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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Family Law Legislation
Amendment (Superannuation) (Consequential Provisions) Bill
2001
No. ,
2001
(Attorney-General)
A
Bill for an Act to deal with matters consequential on the enactment of the
Family Law Legislation Amendment (Superannuation) Act 2001, and for
related purposes
ISBN: 0642 459940
Contents
Family Law Act
1975 3
Income Tax Assessment Act
1936 3
Income Tax Assessment Act
1997 12
Small Superannuation Accounts Act
1995 15
Superannuation Contributions Tax (Assessment and Collection) Act
1997 16
Superannuation Contributions Tax (Members of Constitutionally Protected
Superannuation Funds) Assessment and Collection Act
1997 18
Superannuation (Unclaimed Money and Lost Members) Act
1999 20
A Bill for an Act to deal with matters consequential on
the enactment of the Family Law Legislation Amendment (Superannuation) Act
2001, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Family Law Legislation Amendment
(Superannuation) (Consequential Provisions) Act 2001.
This Act commences immediately after the commencement of the Family
Law Legislation Amendment (Superannuation) Act 2001.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 Subsection 90MB(1)
Omit “This Part”, substitute “Subject to
subsection (3), this Part”.
2 At the end of
section 90MB
Add:
(3) This Part has effect subject to the Superannuation (Unclaimed Money
and Lost Members) Act 1999.
Income Tax Assessment Act
1936
3 After section 27AC
Insert:
ETP for non-member spouse
(1) If:
(a) a payment split applies to a splittable payment; and
(b) as a result, a payment is made to the non-member spouse (or to his or
her legal personal representative if he or she has died); and
(c) the payment, if it had been made to the original payee, would have
been an eligible termination payment under a paragraph of the definition of
eligible termination payment in subsection 27A(1);
then the payment is taken to be an eligible termination payment (the
new ETP) in relation to the non-member spouse under that same
paragraph.
Example: A has a superannuation interest that is subject to
2 payment splits in respect of A’s marriages to B and C (in that order).
The first payment split provides for a 60% share to B and the second payment
split provides for a 50% share to C.
Assume that any payment to B or C would have been an
eligible termination payment for A (if the payment had been made to A). A
becomes entitled to a splittable payment of $100.
By applying subsection (1) in relation to the first
payment split, B gets an eligible termination payment of $60.
By applying subsection (1) in relation to the second
payment split, C gets an eligible termination payment of $20.
Calculation of components of new ETP
(2) Each identified component of the new ETP is to be worked out in
accordance with the following formula:
where:
corresponding amount means the amount that would have been
that component if the whole of the pre-split amount had been an eligible
termination payment in relation to the original payee.
pre-split amount means the amount to which the payment split
was applied.
Example: To continue the example in subsection (1),
assume A’s undeducted contributions (one of the identified components) are
$40.
In relation to B, the pre-split amount is $100 (the amount
of the splittable payment). The undeducted contributions component of B’s
eligible termination payment is:
The other identified components of B’s eligible
termination payment are worked out in a corresponding way.
In relation to C, the pre-split amount is $40 (the original
amount of $100 less the $60 paid to B under the first payment split). A’s
undeducted contributions have been reduced to $16. The undeducted contributions
component of B’s eligible termination payment is:
The other identified components of C’s eligible
termination payment are worked out in a corresponding way.
(3) For the purposes of working out all the components of the new ETP, the
number of days in the eligible service period is taken to be zero.
ETP for original payee
(4) If there is an eligible termination payment (the original
ETP) in relation to the original payee in respect of the splittable
payment, then each identified component of the original ETP is to be worked out
in accordance with the following formula:
where:
corresponding amount means the amount that would have been
that component if the whole of the pre-split amount had been an eligible
termination payment in relation to the original payee.
pre-split amount means the amount to which the payment split
was applied.
Example: To continue the example in subsections (1) and
(2), A has an eligible termination payment of $20.
In relation to A, the pre-split amount is $40 (the original
amount of $100 less the $60 paid to B under the first payment split). The
undeducted contributions component of A’s eligible termination payment
is:
The other identified components of A’s eligible
termination payment are worked out in a corresponding way.
Definitions
(5) In this section:
identified component, in relation to an eligible termination
payment, means any of the following:
(a) the concessional component;
(b) the post-June 1994 invalidity component;
(c) the CGT exempt component;
(d) the undeducted contributions;
(e) the untaxed element of the post-June 83 component.
non-member spouse has the same meaning as in Part VIIIB
of the Family Law Act 1975.
original payee means the person to whom the splittable
payment would have been made but for the payment split.
payment split means a payment split under Part VIIIB of
the Family Law Act 1975.
splittable payment has the same meaning as in Part VIIIB
of the Family Law Act 1975.
(1) If, in respect of an interest (the original interest)
that a person (the first person) has as a member of a
superannuation fund, either of the following apply at a particular time (the
relevant time):
(a) an interest in a superannuation fund is created for the non-member
spouse in relation to the original interest in circumstances prescribed by the
regulations;
(b) an amount is transferred to a superannuation fund, in circumstances
prescribed by the regulations, for the benefit of the non-member spouse in
relation to the original interest;
then:
(c) there is taken to be an ETP made in relation to the non-member spouse
of an amount (the new ETP amount) equal to the value of the
interest created for the non-member spouse or to the amount transferred (as the
case may be); and
(d) there is taken to be an ETP made in relation to the first person of an
amount (the remaining ETP amount) equal to the value of the
original interest immediately before the relevant time less the new ETP amount;
and
(e) there is taken to be a roll-over of those ETPs.
ETP in relation to non-member spouse
(2) Each identified component of the ETP in relation to the non-member
spouse is to be worked out in accordance with the following
formula:
where:
corresponding amount means the amount that would have been
that component if an ETP had been made in relation to the first person of an
amount equal to the value of the original interest immediately before the
relevant time.
(3) For the purposes of working out all the components of the ETP in
relation to the non-member spouse, the number of days in the eligible service
period is taken to be zero.
ETP in relation to first person
(4) Each identified component of the ETP in relation to the first person
is to be worked out in accordance with the following formula:
where:
corresponding amount means the amount that would have been
that component if an ETP had been made in relation to the first person of an
amount equal to the value of the original interest immediately before the
relevant time.
Definitions
(5) In this section:
identified component, in relation to an eligible termination
payment, means any of the following:
(a) the concessional component;
(b) the post-June 1994 invalidity component;
(c) the CGT exempt component;
(d) the undeducted contributions.
non-member spouse has the same meaning as in Part VIIIB
of the Family Law Act 1975.
4 Section 140C
Insert:
non-member spouse has the same meaning as in Part VIIIB
of the Family Law Act 1975.
5 Section 140C
Insert:
payment split means a payment split under Part VIIIB of
the Family Law Act 1975.
6 Section 140C
Insert:
splittable payment has the same meaning as in Part VIIIB
of the Family Law Act 1975.
7 After subsection 140M(1)
Insert:
(1A) If:
(a) a payment split applies to a splittable payment in respect of an
interest that a person has as a member of a superannuation fund; and
(b) as a result, a payment is made to the non-member spouse in relation to
that interest; and
(c) the payment, if it had been made to the original payee, would have
been a payment of a superannuation pension by a payer to the original payee;
and
(d) this subsection has not previously applied in relation to a payment
made to the non-member spouse in relation to that interest;
then:
(e) for the purposes of this Act, the payer is taken to have commenced to
make payments of a superannuation pension to the non-member spouse;
and
(f) the payer must give the Commissioner a notice containing such
information as is specified in the regulations.
Note 1: This Act contains various provisions dealing with
superannuation pensions. For example, see section 27H (about assessable
income including superannuation pensions) and Subdivision AAB of
Division 17 of Part III (about rebates for certain superannuation
pensions).
Note 2: If the payer also commenced to make payments of a
superannuation pension to the original payee, then subsection (1) would
apply in relation to the original payee.
(1B) For the purposes of subsection (1A), original payee
means the person to whom the splittable payment would have been made but
for the payment split.
(1C) If:
(a) a payer commences or has commenced to make payments of a
superannuation pension to a person (the first person) in respect
of an interest that a person has as a member of a superannuation fund;
and
(b) the pension counts or counted towards the first person’s RBLs;
and
(c) a payment split then applies to a splittable payment in respect of
that interest; and
(d) as a result, a payment is made to or for the benefit of the non-member
spouse in relation to that interest; and
(e) this subsection has not previously applied in relation to that payment
split;
then:
(f) the payer must give the Commissioner a notice containing such
information as is specified in the regulations; and
(g) if the payer also makes a payment of the pension to the first person
as a result of the splittable payment becoming payable—for the purposes of
this Act, the payer is taken to have commenced to make payments of another
superannuation pension to the first person.
8 Subsection 140M(2)
After “regulations”, insert “for the purposes of this
section”.
9 Subsection 140M(3)
Omit “The notice”, substitute “A notice under this
section”.
10 After subsection 140Q(1)
Insert:
(1A) Subsection (1) does not apply to an ETP made in relation to the
non-member spouse in circumstances referred to in paragraph
140UA(1)(c).
11 At the end of
section 140R
Add:
(5) This section is subject to section 140UA.
12 At the end of
section 140T
Add:
(4) This section is subject to section 140UA.
13 After section 140U
Insert:
(1) If:
(a) a payer commences or has commenced to make payments of a
superannuation pension to a person (the first person) in respect
of an interest that a person has as a member of a superannuation fund;
and
(b) there is a commutation or partial commutation of the pension at a time
when a payment split applies in relation to that interest;
then:
(c) if an ETP is made in relation to the first person, or in relation to
the non-member spouse in relation to that interest, as a result of the
commutation or partial commutation of the pension—subsections 140R(1) and
140T(1) apply in relation to that ETP and subsections 140R(1A) and 140T(2B) do
not apply; and
(d) if a residual pension is payable to the first person, or to the
non-member spouse in relation to that interest, on the commutation or partial
commutation of the pension—subsections 140R(1) and 140T(1) apply in
relation to that residual pension and subsections 140R(1B) and 140T(2C) do not
apply.
(2) If:
(a) paragraph (1)(c) or (d) applies in relation to the non-member
spouse; and
(b) paragraph 140ZC(2)(b) or (c) would otherwise apply in relation to the
ETP or residual pension concerned;
then paragraph 140ZC(2)(b) or (c), as the case may be, does not
apply.
14 After section 140ZF
Insert:
If:
(a) a payer is taken to have commenced to make payments of a
superannuation pension (the new pension) to a person as mentioned
in paragraph 140M(1C)(g); and
(b) the pension mentioned in paragraph 140M(1C)(a) was assessed against
the person’s pension RBL;
then the new pension is to be assessed against the person’s pension
RBL.
15 At the end of
section 140ZP
Add:
(3) If:
(a) a payer commences or has commenced to make payments of a
superannuation pension to a person (the first person) in respect
of an interest that a person has as a member of a superannuation fund;
and
(b) the pension counts or counted towards the first person’s RBLs;
and
(c) a payment split then applies to a splittable payment in respect of
that interest; and
(d) as a result, a payment is made to or for the benefit of the non-member
spouse in relation to that interest;
then the capital value of the pension is taken to be reduced by an amount
worked out in accordance with a method determined by the Commissioner in writing
in relation to the pension.
Note: The heading to section 140ZP is altered by
omitting “—roll-overs”.
Income Tax Assessment Act
1997
16 Section 112-150 (at the end of the
table)
Add:
|
7 |
Transfer of a CGT asset from one small superannuation fund to another
because of a marriage breakdown |
Subdivision 126-D |
17 At the end of
section 118-305
Add:
(3) Subsection (2) does not apply if:
(a) a *payment split applies to a
*splittable payment; and
(b) as a result, a payment is made to the
*non-member spouse (or to his or her
*legal personal representative if the
non-member spouse has died).
18 After
section 118-310
Insert:
A *capital gain or
*capital loss you make from
*CGT event C2 or D1 relating directly to any of
the following is disregarded:
(a) the making of a superannuation agreement (within the meaning of
Part VIIIB of the Family Law Act 1975);
(b) the termination, or setting aside, of such an agreement;
(c) such an agreement otherwise coming to an end.
19 At the end of Division 126 of
Part 3-3
Add:
Table of sections
126-140 CGT event involving small superannuation
funds
Payment splits under Family Law Act
(1) There is a roll-over if:
(a) an interest in a *small
superannuation fund is subject to a *payment
split; and
(b) the *non-member spouse in relation to
that interest serves a waiver notice under section 90MZA of the Family
Law Act 1975 in respect of that interest; and
(c) as a result of serving the notice, the trustee (the
transferor) of the fund transfers a
*CGT asset to the trustee (the
transferee) of another small superannuation fund for the benefit
of the non-member spouse.
Note: CGT event E2 may apply to the
transfer.
Interest splits under the Superannuation Industry (Supervision)
Regulations
(2) There is also a roll-over if:
(a) an *interest split applies in respect
of an interest that a person has as a member of a
*small superannuation fund; and
(b) under the Superannuation Industry (Supervision) Regulations 1994, the
*non-member spouse asks the trustee (the
transferor) of the fund to transfer or roll over the benefits held
in the interest created for the non-member spouse to another small
superannuation fund; and
(c) in order to give effect to that request, the transferor transfers a
*CGT asset to the trustee (the
transferee) of the other fund for the benefit of the non-member
spouse.
Note: CGT event E2 may apply to the
transfer.
Roll-over consequences
(3) A *capital gain or
*capital loss the transferor makes from the
transfer of the asset is disregarded.
(4) If the transferor *acquired the asset
on or after 20 September 1985:
(a) the first element of the asset’s
*cost base (in the hands of the transferee) is
the asset’s cost base (in the hands of the transferor) at the time the
transferee acquired it; and
(b) the first element of the asset’s
*reduced cost base (in the hands of the
transferee) is worked out similarly.
(5) If the transferor *acquired the asset
before 20 September 1985, the transferee is taken to have acquired it
before that day.
Note: A capital gain or loss you make from a CGT asset you
acquired before 20 September 1985 is generally disregarded: see
Division 104. This exemption is removed in some situations: see
Division 149.
Definition
(6) For the purposes of this section, an interest split
applies in respect of an interest that a person has as a member of a
*small superannuation fund if, under the
Superannuation Industry (Supervision) Regulations 1994, an interest in the fund
is created for the *non-member
spouse.
20 Subsection 995-1(1)
Insert:
interest split has the meaning given by subsection
126-140(6).
21 Subsection 995-1(1)
Insert:
non-member spouse has the same meaning as in Part VIIIB
of the Family Law Act 1975.
22 Subsection 995-1(1)
Insert:
payment split means a payment split under Part VIIIB of
the Family Law Act 1975.
23 Subsection 995-1(1)
Insert:
small superannuation fund means a
*complying superannuation fund with 4 or fewer
members.
24 Subsection 995-1(1)
Insert:
splittable payment has the same meaning as in Part VIIIB
of the Family Law Act 1975.
Small Superannuation
Accounts Act 1995
25 At the end of
section 15
Add:
Payment split under Family Law Act
(3) If an account is subject to a payment split, then the Commissioner may
open an account in the name of the non-member spouse.
(4) The balance of the account when it is opened is an amount worked out
in accordance with the regulations.
(5) The balance of the member spouse’s account is to be reduced by
the amount worked out under subsection (4).
(6) The Commissioner must give the member spouse a written notice setting
out the balance (if any) of the member spouse’s account after the
reduction.
(7) In this section:
member spouse has the same meaning as in Part VIIIB of
the Family Law Act 1975.
non-member spouse has the same meaning as in Part VIIIB
of the Family Law Act 1975.
payment split means a payment split under Part VIIIB of
the Family Law Act 1975.
Superannuation
Contributions Tax (Assessment and Collection) Act 1997
26 After subsection 8A(1)
Insert:
(1A) This section is subject to section 10A.
27 After subsection 10(1)
Insert:
(1A) This section is subject to section 10A.
28 After section 10
Insert:
Liability to pay surcharge
(1) If:
(a) in respect of an interest (the original interest) that a
person has as a member:
(i) a payment split applies to a splittable payment; or
(ii) an interest in a superannuation fund, an approved deposit fund or an
RSA is created for the non-member spouse in relation to the original interest in
circumstances prescribed by the regulations; or
(iii) an amount is transferred to a superannuation fund, an approved
deposit fund or an RSA, in circumstances prescribed by the regulations, for the
benefit of the non-member spouse in relation to the original interest;
and
(b) an assessment is then made that surcharge is payable on the
surchargeable contributions of the member in respect of the original
interest;
then:
(c) if a superannuation provider holds those contributions for the
member—the provider is taken to be the holder of those
contributions and liable to pay the surcharge; or
(d) otherwise—the member is taken to be the holder of
those contributions and liable to pay the surcharge.
(2) In this section:
non-member spouse has the same meaning as in Part VIIIB
of the Family Law Act 1975.
payment split means a payment split under Part VIIIB of
the Family Law Act 1975.
splittable payment has the same meaning as in Part VIIIB
of the Family Law Act 1975.
29 Subsection 16(6)
Omit “When”, substitute “Subject to subsection (6A),
when”.
30 After subsection 16(6)
Insert:
(6A) If:
(a) a payment split applies to a splittable payment in respect of an
interest that a person has as a member; and
(b) the splittable payment becomes payable in circumstances where the
member’s surcharge account is in debit;
then the superannuation provider concerned must pay to the Commissioner,
within one month after the day the splittable payment became payable, the amount
by which the account is in debit (which discharges the provider’s
liability for the surcharge).
31 At the end of
section 16
Add:
Definitions
(11) In this section:
payment split means a payment split under Part VIIIB of
the Family Law Act 1975.
splittable payment has the same meaning as in Part VIIIB
of the Family Law Act 1975.
32 Section 43 (definition of
holder)
Omit “section 8A”, substitute “sections 8A and
10A”.
Superannuation
Contributions Tax (Members of Constitutionally Protected Superannuation Funds)
Assessment and Collection Act 1997
33 Subsection 12(3)
Repeal the subsection, substitute:
Superannuation provider that pays out contributed amounts
(3) If, after 7.30 pm by legal time in the Australian Capital Territory on
20 August 1996, any of the contributed amounts in relation to the member
were or are paid by a superannuation provider:
(a) to the member; or
(b) to the member, or to a person other than a member, under a payment
split;
then the provider must, not later than the notification date for the
financial year in which the payment was or is made or such later date (if any)
as the Commissioner allows, give the Commissioner a statement setting
out:
(c) the member’s name, the address of the member’s place of
residence or place of business or employment, the date of the member’s
birth and, if given to the provider in connection with the operation or the
possible future operation of this Act, the member’s tax file number;
and
(d) the particulars referred to in subsection (5); and
(e) the date of the payment; and
(f) any other information required by the regulations.
34 Subsection 12(6)
Repeal the subsection, substitute:
(6) If:
(a) a lump sum, or a pension, becomes payable by a superannuation provider
for the benefit of a member; or
(b) a payment split applies to a splittable payment in respect of an
interest that a person has as a member;
then the provider must give the Commissioner a statement setting
out:
(c) the member’s name, the address of the member’s place of
residence or place of business or employment, the date of the member’s
birth and, if given to the provider in connection with the operation or the
possible future operation of this Act, the member’s tax file number;
and
(d) the date on which the lump sum or pension became payable;
and
(e) the particulars in relation to the benefits referred to in paragraph
15(6)(b) or (6A)(d) (as the case requires); and
(f) any other information required by the regulations.
35 At the end of
section 12
Add:
Definitions
(8) In this section:
payment split means a payment split under Part VIIIB of
the Family Law Act 1975.
splittable payment has the same meaning as in Part VIIIB
of the Family Law Act 1975.
36 Subsection 15(6)
Omit “When”, substitute “Subject to subsection (6A),
when”.
37 After subsection 15(6)
Insert:
(6A) If:
(a) a payment split applies to a splittable payment in respect of an
interest that a person has as a member; and
(b) the splittable payment becomes payable in circumstances where the
member’s surcharge account is in debit;
then the member is liable to pay to the Commissioner the lesser
of:
(c) the amount by which the account is in debit; and
(d) 15% of the employer-financed component of that part of the benefits
that would have been payable to the member but for the payment split and that
accrued after 20 August 1996.
38 Subsection 15(7)
After “subsection (6)”, insert “or
(6A)”.
39 Paragraph 15(8A)(a)
After “subsection (6)”, insert “or
(6A)”.
40 At the end of
section 15
Add:
Definitions
(11) In this section:
payment split means a payment split under Part VIIIB of
the Family Law Act 1975.
splittable payment has the same meaning as in Part VIIIB
of the Family Law Act 1975.
Superannuation (Unclaimed
Money and Lost Members) Act 1999
41 At the end of
section 12
Add:
(2) If:
(a) a payment split applies to a splittable payment in respect of an
interest that a person has as a member of a fund; and
(b) as a result, the non-member spouse (or his or her legal personal
representative if he or she has died) is entitled to be paid an amount;
and
(c) after making reasonable efforts and after a reasonable period has
passed, the superannuation provider concerned is unable to ensure that the
non-member spouse or his or her legal personal representative, as the case may
be, receives the amount;
then the amount payable is taken to be unclaimed
money.
(3) In this section:
non-member spouse has the same meaning as in Part VIIIB
of the Family Law Act 1975.
payment split means a payment split under Part VIIIB of
the Family Law Act 1975.
splittable payment has the same meaning as in Part VIIIB
of the Family Law Act 1975.
42 Subsection 13(1)
Omit “12(a)”, substitute “12(1)(a)”.
43 After subsection 13(1)
Insert:
(1A) If paragraphs 12(2)(a) and (b) are satisfied, the superannuation
provider must make reasonable efforts to ensure that the non-member spouse or
his or her legal personal representative, as the case may be, receives the
amount.
(1B) For the purposes of subsection (1A), non-member spouse
has the same meaning as in Part VIIIB of the Family Law Act
1975.
44 Subsection 13(2)
After “subsection (1)”, insert “or
(1A)”.