Treasury Laws Amendment (2022 Measures No. 4) Act 2023 (29 of 2023)

Schedule 9   Taxation of military superannuation benefits: Reversing the Douglas decision

Income Tax (Transitional Provisions) Act 1997

8   At the end of Division 301

Add:

301-90 Application of Subdivision 301-F of the Income Tax Assessment Act 1997

Subdivision 301-F of the Income Tax Assessment Act 1997 applies in relation to income years starting on or after 1 July 2007.

301-95 Amendment of assessments to give effect to Subdivision 301-F of the Income Tax Assessment Act 1997 etc.

Section 170 of the Income Tax Assessment Act 1936 does not prevent the amendment of an assessment for the purposes of giving effect to the following in respect of an income year that starts on or before 1 July 2021:

(a) Subdivision 301-F of the Income Tax Assessment Act 1997;

(b) the amendments of the Income Tax Assessment (1997 Act) Regulations 2021 made by Schedule 9 to the Treasury Laws Amendment (2022 Measures No. 4) Act 2023.

Note: Section 170 of the Income Tax Assessment Act 1936 specifies the periods within which assessments may be amended.

301-100 Amendment of assessments - transitional rule for permanent incapacity benefits, etc.

(1) This section applies if:

(a) a superannuation benefit (the trigger benefit ) was paid to a person in the 2020-21 income year or an earlier income year; and

(b) the Commissioner made an assessment for the income year for the person before 4 December 2020; and

(c) the trigger benefit was paid to the person because the person satisfied a condition of release specified in item 103 (permanent incapacity) of the table in Schedule 1 to the Superannuation Industry (Supervision) Regulations 1994; and

(d) the Commissioner made the assessment on the basis that the trigger benefit was a superannuation lump sum.

(2) The Commissioner cannot amend an assessment on the basis that a superannuation benefit paid to the person is a superannuation income stream benefit because of the amendments made by Schedule 9 to the Treasury Laws Amendment (2022 Measures No. 4) Act 2023 if:

(a) the superannuation benefit is the trigger benefit; or

(b) all of these conditions are satisfied:

(i) the assessment is for the 2021-22 income year or an earlier income year;

(ii) the superannuation benefit was paid to the person after the trigger benefit was paid to the person;

(iii) the superannuation benefit was paid to the person because the person satisfied a condition of release specified in item 103 (permanent incapacity) of the table in Schedule 1 to the Superannuation Industry (Supervision) Regulations 1994;

(iv) the Commissioner made the assessment on the basis that the superannuation benefit was a superannuation lump sum.

(3) Subsection (2) applies despite any other provision of this Act (apart from subsection (4) of this section), the Income Tax Assessment Act 1997 and the Income Tax Assessment Act 1936.

(4) Subsection (2) does not apply in any of these cases:

(a) if the Commissioner may amend the assessment in accordance with item 5 (fraud or evasion) or 6 (review or appeal) of the table in subsection 170(1) of the Income Tax Assessment Act 1936;

(b) if the amendment is made for the purpose of giving effect to a provision specified in the regulations for the purposes of this paragraph.

301-105 Transitional rules for Schedule 9 to the Treasury Laws Amendment (2022 Measures No. 4) Act 2023

(1) The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) that:

(a) relate to the amendments or repeals made by Schedule 9 to the Treasury Laws Amendment (2022 Measures No. 4) Act 2023; and

(b) relate to either or both of the 2022-23 and 2023-24 income years.

(2) Without limiting subsection (1), rules made under this section before the end of the period of 12 months starting on the day that Schedule commences may provide that provisions of that Schedule, or any other Act or instrument, have effect with any modifications prescribed by the rules. Those provisions then have effect as if they were so modified.

(3) To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(c) impose a tax;

(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in any Act;

(e) directly amend the text of an Act.

(4) This Schedule (other than subitem (3)) does not limit the rules that may be made for the purposes of subitem (1).