Bankruptcy Legislation Amendment (Superannuation Contributions) Act 2007 (57 of 2007)
Schedule 1 Amendments relating to superannuation contributions
Part 1 Amendments commencing on 28 July 2006
Bankruptcy Act 1966
6 At the end of Division 3 of Part VI
Add:
Subdivision B - Superannuation contributions
128A Simplified outline
The following is a simplified outline of this Subdivision:
• This Subdivision enables the recovery of superannuation contributions made to defeat the bankrupt’s creditors.
• There are 2 types of recoverable contributions:
(a) contributions made by a person who later becomes a bankrupt (see section 128B);
(b) contributions made by a third party for the benefit of a person who later becomes a bankrupt (see section 128C).
128B Superannuation contributions made to defeat creditors - contributor is a person who later becomes a bankrupt
Transfers that are void
(1) A transfer of property by a person who later becomes a bankrupt (the transferor ) to another person (the transferee ) is void against the trustee in the transferor’s bankruptcy if:
(a) the transfer is made by way of a contribution to an eligible superannuation plan; and
(b) the property would probably have become part of the transferor’s estate or would probably have been available to creditors if the property had not been transferred; and
(c) the transferor’s main purpose in making the transfer was:
(i) to prevent the transferred property from becoming divisible among the transferor’s creditors; or
(ii) to hinder or delay the process of making property available for division among the transferor’s creditors; and
(d) the transfer occurs on or after 28 July 2006.
Showing the transferor’s main purpose in making a transfer
(2) The transferor’s main purpose in making the transfer is taken to be the purpose described in paragraph (1)(c) if it can reasonably be inferred from all the circumstances that, at the time of the transfer, the transferor was, or was about to become, insolvent.
(3) In determining whether the transferor’s main purpose in making the transfer was the purpose described in paragraph (1)(c), regard must be had to:
(a) whether, during any period ending before the transfer, the transferor had established a pattern of making contributions to one or more eligible superannuation plans; and
(b) if so, whether the transfer, when considered in the light of that pattern, is out of character.
Other ways of showing the transferor’s main purpose in making a transfer
(4) Subsections (2) and (3) do not limit the ways of establishing the transferor’s main purpose in making a transfer.
Rebuttable presumption of insolvency
(5) For the purposes of this section, a rebuttable presumption arises that the transferor was, or was about to become, insolvent at the time of the transfer if it is established that the transferor:
(a) had not, in respect of that time, kept such books, accounts and records as are usual and proper in relation to the business carried on by the transferor and as sufficiently disclose the transferor’s business transactions and financial position; or
(b) having kept such books, accounts and records, has not preserved them.
Protection of successors in title
(6) This section does not affect the rights of a person who acquired property from the transferee in good faith and for at least the market value of the property.
Meaning of transfer of property and market value
(7) For the purposes of this section:
(a) transfer of property includes a payment of money; and
(b) a person who does something that results in another person becoming the owner of property that did not previously exist is taken to have transferred the property to the other person; and
(c) the market value of property transferred is its market value at the time of the transfer.
128C Superannuation contributions made to defeat creditors - contributor is a third party
Transfers that are void
(1) If:
(a) a person (the transferor ) transfers property to another person, (the transferee ); and
(b) the transfer is by way of a contribution to an eligible superannuation plan for the benefit of a person who later becomes a bankrupt (the beneficiary ); and
(c) the transferor did so under a scheme to which the beneficiary was a party; and
(d) the property would probably have become part of the beneficiary’s estate or would probably have been available to creditors if the property had not been transferred; and
(e) the beneficiary’s main purpose in entering into the scheme was:
(i) to prevent the transferred property from becoming divisible among the beneficiary’s creditors; or
(ii) to hinder or delay the process of making property available for division among the beneficiary’s creditors; and
(f) the transfer occurred on or after 28 July 2006;
the transfer is void against the trustee in the beneficiary’s bankruptcy.
(2) For the purposes of paragraph (1)(b), disregard a benefit that is payable in the event of the death of a person.
Showing the beneficiary’s main purpose in entering into the scheme
(3) The beneficiary’s main purpose in entering into the scheme is taken to be the purpose described in paragraph (1)(e) if it can reasonably be inferred from all the circumstances that, at the time when the beneficiary entered into the scheme, the beneficiary was, or was about to become, insolvent.
(4) In determining whether the beneficiary’s main purpose in entering into the scheme was the purpose described in paragraph (1)(e), regard must be had to:
(a) whether, during any period ending before the scheme was entered into, the transferor had established a pattern of making contributions to one or more eligible superannuation plans for the benefit of the beneficiary; and
(b) if so, whether the transfer, when considered in the light of that pattern, is out of character.
(5) For the purposes of paragraph (4)(a), disregard a benefit that is payable in the event of the death of a person.
Other ways of showing the beneficiary’s main purpose in entering into a scheme
(6) Subsections (3) and (4) do not limit the ways of establishing the beneficiary’s main purpose in entering into a scheme.
Rebuttable presumption of insolvency
(7) For the purposes of this section, a rebuttable presumption arises that the beneficiary was, or was about to become, insolvent at the time the beneficiary entered into the scheme if it is established that the beneficiary:
(a) had not, in respect of that time, kept such books, accounts and records as are usual and proper in relation to the business carried on by the beneficiary and as sufficiently disclose the beneficiary’s business transactions and financial position; or
(b) having kept such books, accounts and records, has not preserved them.
Protection of successors in title
(8) This section does not affect the rights of a person who acquired property from the transferee in good faith and for at least the market value of the property.
Meaning of transfer of property and market value
(9) For the purposes of this section:
(a) transfer of property includes a payment of money; and
(b) a person who does something that results in another person becoming the owner of property that did not previously exist is taken to have transferred the property to the other person; and
(c) the market value of property transferred is its market value at the time of the transfer.
128D Time for making claims by trustee
(1) An action under section 128B or 128C with respect to a transaction may be commenced by the trustee of a bankrupt’s estate at any time.
(2) A section 139ZQ notice in relation to a transaction that, under section 128B or 128C, is void against the trustee of a bankrupt’s estate must not be given before the commencement of Part 2 of Schedule 1 to the Bankruptcy Legislation Amendment (Superannuation Contributions) Act 2007.
(3) A section 139ZQ notice in relation to a transaction that, under section 128B or 128C, is void against the trustee of a bankrupt’s estate may be given even if the transaction occurred before the commencement of Part 2 of Schedule 1 to the Bankruptcy Legislation Amendment (Superannuation Contributions) Act 2007.
128N Definitions
In this Subdivision:
approved deposit fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
contribution , in relation to an RSA, has the same meaning as in the Retirement Savings Accounts Act 1997.
eligible superannuation plan means any of the following:
(a) a regulated superannuation fund;
(b) an approved deposit fund;
(c) an RSA;
(d) a public sector superannuation scheme.
public sector superannuation scheme has the same meaning as in the Superannuation Industry (Supervision) Act 1993, but does not include a regulated superannuation fund.
regulated superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
scheme means:
(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; and
(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.