• Unclaimed superannuation money protocol

    This document provides guidance for superannuation providers regarding super interests identified in the Superannuation (Unclaimed Money and Lost Members) Act 1999 (SUMLMA) that are required to be reported and paid to the Commissioner of Taxation (the Commissioner).

    The SUMLMA sets out certain circumstances when super providers are required to transfer money in respect of a member to us. It also sets out reporting obligations that apply to most super providers.

    See also:

    Unclaimed superannuation– provider's frequently asked questions

    Purpose

    This document provides guidance to super providers and suppliers in meeting their reporting and payment obligations to the Australian Taxation Office (ATO) in relation to the terms and concepts defined by the SUMLMA:

    • unclaimed superannuation money  
      • for a member 65 years old or older
      • for a non-member spouse
      • for a deceased member
       
    • unclaimed superannuation money of former temporary residents
    • certain accounts belonging to lost members  
      • small accounts (where the balance is less than $4,000)
      • inactive accounts (of unidentifiable lost members).
       

    This document also provides technical guidance. It includes:

    • an explanation of various key terms contained in the law
    • guidelines on practical administration
    • various suggestions of industry best practice
    • consistent practices to be adopted across the industry.

    While this document does not have the force of law, does not replace the law and is not binding on the ATO, it is a document developed in collaboration with industry representatives to support compliance with the unclaimed super interests as listed above.

    This document does not apply to super providers that are trustees of a state or territory public sector super scheme, unless:

    • the relevant state or territory has laws requiring the reporting and payment of unclaimed superannuation money to the state or territory government
    • the state or territory public sector super scheme complies with relevant state or territory laws.

    Where a state or territory does not have laws requiring the reporting of unclaimed superannuation money to the state or territory government, then the state or territory public sector super scheme is required to comply with the SUMLMA and this document.

    Definitions

    These definitions only apply to the terms as used in this protocol.

    Common term

    Definition

    Employer

    The person or organisation responsible for the member’s salary or wages relating to super contributions that were made.

    Former temporary resident

    A person will be a former temporary resident if all of the following apply:

    • they held a temporary visa (except a visa prescribed in the regulations – Regulation 4B of the Superannuation (Unclaimed Money and Lost Members) Regulations 1999 currently prescribe subclass 405 (Investor Retirement) and Subclass 410 (Retirement) visas) that has ceased to be in effect
    • they left Australia after starting to be the holder of the visa (independent of whether their visa ceased to have effect before, when or after they left Australia)
    • at least six months has passed since the later of (or either of these events if they occurred at the same time):  
      • the visa ceased to be in effect, or
      • the person left Australia
       
    • they are not an Australian or New Zealand citizen
    • they do not hold a current temporary visa or permanent visa
    • they do not have an undetermined application for a permanent visa.

     

    Insoluble lost member account

    An account that meets the criteria in subsection 24B(2) of the SUMLMA – an inactive account of an unidentifiable member.

    Lost member

    A member who meets the criteria in regulation 1.03A of the Superannuation Industry (Supervision) Regulations 1994 or regulation 1.06 of the Retirement and Savings Accounts Regulations 1997.

    Lost member account

    Certain accounts belonging to lost members that meet the definition in section 24B of the SUMLMA and, as such, are required to be reported and paid to the ATO.

    Member

    A:

    • member of a super fund
    • depositor with an approved deposit fund
    • holder of a retirement savings account.

     

    Member spouse

    In relation to a super interest (due to marriage breakdown), the spouse who has the super interest.

    Non-member spouse

    The same meaning as in Part VIIIB of the Family Law Act 1975.

    In relation to a super interest (due to marriage breakdown), means the spouse who is not the member spouse in relation to that interest.

    Scheduled statement day

    The day by which a super provider is to give the ATO a statement in the approved form and make payment (where applicable) in relation to unclaimed superannuation money.

    Section 20C notice

    A notice issued by the Commissioner under section 20C of the SUMLMA to a super provider, identifying a member as a former temporary resident (as defined under section 20AA of the SUMLMA).

    Splittable payment

    A payment split under Part VIIIB of the Family Law Act 1975.

    Small lost member account

    An account that meets the criteria in subsection 24B(1) of the SUMLMA – small lost member accounts.

    Super provider

    A:

    • trustee of a regulated super fund
    • trustee of an approved deposit fund (ADF)
    • retirement saving account (RSA) provider.

     

    Unclaimed money day

    The day on which super providers are required to determine whether they hold any unclaimed superannuation money and lost member accounts.

    Unclaimed superannuation money

    An amount which meets the criteria of:

    • subsection 12(1) of the SUMLMA
    • subsection 12(2) of the SUMLMA, or
    • section 14 of the SUMLMA.

    For more information, see Is an amount unclaimed superannuation money?

    Unclaimed superannuation money statement

    The statement used to report unclaimed superannuation money, including former temporary resident unclaimed superannuation money and lost member accounts to the ATO.

    The law

    The Act that outlines the unclaimed superannuation money regime is the Superannuation (Unclaimed Money and Lost Members) Act 1999 (SUMLMA). The object of the unclaimed superannuation money legislation is to set out the process for dealing with unclaimed superannuation money held by regulated super funds, ADFs and RSAs.

    In general, Part 3 of the SUMLMA requires a super provider to report to the Commissioner by the scheduled statement day details of amounts which are payable for each:

    • member who has reached eligibility age (generally 65 years old), where the trustee has lost contact with that member
    • non-member spouse who is entitled to a splittable payment, where the trustee cannot ensure payment to that person
    • member who has died, where the trustee cannot ensure payment to the people entitled to the money.

    If the amount is determined to be unclaimed superannuation money, it must be paid to the Commissioner.

    Once an amount is paid by a super provider to the Commissioner, a person may receive from the Commissioner a payment of unclaimed superannuation money belonging to that person based upon an application by the person or on the Commissioner’s own initiative.

    The ATO also has a responsibility to keep a register of unclaimed superannuation money, containing information received from super providers.

    From 1 July 2007, most super providers are required to report and pay their unclaimed superannuation money to the ATO.

    As a general principle, super providers should attempt to contact the relevant person and advise them of their entitlement to a super benefit as soon as practical after:

    • a member has reached eligibility age (generally 65 years old)
    • a non-member spouse becomes entitled to a splittable payment
    • a member has died and another person is entitled to the money.

    However, the person's super interest will generally be considered to be ‘unclaimed superannuation money’ under Part 3 of the SUMLMA in the event that the provider attempts to contact the member but cannot:

    • contact the member
    • ensure payment to the non-member spouse entitled to the splittable payment
    • ensure payment to the person entitled to receive the deceased person's benefits.

    In these situations, the super provider must report and pay the money to the Commissioner.

    These are general principles only, and super providers need to apply specific tests (set out in Is an amount unclaimed superannuation money?) when determining whether an amount is actually unclaimed superannuation money.

    Is an amount unclaimed superannuation money?

    An amount payable to a member of a fundExternal Link is taken to be unclaimed superannuation money if one of the following three tests is satisfied.

    Test 1

    The member has reached eligibility age (currently 65 years old, or if fund rules specify a greater age – that age), and:

    • the super provider has not received an amount in respect of the member (and, in the case of a defined benefits superannuation scheme, no benefit has accrued in respect of the member) within the last two years, and
    • after the end of a period of five years since the super provider last had contact with the member, the provider has been unable to contact the member again after making reasonable efforts.

    Test 2

    A payment split applies to a splittable payment in respect of an interest that a person has as a member of a fund, and:

    • as a result, the non-member spouse (or their legal personal representative if they have died) is entitled to be paid an amount, and
    • after making reasonable efforts and after a reasonable period has passed, the super provider is unable to ensure that the non-member spouse or their legal personal representative receives the amount.

    Test 3

    The member has died, and:

    • the super provider determines that, under the governing rules of the fund or by operation of law, a benefit (other than a pension or annuity) is immediately payable in respect of the member, and
    • the super provider has not received an amount in respect of the member (and, in the case of a defined benefits superannuation scheme, no benefit has accrued in respect of the member) within the last two years, and
    • after making reasonable efforts and after a reasonable period has passed, the super provider is unable to ensure that the benefit is received by the person who is entitled to receive the benefit.

    A member does not need to be defined or reported as ‘lost’ (as defined in regulation 1.03A of the Superannuation Industry (Supervision) Regulations 1994 and regulation 1.06 of the Retirement and Savings Accounts Regulations 1997) for their money to become 'unclaimed' – for example, 'inactive members' can also have unclaimed superannuation money.

    Example

    In reviewing a member’s account, a super provider (trustee of a super fund) determines:

    • they have an address for the member and have had no mail returned unclaimed
    • the member set up the account themselves, and it only received personal contributions and a rollover (these were not employer sponsored).

    As a result, the member does not meet the lost member definition – however:

    • according to the provider’s records, the member has reached 65 years of age
    • the provider has not received any amounts or had any contact from the member for over five years.

    At this point, the provider is required to try and contact the member. Where they are unable to contact the member after making reasonable efforts, the account will become unclaimed superannuation money and the super provider will be required to report and, generally, pay the member’s account balance to the Commissioner.

    End of example

    Find out more

    Information regarding lost members, see the Lost Members Register – protocol document.

    Explanation of unclaimed superannuation money test 1

    The test is:

    • the member has reached eligibility age, and
    • the super provider has not received an amount in respect of the member (and, in the case of a defined benefits superannuation scheme, no benefit has accrued in respect of the member) within the last two years, and
    • after a period of five years since the super provider last had contact with the member, the provider has been unable to contact the member again after making reasonable efforts.

    What does ‘eligibility age’ mean?

    'Eligibility age' as it is used in relation to unclaimed superannuation money is a specific age a super provider uses to determine whether unclaimed superannuation money test 1 applies to a person's superannuation interest.

    Current eligibility age for both men and women is the greater of:

    • 65 years old
    • where the governing rules of the fund specify that a benefit is only payable to a member at a specified age which is greater than 65, then the eligibility age will be that specified age.

    If a super provider does not know the date of birth or sex of a member, the provider is required to make reasonable attempts to obtain this information. If the date of birth and sex of the member are known to the provider, the provider is required to keep records of this information.

    If a super provider is unable to establish the sex of the member, then the member is taken to be a man. The sex of the member may be relevant if the governing rules of a super fund specify that a benefit is payable at a different age for men than that for women.

    If a super provider is unable to obtain information about a member’s date of birth, they may determine that the member:

    • attained a particular age on a particular date, providing the super provider reasonably believes that to be the case
    • turned 18 on the day on which they first became a member of the fund
    • turned 18 on the day on which the super provider first received an amount for them
    • turned 18 at the start of their eligible service period.

    Example

    A member joined a fund on 1 July 2002 and his employer contributed monthly for his benefit. The total employer contributions each year were:

    Year

    Total contributions

    2002–03

    $35,130

    2003–04

    $36,750

    2004–05

    $38,700

    2005–06

    $100,580

    2006–07

    $105,100

    On 3 May 2006 (during the 2005–06 financial year) the employer made a large contribution.

    Given the total contributions for each year were approximately the aged-based limits that the employer could claim as a tax deduction and the fact that the employer made a large contribution on 3 May, it would be reasonable to believe that the member turned 50 years old on or before 3 May 2006.

    End of example

    Eligible service period

    Eligible service period is the period or aggregate of periods to which the payment relates. For example, this may include any periods of relevant employment, service periods relating to earlier eligible termination payments (ETP) rolled into the account, periods of fund membership and periods in receipt of pension payments which have been commuted.

    Example

    Brett joined ABS Foundry on 1 January 1975. His employer contributed money into the ABS Employee Super Fund starting from 1 July 1975. His eligible service period started on 1 January 1975.

    Brett left the foundry in 1980 and was re-employed by it on 1 January 1982. He left his money in the ABS Employee Super Fund (ABSSF) during this time. As a result, the start of his eligible service period with ABSSF remains 1 January 1975.

    Brett also made contributions of his own to the Benevolent Retirement Fund (BRF), which is not an employer-sponsored fund, from 1 August 1978. The eligible service period with this fund will only include the period of his fund membership – his start date for the BRF would be 1 August 1978.

    Brett left the foundry again in 1985 and rolled over some of his super in an ETP from ABSSF to the BRF. His previous start date with ABS is now relevant to the money in his account with BRF – the start date of his eligible service period with both ABS and BRF is now 1 January 1975.

    If ABSSF did not report Brett’s date of birth when the money was rolled over to BRF, and BRF was unable to obtain Brett’s date of birth after making reasonable efforts, then it would be reasonable for BRF to assume that Brett turned 18 on 1 January 1975 (for the purpose of the SUMLMA).

    End of example

    The appropriate method for the super provider to use to deduce a member's age will depend upon the facts of each case.

    If a super provider, after taking into account the known facts about the member, is still uncertain which method to use to deem the member's age, then the method that gives the earliest date should be used, unless this gives an unreasonable outcome.

    When has a super provider 'received an amount' in respect of a member?

    The term 'receive' is defined in the Macquarie Dictionary as 'to take into one's hand or one's possession (something offered or delivered): to have (something) bestowed, conferred, etc.: to receive an honorary degree: to have delivered or brought to oneself: to receive a letter'.

    Taxation Ruling TR 2010/1 Income tax: superannuation contributions expands further on this as it relates to contributions. Paragraph 12 of TR 2010/1 explains that a super fund’s capital is most commonly increased by transferring funds to the super provider and, as a general rule, the contribution is made when the funds are received by the super provider. The table in paragraph 13 of TR 2010/1 further expands upon the concept of receipt as it relates to particular types of contributions.

    Whether a super provider has received an amount for a member depends on the type of amount it is. The following amounts are considered amounts received in respect of members:

    • contributions, which include eligible spouse contributions, employer contributions, member contributions, shortfall component as determined under the superannuation guarantee legislation, payments to the fund from the superannuation holding accounts (SHA) special account, and co-contribution amounts
    • benefits that have been rolled over (which means paid as a super lump sum within the super system) or transferred (that is, members' benefits paid out of or received by a regulated super fund or ADF or received from another regulated super fund or ADF otherwise than upon satisfaction by the member of a condition of release for all those benefits).

    The following amounts are not considered amounts received in respect of members:

    • investment earnings received by the super provider, as it is a return on a wide range of investments and does not relate to any specific member
    • distributions to accounts by super providers due to investment returns and profitability, because the earnings are received due to fund investments, not for the member.

    This is consistent with the view in Taxation Ruling TR 2010/1. Paragraph 133 of TR 2010/1 confirms that an increase in the super fund’s capital due to income, profits and gains arising from the use of the super fund’s existing capital will generally not be a super contribution.

    Of note the test regarding the receipt of an amount applies to the super provider. The SUMLMA defines a super provider as the trustee of a super fund, the trustee of an approved deposit fund, or a retirement savings account (RSA) provider.

    This means that where a transfer occurs to an eligible rollover fund or under the successor fund provisions, but the trustee or RSA provider remains the same (that is, the trustee of the original fund is the same trustee of the successor fund) the two-year time period does not restart.

    However, where transfer is between different trustees or RSA providers, the two-year time period will begin anew from the time of the transfer.

    What is ‘contact’?

    ‘Contact’ requires communication between two parties and can include:

    • in person
    • a telephone conversation
    • an email
    • a letter
    • a facsimile
    • similar correspondence or verification provided electronically via the super provider’s website – for example, verifying or updating address, membership or investment details.

    Generally, for there to be communication between two parties it needs to be established that both parties sent and received information – for example, a member sending an email to their super provider requesting an account balance, and the super provider sending out an account statement.

    Although the contact doesn’t need to be extensive or detailed, there must be some action on the part of the party communicated to (recipient) that establishes that the contact was received. For example, if a super provider makes a pension payment to a member’s bank account and the payment is accepted by the bank, it indicates that the bank account is open and belongs to that member – thus establishing contact.

    Where one party attempts to communicate with the other, but there is no evidence or indication that the other party received the communication, it is not considered to be 'contact'. For instance, leaving a message on a member’s mobile or voicemail which is never returned by the member is not sufficient to establish contact, because the communicator is unable to establish whether the person received the message. Similarly, sending out an annual statement, where the super provider is unable to verify whether the member actually received the statement, is also not sufficient to establish contact.

    The absence of mail returned unclaimed is not considered sufficient to establish that the member received the statement or that contact was made.

    The contact should be between the super provider and the member themselves and does not include contact with an intermediary, such as an employer.

    However, the super provider may still contact the employer to obtain the member’s contact details.

    Contact between the super provider and an authorised representative of the member such as a solicitor or a holder of a power of attorney is considered contact with the member.

    Also, by law, super providers must make a reasonable effort to contact a member after five years have passed since the last contact with the member – this should be done as soon as practicable after the end of the five-year period. However, it would be prudent for super providers to attempt to contact their members more frequently.

    Super providers are required to maintain evidence of attempts to contact members. Super providers may decide the manner in which attempts to contact the member are recorded – however, the record should include sufficient details to establish the time, manner and outcome of the attempt.

    Penalties may apply for failing to make reasonable efforts to contact a member.

    Explanation of unclaimed superannuation money test 2

    The test is that a payment split applies to a splittable payment in respect of an interest that a person has as a member of a fund, and:

    • as a result, the non-member spouse (or their legal personal representative if they have died) is entitled to be paid an amount, and
    • after making reasonable efforts and after a reasonable period has passed, the super provider is unable to ensure that the non-member spouse or their legal personal representative receives the amount.

    A payment split in respect of a super interest is generally:

    • when a splittable payment becomes payable and the non-member spouse is entitled to be paid an amount, or
    • where a splitting order applies.

    A splittable payment in respect of a super interest of a non-member spouse includes:

    • a payment to the spouse
    • a payment to another person for the benefit of the spouse
    • a payment to the legal personal representative of the spouse, after the death of the spouse
    • a payment to a reversionary beneficiary, after the death of the spouse
    • a payment to the legal personal representative of a reversionary beneficiary covered by the above dot point, after the death of the reversionary beneficiary.

    Does 'unable to ensure' mean the super provider has to be 100% certain that the appropriate person receives the amount?

    The term 'unable to ensure' used in unclaimed superannuation money test 2 does not mean that a super provider needs to be 100% certain that the non-member spouse or their legal personal representative will receive the amount. As with any processes involving money transactions, there is no 100% guarantee that it is the non-member spouse or their legal personal representative who receives the amount.

    Super providers need to balance ensuring that money and information are disclosed to the correct person with the quality of services they provide to clients. However, we expect that super providers already have processes and procedures with acceptable risk factors in place in relation to paying out benefits.

    Some things that minimise these risks include:

    • using only original documentation – that is, not photocopies, faxes or scanned copies via email
    • ensuring the original documentation has not been altered – this includes initialled or signed alterations
    • using certified copies of original documentation, where the certification meets the requirements of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006
    • not accepting faxed or scanned certified copies, even if they are sent by mail.

    Penalties may apply for failing to make reasonable efforts to ensure that the non-member spouse or their legal personal representative receives the amount.

    Explanation of unclaimed superannuation money test 3

    The test is:

    • the member has died, and
    • the super provider determines that, under the governing rules of the fund or by operation of law, a benefit (other than a pension or annuity) is immediately payable in respect of the member, and
    • the super provider has not received an amount in respect of the member (or, in the case of a defined benefits super scheme, no benefit has accrued in respect of the member) for at least two years, and
    • after making reasonable efforts and after a reasonable period has passed, the super provider is unable to ensure that the benefit is received by the person who is entitled to receive the benefit.

    On being informed that a member has died, a super provider has an obligation to pay any resulting death benefits to the people entitled to them, in accordance with the governing rules of the provider and the law. In tracing those potentially entitled to the benefit after the member’s death, normal fund procedures should be followed.

    Whether some or all of the member's money becomes unclaimed depends upon the facts of each case. For example, if all the persons entitled to the money have been identified, but some cannot be contacted despite reasonable efforts (or the provider is unable to ensure that the benefit is received by the identified individual), then the entitlements of each person who could not be contacted will be unclaimed superannuation money. However, the remainder of the deceased’s benefit can be paid to the other persons entitled to it.

    The concept of reasonable

    What is the meaning of ‘reasonable’?

    In respect of unclaimed superannuation money, 'reasonable' has its ordinary, common law meaning.

    In accordance with common law principles, what is considered ‘reasonable’ in a particular case involves an element of judgment and depends upon the facts of the case and the environment in which the issue is examined.

    It should be kept in mind that a trustee is required to 'exercise, in relation to all matters affecting the entity, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide' (paragraph 52(2)(b) of the Superannuation Industry (Supervision) Act 1993).

    Super providers are not expected to pursue information or activities at all costs, but to base their efforts on what would normally be required in the circumstances, having regard to the environment.

    It is expected that providers prepare or refer to records that could demonstrate the efforts undertaken to comply, including the business processes which are adopted in processing the work, the information on which the efforts were based, the factors taken into account, and the methods of communication used. It is expected that providers will hold and be able to produce on request such records and materials (which may include business procedures, policy documents, etc) as required to demonstrate compliance with the SUMLMA.

    What is a reasonable attempt?

    A super provider must make a reasonable attempt to obtain the date of birth and the sex of the member. What constitutes a reasonable attempt will depend upon the facts of each case and needs to be weighed with the costs and the responsibilities of the trustees.

    If a super provider does nothing to obtain the information, then this would generally not be considered a reasonable attempt.

    Usually, it would be considered prudent that if a member, upon making application to the super provider for membership fails to disclose all fundamental information (including name, address, and date of birth), then the super provider would take steps, as soon as practicable, to obtain the missing information. The longer the provider delays in obtaining the relevant information from the member, the greater the likelihood that the information will not be obtained.

    Activities that may be considered a reasonable attempt to obtain the information include:

    • telephoning the member or the person who established the account using the last known telephone numbers
    • writing to the member or the person who established the account asking for the necessary information
    • sending the member or the person who established the account an email asking for the necessary information.

    What is a ‘reasonable effort’?

    The discussion about what is reasonable equally applies here. The meaning of ‘reasonable effort’ was considered by Helman J in Inprint Ltd v Australian Mutual Providence Society, (Unreported, Supreme Court of Queensland, Helman J, 24 April 1995)14 where his Honour said:

    A lengthy period of inaction, followed by a short spurt of activity would not, in the ordinary course of events I think, be regarded as showing that reasonable efforts have been made. But if there were compelling reasons for the delay, that might be another matter.

    Factors to consider when determining what action and effort is reasonable include:

    • the information the super provider has in relation to the member
    • the activity patterns on the member’s account
    • the type of super account – for example, employer-sponsored membership, individual membership
    • the type of industry the member is engaged in – for example, transient employment, long term with the same employer and fund, working within a particular industry
    • the account balance
    • the costs of the different methods in attempting to contact the member.

    Actions which would demonstrate that reasonable efforts were made to contact a member include:

    • the provider posting letters to the member’s last recorded postal or home address; telephone calls made by the provider to the member’s recorded telephone numbers, emails sent to the member’s email address or attempted contact using any details provided by the last known employer or intermediary. However, if the super provider has reason to believe the details were no longer valid (for example, the member has been reported as a lost member for the last ten years and there have been no changes in the members details) then this would not be considered reasonable
    • the provider checking their own records to see if the member has other accounts with more current information
    • checking the White Pages telephone directory for more current details on the member
    • engaging a company like Australia Post to undertake database searches to provide more current details on the member
    • contacting a transferring fund if applicable
    • contacting the sponsoring employer (particularly where employer contributions are being made on a regular basis)
    • contacting any listed intermediaries
    • contacting the nominated beneficiaries listed on a binding death nomination.

    Example

    According to the super provider’s records, Jane Doe has just turned 65 years of age and has an account balance of $1,000,000.

    No contributions have been received in the last three years and there has been no contact with the member for the last six years. The provider has sent annual statements to the member’s address and none of the mail has been returned unclaimed.

    The provider telephones Jane Doe, but the call is unanswered. Given the size of the account balance, this action alone would not be considered a reasonable effort. However, if the provider attempted to write to the member, contact the member’s employer, search the White Pages for more recent contact details, check whether there are any other accounts for the member with different contact information, then this would be considered a reasonable effort.

    Example

    A member’s super account was transferred from a super provider to an eligible rollover fund (ERF). Information provided at the time of the transfer was limited to the member’s name, address, date of birth and benefit details. According to the information held by the ERF, the member has now turned 65 years of age, but no contributions or contact has been made within the last five years (since the member joined the ERF). The member's account balance is $3,750. The ERF previously had mail returned from the address provided at the time of the transfer. The super provider uses the electronic White Pages to locate another address for the member – however, mail is also returned from this address. Taking into account the factors listed above, this would be considered a reasonable effort by the super provider.

    Example

    A member rolled the money in his account from Super Provider A to Super Provider B five years ago. Two months after he rolled the money over, Super Provider A distributed money to all account holders and the member’s account received $1.25. It would normally have been expected that Super Provider A would have contacted the member soon after the distribution to arrange a transfer out. However, in this case, Super Provider A did not do anything. The member has now reached 65 years of age. Usually, it would be expected that the fund would attempt to contact the member using last known details. However, given the small balance in question, it would be reasonable to expect that any further action would be limited on the part of the super provider.

    End of example

    What is a ‘reasonable period’?

    What is considered to be a reasonable period will depend upon the facts of each case – for example, if correspondence is sent overseas in an attempt to locate a person, a longer period of time should be allowed for receipt of a response when compared to correspondence sent within Australia.

    For correspondence within Australia, the community standard for an acceptable response time is between 21 and 28 days – adopting a similar timeframe would be considered reasonable. For correspondence sent overseas, as a guide, allowing 56 days for a response would generally be considered appropriate.

    If the contact method used is email or a telephone call, then three days for a response would generally be considered acceptable unless the contact was overseas. In the case of overseas telephone calls or emails, allowing seven days for a return phone call or email would generally be considered appropriate. If the request required a written response, then the correspondence timeframes referred to above would be considered appropriate.

    It would also be considered prudent for a period of time to pass between the estimated time of response and determining that money is unclaimed.

    Example

    A member of the super fund retired and was entitled to a lump sum payment of $1,000,000 which was also a splittable payment. The super fund attempted to contact a non-member spouse by telephoning them directly – the fund left a message which was not returned within three days.

    A week later, the fund wrote to the non-member spouse at the address provided on the court documents. The fund allowed 28 days for the non-member spouse to contact the fund.

    At the end of 28 days, there was no contact from the non-member spouse. A week later, the fund sent a letter to the solicitor whose details were on the splittable payment documents. The fund then allowed 28 days for the solicitor to respond.

    At the end of the 28 days, there had been no response from the solicitor, so the fund called the solicitor directly. The fund then allowed the solicitor a week to contact the fund. At the end of the week and with no response from the solicitor, the fund determined that the non-member spouse could not be located.

    End of example

    It is an offence for a super provider not to make reasonable efforts to ensure that a benefit is received by either the non-member spouse or his or her legal personal representative – for more information, see Penalty.

    In the case of the death of a member, determining what a ‘reasonable period’ is may require consideration of:

    • the period of time since the fund last had contact with the member, especially since the last time that beneficiary details were updated (refer to the paragraph below for the meaning of ‘last had contact’)
    • whether or not a trust estate is involved
    • the likelihood of finding entitled persons such as dependants
    • whether any potential beneficiaries may be overseas
    • whether the super provider has knowledge of recent family circumstances.

    What is the meaning of ‘last had contact’ for the purposes of unclaimed superannuation money?

    ‘Last had contact’ within the definition of unclaimed superannuation money means a communication between a super provider and a member, in which there is some action on the part of the member that establishes that the communication was received.

    A super provider that sends out correspondence or statements and receives no response or other form of contact from the member cannot guarantee that the member received the correspondence.

    If it has been five years or more since the super provider has had an interaction with the member and the other requirements of the definition of unclaimed super money have been met, then the superannuation provider must attempt to establish contact with the member again. Where they are unable to establish contact, then the member’s account is to be paid to the ATO as unclaimed superannuation money.

    Examples of when a member’s money is or is not unclaimed

    Example 1

    A member reaches 65 years of age, there have been no contributions for the past two years, and the member has been uncontactable for almost five years.

    The member’s money is not unclaimed

    Although the member is 65 years of age and there has been no activity on the member’s account for the past two years, the member has not yet been uncontactable for over five years.

    Efforts should be made to establish contact with the member again. This is an ongoing obligation for super providers, but is especially important when it has been almost five years since contact. It is an offence if a super provider does not make reasonable efforts to contact a member of the fund if the member has reached eligibility age, the provider has not received an amount within the last two years, and five years have passed since the provider last had contact with the member.

    Example 2

    A member has been with a provider for over 20 years and turns 65 years of age. Contributions ceased over five years ago and it has been established that the member is no longer employed. The member telephoned the provider and updated their address details two years ago.

    The member’s money is not unclaimed

    Although the member is over 65 years and there has been no activity on their account for over two years, it has been less than five years since the member last had contact with the fund.

    Example 3

    A member commences a market-linked super income stream. As the account is subject to a splitting order, the non-member spouse is entitled to an income stream payment. The non-member spouse has lost touch with the provider and no new contact details have been found despite extensive efforts to trace them.

    The non-member spouse’s money is unclaimed

    Although the member’s account is active, the money belonging to the non-member spouse is unclaimed superannuation money because, after making a reasonable effort, the super provider is unable to ensure that the non-member spouse receives their entitlement.

    Example 4

    A member is 55 years of age and no contributions have been received for over two years. A recent letter to the last known address has been returned unclaimed and information has since been received that the member may be deceased.

    The member’s money is not unclaimed

    Although there has been no activity on the member’s account for the past two years and mail has been returned unclaimed, because the super provider has not been able to reasonably verify that the member is deceased, their money is not regarded as unclaimed at this point.

    Reasonable efforts over a reasonable period of time must be made to verify this information and to identify and contact anyone who may be entitled to receive the benefits after the member’s death.

    Example 5

    A super provider receives confirmation that a member has died and a contribution was received from the member’s employer shortly before the member’s date of death. Over a period of 18 months since the death of the member, the provider makes extensive efforts to identify and contact potential beneficiaries. The provider’s efforts have been unsuccessful.

    The member’s money is not unclaimed

    Although the member is deceased and the provider has made reasonable efforts over a reasonable period to identify and contact the persons entitled, the money is not unclaimed as it has been less than two years since a contribution was made to the member’s account.

    The member’s money is unclaimed

    If two years after the last contribution, the super provider is still unable to identify and contact potential beneficiaries, the money would become unclaimed superannuation money.

    Example 6

    A super provider receives confirmation that a member has died. The super provider determines that a benefit is immediately payable in respect of the member. There have been no amounts received for over two years. Over a reasonable period of time, the super provider makes extensive efforts to identify and contact potential beneficiaries. The super provider determines that there are three beneficiaries entitled to claim a death benefit, but can only locate one of them. Beneficiary A is paid their entitlement, Beneficiaries B and C cannot be located.

    Beneficiary A’s money is not unclaimed

    As the super provider has satisfied themselves of Beneficiary A’s entitlement, their determined share of the money can be paid to them as a death benefit.

    Beneficiary B and Beneficiary C’s money is unclaimed

    If the super provider is unable to locate or contact the other two beneficiaries, their share of the money would become unclaimed superannuation money. In order for later claims to be satisfied by the ATO, the trustee should also forward copies of the documentation of their decisions and information about any entitlements already paid to the ATO.

    End of example

    Any complaints regarding the trustee’s original decision will be subject to normal dispute processes within the fund and potentially can be taken to the Superannuation Complaints Tribunal (SCT). These cannot be dealt with by the ATO.

    Reporting and payment

    Reporting requirements

    The SUMLMA, associated regulations and legislative instruments outline the reporting requirements and obligations for super providers. These include the requirements for providers to report and pay unclaimed superannuation money in the approved form by the due date specified.

    Prior to 1 July 2009, the due dates for lodgment of statements were:

    • for the half year ending on 30 June in a year – on or before 31 October in that calendar year
    • for the half year ending 31 December in a year – on or before 30 April in the following calendar year.

    From 1 July 2009, super providers are required to lodge a statement for each unclaimed money day by the scheduled statement day which is set by legislative instrument SPR 2009/2.

    The legislation sets unclaimed money days as 31 December of each year and 30 June of each year – this is the day on which super providers are required to determine whether they hold any unclaimed superannuation money.

    The legislative instrument also sets the scheduled statements days (the due date for lodgment in relation to the relevant unclaimed money day) as:

    • for an unclaimed money day being 31 December of any year – 30 April of the following year, and
    • for an unclaimed money day being 30 June of any year – 31 October of that year.

    From 1 July 2007, on giving a statement to the Commissioner, private sector funds must report and pay their unclaimed superannuation money to the ATO, rather than to their relevant state or territory authority. State and territory government super schemes may be required to report and pay unclaimed superannuation money to the ATO, subject to relevant state or territory law. Commonwealth government super schemes continue to report and pay their unclaimed superannuation money to the ATO.

    From 1 July 2009, if no money meets the definition of unclaimed superannuation money, as at the end of an unclaimed money day, then providers are also required to report this to the ATO in the approved form (either within their unclaimed superannuation money statement or on a separate Non-Lodgment Advice). Regulated super funds with less than five members (self-managed super funds and small APRA funds) who have no unclaimed superannuation money at the end of the unclaimed money day are not required to complete a non lodgment advice.

    Correcting mistakes on statements

    If a super provider identifies that a previous statement contained errors and/or omitted information then they must lodge another unclaimed superannuation money statement amending the previously reported data.

    Super providers are required to provide the corrected information no later than 30 days after they became aware of the error or omission, although they may request a deferral if required – see below What if I cannot lodge the form by the due date?

    What is the approved form?

    The approved form is one that is given in the manner set out in the Taxation Administration Act 1953 and has been approved by the Commissioner and contains all the information, statements and declarations that a super provider is required to provide. The form can be lodged in a variety of ways, but electronic lodgment is preferred.

    A provider must give the Commissioner all the information required, where it is held – providers do not have the discretion to determine what information will or will not be provided.

    The approved form for unclaimed superannuation is the unclaimed superannuation money statement.

    What if I cannot lodge the form by the due date?

    The Commissioner may defer the time for giving information after the due date. However, requests for deferral must be in writing and clearly state the reasons for the delay and include a proposal for an alternate date for lodging the information. The deferral, if granted by the Commissioner, must be in writing.

    Failing to lodge information by the due date and not obtaining a written deferral may result in the imposition of penalties.

    For further information, see Penalty.

    Payment of unclaimed superannuation money

    A super provider is responsible for paying super money to a person entitled to it, up until the money is paid to the Commissioner as unclaimed superannuation money. From that time, responsibility for payment to persons entitled to the unclaimed superannuation money rests with the Commissioner.

    Super providers are not required to give a statement or pay unclaimed superannuation money where amounts payable relate to the super interest of a former temporary resident for whom the super provider has received from the Commissioner a notice under section 20C of the SUMLMA (section 20C notice). If the amount subject to the section 20C notice would also be unclaimed superannuation money, the provider will report and pay the amount to the Commissioner as the unclaimed superannuation money of a former temporary resident, rather than unclaimed superannuation money – and is not required to report and pay the same amount twice.

    Unclaimed superannuation money must be paid to the Commissioner at the same time as lodgment of a statement of unclaimed superannuation money. Like lodgment, an application in writing can be made to the Commissioner to defer payment of unclaimed superannuation money.

    The amount a super provider is required to pay (and report) to the Commissioner is worked out according to the following formula:

    All unclaimed superannuation money as at the end of the unclaimed money day

    Former unclaimed superannuation money

    Former unclaimed superannuation money is unclaimed superannuation money paid out, or otherwise ceasing to be unclaimed, between the unclaimed money day and the statement day.

    The formula takes into account circumstances where a super provider identifies an amount as unclaimed superannuation money on an unclaimed money day – however, prior to lodgment and payment, the person entitled to the money contacts the super provider and the provider pays out the unclaimed superannuation money or the money otherwise ceases to be unclaimed superannuation money (that is, former unclaimed superannuation money).

    Example

    On 30 June 2010 (the unclaimed money day) a super provider identifies an amount of unclaimed superannuation money held for John Smith totalling $8,750. The scheduled statement day on which the super provider is required to report and make payment of the unclaimed superannuation money identified is 31 October 2010. However, between the unclaimed money day (30 June 2010) and the scheduled statement day (31 October 2010), John Smith contacts the super provider. The money ceases to be unclaimed. As a result, the amount is reported to the Commissioner as N (no longer unclaimed).

    End of example

    Where unclaimed superannuation money is paid to the Commissioner, there is no requirement for the super provider to withhold PAYG. Any withholding of tax will be undertaken by the Commissioner upon payment to the person entitled to the unclaimed superannuation money.

    If super providers pay the money directly to persons entitled to the money, then the super provider must fulfil any PAYG withholding requirements as would normally occur upon direct payment of super benefits.

    Additional information required after lodgment

    Regardless of whether money is paid to the ATO as unclaimed superannuation money, unclaimed superannuation money of former temporary residents or a lost member account, if the member has died (or subsequently dies) and the ATO is contacted by a potential beneficiary, the ATO will contact the super provider. The ATO will need to establish whether:

    • the provider was still the holder of the money at the time of the member’s death
    • the super provider would have been under a binding obligation to pay the member's benefit to a specific or nominated person.

    This information is necessary to help the ATO to determine any such claims to the unclaimed superannuation money.

    Penalty

    A super provider may be found guilty of an offence or liable to an administrative penalty where:

    • they fail to give the Commissioner the statement by the due date:  
      • administrative penalty – ranging from one to five penalty units for each period of 28 days or part thereof that the statement is overdue, up to a maximum of five penalty points.
      • offence – maximum of 50 penalty units and/or possible imprisonment for up to 12 months
       
    • the statement given to the Commissioner is false or misleading in a material particular:  
      • administrative penalty – between 25% to 75% of the shortfall amount, as the base penalty amount, which may be increased or decreased
      • offence – maximum of 40 penalty units
       
    • they fail to pay unclaimed superannuation money owing to the Commissioner by the due date:  
      • General interest charge – worked out daily on a compounding basis on amounts that are outstanding
      • offence – 100 penalty units
       
    • they fail to make reasonable efforts to contact the member or to ensure that either the non-member spouse or the beneficiaries of the deceased member receives the amount:  
      • Offence – maximum penalty 100 penalty units
       

    A penalty unit is $170. If the penalty is for an offence that occurred before 28 December 2012, the value of a penalty unit is $110.

    Unclaimed superannuation money of former temporary residents

    The law

    The provisions governing the payment to the Commissioner of unclaimed superannuation money of former temporary residents are contained within Part 3A of the SUMLMA.

    The super is considered to be unclaimed because the person has satisfied a condition of release but has not claimed their benefit from their super provider within a specified period of time.

    Generally, the SUMLMA requires a super provider to report and pay amounts to the Commissioner by the required scheduled statement day, in respect of members for whom the super provider has received a notice from the Commissioner under section 20C of the SUMLMA (a section 20C notice).

    The Commissioner is required to give a section 20C notice to a super provider if:

    • there are reasonable grounds for believing that the person has a super interest in the fund, and
    • the person is a former temporary resident.

    A person is a former temporary resident if:

    • they held a temporary visa (except a visa prescribed in the regulations – currently subclass 405 (Investor Retirement) and Subclass 410 (Retirement) visas per Regulation 4B of the Superannuation (Unclaimed Money and Lost Members) Regulations 1999) that has ceased to be in effect
    • they left Australia after starting to hold the visa (independent of whether their visa ceased to have effect before, when or after they left Australia)
    • at least six months has passed since the later of the following (or either of these events if they occurred at the same time):  
      • the visa ceased to be in effect, or
      • the person left Australia
       
    • they are not an Australian or New Zealand citizen
    • they do not hold a current temporary visa or permanent visa
    • they do not have an undetermined application for a permanent visa.

    From 18 December 2008, most super providers must report and pay the unclaimed superannuation of former temporary residents to the ATO.

    General principles

    The general principle of this part of the SUMLMA is that where:

    • the Commissioner gives a notice under section 20C notice to a super provider  
      • because there are reasonable grounds for believing that the person has a super interest in the fund, and
      • the person is a former temporary resident
       
    • the super provider must give a statement to the Commissioner, in the approved form by the required scheduled statement day, in respect of the identified members.

    Additionally, unless the member has withdrawn their benefit prior to the scheduled statement day, or the section 20C notice has been revoked, the super provider must also pay amounts to the Commissioner in respect of the member.

    Reporting

    If a super provider receives a section 20C notice from the Commissioner identifying one of their members as a former temporary resident, they must give a statement to the Commissioner (using the approved form) by the next scheduled statement day.

    Scheduled statement days for unclaimed superannuation money of former temporary residents are set by legislative instrument SPR 2009/1. The first scheduled statement day for unclaimed superannuation money of former temporary residents was 15 June 2009 and each subsequent scheduled statement day. Due date for statements, as well as payment where required, are 31 October and 30 April of each year.

    Example

    A super provider receives a section 20C notice from the Commissioner in respect of one of their members on 15 May 2010. The super provider must provide the Commissioner with the required information in the approved form and payment (if required) by 31 October 2010 – the next scheduled statement day.

    End of example

    However, if it is less than 28 days to the next scheduled statement day when the Commissioner gives the section 20C notice to the super provider, then the super provider has until the following schedule statement day to provide the required information and payment.

    Example

    A super provider receives a section 20C notice from the Commissioner in respect of one of their members on 10 October 2010. As this is within 28 days of the next scheduled statement day (31 October 2010), the super provider has until 30 April 2011, the following scheduled statement day to provide the required information and payment.

    End of example

    Super providers are required to give the Commissioner a statement even where:

    • the person for whom the Commissioner has given the section 20C notice does not have a super interest in the fund, or
    • the super provider is not required to pay an amount in respect of the person to the Commissioner.

    As with reporting requirements for unclaimed superannuation money, the Commissioner may defer the time for giving the statement to after the due date. However, requests for deferral must be in writing, clearly state the reasons for delay and include a proposal for an alternate date for lodging the information. The deferral, if granted by the Commissioner, must be in writing.

    Failing to lodge information by the schedule statement day and not obtaining a deferral from the Commissioner may result in the imposition of penalties.

    For further information, see Penalty.

    Payment

    A super provider is responsible for paying super money (generally as a departing Australia superannuation payment) to a former temporary resident if requested, unless the money has already been paid to the Commissioner. From that time, responsibility of payment to these former temporary residents of their super interests rests with the Commissioner.

    Payment of super money of former temporary residents to the Commissioner is due and payable at the same time the statement is due to be lodged. As with lodgment, an application may be made to the Commissioner to defer payment. Such requests must be made in writing outlining the reasons for the deferral and proposing an alternative date for payment.

    As well as giving a statement to the Commissioner, the super provider must also calculate and pay the identified member’s super interest where required. To do this, the super provider must calculate the amount to be paid and determine the time at which that calculation is to be done.

    Timing of the calculation

    Super providers must calculate the member’s super interest immediately before they pay the amount to the Commissioner. Payment of unclaimed superannuation money of former temporary residents must be made at the same time that they report via the approved form to the Commissioner. The ‘calculation’ time will be one of the following:

    • immediately before the next scheduled statement day after the section 20C notice was given
    • if it is less than 28 days to the next scheduled statement day when the Commissioner gives the section 20C notice to the super fund, immediately before the following scheduled statement day
    • if the Commissioner has deferred or granted an extension for the super provider to make a payment, immediately before the deferred due day
    • if the super provider pays or lodges before the next schedule statement day, then immediately before the super provider pays or lodges the approved form, or
    • if the super provider makes multiple payments or lodgments before the next scheduled statement day, immediately before the payment or lodgment for the identified member included in that particular payment or lodgment.

    The requirement to lodge and the requirement to pay are contained in separate provisions within the SUMLMA and can technically be met separately. For the purposes of good administration, the ATO requires a statement to be lodged with each payment – this enables the ATO to correctly record the money paid against the individual’s record.

    Example

    A super provider receives a section 20C notice from the Commissioner in respect of one of their members on 10 October 2010. As this is within 28 days of the next scheduled statement day (31 October 2010), the super provider has until 30 April 2011 to provide the required information and make a payment. As a result, the time at which they are to calculate the member’s interest is immediately before 30 April 2011.

    Example

    The circumstances are the same as the above example – however, the super provider decides to lodge its report early on 1 February 2011. As a result, the time at which the super provider is required to calculate the member’s interest is immediately before 1 February 2011

    Example

    A super provider receives a section 20C notice in respect of 400 members in May 2010, meaning that they must report and pay (where applicable) by the next scheduled statement day – 31 October 2010. Due to the length of time required to calculate the members’ benefits, they decide to process them over a period of time. The super provider lodges a statement and makes a payment in June 2010, July 2010, August 2010 and September 2010 (100 members per statement). The calculation time at which the super provider is required to calculate the member’s interest is immediately before the payment or lodgment of the statement on which the member is included.

    End of example

    How to calculate former temporary resident’s super interest

    Once a super provider has determined the time at which the former temporary resident’s interest should be calculated, they should apply the following formula at that time:

    The starting amount minus the amount to be paid to member equals the excess amount (payable to the Commissioner)

    The starting amount is the notional amount that would have been paid to the member at the calculation time if they could and had requested payment. Note that the starting amount:

    • does not include any previous payments to the member
    • includes any interest or earnings which would normally be included
    • is reduced by any fees or charges that would have been incurred if the member had asked for payment
    • is reduced by any reduction to give effect to a payment split under Part VIIIB of the Family Law Act 1975.

    However, when working out the starting amount, the super provider must not notionally withhold the DASP tax that would otherwise apply.

    Example

    A super provider has received a section 20C notice in respect of one of its members, Maria. The super provider has calculated that the balance of Maria’s interest at the calculation time is $18,955.00, to which $47 earnings is added. Normally, if Maria had asked for this to be paid out as a superannuation lump sum she would be charged an administration fee of $25. Her starting amount is: 18,955 + 47 – 25 = $18,977

    End of example

    Amounts to be paid to the member need to be determined to reduce the starting amount. This amount is:

    • if the member has met a condition of release and requested that an amount be paid to them, then the starting amount is to be reduced by the amount to be paid
    • if the member has died, then the starting amount is reduced by the amount that has been or is required to be paid because of the member’s death to an entitled beneficiary
    • the starting amount is to be reduced by the amount that supports a superannuation income stream
    • an amount (if any) worked out under the Regulations.

    Example

    As calculated above, Maria’s starting amount is $18,977 – however, she has applied to the fund for a departing Australia superannuation payment of $18,977. The excess amount to be paid to the Commissioner is then worked out as: $18,977 (starting amount) – $18,977 (amounts to be paid to member) = $0.00

    As there is no excess amount, no payment is required to be paid to the Commissioner as unclaimed superannuation money of a former temporary resident – however, a statement must still be lodged

    Example

    A super provider has received a section 20C notice in respect of one of its members, Joshua. The super provider has calculated that the balance of Joshua‘s interest at the calculation time is $300,000. However, prior to leaving Australia, Joshua met the permanent incapacity condition of release and subsequently started an account-based income stream. The amount that supports Joshua’s income stream is $150,000 – as a result, the excess amount to be paid to the Commissioner is then worked out as: $300,000 (starting amount) – $150,000 (amounts to be paid to member) = $150,000.

    End of example

    The super provider must not withhold any tax from the amount paid to the Commissioner.

    Correcting errors

    Revoking a notice

    A super provider must provide a statement and make a payment (where required) when they have received a section 20C notice from the Commissioner. However, a section 20C notice must be revoked by the Commissioner where:

    • the section 20C notice should never have been given in respect of a person (because the circumstances for the giving of the notice never existed in the first place), or
    • the circumstances relating to the person have changed since the time the section 20C notice was given (that is, the circumstances for giving the notice no longer exist).

    For example:

    • the super provider never held a super interest for the person
    • the person never held a temporary visa
    • the person held a temporary visa, but has not left Australia
    • the person is an Australian or New Zealand citizen
    • the person is the holder of a current temporary or permanent visa or has applied for a permanent visa
    • the person held a visa prescribed by the Regulations (Regulation 4B of the Superannuation (Unclaimed Money and Lost Members) Regulations 1999 currently prescribe subclass 405 (Investor Retirement) and Subclass 410 (Retirement) visas).

    If a super provider receives a section 20C notice for a member for whom they believe a notice should not have been given, or where they know that the member's circumstances have changed, they can request in writing (and include any relevant documentation) that the Commissioner revoke the notice.

    It is not expected that a super provider should undertake extensive tests to verify whether a section 20C notice should have been issued or not, particularly where some of this information (such as citizenship) would not generally be available to the provider.

    However, if a super provider is in contact with the member and such information comes to light, or the provider’s records show that the account is still in receipt of contributions, then the ATO will work with the provider to determine whether a section 20C notice should have been issued.

    The Commissioner is required to revoke a section 20C notice if satisfied that:

    • there were no, or there is no longer, reasonable grounds for believing that the person has a super interest in the fund, or
    • the person never met, or no longer meets, the definition of former temporary resident.

    To do this, the Commissioner will issue a written revocation notice (under section 20J of the SUMLMA) that revokes the original (section 20C) notice. Once the original section 20C notice is revoked, it is taken to have never been given – as a result, the super provider no longer has any requirement to provide a statement or pay an amount in respect of the person to the Commissioner.

    However, a revocation notice will have no effect (will not revoke the original section 20C notice) if:

    • before the Commissioner revokes the original section 20C notice the super provider has made a payment to the Commissioner because of the original notice, or
    • the notice of revocation is given to the super provider less than 28 days before the provider is required to give a statement to the Commissioner (including deferred dates) and before the end of that day the super provider gives a statement and/or makes payment (where required) because of the original section 20C notice.

    This second condition exists to allow super providers who have already commenced the process to respond to the Commissioner’s original section 20C notice to ignore the revocation notice and continue with their processing.

    Where it is apparent that a revocation will have no effect (that is, because the super provider has given a statement or made a payment) the Commissioner is not required to revoke the original section 20C notice

    Example

    A super provider receives a section 20C notice in respect of one of its members on 15 September 2011 advising that they are a former temporary resident. However, the super provider is aware that the member has not left Australia and continues to receive both employer and personal contributions on a monthly basis. The super provider writes to the ATO on 20 September 2011 requesting the notice be revoked.

    On 15 October 2011, the super fund receives the revocation notice. As this is within 28 days of the scheduled statement day (31 October 2011,) if the super provider has already commenced the process to report and pay an amount because of the original section 20C notice (and the provider does lodge and pay by the due date of 31 October 2011), then the revocation will have no effect.

    However, if the super provider has not commenced processes to report and pay, or chooses to remove the member from the statement being prepared upon receipt of the revocation notice, then the original section 20C notice is revoked and the super provider is no longer required to provide the Commissioner with a statement or make payment (in respect of this person) on the scheduled statement day – 31 October 2011.

    Example

    A super provider receives a section 20C notice in respect of one of its members on 15 September 2011 that they are a former temporary resident. The super provider lodges a statement (and makes a payment) by the next scheduled statement day. However, the super provider then became aware that the member has dual citizenship with Britain and New Zealand. They write to the ATO requesting the notice be revoked because the member is a New Zealand citizen. At this point the provider has already lodged a statement and made a payment in respect of the member, so any revocation would have no effect. As a result, the Commissioner is not required to revoke the notice. The provider may still seek refund of the overpayment provided there is no request from the member in question for the Commissioner to direct the amount elsewhere (for example, a direction to pay the amount to the member or to another superannuation provider).

    End of example

    Requesting a refund of an overpayment

    Where a super provider has paid an amount because of a notice given by the Commissioner under section 20C of the SUMLMA but the amount should not have been paid or the amount paid was greater then it should have been, the Commissioner is required to refund that amount to the super provider.

    Examples of where an overpayment may occur are:

    • an error was made in the calculation of the member’s interest and too much was paid to the Commissioner
    • due to an error, an incorrect person’s interest (that is, the interest of a person who was not identified in the section 20C notice) was paid to the Commissioner
    • the person’s interest was paid to the Commissioner but it is later determined that the person does not meet the definition of a former temporary resident, where the person has not approached the ATO directly for payment.

    If the super provider becomes aware of an overpayment to the Commissioner because the super provider later forms the belief that the section 20C notice was incorrect, the super provider should email OPSSUPERCRT-RUNDLE@ato.gov.au with the following information:

    • member’s name
    • member’s date of birth
    • details about why the section 20C notice may have been incorrect (for example, dates of recent contributions).

    The ATO will then assist the super provider by confirming whether the section 20C notice was correct or not.

    Alternatively, the member may approach the ATO directly to request a payment or rollover of the benefit.

    Where the section 20C notice was incorrect, or where the super provider has made a calculation error, the super provider must lodge an unclaimed superannuation money statement with the member’s details and a member status of E – Error. Where a section 20C notice was incorrect, the amount reported should be nil. Where an error was made in calculation, the correct amount should be reported.

    This will trigger a refund of the overpayment from the ATO to the super provider.

    Correcting mistakes on statements

    If a super provider identifies that a previous statement contained errors and/or information was omitted from the statement, the super provider should lodge another unclaimed superannuation money statement amending the previously reported data.

    Additional information required after lodgment

    Regardless of whether money is paid to the ATO as unclaimed superannuation money, as unclaimed superannuation money of former temporary residents, or as a lost member account, if the member has died (or subsequently dies) and the ATO is contacted by a potential beneficiary, the ATO will contact the super provider to establish:

    • if the super provider was still the holder of the money at the time of the member’s death
    • whether the super provider was under a binding obligation to pay the member's benefit to a specific or nominated person.

    This information is necessary to help the ATO to determine any such claims.

    Penalty

    A super provider may be guilty of an offence or liable to an administrative penalty where:

    • they fail to give the Commissioner the statement by the due date:  
      • administrative penalty – ranging from one to five penalty units for each period of 28 days or part thereof that the statement is overdue, up to a maximum of five penalty points
      • offence – maximum of 50 penalty units and/or possible imprisonment for up to 12 months
       
    • the statement given to the Commissioner is false or misleading in a material particular:  
      • administrative penalty – either 25% to 75% of the shortfall amount, as the base penalty amount
      • offence – maximum of 40 penalty units
       
    • they fail to pay unclaimed superannuation money owing to the Commissioner by the due date:  
      • General interest charge – worked out daily on a compounding basis on amounts that are outstanding
      • offence – maximum of 100 penalty units.
       

    A penalty unit is $170. If the penalty is for an offence that occurred before 28 December 2012, the value of a penalty unit is $110.

    Lost member accounts for USM

    What is a 'lost member account'?

    • A member of a super provider is a lost member if the member is:
    • a lost RSA holder within the meaning of regulation 1.06 of the Retirement Savings Accounts Regulations 1997 (RSA Regulations)
    • a lost member within the meaning of regulation 1.03A of the Superannuation Industry (Supervision) Regulations (SIS Regulations).

    The definition of a lost member for the purposes of your lost member statement reporting has been updated. The regulations define a member of a super provider to be a lost member at a particular time if:

    • the member is uncontactable
    • the member is an inactive member, or
    • the member joined the fund from another super provider as a lost member, unless
    • within the last two years of the member's membership, the super provider has verified that the member's address is correct and has no reason to believe that that address is now incorrect, or
    • the member is permanently excluded from being a lost member because  
      • the member is an inactive member who has indicated by a positive act that they wish to continue to be a member of the fund
      • the member has contacted the super provider at any time after they joined the fund and indicated that they wished to continue being a member of the fund, or
      • the member is a member of a self-managed super fund (SMSF).
       

    A key underlying concept is that it is the member that is lost – not the account.

    The law

    The provisions governing the payment to the Commissioner of certain accounts relating to lost members are contained within Part 4A of the SUMLMA.

    Super providers are required to pay to the Commissioner certain amounts relating to lost members, namely the balance of small accounts and the inactive accounts of unidentifiable members.

    If a super provider has accounts that meet the definition of a lost member account at the end of an unclaimed money day, the super provider must provide the Commissioner with a statement and make a payment (where applicable) by the corresponding scheduled statement day.

    Upon receipt of an application by a person to whom the lost member account belonged, or on the Commissioner’s own initiative, the Commissioner must pay the money either to a complying super fund, to that person, or, in the event of the person’s death, to one or more of their beneficiaries or the legal personal representative.

    From 30 June 2010, most super providers must report and pay to the ATO lost member accounts.

    Categories of USM lost member accounts

    Super providers must report and pay to the Commissioner amounts that meet the following definition of 'lost member accounts':

    Test 1 – small lost member account

    • the member on whose behalf the account is held is a lost member
    • the balance of the account (on the unclaimed money day) is less than $4,000, and
    • the account does not support or relate to a defined benefit interest (within the meaning of section 292-175 of the Income Tax Assessment Act 1997).

    Test 2 – inactive account of an unidentifiable member (insoluble lost member account)

    • the member on whose behalf the account is held is a lost member
    • the super provider has not received an amount in respect of the member within the last 12 months
    • the super provider is satisfied that it will not be possible for the super provider, having regard to the information reasonably available to the super provider, to pay an amount to the member, and
    • the account does not support or relate to a defined benefit interest (within the meaning of section 292-175 of the Income Tax Assessment Act 1997).

    Examples of where a member should not be reported as a lost member account:

    1. You hold an account that meets the definition of a lost member account and you have received a section 20C notice from the Commissioner advising that the same member is a former temporary resident. This member should be reported as a former temporary resident. See section How to report a member who meets the definition of more than one type of unclaimed superannuation money for more advice on the reporting priority for unclaimed superannuation.
    2. You hold an account that meets the definition of a lost member account and the member has also reached eligibility age. This member should be reported as unclaimed superannuation money (member who has reached eligibility age). See section How to report a member who meets the definition of more than one type of unclaimed superannuation money for more advice on the reporting priority for unclaimed superannuation.

    Lost member account test 1

    At the end of an unclaimed money day, a super provider must identify any accounts that belong to lost members (as defined by the relevant regulations) where the balance is less than $4,000.

    The balance at this time should not reflect any amounts that are yet to be credited or debited from the account – that is, the super provider is not required to add interest or to deduct fees as at this day to determine whether the account is a lost member account.

    Accounts below $4,000 that belong to lost members, which do not support or relate to a defined benefit interest, will meet lost member account test 1. The super provider must provide information relating to the account to the Commissioner on the scheduled statement day.

    Example – balance over $4,000 on scheduled statement day

    A super provider identifies that a member that meets the definition of 'lost member' has an account balance of $3,999 on the unclaimed money day, 31 December – as such, it is a lost member account. Before the corresponding scheduled statement day, 30 April, the superannuation account is credited with interest of $3.50, bringing the account balance to 4,002.50. However, as the value of the account was below $4,000 on the unclaimed money day, the account must still be reported and paid to the ATO.

    Example – balance under $4,000 on scheduled statement day

    A super provider identifies that a member that meets the definition of 'lost' has an account balance of $4,010 on the unclaimed money day, 31 December. Although the member remains a 'lost member', the account does not meet the definition of a small lost member account. Before the corresponding scheduled statement day, 30 April, the account is debited with charges of $13.50, bringing the account balance to $3,996.50. However, as the value of the account was over $4,000 on the unclaimed money day, the account is not required to be reported or paid.

    End of example

    If the account value remained under $4,000 as at the next unclaimed money day (31 October) then it may meet the definition of a small lost member account.

    Example – account under $4,000 and member is inactive

    Poppy has $3,400 in her super account with a fund that has her correct contact information. She joined the fund as a standard employer-sponsored member seven years ago and has not received any contributions or rollovers to her account for the last five years. Poppy is a lost inactive member with a small balance, so the fund must report and pay the balance to us on the next reporting date as a small lost member account.

    Example – member with multiple accounts on scheduled statement day

    Simon is a lost member and has two ‘lost’ super accounts with the same fund – account number 1 has a balance of $3,500 and account number 2 has $4,800. Although the combined value of both accounts is over $4,000, the super provider is required to report and pay account number 1 as a lost member account to the ATO, as the value of that account was below $4,000 on the unclaimed money day. The fund must report and pay the balance to us on the next reporting date as a small lost member account.

    Example – account under $4,000 and member is uncontactable

    Jack has a super account with a small balance of $1,900. The fund has an address for him and has had two separate pieces of mail returned unclaimed. The fund has not received a contribution for Jack in the last 16 months. Jack is a lost member because he is uncontactable and has not had a contribution or rollover within 12 months. On the next USM scheduled statement date, the fund must report and pay the balance to us as a small lost member account.

    End of example

    Lost member account test 2

    At the end of an unclaimed money day, a super provider is required to identify any accounts that belong to lost members, as defined by the relevant regulations, and where the super provider has not received an amount in respect of the member within the last 12 months – for example, contributions (such as employer or personal contributions), rollovers and transfers. These amounts do not include interest or earnings that may be credited to the account by the super provider.

    Example

    A super provider holds an account for a lost member as at 30 June 2012. The last employer contribution that was credited to the account was on 15 March 2011. No personal contributions, rollover or transfers were ever received. The super provider has also credited earnings every six months. For the purposes of test 2, the super provider has not received an amount in respect of the member within the last 12 months.

    End of example

    The condition relating to the member’s unidentified status is that the super provider must be satisfied that, having regard to the information reasonably available to them, they would be unable to pay an amount to the member at any time in the future. That is, at the time the test is applied and based on the information the super provider holds, if a person attempted to claim ownership, the super provider could not be confident of verifying ownership.

    Although the SUMLMA states the decision is to be made on any information reasonably available to the super provider, it is expected that a super provider will, if they have not already done so, follow up any information that could be made available to them at this time. This will allow the super provider to make a reasonable assessment of whether the amount will meet the definition of an insoluble lost member account.

    For example, if an amount would potentially meet the definition of an insoluble lost member account, but the super provider believes that it may be able to obtain further identity information about the member from the employer who contributed on their behalf, it would be expected that the super provider contact (or attempt to contact) the employer at that time.

    In this situation, it would be expected that the super provider contact the employer to gain any additional information. The decision as to whether they meet the insoluble lost member account test is to be made on information reasonably available at that time and not on information that may or may not become available at some point in the future.

    As stated in previous chapters, the term reasonable is not defined within the SUMLMA and must be determined in the context of the information held by the super provider in a particular circumstance. However, as a general guide, it may be considered that the super provider must hold a minimum of two complete pieces of quality information about the member to enable them to determine and verify the identity of the person whose account they hold.

    Example

    An account was opened with the super provider for John Smith in June 2002. No further information was provided, and contributions ceased in July 2004. No records exist to specify who made the contributions. Attempts by the super provider to locate the member were unsuccessful. As the super provider has only one piece of complete information, it determines that this would not be sufficient for them to establish the member’s ownership of the account, even if the member were to approach the super provider. The account is identified as an insoluble lost member account for the purposes of the lost member account provisions.

    Example

    Joseph is a lost member and has a super account has a balance of $5,500. No contributions or rollovers have been received within the last twelve months. Joseph’s super fund does not have his date of birth, TFN or details of his employer. Based on this lack of information about Joseph, the fund does not think it will ever be possible to pay him. The fund must report and pay the balance to us on the next reporting date as an insoluble lost member account.

    End of example

    Even where the super provider holds two (or more) complete pieces of information, super providers should still assess this information in terms of quality and whether it would truly allow the super provider to correctly establish the identity of the account’s owner.

    Example

    A super provider holds an account belonging to a lost member, John Brown, for whom no contributions or rollovers have been received for over 12 months. The super provider has the member’s name and date of birth – however, on reviewing this information, the date of birth is recorded as 1 January 1900. As this date of birth is clearly not correct and the only other piece of information the super provider holds is the member’s name, which is a relatively common name, this would generally not be sufficient for the super fund to establish the member’s ownership of the account.

    Example

    A super provider holds an account belonging to a lost member, Homer Simpson, for whom no contributions or rollovers have been received for over 12 months. The super provider has the following information:

    Name: Homer Jay Simpson

    Address: 742 Evergreen Terrace, Springfield

    Employer: Springfield Nuclear Power plant

    Though the super provider has three pieces of information, the quality of this information, in terms of identifying the member, may not be sufficient as it mimics details from a popular television program. As such, the super provider does not believe that the information will assist them in paying the account to the person to whom it belongs – instead, they pay it to the ATO as an insoluble lost member account.

    End of example

    Ultimately, the decision about whether a super provider holds sufficient information to determine the account ownership is up to each individual super provider. However, to give some guidance and to assist with consistency, the following examples provide some general ideas about the level of information that would or would not be considered reasonable (at a minimum) to establish an accounts ownership.

    Examples where information would generally not be sufficient to establish account ownership:

    • John Smith – only one piece of information
    • Julie, 15 June 1964 – two pieces of information, but one is incomplete
    • David Black, contributions made by Coles – two pieces of information, but one is incomplete – due to the size of the employer this may not be enough to establish ownership
    • Judy McDonald, Whoop Whoop Road, Outback – two pieces of information, but due to the vagueness of the address this may not be enough to establish ownership.

    Unlike the unclaimed superannuation money provisions, the lost member accounts provisions do not impose any additional obligation to contact or locate the member at the time of applying the tests. However, this does not absolve the super provider from their general fiduciary duty or trustee responsibilities in attempting to locate the member and gaining additional information throughout the time they are the holder of the account, particularly where this may prevent the member from becoming a ‘lost member’.

    Reporting

    Super providers are required to lodge a statement detailing lost member accounts for each unclaimed money day, by the corresponding scheduled statement day. Both unclaimed money days and scheduled statement days are set by legislative instrument, SPR 2009/2.

    Unclaimed money days are currently set as 31 December of each year, and 30 June of each year.

    Scheduled statement days are set as:

    • for an unclaimed money day being 31 December of any year – 30 April of the following year
    • for an unclaimed money day being 30 June of any year – 31 October of that year.

    Even where a super provider does not hold any lost member accounts at the end of an unclaimed money day, the super provider is still required to report this to the ATO in the approved form (either within their unclaimed superannuation money statement or on a separate Non Lodgment Advice). Funds with fewer than five members which have no lost member accounts at the end of the unclaimed money day are not required to complete a non lodgment advice.

    The Commissioner may defer the time for giving the information after the due date. However, such requests must be in writing and clearly state the reasons for the delay and include a proposal for an alternate date for lodging the information. The deferral, if granted by the Commissioner, must be in writing.

    Failing to lodge information by the schedule statement day and not obtaining a deferral from the Commissioner in writing may result in the imposition of penalties.

    Super providers should ensure that accounts meeting the definition of small or insoluble lost member are reported and paid to the ATO on the unclaimed superannuation money statement (USMS). If these accounts have been identified for the first time, they are required to be reported on the USMS only.

    For further information, see Penalty.

    How to report a member who meets the definition of more than one type of unclaimed superannuation money

    A member may satisfy the definition of more than one type of unclaimed superannuation money – however, the SUMLMA legislation clearly defines which type of unclaimed super an account must be used in reporting to the ATO.

    The order of precedence is a:

    1. non-member spouse or deceased member
    2. member who is a former temporary resident identified on a S20C notice
    3. member who has reached eligibility age
    4. small or insoluble lost member account.

    Example

    • Where a member is a former temporary resident for whom you have received a section 20C notice, and that member also satisfies the definition of a deceased member – you should report the member as having unclaimed super as a deceased member. As stated above, a deceased member takes precedence over a former temporary resident.
    • Where a member is a former temporary resident for whom you have received a section 20C notice, and also satisfies the definition of a member who has reached eligibility age – you should report the member as having unclaimed super as a former temporary resident, because this category takes precedence over a member who has reached eligibility age.
    • Where a member meets the definition of a lost member account and the member has also reached eligibility age, you should report the member as having unclaimed super – member who has reached eligibility age. All other types of unclaimed super take priority over the lost member account definition.
    End of example

    Correcting mistakes on statements

    If a super provider identifies that a previous statement contained errors and/or omitted information, the super provider must lodge another unclaimed superannuation money statement amending the previously reported data.

    Super providers must provide the corrected information no later than 30 days after they became aware of the error or omission, although they may request a deferral if required (see Reporting).

    Payment

    A super provider is responsible for paying super money to a person who is entitled to it, up until the day the account is paid to the Commissioner. From that time on, responsibility for payment to persons entitled to the money rests with the Commissioner.

    Where amounts payable relate to unclaimed superannuation money, or the super interest of a former temporary resident for which the super provider has received a notice from the Commissioner under section 20C of the SUMLMA, super providers are required to report and pay as unclaimed money rather than as a lost member account.

    Payment of an amount in relation to a lost member account is due to be paid to the Commissioner at the same time as lodgment of a statement in the approved form – that is, the scheduled statement day. Like lodgment, an application may be made to the Commissioner for an extension for the payment of lost member accounts – however, this request must be in writing, explain the reasons for the application and nominate an alternative date for payment.

    Where a lost member account is paid to the Commissioner, there is no requirement for the super provider to withhold PAYG. Any withholding of tax will be undertaken by the Commissioner upon payment to the person entitled to the amount.

    Amount to be paid

    If an account is identified as a lost member account on an unclaimed money day, the super provider is required to make the payment of the account to the Commissioner by the corresponding scheduled statement day where:

    • the account is still held by the super provider on behalf of the person, and
    • the person is still a lost member at the earlier of (the calculation time)  
      • if an amount is payable, the time the payment is made, or
      • the time at which the payment is due and payable.
       

    Where a lost member account was identified on an unclaimed money day, but due to a change in the member’s circumstances no payment was required, super providers must still lodge a statement, including details of the lost member account.

    Example

    A super provider identifies that a member that meets the definition of a ‘lost member’ has an account balance of $1,750 on the unclaimed money day, 31 December, and, as such, is a lost member account. However, before the corresponding scheduled statement day, 30 April, the super provider receives a request from the member to transfer the account to another super provider. As the account was a lost member account on the unclaimed money day, the super provider is still required to lodge a statement reporting that the member is no longer lost (member status G). However, because they no longer hold the money in respect of the account of the person, no payment is required.

    End of example

    Where the balance of a lost member account is under $4,000 on an unclaimed money day, but exceeds $4,000 by the scheduled statement day due to interest or earnings, super providers must still report the member as an unclaimed super money small lost member account, providing the member is still considered a lost member.

    Example

    A super provider identifies that a member that meets the definition of 'lost member' has an account balance of $3,999 on the unclaimed money day, 31 December, and, as such, is a lost member account. Before the corresponding scheduled statement day, 30 April, the superannuation account is credited with interest of $3.50, bringing the account balance to $4,002.50. However, because the value of the account was below $4,000 on the unclaimed money day, the account must still be reported and paid to the ATO.

    End of example

    Where the balance of the account at the calculation time is nil or below nil, no statement or payment is required.

    Example

    On the unclaimed money day, 31 December 2012, a super provider identifies that a lost member’s balance is $25 and, as such, is a lost member account. At the calculation time, the member was still a lost member and the account was still held by the super provider – no earnings had been credited to the account, and the super provider normally charges an exit fee of $30. So, the amount payable is $25 – $30 = –$5. As this was the only lost member account held by the super provider, they need only lodge a Non Lodgment Advice.

    End of example

    Payment of lost member accounts subject to Family Law payment splits

    If a lost member account that must be paid to the Commissioner is subject to a payment split in which the non-member spouse is, or could be entitled to be, paid an amount, then the amount paid to the Commissioner is worked out as follows:

    • work out the member's account balance at the payment date
    • for the lost member, only take into account their entitlement to payment after any reduction by the payment split (disregarding subsection 90MB(3) of the Family Law Act 1975)
    • for the lost member, work out the amount that would normally be rolled over or transferred if this had been requested by the member (as set out above).

    Example

    An account has been identified as a lost member account as it meets the inactive account of an unidentifiable member test. On the unclaimed money day, the balance of the account was $9,705. At the calculation time, the member was still a lost member and the account was still held by the super provider. Additionally, $95 in earnings had been credited to the account and the super provider normally charges an exit fee of 2% of the balance. However, despite minimal information being recorded against the account, the super provider is aware that it is subject to a 50/50 Family Law payment split. As a result, the amount payable to the Commissioner would be ((9,705 + 95) / 2) – 98 (2% of lost member's payable balance) = 4,802. So, the amount payable to the Commissioner in respect of the lost member is $4,802.

    End of example

    The super provider is also required to pay to the Commissioner the non-member spouse’s entitlement after giving effect to the payment split – this is payable to the Commissioner at the same time as the payment of the lost member account. The super provider must also include details of the non-member spouse (and the payment made in respect of them) in the statement to the Commissioner.

    Example

    Following on from the above example, the non-member spouse’s entitlement after the payment split has been applied is $4,900. The exit benefit for this member would be the account balance less (minus) the 2% exit fee – a total of $4,802 (4900 – 98). The super provider is required to report and pay this amount to the Commissioner at the same time that they report and pay in regards to the lost member account.

    End of example

    What happens if a lost member account is transferred to an eligible rollover fund (ERF)?

    Statements:

    Super providers must provide a statement for any lost member accounts they hold at the end of the unclaimed money day.

    If a lost member account is transferred to an ERF prior to an unclaimed money day, because the super provider was not the holder of that account on the unclaimed money day there is no requirement to provide a statement in relation to it.

    However, if the super provider holds the lost member account on the unclaimed money day, and the account is transferred to an ERF between the unclaimed money day and the scheduled statement day, the super provider must still provide a statement in relation to the account.

    When lodging, a super provider can use the member status N – no longer unclaimed. For lost member accounts, this indicates to the ATO that the super provider ceased to be the holder of the account, or the member ceased to be lost between the unclaimed money day and the day the report is lodged.

    Payments:

    Where a super provider is the holder of a lost member account on an unclaimed money day, the provider must pay that account to the ATO if:

    • the super provider still holds the account on behalf of the member
    • the member was still a lost member before the payment was made (or before it is due to be paid), and
    • the amount payable is not nil or below nil.

    If the super provider holds the lost member account on the unclaimed money day, and the account is then transferred to an ERF between the unclaimed money day and the scheduled statement day, no payment is required because the super provider ceased to hold the money before the day the report is lodged.

    However, because the member remains a lost member (see paragraph 1.03A(1)(c) of the SISR) upon transfer to the ERF, the ERF may need to report and pay the lost member account if the member has not been found and the ERF is the holder of the account on the next unclaimed money day.

    Additional information required after lodgment

    Regardless of whether money is paid to the ATO as unclaimed superannuation money, as unclaimed superannuation money of former temporary residents, or as a lost member account, if the member has died (or subsequently dies) and the ATO is approached by a potential beneficiary, the ATO will contact the super provider to establish whether:

    • the super provider was still the holder of the money at the time of the member’s death
    • the super provider was under a binding obligation to pay the member's benefit to a specified or nominated person.

    This information is necessary to help the ATO to determine any such claims.

    Penalty

    A super provider may be guilty of an offence and/or liable to an administrative penalty where:

    • they fail to give the Commissioner the statement by the due date:  
      • administrative penalty – ranging from one to five penalty units for each period of 28 days or part thereof that the statement is overdue, up to a maximum of five penalty points.
      • offence – maximum of 50 penalty units and/or possible imprisonment for up to 12 months
       
    • the statement given to the Commissioner is false or misleading in a material particular:  
      • administrative penalty – between 25% to 75% of the shortfall amount, as the base penalty amount, which may be increased or decreased
      • offence – maximum of 40 penalty units
       
    • they fail to pay unclaimed superannuation money owing to the Commissioner by the due date:  
      • General interest charge – worked out daily on a compounding basis on amounts that are outstanding
      • offence – maximum of 100 penalty units.
       

    A penalty unit is $170. If the penalty is for an offence that occurred before 28 December 2012, the value of a penalty unit is $110.

      Last modified: 04 Jan 2016QC 45233