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This is a Bill, not an Act. For current law, see the Acts databases.


TEMPORARY RESIDENTS' SUPERANNUATION LEGISLATION AMENDMENT BILL 2008

2008
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Temporary Residents' Superannuation
Legislation Amendment Bill 2008
No. , 2008
(Treasury)
A Bill for an Act to amend legislation in relation to
temporary residents' superannuation, and for
related purposes
i Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. , 2008
Contents
1
Short title ............................................................................................ 1
2
Commencement .................................................................................. 1
3
Schedule(s) ......................................................................................... 2
Schedule 1--Amendme nts
3
Part 1--Superannuation (Unclaimed Money and Lost
Members) Act 1999
3
Part 2--Taxation Administration Act 1953
22
Part 3--Income Tax Assessment Act 1997
23
Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. , 2008 1
A Bill for an Act to amend legislation in relation to
1
temporary residents' superannuation, and for
2
related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Temporary Residents'
6
Superannuation Legislation Amendment Act 2008.
7
2 Commence ment
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
13
2 Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. ,
2008
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day on which this Act receives the
Royal Assent.
2. Schedule 1
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence with in the period of 6 months
beginning on the day on which this Act
receives the Royal Assent, they commence
on the first day after the end of that period.
Note:
This table relates only to the provisions of this Act as originally
1
passed by both Houses of the Parliament and assented to. It will not be
2
expanded to deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Amend ments Schedule 1
Superannuation (Unclaimed Money and Lost Members) Act 1999 Part 1
Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. , 2008
3
1
Schedule 1
--
Amendments
2
Part 1
--
Superannuation (Unclaimed Money and Lost
3
Members) Act 1999
4
1 Title
5
Omit "and a register of lost members for superannuation funds ",
6
substitute ", a register of lost members for superannuation funds
7
and certain payments relating to superannuation".
8
2 After paragraph 6(c)
9
Insert:
10
(ca) the making of certain payments relating to superannuation of
11
persons who used to be holders of temporary visas under the
12
Migration Act 1958 and have left Australia; and
13
3 After paragraph 6(e)
14
Insert:
15
(ea) the safe-keeping of certain amounts relating to
16
superannuation of persons who used to be holders of
17
temporary visas under the Migration Act 1958 and have left
18
Australia; and
19
4 Section 7
20
After:
21
The Commissioner of Taxation may publish, or make available,
22
details relating to unclaimed money in respect of members who
23
have reached the eligibility age or who have died.
24
Insert:
25
Superannuation of persons who used to hold temporary visas
26
The Commissioner of Taxation must give the superannuation
27
provider for a fund a notice identifying a member of the fund if
28
satisfied that the member used to be the holder of a temporary visa,
29
Schedule 1 A mendments
Part 1 Superannuation (Unclaimed Money and Lost Members) Act 1999
4 Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. ,
2008
has left Australia and is not an Australian or New Zealand citizen
1
or the holder of a visa.
2
The superannuation provider must give the Commissioner a
3
statement and pay the Commissioner the amount that would be
4
payable to the member if the member had requested payment in
5
connection with leaving Australia (subject to reductions for
6
amounts paid or payable from the fund in respect of the member).
7
If the Commissioner is satisfied he or she has received a payment
8
under this Act for such a member, the Commissioner must pay the
9
amount he or she has received to the member, to a fund identified
10
by the member or, if the member has died, to the member's legal
11
personal representative.
12
5 Section 8 (definition of approved form)
13
Repeal the definition, substitute:
14
approved form has the meaning given by section 388-50 in
15
Schedule 1 to the Taxation Administration Act 1953.
16
6 Section 8
17
Insert:
18
engage in conduct means:
19
(a) do an act; or
20
(b) omit to perform an act.
21
7 Section 8
22
Insert:
23
general interest charge means the charge worked out under
24
Part IIA of the Taxation Administration Act 1953.
25
8 Section 8
26
Insert:
27
leave Australia has the same meaning as in the Migration Act
28
1958.
29
9 Section 8
30
Amend ments Schedule 1
Superannuation (Unclaimed Money and Lost Members) Act 1999 Part 1
Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. , 2008
5
Insert:
1
legal personal representative of a person who has died means an
2
executor or administrator of the person's estate.
3
10 Section 8
4
Insert:
5
scheduled statement day has the meaning given by section 20B.
6
11 Section 8
7
Insert:
8
superannuation interest means:
9
(a) an interest in a superannuation fund; or
10
(b) an interest in an approved deposit fund; or
11
(c) an RSA.
12
12 Section 8
13
Insert:
14
terminal medical condition has the same meaning as in the Income
15
Tax Assessment Act 1997.
16
13 At the end of section 16
17
Add:
18
(7) Subsection (1) does not apply to unclaimed money described in
19
subsection 12(1) payable to a person identified in a notice the
20
Commissioner has given the superannuation provider under
21
section 20C.
22
Note:
Section 20E requires the superannuation provider to give the
23
Commissioner a statement about the superannuation interest of a
24
person identified in a notice given to the provider under section 20C
25
(which is about notices identifying former holders of temporary visas).
26
14 At the end of subsection 17(1)
27
Add:
28
Note:
Subsection (1) does not require the superannuation provider to pay the
29
Commissioner an amount on account of unclaimed money described
30
in subsection 12(1) payable to a person identified in a notice the
31
Commissioner has given the provider under section 20C, because such
32
Schedule 1 A mendments
Part 1 Superannuation (Unclaimed Money and Lost Members) Act 1999
6 Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. ,
2008
money is not to be included in the statement under section 16 (and is
1
payable to the Commissioner under section 20F).
2
15 After subsection 17(2)
3
Insert:
4
(2A) Subsection (2) does not apply to unclaimed money that is to be, is
5
or has been taken into account in determining whether the
6
Commissioner must make a payment under section 20H.
7
Note:
Section 20H provides for payment by the Commissioner of amounts
8
equal to amounts paid to the Commissioner under this section and
9
subsection 20F(1) in respect of a person who is identified in a notice
10
under section 20C or who used to be the holder of a temporary visa.
11
16 After Part 3
12
Insert:
13
Part 3A--Payment of unclaimed superannuation of
14
former temporary residents
15
Division 1--Preliminary
16
20A Simplified outline
17
The following is a simplified outline of this Part:
18
The Commissioner must give the superannuation provider for a
19
fund a notice if the Commissioner is satisfied that:
20
(a) a person who used to be the holder of a temporary
21
visa has a superannuation interest in the fund; and
22
(b) at least 6 months have passed since the person
23
ceased to hold the visa and left Australia; and
24
(c) the person does not hold a visa and is not a citizen.
25
If the Commissioner gives such a notice, the superannuation
26
provider must, by the next date set for the purpose by the
27
Commissioner:
28
Amend ments Schedule 1
Superannuation (Unclaimed Money and Lost Members) Act 1999 Part 1
Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. , 2008
7
(a) give the Commissioner a statement about the
1
interest; and
2
(b) pay the Commissioner the amount that would have
3
been payable from the fund to the person if the
4
person had requested payment in connection with
5
his or her departure from Australia, reduced by
6
amounts already payable in respect of the person.
7
On payment, the superannuation provider ceases to be liable for the
8
amount paid.
9
The person can claim the amount from the Commissioner.
10
20B Setting dates for statements and payme nts
11
The Commissioner may, by legislative instrument, specify days
12
(scheduled statement days) by the end of which statements
13
required by this Part are to be given to the Commissioner.
14
Division 2--Notices to superannuation providers about
15
certain persons
16
20C Commissioner must give notices about certain forme r
17
temporary residents
18
(1) The Commissioner must give a superannuation provider for a fund
19
a written notice if the Commissioner is satisfied that:
20
(a) there are reasonable grounds for believing that a particular
21
person has a superannuation interest in the fund; and
22
(b) before, on or after the commencement of this section, the
23
person:
24
(i) was, under the Migration Act 1958, the holder of a
25
temporary visa, except a visa prescribed by the
26
regulations, that has ceased to be in effect; and
27
(ii) left Australia after starting to be the holder of the visa
28
(whether the visa ceased to be in effect before, when or
29
after the person left); and
30
(c) at least 6 months have passed since the later of the following
31
events (or either of them if they occurred at the same time):
32
Schedule 1 A mendments
Part 1 Superannuation (Unclaimed Money and Lost Members) Act 1999
8 Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. ,
2008
(i) the visa ceased to be in effect;
1
(ii) the person left Australia; and
2
(d) the person:
3
(i) is not, under that Act, the holder of a temporary visa or
4
permanent visa; and
5
(ii) is neither an Australian citizen nor a New Zealand
6
citizen; and
7
(iii) has not made a valid application for a permanent visa
8
that has not been finally determined under that Act.
9
(2) The notice must:
10
(a) identify the person; and
11
(b) include the information (if any) prescribed by the regulations
12
for the purposes of this paragraph.
13
Note:
The notice may contain the tax file number of the person and of the
14
fund: see section 25A.
15
(3) Subsection (1) does not apply to:
16
(a) a superannuation provider who is the trustee of a State or
17
Territory public sector superannuation scheme within the
18
meaning of section 18; or
19
(b) a superannuation provider for an unfunded public sector
20
scheme within the meaning of the Superannuation Guarantee
21
(Administration) Act 1992.
22
(4) A notice under subsection (1) cannot be amended.
23
Note:
Section 20J deals with revocation of a notice given under this section.
24
(5) A notice under subsection (1) is not a legislative instrument.
25
Division 3--Effects of notice being given to superannuation
26
provider
27
20D Application
28
This Division applies if the Commissioner gives a superannuation
29
provider for a fund a notice under section 20C in connection with a
30
person's superannuation interest in the fund.
31
Amend ments Schedule 1
Superannuation (Unclaimed Money and Lost Members) Act 1999 Part 1
Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. , 2008
9
20E Supe rannuation provide r must give statement to Commissioner
1
by scheduled statement day
2
Giving statement to Commissioner
3
(1) The superannuation provider must give the Commissioner a
4
statement, in the approved form, of information relevant to either
5
or both of the following:
6
(a) the person's superannuation interest in the fund;
7
(b) the administration of any of the following in connection with
8
the person's superannuation interest in the fund:
9
(i) this Part;
10
(ii) the Superannuation (Departing Australia
11
Superannuation Payments Tax) Act 2007;
12
(iii) the Income Tax Assessment Act 1997, and Chapters 2
13
and 4 in Schedule 1 to the Taxation Administration Act
14
1953, so far as they relate to this Part or the
15
Superannuation (Departing Australia Superannuation
16
Payments Tax) Act 2007.
17
Note 1:
The Taxation Administration Act 1953 provides for offences and
18
administrative penalties if the statement includes false or misleading
19
information: see sections 8K and 8N of that Act and Division 284 in
20
Schedule 1 to that Act.
21
Note 2:
The approved form may also require the statement to include certain
22
tax file numbers: see subsection 25(2A).
23
When statement must be given
24
(2) The superannuation provider must give the Commissioner the
25
statement by the end of:
26
(a) the next scheduled statement day after the notice is given; or
27
(b) if the Commissioner gives the notice less than 28 days before
28
the next scheduled statement day--the following scheduled
29
statement day.
30
Example: Suppose that 1 May and 1 November each year are the scheduled
31
statement days, and that the Commissioner gives the notice to the
32
superannuation provider on 15 April in a year. The superannuation
33
provider must give the Commissioner the statement by the end of
34
1 November that year (rather than 1 May that year).
35
Note 1:
The Commissioner may defer the time for giving the statement: see
36
section 388-55 in Schedule 1 to the Taxation Administration Act 1953.
37
Schedule 1 A mendments
Part 1 Superannuation (Unclaimed Money and Lost Members) Act 1999
10 Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. ,
2008
Note 2:
The Taxation Administration Act 1953 provides for offences and
1
administrative penalties if the statement is not given when it must be:
2
see section 8C of that Act and Division 286 in Schedule 1 to that Act.
3
Statement required even if person does not have interest
4
(3) The superannuation provider must give the Commissioner the
5
statement even if:
6
(a) the person does not have a superannuation interest when the
7
superannuation provider must give the statement; or
8
(b) the superannuation provider is not required by subsection
9
20F(1) to pay the Commissioner an amount in respect of the
10
person.
11
20F Supe rannuation provide r must pay Commissioner unclaimed
12
superannuation by scheduled stateme nt day
13
(1) The superannuation provider must pay the Commissioner (for the
14
Commonwealth) the excess (if any) of the amount worked out
15
under subsection (2) for the person's superannuation interest over
16
the total worked out under subsection (3) for the interest by the
17
time at which the excess is due and payable. The excess is due and
18
payable at the end of:
19
(a) the next scheduled statement day after the notice is given; or
20
(b) if the Commissioner gives the notice less than 28 days before
21
the next scheduled statement day--the following scheduled
22
statement day.
23
Note 1:
The amount the superannuation provider must pay the Commissioner
24
is a tax-related liability for the purposes of the Taxation
25
Administration Act 1953. Division 255 in Schedule 1 to that Act deals
26
with payment and recovery of tax-related liabilities. Division 284 in
27
that Schedule provides for administrative penalties connected with
28
such liabilities.
29
Note 2:
The Commissioner may defer the time at which the excess is due and
30
payable: see section 255-10 in Schedule 1 to the Taxation
31
Administration Act 1953.
32
Note 3:
Section 20K provides for refunds of overpayments by the
33
superannuation provider to the Commissioner.
34
(2) Work out the amount that would have been payable to the person
35
from the fund in respect of the superannuation interest had the
36
person requested payment in connection with the person's
37
departure from Australia. For this purpose:
38
Amend ments Schedule 1
Superannuation (Unclaimed Money and Lost Members) Act 1999 Part 1
Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. , 2008
11
(a) work out the amount that would have been payable at the
1
time (the calculation time) immediately before:
2
(i) the time at which a payment under subsection (1) in
3
respect of the person is due and payable (assuming that
4
such a payment must be made); or
5
(ii) for a payment to be made under subsection (1) before it
6
is due and payable--the time the payment is to be made;
7
and
8
(b) assume that the request were made before the calculation
9
time; and
10
(c) assume that the person had not died before the calculation
11
time.
12
(3) Total:
13
(a) the amount (if any) that is payable from the fund because
14
regulations made for the purposes of the RSA Act or the SIS
15
Act require or permit a benefit connected with the person's
16
superannuation interest to be cashed; and
17
(b) if the person has actually died, the amount (if any) that has
18
been paid from the fund in respect of the person because of
19
the person's death; and
20
(c) the amount (if any) of the person's superannuation interest
21
that supports a superannuation income stream (within the
22
meaning of regulations made for the purposes of the Income
23
Tax Assessment Act 1997); and
24
(d) the amount (if any) worked out in accordance with the
25
regulations made for the purposes of this paragraph.
26
Work out the amounts described in paragraphs (a), (b), (c) and (d)
27
as at the calculation time.
28
(4) For the purposes of subsections (2) and (3):
29
(a) disregard Subdivision 12-FA in Schedule 1 to the Taxation
30
Administration Act 1953; and
31
(b) take account only of the person's entitlement to payment
32
remaining after any reduction by a payment split under
33
Part VIIIB of the Family Law Act 1975 (disregarding
34
subsection 90MB(3) of that Act).
35
Note 1:
Subdivision 12-FA in Schedule 1 to the Taxation Administration Act
36
1953 is about withholding amounts from departing Australia
37
superannuation payments.
38
Schedule 1 A mendments
Part 1 Superannuation (Unclaimed Money and Lost Members) Act 1999
12 Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. ,
2008
Note 2:
Part VIIIB of the Family Law Act 1975 is about splitting amounts
1
payable in respect of a superannuation interest between the parties to a
2
marriage. Subsection 90MB(3) of that Act provides that the Part has
3
effect subject to this Act.
4
General interest charge on late payment
5
(5) If any of the amount the superannuation provider must pay under
6
subsection (1) remains unpaid after it is due and payable, the
7
superannuation provider is liable to pay general interest charge on
8
the unpaid amount for each day in the period that:
9
(a) starts at the time it is due and payable; and
10
(b) ends at the end of the last day on which either of the
11
following remains unpaid:
12
(i) the amount unpaid when it is due and payable;
13
(ii) general interest charge on any of the amount.
14
Offence of failing to pay on time
15
(6) A person commits an offence if:
16
(a) the person is subject to a requirement under subsection (1);
17
and
18
(b) the person engages in conduct; and
19
(c) the person's conduct breaches the requirement.
20
Penalty: 100 penalty units.
21
20G Effect of payment by superannuation provider
22
On payment of an amount to the Commissioner as required by
23
subsection 20F(1), the superannuation provider is discharged from
24
further liability to the person, and to anyone else in respect of the
25
person, in respect of that amount.
26
Division 4--Payment by Commissioner
27
20H Payme nt by Commissione r in respect of person for whom an
28
amount has been paid to Commissioner
29
(1) This section applies in relation to a person if the Commissioner is
30
satisfied, on application in the approved form or on the
31
Commissioner's own initiative, that:
32
Amend ments Schedule 1
Superannuation (Unclaimed Money and Lost Members) Act 1999 Part 1
Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. , 2008
13
(a) either:
1
(i) the person has been identified in a notice under
2
section 20C; or
3
(ii) the person was, under the Migration Act 1958, the
4
holder of a temporary visa, except a visa prescribed by
5
the regulations, that ceased to be in effect at least 6
6
months ago, and the person left Australia at least 6
7
months ago but after starting to be the holder of the
8
visa; and
9
(b) the total of:
10
(i) the amounts (if any) paid to the Commissioner under
11
subsection 17(1) (before, on or after the commencement
12
of this section) in respect of the person; and
13
(ii) the amounts (if any) paid to the Commissioner under
14
subsection 20F(1) in respect of the person;
15
exceeds the total of:
16
(iii) the amounts (if any) paid by the Commissioner under
17
section 17 (before, on or after the commencement of
18
this section) in respect of the person; and
19
(iv) the amounts (if any) paid by the Commissioner under all
20
the earlier operations (if any) of this section in respect
21
of the person; and
22
(v) the amounts (if any) paid by the Commissioner under
23
section 20K in respect of the person.
24
(2) The Commissioner must pay the excess:
25
(a) to the person; or
26
(b) to a single fund that is a complying superannuation plan
27
(within the meaning of the Income Tax Assessment Act
28
1997), if the person directs the Commissioner to pay to the
29
fund and the Commissioner is satisfied that the person is:
30
(i) an Australian citizen; or
31
(ii) a New Zealand citizen; or
32
(iii) under the Migration Act 1958, the holder of a permanent
33
visa or a visa prescribed by the regulations; or
34
(c) to the person's legal personal representative, if the person has
35
died.
36
(3) However, if the person has died and the Commissioner is satisfied
37
that one or more superannuation providers that made any of the
38
Schedule 1 A mendments
Part 1 Superannuation (Unclaimed Money and Lost Members) Act 1999
14 Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. ,
2008
payments described in subparagraphs (1)(b)(i) and (ii) would, if
1
they had not made those payments, have been required because of
2
the person's death to pay an amount to one or more other persons
3
(the death beneficiaries), the Commissioner must pay each death
4
beneficiary:
5
(a) the total of the amounts the Commissioner is satisfied the
6
superannuation providers would have been required to pay
7
the death beneficiary; or
8
(b) if the excess is less than the sum of the totals described in
9
paragraph (a) for all the death beneficiaries--the amount
10
worked out for the death beneficiary using the formula in
11
subsection (4).
12
Note:
Money for payments under this section is appropriated by section 16
13
of the Taxation Administration Act 1953.
14
(4) The formula is:
15
Total described in paragraph (3)(a) for the death beneficiary
Excess
Sum of the totals described in paragraph (3)(a)
for all the death beneficiaries
16
Withholding tax from payment
17
(5) For the purposes of subparagraph (1)(b)(iv), an amount withheld
18
under Division 12 in Schedule 1 to the Taxation Administration Act
19
1953 from a payment under this section is taken to have been paid
20
by the Commissioner.
21
(6) To avoid doubt, subsection (2) has effect subject to Division 12 in
22
Schedule 1 to the Taxation Administration Act 1953.
23
Note:
Division 12 in Schedule 1 to the Taxation Administration Act 1953
24
requires entities paying departing Australia superannuation payments
25
and excess untaxed roll-over amounts to withhold amounts from those
26
payments.
27
Amend ments Schedule 1
Superannuation (Unclaimed Money and Lost Members) Act 1999 Part 1
Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. , 2008
15
Division 5--Various rules for special cases
1
20J Revoking Commissioner's notice to supe rannuation provide r
2
about person
3
Requirement for revocation
4
(1) The Commissioner must revoke a notice given to a superannuation
5
provider about a person under section 20C if the Commissioner is
6
satisfied that either:
7
(a) the circumstances for giving the notice did not exist; or
8
(b) the circumstances for giving a notice about the person to the
9
superannuation provider under that section no longer exist.
10
Means of revocation
11
(2) The revocation must be made by written notice given to the
12
superannuation provider.
13
Effect of revocation
14
(3) If the Commissioner revokes a notice given to a superannuation
15
provider about a person under section 20C, this Act has effect as if
16
the notice had never been given.
17
No revocation if payment already made
18
(4) However, the revocation of a notice given to a superannuation
19
provider about a person under section 20C has no effect if a
20
condition in subsection (5) or (6) exists.
21
(5) One condition is that, before the revocation, the superannuation
22
provider has made a payment to the Commissioner under
23
subsection 20F(1) because of the notice.
24
(6) The other condition is that:
25
(a) notice of the revocation is given to the superannuation
26
provider less than 28 days before the scheduled statement day
27
by the end of which an amount would be due and payable
28
under subsection 20F(1) because of the notice under
29
section 20C, apart from:
30
(i) the revocation; and
31
Schedule 1 A mendments
Part 1 Superannuation (Unclaimed Money and Lost Members) Act 1999
16 Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. ,
2008
(ii) any deferral under section 255-10 in Schedule 1 to the
1
Taxation Administration Act 1953; and
2
(b) before the end of that day, the superannuation provider:
3
(i) gives the Commissioner a statement purportedly under
4
section 20E because of the notice under section 20C; or
5
(ii) pays the Commissioner an amount purportedly under
6
subsection 20F(1) because of the notice under
7
section 20C.
8
(7) Subsection (1) does not require the Commissioner to revoke a
9
notice under section 20C if the revocation would not have effect
10
because of subsection (4) of this section.
11
20K Refund of overpayment made by superannuation provider
12
(1) This section applies if:
13
(a) a superannuation provider has made a payment under
14
subsection 20F(1) because of a notice about a person and a
15
fund; and
16
(b) the Commissioner is satisfied that the amount paid exceeded
17
the amount (if any) that was payable under that subsection
18
because of the notice.
19
(2) The Commissioner must pay the excess:
20
(a) to the superannuation provider for the fund; or
21
(b) if the Commissioner is satisfied that:
22
(i) the fund no longer exists; and
23
(ii) another fund provides rights relating to the person
24
equivalent to those provided by the fund whose
25
superannuation provider made the payment under
26
subsection 20F(1);
27
to the superannuation provider for the other fund.
28
Note:
Money for payments under this section is appropriated by section 16
29
of the Taxation Administration Act 1953.
30
20L Commissioner may recover overpayme nt under section 20H
31
(1) This section applies if:
32
(a) the Commissioner makes a payment in respect of a person
33
under, or purportedly under, section 20H; and
34
Amend ments Schedule 1
Superannuation (Unclaimed Money and Lost Members) Act 1999 Part 1
Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. , 2008
17
(b) the amount paid exceeds the amount (if any) properly
1
payable under that section in respect of the person.
2
(2) The Commissioner may recover all or part of the excess from a
3
person (the debtor) described in subsection (3) as a debt due by the
4
debtor to the Commonwealth if the conditions specified in
5
subsection (4) are met.
6
(3) The persons from whom the Commissioner may recover are as
7
follows:
8
(a) the person to whom the payment was made (whether the
9
payment was made to the person in his or her own right or as
10
the legal personal representative of someone else who had
11
died);
12
(b) the superannuation provider for the fund to which the
13
payment was made or, if that payment, or an amount wholly
14
or partly attributable to that payment, was transferred to
15
another fund, the superannuation provider for that other fund.
16
(4) The conditions for recovery are that:
17
(a) the Commissioner gave the debtor written notice, as
18
prescribed by the regulations, of the proposed recovery and
19
the amount to be recovered; and
20
(b) at least 28 days have passed since the notice was given; and
21
(c) the amount recovered is not more than the amount specified
22
in the notice.
23
(5) Despite subsections (2) and (3), if the Commissioner gives a notice
24
described in paragraph (4)(a) to a superannuation provider for a
25
fund, and the fund does not hold an amount attributable to the
26
payment, the Commissioner cannot recover from the
27
superannuation provider.
28
(6) The Commissioner may revoke a notice described in
29
paragraph (4)(a).
30
(7) The total of the amounts recovered from different debtors in
31
relation to the same excess must not be more than the excess.
32
(8) A notice described in paragraph (4)(a) is not a legislative
33
instrument.
34
Schedule 1 A mendments
Part 1 Superannuation (Unclaimed Money and Lost Members) Act 1999
18 Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. ,
2008
20M Superannuation provider to return payment from
1
Commissioner that cannot be credited
2
(1) This section applies if:
3
(a) a payment (the Commissioner's payment) is made to a fund
4
under section 20H in accordance with a person's direction;
5
and
6
(b) the superannuation provider for the fund has not credited the
7
payment to an account for the benefit of the person by the
8
time (the repayment time) that is the end of the 28th day after
9
the day on which the Commissioner's payment was made.
10
(2) The superannuation provider is liable to repay the Commissioner's
11
payment to the Commonwealth. The repayment is due and payable
12
at the repayment time.
13
Note:
The amount the superannuation provider is liable to repay is a
14
tax-related liability for the purposes of the Taxation Administration
15
Act 1953. Division 255 in Schedule 1 to that Act deals with payment
16
and recovery of tax-related liabilities.
17
(3) The superannuation provider must give the Commissioner, in the
18
approved form, information relating to the Commissioner's
19
payment when repaying it.
20
Note:
The Taxation Administration Act 1953 provides for offences and
21
administrative penalties if the form is not given when it must be or
22
includes false or misleading information: see sections 8C, 8K and 8N
23
of that Act and Divisions 284 and 286 in Schedule 1 to that Act.
24
General interest charge
25
(4) If any of the amount the superannuation provider is liable to repay
26
under subsection (2) remains unpaid by the superannuation
27
provider after the repayment time, the superannuation provider is
28
liable to pay general interest charge on the unpaid amount for each
29
day in the period that:
30
(a) starts at the repayment time; and
31
(b) ends at the end of the last day on which either of the
32
following remains unpaid:
33
(i) the amount unpaid at the repayment time;
34
(ii) general interest charge on any of the amount.
35
Amend ments Schedule 1
Superannuation (Unclaimed Money and Lost Members) Act 1999 Part 1
Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. , 2008
19
Division 6--Administration
1
20N Disclosure of migration and citizenship information
2
(1) A person described in subsection (2) may disclose to the
3
Commissioner, for the purposes of facilitating the administration of
4
the legislation described in subsection (3), information described in
5
subsection (4).
6
Note:
The administration of the legislation may involve the Commissioner
7
in disclosing the information, for example in a notice given under
8
section 20C to a superannuation provider.
9
(2) The persons who may disclose are:
10
(a) the Secretary of a Department administered by a Minister
11
administering a provision of the Migration Act 1958 or of the
12
Australian Citizenship Act 2007; and
13
(b) an APS employee in such a Department.
14
(3) The legislation is:
15
(a) this Act; and
16
(b) the Superannuation (Departing Australia Superannuation
17
Payments Tax) Act 2007; and
18
(c) the Income Tax Assessment Act 1997, and Chapters 2 and 4
19
in Schedule 1 to the Taxation Administration Act 1953, so far
20
as they relate to this Act or the Superannuation (Departing
21
Australia Superannuation Payments Tax) Act 2007.
22
(4) The information is information relevant to any of the following
23
matters:
24
(a) whether or not a particular person is or was the holder of a
25
particular kind of visa under the Migration Act 1958 at a
26
particular time or in a particular period;
27
(b) whether or not a particular person is or was an Australian
28
citizen at a particular time or in a particular period;
29
(c) whether or not a particular person is or was a New Zealand
30
citizen at a particular time or in a particular period;
31
(d) whether or not a particular person left Australia at a
32
particular time or in a particular period;
33
(e) whether or not there was, at a particular time or in a
34
particular period, a valid application by a particular person
35
Schedule 1 A mendments
Part 1 Superannuation (Unclaimed Money and Lost Members) Act 1999
20 Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. ,
2008
for a permanent visa that had not been finally determined
1
under the Migration Act 1958;
2
(f) confirmation, by reference to any employment of, or work
3
done by, a person, that he or she is the same person as a
4
particular person who is or was the holder of a temporary
5
visa under the Migration Act 1958 at a particular time or in a
6
particular period.
7
20P Review of Commissione r's notices and decisions
8
A person who is dissatisfied with a notice given, or a decision
9
made, by the Commissioner in the administration of Division 2, 4
10
or 5 of this Part may object against the notice or decision in the
11
manner set out in Part IVC of the Taxation Administration Act
12
1953.
13
Example: Decisions made by the Commissioner in the administration of
14
Divisions 4 and 5 include:
15
(a)
decisions that the conditions exist for him or her to make a
16
payment under section 20H, revoke (under section 20J) a notice
17
given under section 20C or make a refund under section 20K;
18
and
19
(b)
refusal of an application mentioned in section 20H; and
20
(c)
decisions about recovery under section 20L of an overpayment
21
under section 20H.
22
17 After subsection 25(2)
23
Insert:
24
Statement about unclaimed superannuation of former temporary
25
visa holder
26
(2A) The approved form of statement by a superannuation provider for
27
the purposes of subsection 20E(1) relating to a person's
28
superannuation interest may require the statement to contain the
29
tax file number of:
30
(a) the superannuation provider; and
31
(b) the fund; and
32
(c) the person, if:
33
(i) the person has quoted his or her tax file number to the
34
superannuation provider; or
35
Amend ments Schedule 1
Superannuation (Unclaimed Money and Lost Members) Act 1999 Part 1
Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. , 2008
21
(ii) the Commissioner has given the superannuation
1
provider the person's tax file number in a notice about
2
the person under section 20C.
3
18 After section 25
4
Insert:
5
25A Notices under section 20C may include tax file numbers
6
A notice the Commissioner gives under section 20C about a person
7
and his or her superannuation interest in a fund may include the tax
8
file number of the person and the tax file number of the fund.
9
19 Subsection 29(1)
10
Omit "either", substitute "any".
11
20 After paragraph 29(1)(a)
12
Insert:
13
(aa) a person making an application mentioned in subsection
14
20H(1) (about payment by the Commissioner);
15
21 At the end of subsection 29(4)
16
Add "or prevent a payment from being made under section 20H".
17
22 Section 49
18
Repeal the section, substitute:
19
49 Money paid to Commissioner not held on trust
20
To avoid doubt, money paid under this Act to the Commissioner is
21
not, and has never been:
22
(a) held on trust; or
23
(b) special public money for the purposes of section 16 of the
24
Financial Management and Accountability Act 1997.
25
26
Schedule 1 A mendments
Part 2 Taxation Administration Act 1953
22 Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. ,
2008
1
Part 2
--
Taxation Administration Act 1953
2
23 Subsection 8AAB(5) (after table item 13A)
3
Insert:
4
13B
20F
Superannuation (Unclaimed Money and Lost
Members) Act 1999
13C
20M
Superannuation (Unclaimed Money and Lost
Members) Act 1999
24 After paragraph 14ZW(1)(bc)
5
Insert:
6
(bd) if the taxation objection is made under section 20P of the
7
Superannuation (Unclaimed Money and Lost Members) Act
8
1999 against a notice given to a superannuation provider
9
under section 20C of that Act and the person is not the
10
superannuation provider--2 years after the notice was given
11
to the superannuation provider; or
12
(be) if the taxation objection is made under section 20P of the
13
Superannuation (Unclaimed Money and Lost Members) Act
14
1999 against a decision under Division 4 or 5 of Part 3A of
15
that Act and the person is not a superannuation provider (as
16
defined in that Act)--2 years after the person was given
17
notice of the decision; or
18
25 Subsection 250-10(2) in Schedule 1 (after table item 67)
19
Insert:
20
68
payment in respect of a
superannuation interest
to the Commissioner
section 20F
Superannuation (Unclaimed
Money and Lost Members) Act
1999
69
repayment of
Co mmissioner's
payment
section 20M
Superannuation (Unclaimed
Money and Lost Members) Act
1999
26 Subsection 284-80(1) in Schedule 1 (table item 1)
21
After "importation,", insert "or under the Superannuation (Unclaimed
22
Money and Lost Members) Act 1999,".
23
24
Amend ments Schedule 1
Income Tax Assessment Act 1997 Part 3
Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. , 2008
23
1
Part 3
--
Income Tax Assessment Act 1997
2
27 After subsection 295-190(1)
3
Insert:
4
(1A) Item 2 of the table in subsection (1) does not apply to a
*
roll-over
5
superannuation benefit that is a
*
departing Australia
6
superannuation payment made under section 20H of the
7
Superannuation (Unclaimed Money and Lost Members) Act 1999.
8
28 Section 301-170
9
Before "A", insert "(1)".
10
29 Section 301-170
11
Omit "departing Australia superannuation payment is a
12
*
superannuation lump sum that:", substitute "
*
superannuation lump sum
13
is a departing Australia superannuation payment if it:".
14
30 At the end of section 301-170
15
Add:
16
(2) Also, a
*
superannuation lump sum is a departing Australia
17
superannuation payment if it is paid under section 20H of the
18
Superannuation (Unclaimed Money and Lost Members) Act 1999.
19
(3) Despite subsection (2), a
*
superannuation lump sum paid under
20
section 20H of the Superannuation (Unclaimed Money and Lost
21
Members) Act 1999 because a person has been identified in a
22
notice under section 20C of that Act is not a departing Australia
23
superannuation payment if, when it is paid, the Commissioner is
24
satisfied that:
25
(a) the person has not been, under the Migration Act 1958, the
26
holder of a temporary visa that ceased to be in effect at least
27
6 months ago; or
28
(b) the person has been the holder of such a visa but has not left
29
Australia (within the meaning of that Act) at least 6 months
30
ago but after starting to be the holder of the visa.
31
(4) Despite subsection (2), a
*
superannuation lump sum that is paid
32
under section 20H of the Superannuation (Unclaimed Money and
33
Schedule 1 A mendments
Part 3 Inco me Tax Assessment Act 1997
24 Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. ,
2008
Lost Members) Act 1999 and is prescribed by the regulations for
1
the purposes of this subsection is not a departing Australia
2
superannuation payment.
3
31 Subsection 307-5(1) (table item 5, column 2)
4
After "18", insert ", subsection 20F(1) or section 20H".
5
32 Subsection 307-5(1) (table item 5, column 3)
6
Omit "or 18", substitute ", 18 or 20H".
7
33 Paragraph 307-120(2)(a)
8
Omit "or (d)", substitute ", (d) or (e)".
9
34 At the end of subsection 307-120(2)
10
Add:
11
; or (e) if the benefit is a payment under section 20H of the
12
Superannuation (Unclaimed Money and Lost Members) Act
13
1999--section 307-142.
14
35 After section 307-140
15
Insert:
16
307-142 Components of payments unde r section 20H of the
17
Superannuation (Unclaimed Money and Lost Members) Act
18
1999
19
(1) This section explains how to work out the
*
tax free component, and
20
the
*
taxable component, of a
*
superannuation benefit that is a
21
payment under section 20H of the Superannuation (Unclaimed
22
Money and Lost Members) Act 1999 in respect of a person.
23
(2) The
*
tax free component is so much of the payment as is
24
attributable to so much of the amounts paid to the Commissioner
25
under subsection 17(1) or 20F(1) of that Act in respect of the
26
person as would, if those amounts had instead been paid to the
27
person as
*
superannuation benefits, have been the tax free
28
components of those superannuation benefits.
29
(3) The
*
taxable component is so much of the payment as is
30
attributable to so much of the amounts paid to the Commissioner
31
under subsection 17(1) or 20F(1) of that Act in respect of the
32
Amend ments Schedule 1
Income Tax Assessment Act 1997 Part 3
Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. , 2008
25
person as would, if those amounts had instead been paid to the
1
person as
*
superannuation benefits, have been the taxable
2
components of those superannuation benefits.
3
36 At the end of section 307-220
4
Add:
5
(4) Subparagraph (2)(a)(i) does not apply to a
*
roll-over
6
superannuation benefit that is a
*
departing Australia
7
superannuation payment made under section 20H of the
8
Superannuation (Unclaimed Money and Lost Members) Act 1999.
9
Note 1:
The whole departing Australia superannuation payment is included in
10
the contributions segment of the superannuation interest, as none of
11
the payment has been or will be included in the superannuation
12
provider's assessable income.
13
Note 2:
Including the whole payment in that segment, and thus the tax free
14
component, of the superannuation interest ensures that the amount of
15
the payment, which is taxed by the Superannuation (Departing
16
Australia Superannuation Payments Tax) Act 2007, does not attract
17
more tax when paid as a superannuation benefit from the interest.
18
37 At the end of Subdivision 307-E
19
Add:
20
307-300 Superannuation benefits paid under section 20H of the
21
Superannuation (Unclaimed Money and Lost Members) Act
22
1999
23
(1) This section explains how to work out the
*
element taxed in the
24
fund, and the
*
element untaxed in the fund, of the
*
taxable
25
component of a
*
superannuation benefit that is a payment under
26
section 20H of the Superannuation (Unclaimed Money and Lost
27
Members) Act 1999 in respect of a person.
28
(2) The element taxed in the fund is so much (if any) of the
*
taxable
29
component as is attributable to so much of the amounts paid to the
30
Commissioner under subsection 17(1) or 20F(1) of that Act in
31
respect of the person as would, if those amounts had instead been
32
paid to the person as
*
superannuation benefits, have been the
33
elements taxed in the fund of the taxable components of those
34
superannuation benefits.
35
Schedule 1 A mendments
Part 3 Inco me Tax Assessment Act 1997
26 Temporary Residents' Superannuation Legislation Amendment Bill 2008 No. ,
2008
(3) The element untaxed in the fund is so much (if any) of the
1
*
taxable component as is attributable to so much of the amounts
2
paid to the Commissioner under subsection 17(1) or 20F(1) of that
3
Act in respect of the person as would, if those amounts had instead
4
been paid to the person as
*
superannuation benefits, have been the
5
elements untaxed in the fund of the taxable components of those
6
superannuation benefits.
7

 


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