Superannuation (Government Co-Contribution for Low Income Earners) Act 2003
PART 1 - PRELIMINARY
SECTION 1
1
SHORT TITLE
This Act may be cited as the
Superannuation (Government Co-contribution for Low Income Earners) Act 2003.
SECTION 2
2
COMMENCEMENT
This Act commences on the day on which it receives the Royal Assent.
SECTION 3
ACT BINDS CROWN
3(1)
[Effect]
This Act binds the Crown in each of its capacities.
3(2)
[No liability]
However, this Act does not make the Crown liable to be prosecuted for an offence.
SECTION 4
4
GEOGRAPHICAL APPLICATION OF ACT
This Act extends to:
(a)
Norfolk Island; and
(b)
the Territory of Cocos (Keeling) Islands; and
(c)
the Territory of Christmas Island.
SECTION 5
OVERVIEW OF THE ACT
5(1)
This Act provides for Government co-contributions to be made towards the superannuation of low income earners.
Note:
The Government co-contributions replace the rebates that used to be provided for in Subdivision AAC of Division 17 of Part III of the Income Tax Assessment Act 1936.
5(2)
The following is a simplified explanation of this Act:
• Part 2 (sections 6 to 12) tells you who are the people in respect of whom a Government co-contribution is payable. It also tells you how much the co-contribution is.
• Part 2A (sections 12B to 12G) tells you who are the people entitled to a low income superannuation tax offset. It also tells you how much the low income superannuation tax offset is.
• Part 3 (sections 13 and 14) tells you how the Commissioner of Taxation determines whether a Government co-contribution is payable in respect of a person.
• Part 4 (sections 15 to 18) tells you how the Government co-contribution is paid.
• Part 5 (sections 19 to 24) tells you what happens if there is an overpayment or an underpayment of a Government co-contribution.
• Part 5A (section 25) sets out circumstances in which general interest charge is payable.
• Part 6 (sections 32 to 39) sets out record keeping obligations and provides for infringement notices).
• Parts 7 and 8 (sections 46 to 55) provide for administrative matters.
• Part 9 (section 56) sets out the terms that are defined to have a particular meaning when used in this Act.
History
S 5(2) amended by No 81 of 2016, s 3 and Sch 4 item 1, by inserting "• Part 2A (sections 12B to 12G) tells you who are the people entitled to a low income superannuation tax offset. It also tells you how much the low income superannuation tax offset is.", effective 2 July 2017. For application provision, see note under Pt 2A heading.
S 5(2) amended by No 96 of 2014, s 3 and Sch 7 item 1, by omitting "• Part 2A (sections 12B to 12G) tells you who are the people entitled to a low income superannuation contribution. It also tells you how much the low income superannuation contribution is.", effective 1 July 2017. No 96 of 2014, s 3 and Sch 7 items 7-9 contain the following application and transitional provisions:
7 Application of amendments
7(1)
The amendments made apply in relation to concessional contributions for financial years starting on or after 1 July 2017.
7(2)
However, section 12G of the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 ceases to apply, in relation to low income superannuation contributions for any quarter or financial year, at the commencement of this Schedule.
Note:
Section 12G requires the Commissioner to give reports to the Minister for presenting to the Parliament. This subitem ensures that reporting under that section is required up to, but not after, the commencement of this Schedule.
History
Item 7(2) amended by No 81 of 2016, s 3 and Sch 4 item 7, by inserting "low income superannuation contributions for", effective 2 July 2017.
7(3)
For the purposes of this item,
concessional contributions
has the same meaning as in the
Income Tax Assessment Act 1997.
8 Transitional - notifying certain decisions
(Repealed by No 81 of 2016)
History
Item 8 repealed by No 81 of 2016, s 3 and Sch 4 item 8, effective 2 July 2017. Item 8 formerly read:
8 Transitional - notifying certain decisions
8(1)
If, on or after the commencement of this Schedule, the Commissioner makes a decision under paragraph 12F(1)(b) of the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 in respect of a person, the Commissioner is not required to notify the person of the decision.
Note:
A decision under paragraph 12F(1)(b) is a decision by the Commissioner that the Commissioner would not have determined that a low income superannuation contribution was payable in respect of a person if the Commissioner had information that was obtained after that determination.
8(2)
Subitem (1) has effect despite subsection 12F(2) of that Act.
9 Transitional - Deadlines for the final financial year for a LISC
Determining that a LISC is payable
9(1)
The Commissioner must not determine under section
13 of the
Superannuation (Government Co-contribution for Low Income Earners) Act 2003 that a low income superannuation contribution is payable unless the Commissioner becomes satisfied, before 1 July 2019, that the contribution is payable.
Determining that an underpaid amount of LISC is payable
9(2)
The Commissioner must not determine under section
19 of the
Superannuation (Government Co-contribution for Low Income Earners) Act 2003 that an underpaid amount is to be paid unless the Commissioner becomes satisfied, before 1 July 2019, that the amount paid is less than the correct amount of low income superannuation contribution.
S 5(2) amended by No 2 of 2015, s 3 and Sch 2 item 55, by substituting "• Part 6 (sections 32 to 39) sets out record keeping obligations and provides for infringement notices)." for "• Part 6 (sections 30 to 45) tells you how the Commissioner of Taxation gathers some of the information needed for making decisions about Government co-contributions.", effective 1 July 2015.
S 5(2) amended by No 82 of 2013, s 3 and Sch 2 item 1, by substituting "12G" for "12E", applicable to the 2012-13 income year and later income years.
S 5(2) amended by No 23 of 2012, s 3 and Sch 4 item 1, by inserting the para relating to Part 2A, applicable to the 2012-13 income year and later income years.
S 5(2) amended by No 15 of 2007, s 3 and Sch 1 item 340, by substituting "(sections 30 to 45) tells you how the Commissioner of Taxation gathers some of the information needed for making decisions about Government co-contributions" for "(sections 26 to 45) tells you how the Commissioner of Taxation gathers the information needed for making decisions about Government co-contributions", applicable to the 2007-2008 income year and later years.
S 5(2) (simplified explanation) amended by No 92 of 2004, s 3 and Sch 2 items 5 and 6, by substituting "(sections 19 to 24)" for "(sections 19 to 25)" and inserting the sentence starting "Part 5A (section 25)", effective 29 June 2004.
PART 2 - GOVERNMENT CO-CONTRIBUTION IN RESPECT OF LOW INCOME EARNERS
Division 1 - Government co-contribution
SECTION 6
PERSON IN RESPECT OF WHOM GOVERNMENT CO-CONTRIBUTION PAYABLE
6(1)
A Government co-contribution is payable under this Act in respect of a person for an income year of the person if:
(a)
the person makes one or more eligible personal superannuation contributions during the income year; and
(b)
10% or more of the person's total income for the income year is attributable to either or both of the following:
(i)
the person engaging in activities covered under subsection (2);
(ii)
the person carrying on a business (within the meaning of the Income Tax Assessment Act 1997); and
(c)
the person's total income for the income year is less than the higher income threshold; and
(d)
an income tax return for the person for the income year is lodged; and
(da)
the person's non-concessional contributions for the financial year corresponding to the income year do not exceed the person's non-concessional contributions cap for the financial year; and
(db)
immediately before the start of that financial year, the person's total superannuation balance is less than the general transfer balance cap for that financial year; and
(e)
the person is less than 71 years old at the end of the income year; and
(f)
the person:
(i)
is not the holder of a temporary visa under the Migration Act 1958 at any time in the income year; or
(ii)
at all times when he or she holds such a temporary visa during the income year, is a New Zealand citizen or the holder of a visa prescribed for the purposes of subsection 20AA(2) of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
History
S 6(1) amended by No 81 of 2016, s 3 and Sch 3 item 7, by inserting para (da) and (db), effective 1 January 2017 and applicable in relation to the financial year starting on 1 July 2017 and later financial years.
S 6(1) amended by No 27 of 2009, s 3 and Sch 2 item 58, by substituting para (f), applicable in relation to:
(a) the 2009-10 income year; and
(b) later income years.
Para (f) formerly read:
(f)
the person does not hold an eligible temporary resident visa at any time during the income year.
S 6(1) amended by No 9 of 2007, s 3 and Sch 6 item 1, by substituting para (b), applicable in relation to income years starting on or after 1 July 2007. Para (b) formerly read:
(b)
10% or more of the person's total income for the income year is attributable to eligible employment of the person; an
S 6(1) amended by No 92 of 2004, s 3 and Sch 1 item 4, by substituting para (b), applicable to determinations as to whether a Government co-contribution is payable in respect of a person for the 2003-2004 income year and for subsequent income years. Para (b) formerly read:
(b)
the person has employer-supported superannuation for the income year; and
6(2)
A person engages in activities covered under this subsection if:
(a)
the person engages in any of these activities in the income year in which the person makes the contribution:
(i)
holding an office or appointment;
(ii)
performing functions or duties;
(iii)
engaging in work;
(iv)
doing acts or things; and
(b)
the activities result in the person being treated as an employee for the purposes of the
Superannuation Guarantee (Administration) Act 1992 (assuming that subsection
12(11) of that Act had not been enacted).
History
S 6(2) substituted by No 9 of 2007, s 3 and Sch 6 item 2, applicable in relation to income years starting on or after 1 July 2007. S 6(2) formerly read:
6(2)
In this section:
eligible employment
has the same meaning as in Subdivision AB of Division 3 of Part III of the Income Tax Assessment Act 1936.
S 6(2) substituted by No 92 of 2004, s 3 and Sch 1 item 5, applicable to determinations as to whether a Government co-contribution is payable in respect of a person for the 2003-2004 income year and for subsequent income years. S 6(2) formerly read:
6(2)
For the purposes of paragraph (1)(b), the person
has employer-supported superannuation
for the income year if the person is not an eligible person in relation to the income year for the purposes of Subdivision AB of Division 3 of Part III of the Income Tax Assessment Act 1936.
6(3)
(Repealed by No 118 of 2013)
History
S 6(3) repealed by No 118 of 2013, s 3 and Sch 1 item27, effective 29 June 2013. S 6(3) formerly read:
6(3)
In working out the person's total income (or 10% of that income) for the purposes of paragraph (1)(b) of this section, disregard any excess concessional contributions (within the meaning of the Income Tax Assessment Act 1997) included in the person's assessable income under paragraph 292-467(2)(a) of that Act for the financial year corresponding to the income year.
S 6(3) inserted by No 75 of 2012, s 3 and Sch 4 item 11, applicable in relation to excess concessional contributions for the financial year beginning on 1 July 2011 and later financial years.
SECTION 7
CONTRIBUTIONS THAT ATTRACT MATCHING GOVERNMENT CO-CONTRIBUTIONS
7(1)
A contribution a person made or makes is an
eligible personal superannuation contribution
if:
(a)
the contribution was or is made on or after 1 July 2003 to:
(i)
a fund that is a complying superannuation fund in relation to the income year of the fund in which the contribution was or is made; or
(ii)
an RSA the person holds; and
(b)
the contribution was or is made for the purpose of providing superannuation benefits for the person (regardless whether the benefits are payable to the person's dependants if the person dies before or after becoming entitled to receive the benefits); and
(c)
the contribution is not any of the following:
(i)
a roll-over superannuation benefit (within the meaning of the Income Tax Assessment Act 1997);
(ii)
a superannuation lump sum that is paid from a foreign superannuation fund (within the meaning of the Income Tax Assessment Act 1997);
(iia)
an amount transferred from a KiwiSaver scheme to a complying superannuation fund as mentioned in section 312-10 of the Income Tax Assessment Act 1997;
(iii)
a directed termination payment (within the meaning of section 82-10F of the Income Tax (Transitional Provisions) Act 1997);
(iv)
an amount transferred from a scheme mentioned in paragraph 290-5(c) of the Income Tax Assessment Act 1997.
(v)-(vi)
(Repealed by No 70 of 2015)
History
S 7(1) amended by No 70 of 2015, s 3 and Sch 1 items 145 and 146, by substituting "1997." for "1997;" in para (c)(iv) and repealing para (c)(v) and (vi), effective 1 July 2015. Para (c)(v) and (vi) formerly read:
(v)
a payment from an FHSA required under the First Home Saver Accounts Act 2008;
(vi)
a Government FHSA contribution (within the meaning of the First Home Saver Accounts Act 2008).
S 7(1) amended by No 181 of 2012, s 3 and Sch 1 item 9, by inserting para (c)(iia), applicable to: (a) amounts transferred from KiwiSaver schemes to complying superannuation funds; or (b) superannuation benefits paid to KiwiSaver scheme providers by trustees of complying superannuation funds; on or after 1 July 2013.
S 7(1) amended by No 92 of 2008, s 3 and Sch 1 item 23, by omitting "section 22 or 34 of" after "FHSA required under" in para (c)(v), applicable from 1 October 2008.
S 7(1) amended by No 45 of 2008, s 3 and Sch 3 item 37, by inserting para (c)(v) and (vi), effective 26 June 2008.
S 7(1) amended by No 15 of 2007, s 3 and Sch 1 items 341 to 343, by substituting para (b), substituting "1997);" for "1997)." in para (c)(iii) and inserting para (c)(iv), applicable to the 2007-2008 income year and later years. Para (b) formerly read:
(b)
the contribution was or is made to obtain superannuation benefits:
(i)
for the person; or
(ii)
in the event of the person's death, for dependants of the person; and
7(2)
However, the contribution is an
eligible personal superannuation contribution
only to the extent that the Commissioner has not allowed the contribution as a deduction for the person.
History
S 7(2) inserted by No 9 of 2007, s 3 and Sch 7 item 6, applicable in relation to income years starting on or after 1 July 2007.
History
S 7 amended by No 9 of 2007, s 3 and Sch 7 items 3 to 5, by inserting "(1)" before "A contribution", substituting "person; and" for "person." and inserting para (c), applicable in relation to income years starting on or after 1 July 2007.
SECTION 8
TOTAL INCOME FOR INCOME YEAR
8(1)
The person's
total income
for the income year is the sum of:
(a)
the person's assessable income for the income year, disregarding the person's assessable FHSS released amount (within the meaning of the
Income Tax Assessment Act 1997) for the income year; and
(b)
the person's reportable fringe benefits total for the income year; and
(c)
the total of the person's reportable employer superannuation contributions (within the meaning of the
Income Tax Assessment Act 1997) for the income year.
History
S 8(1) amended by No 132 of 2017, s 3 and Sch 1 item 36, by inserting ", disregarding the person's assessable FHSS released amount (within the meaning of the Income Tax Assessment Act 1997) for the income year" in para (a), effective 1 July 2018.
S 8(1) amended by No 27 of 2009, s 3 and Sch 3 item 88, by inserting para (c) at the end, applicable in relation to income years starting on or after 1 July 2009.
8(1A)
For the purposes of paragraph (1)(c) of this section, reduce (but not below zero) the reportable employer superannuation contributions by any excess concessional contributions (within the meaning of the
Income Tax Assessment Act 1997) included in the person's assessable income under paragraph
291-15(a) of that Act for the income year.
History
S 8(1A) amended by No 118 of 2013, s 3 and Sch 1 item 28, by substituting "included in the person's assessable income under paragraph 291-15(a) of that Act for the income year" for "included in the person's assessable income under paragraph 292-467(2)(a) of that Act for the financial year corresponding to the income year", effective 29 June 2013.
S 8(1A) inserted by No 75 of 2012, s 3 and Sch 4 item 12, applicable in relation to excess concessional contributions for the financial year beginning on 1 July 2011 and later financial years.
8(2)
However, the person's
total income
for the income year is reduced by amounts (if any) for which the person is entitled to a deduction as a result of carrying on a business (within the meaning of the
Income Tax Assessment Act 1997).
History
S 8(2) inserted by No 9 of 2007, s 3 and Sch 6 item 8, applicable in relation to income years starting on or after 1 July 2007.
8(3)
Subsection (2) does not apply for the purposes of paragraph
6(1)(b).
History
S 8(3) inserted by No 9 of 2007, s 3 and Sch 6 item 8, applicable in relation to income years starting on or after 1 July 2007.
S 8 amended by No 9 of 2007, s 3 and Sch 6 item 7, by inserting "(1)" before "The", applicable in relation to income years starting on or after 1 July 2007.
Division 2 - Amount of the Government co-contribution
SECTION 9
BASIC RULE - GOVERNMENT CO-CONTRIBUTION MATCHES PERSONAL CONTRIBUTIONS
9(1)
[Amount]
The amount of the Government co-contribution in respect of a person for an income year is:
(a)
for the 2003-04 income year - an amount equal to the sum of the eligible personal superannuation contributions the person makes during the income year; and
(b)
for the 2004-05 income year, the 2005-06 income year, the 2006-07 income year, the 2007-08 income year or the 2008-09 income year - an amount equal to 150% of the sum of the eligible personal superannuation contributions the person makes during the income year; and
(c)
for the 2009-10, 2010-11 and 2011-12 income years - an amount equal to the sum of the eligible personal superannuation contributions the person makes during the income year; and
(d)
for the 2012-13 income year or a later income year - an amount equal to 50% of the sum of the eligible personal superannuation contributions the person makes during the income year.
(e)
(Repealed by No 90 of 2010)
History
S 9(1) amended by No 85 of 2013, s 3 and Sch 6 items 1-2, by substituting "2009-10, 2010-11 and 2011-12 income years" for "2009-10 income year or a later income year" and inserting para (d), applicable to the 2012-13 income year and later income years.
S 9(1) amended by No 90 of 2010, s 3 and Sch 1 item 1, by substituting para (c) for paras (c), (d) and (e), applicable to the 2009-10 income year and later income years. Paras (c), (d) and (e) formerly read:
(c)
for the 2009-10 income year, the 2010-11 income year or the 2011-12 income year - an amount equal to the sum of the eligible personal superannuation contributions the person makes during the income year; and
(d)
for the 2012-13 income year or the 2013-14 income year - an amount equal to 125% of the sum of the eligible personal superannuation contributions the person makes during the income year; and
(e)
for the 2014-15 income year or a later income year - an amount equal to 150% of the sum of the eligible personal superannuation contributions the person makes during the income year.
S 9(1) amended by No 62 of 2009, s 3 and Sch 2 items 1 to 3, by substituting "the 2004-05 income year, the 2005-06 income year, the 2006-07 income year, the 2007-08 income year or the 2008-09 income year" for "the 2004-05 income year or a later income year" in para (b), substituting "year; and" for "year." in para (b) and inserting paras (c), (d) and (e) at the end, applicable to the 2009-10 income year and later income years.
S 9(1) substituted by No 106 of 2004, s 3 and Sch 1 item 1, applicable to the 2004-05 income year and later income years. S 9(1) formerly read:
9(1)
The amount of the Government co-contribution in respect of a person for an income year is equal to the sum of the eligible personal superannuation contributions the person makes during the income year.
9(2)
[Effect]
Subsection (1) has effect subject to sections 10, 10A, 11, 12, 21, 22 and 23.
SECTION 10
TAPER BASED ON TOTAL INCOME FOR THE INCOME YEAR
10(1)
The amount of the Government co-contribution in respect of a person for the 2003-04 income year must not exceed the maximum amount worked out using the following table:
Table
Table
|
Maximum Government co-contribution
|
|
Item
|
Person's total income for the income year
|
Maximum amount
|
| 1 |
the lower income threshold or less |
$1,000 |
| 2 |
more than the lower income threshold but less than the higher income threshold |
$1,000 reduced by 8 cents for each dollar by which the person's total income for the income year exceeds the lower income threshold |
History
S 10(1) amended by No 106 of 2004, s 3 and Sch 1 item 2, by substituting "the 2003-04 income year" for "an income year", applicable to the 2004-05 income year and later income years.
10(1A)
The amount of the Government co-contribution in respect of a person for the 2004-05 income year, the 2005-06 income year, the 2006-07 income year, the 2007-08 income year or the 2008-09 income year must not exceed the maximum amount worked out using the following table:
Table
Table
|
Maximum Government co-contribution
|
|
Item
|
Person's total income for the income year
|
Maximum amount
|
| 1 |
the lower income threshold or less |
$1,500 |
| 2 |
more than the lower income threshold but less than the higher income threshold |
$1,500 reduced by 5 cents for each dollar by which the person's total income for the income year exceeds the lower income threshold |
History
S 10(1A) amended by No 62 of 2009, s 3 and Sch 2 item 4, by substituting "the 2004-05 income year, the 205-06 income year, the 2006-07 income year, the 2007-08 income year or the 2008-09 income year" for "the 2004-05 income year or a later income year", applicable to the 2009-10 income year and later income years.
S 10(1A) inserted by No 106 of 2004, s 3 and Sch 1 item 3, applicable to the 2004-05 income year and later income years.
10(1B)
The amount of the Government co-contribution in respect of a person for the 2009-10 income year, 2010-11 income year or 2011-12 income year must not exceed the maximum amount worked out using the following table:
|
Maximum Government co-contribution
|
|
Item
|
Person's total income for the income year
|
Maximum amount
|
| 1 |
the lower income threshold or less |
$1,000 |
| 2 |
more than the lower income threshold but less than the higher income threshold |
$1,000 reduced by 3.333 cents for each dollar by which the person's total income for the income year exceeds the lower income threshold |
History
S 10(1B) amended by No 85 of 2013, s 3 and Sch 6 item 3, by substituting "2009-10 income year, 2010-11 income year or 2011-12 income year" for "2009-10 income year or a later income year", applicable to the 2012-13 income year and later income years.
S 10(1B) substituted by No 90 of 2010, s 3 and Sch 1 item 2, applicable to the 2009-10 income year and later income years. S 10(1B) formerly read:
10(1B)
The amount of the Government co-contribution in respect of a person for the 2009-10 income year, the 2010-11 income year or the 2011-12 income year must not exceed the maximum amount worked out using the following table:
|
Maximum Government co-contribution
|
|
Item
|
Person's total income for the income year
|
Maximum amount
|
| 1 |
the lower income threshold or less |
$1,000 |
| 2 |
more than the lower income threshold but less than the higher income threshold |
$1,000 reduced by 3.333 cents for each dollar by which the person's total income for the income year exceeds the lower income threshold |
S 10(1B) inserted by No 62 of 2009, s 3 and Sch 2 item 5, applicable to the 2009-10 income year and later income years.
10(1C)
The amount of the Government co-contribution in respect of a person for the 2012-13 income year or a later income year must not exceed the maximum amount worked out using the following table:
|
Maximum Government co-contribution
|
|
Item
|
Person's total income for the income year
|
Maximum amount
|
| 1 |
the lower income threshold or less |
$500 |
| 2 |
more than the lower income threshold but less than the higher income threshold |
$500 reduced by 3.333 cents for each dollar by which the person's total income for the income year exceeds the lower income threshold |
History
S 10(1C) inserted by No 85 of 2013, s 3 and Sch 6 item 4, applicable to the 2012-13 income year and later income years.
Former s 10(1C) repealed by No 90 of 2010, s 3 and Sch 1 item 2, applicable to the 2009-10 income year and later income years. S 10(1C) formerly read:
10(1C)
The amount of the Government co-contribution in respect of a person for the 2012-13 income year or the 2013-14 income year must not exceed the maximum amount worked out using the following table:
|
Maximum Government co-contribution
|
|
Item
|
Person's total income for the income year
|
Maximum amount
|
| 1 |
the lower income threshold or less |
$1,250 |
| 2 |
more than the lower income threshold but less than the higher income threshold |
$1,250 reduced by 4.167 cents for each dollar by which the person's total income for the income year exceeds the lower income threshold |
Former s 10(1C) inserted by No 62 of 2009, s 3 and Sch 2 item 5, applicable to the 2009-10 income year and later income years.
10(1D)
(Repealed by No 90 of 2010)
History
S 10(1D) repealed by No 90 of 2010, s 3 and Sch 1 item 2, applicable to the 2009-10 income year and later income years. S 10(1D) formerly read:
10(1D)
The amount of the Government co-contribution in respect of a person for the 2014-15 income year or a later income year must not exceed the maximum amount worked out using the following table:
|
Maximum Government co-contribution
|
|
Item
|
Person's total income for the income year
|
Maximum amount
|
| 1 |
the lower income threshold or less |
$1,500 |
| 2 |
more than the lower income threshold but less than the higher income threshold |
$1,500 reduced by 5 cents for each dollar by which the person's total income for the income year exceeds the lower income threshold |
S 10(1D) inserted by No 62 of 2009, s 3 and Sch 2 item 5, applicable to the 2009-10 income year and later income years.
10(2)
Subsections (1), (1A), (1B) and (1C) have effect subject to sections
10A,
11,
12,
21,
22 and
23.
History
S 10(2) amended by No 85 of 2013, s 3 and Sch 6 item 5, by substituting ", (1B) and (1C)" for "and (1B)", applicable to the 2012-13 income year and later income years.
S 10(2) amended by No 90 of 2010, s 3 and Sch 1 item 3, by substituting "Subsections (1), (1A) and (1B)" for "Subsections (1), (1A), (1B), (1C) and (1D)", applicable to the 2009-10 income year and later income years.
S 10(2) amended by No 62 of 2009, s 3 and Sch 2 item 6, by substituting "Subsections (1), (1A), (1B), (1C) and (1D) have" for "Subsections (1) and (1A) has", applicable to the 2009-10 income year and later income years.
S 10(2) amended by No 106 of 2004, s 3 and Sch 1 item 4, by substituting "Subsections (1) and (1A)" for "Subsection (1)", applicable to the 2004-05 income year and later income years.
SECTION 10A
INCREASES IN LOWER AND HIGHER INCOME THRESHOLD
10A(1)
This section provides for:
(a)
indexation of the lower income threshold for the 2007-08 income year and later income years (apart from the 2010-11, 2011-12 and 2012-13 income years); and
(b)
increases in the higher income threshold for the 2007-08 income year and each later income year (apart from the 2010-11, 2011-12 and 2012-13 income years) equal to the indexation increase in the lower income threshold for that year.
History
S 10A(1) amended by No 85 of 2013, s 3 and Sch 6 item 6, by substituting ", 2011-12 and 2012-13" for "and 2011-12" (wherever occurring), applicable to the 2012-13 income year and later income years.
S 10A(1) amended by No 90 of 2010, s 3 and Sch 1 items 4 and 5, by inserting "(apart from the 2010-11 and 2011-12 income years)" after "later income years" in para (a) and after "each later income year" in para (b), applicable to the 2009-10 income year and later income years.
10A(2)
The
lower income threshold
for an income year is:
(a)
for the 2003-04 income year - $27,500; or
(b)
for the 2004-05 income year or a later income year before the 2007-08 income year - $28,000; or
(c)
for the 2007-08 income year - $28,000 multiplied by the indexation factor for that income year; or
(d)
for a later income year - the amount of the lower income threshold for the previous income year multiplied by the indexation factor for that later income year.
[
CCH Note:
The indexed lower income threshold amounts for the 2007/08 year onwards are:
| 2007/08 |
$28,980 |
| 2008/09 |
$30,342 |
| 2009/10 |
$31,920 |
| 2010/11 |
$31,920 |
| 2011/12 |
$31,920 |
| 2012/13 |
$31,920 |
| 2013/14 |
$33,516 |
| 2014/15 |
$34,488 |
| 2015/16 |
$35,454 |
| 2016/17 |
$36,021 |
| 2017/18 |
$36,813 |
| 2018/19 |
$37,697 |
| 2019/20 |
$38,564 |
| 2020/21 |
$39,837 |
| 2021/22 |
$41,112 |
| 2022/23 | $42,016 |
| 2023/24 |
$43,445] |
History
S 10A(2) substituted by No 106 of 2004, s 3 and Sch 1 item 5, applicable to the 2004-05 income year and later income years. S 10A(2) formerly read:
10A(2)
The
lower income threshold
for an income year is:
(a)
for an income year before the 2007-08 income year - $27,500; or
(b)
for the 2007-08 income year - $27,500 multiplied by the indexation factor for that income year; or
(c)
for a later income year - the amount of the lower income threshold for the previous income year multiplied by the indexation factor for that later income year.
10A(3)
The
higher income threshold
for an income year is:
(a)
for the 2003-04 income year - $40,000; or
(b)
for the 2004-05 income year or a later income year before the 2007-08 income year - $58,000; or
(c)
for the 2007-08 income year or a later income year before the 2012-13 income year - the sum of:
(i)
the lower income threshold for that income year; and
(ii)
$30,000; or
(d)
for the 2012-13 income year or a later income year - the sum of:
(i)
the lower income threshold for that income year; and
(ii)
$15,000.
History
S 10A(3) amended by No 85 of 2013, s 3 and Sch 6 items 7-8, by substituting "2007-08 income year or a later income year before the 2012-13 income year" for "2007-08 income year or a later income year" in para (c) and inserting para (d), applicable to the 2012-13 income year and later income years.
S 10A(3) substituted by No 106 of 2004, s 3 and Sch 1 item 5, applicable to the 2004-05 income year and later income years. S 10A(3) formerly read:
10A(3)
The
higher income threshold
for an income year is:
(a)
for an income year before the 2007-08 income year - $40,000; or
(b)
for a later income year - the sum of:
(i)
the lower income threshold for that later income year; and
(ii)
$12,500.
10A(4)
If the lower income threshold for an income year is an amount of dollars and cents:
(a)
if the number of cents is less than 50 - the lower income threshold is to be rounded down to the nearest whole dollar; or
(b)
otherwise - the lower income threshold is to be rounded up to the nearest whole dollar.
10A(5)
The
indexation factor
for an income year is the number calculated, to 3 decimal places, using the formula:
Index number for the last quarter in current year
Index number for the last quarter in previous year |
where:
current year
means the period of 12 months ending on 31 December immediately before the income year for which the lower income threshold is being calculated.
index number
, for a quarter, means the estimate of full-time adult average weekly ordinary time earnings for the middle month of the quarter published by the Australian Statistician.
previous year
means the period of 12 months immediately before the current year.
History
S 10A(5) amended by No 124 of 2013, s 3 and Sch 11 item 29, by substituting "31 December" for "31 March" in the definition of "current year", applicable in relation to working out the indexation factor for the 2013-14 income year and later income years.
10A(5A)
Despite subsection (5), the
indexation factor
for the 2010-11, 2011-12 and 2012-13 income years is 1.
History
S 10A(5A) amended by No 85 of 2013, s 3 and Sch 6 item 9, by substituting ", 2011-12 and 2012-13" for "and 2011-12", applicable to the 2012-13 income year and later income years.
S 10A(5A) inserted by No 90 of 2010, s 3 and Sch 1 item 6, applicable to the 2009-10 income year and later income years.
10A(6)
If the number calculated under subsection (5) for a financial year would, if it were worked out to 4 decimal places, end with a number greater than 4, the number so calculated is increased by 0.001.
10A(7)
If at any time, whether before or after the commencement of this Act, the Australian Statistician has published or publishes an index number for a quarter in substitution for an index number previously published for the quarter, the publication of the later index number is to be disregarded.
10A(8)
The Commissioner must publish before, or as soon as practicable after, the start of the 2007-08 income year, and before the start of each later income year, the lower income threshold and the higher income threshold for the income year.
SECTION 11
11
MINIMUM GOVERNMENT CO-CONTRIBUTION
If the amount of the Government co-contribution in respect of a person for an income year, as calculated under sections
9 and
10 would be less than $20, the amount of the co-contribution is to be increased to $20.
SECTION 12
GOVERNMENT CO-CONTRIBUTION INCREASED BY INTEREST AMOUNT IF PAID LATE IN CERTAIN CIRCUMSTANCES
12(1)
[Interest to be paid for late payments]
The amount of the Government co-contribution in respect of a person for an income year is increased by the amount of interest worked out under subsection (2) if the Commissioner pays none of the Government co-contribution on or before the payment date for the co-contribution.
12(2)
[Calculation of interest to be paid]
The interest is to be calculated:
(a)
on the amount of the Government co-contribution; and
(b)
for the period from the payment date for the Government co-contribution until the day on which the Commissioner first pays an amount in satisfaction of the Government co-contribution; and
(c)
on a daily basis; and
(d)
at the base interest rate for the day on which the interest is calculated.
History
S 12(2) amended by No 92 of 2004, s 3 and Sch 2 item 1, by substituting ``base interest rate for the day on which the interest is calculated'' for ``rate specified in the regulations'' in para (d), effective 29 June 2004.
SECTION 12A
AMOUNT OF THE GOVERNMENT CO-CONTRIBUTION FOR 2005-06 INCOME YEAR
12A(1)
[Application]
This section applies for the purposes of working out the amount of the Government co-contribution in respect of a person for the 2005-06 income year.
12A(2)
[Amount]
Despite sections 9, 10, 10A and 11, that amount is double the amount worked out under those sections in respect of the person for the 2005-06 income year.
12A(3)
[Underpayments; late payments]
Subsection (2) has effect subject to sections 12, 21, 22 and 23.
12A(4)
[Interest payments]
For the purposes of working out an amount of interest under section 12, 21 or 22 in relation to the Government co-contribution in respect of a person for the 2005-06 income year:
(a)
disregard subsection (2); and
(b)
treat an amount paid by the Commissioner as not including any amount paid by the Commissioner because of subsection (2).
History
S 12A inserted by No 67 of 2007, s 3 and Sch 1 item 1, effective 15 May 2007.
PART 2A - LOW INCOME SUPERANNUATION TAX OFFSET
History
Pt 2A inserted by No 81 of 2016, s 3 and Sch 4 item 2, effective 2 July 2017.No 81 of 2016, s 3 and Sch 4 item 6 contains the following application provision:
6 Application of amendments
(1)
The amendments made apply to the 2017-18 income year and later income years.
(2)
The following provisions of the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 apply in relation to a low income superannuation contribution in the same way as they apply in relation to a low income superannuation tax offset:
(a)
sections 24 and 25;
(b)
any other provision of that Act to the extent that it relates to the provisions mentioned in paragraph (a).
Pt 2A repealed by No 96 of 2014, s 3 and Sch 7 item 2, effective 1 July 2017. For application and transitional provisions, see note under s 5(2). Pt 2A formerly read:
PART 2A - LOW INCOME SUPERANNUATION CONTRIBUTION
SECTION 12B REFERENCE TO GOVERNMENT CO-CONTRIBUTION INCLUDES REFERENCE TO LOW INCOME SUPERANNUATION CONTRIBUTION
12B(1)
A law of the Commonwealth applies in relation to a low income superannuation contribution in the same way as it applies in relation to a Government co-contribution.
12B(2)
Subsection (1) does not apply to:
(a)
the following provisions:
(i)
Part 2 of this Act (other than section 12);
(ii)
this Part;
(iia)
section 23;
(iii)
section 54 of this Act; and
(b)
any other law of the Commonwealth, to the extent that the other law relates to a provision mentioned in paragraph (a) of this subsection.
History
S 12B(2) amended by No 82 of 2013, s 3 and Sch 2 item 2, by inserting para (a)(iia), applicable to the 2012-13 income year and later income years.
12B(3)
Paragraph 14(1)(a) (Commissioner to have regard to income tax return) does not apply in deciding whether to make a determination under section 13 that a low income superannuation contribution is payable under subsection 12C(2) in respect of a person for an income year.
History
S 12B(3) substituted by No 82 of 2013, s 3 and Sch 2 item 3, applicable to the 2012-13 income year and later income years. S 12B(3) formerly read:
12B(3)
Paragraph 14(1)(a) (Commissioner to have regard to income tax return) does not apply in relation to a determination under section 13 if:
(a)
the determination relates to the payability of a low income superannuation contribution in respect of a person for an income year; and
(b)
the person was not required to lodge an income tax return for the income year.
12B(4)
Subsections 24(3) and (4) have an operation in respect of low income superannuation contributions that is separate to their operation in respect of Government co-contributions.
SECTION 12C PERSON ENTITLED TO LOW INCOME SUPERANNUATION CONTRIBUTION
12C(1)
A low income superannuation contribution is payable under this subsection in respect of a person for an income year of the person if:
(a)
the person's concessional contributions for the financial year that corresponds to the income year are for a financial year starting on or after 1 July 2012; and
(b)
the person's adjusted taxable income for the income year (worked out in accordance with Schedule 3 to the A New Tax System (Family Assistance) Act 1999 (disregarding clauses 3 and 3A of that Schedule)) does not exceed $37,000; and
(c)
the requirement in paragraph 6(1)(b) is satisfied in respect of the person in relation to the income year; and
(d)
the requirement in paragraph 6(1)(f) is satisfied in respect of the person in relation to the income year.
History
S 12C(1) renumbered from s 12C and amended by No 82 of 2013, s 3 and Sch 2 items 4-6, by inserting "(1)" before "A low", substituting "payable under this subsection" for "payable under this Act", and substituting para (a), applicable to the 2012-13 income year and later income years. Para (a) formerly read:
(a)
one or more superannuation contributions covered by section 12D are made during the income year by or for the person; and
12C(2)
A low income superannuation contribution is payable under this subsection in respect of a person for an income year of the person if:
(a)
the person's concessional contributions for the financial year that corresponds to the income year are for a financial year starting on or after 1 July 2012; and
(b)
12 months after the end of the income year, the Commissioner reasonably believes there is insufficient information to decide whether to make a determination under section 13 that a low income superannuation contribution is payable under subsection (1) in respect of the person for the income year; and
(c)
the Commissioner estimates that:
(i)
the person's adjusted taxable income for the income year (worked out in accordance with Schedule 3 to the A New Tax System (Family Assistance) Act 1999 (disregarding clauses 3 and 3A of that Schedule) does not exceed $37,000; and
(ii)
10% or more of the person's total income for the income year (disregarding subsections 8(2) and (3)) is attributable to the person engaging in activities covered under subsection 6(2); and
(d)
the requirement in paragraph 6(1)(f) is satisfied in respect of the person in relation to the income year.
History
S 12C(2) inserted by No 82 of 2013, s 3 and Sch 2 item 7, applicable to the 2012-13 income year and later income years.
12C(3)
For the purposes of paragraph (1)(c), disregard the words "in which the person makes the contribution" in paragraph 6(2)(a).
History
S 12C(3) inserted by No 82 of 2013, s 3 and Sch 2 item 7, applicable to the 2012-13 income year and later income years.
12C(4)
For the purposes of subparagraph (2)(c)(i), treat the person as having total deductions of $300 for the income year unless the Commissioner has information to the contrary.
History
S 12C(4) inserted by No 82 of 2013, s 3 and Sch 2 item 7, applicable to the 2012-13 income year and later income years.
12C(5)
For the purposes of subparagraph (2)(c)(ii), disregard the words "in the income year in which the person makes the contribution" in paragraph 6(2)(a).
History
S 12C(5) inserted by No 82 of 2013, s 3 and Sch 2 item 7, applicable to the 2012-13 income year and later income years.
SECTION 12D
SECTION 12D CONTRIBUTIONS THAT ATTRACT MATCHING LOW INCOME SUPERANNUATION CONTRIBUTION
12D
A contribution made by or for a person is covered by this section if:
(a)
the contribution was or is made on or after 1 July 2012; and
(b)
the contribution is a concessional contribution (within the meaning of the Income Tax Assessment Act 1997) for the financial year that corresponds to the income year in which the contribution was or is made; and
(c)
the contribution was or is made for the purpose of providing superannuation benefits for the person (regardless of whether the benefits are payable to the person's dependants if the person dies before or after becoming entitled to receive the benefits).
SECTION 12E AMOUNT OF LOW INCOME SUPERANNUATION CONTRIBUTION
12E(1)
This section applies if a low income superannuation contribution is payable under subsection 12C(1) or (2) in respect of a person for an income year.
History
S 12E(1) amended by No 82 of 2013, s 3 and Sch 2 item 9, by substituting "low income superannuation contribution is payable under subsection 12C(1) or (2) in respect of a person for an income year" for "person is entitled to a low income superannuation contribution for an income year of the person under section 12C", applicable to the 2012-13 income year and later income years.
12E(2)
The amount of the person's low income superannuation contribution for the income year is:
(a)
unless paragraph (b) or (c) applies - 15% of the total of the person's concessional contributions for the financial year that corresponds to the income year; or
(b)
if the amount worked out under paragraph (a) exceeds $500 - $500; or
(c)
if the amount worked out under paragraph (a) is less than $10 - $10.
History
S 12E(2) amended by No 82 of 2013, s 3 and Sch 2 items 10-11, by substituting "person's concessional contributions for the financial year that corresponds to the income year" for "superannuation contributions covered by section 12D made by or for the person during the income year" in para (a), and substituting para (c), applicable to the 2012-13 income year and later income years. Para (c) formerly read:
(c)
if the amount worked out under paragraph (a) falls short of $20 - nil.
12E(3)
If, apart from this subsection:
(a)
there would be an underpaid amount as mentioned in section 19 in respect of the person's low income superannuation contribution for the income year; and
(b)
the underpaid amount would be less than $10;
decrease the amount of that low income superannuation contribution by that underpaid amount.
History
S 12E(3) inserted by No 82 of 2013, s 3 and Sch 2 item 12, applicable to the 2012-13 income year and later income years.
12E(4)
If, apart from this subsection:
(a)
there would be an amount overpaid as mentioned in section 24 in respect of the person's low income superannuation contribution for the income year; and
(b)
the amount overpaid would be less than $10;
increase the amount of that low income superannuation contribution by that amount overpaid.
History
S 12E(4) inserted by No 82 of 2013, s 3 and Sch 2 item 12, applicable to the 2012-13 income year and later income years.
SECTION 12F CONSEQUENCES IF ESTIMATES NO LONGER ACCURATE
12F(1)
Treat a low income superannuation contribution as never having been payable under subsection 12C(2) in respect of a person for an income year if:
(a)
the Commissioner obtains information after making the determination under section 13 that the contribution was so payable; and
(b)
the Commissioner decides that, had the Commissioner obtained that information before making the determination, the Commissioner would not have made the determination.
Note:
The contribution will be recoverable under section 24.
12F(2)
The Commissioner must give the person written notice of the Commissioner's decision under paragraph (1)(b).
SECTION 12G REPORTS ON THIS PART
12G(1)
After the end of each quarter the Commissioner must give the Minister a report, for presentation to the Parliament, on the working of this Part during the quarter. The report must include, for the quarter to which the report relates, the prescribed details about beneficiaries of, and amounts of, low income superannuation contributions.
12G(2)
After the end of each financial year the Commissioner must give the Minister a report, for presentation to the Parliament, that:
(a)
is on the working of this Part during the financial year; and
(b)
includes, for the financial year to which the report relates, the prescribed details about beneficiaries of, and amounts of, low income superannuation contributions.
Former Pt 2A inserted by No 23 of 2012, s 3 and Sch 4 item 2, applicable to the 2012-13 income year and later income years.
SECTION 12B
REFERENCE TO GOVERNMENT CO-CONTRIBUTION INCLUDES REFERENCE TO LOW INCOME SUPERANNUATION TAX OFFSET
12B(1)
A law of the Commonwealth applies in relation to a low income superannuation tax offset in the same way as it applies in relation to a Government co-contribution.
12B(2)
Subsection (1) does not apply to:
(a)
the following provisions:
(i)
Part 2 of this Act (other than section 12);
(ii)
this Part;
(iii)
section 23 of this Act;
(iv)
section 54 of this Act; and
(b)
any other law of the Commonwealth, to the extent that the other law relates to a provision mentioned in paragraph (a) of this subsection.
12B(3)
Paragraph
14(1)(a) (Commissioner to have regard to income tax return) does not apply in deciding whether to make a determination under section
13 that a low income superannuation tax offset is payable under subsection
12C(2) in respect of a person for an income year.
12B(4)
Subsections
24(3) and
(4) have an operation in respect of low income superannuation tax offsets that is separate to their operation in respect of Government co-contributions.
History
S 12B inserted by No 81 of 2016, s 3 and Sch 4 item 2, effective 2 July 2017. For application provision, see note under s 5(2).
Former s 12B repealed by No 96 of 2014, s 3 and Sch 7 item 2, effective 1 July 2017. For application and transitional provisions, see note under s 5(2). See former wording under Pt 2A heading.
Former s 12B inserted by No 23 of 2012, s 3 and Sch 4 item 2, applicable to the 2012-13 income year and later income years.
SECTION 12C
PERSON ENTITLED TO LOW INCOME SUPERANNUATION TAX OFFSET
12C(1)
A low income superannuation tax offset is payable under this subsection in respect of a person for an income year of the person if:
(a)
the person's concessional contributions for the financial year that corresponds to the income year are for a financial year starting on or after 1 July 2017; and
(b)
the person's adjusted taxable income for the income year (worked out in accordance with Schedule
3 to the
A New Tax System (Family Assistance) Act 1999 (disregarding clauses
3 and
3A of that Schedule)) does not exceed $37,000; and
(c)
the requirement in paragraph
6(1)(b) is satisfied in respect of the person in relation to the income year; and
(d)
the requirement in paragraph
6(1)(f) is satisfied in respect of the person in relation to the income year.
12C(2)
A low income superannuation tax offset is payable under this subsection in respect of a person for an income year of the person if:
(a)
the person's concessional contributions for the financial year that corresponds to the income year are for a financial year starting on or after 1 July 2017; and
(b)
12 months after the end of the income year, the Commissioner reasonably believes there is insufficient information to decide whether to make a determination under section
13 that a low income superannuation tax offset is payable under subsection (1) in respect of the person for the income year; and
(c)
the Commissioner estimates that:
(i)
the person's adjusted taxable income for the income year (worked out in accordance with Schedule 3 to the A New Tax System (Family Assistance) Act 1999 (disregarding clauses 3 and 3A of that Schedule)) does not exceed $37,000; and
(ii)
10% or more of the person's total income for the income year (disregarding subsections 8(2) and (3)) is attributable to the person engaging in activities covered under subsection 6(2); and
(d)
the requirement in paragraph
6(1)(f) is satisfied in respect of the person in relation to the income year.
12C(3)
For the purposes of paragraph (1)(c), disregard the words "in which the person makes the contribution" in paragraph
6(2)(a).
12C(4)
For the purposes of subparagraph (2)(c)(i), treat the person as having total deductions of $300 for the income year unless the Commissioner has information to the contrary.
12C(5)
For the purposes of subparagraph (2)(c)(ii), disregard the words "in the income year in which the person makes the contribution" in paragraph
6(2)(a).
History
S 12C inserted by No 81 of 2016, s 3 and Sch 4 item 2, effective 2 July 2017. For application provision, see note under s 5(2).
Former s 12C repealed by No 96 of 2014, s 3 and Sch 7 item 2, effective 1 July 2017. For application and transitional provisions see note under s 5(2) . See former wording under Pt 2A heading.
Former s 12C inserted by No 23 of 2012, s 3 and Sch 4 item 2, applicable to the 2012-13 income year and later income years.
12D
(Repealed) SECTION 12D CONTRIBUTIONS THAT ATTRACT MATCHING LOW INCOME SUPERANNUATION CONTRIBUTION
(Repealed by No 82 of 2013)
History
S 12D repealed by No 82 of 2013, s 3 and Sch 2 item 8, applicable to the 2012-13 income year and later income years. See former wording under Pt 2A heading.
S 12D inserted by No 23 of 2012, s 3 and Sch 4 item 2, applicable to the 2012-13 income year and later income years.
SECTION 12E
AMOUNT OF LOW INCOME SUPERANNUATION TAX OFFSET
12E(1)
This section applies if a low income superannuation tax offset is payable under subsection
12C(1) or
(2) in respect of a person for an income year.
12E(2)
The amount of the person's low income superannuation tax offset for the income year is:
(a)
unless paragraph (b) or (c) applies - 15% of the total of the person's concessional contributions for the financial year that corresponds to the income year; or
(b)
if the amount worked out under paragraph (a) exceeds $500 - $500; or
(c)
if the amount worked out under paragraph (a) is less than $10 - $10.
12E(3)
For the purposes of paragraph (2)(a), disregard:
(a)
contributions or amounts covered by paragraph
291-370(1)(a) of the
Income Tax Assessment Act 1997 (about contributions or amounts in relation to constitutionally protected funds); and
(b)
any other amounts covered by paragraph
291-165(1)(c) of that Act.
12E(4)
If, apart from this subsection:
(a)
there would be an underpaid amount as mentioned in section 19 in respect of the person's low income superannuation tax offset for the income year; and
(b)
the underpaid amount would be less than $10;
decrease the amount of that low income superannuation tax offset by that underpaid amount.
12E(5)
If, apart from this subsection:
(a)
there would be an amount overpaid as mentioned in section
24 in respect of the person's low income superannuation tax offset for the income year; and
(b)
the amount overpaid would be less than $10;
increase the amount of that low income superannuation tax offset by that amount overpaid.
History
S 12E inserted by No 81 of 2016, s 3 and Sch 4 item 2, effective 2 July 2017. For application provision, see note under s 5(2).
Former s 12E repealed by No 96 of 2014, s 3 and Sch 7 item 2, effective 1 July 2017. For application and transitional provisions see note under s 5(2) . See former wording under Pt 2A heading.
Former s 12E inserted by No 23 of 2012, s 3 and Sch 4 item 2, applicable to the 2012-13 income year and later income years.
SECTION 12F
CONSEQUENCES IF ESTIMATES NO LONGER ACCURATE
12F(1)
Treat a low income superannuation tax offset as never having been payable under subsection
12C(2) in respect of a person for an income year if:
(a)
the Commissioner obtains information after making the determination under section
13 that the tax offset was so payable; and
(b)
the Commissioner decides that, had the Commissioner obtained that information before making the determination, the Commissioner would not have made the determination.
Note:
The tax offset will be recoverable under section 24.
12F(2)
The Commissioner must give the person written notice of the Commissioner's decision under paragraph (1)(b).
History
S 12F inserted by No 81 of 2016, s 3 and Sch 4 item 2, effective 2 July 2017. For application provision, see note under s 5(2).
Former s 12F repealed by No 96 of 2014, s 3 and Sch 7 item 2, effective 1 July 2017. For application and transitional provisions see note under s 5(2) . See former wording under Pt 2A heading.
Former s 12F inserted by No 82 of 2013, s 3 and Sch 2 item 13, applicable to the 2012-13 income year and later income years.
SECTION 12G
REPORTS ON THIS PART
12G(1)
After the end of each quarter the Commissioner must give the Minister a report, for presentation to the Parliament, on the working of this Part during the quarter. The report must include, for the quarter to which the report relates, the prescribed details about beneficiaries of, and amounts of, low income superannuation tax offsets.
12G(2)
After the end of each financial year the Commissioner must give the Minister a report, for presentation to the Parliament, that:
(a)
is on the working of this Part during the financial year; and
(b)
includes, for the financial year to which the report relates, the prescribed details about beneficiaries of, and amounts of, low income superannuation tax offsets.
History
S 12G inserted by No 81 of 2016, s 3 and Sch 4 item 2, effective 2 July 2017. For application provision, see note under s 5(2).
Former s 12G repealed by No 96 of 2014, s 3 and Sch 7 item 2, effective 1 July 2017. For application and transitional provisions see note under s 5(2) . See former wording under Pt 2A heading.
Former s 12G inserted by No 82 of 2013, s 3 and Sch 2 item 13, applicable to the 2012-13 income year and later income years.
PART 3 - DETERMINATION THAT GOVERNMENT CO-CONTRIBUTION PAYABLE
SECTION 13
COMMISSIONER'S DETERMINATION
13(1)
[Commissioner to determine if payment to be made]
The Commissioner must determine that a Government co-contribution is payable in respect of a person for an income year if the Commissioner is satisfied that the co-contribution is payable in respect of the person for the income year.
13(2)
[Regulations may prescribe timing of payment]
The regulations may prescribe the time within which determinations under this section are to be made.
SECTION 14
MATTERS COMMISSIONER HAS REGARD TO IN MAKING DETERMINATION
14(1)
In deciding whether to make a determination under section 13, the Commissioner must have regard to:
(a)
the income tax return lodged for the person for the income year; and
(b)
information about the contributions made to a complying superannuation fund, or an RSA, during the income year by, or in respect of, the person contained in:
(i)
statements given to the Commissioner by superannuation providers under the Superannuation Contributions Tax (Assessment and Collection) Act 1997; and
(ii)
statements given to the Commissioner by superannuation providers under the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997; and
(iii)
statements given to the Commissioner under Division 390 in Schedule 1 to the Taxation Administration Act 1953; and
(c)
information provided to the Commissioner in relation to the income year in response to requirements by the Commissioner under paragraph 353-10(1)(a) in Schedule
1 to the
Taxation Administration Act 1953 for the purpose of the administration or operation of this Act; and
(d)
any other information that:
(i)
is held or was obtained by the Commissioner under or for the purposes of a taxation law (within the meaning of the Income Tax Assessment Act 1997); and
(ii)
the Commissioner considers is reasonably necessary to make the determination.
History
S 14(1) amended by No 2 of 2015, s 3 and Sch 2 item 56, by omitting "requests by the Commissioner under sections 30 and 31 of this Act, or" before "requirements by the Commissioner" from para (c), effective 1 July 2015.
S 14(1) amended by No 2 of 2015, s 3 and Sch 2 item 7, by inserting ", or requirements by the Commissioner under paragraph 353-10(1)(a) in Schedule 1 to the Taxation Administration Act 1953 for the purpose of the administration or operation of this Act" in para (c), effective 25 February 2015.
S 14(1) amended by No 23 of 2012, s 3 and Sch 4 item 3, by inserting para (d), applicable to the 2012-13 income year and later income years.
S 14(1) amended by No 9 of 2007, s 3 and Sch 4 item 1, by substituting para (b)(iii), applicable in relation to things that are done and events that occur on or after 1 July 2007. Para (b)(iii) formerly read:
(iii)
statements given to the Commissioner under section 26 of this Act; and
14(2)
Paragraph (1)(b) does not apply if:
(a)
the person dies during the income year; and
(b)
the trustee of the person's estate requests the Commissioner to make a determination before the statements referred to in that paragraph are given to the Commissioner.
PART 4 - PAYMENT OF THE GOVERNMENT CO-CONTRIBUTION
SECTION 15
COMMISSIONER TO DETERMINE WHERE THE GOVERNMENT CO-CONTRIBUTION PAYMENT IS TO BE DIRECTED
15(1)
[Payment destination]
If the Commissioner makes a determination under section 13 that a Government co-contribution is payable in respect of a person for an income year, the Commissioner must determine whether the co-contribution is to be paid:
(a)
to the trustee of a complying superannuation fund for crediting to an account of the person within that fund; or
(b)
to the provider of an RSA that the person holds for crediting to the RSA; or
(c)
to the person; or
(d)
to the person's legal personal representative; or
(e)
into an account of the person in the Superannuation Holding Accounts Special Account.
History
S 15(1) amended by No 8 of 2005, s 3 and Sch 1 item 411, by substituting ``Special Account'' for ``Account'' in para (e), effective 22 February 2005.
S 15(1) amended by No 92 of 2004, s 3 and Sch 2 item 18, by substituting ``Superannuation Holding Accounts Account'' for ``Superannuation Holding Accounts Reserve'' in para (e), effective 29 June 2004.
15(2)
[Which account]
If the Commissioner makes a determination under paragraph (1)(a) or (b), the Commissioner must also determine which particular account the Government co-contribution is to be paid into.
15(3)
[Compliance with regulations]
The Commissioner must make determinations under subsections (1) and (2) in accordance with the regulations made for the purposes of this section.
15(4)
[When Commissioner may revoke determination]
The Commissioner may revoke a determination made under this section if the Commissioner is satisfied that:
(a)
payment of the Government co-contribution cannot be effected in accordance with the determination; or
(b)
it is otherwise appropriate in the circumstances to revoke the determination.
15(5)
[Regulations may prescribe timing]
The regulations may prescribe the time within which determinations under this section are to be made.
SECTION 16
SUPERANNUATION PROVIDER TO RETURN GOVERNMENT CO-CONTRIBUTION THAT CANNOT BE CREDITED TO ACCOUNT
16(1)
If:
(a)
a Government co-contribution in respect of a person is paid:
(i)
to the trustee of a complying superannuation fund for crediting to an account of the person within that fund; or
(ii)
to the provider of an RSA that the person holds for crediting to the RSA; and
(b)
the trustee or the provider has not credited the co-contribution to an account of that kind by the end of the 28th day after the day on which the co-contribution was paid to the trustee or the provider;
the trustee or the provider:
(c)
is liable to repay the co-contribution to the Commonwealth; and
(d)
must give the Commissioner a statement, in the approved form, in relation to the co-contribution at the time when the co-contribution is repaid.
Note:
Section 25 provides for the imposition of general interest charge if the co-contribution is not repaid within a certain period.
History
S 16(1) amended by No 70 of 2015, s 3 and Sch 6 item 43, by substituting "approved form," for "approved form" in para (d), effective 25 June 2015.
S 16(1) amended by No 2 of 2015, s 3 and Sch 2 item 112, by substituting "a statement, in the approved form" for "the prescribed information" in para (d), effective 25 February 2015.
S 16(1) amended by No 92 of 2004, s 3 and Sch 2 items 7 and 8, by substituting para (b) and inserting the note at the end, effective 29 June 2004. Para (b) formerly read:
(b)
the trustee or the provider is not able to credit the co-contribution to an account of that kind;
16(2)
The Commissioner may recover from the trustee or provider the amount the trustee or provider is liable to repay under subsection (1) as a debt due to the Commonwealth.
16(3)
The trustee or provider commits an offence if the trustee or provider fails to give the Commissioner a statement, in the approved form, in relation to the co-contribution at the time when the co-contribution is repaid.
Penalty: 50 penalty units.
History
S 16(3) amended by No 70 of 2015, s 3 and Sch 6 item 44, by substituting "a statement, in the approved form," for "the prescribed information", effective 25 June 2015.
16(4)
An offence against subsection (3) is an offence of strict liability.
SECTION 17
PAYMENT OF GOVERNMENT CO-CONTRIBUTION
17(1)
[Payment only if determinations made]
The Commissioner must, in accordance with determinations made under sections 13 and 15, pay the Government co-contribution payable in respect of a person for an income year on or before the payment date for the Government co-contribution.
17(2)
[Regulations may prescribe payment date]
The payment date for a Government co-contribution is to be worked out in accordance with the regulations.
17(3)
[Payment date can be before determination]
The regulations may provide that, in the circumstances specified in the regulations, the payment date for a Government co-contribution is to be a day that occurs before the determinations under sections 13 and 15 are made in relation to the Government co-contribution.
SECTION 18
COMMISSIONER TO GIVE INFORMATION IF CO-CONTRIBUTION PAID
18(1)
[Details to be provided to payee or representative]
If the Commissioner pays a Government co-contribution in respect of a person to:
(a)
the person; or
(b)
the person's legal personal representative;
the Commissioner must give the person or the representative the prescribed information in relation to the co-contribution at the time the co-contribution is paid.
Note:
The person will be given the details of the contribution:
(a) by the superannuation provider under the Corporations Regulations 2001 if the Government co-contribution is paid into a complying superannuation fund or an RSA account; and
(b) by the Commissioner under the Small Superannuation Accounts Act 1995 if the Government co-contribution is paid into an account in the Superannuation Holding Accounts Special Account.
History
S 18(1) amended by No 8 of 2005, s 3 and Sch 1 item 412, by substituting ``Special Account'' for ``Account'' in para (b) of the note, effective 22 February 2005.
S 18(1) amended by No 92 of 2004, s 3 and Sch 2 item 19, by substituting ``Superannuation Holding Accounts Account'' for ``Superannuation Holding Accounts Reserve'' in para (b) of the note, effective 29 June 2004.
18(2)
[Details to be provided to trustee or provider]
If the Commissioner pays a Government co-contribution in respect of a person to:
(a)
the trustee of a complying superannuation fund for crediting to an account of the person within that fund; or
(b)
the provider of an RSA that the person holds for crediting to the RSA;
the Commissioner must give the trustee or provider the prescribed information in relation to the co-contribution at the time the co-contribution is paid.
PART 5 - UNDERPAYMENTS AND OVERPAYMENTS
Division 1 - Underpayments
SECTION 19
UNDERPAYMENT DETERMINATIONS
19(1)
[Application]
This section applies if the Commissioner:
(a)
pays an amount by way of Government co-contribution in respect of a person for an income year; and
(b)
is satisfied that the amount paid is less than the correct amount of the co-contribution.
19(2)
[``underpaid amount'']
The amount by which the correct amount exceeds the amount paid is the
underpaid amount
.
19(3)
[Determination must be made]
The Commissioner must determine that the underpaid amount is to be paid in respect of the person for the income year.
19(4)
[Commissioner must determine where to pay]
If the Commissioner makes a determination under subsection (3), the Commissioner must determine whether the underpaid amount is to be paid:
(a)
to the trustee of a complying superannuation fund for crediting to an account of the person within that fund; or
(b)
to the provider of an RSA that the person holds for crediting to the RSA; or
(c)
to the person; or
(d)
to the person's legal personal representative; or
(e)
into an account of the person in the Superannuation Holding Accounts Special Account.
History
S 19(4) amended by No 8 of 2005, s 3 and Sch 1 item 413, by substituting ``Special Account'' for ``Account'' in para (e), effective 22 February 2005.
S 19(4) amended by No 92 of 2004, s 3 and Sch 2 item 20, by substituting ``Superannuation Holding Accounts Account'' for ``Superannuation Holding Accounts Reserve'' in para (e), effective 29 June 2004.
19(5)
[Commissioner must determine which account]
If the Commissioner makes a determination under paragraph (4)(a) or (b), the Commissioner must also determine which particular account the underpaid amount is to be paid into.
19(6)
[Commissioner must follow Regulations]
The Commissioner must make determinations under subsections (4) and (5) in accordance with the regulations made for the purposes of this section.
19(7)
[Revocation of determination]
The Commissioner may revoke a determination made under this section if the Commissioner is satisfied that:
(a)
payment of the underpaid amount cannot be effected in accordance with the determination; or
(b)
it is otherwise appropriate in the circumstances to revoke the determination.
19(8)
[Regulations may prescribe timing]
The regulations may prescribe the time within which determinations under this section are to be made.
19(9)
[Timing]
The Commissioner must, in accordance with the determinations made under this section, pay the underpaid amount on or before the payment date for the underpaid amount.
SECTION 20
SUPERANNUATION PROVIDER TO RETURN UNDERPAID AMOUNT THAT CANNOT BE CREDITED TO ACCOUNT
20(1)
If:
(a)
the underpaid amount in respect of a person is paid:
(i)
to the trustee of a complying superannuation fund for crediting to an account of the person within that fund; or
(ii)
to the provider of an RSA that the person holds for crediting to the RSA; and
(b)
the trustee or the provider has not credited the underpaid amount to an account of that kind by the end of the 28th day after the day on which the co-contribution was paid to the trustee or the provider;
the trustee or the provider:
(c)
is liable to repay the underpaid amount to the Commonwealth; and
(d)
must give the Commissioner a statement, in the approved form, in relation to the underpaid amount at the time when the underpaid amount is repaid.
Note:
Section 25 provides for the imposition of general interest charge if the underpaid amount is not repaid within a certain period.
History
S 20(1) amended by No 70 of 2015, s 3 and Sch 6 item 45, by substituting "approved form," for "approved form" in para (d), effective 25 June 2015.
S 20(1) amended by No 2 of 2015, s 3 and Sch 2 item 112, by substituting "a statement, in the approved form" for "the prescribed information" in para (d), effective 25 February 2015.
S 20(1) amended by No 92 of 2004, s 3 and Sch 2 items 9 and 10, by substituting para (b) and inserting the note at the end, effective 29 June 2004. Para (b) formerly read:
(b)
the trustee or the provider is not able to credit the underpaid amount to an account of that kind;
20(2)
The Commissioner may recover from the trustee or provider the amount the trustee or provider is liable to repay under subsection (1) as a debt due to the Commonwealth.
20(3)
The trustee or provider commits an offence if the trustee or provider fails to give the Commissioner a statement, in the approved form, in relation to the underpaid amount at the time when the underpaid amount is repaid.
Penalty: 50 penalty units.
History
S 20(3) amended by No 70 of 2015, s 3 and Sch 6 item 46, by substituting "a statement, in the approved form," for "the prescribed information", effective 25 June 2015.
20(4)
An offence against subsection (3) is an offence of strict liability.
SECTION 21
GOVERNMENT CO-CONTRIBUTION INCREASED BY INTEREST AMOUNT IF UNDERPAID AMOUNT PAID LATE IN CERTAIN CIRCUMSTANCES
21(1)
[Late payments]
The amount of the Government co-contribution in respect of a person for an income year is increased by the amount of interest worked out under subsection (3) if the Commissioner does not pay the underpaid amount in full on or before the payment date for the underpaid amount.
21(2)
[Payment date in accordance with regulations]
The payment date for the underpaid amount is to be worked out in accordance with the regulations.
21(3)
[Interest]
The interest is to be calculated:
(a)
on the underpaid amount that remains unpaid on the payment date for the underpaid amount; and
(b)
for the period from the payment date for the underpaid amount (see subsection (2)) until the day on which the underpaid amount is paid in full; and
(c)
on a daily basis; and
(d)
at the base interest rate for the day on which the interest is calculated.
History
S 21(3) amended by No 92 of 2004, s 3 and Sch 2 item 2, by substituting ``base interest rate for the day on which the interest is calculated'' for ``rate specified in the regulations'' in para (d), effective 29 June 2004.
SECTION 22
GOVERNMENT CO-CONTRIBUTION INCREASED BY INTEREST AMOUNT IF UNDERPAID AMOUNT DUE TO ADMINISTRATIVE ERROR
22(1)
[Determination to correct error]
This section applies if:
(a)
the Commissioner makes a determination under section
19 that an underpaid amount is to be paid in respect of a person for an income year; and
(b)
the determination is made on the basis that a particular amount is the correct amount of the Government co-contribution payable in respect of the person for the income year; and
(c)
the determination is necessary to correct an administrative error.
22(2)
[``payment shortfall'']
The
payment shortfall
is the difference between:
(a)
the amount referred to in paragraph (1)(b); and
(b)
the sum of the amounts that have already been paid by way of Government co-contribution in respect of the person for the income year before the determination under section
19 is made.
22(3)
[Interest]
The amount of the Government co-contribution in respect of the person for the income year is increased by the amount of interest worked out under subsection (4).
22(4)
[Calculation of interest]
The interest is to be calculated:
(a)
on the amount of the payment shortfall; and
(b)
for the period from the payment date for the Government co-contribution (see subsection
17(2)) until the payment date for the underpaid amount (see subsection
21(2)); and
(c)
on a daily basis; and
(d)
at the base interest rate for the day on which the interest is calculated.
History
S 22(4) amended by No 92 of 2004, s 3 and Sch 2 item 3, by substituting ``base interest rate for the day on which the interest is calculated'' for ``rate specified in the regulations'' in para (d), effective 29 June 2004.
22(5)
[Regulations]
The regulations:
(a)
may provide that an error of a kind specified in the regulations is an administrative error for the purposes of this section; and
(b)
may provide that an error of a kind specified in the regulations is not an administrative error for the purposes of this section.
SECTION 23
23
SMALL UNDERPAYMENTS
If:
(a)
the Commissioner makes a determination under section 19 in relation to a Government co-contribution in respect of a person for an income year; and
(b)
the underpaid amount is less than $5; and
(c)
the underpaid amount is to be paid by cheque to:
(i)
the person; or
(ii)
the person's legal personal representative;
the amount of the co-contribution is increased by the difference between $5 and the underpaid amount.
Division 2 - Recovery of overpayments
SECTION 24
RECOVERY OF OVERPAYMENT OF GOVERNMENT CO-CONTRIBUTION IN RESPECT OF A PERSON
24(1)
[Application]
This section applies if:
(a)
the Commissioner pays an amount by way of Government co-contribution in respect of a person for an income year; and
(b)
either:
(i)
the co-contribution was not payable in respect of the person for the income year; or
(ii)
the amount paid is more than the correct amount of the co-contribution.
24(2)
[``amount overpaid'']
The
amount overpaid
is:
(a)
the whole of the amount referred to in paragraph (1)(a) if the co-contribution was not payable in respect of the person for the income year; or
(b)
the amount by which the amount paid exceeds the correct amount if the amount paid is more than the correct amount of the co-contribution.
24(3)
[Recovery]
The Commissioner may take action to recover the amount overpaid under one or more of the items in the following table but may only take action under an item if the conditions (if any) specified for that item are satisfied:
Table
Table
|
Methods for recovering amount overpaid
|
|
Item
|
Action the Commissioner may take to recover amount overpaid
|
Conditions to be satisfied
|
| 1 |
The Commissioner may deduct the whole or a part of the amount overpaid from any Government co-contribution payable in respect of the person. |
|
| 2 |
The Commissioner may debit an account of the person in the Superannuation Holding Accounts Special Account with the whole or a part of the amount overpaid. |
The account must include one or more Government co-contributions in respect of the person.
The amount debited must not exceed the amount of those Government co-contributions. |
| 3 |
The Commissioner may recover the whole or a part of the amount overpaid from the person (or the person's legal personal representative) as a debt due by the person (or the representative) to the Commonwealth. |
The Government co-contribution must have been paid by the Commissioner to the person (or the representative).
The Commissioner must give the person (or the representative) written notice, as prescribed, of the proposed recovery (including the amount to be recovered). |
| |
|
At least 28 days must have elapsed since the notice was given.
The amount recovered must not exceed the amount specified in the notice. |
| 4 |
The Commissioner may recover the whole or a part of the amount overpaid from a superannuation provider to whom:
(a) the Commissioner paid the Government co-contribution; or
(b) another superannuation provider transferred the Government co-contribution;
as a debt due by the superannuation provider to the Commonwealth. |
The superannuation provider must hold one or more Government co-contributions in respect of the person.
The amount recovered must not exceed the amount of those Government co-contributions.
The Commissioner must give the superannuation provider written notice, as prescribed, of the proposed recovery (including the amount to be recovered). |
| |
|
At least 28 days must have elapsed since the notice was given.
The amount recovered must not exceed the amount specified in the notice. |
Note:
Section 25 provides for the imposition of general interest charge if an amount that the person must pay under a notice given to the person under item 3 or 4 of the above table is not repaid within a certain period.
History
S 24(3) amended by No 8 of 2005, s 3 and Sch 1 item 414, by substituting "Special Account" for "Account" in table item 2, effective 22 February 2005.
S 24(3) amended by No 92 of 2004, s 3 and Sch 2 item 21, by substituting "Superannuation Holding Accounts Account" for "Superannuation Holding Accounts Reserve" in table item 2, effective 29 June 2004.
S 24(3) amended by No 92 of 2004, s 3 and Sch 2 item 11, by inserting the note at the end, effective 29 June 2004.
24(4)
[Recovery regardless of provider's continued holding]
If:
(a)
the Commissioner gives a superannuation provider a notice under item 4 of the table in subsection (3) in relation to an amount overpaid in respect of a person; and
(b)
the provider holds one or more Government co-contributions in respect of the person at the time when the Commissioner gives the provider the notice;
the Commissioner may recover from the provider under that item whether or not the provider continues to hold the contribution or contributions after that time.
24(5)
[Revocation]
The Commissioner may revoke a notice given under item 3 or 4 of the table in subsection (3) if the Commissioner is satisfied that it is appropriate in the circumstances to do so.
24(6)
[Amount recovered]
The total of the amounts deducted, debited or recovered under subsection (3) in relation to an overpayment must not exceed the amount overpaid.
24(7)
[Commissioner to provide information]
If the Commissioner makes:
(a)
a deduction under item 1 of the table in subsection (3); or
(b)
a debit under item 2 of the table;
in relation to a Government co-contribution in respect of a person, the Commissioner must give the person the prescribed information in relation to the deduction or debit within 28 days after the deduction or debit is made.
PART 5A - GENERAL INTEREST CHARGE
History
Pt 5A (heading) inserted by No 92 of 2004, s 3 and Sch 1 item 12, effective 29 June 2004.
SECTION 25
WHEN GENERAL INTEREST CHARGE PAYABLE
25(1A)
[Superannuation providers]
If:
(a)
a person is liable under subsection
16(1) or
20(1) to repay an amount; and
(b)
the whole or a part of the amount remains unpaid after the time by which the amount is due to be paid;
the person is liable to pay general interest charge on the unpaid amount.
History
S 25(1A) inserted by No 92 of 2004, s 3 and Sch 2 item 13, effective 29 June 2004.
25(1)
[Applicationof the GIC]
If:
(a)
the Commissioner gives a person notice under item 3 or 4 of the table in subsection
24(3); and
(b)
an amount that the person must pay under the notice remains unpaid after the time by which it is due to be paid;
the person is liable to pay general interest charge on the unpaid amount.
25(2)
[Liability to pay]
A person who is liable under this section to pay general interest charge on an unpaid amount is liable to pay the charge for each day in the period that:
(a)
started at the beginning of the day by which the unpaid amount was due to be paid; and
(b)
finishes at the end of the last day at the end of which any of the following remains unpaid:
(i)
the unpaid amount;
(ii)
general interest charge on any of the unpaid amount.
History
S 25(2) amended by No 92 of 2004, s 3 and Sch 2 item 14, by substituting ``A person who is liable under this section to pay general interest charge on an unpaid amount'' for ``The person'', effective 29 June 2004.
25(3)
[Timing]
For the purposes of this section:
(a)
an amount that a person becomes liable under subsection
16(1) or
20(1) to repay is due to be paid 7 days after the day on which the person first becomes liable to repay the amount; and
(b)
an amount payable under a notice given under item 3 or 4 of the table in subsection
24(3) is due to be paid 28 days after the day on which the notice is given.
History
S 25(3) substituted by No 92 of 2004, s 3 and Sch 2 item 15, effective 29 June 2004. S 25(3) formerly read:
25(3)
For the purposes of this section, an amount payable under a notice given under item 3 or 4 of the table in subsection 24(3) is due to be paid 28 days after the day on which the notice is given.
25(4)
[``general interest charge'']
In this section:
general interest charge
means the charge worked out under Part IIA of the Taxation Administration Act 1953.
History
Definition of "general interest charge" amended by No 101 of 2006, s 3 and Sch 2 item 1054, by omitting the reference to a repealed inoperative division, effective 14 September 2006. For application and saving provisions see the CCH Australian Income Tax Legislation archive.
PART 6 - ENFORCEMENT
History
Pt 6 heading substituted by No 2 of 2015, s 3 and Sch 2 item 57, effective 1 July 2015. Pt 6 heading formerly read:
PART 6 - INFORMATION GATHERING
Division 1 - Record keeping obligations
History
Div 1 heading substituted by No 2 of 2015, s 3 and Sch 2 item 58, effective 1 July 2015. Div 1 heading formerly read:
Division 1 - General
26
(Repealed) SECTION 26 SUPERANNUATION PROVIDERS MUST GIVE STATEMENTS TO COMMISSIONER
(Repealed by No 9 of 2007)
History
S 26 repealed by No 9 of 2007, s 3 and Sch 4 item 2, applicable in relation to things that are done and events that occur on or after 1 July 2007. S 26 formerly read:
SECTION 26 SUPERANNUATION PROVIDERS MUST GIVE STATEMENTS TO COMMISSIONER
26(1)
This section applies only to financial years that start on or after a day prescribed by the regulations.
26(2)
A superannuation provider commits an offence if:
(a)
the provider has a member or members in relation to whom the provider is a superannuation provider at the end of a financial year; and
(b)
the provider fails to give the Commissioner a statement setting out the prescribed information in respect of that member or each of those members on or before:
(i)
the prescribed date for the financial year; or
(ii)
such later date (if any) as the Commissioner allows.
Penalty: 50 penalty units.
26(3)
A superannuation provider commits an offence if:
(a)
the superannuation provider pays a member any of the contributed amounts in relation to the member during a financial year; and
(b)
the superannuation provider fails to give the Commissioner a statement setting out the prescribed information on or before:
(i)
the prescribed date for the financial year; or
(ii)
such later date (if any) as the Commissioner allows.
Penalty: 50 penalty units.
26(4)
An offence against subsection (2) or (3) is an offence of strict liability.
27
(Repealed) SECTION 27 STATEMENTS WHERE CONTRIBUTED AMOUNTS TRANSFERRED BETWEEN SUPERANNUATION PROVIDERS
(Repealed by No 9 of 2007)
History
S 27 repealed by No 9 of 2007, s 3 and Sch 4 item 2, applicable in relation to things that are done and events that occur on or after 1 July 2007. S 27 formerly read:
SECTION 27 STATEMENTS WHERE CONTRIBUTED AMOUNTS TRANSFERRED BETWEEN SUPERANNUATION PROVIDERS
27(1)
This section applies only to financial years that start on or after a day prescribed by the regulations.
27(2)
A superannuation provider commits an offence if:
(a)
the provider transfers to another superannuation provider any of the contributed amounts in relation to a member during a financial year; and
(b)
the provider fails to give the other provider a statement setting out the prescribed information within 30 days after the day on which the amount is transferred.
Penalty: 50 penalty units.
27(3)
An offence against subsection (2) is an offence of strict liability.
28
(Repealed) SECTION 28 STATEMENTS FROM SUPERANNUATION PROVIDERS TO MEMBERS
(Repealed by No 9 of 2007)
History
S 28 repealed by No 9 of 2007, s 3 and Sch 4 item 2, applicable in relation to things that are done and events that occur on or after 1 July 2007. S 28 formerly read:
SECTION 28 STATEMENTS FROM SUPERANNUATION PROVIDERS TO MEMBERS
28(1)
A member, or the trustee of a deceased former member's estate:
(a)
may ask a superannuation provider who has given the Commissioner information in a statement in relation to the member under section 26 to give the member or the trustee the same information; and
(b)
may ask the superannuation provider to give the information in writing.
28(2)
The superannuation provider commits an offence if the provider fails to comply with the request within 30 days after receiving it.
Penalty: 50 penalty units.
28(3)
Subsection (2) does not apply if the superannuation provider has given the same information to the member or the trustee previously (whether or not on request by the member or trustee).
Note:
The defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
28(4)
An offence against subsection (2) is an offence of strict liability.
28(5)
If the member or the trustee does not ask for the information to be given in writing, the superannuation provider may give the information to the member or trustee in a way that the provider considers appropriate.
29
(Repealed) SECTION 29 FORM IN WHICH INFORMATION IS TO BE GIVEN TO COMMISSIONER OR SUPERANNUATION PROVIDER
(Repealed by No 9 of 2007)
History
S 29 repealed by No 9 of 2007, s 3 and Sch 4 item 2, applicable in relation to things that are done and events that occur on or after 1 July 2007. S 29 formerly read:
SECTION 29 FORM IN WHICH INFORMATION IS TO BE GIVEN TO COMMISSIONER OR SUPERANNUATION PROVIDER
Notice stating how information to be given
29(1)
The Commissioner may, by notice published in the Gazette, set out the way in which information to be contained in a statement under section 26 or 27 is to be given to the Commissioner or to another superannuation provider.
Information may be given in statement provided for different purpose
29(2)
Without limiting subsection (1), the notice may require the information to be included in a statement to be given to the Commissioner or another superannuation provider for the purposes of the Superannuation Contributions Tax (Assessment and Collection) Act 1997.
Notice may require information to be given electronically
29(3)
Without limiting subsection (1), the notice may require the information to be given electronically.
29(4)
If the notice requires information to be given electronically, the Commissioner may, by legislative instrument, exempt a superannuation provider from that requirement.
History
S 29(4) amended by No 58 of 2006, s 3 and Sch 7 item 268, by substituting "legislative instrument" for "writing", effective 22 June 2006.
29(5)
(Repealed by No 58 of 2006)
History
S 29(5) repealed by No 58 of 2006, s 3 and Sch 7 item 269, effective 22 June 2006. S 29(5) formerly read:
29(5)
An exemption under subsection (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Date of effect of notice
29(6)
The notice has effect on and after the day stated in the notice.
Offence
29(7)
A superannuation provider commits an offence if:
(a)
the provider gives information in a statement under section 26 or 27; and
(b)
a notice under subsection (1) sets out the way in which that information is to be given; and
(c)
the provider fails to give the information in that way; and
(d)
the failure is not covered by an exemption under subsection (4).
Penalty: 50 penalty units.
29(8)
[Strict liability]
An offence against subsection (7) is an offence of strict liability.
30
(Repealed) SECTION 30 COMMISSIONER MAY REQUIRE MEMBER OR LEGAL REPRESENTATIVE TO GIVE INFORMATION
(Repealed by No 2 of 2015)
History
S 30 repealed by No 2 of 2015, s 3 and Sch 2 item 59, effective 1 July 2015. S 30 formerly read:
SECTION 30 COMMISSIONER MAY REQUIRE MEMBER OR LEGAL REPRESENTATIVE TO GIVE INFORMATION
30(1)
The Commissioner may give a member, or the legal personal representative of a member, a written notice requiring the member or representative to give the Commissioner a statement setting out:
(a)
information to enable the Commissioner to determine:
(i)
whether a Government co-contribution is payable in respect of the member; or
(ii)
the amount of any Government co-contribution payable in respect of the member; or
(b)
information to enable the Commissioner to determine the superannuation provider to which the Commissioner should pay a Government co-contribution, or an underpaid amount, payable in respect of the member; or
(c)
information to enable the Commissioner to determine:
(i)
whether an amount is recoverable under section 24 (which deals with overpayments) in relation to a Government co-contribution paid in respect of the member; or
(ii)
the amount overpaid in relation to a Government co-contribution paid in respect of the member; or
(d)
any other matters specified in the regulations.
The notice must specify the period within which the statement must be given to the Commissioner. The period specified must end not less than 21 days after the day the notice is given.
30(2)
The member or representative commits an offence if:
(a)
the notice requires the member or representative to give the Commissioner a statement setting out information to enable the Commissioner to determine:
(i)
whether an amount is recoverable under section 24 (which deals with overpayments) in relation to a Government co-contribution paid in respect of the member; or
(ii)
the amount overpaid in relation to a Government co-contribution paid in respect of the member; and
(b)
the member or representative fails to comply with the notice.
Penalty: 60 penalty units.
30(3)
The Commissioner may give a notice under subsection (1) at any time and from time to time.
31
(Repealed) SECTION 31 COMMISSIONER MAY REQUIRE SUPERANNUATION PROVIDER TO GIVE INFORMATION
(Repealed by No 2 of 2015)
S 31 repealed by No 2 of 2015, s 3 and Sch 2 item 59, effective 1 July 2015. S 31 formerly read:
SECTION 31 COMMISSIONER MAY REQUIRE SUPERANNUATION PROVIDER TO GIVE INFORMATION
31(1)
The Commissioner may give a superannuation provider a written notice requiring the provider to give the Commissioner a statement setting out:
(a)
information to enable the Commissioner to determine:
(i)
whether a Government co-contribution is payable in respect of a person; or
(ii)
the amount of any Government co-contribution payable in respect of a person; or
(b)
information to enable the Commissioner to determine the superannuation provider to which the Commissioner should pay a Government co-contribution,or an underpaid amount, in respect of a person; or
(c)
information to enable the Commissioner to determine:
(i)
whether an amount is recoverable under section 24 (which deals with overpayments) in relation to a Government co-contribution paid in respect of a person; or
(ii)
the amount overpaid in relation to a Government co-contribution paid in respect of a person; or
(d)
any other matters required by the regulations.
The notice must specify the period within which the statement must be given to the Commissioner. The period specified must end not less than 21 days after the day the notice is given.
31(2)
The superannuation provider commits an offence if the provider fails to comply with the notice.
Penalty: 60 penalty units.
31(3)
The Commissioner may give a notice under subsection (1) at any time and from time to time.
SECTION 32
RECORDS TO BE KEPT AND RETAINED BY SUPERANNUATION PROVIDER
Superannuation provider to keep records
32(1)
A superannuation provider commits an offence if the provider fails to keep records that record and explain all transactions and other acts the provider engages in, or is required to engage in, under this Act or the regulations.
Penalty: 30 penalty units.
How records to be kept
32(2)
The superannuation provider commits an offence if the records are not either:
(a)
kept in writing in the English language; or
(b)
kept so as to enable the records to be readily accessible and convertible into writing in the English language.
Penalty: 30 penalty units.
Period for retention of records
32(3)
A superannuation provider commits an offence if the provider fails to retain any records kept or obtained under or for the purposes of this Act until the later of:
(a)
the end of 5 years after they were prepared or obtained; and
(b)
the completion of the transactions or acts to which those records relate.
Penalty: 30 penalty units.
When records need not be kept
32(4)
Subsections (2) and (3) do not apply if:
(a)
the Commissioner has notified the superannuation provider that the retention of the records is not required; or
(b)
the superannuation provider is a company that has gone into liquidation and been finally dissolved.
Note:
In a prosecution for an offence against subsection (2) or (3), the defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).
Division 2 - Infringement notices
SECTION 33
WHEN AN INFRINGEMENT NOTICE CAN BE SERVED
33(1)
[Offences]
Subject to subsection (2), the Commissioner may cause an infringement notice to be served on a superannuation provider in accordance with this Division if the Commissioner has reasonable grounds to believe that the superannuation provider has committed an offence against:
(a)
subsection
16(3); or
(b)
subsection
20(3).
(c)
(Repealed by No 9 of 2007)
(d)
(Repealed by No 9 of 2007)
(e)
(Repealed by No 9 of 2007)
(f)
(Repealed by No 9 of 2007)
History
S 33(1) amended by No 9 of 2007, s 3 and Sch 4 items 3 and 4, by repealing paras (c), (d), (e) and (f), applicable in relation to things that are done and events that occur on or after 1 July 2007. Paras (c), (d), (e) and (f) formerly read:
(c)
subsection 26(2) or (3); or
(d)
subsection 27(2); or
(e)
subsection 28(2); or
(f)
subsection 29(7).
33(2)
[More than one offence]
An infringement notice must not relate to more than one offence unless:
(a)
the offences are:
(i)
an offence constituted by refusing or failing to comply with a requirement before a specified time or within a specified period; and
(ii)
one or more daily offences constituted by refusing or failing to comply with the requirement after that time or period; or
(b)
the offences are 2 or more daily offences constituted by refusing or failing to comply with the same requirement after the time before which, or the end of the period within which, the requirement was to be complied with.
Note:
For daily offences, see section 4K of the Crimes Act 1914.
33(3)
[Timing]
An infringement notice does not have any effect unless it is served within one year after the day on which the offence or the earlier or earliest of the offences is alleged to have been committed.
SECTION 34
MATTERS TO BE INCLUDED IN AN INFRINGEMENT NOTICE
34(1)
[What notice must include]
An infringement notice must:
(a)
state the name of the person on whom it is to be served; and
(b)
state that it is being served on behalf of the Commissioner; and
(c)
state:
(i)
the nature of the alleged offence or offences; and
(ii)
the time (if known) and date on which, and the place at which, the offence or the earlier or earliest of the offences is alleged to have been committed; and
(iii)
the maximum penalty that a court could impose for the alleged offence or offences; and
(d)
specify a penalty that is payable under the notice in respect of the alleged offence or offences; and
(e)
state that, if the person does not wish the matter to be dealt with by a court, the person may pay to the Commissioner the amount of the penalty specified in the notice within 28 days after the date of service of the notice; and
(f)
state that the person may make written representations to the Commissioner seeking the withdrawal of the notice.
Note:
The Commissioner has power to extend periods stated in notices under paragraph (1)(e) (see section 39).
34(2)
[Commissioner may include other matters]
An infringement notice may contain any other matters that the Commissioner considers necessary.
34(3)
[Penalty]
The penalty to be specified in an infringement notice under paragraph (1)(d) is 20% of the maximum amount of the fine or fines that a court could impose for the offence or offences.
SECTION 35
WITHDRAWAL OF INFRINGEMENT NOTICE
35(1)
[Request for withdrawal]
A person on whom an infringement notice has been served may make written representations to the Commissioner seeking the withdrawal of the notice.
35(2)
[Commissioner may withdraw]
The Commissioner may withdraw an infringement notice served on a person (whether or not the person has made representations seeking the withdrawal) by causing written notice of the withdrawal to be served on the person within the period within which the penalty specified in the infringement notice is required to be paid.
35(3)
[Considerations for withdrawing]
The matters to which the Commissioner may have regard in deciding whether or not to withdraw an infringement notice include, but are not limited to, the following:
(a)
whether the person has previously been convicted of an offence for a contravention of this Act;
(b)
the circumstances in which the offence or offences specified in the notice are alleged to have been committed;
(c)
whether the person has previously been served with an infringement notice in respect of which the person paid the penalty specified in the notice;
(d)
any written representations made by the person.
35(4)
[Refunds due to withdrawal]
If:
(a)
the person pays the penalty specified in the infringement notice within the period within which the penalty is required to be paid; and
(b)
the notice is withdrawn after the person pays the penalty;
the Commissioner must refund to the person, out of money appropriated by the Parliament, an amount equal to the amount paid.
SECTION 36
WHAT HAPPENS IF PENALTY IS PAID
36(1)
[Application]
This section applies if:
(a)
an infringement notice is served on a person; and
(b)
the person pays the penalty specified in the notice before the end of the period referred to in paragraph
34(1)(e); and
(c)
the infringement notice is not withdrawn.
36(2)
[Liabilities discharged]
Any liability of the person for the offence or offences specified in the notice, and for any other offence or offences constituted by the same omission, is taken to be discharged.
36(3)
[Further proceedings cannot be taken]
Further proceedings cannot be taken against the person for the offence or offences specified in the notice and proceedings cannot be taken against the person for any other offence or offences constituted by the same omission.
36(4)
[No conviction]
The person is not regarded as having been convicted of the offence or offences specified in the notice.
SECTION 37
37
MORE THAN ONE INFRINGEMENT NOTICE MAY NOT BE SERVED FOR THE SAME OFFENCE
This Division does not permit the service of more than one infringement notice on a person for the same offence or offences.
SECTION 38
38
INFRINGEMENT NOTICE NOT REQUIRED TO BE SERVED
This Division does not:
(a)
require an infringement notice to be served on a person in relation to an offence; or
(b)
affect the liability of a person to be prosecuted for an offence if:
(i)
an infringement notice is not served on the person in relation to the offence or in relation to any other offence constituted by the same omission; or
(ii)
an infringement notice served on the person in relation to the offence or in relation to any other offence constituted by the same omission has been withdrawn; or
(c)
affect the liability of a person to be prosecuted for an offence if the person does not comply with an infringement noticeserved on the person in relation to the offence or in relation to any other offence constituted by the same omission; or
(d)
limit the amount of the penalty that may be imposed by a court on a person convicted of an offence.
SECTION 39
COMMISSIONER MAY EXTEND PERIOD FOR PAYMENT OF PENALTY
39(1)
[Commissioner's power]
The Commissioner may, by writing, extend, in relation to a particular person, the period referred to in paragraph 34(1)(e).
39(2)
[Timing of power]
The power of the Commissioner under subsection (1) to extend the period may be exercised before or after the end of the period.
39(3)
[Application of extension]
If the Commissioner extends a period under subsection (1), a reference in this Division, or in a notice or other instrument under this Division, to the period is taken, in relation to the person, to be a reference to the period as so extended.
(Repealed) Division 3 - Access to premises
History
Div 3 repealed by No 2 of 2015, s 3 and Sch 2 item 60, effective 1 July 2015.
40
(Repealed) SECTION 40 APPOINTMENT OF AUTHORISED PERSONS
(Repealed by No 2 of 2015)
History
S 40 repealed by No 2 of 2015, s 3 and Sch 2 item 60, effective 1 July 2015. S 40 formerly read:
SECTION 40 APPOINTMENT OF AUTHORISED PERSONS
40
The Commissioner may, by writing signed by the Commissioner, appoint a person, or a person included in a class of persons, to be an authorised person for the purposes of this Division or of a specified provision of this Division.
41
(Repealed) SECTION 41 POWERS OF AUTHORISED PERSON IN RELATION TO PREMISES
(Repealed by No 2 of 2015)
History
S 41 repealed by No 2 of 2015, s 3 and Sch 2 item 60, effective 1 July 2015. S 41 formerly read:
SECTION 41 POWERS OF AUTHORISED PERSON IN RELATION TO PREMISES
41(1)
An authorised person may:
(a)
with the consent of the occupier or person in charge of premises; or
(b)
in accordance with a warrant issued under section 44 in relation to premises;
enter the premises for the purpose of:
(c)
obtaining information to determine:
(i)
whether a Government co-contribution is payable in respect of a person; or
(ii)the amount of a Government co-contribution that is payable in respect of a person; or
(iii)
whether an amount is recoverable under section 24 (which deals with overpayments) in relation to a Government co-contribution paid in respect of a person; or
(iv)
the amount overpaid in relation to a Government co-contribution in respect of a person; or
(d)
ascertaining whether a person has contravened or is contravening a provision of this Act.
41(2)
If an authorised person enters any premises under subsection (1), the authorised person may search the premises for, inspect, examine, take extracts from, and make copies of, any examinable documents.
42
(Repealed) SECTION 42 OBSTRUCTION OF AUTHORISED PERSON ACTING UNDER A WARRANT
(Repealed by No 2 of 2015)
History
S 42 repealed by No 2 of 2015, s 3 and Sch 2 item 60, effective 1 July 2015. S 42 formerly read:
SECTION 42 OBSTRUCTION OF AUTHORISED PERSON ACTING UNDER A WARRANT
42
A person commits an offence if:
(a)
the person obstructs or hinders an authorised person in the exercise of the authorised person's power under section 41; and
(b)
the authorised person exercises that power in accordance with a warrant issued under section 44.
Penalty: 30 penalty units.
43
(Repealed) SECTION 43 PERSONS TO ASSIST AUTHORISED PERSONS ACTING UNDER A WARRANT
(Repealed by No 2 of 2015)
History
S 43 repealed by No 2 of 2015, s 3 and Sch 2 item 60, effective 1 July 2015. S 43 formerly read:
SECTION 43 PERSONS TO ASSIST AUTHORISED PERSONS ACTING UNDER A WARRANT
43(1)
If an authorised person enters any premises under section 41 in accordance with a warrant issued under section 44, the occupier or the person in charge must, if requested to do so by the authorised person, provide reasonable assistance to the authorised person in the exercise of his or her power under that section in relation to those premises.
43(2)
The occupier or the person in charge commits an offence if he or she fails to provide that reasonable assistance to the authorised person.
Penalty: 30 penalty units.
44
(Repealed) SECTION 44 WARRANT TO ENTER PREMISES
(Repealed by No 2 of 2015)
History
S 44 repealed by No 2 of 2015, s 3 and Sch 2 item 60, effective 1 July 2015. S 44 formerly read:
SECTION 44 WARRANT TO ENTER PREMISES
44(1)
If a magistrate, on application by an authorised person, is satisfied, by information on oath or affirmation:
(a)
that there are reasonable grounds for believing that there are examinable documents on particular premises; and
(b)
that the issue of the warrant is reasonably required for the purpose of ascertaining:
(i)
whether a Government co-contribution is payable in respect of a person; or
(ii)
the amount of a Government co-contribution that is payable in respect of a person; or
(iii)
whether an amount is recoverable under section 24 (which deals with overpayments) in relation to a Government co-contribution paid in respect of a person; or
(iv)
the amount overpaid in relation to a Government co-contribution in respect of a person; or
(v)
whether a person has contravened or is contravening a provision of this Act;
the magistrate may issue a warrant authorising the authorised person to enter the premises:
(c)
with such assistance, and by such force, as is necessary and reasonable; and
(d)
during such hours as the warrant specifies, or, if the warrant so specifies, at any time.
44(2)
A warrant must specify:
(a)
the powers exercisable under subsection 41(2) by the authorised person to whom the warrant is issued; and
(b)
the day (not more than 14 days after the issue of the warrant) on which the warrant ceases to have effect.
45
(Repealed) SECTION 45 IDENTITY CARDS
(Repealed by No 2 of 2015)
History
S 45 repealed by No 2 of 2015, s 3 and Sch 2 item 60, effective 1 July 2015. S 45 formerly read:
SECTION 45 IDENTITY CARDS
45(1)
The Commissioner may cause an identity card to be issued to an authorised person.
45(2)
An identity card must:
(a)
contain a recent photograph of the authorised person to whom it is issued; and
(b)
be in a form approved, in writing, by the Commissioner.
45(3)
A person commits an offence if:
(a)
the person has been issued with an identity card under subsection (1); and
(b)
the person ceases to be an authorised person for the purposes of this Division; and
(c)
the person does not immediately return the identity card to the Commissioner.
Penalty: 1 penalty unit.
45(4)
An offence against subsection (3) is an offence of strict liability.
45(5)
If an authorised person proposes to enter premises otherwise than in accordance with a warrant issued under section 44:
(a)
the authorised person must produce his or her identity card to the occupier or the person in charge of the premises for inspection; and
(b)
if the authorised person fails to do so, the authorised person is not entitled to enter the premises under section 41.
PART 7 - ADMINISTRATION
Division 1 - General administration
SECTION 46
46
COMMISSIONER TO HAVE GENERAL ADMINISTRATION OF THE ACT
The Commissioner has the general administration of this Act.
Note:
An effect of this provision is that people who acquire information under this Act are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.
History
S 46 amended by No 145 of 2010, s 3 and Sch 2 item 74, by inserting the note at the end, effective 17 December 2010.
SECTION 47
DECISIONS TO BE IN WRITING
47(1)
[Decision must be in writing]
A decision of the Commissioner under this Act or the regulations must be in writing.
47(2)
[Use of computers]
Such a decision is taken to be in writing if it is made, or recorded, by means of a computer.
SECTION 48
COMMISSIONER MAY ARRANGE FOR USE OF COMPUTER PROGRAMS TO MAKE DECISIONS
48(1)
[Commissioner may use computer programs to make decisions]
The Commissioner may arrange for the use, under the Commissioner's control, of computer programs for any purposes for which the Commissioner may make decisions under this Act or the regulations.
48(2)
[Effect]
A decision made by the operation of a computer program under an arrangement made under subsection (1) is taken to be a decision made by the Commissioner.
Division 2 - Review of decisions
SECTION 49
REVIEW OF DECISIONS
49(1)
A person affected by a decision (the
original decision
) made by the Commissioner under Part
2,
2A,
3,
4 or
5 may apply to the Commissioner for review of the decision.
History
S 49(1) amended by No 81 of 2016, s 3 and Sch 4 item 3, by inserting "2A,", effective 2 July 2017. For application provision, see note under Pt 2A heading.
S 49(1) amended by No 96 of 2014, s 3 and Sch 7 item 3, by omitting "Part 2A," after "Part 2", effective 1 July 2017. For application and transitional provisions see note under s 5(2).
S 49(1) amended by No 23 of 2012, s 3 and Sch 4 item 5, by inserting ", Part 2A", applicable to the 2012-13 income year and later income years.
S 49(1) amended by No 9 of 2007, s 3 and Sch 4 item 5, by repealing the note, applicable in relation to things that are done and events that occur on or after 1 July 2007. The note formerly read:
Note:
A person may make a complaint to the Superannuation Complaints Tribunal under section 15CA of the Superannuation (Resolution of Complaints) Act 1993 if the person is dissatisfied with a statement given to the Commissioner by a superannuation provider under section 26.
49(2)
If the person does so, the Commissioner must either:
(a)
review the original decision and decide to:
(i)
affirm it; or
(ii)
vary it; or
(iii)
set it aside and substitute a new decision; or
(b)
arrange for an authorised review officer (see section 50) to do so.
49(3)
In making arrangements for a review under subsection (2), the Commissioner must have regard to the need for the review to be an independent one.
SECTION 50
50
AUTHORISED REVIEW OFFICERS
The Commissioner must authorise taxation officers to be authorised review officers for the purposes of this Division.
SECTION 51
WITHDRAWAL OF REVIEW APPLICATIONS
51(1)
[Application may be withdrawn]
An applicant for review under section 49 may, in writing or in any other manner approved by the Commissioner, withdraw the application at any time before the decision reviewer does any of the things in subsection 49(2).
51(2)
[Effect]
If an application is so withdrawn, it is taken never to have been made.
Division 3 - Other administrative matters
SECTION 52
52
TAX FILE NUMBERS
The Commissioner may use for the purposes of this Act, or the regulations, a tax file number that has been provided for any other purpose under a law relating to taxation or superannuation.
53
(Repealed) SECTION 53 SECRECY
(Repealed by No 145 of 2010)
History
S 53 repealed by No 145 of 2010, s 3 and Sch 2 item 75, effective 17 December 2010. S 53 formerly read:
SECTION 53 SECRECY
Persons covered by this section
53(1)
This section applies to a person who is or has been:
(a)
the Commissioner, a Second Commissioner or a Deputy Commissioner; or
(b)
a person engaged under the Public Service Act 1999 in the Agency (within the meaning of that Act) of which the Commissioner is the Agency Head; or
(c)
otherwise appointed or employed by, or a provider of services for, the Commonwealth.
Information may be recorded or divulged only for purposes of Act
53(2)
A person to whom this section applies commits an offence if:
(a)
the person:
(i)
makes a record of any protected information; or
(ii)
whether directly or indirectly, divulges or communicates to a person any protected information about another person; and
(b)
the record is not made, or the information is not divulged or communicated:
(i)
under or for the purposes of this Act or the regulations; or
(ii)
in the performance of duties, as a person to whom this section applies, under or in relation to this Act or the regulations.
Penalty: Imprisonment for 2 years.
Information may be divulged to persons performing duties under Acts administered by Commissioner
53(3)
Subsection (2) does not prohibit the Commissioner, a Second Commissioner or a Deputy Commissioner, or a person authorised by any of them, from divulging or communicating any protected information to a person performing, as a person to whom this section applies:
(a)
duties under, or in relation to, an Act of which the Commissioner has the general administration; or
(b)
duties under regulations made under such an Act;
for the purpose of enabling the person to perform the duties.
Note:
In a prosecution for an offence against subsection (2), the defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).
Divulging information to Minister
53(4)
A person divulges or communicates protected information to a person in contravention of subsection (2) if the person divulges or communicates the information to a Minister.
Court may not require information or documents
53(5)
A person to whom this section applies is not required:
(a)
to divulge or communicate protected information to a court; or
(b)
to produce a protected document in court;
except where it is necessary to do so for the purpose of carrying into effect the provisions of this Act or the regulations.
Information may be divulged to persons performing duties under this Act
53(6)
Nothing in this or any other Act of which the Commissioner has the general administration prohibits the Commissioner, a Second Commissioner or a Deputy Commissioner, or a person authorised by any of them, from divulging or communicating any information to a person performing, as a person to whom this section applies, duties under or in relation to this Act or the regulations for the purpose of enabling the person to perform the duties.
Note:
In a prosecution for an offence against subsection (2), the defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).
Information may be divulged to court for purposes of this Act
53(7)
Nothing in this or any other Act of which the Commissioner has the general administration prohibits the Commissioner, a Second Commissioner, a Deputy Commissioner, or a person authorised by any of them, from:
(a)
divulging or communicating to a court any information obtained under or for the purposes of such an Act; or
(b)
producing in court a document obtained or made under or for the purposes of such an Act;
if it is necessary to do so for the purpose of carrying into effect the provisions of this Act or the regulations.
Note:
In a prosecution for an offence against subsection (2), the defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).
Information may be divulged for the purpose of the Superannuation Industry (Supervision) Act 1993
53(8)
Nothing in this section prohibits the Commissioner, a Second Commissioner or a Deputy Commissioner, or a person authorised by any of them, from divulging or communicating any protected information to:
(a)
the Australian Prudential Regulation Authority; or
(b)
the Australian Securities and Investments Commission;
for the purpose of the administration of the Superannuation Industry (Supervision) Act 1993.
Note:
In a prosecution for an offence against subsection (2), the defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).
Oath or declaration of secrecy
53(9)
A person to whom this section applies must, if and when required by the Commissioner, a Second Commissioner or a Deputy Commissioner to do so, make an oath or declaration, in a manner and form determined by the Commissioner in writing, to maintain secrecy in accordance with this section.
SECTION 54
REPORTS
54(1)
After the end of each quarter the Commissioner must give the Minister a report, for presentation to the Parliament, on the working of this Act during the quarter. The report must include, for the quarter to which the report relates, the prescribed details about beneficiaries of, and amounts of, Government co-contributions.
54(2)
After the end of each financial year the Commissioner must give the Minister a report, for presentation to the Parliament, that:
(a)
is on the working of this Act during the financial year; and
(b)
includes, for the financial year to which the report relates, the prescribed details about beneficiaries of, and amounts of, Government co-contributions; and
(c)
specifies, for each prescribed range of total income, the number of beneficiaries of a Government co-contribution for the financial year whose total income that was used to determine the amount of their Government co-contribution fell within that range; and
(d)
specifies, for each prescribed range of taxable income, the number of people who the Commissioner is satisfied:
(i)
were, at the end of the financial year, the spouse of a beneficiary of a Government co-contribution for the financial year; and
(ii)
had a taxable income for that financial year that fell within that range; and
(e)
specifies the number of beneficiaries of Government co-contributions for the financial year who the Commissioner was not satisfied had a spouse at the end of the financial year; and
(f)
specifies the number of people:
(i)
who the Commissioner is satisfied were, at the end of the financial year, the spouse of a beneficiary of a Government co-contribution for the financial year; and
(ii)
whose taxable income for the financial year was not able to be determined by the Commissioner.
54(3)
In this section:
spouse
of a beneficiary of a Government co-contribution includes:
(a)
a person (whether of the same sex or a different sex) with whom the beneficiary is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section
2E of the
Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and
(b)
a person who, although not legally married to the beneficiary, lives with the beneficiary on a genuine domestic basis in a relationship as a couple.
History
Definition of "spouse" amended by No 46 of 2011, s 3 and Sch 2 item 1087, by substituting "section 2E" for "section 22B" in para (a), effective 27 December 2011. No 46 of 2011, s 3 and Sch 3 items 10 and 11 contain the following saving and transitional provisions:
10 Saving - appointments
10
The amendments made by Schedule 2 do not affect the validity of an appointment that was made under an Act before the commencement of this item and that was in force immediately before that commencement.
11 Transitional regulations
11
The Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments and repeals made by Schedules 1 and 2.
Definition of "spouse" substituted by No 134 of 2008, s 3 and Sch 4 item 6, applicable to the 2008-2009 income year and later income years. The definition formerly read:
spouse
of a beneficiary of a Government co-contribution includes a person who, although not legally married to the beneficiary, lives with the beneficiary on a genuine domestic basis as the beneficiary's husband or wife.
taxable income
has the meaning given by section 4-15 of the Income Tax Assessment Act 1997.
History
S 54 substituted by No 92 of 2004, s 3 and Sch 2 item 16, applicable to a report for any quarter, or financial year, that starts on or after 1 July 2004. S 54 formerly read:
Reports
54(1)
After the end of each quarter, and after the end of each financial year, the Commissioner must give the Minister a report on the working of this Act during the quarter or during the year for presentation to the Parliament.
54(2)
A report under subsection (1) must include, for the quarter or financial year to which the report relates, the prescribed details about beneficiaries of, and amounts of, co-contribution payments.
PART 8 - MISCELLANEOUS
SECTION 55
55
REGULATIONS
The Governor-General may make regulations prescribing matters:
(a)
required or permitted by this Act to be prescribed; or
(b)
necessary or convenient to be prescribed for carrying out or giving effect to this Act;
and, in particular, prescribing penalties, not exceeding a fine of 5 penalty units, for offences against the regulations.
Note:
The regulations may relate to the Government co-contribution and the low income superannuation tax offset (see section 12B).
History
S 55 amended by No 81 of 2016, s 3 and Sch 4 item 4, by inserting the note, effective 2 July 2017. For application provision, see note under Pt 2A heading.
S 55 amended by No 96 of 2014, s 3 and Sch 7 item 4, by repealing the note, effective 1 July 2017. For application and transitional provisions see note under s 5(2). The note formerly read:
Note:
The regulations may relate to the Government co-contribution and the low income superannuation contribution (see section 12B).
S 55 amended by No 23 of 2012, s 3 and Sch 4 item 4, by inserting the note at the end, applicable to the 2012-13 income year and later income years.
PART 9 - DICTIONARY
SECTION 56
56
DICTIONARY
In this Act, unless the contrary intention appears:
approved deposit fund
has the same meaning as in section 10 of the Superannuation Industry (Supervision) Act 1993.
approved form
has the meaning given by section 388-50 in Schedule 1 to the Taxation Administration Act 1953.
History
Definition of "approved form" inserted by No 2 of 2015, s 3 and Sch 2 item 113, effective 25 February 2015.
assessable income
has the same meaning as in the Income Tax Assessment Act 1997.
authorised person
(Repealed by No 2 of 2015)
History
Definition of "authorised person" repealed by No 2 of 2015, s 3 and Sch 2 item 61, effective 1 July 2015. The definition formerly read:
authorised person
means a person appointed as an authorised person under section 40.
base interest rate
for a day has the same meaning as in section 8AAD of the Taxation Administration Act 1953.
History
Definition of "base interest rate" inserted by No 92 of 2004, s 3 and Sch 2 item 4, effective 29 June 2004.
Commissioner
means the Commissioner of Taxation.
complying superannuation fund
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "complying superannuation fund" substituted by No 15 of 2007, s 3 and Sch 1 item 344, applicable to the 2007-2008 income year and later years. The definition formerly read:
complying superannuation fund
has the same meaning as in Part IX of the Income Tax Assessment Act 1936.
Note:
Section 267 of the Income Tax Assessment Act 1936 defines
complying superannuation fund
by reference to the provisions of Division 3 of Part 5 of the Superannuation Industry (Supervision) Act 1993.
concessional contributions
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "concessional contributions" inserted by No 81 of 2016, s 3 and Sch 4 item 5, effective 2 July 2017. For application provision, see note under Pt 2A heading.
Definition of "concessional contributions" repealed by No 96 of 2014, s 3 and Sch 7 item 5, effective 1 July 2017. For application and transitional provisions, see note under s 5(2). The definition formerly read:
concessional contributions
has the same meaning as in the Income Tax Assessment Act 1997.
Definition of "concessional contributions" inserted by No 82 of 2013, s 3 and Sch 2 item 14, applicable to the 2012-13 income year and later income years.
constitutionally protected fund
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "constitutionally protected fund" substituted by No 15 of 2007, s 3 and Sch 1 item 345, applicable to the 2007-2008 income year and later years. The definition formerly read:
constitutionally protected fund
has the meaning given by section 267 of the Income Tax Assessment Act 1936.
contributed amounts
has the same meaning as in the Superannuation Contributions Tax (Assessment and Collection) Act 1997.
court
includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
credit
to an RSA that is a policy (within the meaning of the Life Insurance Act 1995) means pay as a premium in relation to the policy.
decision
includes a decision not to make a determination under section 13, 15 or 19.
dependant
has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
Deputy Commissioner
(Repealed by No 145 of 2010)
History
Definition of "Deputy Commissioner" repealed by No 145 of 2010, s 3 and Sch 2 item 76, effective 17 December 2010. The definition formerly read:
Deputy Commissioner
means the Deputy Commissioner of Taxation.
eligible personal superannuation contribution
has the meaning given by section 7.
eligible temporary resident visa
(Repealed by No 27 of 2009)
History
Definition of "eligible temporary resident visa" repealed by No 27 of 2009, s 3 and Sch 2 item 59, effective 27 March 2009. The definition formerly read:
eligible temporary resident visa
has the same meaning as in the Superannuation Industry (Supervision) Regulations 1994.
examinable documents
means any documents relevant to the operation of this Act or the regulations.
general transfer balance cap
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "general transfer balance cap" inserted by No 81 of 2016, s 3 and Sch 3 item 8, effective 1 January 2017 and applicable in relation to the financial year starting on 1 July 2017 and later financial years.
Government co-contribution
means a Government co-contribution payable under this Act.
higher income threshold
has the meaning given by section 10A.
hold
: a person
holds
an RSA account if the person is the holder of the account within the meaning of the Retirement Savings Accounts Act 1997.
income tax return
means:
(a)
a return under section
161,
162 or
163 of the
Income Tax Assessment Act 1936; or
(b)
a return by the trustee of a deceased person's estate under Subdivision
260-E of Schedule
1 to the
Taxation Administration Act 1953.
income year
has the same meaning as in the Income Tax Assessment Act 1997.
indexation factor
has the meaning given by section 10A.
infringement notice
means a notice given under section 33.
lower income threshold
has the meaning given by section 10A.
low income superannuation contribution
(Repealed by No 96 of 2014)
History
Definition of "low income superannuation contribution" repealed by No 96 of 2014, s 3 and Sch 7 item 6, effective 1 July 2017. For application and transitional provisions see note under s 5(2). The definition formerly read:
low income superannuation contribution
means a low income superannuation contribution payable under this Act.
Definition of "low income superannuation contribution" inserted by No 23 of 2012, s 3 and Sch 4 item 6, applicable to the 2012-13 income year and later income years.
low income superannuation tax offset
means a low income superannuation tax offset payable under this Act.
History
Definition of "low income superannuation tax offset" inserted by No 81 of 2016, s 3 and Sch 4 item 5, effective 2 July 2017. For application provision, see note under Pt 2A heading.
member
means a member, or former member, of a superannuation fund or of an approved deposit fund and includes the holder, or former holder, of an RSA.
non-concessional contributions
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "non-concessional contributions" inserted by No 81 of 2016, s 3 and Sch 3 item 8, effective 1 January 2017 and applicable in relation to the financial year starting on 1 July 2017 and later financial years.
non-concessional contributions cap
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "non-concessional contributions cap" inserted by No 81 of 2016, s 3 and Sch 3 item 8, effective 1 January 2017 and applicable in relation to the financial year starting on 1 July 2017 and later financial years.
payment date
means:
(a)
for a Government co-contribution - the date worked out in accordance with the regulations made for the purposes of section
17; or
(b)
for an underpaid amount of a Government co-contribution - the date worked out in accordance with the regulations made for the purposes of section
21.
prescribed penalty
for a contravention means 5 penalty units for each week or part of a week during which the contravention continues.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
produce
a document includes permit access to the document.
protected document
(Repealed by No 145 of 2010)
History
Definition of "protected document" repealed by No 145 of 2010, s 3 and Sch 2 item 77, effective 17 December 2010. The definition formerly read:
protected document
means a document that:
(a)
contains information about a person; and
(b)
is obtained or made by a person to whom section 53 applies in the course of, or because of, the person's duties under or in relation to this Act or the regulations.
protected information
(Repealed by No 145 of 2010)
History
Definition of "protected information" repealed by No 145 of 2010, s 3 and Sch 2 item 78, effective 17 December 2010. The definition formerly read:
protected information
means information that:
(a)
concerns a person; and
(b)
is disclosed to, or obtained by, a person to whom section 53 applies in the course of, or because of, the person's duties under or in relation to this Act or the regulations.
provider
of an RSA has the same meaning as in the Retirement Savings Accounts Act 1997.
reportable fringe benefits total
has the same meaning as in the Income Tax Assessment Act 1936.
RSA
has the same meaning as in the Retirement Savings Accounts Act 1997.
Second Commissioner
(Repealed by No 145 of 2010)
History
Definition of "Second Commissioner" repealed by No 145 of 2010, s 3 and Sch 2 item 79, effective 17 December 2010. The definition formerly read:
Second Commissioner
means a Second Commissioner of Taxation.
Superannuation Holding Accounts Account
(Repealed by No 8 of 2005)
History
Definition of "Superannuation Holding Accounts Account" repealed by No 8 of 2005, s 3 and Sch 1 item 415, effective 22 February 2005. The definition formerly read:
Superannuation Holding Accounts Account
means the Superannuation Holding Accounts Account established by subsection 5(3) of the Financial Management Legislation Amendment Act 1999.
Definition of "Superannuation Holding Accounts Account" inserted by No 92 of 2004, s 3 and Sch 2 item 22, effective 29 June 2004.
Superannuation Holding Accounts Special Account
means the Superannuation Holding Accounts Special Account continued in existence by section 8 of the Small Superannuation Accounts Act 1995.
History
Definition of "Superannuation Holding Accounts Special Account" inserted by No 8 of 2005, s 3 and Sch 1 item 416, effective 22 February 2005.
superannuation provider
means:
(a)
the trustee of a complying superannuation fund; or
(b)
the provider of an RSA; or
(c)
the trustee of a constitutionally protected fund.
taxation officer
means a person employed or engaged under the Public Service Act 1999 who is:
(a)
exercising powers; or
(b)
performing functions;
under, pursuant to or in relation to a taxation law (as defined in section 2 of the Taxation Administration Act 1953).
total income
of a person for an income year has the meaning given by section 8.
total superannuation balance
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "total superannuation balance" inserted by No 81 of 2016, s 3 and Sch 3 item 8, effective 1 January 2017 and applicable in relation to the financial year starting on 1 July 2017 and later financial years.
trustee
of a superannuation fund, or constitutionally protected fund, means:
(a)
if there is a trustee (within the ordinary meaning of that expression) of the fund - the trustee; or
(b)
otherwise - the person who manages the fund.
trustee
, when used in relation to a deceased person's estate, has the same meaning as in the Income Tax Assessment Act 1936.
underpaid amount
of a Government co-contribution has the meaning given by subsection 19(2).
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