Taxation Administration Act 1953

SCHEDULE 1 - COLLECTION AND RECOVERY OF INCOME TAX AND OTHER LIABILITIES

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Note: See section 3AA .

Chapter 3 - Collection, recovery and administration of other taxes

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PART 3-20 - SUPERANNUATION

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Division 131 - Releasing money from superannuation

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History

Div 131 inserted by No 81 of 2016, s 3 and Sch 10 item 1, effective 1 July 2018. No 81 of 2016, s 3 and Sch 10 Div 3 contains the following application provisions:

Division 3 - Application of amendments
49 Main case
(1)
The amendments made apply in relation to:

(a) excess concessional contributions determinations issued on or after 1 July 2018 (whether for financial years commencing before, on or after 1 July 2018); and

(b) excess non-concessional contributions determinations issued on or after 1 July 2018 (whether for financial years commencing before, on or after 1 July 2018); and

(c) notices of excess non-concessional contributions tax assessments issued on or after 1 July 2018 (whether for financial years commencing before, on or after 1 July 2018); and

(d) notices of assessments of amounts of Division 293 tax issued on or after 1 July 2018 (whether for income years commencing before, on or after 1 July 2018).

(2)
Those amendments so apply as if:

(a) the reference to this Subdivision in subsection 131-10(2) in Schedule 1 to the Taxation Administration Act 1953 included a reference to each of the following:

(i) Division 96 in that Schedule (as in force on 30 June 2018);

(ii) Division 135 in that Schedule (as in force on 30 June 2018);

(iii) section 292-415 of the Income Tax Assessment Act 1997 (as in force on 30 June 2018); and

(b) the reference to this Subdivision in subsection 131-15(4) in that Schedule included a reference to Division 135 in that Schedule (as in force on 30 June 2018).
Note:

For an amended determination or assessment, the reference to all release authorities in paragraph 131-20(1)(b) in that Schedule includes any of the following issued for an earlier determination or assessment of that kind given to the relevant individual for the relevant financial year or income year:

(a) release authorities issued under section 131-15 in that Schedule;

(b) release authorities issued under former section 292-405 of the Income Tax Assessment Act 1997 , former Division 96 in that Schedule or former item 1 or 2 of the table in subsection 135-10(1) in that Schedule, as applicable.

50 Elections not yet acted on
(1)
This item applies to you if:

(a) you make a valid election under section 96-5 or 96-7 in Schedule 1 to the Taxation Administration Act 1953 ; and

(b) in response to the election, the Commissioner does not issue a release authority under section 96-10 or 96-12 in that Schedule before 1 July 2018.

(2)
The amendments made apply as if:

(a) the election were a valid request made under section 131-5 in that Schedule; and

(b) the reference to this Subdivision in subsection 131-10(2) in that Schedule included a reference to Division 96 in that Schedule (as in force on 30 June 2018).
51 Requests made after 1 July 2018 within a period that started before that day
(1)
This item applies to you if:

(a) you could have made a valid election under section 96-5 or 96-7 in Schedule 1 to the Taxation Administration Act 1953 ; and

(b) you did not give the election to the Commissioner before 1 July 2018; and

(c) as on 30 June 2018, the period for giving the election to the Commissioner under that section was to end after that day.

(2)
The amendments made apply as if:

(a) section 131-5 in that Schedule permitted you to make a request that is the same in substance as the election you could have made; and

(b) the period under that section for giving the request to the Commissioner were 60 days starting on the same day that the period referred to in paragraph (1)(c) of this item started; and

(c) the reference to this Subdivision in subsection 131-10(2) in that Schedule included a reference to Division 96 in that Schedule (as in force on 30 June 2018).
52 Release authorities for ENCC tax issued to individuals before 1 July 2018 but not to superannuation providers before that day
(1)
This item applies to you if:

(a) the Commissioner issues you with a release authority under section 292-405 of the Income Tax Assessment Act 1997 in relation to an excess non-concessional contributions tax assessment; and

(b) under subsection 292-410(4) of that Act, the Commissioner could have given the release authority to one or more superannuation providers before 1 July 2018; and

(c) the Commissioner did not do so.

(2)
This item also applies to you if:

(a) the Commissioner issues you with a release authority under section 292-405 of the Income Tax Assessment Act 1997 in relation to an excess non-concessional contributions tax assessment; and

(b) by the end of 30 June 2018, the Commissioner had not given the release authority to any superannuation provider; and

(c) apart from subitem (3) of this item, the conditions in subsection 292-410(3) of that Act are satisfied for that release authority after 30 June 2018.

(3)
The amendments made apply as if:

(a) subsection 131-15(3) in Schedule 1 to the Taxation Administration Act 1953 permitted the Commissioner to issue a release authority, relating to the excess non-concessional contributions tax assessment, to one or more superannuation providers; and

(b) subsection 131-20(2) in that Schedule also disregarded any amounts that:

(i) were stated in any other release authorities issued under section 292-405 of the Income Tax Assessment Act 1997 (as in force on 30 June 2018) for that assessment and given to a superannuation provider; but

(ii) were not paid by the superannuation provider.

53 Release authorities issued to individuals before 1 July 2018 but assessed Division 293 tax is still payable on or after that day
(1)
This item applies to you if:

(a) the Commissioner issues you with a release authority under item 1 of the table in subsection 135-10(1) in Schedule 1 to the Taxation Administration Act 1953 in relation to an amount of assessed Division 293 tax; and

(b) under subsection 135-45(1) in that Schedule, the Commissioner could have given the release authority to one or more superannuation providers before 1 July 2018; and

(c) the Commissioner did not do so.

(2)
This item also applies to you if:

(a) the Commissioner issues you with a release authority under item 1 of the table in subsection 135-10(1) in Schedule 1 to the Taxation Administration Act 1953 in relation to an amount of assessed Division 293 tax; and

(b) as on 30 June 2018, the 120-day period referred to in subsection 135-45(1) in that Schedule for the release authority is to end after that day; and

(c) apart from subitem (3) of this item, paragraphs 135-45(1)(a) and (b) in that Schedule are satisfied for that release authority at the end of that 120-day period.

(3)
The amendments made apply as if:

(a) subsection 131-15(4) in that Schedule permitted the Commissioner to issue a release authority, relating to the assessment of the amount of Division 293 tax, to one or more superannuation providers; and

(b) the reference to this Subdivision in subsection 131-15(4) in that Schedule included a reference to Division 135 in that Schedule (as in force on 30 June 2018); and

(c) subsection 131-20(2) in that Schedule also disregarded any amounts that:

(i) were stated in any other release authorities issued under Division 135 in that Schedule (as in force on 30 June 2018) for that assessment and given to a superannuation provider; but

(ii) were not paid by the superannuation provider.

54 Notice on or after 1 July 2018 of amounts not paid for release authorities issued before that day
(1)
This item applies to you if:

(a) a release authority is issued under Division 96 in Schedule 1 to the Taxation Administration Act 1953 in relation to you before 1 July 2018; and

(b) the Commissioner gives you a notice under section 96-40 in that Schedule on or after 1 July 2018 stating an amount (the unreleased amount ) that a superannuation provider did not pay in relation to the release authority.

(2)
The amendments made apply as if:

(a) subsection 131-5(4) in that Schedule permitted you to make a request to release the unreleased amount from another of your superannuation interests; and

(b) the notice mentioned in paragraph (1)(b) of this item were a notice mentioned in paragraph 131-5(4)(b) in that Schedule; and

(c) the reference to this Subdivision in subsection 131-10(2) in that Schedule included a reference to Division 96 in that Schedule (as in force on 30 June 2018).

Subdivision 131-A - Releasing money from superannuation

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Consequences of releasing amounts

SECTION 131-75

131-75 INCOME TAX TREATMENT OF AMOUNTS RELEASED - PROPORTIONING RULE DOES NOT APPLY

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Section 307-125 of the Income Tax Assessment Act 1997 (the proportioning rule) does not apply to a payment made as required or permitted under this Subdivision.

Note:

The income tax treatment of released amounts is also affected by Subdivision 292-B , and section 303-15 , of that Act.

[ CCH Note: S 131-80 will be inserted by No 75 of 2023, s 3 and Sch 4 item 17, effective 15 September 2024. For application and transitional provisions, see note under s 131-30 . S 131-80 will read:

Repayments if your entitlement to a credit ceases for a release authority relating to an FHSS determination

SECTION 131-80 REPAYMENTS IF YOUR ENTITLEMENT TO A CREDIT CEASES FOR A RELEASE AUTHORITY RELATING TO AN FHSS DETERMINATION
Repaying the superannuation provider if it still holds a superannuation interest for you

131-80(1)
If:

(a) a *superannuation provider pays an amount (the released amount ) to the Commissioner under section 131-35 or 131-40 in relation to you; and

(b) your entitlement under section 131-65 to a credit relating to the released amount ceases under subsection 131-30(4) or 138-13(3) ; and

(c) the Commissioner reasonably believes that the provider still holds a *superannuation interest for you; and

(d) the Commissioner reasonably believes that, were the released amount to be repaid to the provider, the provider:

(i) could allocate the repayment (the repaid amount ) to that superannuation interest; and

(ii) could later pay an amount equal to the repaid amount in response to a release authority issued under this Division in relation to a later *first home super saver determination given to you;

the Commissioner must repay the released amount to the provider.

131-80(2)
The Commissioner must make the repayment within 30 *business days after the day the Commissioner starts holding the reasonable belief necessary to satisfy both paragraphs (1)(c) and (d) .

What happens if the original provider cannot be repaid

131-80(3)
However, if the Commissioner cannot repay the released amount under subsection (1) , the Commissioner must only pay an equivalent amount to the released amount if an item of the following table applies.

When the Commissioner must pay the equivalent amount

Item If the Commissioner reasonably believes that: then the Commissioner must pay the equivalent amount to:

1 (a) another release authority has been issued under section 131-15 : the other *superannuation provider.

(i) to another *superannuation provider in relation to you; and

(ii) in relation to a *first home super saver determination (an FHSS determination ) given to you; and

(b) the other provider still holds a *superannuation interest for you; and

(c) were the equivalent amount to be paid to the other provider, the other provider:

(i) could allocate the equivalent amount to that superannuation interest; and

(ii) could later pay an amount equal to the equivalent amount in response to a release authority issued under this Division in relation to a later FHSS determination given to you

2 (a) another *superannuation provider holds a *superannuation interest for you; and the other *superannuation provider.

(b) you or your *legal personal representative has notified the Commissioner of this in the *approved form

3 (a) you satisfy a condition of release, with a nil cashing restriction, of benefits specified in a standard referred to in paragraph 31(2)(h) of the Superannuation Industry (Supervision) Act 1993 ; and you or your *legal personal representative (as applicable).

(b) you or your *legal personal representative has notified the Commissioner of this in the *approved form

131-80(4)
The Commissioner must pay the equivalent amount:

(a) in accordance with the item of the table that is the first to so apply; and

(b) within 30 *business days after the day that item starts to so apply.

]

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When the Commissioner must pay the equivalent amount
Item	If the Commissioner reasonably believes that:	then the Commissioner must pay the equivalent amount to:
1	(a)	another release authority has been issued under section 131-15 :	the other *superannuation provider.
		(i)	to another *superannuation provider in relation to you; and
		(ii)	in relation to a first home super saver determination (an FHSS determination* ) given to you; and
	(b)	the other provider still holds a *superannuation interest for you; and
	(c)	were the equivalent amount to be paid to the other provider, the other provider:
		(i)	could allocate the equivalent amount to that superannuation interest; and
		(ii)	could later pay an amount equal to the equivalent amount in response to a release authority issued under this Division in relation to a later FHSS determination given to you
2	(a)	another superannuation provider holds a superannuation interest for you; and	the other *superannuation provider.
	(b)	you or your legal personal representative has notified the Commissioner of this in the approved form
3	(a)	you satisfy a condition of release, with a nil cashing restriction, of benefits specified in a standard referred to in paragraph 31(2)(h) of the Superannuation Industry (Supervision) Act 1993 ; and	you or your *legal personal representative (as applicable).
	(b)	you or your legal personal representative has notified the Commissioner of this in the approved form