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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
(As read a third
time)
Superannuation
Contributions Surcharge (Assessment and Collection) Bill
1997
No. ,
1997
A Bill for an Act relating
to the assessment and collection of superannuation contributions surcharge, and
for related purposes
9701040--1,280/25.3.1997--(10/97) Cat. No. 96 7473 X ISBN
0644 50002 6
Contents
This Bill originated in the House of Representatives; and,
having this day passed, is now ready for presentation to the Senate for its
concurrence.
L.M. BARLIN
Clerk of the House
of Representatives
House of Representatives
24 March
1997
A Bill for an Act relating to the assessment and
collection of superannuation contributions surcharge, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Superannuation Contributions Surcharge
(Assessment and Collection) Act 1997.
This Act commences on the day on which it receives the Royal
Assent.
(1) This Act binds the Crown in right of the Commonwealth, of each of the
States, of the Australian Capital Territory, of the Northern Territory and of
Norfolk Island.
(2) Nothing in this Act permits the Crown to be prosecuted for an
offence.
This Act extends to Norfolk Island, the Territory of Cocos (Keeling)
Islands and the Territory of Christmas Island.
The object of this Act is to provide for the assessment and collection of
the superannuation contributions surcharge payable on surchargeable
contributions for high-income individuals.
The following is a simplified outline of this Act.
• If there are surchargeable contributions for
a member for the 1996-97 financial year or a later financial year, the
Commissioner will calculate the member’s adjusted taxable income for the
financial year.
• If the amount calculated is greater than the
surcharge threshold amount, the Commissioner will calculate the rate of
surcharge and make an assessment, directed to the holder of the contributions,
of surcharge payable on the contributions. Only contributions paid, or relating
to a time, after 7.30 pm on 20 August 1996 are subject to
surcharge.
• If the contributions are held under a defined
benefits superannuation scheme, the surcharge is payable on an amount calculated
by reference to a notional surchargeable contributions factor determined for the
member and the member’s annual salary for the purposes of the
scheme.
• If surcharge is payable for a member for a
financial year, an advance instalment of one-half of the surcharge is payable on
account of surcharge payable for the member for the following financial year.
However, no instalment is payable if the contributions for the following year
are held under an unfunded defined benefits superannuation scheme.
• If, after the assessment of surcharge, the
member’s adjusted taxable income is found to be different from the amount
that was previously calculated or the surchargeable contributions are found to
be different from the amount on which the assessment was based:
(a) if the person assessed is still the holder of the
contributions—the Commissioner may amend the assessment; or
(b) otherwise—the Commissioner may make a further assessment of
surcharge directed to the new holder of the contributions.
• The holder of a member’s surchargeable
contributions for a financial year is liable to pay the surcharge on those
contributions, and to pay any advance instalment of surcharge on the
member’s contributions for the next financial year, within stated periods.
• However, if the contributions are held under
an unfunded defined benefits superannuation scheme, the surcharge is not payable
until the contributions are withdrawn from the fund in which they are held or
are rolled over, or benefits become payable.
• If liability for surcharge is increased as a
result of an amendment of an assessment or the making of a further assessment,
interest is payable on the additional surcharge.
• A superannuation provider may reduce a
member’s benefit to take account of surcharge or advance contribution paid
on the member’s contributions.
• The provisions in the Taxation
Administration Act 1953 for objecting against assessments of income tax
apply to assessments of surcharge in so far as the assessments relate to the
calculation of a member’s adjusted taxable income.
• A late payment penalty applies if surcharge
or advance payment is not paid on time.
• The Commissioner may remit interest or late
payment penalty: a refusal to remit is reviewable by the Administrative Appeals
Tribunal.
Financial years to which surcharge applies
(1) Superannuation contributions surcharge is payable on a member’s
surchargeable contributions for the financial year that began on 1 July
1996 or a later financial year.
No surcharge is payable unless adjusted taxable income is greater than
surcharge threshold
(2) Surcharge is not payable for a financial year unless the
member’s adjusted taxable income for the financial year is greater than
the surcharge threshold for the financial year.
No surcharge is payable by residents of external
Territories
(3) Surcharge is not payable for a financial year if the person who would
be liable to pay the surcharge is the trustee of a Territory trust, a Territory
company or a Territory resident for the purposes of Division 1A of
Part III of the Income Tax Assessment Act as it applies to the year of
income that comprises that financial year.
Note: In certain other circumstances surcharge is not
payable (see subsection 10(4)).
Application
(1) This section explains what are a member’s surchargeable
contributions for a financial year.
When amounts are paid to superannuation (accumulated benefits)
provider
(2) If:
(a) any amounts (the contributed amounts) are paid for or by
a member to a superannuation (accumulated benefits) provider for a financial
year; and
(b) where the provider is the trustee of a superannuation fund or of an
approved deposit fund—the superannuation fund is a complying
superannuation fund or the approved deposit fund is a complying approved deposit
fund, as the case may be, for the purposes of the year of income comprising the
financial year;
the member’s surchargeable contributions for the
financial year are the sum of so much of the contributed amounts as:
(c) are taxable contributions under subparagraph 274(1)(a)(i),
(b)(ii), (ba)(i) or (ba)(iv) or paragraph 274(1)(d) or (e) of the
Income Tax Assessment Act; or
(d) are allowed as deductions to the member under section 82AAT of
that Act; or
(e) are specified roll-over amounts that constitute the roll-over of
amounts that are eligible termination payments under paragraph (a) of the
definition of eligible termination payment in
subsection 27A(1) of that Act.
Defined benefits superannuation scheme
(3) The surchargeable contributions for a financial year of
a member of a defined benefits superannuation scheme are taken to be the amount
worked out using the formula:
where:
annual salary means:
(a) if paragraph (b) does not apply—the amount that is the
member’s annual salary for the financial year; or
(b) if another amount is taken to be the member’s annual salary for
the purposes of the scheme as it applies to the member for the financial
year—that other amount.
notional surchargeable contributions factor means the
notional surchargeable contributions factor applying to the member for the
financial year.
Transitional provision for 1996-97 financial year
(4) For the 1996-97 financial year, a member’s surchargeable
contributions are:
(a) if the contributed amounts were paid to a superannuation (accumulated
benefits) provider—the part of so much of those amounts that would
otherwise be the member’s surchargeable contributions as was paid to the
provider after 7.30 pm by legal time in the Australian Capital Territory on
20 August 1996; or
(b) if the member is a member of a defined benefits superannuation
scheme—so much of the amounts that would otherwise be the member’s
surchargeable contributions as is certified by an eligible actuary, according to
Australian actuarial practice, to relate to the part of the financial year that
started immediately after 7.30 pm by legal time in the Australian Capital
Territory on 20 August 1996.
Surcharge threshold for 1996-97 financial year
(1) The surcharge threshold for the 1996-97 financial year
is $70,000.
Surcharge threshold for later financial year
(2) The surcharge threshold for a later financial year is
the amount calculated using the formula:
where:
previous surcharge threshold means the surcharge threshold
for the financial year immediately before the financial year for which the
surcharge threshold is being calculated.
indexation factor means the number calculated under
subsections (4) and (5) for the financial year for which the surcharge
threshold is being calculated.
Rounding off of amount of surcharge threshold
(3) If an amount worked out for the purposes of subsection (2) is an
amount of dollars and cents:
(a) if the number of cents is less than 50—the amount is to be
rounded down to the nearest whole dollar; or
(b) otherwise—the amount is to be rounded up to the nearest whole
dollar.
Indexation factor
(4) The indexation factor for a financial year is the number
calculated, to 3 decimal places, using the formula:
where:
index number, for a quarter, means the estimate of full-time
adult average weekly ordinary time earnings for the middle month of the quarter
published by the Australian Statistician.
current March year means the period of 12 months ending on
31 March immediately before the financial year for which the surcharge
threshold is being calculated.
previous March year means the period of 12 months immediately
before the current March year.
Rounding up of indexation factor
(5) If the number calculated under subsection (4) for a financial
year would, if it were worked out to 4 decimal places, end with a number greater
than 4, the number so calculated is increased by 0.001.
Change in index numbers
(6) If at any time, whether before or after the commencement of this Act,
the Australian Statistician has published or publishes an index number for a
quarter in substitution for an index number previously published for the
quarter, the publication of the later index number is to be
disregarded.
Surcharge threshold to be published
(7) The Commissioner must publish before, or as soon as practicable after,
the start of the 1997-98 financial year, and before the start of each later
financial year, the surcharge threshold for the financial year.
Note: For the purposes of this section, Australian
Statistician means the Australian Statistician referred to in
subsection 5(2) of the Australian Bureau of Statistics Act
1975.
Application
(1) This section identifies the person liable to pay the superannuation
contributions surcharge on a member’s surchargeable contributions for a
financial year.
Contributions held by superannuation provider
(2) If a superannuation provider is the holder of the contributions when
an assessment of the surcharge, directed to the provider, is made, the provider
is liable to pay the surcharge.
Superannuation provider ceasing to hold contributions, or starting to
pay pension or annuity, before receiving copy of assessment
(3) However, subsection (2) does not apply to a superannuation
provider that ceases to be the holder of the contributions, or begins to pay a
pension or annuity based on the contributions, before a copy of the assessment
is given to it.
Contributions withdrawn or pension or annuity starts to be
paid
(4) If:
(a) the contributions have been paid to a person other than a
superannuation provider or a pension or annuity based on the contributions has
begun to be paid; and
(b) no superannuation provider is liable under subsection (2) to pay
the surcharge;
the following paragraphs have effect:
(c) if the surchargeable contributions were paid, or the pension or
annuity began to be paid, to the member—the member is liable to pay the
surcharge; or
(d) otherwise—the surcharge is not payable.
If superannuation contributions surcharge is payable for a member for a
financial year, an advance instalment of one-half of the amount of the surcharge
is payable on account of surcharge payable for the member for the following
financial year.
Note: In certain circumstances an advance instalment is not
payable (see subsections 12(2) and (3).
Application
(1) This section identifies the person liable to pay the advance
instalment of superannuation contributions surcharge on a member’s
surchargeable contributions for a financial year and sets out circumstances when
no instalment is payable.
Contributions withdrawn or pension or annuity begins to be paid before
15 June in financial year
(2) If, before 15 June in the financial year, the contributions were paid
to a person other than a superannuation provider or a pension or annuity based
on the contributions began to be paid, the advance instalment is not
payable.
Contributions held on 15 June in financial year by superannuation
(unfunded defined benefits) provider
(3) If, on 15 June in the financial year, a superannuation (unfunded
defined benefits) provider is the holder of the contributions, the advance
instalment is not payable.
Contributions held on 15 June in financial year by any other
superannuation provider
(4) If, on 15 June in the financial year, a superannuation provider other
than a superannuation (unfunded defined benefits) provider is the holder of the
contributions, the superannuation provider who was liable to pay the surcharge
on the member’s surchargeable contributions for the preceding financial
year is liable to pay the advance instalment.
Application
(1) This section applies to a member’s contributed amounts for a
financial year.
Superannuation provider is the holder of contributed amounts at end of
financial year
(2) If, at the end of the financial year, a superannuation provider is the
holder of any of the contributed amounts, the provider must give the
Commissioner, not later than the notification date for the financial year, a
statement setting out:
(a) the member’s name, the address of the member’s place of
residence or place of business or employment, the date of the member’s
birth and, if given to the provider in connection with the operation or the
possible future operation of this Act, the member’s tax file number;
and
(b) the particulars referred to in subsection (7); and
(c) any other matters required by the regulations.
Superannuation provider that pays out contributed amounts to the
member
(3) If, after 7.30 pm by legal time in the Australian Capital
Territory on 20 August 1996, any of the contributed amounts were or
are paid by a superannuation provider to the member, the provider must, not
later than the notification date for the financial year in which the payment was
or is made, give the Commissioner a statement setting out:
(a) the member’s name, the address of the member’s place of
residence or place of business or employment, the date of the member’s
birth and, if given to the provider in connection with the operation or the
possible future operation of this Act, the member’s tax file number;
and
(b) the particulars referred to in subsection (7); and
(c) the date of the payment.
Statement to be given by superannuation provider to another
superannuation provider to which contributed amounts are
transferred
(4) If, after 7.30 pm by legal time in the Australian Capital
Territory on 20 August 1996, any of the contributed amounts were or
are transferred by a superannuation provider to another superannuation provider,
the provider that transferred the amounts must:
(a) if the amounts were or are transferred in the 1996-97 financial year
or the 1997-1998 financial year—give the Commissioner, not later than the
notification date for the financial year in which the amounts were or are
transferred, a statement setting out:
(i) 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
(ii) the particulars referred to in subsection (7); or
(b) if the amounts were or are transferred in a later financial
year—give the other provider, within 30 days after the day on which the
amounts were or are transferred, a statement setting out the particulars
referred to in subsection (7).
Copy of statement to be given to member
(5) A superannuation provider that gives a statement under this section
must, within 12 months after the statement is given, give a copy of the
statement to the member.
Offences
(6) A body corporate that contravenes this section is guilty of an offence
punishable on conviction by a fine of not more than 300 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Particulars to be included in statements
(7) The particulars that are required to be given in a statement under
this section are the total of the contributed or transferred amounts, as the
case may be, and:
(a) if the statement is given by a superannuation (accumulated benefits)
provider:
(i) the total of so much of those amounts as are taxable contributions
referred to in paragraph 8(2)(c); and
(ii) the total of so much of those amounts as are specified roll-over
amounts referred to in paragraph 8(2)(e); and
(b) if the statement is given by a superannuation (defined benefits)
provider—the amount, calculated under subsection 8(3), of the
member’s surchargeable contributions for the financial year.
Notice stating how information to be given
(1) The Commissioner may, by notice published in the Gazette, set
out the way in which information to be contained in a statement under
section 13 is to be given.
Date of effect of notice
(2) The notice has effect on and after the day stated in the
notice.
Superannuation provider to comply with notice
(3) If any of the information that a superannuation provider is required
to give under section 13 is kept by or on behalf of the provider by a data
processing device, the provider must give the information in a way set out in
the notice.
Offences
(4) A body corporate that contravenes subsection (3) is guilty of an
offence punishable on conviction by a fine of not more than 300 penalty
units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Exemption
(5) The Commissioner may, by writing, exempt a superannuation provider
from subsection (3).
Burden of proof about exemption
(6) In a prosecution for an offence against subsection (4), the
burden of proving that an exemption is not in force under subsection (5) is
on the prosecution.
Disallowable instrument
(7) An exemption under subsection (5) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
Commissioner to assess surcharge
(1) For each financial year for which there are surchargeable
contributions for a member, the Commissioner must:
(a) calculate the member’s adjusted taxable income; and
(b) if the adjusted taxable income is greater than the surcharge
threshold:
(i) calculate the surchargeable contributions; and
(ii) calculate the rate of surcharge that applies to the member;
and
(iii) make an assessment, directed to the holder of the surchargeable
contributions, of any surcharge payable.
Commissioner to determine advance instalment in certain
circumstances
(2) If superannuation contributions surcharge is assessed for a financial
year, the Commissioner must make a determination, directed to the holder of the
member’s surchargeable contributions for that financial year, of an
advance instalment of the surcharge on the member’s surchargeable
contributions for the next financial year.
When surcharge is payable
(3) Unless section 16 applies, surcharge assessed under
subsection (1) is payable within 1 month after the day on which the
assessment is made.
When advance instalment is payable
(4) An advance instalment determined under subsection (2) of
surcharge for a financial year is payable not later than 15 June in that
financial year.
Assessment taken not to have been made
(5) An assessment, directed to a superannuation provider, of surcharge on
surchargeable contributions is taken not to have been made if:
(a) after the assessment was made the provider ceased to be the holder of
the contributions or began to pay a pension or annuity based on the
contributions; and
(b) a copy of the assessment was not given to the provider before it
ceased to be the holder of the contributions or began to pay the pension or
annuity.
Determination taken not to have been made
(6) A determination, directed to a superannuation provider, of advance
instalment of surcharge on surchargeable contributions for a financial year is
taken not to have been made if the provider is not liable, because of
subsection (5), to pay the surcharge on the member’s surchargeable
contributions for the preceding financial year.
Information to be included in an assessment
(7) An assessment of surcharge must set out the amount of surchargeable
contributions, the amount of surcharge payable and the day by which the
surcharge is payable.
Information to be included in determination
(8) A determination of advance instalment of surcharge for a financial
year must set out the amount of surchargeable contributions for the previous
financial year, the amount of advance instalment payable and the day by which
the instalment is payable.
Copy of assessment or determination to be given to person to whom it is
directed
(9) When an assessment (including an amended assessment) or determination
is made, the Commissioner must give a copy to the person to whom it is
directed.
Notice of assessment to be given to member
(10) When an assessment (including an amended assessment) is made for a
financial year, the Commissioner must give the member a notice explaining the
calculations on which the assessment was based, including particulars of the
member’s adjusted taxable income for the financial year and the
surchargeable contributions, and setting out the amount of surcharge.
Notice of determination to be given to member
(11) When a determination is made for a financial year, the Commissioner
must give the member a notice explaining the calculations on which the
determination was based and setting out the amount of the instalment.
Nil assessment
(12) If the Commissioner calculates that no surcharge is payable on a
member’s surchargeable contributions for a financial year, the calculation
is taken, for the purposes of this Act other than subsections (9)
and (10), to be an assessment on which a nil amount of surcharge was due
and payable.
Deferment of liability for surcharge
(1) This section makes provision for the deferment of the liability of a
superannuation (unfunded defined benefits) provider to pay surcharge on the
surchargeable contributions of a member of the relevant unfunded defined
benefits superannuation scheme, and for interest to accrue on the deferred
amount.
Accounts to be kept
(2) The provider must keep a surcharge debt account for each
member.
Account to be debited for surcharge
(3) The provider must debit the account for surcharge assessed to be
payable on the member’s surchargeable contributions.
Interest to be debited
(4) If the member’s account is in debit at the end of a financial
year, the provider must debit the account for interest on the amount by which
the account is in debit, calculated at the Treasury bond rate for the last day
of the financial year for bonds with a 10 year term.
Rate of interest
(5) The Treasury bond rate for the last day of a financial
year for bonds with a 10 year term is:
(a) if any Treasury bonds with that term were issued on that day—the
annual yield on those bonds; or
(b) otherwise—the annual yield on Treasury bonds with that term, as
published by the Reserve Bank of Australia for that day.
Payment to be made when benefit becomes payable
(6) When a lump sum, or a pension or annuity, becomes payable by a
superannuation provider for the benefit of a member whose account is in debit,
the provider must pay to the Commissioner the amount by which the account is in
debit. The payment discharges the provider’s liability for the
surcharge.
Offences
(7) A body corporate that contravenes this section is guilty of an offence
punishable on conviction by a fine of not more than 300 penalty units.
Note: Chapter
2 of the Criminal Code sets out the general
principles of criminal responsibility.
Application
(1) This section applies to an advance instalment, paid by a
superannuation provider, of surcharge on a member’s surchargeable
contributions for a financial year.
Advance instalment to reduce surcharge
(2) If surcharge is assessed on the contributions, the Commissioner is to
apply the advance instalment to reduce the surcharge payable. If the instalment
exceeds the surcharge, the excess is to be paid to the holder of the
contributions.
Repayment of advance instalment if no surcharge
(3) If no surcharge is assessed on the contributions, the advance
instalment is to be paid to the holder of the contributions.
Application
(1) This section applies if:
(a) an assessment, directed to a superannuation provider, of surcharge on
a member’s contributions for a financial year has been made; and
(b) the provider has paid the assessed amount; and
(c) the member did not, before the assessment was made, quote his or her
tax file number to the provider in connection with the operation or the possible
future operation of this Act and the Commissioner did not know the tax file
number when the assessment was made; and
(d) the assessed amount was more than it would have been if the member had
quoted the tax file number to the provider; and
(e) after the assessment was made:
(i) the member quoted the tax file number to the provider in connection
with the operation or the possible future operation of this Act and the provider
informed the Commissioner of the tax file number; or
(ii) the Commissioner found out the tax file number.
Amendment of assessment
(2) The Commissioner must amend the assessment to reduce the amount of
surcharge to the amount that would have been payable if the Commissioner had
known the tax file number when the assessment was made.
Application
(1) This section applies if:
(a) after the making of an assessment of surcharge on a member’s
surchargeable contributions for a financial year:
(i) the member’s adjusted taxable income for the financial year is
increased or reduced and the increase or reduction affects a person’s
liability to pay the surcharge; or
(ii) the amount of the contributions is greater or less than the amount
that was taken to be the amount of the contributions for the purposes of the
assessment; or
(iii) the Commissioner is required or permitted under any other provision
of this Act to amend the assessment; and
(b) the person to whom the assessment was directed is still the holder of
the surchargeable contributions.
Commissioner may amend assessment
(2) The Commissioner may amend the assessment to take account of any
matter referred to in subparagraph (1)(a)(i), (ii) or (iii).
Amendment increasing surcharge
(3) If, as a result of the amendment of the assessment, the amount of
surcharge is increased, then, subject to section 16, the amount of the
increase is payable within 1 month after the day on which the assessment is
amended.
Amendment reducing surcharge
(4) If:
(a) as a result of the amendment of the assessment, the amount of
surcharge is reduced; and
(b) the amount previously assessed to be paid has been paid;
the amount by which the surcharge is reduced is to be paid to the holder of
the surchargeable contributions.
Application
(1) This section applies if:
(a) after the making of an assessment of surcharge (the previous
assessment) on a member’s surchargeable contributions for a
financial year:
(i) the member’s adjusted taxable income for the financial year is
increased or reduced and the increase or reduction affects a person’s
liability to pay the surcharge; or
(ii) the amount of the contributions is greater or less than the amount
that was taken to be the amount of the contributions for the purposes of the
previous assessment; and
(b) the person to whom the previous assessment was directed is no longer
the holder of the contributions.
Further assessment
(2) The Commissioner must comply with subsection 15(1) in respect of
the member for the financial year as if the action previously taken by the
Commissioner under that subsection had not been taken. However, nothing in this
section affects the action previously taken.
Increase in surcharge
(3) If, under an assessment (the new assessment) made
because of subsection (2), the amount of surcharge payable exceeds the
amount payable under the previous assessment, only the amount of the excess is
to be assessed as payable under the new assessment.
No change in surcharge
(4) If, under an assessment (the new assessment) made
because of subsection (2), the amount of surcharge payable is equal to the
amount payable under the previous assessment, no amount of surcharge is to be
assessed as payable under the new assessment.
Reduction in surcharge
(5) If, under an assessment (the new assessment) made
because of subsection (2), the amount of surcharge payable is less than the
amount payable under the previous assessment:
(a) no amount of surcharge is to be assessed as payable under the new
assessment; and
(b) the difference is to be paid to the holder of the surchargeable
contributions.
Liability to pay interest
(1) If an amendment of an assessment increasing a person’s liability
to pay surcharge is made, the person must pay interest to the Commonwealth,
calculated in accordance with subsection (2), on the amount of the
increase.
Calculation of interest
(2) Interest payable by a person under subsection (1) as a result of
an amended assessment (the current amended assessment) of
surcharge on a member’s surchargeable contributions for a financial year
is to be calculated:
(a) for the period:
(i) starting on 15 June in the financial year; and
(ii) ending on the day on which the current amended assessment is made;
and
(b) at such annual rate or rates of interest as are provided for by
section 214A of the Income Tax Assessment Act.
Amendment of nil assessment
(3) If:
(a) the Commissioner has calculated that no surcharge is payable by a
person on a member’s surchargeable contributions for a financial year;
and
(b) the Commissioner afterwards makes an assessment of surcharge payable
by the person on those contributions for the financial year;
the assessment referred to in paragraph (b) is taken to be an amended
assessment.
Interest less than 50 cents
(4) If the amount of interest that would be payable under
subsection (1) by a person on a member’s surchargeable contributions
is less than 50 cents, the interest is not payable.
Notice of interest to be given
(5) If a person is liable to pay interest under this section, the
Commissioner must notify the person of:
(a) the period for which the person is liable to pay the interest;
and
(b) the amount of the interest; and
(c) a date (not earlier than 30 days after the day on which the
notification was given) as the due date for payment of the interest;
and the amount is due and payable on that date.
Commissioner may remit interest
(6) The Commissioner may remit the whole or part of any interest payable
by a person under this section.
Note: A refusal to remit interest is reviewable by the
Administrative Appeals Tribunal (see section 29).
Liability to pay interest
(1) If, under an assessment (the new assessment) made under
subsection 15(1) because of subsection 20(2), a person is liable to
pay an amount of surcharge for a financial year, the person must pay interest to
the Commonwealth, calculated in accordance with subsection (2), on that
amount.
Calculation of interest
(2) Interest payable by a person under subsection (1) is to be
calculated:
(a) for the period:
(i) starting on 15 June in the financial year; and
(ii) ending on the day on which the new assessment is made; and
(b) at such annual rate or rates of interest as are provided for by
section 214A of the Income Tax Assessment Act.
Interest less than 50 cents
(3) If the amount of interest that would be payable under
subsection (1) by a person on a member’s surchargeable contributions
is less than 50 cents, the interest is not payable.
Notice of interest to be given
(4) If a person is liable to pay interest under this section, the
Commissioner must notify the person of:
(a) the period for which the person is liable to pay the interest;
and
(b) the amount of the interest; and
(c) a date (not earlier than 30 days after the day on which the
notification is given) as the due date for payment of the interest;
and the amount is due and payable on that date.
Commissioner may remit interest
(5) The Commissioner may remit the whole or part of any interest payable
by a person under this section.
Note: A refusal to remit interest is reviewable by the
Administrative Appeals Tribunal (see section 29).
Commissioner may use any tax file numbers for purposes of this
Act
(1) The Commissioner may use for the purposes of this Act a tax file
number that has been provided for any other purpose under a law relating to
taxation or superannuation.
Commissioner may seek member’s authority to give tax file number
to superannuation provider
(2) If:
(a) the Commissioner knows a member’s tax file number; and
(b) the Commissioner:
(i) has amended, or proposes to amend, an assessment of surcharge payable
on the member’s surchargeable contributions for a financial year;
or
(ii) has made, or proposes to make, an assessment, under section 15
as it applies because of section 20, of surcharge payable on the
member’s surchargeable contributions for a financial year;
the Commissioner may:
(c) request the member to authorise the Commissioner to inform the
superannuation provider who is the holder of the contributions of the
member’s tax file number; and
(d) if the member so authorises the Commissioner, inform the provider
accordingly.
If:
(a) an assessment of surcharge on a member’s surchargeable
contributions is made; and
(b) the member is dissatisfied with the assessment in so far as it is
based on the calculation of the member’s adjusted taxable
income;
the member may object against it in respect of that calculation in the way
set out in Part IVC of the Taxation Administration Act 1953.
Note: If a member is dissatisfied with an assessment in so
far as it relates to the calculation of the member’s surchargeable
contributions, as based on an amount or amounts set out in a statement given to
the Commissioner by a superannuation provider under section 13, the member
may make a complaint to the Superannuation Complaints Tribunal under
section 15CA of the Superannuation (Resolution of Complaints) Act
1993 about the unfairness or unreasonableness of the superannuation
provider’s decision to set out the amount or any of the amounts in the
statement.
Monthly penalty for non-payment
(1) If an amount of surcharge or advance instalment payable by a person
remains unpaid throughout the whole or part of:
(a) the calendar month starting on the day after the day on which the
amount became due and payable; or
(b) any following calendar month;
the person must pay to the Commonwealth, for that calendar month, a penalty
worked out under subsection (2). However, this subsection does not apply if
the amount was fully paid before the 15th day of the calendar month referred to
in paragraph (a).
Note: Calendar month is defined by
section 22 of the Acts Interpretation Act 1901.
Calculation of penalty
(2) The penalty for a calendar month is the amount worked out using the
following formula and rounded up to the nearest whole dollar:
where:
unpaid amount means the surcharge or advance instalment
unpaid at the start of the calendar month.
When penalty is payable
(3) Late payment penalty for a calendar month is due and payable at the
end of that month.
Commissioner may remit penalty
(4) The Commissioner may remit the whole or part of an amount of late
payment penalty.
Note: A refusal to remit late payment penalty is reviewable
by the Administrative Appeals Tribunal (see section 29).
The following may be recovered by the Commonwealth as debts due to the
Commonwealth:
(a) surcharge that is due and payable;
(b) advance instalment that is due and payable;
(c) interest that is due and payable;
(d) late payment penalty that is due and payable.
Surcharge, advance instalment, interest and late payment penalty are
payable to the Commissioner.
If:
(a) 2 or more debts are due to the Commonwealth under this Part;
and
(b) an amount is paid to the Commissioner on account of one or more of the
debts; and
(c) the total amount of the debts exceeds the amount paid;
the following provisions have effect:
(d) the Commissioner may apply the amount paid in partial discharge of the
total amount of the debts; and
(e) the Commonwealth may recover the balance.
Application of section
(1) This section applies if the Commissioner decides not to remit the
whole or part of any interest or late payment penalty.
Request to reconsider decision
(2) The person liable to pay the interest or penalty may, within 21 days
after the day on which the person receives notice of the decision, or within any
further period that the Commissioner allows, request the Commissioner to
reconsider the decision.
Reasons for request to be stated
(3) The request is to set out the reasons for making it.
Commissioner to reconsider decision
(4) On receipt of the request, the Commissioner must reconsider the
decision and may confirm or revoke the decision or vary the decision in any
way.
Reconsideration not completed within 21 days
(5) If the Commissioner does not confirm, revoke or vary the decision
within 21 days after the day on which the Commissioner received the request, the
Commissioner is taken, at the end of that period, to have confirmed the
decision.
Notice of reconsideration
(6) If the Commissioner confirms, revokes or varies a decision within the
period referred to in subsection (5), the Commissioner must tell the person
the result of the reconsideration and the reasons for confirming, varying or
revoking the decision, as the case may be.
Application for review of decision
(7) Applications may be made to the Administrative Appeals Tribunal for
review of decisions of the Commissioner that have been confirmed or
varied.
Manner of applying for review
(8) If a decision is taken, because of subsection (5), to be
confirmed, section 29 of the Administrative Appeals Tribunal Act
1975 applies as if the prescribed time for making application for review of
the decision was the period starting on the day on which the decision is taken
to be confirmed and ending on the 28th day after that day.
Operation of decision that is subject to review
(9) If a request is made under subsection (2) for the reconsideration
of a decision, section 41 of the Administrative Appeals Tribunal Act
1975 applies as if the making of the request were the making of an
application to the Administrative Appeals Tribunal for a review of the
decision.
Hearing of review to be in private
(10) The hearing of a proceeding before the Administrative Appeals
Tribunal that relates to a decision referred to in subsection (7) is to
take place in private and the Tribunal may, by order:
(a) give directions as to the persons who may be present; and
(b) give directions of a kind referred to in paragraph 35(2)(b)
or (c) of the Administrative Appeals Tribunal Act
1975.
The Commissioner has the general administration of this Act.
After the end of each financial year, the Commissioner must give the
Treasurer a report on the working of this Act during the year for presentation
to the Parliament.
Definitions
(1) In this section:
court includes any tribunal, authority or person having power
to require the production of documents or the answering of questions.
person to whom this section applies means a person who is or
has been:
(a) the Commissioner, a Second Commissioner or a Deputy Commissioner;
or
(b) an officer or employee of the branch of the Australian Public Service
under the direct control of the Commissioner; or
(c) otherwise appointed or employed by, or a provider of services for, the
Commonwealth.
produce includes permit access to.
protected document means a document that:
(a) contains information about a person; and
(b) is obtained or made by a person to whom this section applies in the
course of, or because of, the person’s duties under or in relation to this
Act.
protected information means information that:
(a) concerns a person; and
(b) is disclosed to, or obtained by, a person to whom this section applies
in the course of, or because of, the person’s duties under or in relation
to this Act.
Information may be recorded or divulged only for purposes of
Act
(2) A person to whom this section applies must not:
(a) make a record of any protected information; or
(b) whether directly or indirectly, divulge or communicate to a person any
protected information about another person;
unless the record is made, or the information is divulged or
communicated:
(c) under or for the purposes of this Act; or
(d) in the performance of duties, as a person to whom this section
applies, under or in relation to this Act.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Information may be divulged to persons performing duties under Acts
administered by Commissioner
(3) Subsection (2) does not prohibit the Commissioner, a Second
Commissioner or a Deputy Commissioner, or a person authorised by the
Commissioner, a Second Commissioner or a Deputy Commissioner, from divulging or
communicating any protected information to a person performing, as a person to
whom this section applies, duties under or in relation to an Act of which the
Commissioner has the general administration, or under regulations made under
such an Act, for the purpose of enabling the person to perform the
duties.
Divulging of information to Minister
(4) A person divulges or communicates protected information to a person in
contravention of subsection (2) if the person divulges or communicates the
information to a Minister.
Court may not require information or documents
(5) A person to whom this section applies is not required:
(a) to divulge or communicate protected information to a court;
or
(b) to produce a protected document in court;
except where it is necessary to do so for the purpose of carrying into
effect the provisions of this Act.
Information may be divulged to persons performing duties under this
Act
(6) Nothing in this or any other Act of which the Commissioner has the
general administration prohibits the Commissioner, a Second Commissioner or a
Deputy Commissioner, or a person authorised by the Commissioner, a Second
Commissioner or a Deputy Commissioner, from divulging or communicating any
information to a person performing, as a person to whom this section applies,
duties under or in relation to this Act for the purpose of enabling the person
to perform the duties.
Information may be divulged to court for purposes of this
Act
(7) Nothing in this or any other Act of which the Commissioner has the
general administration prohibits the Commissioner, a Second Commissioner, a
Deputy Commissioner, or a person authorised by the Commissioner, a Second
Commissioner or a Deputy Commissioner, from:
(a) divulging or communicating to a court any information obtained under
or for the purposes of such an Act; or
(b) producing in court a document obtained or made under or for the
purposes of such an Act;
where it is necessary to do so for the purpose of carrying into effect the
provisions of this Act.
Information may be divulged to Insurance and Superannuation
Commissioner
(8) Nothing in this section prohibits the Commissioner, a Second
Commissioner or a Deputy Commissioner, or a person authorised by the
Commissioner, a Second Commissioner or a Deputy Commissioner, from divulging or
communicating any protected information to the Insurance and Superannuation
Commissioner, for the purpose of the administration of the Superannuation
Industry (Supervision) Act 1993.
Oath or declaration of secrecy
(9) A person to whom this section applies must, if and when required by
the Commissioner, a Second Commissioner or a Deputy Commissioner to do so, make
an oath or declaration, in a manner and form determined by the Commissioner in
writing, to maintain secrecy in accordance with this section.
Nothing in this Act makes the Commonwealth liable to pay any
amount.
This Act does not apply in any circumstance where its application would
or might result in a contravention of the Constitution.
When a superannuation provider makes a payment to the Commissioner of
surcharge or advance instalment on a member’s surchargeable contributions
for a financial year, the provider must give the Commissioner a statement
setting out:
(a) the member’s name, the address of the member’s place of
residence or place of business or employment, the date of the member’s
birth and, if given to the provider in connection with the operation or the
possible future operation of this Act, the member’s tax file number;
and
(b) in respect of a payment of surcharge—the amount of the
surchargeable contributions on which the surcharge is paid; and
(c) in respect of a payment of advance instalment—the amount of the
surchargeable contributions for the previous financial year on which the
instalment was calculated.
The Commissioner may, by writing, authorise a person who is an officer or
employee within the meaning of the Public Service Act 1922 to be an
authorised officer for the purposes of a provision or provisions of this
Act.
Assessment or determination to be evidence of correctness of
calculations
(1) The mere production of:
(a) an assessment or determination; or
(b) a document signed by the Commissioner, a Second Commissioner or a
Deputy Commissioner purporting to be a copy of an assessment or
determination;
is conclusive evidence of the due making of the assessment or determination
and, except in proceedings under Part IVC of the Taxation Administration
Act 1953 on a review or appeal relating to the assessment, that the amounts
and all of the particulars of the assessment or determination are
correct.
Copies of documents
(2) A document signed by the Commissioner, a Second Commissioner or a
Deputy Commissioner purporting to be a copy of a document issued or given by the
Commissioner, a Second Commissioner or a Deputy Commissioner is prima facie
evidence that the second-mentioned document was so issued or given.
Copies of, or extracts from, assessments or determinations
(3) A document signed by the Commissioner, a Second Commissioner or a
Deputy Commissioner purporting to be a copy of, or an extract from, an
assessment or determination is evidence of the matter set out in the document to
the same extent as the original assessment or determination, as the case may be,
would be if it were produced.
Certificates
(4) A certificate signed by the Commissioner, a Second Commissioner or a
Deputy Commissioner certifying that an amount stated in the certificate was, on
the day of the certificate, payable by a person as an amount of surcharge,
advance instalment, interest or late payment penalty, is prima facie evidence of
the matters stated in the certificate.
Powers of authorised officers
(1) For the purposes of this Act, an authorised officer:
(a) may, at any reasonable time, enter and remain on any land or premises;
and
(b) is entitled to full and free access at any reasonable time to all
documents; and
(c) may inspect, examine, make copies of, or take extracts from, any
documents.
Proof of authority to be produced
(2) An authorised officer is not entitled to enter or remain on any land
or premises if, on being requested by the occupier of the land or premises for
proof of authority, the officer does not produce a written authority signed by
the Commissioner stating that the officer is authorised to exercise powers under
this section.
Occupier to help authorised officer
(3) The occupier of land or premises entered or proposed to be entered by
an authorised officer under subsection (1) must, for the purpose of
enabling the effective exercise of the officer’s powers under this
section, provide the officer with all reasonable facilities and assistance that
the occupier is reasonably capable of providing.
Penalty: 10 penalty units.
Note: Chapter
2 of the Criminal Code sets out the general
principles of criminal responsibility.
Power of Commissioner to obtain information or documents
(1) The Commissioner may, for the purposes of this Act, by written notice,
require a person:
(a) to give to the Commissioner, within a reasonable period, and in a
reasonable manner, stated in the notice, any information that the Commissioner
requires; and
(b) to attend before the Commissioner, or an authorised officer, at a
reasonable time and place stated in the notice, and answer questions;
and
(c) to produce to the Commissioner, at a reasonable time and place stated
in the notice, any documents in the custody or under the control of the
person.
Power to require information on oath or affirmation
(2) The Commissioner may require the information or answers to be verified
or given on oath or affirmation, and either orally or in writing, and for that
purpose the Commissioner or an authorised officer may administer an oath or
affirmation.
Nature of oath or affirmation
(3) The oath to be taken or affirmation to be made by a person is an oath
or affirmation that the information or answers the person will give will be
true.
Expenses of attendance
(4) The regulations are to prescribe scales of expenses to be allowed to
persons required to attend under this section.
Superannuation provider to keep records
(1) A superannuation provider must keep records that record and explain
all transactions and other acts engaged in by the provider, or required to be
engaged in by the provider, under this Act.
How records to be kept
(2) The records must be kept:
(a) in writing in the English language or so as to enable the records to
be readily accessible and convertible into writing in the English language;
and
(b) so that the provider’s liability under this Act can be readily
worked out.
Period for retention of records
(3) A superannuation provider who has possession of any records kept or
obtained under or for the purposes of this Act must retain them until the end of
5 years after they were prepared or obtained, or the completion of the
transactions or acts to which those records relate, whichever is the
later.
When records need not be kept
(4) This section does not require a superannuation provider to retain
records if:
(a) the Commissioner has notified the provider that the retention of the
records is not required; or
(b) the provider is a company that has gone into liquidation and been
finally dissolved.
Offences
(5) A body corporate that contravenes this section is guilty of an offence
punishable on conviction by a fine of not more than 300 penalty units.
Note: Chapter
2 of the Criminal Code sets out the general
principles of criminal responsibility.
Chapter 2 of the Criminal Code applies to all offences against this
Act.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
In this Act, unless the contrary intention applies:
adjusted taxable income of a member for a financial year
means the sum of:
(a) the member’s taxable income of the year of income comprising the
financial year; and
(b) the member’s surchargeable contributions for that financial year
other than contributions that were included in that taxable income because they
were paid as eligible termination payments.
advance instalment has the meaning given by
section 11.
approved deposit fund has the same meaning as in
section 10 of the Superannuation Industry (Supervision) Act
1993.
annuity has the same meaning as in section 10 of the
Superannuation Industry (Supervision) Act 1993 and includes a deferred
annuity as defined in subsection 27A(1) of the Income Tax Assessment
Act.
assessment means an assessment of surcharge.
authorised officer means an officer or employee within the
meaning of the Public Service Act 1922 who has been authorised in writing
by the Commissioner for the purposes of the provision in which the expression
occurs.
Commissioner means the Commissioner of Taxation.
complying approved deposit fund has the meaning given by
section 47 of the Superannuation Industry (Supervision) Act
1993.
complying superannuation fund has the meaning given by
section 45 of the Superannuation Industry (Supervision) Act
1993.
contributed amounts has the meaning given by
paragraph 8(2)(a).
defined benefits superannuation scheme means:
(a) a public sector superannuation scheme that:
(i) is a regulated superannuation fund or an exempt public sector
superannuation scheme; and
(ii) has at least 1 defined benefit member; or
(b) a regulated superannuation fund (other than a public sector
superannuation scheme):
(i) that has at least 1 defined benefit member; and
(ii) some or all of the contributions to which are not allocated to any
individual member but are paid into and accumulated in a fund in the form of an
aggregate amount.
defined benefit member means a member entitled, on retirement
or termination of his or her employment, to be paid a benefit defined, wholly or
in part, by reference to either or both of the following:
(a) the amount of:
(i) the member’s salary at a particular date, being the date of the
termination of the member’s employment or of the member’s retirement
or an earlier date; or
(ii) the member’s salary averaged over a period before
retirement;
(b) a stated amount.
Deputy Commissioner means the Deputy Commissioner of
Taxation.
determination means a determination of advance
instalment.
eligible actuary means a Fellow or Accredited Member of the
Institute of Actuaries of Australia.
eligible termination payment has the same meaning as in
Subdivision AA of Division 2 of Part III of the Income Tax Assessment
Act.
exempt public sector superannuation scheme has the same
meaning as in section 10 of the Superannuation Industry (Supervision)
Act 1993.
funded defined benefits superannuation scheme means a defined
benefits superannuation scheme that is not an unfunded defined benefits
superannuation scheme.
holder of surchargeable contributions of a member
means:
(a) if the member is a member of an unfunded defined benefits
superannuation scheme and there are no contributed amounts paid for or by the
member—the relevant superannuation provider; or
(b) if there are any contributed amounts paid for or by the member that
are held by a superannuation provider—that superannuation provider;
or
(c) if there are any contributed amounts paid for or by the
member:
(i) that have been paid to a person other than a superannuation provider;
or
(ii) in respect of which a pension or annuity has begun to be
paid;
the person to whom the amounts were paid or the pension or annuity has
begun to be paid, as the case may be.
Income Tax Assessment Act means the Income Tax Assessment
Act 1936.
interest means interest payable under section 21
or 22.
late payment penalty means penalty payable under
section 25.
life assurance company has the same meaning as in
Division 8 of Part III of the Income Tax Assessment Act.
member means a member of a superannuation fund or of an
approved deposit fund and includes:
(a) the holder of an RSA; and
(b) the purchaser of an annuity from a life assurance company or from a
registered organisation.
notification date means:
(a) for the 1996-97 financial year—15 December 1997; or
(b) for a later financial year—31 October following the financial
year.
notional surchargeable contributions factor, for amounts paid
to a superannuation (defined benefits) provider during a financial year, means
the factor applying to the member for that year as certified by an eligible
actuary according to Australian actuarial practice.
public sector superannuation scheme means a scheme for the
payment of superannuation, retirement or death benefits, where the scheme is
established:
(a) by or under a law of the Commonwealth, a law of a State or a law of a
Territory; or
(b) under the authority of:
(i) the Commonwealth or the government of a State or Territory;
or
(ii) a municipal corporation, another local governing body or a public
authority constituted by or under a law of the Commonwealth, a law of a State or
a law of a Territory.
registered organisation has the same meaning as in
Division 8A of Part III of the Income Tax Assessment Act.
regulated superannuation fund has the same meaning as in the
Superannuation Industry (Supervision) Act 1993.
RSA has the same meaning as in the Retirement Savings
Accounts Act 1997.
RSA provider has the same meaning as in the Retirement
Savings Accounts Act 1997.
Second Commissioner means the Second Commissioner of
Taxation.
specified roll-over amount means an amount that is a
specified roll-over amount for the purposes of Division 8 or 8A of
Part III, or for the purposes of Part IX, of the Income Tax Assessment
Act.
superannuation (accumulated benefits) provider means a
superannuation provider that is not a superannuation (defined benefits)
provider.
superannuation contributions surcharge or surcharge
means the superannuation contributions surcharge imposed by the
Superannuation Contributions Surcharge (Imposition) Act 1997.
superannuation (defined benefits) provider means a
superannuation (funded defined benefits) provider or a superannuation (unfunded
defined benefits) provider.
superannuation fund means:
(a) a fund that:
(i) is an indefinitely continuing fund; and
(ii) is a provident, benefit, superannuation or retirement fund;
or
(b) a public sector superannuation scheme.
superannuation (funded defined benefits) provider means a
superannuation provider that is the trustee of a superannuation fund established
for the purposes of a funded defined benefits superannuation scheme.
superannuation provider means:
(a) the trustee of a superannuation fund or of an approved deposit fund;
or
(b) an RSA provider; or
(c) a life assurance company; or
(d) a registered organisation.
superannuation (unfunded defined benefits) provider means a
superannuation provider that is the trustee of a superannuation fund established
for the purposes of a superannuation scheme that is an unfunded defined benefits
superannuation scheme.
surcharge threshold has the meaning given by
section 9.
surchargeable contributions has the meaning given by
section 8.
taxable income of a member for a year of income means the
member’s taxable income of that year of income as assessed under the
Income Tax Assessment Act.
the 1996-97 financial year means the financial year starting
on 1 July 1996.
the 1997-98 financial year means the financial year starting
on 1 July 1997.
the 1998-99 financial year means the financial year starting
on 1 July 1998.
trustee, in relation to a superannuation fund,
means:
(a) if there is a trustee (within the ordinary meaning of that expression)
of the fund—the trustee; or
(b) otherwise—the person who manages the fund.
unfunded defined benefits superannuation scheme means a
defined benefits superannuation scheme under which all or some of the amounts
that will be required for the payment of benefits are not paid into the fund
established for the purposes of the scheme until the members become entitled to
receive the benefits.
year of income means a year of income for the purposes of the
Income Tax Assessment Act as that Act applies to individuals.