment following application by member.
If:
(a)
an application for an amendment of an assessment is made by a member within 4 years from the date upon which surcharge became due and payable under the assessment; and
(b)
the member has given to the Commissioner within that period all information needed by the Commissioner for the purpose of deciding the application;
the Commissioner may amend the assessment when he or she decides the application even though that period has elapsed.
15A(12)
How application for amendment is to be made.
An application for amendment must be made in writing, on a data processing device or by way of electronic transmission and must be signed in accordance with the regulations.
15A(13)
Information to be contained in application.
An application for amendment must be given in the prescribed manner and contain the prescribed information.
15A(14)
Certain other powers of amendment not affected.
Nothing in this section prevents:
(a)
the amendment of an assessment in order to give effect to the decision upon any appeal or review; or
(b)
the amendment of an assessment by way of reduction in the amount of surcharge payable pursuant to an objection made against the assessment or pending any appeal or review; or
(c)
the amendment of an assessment under section 16.
History
S 15A inserted by No 131 of 1999, s 3 and Sch 2 item 10, effective 7 December 1997. For transitional provisions, see the history note under s 6.
SECTION 16
AMENDMENT OF ASSESSMENT IF TAX FILE NUMBER QUOTED OR FOUND OUT AFTER ASSESSMENT
16(1)
Application.
This section applies if:
(a)
an assessment of surcharge on the surchargeable contributions of a member for a financial year has been made; and
(b)
the member did not, before the assessment was made, quote his or her tax file number to the Commissioner in connection with the operation or the possible future operation of this Act and the Commissioner did not know the tax file number when the assessment was made; and
(c)
the assessed amount was more than it would have been if the member had quoted the tax file number to the Commissioner; and
(d)
after the assessment was made:
(i)
the member quoted the tax file number to the Commissioner in connection with the operation or the possible future operation of this Act; or
(ii)
the Commissioner found out the tax file number.
History
S 16(1) amended by No 131 of 1999, s 3 and Sch 2 item 11, by substituting ``the surchargeable contributions of a member'' for ``a member's contributions'' in para (a), effective 7 December 1997. For transitional provisions, see the history note under s 6.
16(2)
Amendment of assessment.
The Commissioner must amend the assessment to reduce the amount of surcharge to the amount that would have been payable if the Commissioner had known the tax file number when the assessment was made.
SECTION 17
AMENDMENT OF ASSESSMENTS
17(1)
Application.
This section applies if, after the making of an assessment of surcharge on a member's surchargeable contributions for a financial year:
(a)
the member's adjusted taxable income for the financial year is increased or reduced and the increase or reduction affects the member's liability to pay the surcharge; or
(b)
the amount of the contributions is greater or less than the amount that was taken to be the amount of the contributions for the purposes of the assessment; or
(c)
the Commissioner is required or permitted under any other provision of this Act to amend the assessment.
17(2)
Additional application.
This section also applies if:
(a)
under an assessment of surcharge on a member's surchargeable contributions for a financial year, the rate of surcharge that applies to the member on particular surchargeable contributions for the financial year was assessed to be nil because paragraph
5(4)(e) of the
Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 applied to the member; and
(b)
the rate of surcharge that applies to the member on those contributions for that financial year is afterwards determined to be greater than nil.
17(3)
Commissioner may amend assessment.
The Commissioner may amend the assessment to take account of any matter referred to in paragraph (1)(a), (b) or (c) or the matters referred to in subsection (2).
17(4)
Amendment increasing surcharge.
If, as a result of the amendment of the assessment, the amount of surcharge is increased:
(a)
the Commissioner must debit the member's surcharge debt account for the amount of the increase if none of the following has become payable by the relevant superannuation provider for the benefit of the member:
(i)
a lump sum;
(ii)
a pension;
(iii)
a superannuation benefit (within the meaning of the Income Tax Assessment Act 1997); or
(b)
if paragraph (a) does not apply - the amount of the increase is payable by the member within 3 months after the day on which the assessment is amended or within such further period as the Commissioner allows.
History
S 17(4) amended by No 15 of 2007, s 3 and Sch 1 items 335 and 336, by substituting para (a) and substituting "if paragraph (a) does not apply" for "otherwise" in para (b), applicable to the 2007-2008 income year and later years. Para (a) formerly read:
(a)
if neither a lump sum, nor a pension, has become payable by the relevant superannuation provider for the benefit of the member - the Commissioner must debit the member's surcharge debt account for the amount of the increase; or
17(5)
Amendment reducing surcharge.
If, as a result of the amendment of the assessment, the amount of surcharge is reduced:
(a)
the Commissioner must credit the account with the amount by which the surcharge is reduced if none of the following has become payable by the relevant superannuation provider for the benefit of the member and the member's surcharge debt account is in debit:
(i)
a lump sum;
(ii)
a pension;
(iii)
a superannuation benefit (within the meaning of the Income Tax Assessment Act 1997); or
(b)
if paragraph (a) does not apply:
(i)
the amount by which the surcharge is reduced is to be applied in reduction of any liability of the member under this Act; and
(ii)
any amount remaining is to be repaid to the member.
History
S 17(5) amended by No 15 of 2007, s 3 and Sch 1 items 337 and 338, by substituting para (a) and substituting "if paragraph (a) does not apply" for "otherwise" in para (b), applicable to the 2007-2008 income year and later years. Para (a) formerly read:
(a)
if neither a lump sum, nor a pension, has become payable by the relevant superannuation provider for the benefit of the member and the member's surcharge debt account is in debit - the Commissioner must credit the account with the amount by which the surcharge is reduced; or
17(6)
Section subject to section 15A.
This section is subject to section 15A.
History
S 17(6) inserted by No 131 of 1999, s 3 and Sch 2 item 12, effective 7 December 1997. For transitional provisions, see the history note under s 6.
SECTION 18
LIABILITY TO PAY THE GENERAL INTEREST CHARGE IF LIABILITY INCREASED BY AN AMENDMENT OF AN ASSESSMENT
18(1)
Liability to pay general interest charge.
If an amendment of an assessment increasing a member's liability to pay surcharge for a financial year is made, the member is liable to pay the general interest charge on the amount of the increase for each day in the period that:
(a)
started at the beginning of 15 June in the financial year; and
(b)
finishes at the end of the day before the amended assessment is made.
Note:
The general interest charge is worked out under Part IIA of the Taxation Administration Act 1953.
History
S 18(1) amended by No 101 of 2006, s 3 and Sch 2 item 1051, by omitting the reference to a repealed inoperative division in the note, effective 14 September 2006. For application and saving provisions see the CCH Australian Income Tax Legislation archive.
S 18(1) substituted for s 18(1) and (2) by No 11 of 1999, s 3 and Sch 1 item 329, applicable to the extent that the period for which the person is liable to pay the general interest charge occurs on or after 1 July 1999. S 18(1) formerly read:
18(1)
If an amendment of an assessment increasing a member's liability to pay surcharge is made, the member must pay interest to the Commonwealth, calculated in accordance with subsection (2), on the amount of the increase.
18(2)
(Repealed by Act No 11 of 1999)
History
S 18(1) substituted for s 18(1) and (2) by No 11 of 1999, s 3 and Sch 1 item 329, applicable to the extent that the period for which the person is liable to pay the general interest charge occurs on or after 1 July 1999. S 18(2) formerly read:
18(2)
Interest payable by a member under subsection (1) as a result of an amended assessment of surcharge on the member's surchargeable contributions for a financial year is to be calculated:
(a)
for the period:
(i)
starting on 15 June in the financial year; and
(ii)
ending on the day on which the amended assessment is made; and
(b)
at such annual rate or rates of interest as are provided for by section 214A of the Income Tax Assessment Act.
18(3)
Amendment of nil assessment.
If:
(a)
the Commissioner has calculated that no surcharge is payable by a member on the member's surchargeable contributions for a financial year; and
(b)
the Commissioner afterwards makes an assessment of surcharge payable by the member on those contributions for the financial year;
the assessment referred to in paragraph (b) is taken to be an amended assessment.
18(4)
(Repealed by Act No 11 of 1999)
History
S 18(4) repealed by No 11 of 1999, s 3 and Sch 1 item 330, applicable to the extent that the period for which the person is liable to pay the general interest charge occurs on or after 1 July 1999. S 18(4) formerly read:
18(4)
If the amount of interest that would be payable under subsection (1) by a member on the member's surchargeable contributions is less than 50 cents, the interest is not payable.
18(5)
(Repealed by Act No 11 of 1999)
History
S 18(5) repealed by No 11 of 1999, s 3 and Sch 1 item 330, applicable to the extent that the period for which the person is liable to pay the general interest charge occurs on or after 1 July 1999. S 18(5) formerly read:
18(5)
If a member is liable to pay interest under this section, the following provisions have effect:
(a)
the Commissioner must notify the member of:
(i)
the period for which the member is liable to pay the interest; and
(ii)
the amount of the interest;
(b)
if neither a lump sum, nor a pension, has become payable by the relevant superannuation provider for the benefit of the member - the Commissioner must debit the member's surchargeable debt account for the amount of the interest;
(c)
if a lump sum, or a pension, has become payable for the benefit of the member - the amount of the interest is payable by the member within one month after the day on which the member was notified of that amount.
18(6)
(Repealed by Act No 11 of 1999)
History
S 18(6) repealed by No 11 of 1999, s 3 and Sch 1 item 330, applicable to the extent that the period for which the person is liable to pay the general interest charge occurs on or after 1 July 1999. S 18(6) formerly read:
18(6)
The Commissioner may remit the whole or part of any interest payable under this section.
Note: A refusal to remit interest is reviewable by the Administrative Appeals Tribunal (see section 25).
SECTION 19
19
TAX FILE NUMBERS
Commissioner may use any tax file numbers for purposes of this Act.
The Commissioner may use for the purposes of this Act a tax file number that has been provided for any other purpose under a law relating to taxation or superannuation.
SECTION 20
OBJECTIONS AGAINST ASSESSMENTS
20(1)
Member may object against assessment.
If:
(a)
an assessment of surcharge on a member's surchargeable contributions is made; and
(b)
the member is dissatisfied with the assessment;
the member may object against the assessment in the way set out in Part IVC of the Taxation Administration Act 1953.
20(2)
Matters on which Commissioner may rely in deciding an objection.
In making a decision on the objection in so far as the objection relates to the calculation of the member's adjusted taxable income, the Commissioner is entitled to rely on:
(a)
the latest assessment of the member's taxable income underthe Income Tax Assessment Act; and
(b)
the latest statement of the member's surchargeable contributions given to the Commissioner by the superannuation provider.
History
S 20 substituted by No 131 of 1999, s 3 and Sch 2 item 13, effective 7 December 1997. For transitional provisions, see the history note under s 6. S 20 formerly read:
OBJECTIONS AGAINST ASSESSMENTS
20
If:
(a)
an assessment of surcharge on a member's surchargeable contributions is made; and
(b)
the member is dissatisfied with the assessment in so far as it is based on the calculation of the member's adjusted taxable income;
the member may object against it in respect of that calculation in the way set out in Part IVC of the Taxation Administration Act 1953.
PART 4 - RECOVERY OF UNPAID SURCHARGE, GENERAL INTEREST CHARGE OR LATE PAYMENT PENALTY
SECTION 21
PENALTY FOR NON-PAYMENT OF SURCHARGE
21(1)
Liability to pay general interest charge.
If an amount of surcharge that a person is liable to pay remains unpaid after the time by which it is due to be paid, the person is liable to pay the general interest charge on the unpaid amount.
Note:
The general interest charge is worked out under Part IIA of the Taxation Administration Act 1953.
History
S 21(1) amended by No 101 of 2006, s 3 and Sch 2 item 1052, by omitting a reference to a repealed inoperative Divison in the note, effective 14 September 2006. For application and saving provisions see the CCH Australian Income Tax Legislation archive.
S 21(1) and (2) substituted for s 21(1) to (4) by No 11 of 1999, s 3 and Sch 1 item 332, applicable in relation to amounts that are due to be paid on or after 1 July 1999. S 21(1) formerly read:
21(1)
If an amount of surcharge, or amount of penalty payable under a previous application of this subsection, that is payable by a person remains unpaid after the time when it became due and payable, the person is liable to pay to the Commonwealth a penalty on the unpaid amount at such annual rate or rates as are provided for interest payments by section 214A of the Income Tax Assessment Act.
21(2)
General interest charge period.
The person is liable to pay the general interest charge on the unpaid amount for each day in the period that:
(a)
started at the beginning of the day by which the surcharge was due to be paid; and
(b)
finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i)
the surcharge;
(ii)
general interest charge on any of the surcharge.
History
S 21(1) and (2) substituted for s 21(1) to (4) by No 11 of 1999, s 3 and Sch 1 item 332, applicable in relation to amounts that are to be paid on or after 1 July 1999. S 21(2) formerly read:
21(2)
Late payment penalty on an amount of surcharge is due and payable on the day after the day on which the amount of surcharge became due and payable.
21(3)
(Repealed by No 11 of 1999)
History
S 21(1) and (2) substituted for s 21(1) to (4) by No 11 of 1999, s 3 and Sch 1 item 332, applicable in relation to amounts that are to be paid on or after 1 July 1999. S 21(3) formerly read:
21(3)
Late payment penalty on an amount of penalty payable under subsection (1) is due and payable on the day after the day on which that amount of penalty became due and payable.
21(4)
(Repealed by No 11 of 1999)
History
S 21(1) and (2) substituted for s 21(1) to (4) by No 11 of 1999, s 3 and Sch 1 item 332, applicable in relation to amounts that are to be paid on or after 1 July 1999. S 21(4) formerly read:
21(4)
If judgment is given by, or entered in, a court for the payment of:
(a)
an amount of surcharge or late payment penalty; or
(b)
an amount that includes an amount of surcharge or late payment penalty;
the amount of surcharge or late payment penalty is not taken, for the purposes of subsection (1), to have ceased to be due and payable merely because of the giving or entering of the judgment.
21(5)
Commissioner's right to sue not affected.
This section does not prevent the Commissioner from suing for the recovery of any unpaid surcharge or late payment penalty at any time after it becomes due and payable.
21(6)
(Repealed by No 11 of 1999)
History
S 21(6) repealed by No 11 of 1999, s 3 and Sch 1 item 333, applicable in relation to amounts that are to be paid on or after 1 July 1999. S 21(6) formerly read:
21(6)
The Commissioner may remit the whole or part of an amount of late payment penalty.
Note: A refusal to remit late payment penalty is reviewable by the Administrative Appeals Tribunal (see section 25).
22
(Repealed) SECTION 22 RECOVERY OF UNPAID AMOUNTS
(Repealed by No 179 of 1999)
History
S 22 repealed by No 179 of 1999, s 3 and Sch 2 item 73, effective 22 December 1999. Despite this repeal, s 22 continues to have effect in relation to an amount that becomes due and payable before 1 July 2000. S 22 formerly read:
RECOVERY OF UNPAID AMOUNTS
22
The following may be recovered by the Commonwealth as debts due to the Commonwealth:
(a)
surcharge that is due and payable;
(b)
general interest charge under section 21 that is due and payable;
(c)
late payment penalty that is due and payable.
S 22 amended by No 11 of 1999, s 3 and Sch 1 item 334, by substituting ``general interest charge under section 21'' for ``interest'' in para (b), applicable in relation to amounts that are to be paid on or after 1 July 1999.
23
(Repealed) SECTION 23 PAYMENT OF SURCHARGE, GENERAL INTEREST CHARGE OR LATE PAYMENT PENALTY
(Repealed by No 179 of 1999)
History
S 23 repealed by No 179 of 1999, s 3 and Sch 2 item 74, effective 22 December 1999. Despite this repeal, s 23 continues to have effect in relation to an amount that becomes due and payable before 1 July 2000. S 23 formerly read:
PAYMENT OF SURCHARGE, GENERAL INTEREST CHARGE OR LATE PAYMENT PENALTY
23
Surcharge, general interest charge and late payment penalty are payable to the Commissioner.
S 23 amended by No 11 of 1999, s 3 and Sch 1 item 335, by substituting ``general interest charge'' for ``interest'', applicable in relation to amounts that are to be paid on or after 1 July 1999.
24
(Repealed) SECTION 24 APPLICATION OF PAYMENTS
(Repealed by Act No 11 of 1999)
History
S 24 repealed by No 11 of 1999, s 3 and Sch 1 item 336, applicable as follows:
(a) payments received by the Commissioner either before or after the beginning of 1 July 1999 (and not already applied before the beginning of 1 July 1999) must be applied in accordance with that section after the beginning of 1 July 1999;
(b) credits arising either before or after the beginning of 1 July 1999 (and not already applied before the beginning of 1 July 1999) may be applied in accordance with that section after the beginning of 1 July 1999.
S 24 formerly read:
APPLICATION OF PAYMENTS
24
If:
(a)
2 or more debts are due to the Commonwealth under this Part; and
(b)
an amount is paid to the Commissioner on account of one or more of the debts; and
(c)the total amount of the debts exceeds the amount paid;
the following provisions have effect:
(d)
the Commissioner may apply the amount paid in partial discharge of the total amount of the debts; and
(e)
the Commonwealth may recover the balance.
25
(Repealed) SECTION 25 REVIEW OF DECISION NOT TO REMIT INTEREST OR LATE PAYMENT PENALTY
(Repealed by Act No 11 of 1999)
History
S 25 repealed by No 11 of 1999, s 3 and Sch 1 item 337, applicable in relation to amounts that are to be paid on or after 1 July 1999. S 25 formerly read:
REVIEW OF DECISION NOT TO REMIT INTEREST OR LATE PAYMENT PENALTY
25(1)
This section applies if the Commissioner decides not to remit the whole or part of any interest or late payment penalty.
25(2)
The person liable to pay the interest or penalty may, within 21 days after the day on which the person receives notice of the decision, or within any further period that the Commissioner allows, request the Commissioner to reconsider the decision.
25(3)
The request is to set out the reasons for making it.
25(4)
On receipt of the request, the Commissioner must reconsider the decision and may confirm or revoke the decision or vary the decision in any way.
25(5)
If the Commissioner does not confirm, revoke or vary the decision within 21 days after the day on which the Commissioner received the request, the Commissioner is taken, at the end of that period, to have confirmed the decision.
25(6)
If the Commissioner confirms, revokes or varies a decision within the period referred to in subsection (5), the Commissioner must tell the person the result of the reconsideration and the reasons for confirming, varying or revoking the decision, as the case may be.
25(7)
Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Commissioner that have been confirmed or varied.
25(8)
If a decision is taken, because of subsection (5), to be confirmed, section 29 of the Administrative Appeals Tribunal Act 1975 applies as if the prescribed time for making application for review of the decision was the period starting on the day on which the decision is taken to be confirmed and ending on the 28th day after that day.
25(9)
If a request is made under subsection (2) for the reconsideration of a decision, section 41 of the Administrative Appeals Tribunal Act 1975 applies as if the making of the request were the making of an application to the Administrative Appeals Tribunal for a review of the decision.
25(10)
The hearing of a proceeding before the Administrative Appeals Tribunal that relates to a decision referred to in subsection (7) is to take place in private and the Tribunal may, by order:
(a)
give directions as to the persons who may be present; and
(b)
give directions of a kind referred to in paragraph 35(2)(b) or (c) of the Administrative Appeals Tribunal Act 1975.
PART 5 - ADMINISTRATION
SECTION 26
26
GENERAL ADMINISTRATION OF ACT
The Commissioner has the general administration of this Act.
Note:
An effect of this provision is that people who acquire information under this Act are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.
History
S 26 amended by No 145 of 2010, s 3 and Sch 2 item 72, by inserting the note at the end, effective 17 December 2010.
SECTION 27
27
ANNUAL REPORT
After the end of each financial year, the Commissioner must give the Treasurer a report on the working of this Act during the year for presentation to the Parliament.
28
(Repealed) SECTION 28 SECRECY
(Repealed by No 145 of 2010)
History
S 28 repealed by No 145 of 2010, s 3 and Sch 2 item 73, effective 17 December 2010. S 28 formerly read:
SECTION 28 SECRECY
28(1)
Definitions.
In this section:
court
includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
person to whom this section applies
means a person who is or has been:
(a)
the Commissioner, a Second Commissioner or a Deputy Commissioner; or
(b)
a person engaged under the Public Service Act 1999 in the Agency (within the meaning of the Public Service Act 1999) of which the Commissioner is the Agency Head; or
(c)
otherwise appointed or employed by, or a provider of services for, the Commonwealth.
History
Definition of ``person to whom this section applies'' amended by No 146 of 1999, s 3 and Sch 1 item 895, by substituting para (b), effective 5 December 1999. Paragraph (b) formerly read:
(b)
an officer or employee of the branch of the Australian Public Service under the direct control of the Commissioner; or
produce
includes permit access to.
protected document
means a document that:
(a)
contains information about a person; and
(b)
is obtained or made by a person to whom this section applies in the course of, or because of, the person's duties under or in relation to this Act.
protected information
means information that:
(a)
concerns a person; and
(b)
is disclosed to, or obtained by, a person to whom this section applies in the course of, or because of, the person's duties under or in relation to this Act.
28(2)
Information may be recorded or divulged only for purposes of Act.
A person to whom this section applies must not:
(a)
make a record of any protected information; or
(b)
whether directly or indirectly, divulge or communicate to a person any protected information about another person;
unless the record is made, or the information is divulged or communicated:
(c)
under or for the purposes of this Act; or
(d)
in the performance of duties, as a person to whom this section applies, under or in relation to this Act.
Penalty: Imprisonment for 2 years.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
Subsection 4B(2) of the Crimes Act 1914 allows a court to impose in respect of an offence an appropriate fine instead of, or in addition to, a term of imprisonment. The maximum fine that a court can impose on an individual is worked out by multiplying the maximum term of imprisonment (in months) by 5, and then multiplying the resulting number by the amount of a penalty unit. The amount of a penalty unit is stated in section 4AA of that Act. If a body corporate is convicted of an offence, subsection 4B(3) of that Act allows a court to impose a fine that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.
28(3)
Information may be divulged to persons performing duties under Acts administered by Commissioner.
Subsection (2) does not prohibit the Commissioner, a Second Commissioner or a Deputy Commissioner, or a person authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner, from divulging or communicating any protected information to a person performing, as a person to whom this section applies, duties under or in relation to an Act of which the Commissioner has the general administration, or under regulations made under such an Act, for the purpose of enabling the person to perform the duties.
28(4)
Divulging of information to Minister.
A person divulges or communicates protected information to a person in contravention of subsection (2) if the person divulges or communicates the information to a Minister.
28(5)
Court may not require information or documents.
A person to whom this section applies is not required:
(a)
to divulge or communicate protected information to a court; or
(b)
to produce a protected document in court;
except where it is necessary to do so for the purpose of carrying into effect the provisions of this Act.
28(6)
Information may be divulged to persons performing duties under this Act.
Nothing in this or any other Act of which the Commissioner has the general administration prohibits the Commissioner, a Second Commissioner or a Deputy Commissioner, or a person authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner, from divulging or communicating any information to a person performing, as a person to whom this section applies, duties under or in relation to this Act for the purpose of enabling the person to perform the duties.
28(7)
Information may be divulged to court for purposes of this Act.
Nothing in this or any other Act of which the Commissioner has the general administration prohibits the Commissioner, a Second Commissioner, a Deputy Commissioner, or a person authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner, from:
(a)
divulging or communicating to a court any information obtained under or for the purposes of such an Act; or
(b)
producing in court a document obtained or made under or for the purposes of such an Act;
where it is necessary to do so for the purpose of carrying into effect the provisions of this Act.
28(8)
Information may be divulged for the purpose of the
Superannuation Industry (Supervision) Act 1993
.
Nothing in this section prohibits the Commissioner, a Second Commissioner or a Deputy Commissioner, or a person authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner, from divulging or communicating any protected information to the Australian Prudential Regulation Authority or the Australian Securities and Investments Commission, for the purpose of the administration of the Superannuation Industry (Supervision) Act 1993.
Note:
In a prosecution for an offence against subsection (2), the defendant bears an evidential burden in relation to the matters in paragraphs (2)(c) and (d) and subsections (3), (6), (7) and (8) (see subsection 13.3(3) of the Criminal Code).
History
S 28(8) amended by No 48 of 1998.
28(9)
Oath or declaration of secrecy.
A person to whom this section applies must, if and when required by the Commissioner, a Second Commissioner or a Deputy Commissioner to do so, make an oath or declaration, in a manner and form determined by the Commissioner in writing, to maintain secrecy in accordance with this section.
PART 6 - MISCELLANEOUS
29
(Repealed) SECTION 29 AUTHORISED OFFICERS
(Repealed by No 2 of 2015)
History
S 29 repealed by No 2 of 2015, s 3 and Sch 2 item 52, effective 1 July 2015. S 29 formerly read:
SECTION 29 AUTHORISED OFFICERS
29
The Commissioner may, by writing, authorise a person engaged under the Public Service Act 1999 to be an authorised officer for the purposes of a provision or provisions of this Part.
S 29 amended by No 146 of 1999, s 3 and Sch 1 item 896, by substituting "a person engaged under the Public Service Act 1999" for "a person who is an officer or employee within the meaning of the Public Service Act 1922", effective 5 December 1999.
SECTION 30
30
PROHIBITION OF AVOIDANCE SCHEMES
A superannuation provider or fund trustee must not enter into, commence to carry out, or carry out, a scheme if the superannuation provider or fund trustee entered into, commenced to carry out, or carried out, the scheme or any part of the scheme with the intention that the scheme would result, or be likely to result, in the avoidance of the surcharge, including through the use of allocated surplus amounts.
31
(Repealed) SECTION 31 EVIDENCE
(Repealed by No 2 of 2015)
History
S 31 repealed by No 2 of 2015, s 3 and Sch 2 item 53, effective 1 July 2015. S 31 formerly read:
SECTION 31 EVIDENCE
31(1)
Assessment to be evidence of correctness of calculations.
The mere production of:
(a)
an assessment; or
(b)
a document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner purporting to be a copy of an assessment;
is conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment, that the amounts and all of the particulars of the assessment are correct.
31(2)
Copies of documents.
A document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner purporting to be a copy of a document issued or given by the Commissioner, a Second Commissioner or a Deputy Commissioner is prima facie evidence that the second-mentioned document was so issued or given.
31(3)
Copies of, or extracts from, assessments.
A document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner purporting to be a copy of, or an extract from, an assessment is evidence of the matter set out in the document to the same extent as the original assessment would be if it were produced.
31(4)
Certificates.
A certificate signed by the Commissioner, a Second Commissioner or a Deputy Commissioner certifying that an amount stated in the certificate was, on the day of the certificate, payable by a person as an amount of surcharge, general interest charge or late payment penalty, is prima facie evidence of the matters stated in the certificate.
32
(Repealed) SECTION 32 ACCESS TO PREMISES ETC.
(Repealed by No 2 of 2015)
History
S 32 repealed by No 2 of 2015, s 3 and Sch 2 item 53, effective 1 July 2015. S 32 formerly read:
SECTION 32 ACCESS TO PREMISES ETC.
32(1)
Powers of authorised officers.
For the purposes of this Act, an authorised officer:
(a)
may, at any reasonable time, enter and remain on any land or premises; and
(b)
is entitled to full and free access at any reasonable time to all documents; and
(c)
may inspect, examine, make copies of, or take extracts from, any documents.
32(2)
Proof of authority to be produced.
An authorised officer is not entitled to enter or remain on any land or premises if, on being requested by the occupier of the land or premises for proof of authority, the officer does not produce a written authority signed by the Commissioner stating that the officer is authorised to exercise powers under this section.
32(3)
Occupier to help authorised officer.
The occupier of land or premises entered or proposed to be entered by an authorised officer under subsection (1) must provide the officer with all reasonable facilities and assistance that the occupier is reasonably capable of providing.
Penalty: 10 penalty units.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
32(4)
The object of subsection (3) is to enable authorised officers to exercise effectively their powers under this section.
33
(Repealed) SECTION 33 OBTAINING INFORMATION AND EVIDENCE
(Repealed by No 2 of 2015)
History
S 33 repealed by No 2 of 2015, s 3 and Sch 2 item 53, effective 1 July 2015. S 33 formerly read:
SECTION 33 OBTAINING INFORMATION AND EVIDENCE
33(1)
Power of Commissioner to obtain information or documents.
The Commissioner may, for the purposes of this Act, by written notice, require a person:
(a)
to give to the Commissioner, within a reasonable period, and in a reasonable manner, stated in the notice, any information that the Commissioner requires; and
(b)
to attend before the Commissioner, or an authorised officer, at a reasonable time and place stated in the notice, and answer questions; and
(c)
to produce to the Commissioner, at a reasonable time and place stated in the notice, any documents in the custody or under the control of the person.
33(2)
Power to require information on oath or affirmation.
The Commissioner may require the information or answers to be verified or given on oath or affirmation, and either orally or in writing, and for that purpose the Commissioner or an authorised officer may administer an oath or affirmation.
33(3)
Nature of oath or affirmation.
The oath to be taken or affirmation to be made by a person is an oath or affirmation that the information or answers the person will give will be true.
33(4)
Expenses of attendance.
The regulations are to prescribe scales of expenses to be allowed to persons required to attend under this section.
SECTION 34
RECORDS TO BE KEPT AND RETAINED BY SUPERANNUATION PROVIDER
34(1)
Superannuation provider to keep records.
A superannuation provider must keep records that record and explain all transactions and other acts engaged in by the provider, or required to be engaged in by the provider, under this Act.
34(2)
How records to be kept.
The records must be kept:
(a)
in writing in the English language or so as to enable the records to be readily accessible and convertible into writing in the English language; and
(b)
so that any liability under this Act of a member of a constitutionally protected superannuation fund of which the provider is the trustee can be readily worked out.
34(3)
Period for retention of records.
A superannuation provider who has possession of any records kept or obtained under or for the purposes of this Act must retain them until the end of 5 years after they were prepared or obtained, or the completion of the transactions or acts to which those records relate, whichever is the later.
34(4)
When records need not be kept.
This section does not require a superannuation provider to retain records if the Commissioner has notified the provider that the retention of the records is not required.
35
(Repealed) SECTION 35 COMMISSIONER MAY COLLECT MONEY FROM PERSON WHO OWES MONEY TO A MEMBER
(Repealed by No 179 of 1999)
History
S 35 repealed by No 179 of 1999, s 3 and Sch 2 item 75, effective 22 December 1999. Despite this repeal:
(a) anything done under s 35 before 1 July 2000 continues to have effect on and after that day as if s 35 had not been repealed; and
(b) anything done on or after that day, under s 35 as it continues to have effect because of para (a), has effect as if s 35 had not been repealed.
S 35 formerly read:
COMMISSIONER MAY COLLECT MONEY FROM PERSON WHO OWES MONEY TO A MEMBER
35(1)
This section allows the Commissioner to collect money from a person who owes money to a member who has a surcharge debt.
35(2)
The Commissioner may direct a person (the
third party
) who owes, or may later owe, money (the
available money
) to the member to pay some or all of the available money to the Commissioner in accordance with the direction. The Commissioner must send a copy of the direction to the member to the last place of address known to the Commissioner.
35(3)
The direction cannot require an amount to be paid to the Commissioner at a time before it becomes owing by the third party to the member.
35(4)
The third party must comply with the direction, so far as the third party is able to do so.
Penalty: 20 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
35(5)
If a person is convicted of an offence in relation to a refusal or failure of the third party to comply with subsection (4), the court may (in addition to imposing a penalty on the convicted person) order the convicted person to pay to the Commissioner an amount up to the amount involved in the refusal or failure of the third party.
35(6)
Any payment made by the third party under this section is taken to have been made with the authority of the member and of all other persons concerned, and the third party is indemnified for the payment.
35(7)
If the whole of the surcharge debt of the member is discharged before any payment is made by the third party, the Commissioner must immediately give notice to the third party of that fact.
35(8)
The third party is taken to owe money to the member if:
(a)
money is due or accruing by the third party to the member; or
(b)
the third party holds money for or on account of the member; or
(c)
the third party holds money on account of some other person for payment to the member; or
(d)
the third party has authority from some other person to pay money to the member;
whether or not the payment of the money to the member is dependent on a pre-condition that has not been fulfilled.
35(9)
For the purposes of this section, money that has been paid by a person to a co-operative housing society for the issue of withdrawable shares in the capital of the society, but has not been repaid, is taken to be:
(a)
if the money is repayable on demand - money due by the co-operative housing society to the person; or
(b)
if the money is not repayable on demand - money that may become due by the co-operative housing society to the person.
History
S 35(9) amended by No 44 of 1999, s 4 and Sch 7 item 221, by substituting ``co-operative housing society'' for ``building society''(wherever occurring), effective 1 July 1999.
35(10)
In this section:
``
building society
''
(Repealed by No 44 of 1999)
History
Definition of ``building society'' repealed by No 44 of 1999, s 4 and Sch 7 item 222, effective 1 July 1999. Definition formerly read:
'building society'
means a society registered or incorporated as a building society, co-operative housing society or other similar society under the law in force in a State or Territory.
co-operative housing society
means a society registered or incorporated as a co-operative housing society or similar society under a law of a State or Territory.
History
Definition of ``co-operative housing society'' inserted by No 44 of 1999, s 4 and Sch 7 item 223, effective 1 July 1999.
person
includes:
(a)
the Commonwealth, a State or a Territory; and
(b)
a public authority of the Commonwealth or of a State or Territory, whether or not the authority is incorporated.
surcharge debt
means any of the following amounts payable by a person (whether or not the amount has become due for payment):
(a)
superannuation contributions surcharge;
(b)
interest;
(c)
late payment penalty;
(d)
a judgment debt, or costs, for surcharge, interest or late payment penalty;
(e)
a fine, or costs, that a court has imposed for an offence against this Act;
(f)
an amount that a court has ordered the person to pay to the Commissioner, following conviction of the person for an offence against this Act.
SECTION 36
36
APPLICATION OF THE
CRIMINAL CODE
Chapter 2 of the
Criminal Code applies to all offences against this Act.
SECTION 37
37
REGULATIONS
The Governor-General may make regulations prescribing matters:
(a)
required or permitted by this Act to be prescribed; or
(b)
necessary or convenient to be prescribed for carrying out or giving effect to this Act;
and, in particular, prescribing:
(c)
how statements are to be given to the Commissioner; and
(d)
penalties not exceeding a fine of 5 penalty units, for offences against the regulations.
PART 7 - INTERPRETATION
SECTION 38
38
DEFINITIONS
In this Act, unless the contrary intention applies:
adjusted taxable income
has the same meaning as in the Superannuation Contributions Tax (Assessment and Collection) Act 1997.
History
Definition of "adjusted taxable income" substituted by No 96 of 2001, s 3 and Sch 2 item 5, effective 7 December 1997. For application provision, see the history note to s 9(2). The definition formerly read:
adjusted taxable income
of a member for a financial year means the sum of:
(a)
the member's taxable income of the year of income comprising the financial year less any amounts included in the member's assessable income of that year of income:
(i)
that were eligible termination payments for the purposes of Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act (other than amounts that were such payments because of paragraph (a) of the definition of
eligible termination payment
in subsection 27A(1) of that Act); or
(ii)
that were so included under section 26AC, or under subsection 26AD(2), (3) or (4), of the Income Tax Assessment Act in respect of a bona fide redundancy amount, an early retirement scheme amount or an invalidity amount as defined in section 159S of that Act; and
(aa)
the amount (if any) by which the amount worked out under paragraph (a) would be increased if it were instead worked out ignoring subsection 271-105(1) of Schedule 2F to the Income Tax Assessment Act; and
(b)
the member's surchargeable contributions for the financial year; and
(c)
if the member is an employee (within the meaning of the Fringe Benefits Tax Assessment Act 1986) who has a reportable fringe benefits total (as defined in that Act) for the year of income comprising the financial year - the reportable fringe benefits total for the year of income.
Definition of "adjusted taxable income" amended by No 131 of 1999, s 3 and Sch 2 item 15, by inserting para (aa) after para (a), effective 7 December 1997. For transitional provisions, see the history note under s 6.
Definition of "adjusted taxable income" amended by No 17 of 1999, s 3 and Sch 5 item 2, by inserting para (c), applicable to calculations of adjusted taxable income for financial years starting on or after 1 July 1999.
allocated surplus amount
, in relation to a member in relation to a financial year, means an amount that is allocated by the relevant superannuation (accumulated benefits) provider for the benefit of the member in respect of the financial year (other than an amount paid for or by the member to the provider) to the extent to which the allocated amount exceeds an amount that, in the opinion of an eligible actuary according to Australian actuarial practice, is reasonable having regard to:
(a)
the amounts paid by or for the member to the provider; and
(b)
the relevant constitutionally protected superannuation fund's investment earnings relating to the member's interest in the fund; and
(c)
any other relevant matters.
assessment
means an assessment made under subsection 14(1).
History
Definition of "assessment" substituted by No 131 of 1999, s 3 and Sch 2 item 16, effective 7 December 1997. For transitional provisions, see the history note under S 6. Definition formerly read:
assessment
means an assessment of superannuation contributions surcharge.
authorised officer
(Repealed by No 2 of 2015)
History
Definition of "authorised officer" repealed by No 2 of 2015, s 3 and Sch 2 item 54, effective 1 July 2015. The definition formerly read:
authorised officer
means a person engaged under the Public Service Act 1999 who has been authorised in writing by the Commissioner for the purposes of the provision in which the expression occurs.
Definition of "authorised officer" amended by No 146 of 1999, s 3 and Sch 1 item 897, by substituting "a person engaged under the Public Service Act 1999" for "an officer or employee within the meaning of the Public Service Act 1922", effective 5 December 1999.
class
: a single member may constitute a class of members and a single superannuation scheme may constitute a class of superannuation schemes.
History
Definition of "class" inserted by No 131 of 1999, s 3 and Sch 2 item 17, effective 7 December 1997. For transitional provisions, see the history note under s 6.
Commissioner
means the Commissioner of Taxation.
complying superannuation fund
has the meaning given by section 45 of the Superannuation Industry (Supervision) Act 1993.
constitutionally protected superannuation fund
has the same meaning as
constitutionally protected fund
has in the Income Tax Assessment Act 1997.
History
Definition of "constitutionally protected superannuation fund" amended by No 15 of 2007, s 3 and Sch 1 item 339, by substituting "the Income Tax Assessment Act 1997" for "Part IX of the Income Tax Assessment Act", applicable to the 2007-2008 income year and later years.
contributed amounts
:
(a)
in relation to a member (other than a member of a defined benefits superannuation scheme) for a financial year, means:
(i)
any amounts paid for or by the member to, or otherwise credited or attributed to an account for the member by, a superannuation provider for the financial year other than amounts to which subparagraph (ii) or (iii) applies, less any part of such an amount that is, under the regulations, to be regarded as reasonably attributable to interest; and
(ii)
if there are any regulations in force for the purposes of this subparagraph in respect of the financial year - any amounts referred to in the regulations that are credited, allocated or attributable to the member for the financial year less any part of such an amount that is, under the regulations, to be regarded as reasonably attributable to interest; and
(iii)
if there are no regulations in force for the purposes of subparagraph (ii) and the financial year is later than the 1996-97 financial year - any allocated surplus amount in relation to the member in respect of the financial year; or
(b)
in relation to a member of a defined benefits superannuation scheme for a financial year:
(i)
means the surchargeable contributions of the member for the financial year; and
(ii)
includes any other amount that may be reasonably regarded as attributable to the member under the scheme for the financial year.
History
Definition of "contributed amounts" substituted by No 131 of 1999, s 3 and Sch 2 item 18, effective 7 December 1997. For transitional provisions, see the history note under s 6. Definition formerly read:
contributed amounts
, in relation to a member, means amounts paid for or by the member to a superannuation provider.
defined benefit member
means a member entitled, on retirement or termination of his or her employment, to be paid a benefit defined, wholly or in part, by reference to either or both of the following:
(a)
the amount of:
(i)
the member's salary at a particular date, being the date of the termination of the member's employment or of the member's retirement or an earlier date; or
(ii)
the member's salary averaged over a period before retirement;
(b)
a stated amount.
defined benefits superannuation scheme
means:
(a)
a public sector superannuation scheme that:
(i)
is a regulated superannuation fund or an exempt public sector superannuation scheme; and
(ii)
has at least one defined benefit member; or
(b)
a regulated superannuation fund (other than a public sector superannuation scheme):
(i)
that has at least one defined benefit member; and
(ii)
some or all of the contributions to which are not allocated to any individual member but are paid into and accumulated in a fund in the form of an aggregate amount.
Deputy Commissioner
means the Deputy Commissioner of Taxation.
eligible actuary
means a Fellow or Accredited Member of the Institute of Actuaries of Australia.
eligible termination payment
has the same meaning as in Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act.
excessive component
of an eligible termination payment has the meaning given by subsection 27A(1) of the Income Tax Assessment Act.
History
Definition of "excessive component" inserted by No 142 of 2003, s 3 and Sch 6 item 17, applicable to eligible termination payments (as defined in section 27A of the Income Tax Assessment Act 1936) made on or after 1 July 2002.
exempt public sector superannuation scheme
has the same meaning as in section 10 of the Superannuation Industry (Supervision) Act 1993.
funded defined benefits superannuation scheme
means a defined benefits superannuation scheme that is not an unfunded defined benefits superannuation scheme.
general interest charge
means the charge worked out under Part IIA of the Taxation Administration Act 1953.
History
Definition of "general interest charge" amended by No 101 of 2006, s 3 and Sch 2 item 1053, by omitting the reference to a repealed inoperative Division, effective 14 September 2006. For application and saving provisions see the CCH Australian Income Tax Legislation archive.
Definition of "general interest charge" inserted by No 11 of 1999, s 3 and Sch 1 item 339, applicable in relation to amounts that are to be paid on or after 1 July 1999.
Income Tax Assessment Act
means the Income Tax Assessment Act 1936.
"interest"
(Repealed by Act No 11 of 1999)
History
Definition of "interest" repealed by No 11 of 1999, s 3 and Sch 1 item 340, applicable in relation to amounts that are to be paid on or after 1 July 1999. Definition formerly read:
interest
means general interest charge payable under section 18.
late payment penalty
means general interest charge payable under section 21.
Definition of "late payment penalty" substituted by No 11 of 1999, s 3 and Sch 1 item 341, applicable in relation to amounts that are to be paid on or after 1 July 1999. Definition formerly read:
late payment penalty
means penalty payable under section 21.
View history note