Bankruptcy Regulations 2021

PART 6 - ADMINISTRATION OF PROPERTY  

Division 6 - Definition of income  

SECTION 34   SUPERANNUATION CONTRIBUTIONS  

34(1)    
For the purposes of subparagraph (b)(v) of the definition of income in subsection 139L(1) of the Act, the following contributions and payments made for the purpose of providing superannuation benefits for a bankrupt person are not income of the person:

(a)    contributions made by, or on behalf of, each employer of the person to the extent that the contributions reduce the employer ' s potential liability for the superannuation guarantee charge imposed under section 5 of the Superannuation Guarantee Charge Act 1992 ;

(b)    contributions made by, or on behalf of, each employer of the person in accordance with the employer ' s obligation to make contributions for the person under:

(i) an industrial award or determination made under a law of the Commonwealth, a State or a Territory; or

(ii) an industrial agreement registered, made or lodged under a law of the Commonwealth, a State or a Territory; or

(iii) a law of the Commonwealth, or of a State or Territory;

that exceed the contributions, made by or on behalf of the employer, mentioned in paragraph (a);

(c)    payments of shortfall components made to, or for the benefit of, the person under sections 65 to 67 of the Superannuation Guarantee (Administration) Act 1992 .

34(2)    
Despite subsection (1), contributions for a contribution assessment period are taken to be income of a person if:

(a)    the contributions exceed the relevant superannuation guarantee charge percentage of the employee ' s ordinary time earnings for the contribution assessment period; and

(b)    the employer has an obligation to make the contributions that arise under an individual industrial agreement; and

(c)    the contributions are not contributions of the kind mentioned in subparagraph (1)(b)(iii).

34(3)    
In this section:

individual industrial agreement
means an industrial agreement made solely between the employer and the person, including the following:

(a) an AWA, or an ITEA, (both within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ) to which that Act applies;

(b) a similar agreement under the law of a State or Territory.

ordinary time earnings
has the meaning given by subsection 6(1) of the Superannuation Guarantee (Administration) Act 1992 .

relevant superannuation guarantee charge percentage
: the relevant superannuation guarantee charge percentage for a year (the bankruptcy year ) is the percentage whose number is the same as that set out in column 2 of the table in subsection 19(2) of the Superannuation Guarantee (Administration) Act 1992 for the financial year in which the bankruptcy year starts.

shortfall component
has the same meaning as in Part 8 of the Superannuation Guarantee (Administration) Act 1992 .