Treasury Laws Amendment (Fair and Sustainable Superannuation) Act 2016 (81 of 2016)

Schedule 10   Administrative streamlining

Part 1   Release authority harmonisation

Division 1   Main amendments

Taxation Administration Act 1953

1   Before Division 133 in Schedule 1

Insert:

Division 131 - Releasing money from superannuation

Table of Subdivisions

131-A Releasing money from superannuation

Subdivision 131-A - Releasing money from superannuation

Guide to Subdivision 131-A

131-1 What this Subdivision is about

You may request the Commissioner to require the release of an amount from your superannuation interests if you are given:

(a) an excess concessional contributions determination or excess non-concessional contributions determination; or

(b) a notice of assessment of an amount of Division 293 tax.

The Commissioner may also require the release of an amount from your superannuation interests in related circumstances.

Superannuation providers must usually pay the amount required to be released. However, for defined benefit superannuation interests the provider may choose whether or not to pay.

Released amounts are paid to the Commissioner. You get a credit for the released amount. Surplus credits are refunded to you under Division 3A of Part IIB.

Table of sections

Requesting a release authority

131-5 Requesting the release of amounts from superannuation interests

131-10 Restrictions on the total amount you can request to be released

Issuing a release authority to superannuation provider

131-15 Issuing release authorities

131-20 Amount to be stated in a release authority

131-25 Contents of a release authority

131-30 Varying and revoking a release authority

Complying with a release authority

131-35 Obligations of superannuation providers

131-40 Voluntary compliance with a release authority relating to defined benefit interests

131-45 Meaning of maximum available release amount

131-50 Notifying Commissioner

131-55 Notifying you

131-60 Compensation for acquisition of property

Consequences of releasing amounts

131-65 Entitlement to credits

131-70 Interest for late payments of money received by the Commissioner in accordance with release authority

131-75 Income tax treatment of amounts released - proportioning rule does not apply

Requesting a release authority

131-5 Requesting the release of amounts from superannuation interests

(1) You may make a request under this section for a *financial year if you are given any of the following:

(a) an *excess concessional contributions determination for the financial year;

(b) an *excess non-concessional contributions determination for the financial year;

(c) a notice of assessment of an amount of *Division 293 tax payable for the income year that corresponds to the financial year.

(2) You make the request by:

(a) notifying the Commissioner of the total amount to be released; and

(b) identifying your *superannuation interest or interests from which that total amount is to be released; and

(c) if you identify more than one superannuation interest - stating the amount to be released from each such interest.

(3) The request must:

(a) ensure that the total amount to be released for the determination or assessment complies with section 131-10; and

(b) be in the *approved form; and

(c) be given to the Commissioner within:

(i) 60 days after the Commissioner issues the determination or notice referred to in subsection (1); or

(ii) a further period allowed by the Commissioner.

Unsuccessful requests - making a further request

(4) If:

(a) you make a valid request under this section; and

(b) the Commissioner gives you a notice under subsection 131-55(1) stating an amount (the unreleased amount ) that a *superannuation provider did not pay in relation to a release authority issued for that request;

you may make a further request to release the unreleased amount from another of your *superannuation interests.

(5) The further request must comply with subsection (2) and paragraphs (3)(a) and (b), and must be given to the Commissioner within:

(a) 60 days after the Commissioner issues the notice mentioned in paragraph (4)(b); or

(b) a further period allowed by the Commissioner.

Request is irrevocable

(6) A request under this section is irrevocable.

131-10 Restrictions on the total amount you can request to be released

(1) The total amount you can request to be released complies with this section if that amount:

(a) if item 1 or 3 of the following table applies - does not exceed the relevant amount referred to in that item; or

(b) if item 2 of the following table applies - is nil or equals the relevant amount referred to in that item.

(2) However, for an amended determination or assessment, reduce the relevant amount referred to in the above table by any amount released under this Subdivision for an earlier determination or assessment of that kind that you are given for the *financial year or corresponding income year.

(3) An amendment of a determination or assessment does not affect the validity of a request you make under section 131-5 before you are given the amended determination or the notice of the amended assessment.

Issuing a release authority to superannuation provider

131-15 Issuing release authorities

Issuing in response to a valid request

(1) If you make a valid request under section 131-5, the Commissioner must issue a release authority to each *superannuation provider that holds a *superannuation interest identified in the request.

Issuing if you do not make a valid request in response to an excess non-concessional contributions determination etc.

(2) If:

(a) on a particular day, the Commissioner issues you with:

(i) an *excess non-concessional contributions determination for a *financial year; or

(ii) a notice to which paragraph 131-5(4)(b) applies for such a determination; and

(b) within 60 days after that day, you do not make a valid request under section 131-5 for that determination;

the Commissioner may issue a release authority to one or more *superannuation providers that hold *superannuation interests for you.

Issuing if you are liable to pay excess non-concessional contributions tax

(3) If you are given a notice of an *excess non-concessional contributions tax assessment for a *financial year, the Commissioner may issue a release authority to one or more *superannuation providers that hold *superannuation interests for you.

Issuing if you have an unpaid amount of assessed Division 293 tax that is not deferred to a debt account

(4) If:

(a) for an income year, you are given a notice of assessment of an amount of *Division 293 tax that is not *deferred to a debt account for a *superannuation interest; and

(b) on the 60th day after the day the Commissioner issues that notice, the sum of the following falls short of that amount of tax:

(i) any payments of that tax for the income year that you have already made;

(ii) any amounts that have already been released under this Subdivision for that assessment;

the Commissioner may issue a release authority to one or more *superannuation providers that hold superannuation interests for you.

131-20 Amount to be stated in a release authority

(1) The amount to be released from one or more *superannuation interests under a release authority issued under section 131-15 must be:

(a) for a release authority issued under subsection 131-15(1) - the amount stated in the request; or

(b) otherwise - worked out so that the total amount stated for all release authorities for the applicable determination or assessment does not exceed:

(i) for a release authority issued under subsection 131-15(2) - the *total release amount stated in the determination referred to in that subsection; or

(ii) for a release authority issued under subsection 131-15(3) or (4) - the amount of tax stated in the assessment referred to in that subsection.

(2) For the purposes of paragraph (1)(b), disregard an amount stated in another release authority to the extent that a notice given under subsection 131-50(2) states that the amount will not be paid.

131-25 Contents of a release authority

Each release authority issued under section 131-15 must:

(a) be issued to a single *superannuation provider; and

(b) state the amount to be released from each *superannuation interest under the release authority; and

(c) be dated; and

(d) contain any other information that the Commissioner considers relevant.

131-30 Varying and revoking a release authority

The Commissioner may vary or revoke a release authority issued under section 131-15 at any time before the Commissioner is given a notice under section 131-50 relating to the release authority.

Complying with a release authority

131-35 Obligations of superannuation providers

(1) A *superannuation provider issued with a release authority under section 131-15 must, within 10 *business days after the release authority is issued (or a further period allowed by the Commissioner), pay to the Commissioner the lesser of:

(a) the amount stated in the release authority; and

(b) the sum of the *maximum available release amounts for each *superannuation interest held by the superannuation provider for you in *superannuation plans.

Note 1: Subsection 288-95(3) provides for an administrative penalty for failing to comply with this section.

Note 2: For the taxation treatment of the payment, see section 131-75.

Exception - defined benefit interests not subject to compulsory release

(2) However, the *maximum available release amount for a *superannuation interest is not to be included in the sum worked out under paragraph (1)(b) if the interest is a *defined benefit interest.

131-40 Voluntary compliance with a release authority relating to defined benefit interests

(1) A *superannuation provider issued with a release authority under section 131-15 may, within 10 *business days after the release authority is issued (or a further period allowed by the Commissioner), pay to the Commissioner the lesser of:

(a) the amount stated in the release authority; and

(b) the sum of the *maximum available release amounts for each *defined benefit interest held by the superannuation provider for you in *superannuation plans.

(2) For the purposes of paragraph (1)(a), reduce the amount mentioned in that paragraph by any amount the provider pays under section 131-35 in relation to the release authority.

131-45 Meaning of maximum available release amount

The maximum available release amount for a *superannuation interest at a particular time is the total amount of all the *superannuation lump sums that could be payable from the interest at that time.

131-50 Notifying Commissioner

(1) A *superannuation provider issued with a release authority under section 131-15 must notify the Commissioner of a payment made in accordance with this Subdivision.

(2) A *superannuation provider that:

(a) has been issued with a release authority under section 131-15; and

(b) is not required to pay an amount under section 131-35, or is required under that section to pay an amount less than the amount stated in the release authority;

must notify the Commissioner that the provider is not required to comply with the release authority.

(3) A notice under this section must be given in the *approved form within the period applying under subsection 131-35(1) or 131-40(1) for the release authority.

Note: Subsection 286-75(1) provides for an administrative penalty for failing to comply with this section.

131-55 Notifying you

(1) The Commissioner must notify you if, in relation to a release authority issued under section 131-15 in relation to you, the Commissioner:

(a) is given a notice from a *superannuation provider under section 131-50; or

(b) does not receive a payment from a superannuation provider of the full amount stated in the release authority within the time mentioned in subsection 131-35(1) or 131-40(1).

(2) A notice under subsection (1) must:

(a) be in writing; and

(b) identify the *superannuation provider; and

(c) state how much of the amount stated in the release authority was not paid within the applicable time.

131-60 Compensation for acquisition of property

(1) If the operation of section 131-35 would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from an entity otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the entity.

(2) If the Commonwealth and the entity do not agree on the amount of the compensation, the entity may institute proceedings in:

(a) the Federal Court of Australia; or

(b) the Supreme Court of a State or Territory;

for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

Consequences of releasing amounts

131-65 Entitlement to credits

(1) If a *superannuation provider pays an amount in relation to a release authority issued under section 131-15 in relation to you, you are entitled to a credit equal to that amount.

Note: Division 3 of Part IIB provides for the treatment of credits that you are entitled to under a taxation law.

(2) The credit arises on the day the Commissioner receives the amount.

Exception for voluntary payments of Division 293 tax debt account

(3) However, if the amount paid in relation to the release authority relates to an amount of *assessed Division 293 tax that is *deferred to a debt account for a *superannuation interest:

(a) subsection (1) does not apply in relation to the payment; and

(b) treat the payment as if it were a voluntary payment under section 133-70 in relation to that debt account.

131-70 Interest for late payments of money received by the Commissioner in accordance with release authority

(1) You are entitled to an amount of interest worked out under subsection (2) if:

(a) the Commissioner is required under Division 3A of Part IIB to refund all or part of a credit you are entitled to under section 131-65; and

(b) the Commissioner does not so refund all or part of that credit within 60 days after receiving the payment that gave rise to the credit.

(2) The interest is to be calculated:

(a) on so much of the amount of the credit as the Commissioner fails to refund under that Division; and

(b) for the period:

(i) beginning 60 days after the day the Commissioner receives the amount; and

(ii) ending on the day the Commissioner refunds the amount mentioned in paragraph (1)(a); and

(c) on a daily basis; and

(d) at the *base interest rate for the day the interest is calculated.

131-75 Income tax treatment of amounts released - proportioning rule does not apply

Section 307-125 of the Income Tax Assessment Act 1997 (the proportioning rule) does not apply to a payment made as required or permitted under this Subdivision.

Note: The income tax treatment of released amounts is also affected by Subdivision 292-B, and section 303-15, of that Act.