Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further Election Commitments and Other Measures) Act 2011 (53 of 2011)

Schedule 1   Family tax benefit advance

Part 1   Amendments

A New Tax System (Family Assistance) (Administration) Act 1999

13   Division 2 of Part 3

Repeal the Division, substitute:

Division 2 - Payment of family tax benefit advances

Subdivision A - Request for family tax benefit advance

33 Request

(1) An individual may request a family tax benefit advance.

(2) If an individual makes a request for a family tax benefit advance (the first advance ) accompanied by a request under section 35B (regular family tax benefit advances), the individual may also request that entitlement to the first advance be determined on a specified future day.

34 Form of request

(1) To be effective a request:

(a) must be made in a form and manner, contain any information, and be accompanied by any documents required by the Secretary; and

(b) must specify the amount of family tax benefit advance sought; and

(c) the amount of family tax benefit advance sought must be at least the minimum amount.

(2) If an effective request is made, the Secretary must determine the request in accordance with this Division. If a request is not effective, it is taken never to have been made.

35 Request may be withdrawn or varied

(1) An individual may withdraw or vary a request before the request is determined.

(2) The individual may only do so in a manner determined by the Secretary.

(3) If a request is withdrawn, it is taken never to have been made.

Subdivision B - Entitlement to family tax benefit advance

35A Entitlement to family tax benefit advance

(1) The Secretary must determine that an individual is entitled to be paid a family tax benefit advance if:

(a) on the advance assessment day, the individual is entitled to be paid family tax benefit by instalment; and

(b) the individual has made an effective request under section 34 for a family tax benefit advance; and

(c) on the advance assessment day, the individual’s Part A rate (disregarding clauses 5 and 25A of Schedule 1 to the Family Assistance Act) is equal to or exceeds the amount that would, under clause 26 of that Schedule, be the FTB child rate for an FTB child who had not turned 18 if:

(i) the individual’s Part A rate were required to be worked out using Part 3 of that Schedule; and

(ii) clause 27 of that Schedule did not apply; and

(d) on the advance assessment day, the individual has at least one FTB child; and

(e) on the advance assessment day, the amount of advance that the individual would be entitled to is at least the minimum amount; and

(f) the Secretary considers, on the basis of information available to the Secretary on the advance assessment day, that the individual will not suffer financial hardship from the individual’s Part A rate being reduced as a result of being paid the advance; and

(g) on the advance assessment day, the individual is not excluded from being paid a family tax benefit advance under subsection (2).

(2) An individual is excluded from being paid a family tax benefit advance if:

(a) an amount of family tax benefit advance paid to the individual more than 12 months before the advance assessment day has not been fully repaid; or

(b) an amount of family tax benefit advance paid to the individual more than 12 months before the advance assessment day is being repaid as a new advance due to a determination under clause 51 of Schedule 1 to the Family Assistance Act; or

(c) the individual owes a debt to the Commonwealth (whether arising under this Act or not) that is:

(i) recoverable under Part 4 by means of deductions from the individual’s instalments of family tax benefit under section 84 (unless that debt has been written off because of subsection 95(4A) or (4B)); or

(ii) being recovered by deductions from the individual’s instalments of family tax benefit under section 227; or

(d) on the advance assessment day, the Secretary is prohibited from making a payment of family tax benefit to the individual under section 32AA or 32AD (non-payment for non-lodgment of tax returns).

(3) An individual’s advance assessment day is the day the Secretary determines the individual’s entitlement to be paid a family tax benefit advance.

(4) If the individual is not entitled to be paid a family tax benefit advance under subsection (1), the Secretary must determine that the individual is not entitled to the family tax benefit advance.

Subdivision C - Regular family tax benefit advances

35B Regular family tax benefit advances

(1) An individual who makes a request in accordance with section 34 for a family tax benefit advance of the minimum amount (the first advance ) may, when making the request, also request that a family tax benefit advance of the minimum amount be paid to the individual at regular intervals of 182 days.

(2) For the request for payment of a family tax benefit advance at regular intervals to be effective, the request must be made in a form and manner, contain any information, and be accompanied by any documents, required by the Secretary.

(3) If an individual makes an effective request under this section:

(a) the Secretary must make a determination under section 35A, in relation to the individual’s eligibility for a family tax benefit advance of the minimum amount, at intervals that would best facilitate payment in accordance with the request; and

(b) the advance assessment day for a determination referred to in paragraph (a) is:

(i) if the individual has not previously been paid a family tax benefit advance requested under this section - the day that falls immediately after the end of an interval of 182 days that began on the day the first advance was paid; or

(ii) if the individual has previously been paid a family tax benefit advance requested under this section - the day that falls immediately after the end of the last of the intervals of 182 days, the first of which began on the day the first advance was paid.

(4) The Secretary must, in making a determination referred to in subsection (3), treat paragraph 35A(1)(b) (requirement to make an effective request) as having been satisfied if:

(a) the individual has made an effective request under this section; and

(b) the request has not been withdrawn under subsection (6) before the determination is made; and

(c) the individual has not failed to repay the last family tax benefit advance paid in response to the request under section 34 mentioned in subsection (1), or the request under this section, within 182 days.

(5) A request under subsection (1) ceases to be effective if:

(a) the Secretary, in making a determination referred to in subsection (3), determines that the individual is not entitled to a family tax benefit advance; or

(b) the individual withdraws the request under subsection (6).

(6) An individual may, in a manner determined by the Secretary, withdraw the request at any time.

Subdivision D - Amount of family tax benefit advance

35C Amount of family tax benefit advance

(1) The amount of the family tax benefit advance is the smaller of the following amounts:

(a) the amount of advance sought;

(b) the maximum amount of advance payable to the individual on the advance assessment day worked out under section 35D less the original amount of each family tax benefit advance paid to the individual that is unrepaid on that day.

(2) When working out the original amount of each family tax benefit advance paid to the individual that is unrepaid for the purposes of paragraph (1)(b), disregard clause 51 of Schedule 1 to the Family Assistance Act.

(3) The Secretary may determine that the amount of the family tax benefit advance is a lower amount than the amount that applies under subsection (1) if the Secretary is satisfied that the individual would suffer financial hardship if the individual’s Part A rate were reduced as a result of being paid that amount.

35D Maximum amount of family tax benefit advance payable

(1) Subject to subsection (2), the maximum amount of family tax benefit advance payable to the individual is set out in the following table:

Member of a couple in a blended family

(2) If a determination under section 28 of the Family Assistance Act that the individual is eligible for a percentage (the section 28 percentage ) of the family tax benefit for FTB children of the individual is in force, the maximum amount of family tax benefit advance payable to the individual is the section 28 percentage of the amount worked out for the individual under subsection (1).

Rounding

(3) Amounts worked out under this section must be rounded to the nearest cent (rounding 0.5 cents upwards).

Definitions

(4) In this section:

adjusted Part A rate , in relation to an individual, means the individual’s Part A rate disregarding:

(a) clause 38A of Schedule 1 to the Family Assistance Act; and

(b) any reduction under clause 5 or 25A of that Schedule.

standard rate for a child under 13 means the FTB child rate for one FTB child who is under 13 years of age worked out under clause 7 of Schedule 1 to the Family Assistance Act (disregarding clauses 8 to 11 of that Schedule).

Subdivision E - Payment of family tax benefit advance

35E Payment of advance

(1) If an individual is entitled to be paid a family tax benefit advance, the Secretary must, at such time and in such manner as the Secretary considers appropriate, pay the individual the advance.

(2) This section is subject to Part 4, Division 3 of Part 8B and sections 225 and 226.