(iv) the amount of TFN withholding tax (ESS) paid or payable by the provider in respect of the interests during the year.

Note: Regulations made for the purposes of section 83A-315 of the Income Tax Assessment Act 1997 may substitute different amounts for the market values of the ESS interests: see section 392-15 in this Schedule.

(4) Subsection (3) does not limit the information that the *approved form may require the statement to contain.

When statements must be given

(5) The statement must be given:

(a) to the individual no later than 14 July after the end of the year; and

(b) to the Commissioner no later than 14 August after the end of the year.

Note: Section 388-55 allows the Commissioner to defer the time for giving an approved form.

Disregard 30 day rule for ESS deferred taxing point if provider does not know when shares are disposed of etc.

(6) For the purposes of Subdivision 14-C (about TFN withholding tax (ESS)) and this Division, in working out the *ESS deferred taxing point for an *ESS interest, disregard subsection 83A-115(3) or 83A-120(3) (whichever is applicable) of the Income Tax Assessment Act 1997 (about the 30 day rule) if the provider does not know the time worked out under that subsection at the earlier of:

(a) the time (if any) the provider gives a statement to the relevant individual under this section for the *financial year mentioned in subsection (7); and

(b) the later of:

(i) 14 July after the end of the financial year mentioned in subsection (7); and

(ii) if, under section 388-55, the Commissioner defers to a later time the time within which the statement under this section for that financial year is required to be given to the individual - that later time.

(7) The *financial year is the financial year in which the *ESS deferred taxing point for the *ESS interest occurs, disregarding subsection 83A-115(3) or 83A-120(3) (whichever is applicable) of the Income Tax Assessment Act 1997 (about the 30 day rule).

392-10 Change or omission in information given to the Commissioner

(1) If the provider becomes aware of a material change or material omission in any information given to the individual or the Commissioner under this Division, the provider must:

(a) tell the individual or the Commissioner, as applicable, of the change in the *approved form; or

(b) give the omitted information to the individual or the Commissioner, as applicable, in the approved form.

(2) Information required by subsection (1) must be given no later than 30 days after the provider becomes aware of the change or omission.

Note 1: Section 388-55 allows the Commissioner to defer the time for giving an approved form.

Note 2: Section 286-75 provides an administrative penalty for breach of this section.

Subdivision 392-B - Miscellaneous

Table of sections

392-15 Application of certain provisions of Division 83A of the Income Tax Assessment Act 1997

392-15 Application of certain provisions of Division 83A of the Income Tax Assessment Act 1997

The following provisions of the Income Tax Assessment Act 1997 have effect for the purposes of this Division in the same way as they have for the purposes of Division 83A of that Act:

(a) section 83A-130 (about takeovers and restructures);

(b) section 83A-305 (about associates);

(c) section 83A-315 (about market values and discounts);

(d) section 83A-320 (about trusts);

(e) section 83A-325 (about relationships similar to employment);

(f) section 83A-335 (about stapled securities);

(g) section 83A-340 (about indeterminate rights).

Part 2   Consequential amendments

A New Tax System (Goods and Services Tax) Act 1999

6   Paragraphs 84-14(a) and (b)

Repeal the paragraphs, substitute:

(a) the *recipient of the supply is not an entity that has acquired, or may in the future acquire, an ESS interest (within the meaning of the *ITAA 1997) under the scheme; and

(b) Subdivision 83A-B or 83A-C of the ITAA 1997 applies to any ESS interest (within the meaning of that Act) acquired under the scheme; and

7   Section 195-1 (definition of employee share scheme )

Omit "section 139C (including as affected by Subdivision DB of Division 13A of Part III) of the *ITAA 1936", substitute "the *ITAA 1997".

Fringe Benefits Tax Assessment Act 1986

8   Subsection 136(1) (paragraphs (h) to (hc) of the definition of fringe benefit )

Repeal the paragraphs, substitute:

(h) a benefit constituted by the acquisition of an ESS interest under an employee share scheme (within the meaning of the Income Tax Assessment Act 1997) to which Subdivision 83A-B or 83A-C of that Act applies; or

(ha) a benefit constituted by the acquisition of money or property by an employee share trust (within the meaning of the Income Tax Assessment Act 1997); or

Income Tax Assessment Act 1936

9   Subsection 6(1) (paragraph (n) of the definition of passive income )

Omit "Division 13A", substitute "Division 83A of the Income Tax Assessment Act 1997 (about employee share schemes)".

10   Subsection 6BA(3)

Omit "(other than section 26AAC)".

11   At the end of section 21A

Add:

(7) This section does not apply to an ESS interest (within the meaning of the Income Tax Assessment Act 1997) to which Subdivision 83A-B or 83A-C of that Act (about employee share schemes) applies.

12   Subsection 23AF(18) (paragraph (a) of the definition of eligible foreign remuneration )

Omit "Division 13A", substitute "Division 83A of the Income Tax Assessment Act 1997 (about employee share schemes)".

13   Subsection 23AF(18) (paragraph (b) of the definition of eligible foreign remuneration )

Omit "Division 13A", substitute "that Division".

14   Subsection 23AG(7) (definition of foreign earnings )

Omit "Division 13A", substitute "Division 83A of the Income Tax Assessment Act 1997 (about employee share schemes)".

15   Sections 26AAC and 26AAD

Repeal the sections.

16   Section 109H

Omit "shares, rights or stapled securities", substitute "ESS interests".

17   Section 109NB

Repeal the section, substitute:

109NB Loans to purchase shares under employee share schemes not treated as dividends

A private company is not taken under section 109D to pay a dividend because of a loan made solely for the purpose of enabling the shareholder, or an associate of the shareholder, to acquire an ESS interest under an employee share scheme (within the meaning of the Income Tax Assessment Act 1997) to which:

(a) Subdivision 83A-B and subsections 83A-35(3) to (9) of that Act apply; or

(b) Subdivision 83A-C of that Act applies.

18   Division 13A of Part III

Repeal the Division.

19   Subsection 170(10AA) (after table item 25)

Insert:

20   Section 530A

Repeal the section, substitute:

530A Reduction of foreign investment fund income because of employee share scheme

(1) This section applies if a taxpayer acquires an ESS interest (within the meaning of the Income Tax Assessment Act 1997) to which Subdivision 83A-C of that Act (about employee share schemes) applies.

(2) The foreign investment fund income of the taxpayer for a notional accounting period of the FIF, to the extent that the income relates to the interest, is zero if, for the whole of the period, the following conditions are satisfied:

(a) the taxpayer holds the interest;

(b) the interest is an interest in the FIF;

(c) the ESS deferred taxing point (within the meaning of the Income Tax Assessment Act 1997) for the interest has not occurred.

(3) The foreign investment fund income of the taxpayer for a notional accounting period of the FIF is to be reduced by an amount equal to any increase in the market value of the interest during a period (if any):

(a) that forms part of the notional accounting period; and

(b) for the whole of which, the following conditions are satisfied:

(i) the taxpayer holds the interest;

(ii) the interest is an interest in the FIF;

(iii) the ESS deferred taxing point (within the meaning of the Income Tax Assessment Act 1997) for the interest has not occurred.

(4) Section 83A-315 of the Income Tax Assessment Act 1997 (about market values of ESS interests) applies to subsection (3) of this section in the same way as it applies to Division 83A of that Act.

Income Tax Assessment Act 1997

21   Section 10-5 (table item headed "shares")

Repeal:

Substitute:

22   Section 12-5 (table item headed "shares")

Repeal:

Substitute:

23   At the end of subsection 15-2(3)

Add:

; (e) *ESS interests to which Subdivision 83A-B or 83A-C (about employee share schemes) applies.

24   Paragraph 59-40(2)(d)

Repeal the paragraph, substitute:

(d) if you acquired a beneficial interest in the rights under an *employee share scheme - neither Subdivision 83A-B nor 83A-C (about employee share schemes) applies to the beneficial interest;

25   Paragraph 82-135(m)

Omit "Division 13A of Part III of the Income Tax Assessment Act 1936", substitute "Division 83A of this Act".

26   Subsections 104-60(5) and 104-75(4) and (6) (notes)

Omit "section 130-90", substitute "section 130-80".

27   Subsections 104-145(7) and (8)

Repeal the subsections, substitute:

(7) You cannot choose to make a *capital loss for a *share, or a right to acquire a beneficial interest in a share, if:

(a) you acquired the beneficial interest (the ESS interest) in the share or right under an *employee share scheme; and

(b) subsequent to an amount being included in your assessable income under Division 83A (about employee share schemes) in relation to the ESS interest, section 83A-310 (about forfeiture) applies in relation to ESS interest.

28   Subsection 104-160(6)

Repeal the subsection.

29   Section 109-55 (table item 12)

Repeal the item.

30   Section 109-60 (after table item 11)

Insert:

31   Subsection 112-20(3) (note)

After "Note", insert "(1)".

32   At the end of subsection 112-20(3)

Add:

Note 2: This section does not apply to ESS interests acquired under employee share schemes: see subsection 130-80(4).

33   Section 112-75

Repeal the section.

34   Section 112-97 (at the end of the table)

Add:

35   Subsection 115-30(1) (table item 8)

Repeal the item.

36   Subsections 115-30(1A) and (1B)

Repeal the subsections.

37   At the end of section 116-30

Add:

Note: This section does not apply to ESS interests acquired under employee share schemes: see subsection 130-80(4).

38   Subsections 125-75(2) and (3)

Repeal the subsections, substitute:

(2) An *ownership interest, in a company, that is owned by an entity is disregarded under subsection (1) if:

(a) the entity acquired a beneficial interest in the ownership interest under an *employee share scheme; and

(b) either Subdivision 83A-B and subsections 83A-35(3) to (9), or Subdivision 83A-C, applies to the beneficial interest; and

(c) the ownership interest is not a fully-paid ordinary *share.

(3) An *ownership interest, in a trust, that is owned by an entity is disregarded under subsection (1) if:

(a) both of the following would apply if Division 83A (about employee share schemes) applied to ownership interests in trusts in the same way as it applies to *shares:

(i) the entity acquired a beneficial interest in the ownership interest under an *employee share scheme;

(ii) either Subdivision 83A-B and subsections 83A-35(3) to (9), or Subdivision 83A-C, applies to the beneficial interest; and

(b) the ownership interest is not a fully-paid unit.

39   Subsection 130-40(1) (note)

Repeal the note, substitute:

Note: For rights acquired under employee share schemes, see Division 83A, Subdivision 130-D and Division 134.

40   Subdivision 130-D

Repeal the Subdivision, substitute:

Subdivision 130-D - Employee share schemes

Table of sections

130-75 Objects of Subdivision

130-80 ESS interests acquired under employee share schemes

130-85 Interests in employee share trusts

130-90 Shares held by employee share trusts

130-95 Shares and rights in relation to ESS interests

130-100 Application of certain provisions of Division 83A

130-75 Objects of Subdivision

The objects of this Subdivision are:

(a) to recognise that:

(i) Division 83A contains the primary rules for taxing gains on *ESS interests acquired under *employee share schemes; and

(ii) *capital gains and *capital losses on such interests should usually be disregarded during the period in which Division 83A applies to them; and

(b) to align the treatment of ESS interests under Division 83A and the CGT provisions by, for example:

(i) turning off certain special CGT rules; and

(ii) extending some of the deeming provisions of that Division into the CGT provisions; and

(c) to disregard *employee share trusts for most CGT purposes, by treating ESS interests owned by such trusts as being directly owned by the beneficiaries of the trusts.

130-80 ESS interests acquired under employee share schemes

Capital gains and losses

(1) Disregard any *capital gain or *capital loss to the extent that it results from a *CGT event if:

(a) the CGT event happens in relation to an *ESS interest you *acquire under an *employee share scheme; and

(b) the CGT event is not CGT event E4, G1 or K8; and

(c) if Subdivision 83A-B applies to the interest - the time of the acquisition is the time when the CGT event happens; and

(d) if Subdivision 83A-C applies to the interest:

(i) the time of the acquisition is the time when the CGT event happens; or

(ii) the CGT event happens on or before the *ESS deferred taxing point for the ESS interest.

(2) Subsection (1) does not apply if:

(a) Subdivision 83A-C applies to the *ESS interest; and

(b) the *CGT event happens because you forfeit or lose the ESS interest (other than by disposing of it) on or before the *ESS deferred taxing point for the interest.

General acquisition rule

(3) Subsection 109-5(2) (about when you acquire a CGT asset) does not apply to a *CGT asset and a *CGT event if:

(a) the CGT asset is:

(i) a *share; or

(ii) a right to acquire a beneficial interest in a share; and

(b) the CGT event is CGT event A1; and

(c) you acquire an *ESS interest; and

(d) the ESS interest is a beneficial interest in the share or right; and

(e) Subdivision 83A-B or 83A-C (about employee share schemes) applies to the ESS interest.

Market value substitution rule

(4) Sections 112-20 and 116-30 (about the market value substitution rule) do not apply to the extent that they relate to:

(a) you acquiring an *ESS interest to which Subdivision 83A-C (about employee share schemes) applies; or

(b) you:

(i) forfeiting an ESS interest; or

(ii) forfeiting or losing an ESS interest that is a beneficial interest in a right (without you having disposed of the interest or exercised the right);

if Subdivision 83A-B or 83A-C applies to the ESS interest (ignoring section 83A-310).

130-85 Interests in employee share trusts

Scope

(1) This section applies if:

(a) you *acquire an *ESS interest under an *employee share scheme; and

(b) Subdivision 83A-B or 83A-C applies to the ESS interest; and

(c) the ESS interest is, or arises because of, an interest you hold in an *employee share trust.

Application of Division 83A, Part 3-1 and this Part

(2) Division 83A (Employee share schemes), Part 3-1 (Capital gains and losses: general topics) and this Part apply as if you were absolutely entitled to the relevant *share or right:

(a) from the time of acquisition of the *ESS interest; and

(b) until you no longer have an ESS interest in the share or right.

Note 1: An interest you hold in an employee share trust may give rise to an ESS interest because of the operation of section 83A-320.

Note 2: As a result of subsection (2) of this section, CGT event E5 might happen at the time of acquisition. This may result in the trustee making a capital gain. However, any capital gain made by the beneficiary would be disregarded under section 130-80.

(3) However, if this section applies to you because an *associate of yours *acquired the *ESS interest, Division 83A, this Part and Part 3-3 apply as if your associate were absolutely entitled to the relevant *share or right (instead of you):

(a) either:

(i) if Subdivision 83A-B applies to the ESS interest - from the time of acquisition; or

(ii) if Subdivision 83A-C applies to the ESS interest - from immediately after the *ESS deferred taxing point for the ESS interest; and

(b) until your associate no longer has an ESS interest in the share or right.

Note: Once the ESS interest has been taxed to you under Subdivision 83A-B or 83A-C, section 83A-305 (which treats the interest as having been acquired by you, rather than your associate) is no longer relevant. Subsection (3) of this section ensures that your associate then gets the same tax treatment as you would have, had you originally acquired the interest. This does not, however, imply a disposal from you to your associate.

Meaning of employee share trust

(4) An employee share trust , for an *employee share scheme, is a trust whose sole activities are:

(a) obtaining *shares or rights in a company; and

(b) ensuring that *ESS interests in the company that are beneficial interests in those shares or rights are provided under the employee share scheme to employees, or to *associates of employees, of:

(i) the company; or

(ii) a *subsidiary of the company; and

(c) other activities that are merely incidental to the activities mentioned in paragraphs (a) and (b).

130-90 Shares held by employee share trusts

(1) Disregard any *capital gain or *capital loss made by an *employee share trust, or a beneficiary of the trust, to the extent that it results from a *CGT event, if:

(a) the CGT event is CGT event E5 or E7; and

(b) the CGT event happens in relation to a *share; and

(c) the beneficiary had acquired a beneficial interest in the share by exercising a right; and

(d) the beneficiary's beneficial interest in the right was an *ESS interest to which Subdivision 83A-B or 83A-C (about employee share schemes) applied.

(2) Subsection (1) does not apply if the beneficiary acquired the beneficial interest in the *share for more than its *cost base in the hands of the *employee share trust at the time the *CGT event happens.

130-95 Shares and rights in relation to ESS interests

For the purposes of Part 3-1 (Capital gains and losses: general topics) and this Part, treat a *CGT event that happens in relation to a *share or right in the same way as a CGT event that happens in relation to an *ESS interest, if:

(a) Subdivision 83A-B or 83A-C (about employee share schemes) applies to the ESS interest; and

(b) the ESS interest forms part of the share or right.

130-100 Application of certain provisions of Division 83A

The following provisions have effect for the purposes of this Subdivision in the same way as they have for the purposes of Division 83A:

(a) section 83A-130 (about takeovers and restructures);

(b) section 83A-305 (about associates);

(c) section 83A-320 (about trusts);

(d) section 83A-325 (about relationships similar to employment);

(e) section 83A-335 (about stapled securities);

(f) section 83A-340 (about indeterminate rights).

41   Section 134-1 (note 3)

Repeal the note, substitute:

Note 3: Item 1 in the table is modified for ESS interests acquired under employee share schemes: see Division 83A and section 112-97.

Note 4: This Division has no operation in relation to an option acquired under an employee share scheme if the option is exercised before the ESS deferred taxing point for the option: see Subdivision 130-D. Division 83A applies instead.

42   Section 208-190

After "hold shares", insert "acquired".

43   Sections 208-205 to 208-215

Repeal the sections, substitute:

208-205 Distributions to employees acquiring shares under eligible employee share schemes

Division 207 also applies to a *franked distribution made by an *exempting entity if:

(a) the distribution is made to an individual who, at the time the distribution is made, is an employee of:

(i) the exempting entity; or

(ii) a *subsidiary of the exempting entity; and

(b) the employee acquired a beneficial interest in the *share on which the distribution is made:

(i) under an *employee share scheme; and

(ii) in circumstances specified as relevant in section 208-215; and

(c) the employee does not hold that beneficial interest as a trustee.

208-215 Eligible employee share schemes

(1) An individual acquires a beneficial interest in a *share in a company under an *employee share scheme in circumstances that are relevant for the purposes of paragraphs 208-205(b) and 208-235(b) if:

(a) all the *ESS interests available for acquisition under the scheme relate to:

(i) ordinary shares; or

(ii) preference shares to which are attached substantially the same rights as are attached to ordinary shares; and

(b) immediately after the individual acquires the interest:

(i) he or she does not hold a beneficial interest in more than 5% of the shares in the company; and

(ii) he or she is not in a position to control, or to control the casting of, more than 5% of the maximum number of votes that might be cast at a general meeting of the company; and

(c) the share is not a *non-equity share.

(2) An individual also acquires a beneficial interest in a *share in a company under an *employee share scheme in circumstances that are relevant for the purposes of paragraphs 208-205(b) and 208-235(b) if:

(a) the share is part of a stapled security; and

(b) Subdivision 83A-B or 83A-C (about employee share schemes) applies to the beneficial interest in the stapled security.

44   Section 208-235

Repeal the section, substitute:

208-235 Distributions to employees acquiring shares under eligible employee share schemes

Division 207 also applies to a *distribution *franked with an exempting credit made by a *former exempting entity as if it were a *franked distribution if:

(a) the distribution is made to an individual who, at the time the distribution is made, is an employee of:

(i) the former exempting entity; or

(ii) a *subsidiary of the former exempting entity; and

(b) the employee acquired a beneficial interest in the *share on which the distribution is made:

(i) under an *employee share scheme; and

(ii) in circumstances specified as relevant in section 208-215; and

(c) the employee does not hold that beneficial interest as a trustee.

45   Paragraph 208-240(b)

Omit "natural persons", substitute "individuals".

46   Paragraphs 208-240(c) and (d)

Omit "persons mentioned in paragraph (b)", substitute "individuals".

47   Paragraph 208-240(e)

Omit "a person", substitute "an individual".

48   Paragraph 208-240(f)

Omit "the person" (first occurring), substitute "the individual mentioned in paragraph (e)".

49   Paragraph 208-240(f)

Omit "the person mentioned in paragraph (b)", substitute "that individual".

50   Paragraph 208-240(g)

Omit "the person", substitute "the individual".

51   Subsection 247-15(3)

Repeal the subsection, substitute:

(3) This Division does not apply to a *capital protected borrowing if:

(a) an *ESS interest is acquired under the borrowing; and

(b) Subdivision 83A-B or 83A-C (about employee share schemes) applies to the ESS interest.

52   Paragraph 703-35(4)(b)

Omit "subsection (7)", substitute "subsection (5)".

53   Subsections 703-35(5), (6) and (7)

Repeal the subsections, substitute:

(5) A *share or *membership interest in a company may be disregarded under subsection (4) if:

(a) the entity who holds the beneficial interest in the share or membership interest acquired that beneficial interest:

(i) under an *employee share scheme; or

(ii) by exercising a right, a beneficial interest in which was acquired under an employee share scheme; and

(b) paragraphs 83A-105(1)(a) and (b) and subsection 83A-105(2) apply to the beneficial interest acquired under the scheme; and

(c) in the case of a membership interest - the interest is part of a stapled security.

54   Paragraph 707-325(5)(b)

Repeal the paragraph, substitute:

(b) in association with the acquisition of a *share in a company in relation to which the conditions in subsection 703-35(5) are met; or

55   Subsection 707-325(5) (note)

Omit "and section 139CD of the Income Tax Assessment Act 1936 deal", substitute "deals".

56   Subsection 709-80(1) (note 1)

Omit "held", substitute "acquired".

57   Subsection 713-140(5) (table item 3)

Repeal the item, substitute:

58   Subsections 719-30(3), (4) and (5)

Repeal the subsections, substitute:

(3) A *share or *membership interest in a company is covered by this subsection if:

(a) the entity who holds the beneficial interest in the share or membership interest acquired that beneficial interest:

(i) under an *employee share scheme; or

(ii) by exercising a right, a beneficial interest in which was acquired under an employee share scheme; and

(b) paragraphs 83A-105(1)(a) and (b) and subsection 83A-105(2) apply to the beneficial interest acquired under the scheme; and

(c) in the case of a membership interest - the interest is part of a stapled security.

59   Paragraph 768-910(3)(c)

Omit "Division 86;", substitute "Division 86.".

60   Paragraph 768-910(3)(d)

Repeal the paragraph.

61   Subsections 768-910(4), (5) and (6)

Repeal the subsections.

62   Sections 768-920 to 768-945

Repeal the sections.

63   Subsection 768-955(2) (2nd sentence)

Repeal the sentence.

64   Subsection 768-955(4)

Repeal the subsection, substitute:

(4) This section does not apply to an *ESS interest if:

(a) Subdivision 83A-C (about employee share schemes) applies to the interest; and

(b) the *ESS deferred taxing point for the interest has not yet occurred.

65   Subsection 855-45(4)

Repeal the section, substitute:

(4) This section does not apply to an *ESS interest if:

(a) Subdivision 83-C (about employee share schemes) applies to the interest; and

(b) the *ESS deferred taxing point for the interest has not yet occurred.

66   At the end of Division 960

Add:

960-415 Amounts that depend on market value

To avoid doubt, apply the rules in this Subdivision to the *market value component of any calculation that involves market value.

67   Subsection 995-1(1) (definition of cessation time )

Repeal the definition.

68   Subsection 995-1(1) (definition of employee share scheme )

Repeal the definition, substitute:

employee share scheme has the meaning given by subsection 83A-10(2).

69   Subsection 995-1(1) (definition of employee share trust )

Repeal the definition, substitute:

employee share trust has the meaning given by subsection 130-85(4).

70   Subsection 995-1(1)

Insert:

ESS deferred taxing point , for an *ESS interest, has the meaning given by sections 83A-115 and 83A-120.

Note 1: ESS is short for employee share scheme.

Note 2: For ESS interests acquired before 1 July 2009, see subsection 83A-5(4) of the Income Tax (Transitional Provisions) Act 1997.

71   Subsection 995-1(1)

Insert:

ESS interest , in a company, has the meaning given by subsection 83A-10(1).

Note: ESS is short for employee share scheme.

72   Subsection 995-1(1) (definition of qualifying right )

Repeal the definition.

73   Subsection 995-1(1) (definition of qualifying share )

Repeal the definition.

74   Subsection 995-1(1) (definition of subsidiary )

Repeal the definition, substitute:

subsidiary : the question whether a company is a subsidiary of another company is to be determined in the same way as the question whether a corporation is a subsidiary of another corporation is determined under the Corporations Act 2001.

Note: The expression 100% subsidiary has the meaning given by section 975-505.

75   Subsection 995-1(1)

Insert:

TFN withholding tax (ESS) means tax payable in accordance with section 14-155 in Schedule 1 to the Taxation Administration Act 1953.

Note: ESS is short for employee share scheme.

76   Subsection 995-1(1)

Insert:

work and income support withholding payments means work and income support related withholding payments and benefits, within the meaning given by the Income Tax Assessment Act 1936.

Income Tax (Transitional Provisions) Act 1997

77   Subdivisions 130-DA and 130-D

Repeal the Subdivisions.

Taxation Administration Act 1953

78   Paragraphs 14-5(3)(d) and (e) in Schedule 1

Repeal the paragraphs, substitute:

(d) a benefit constituted by the acquisition of an *ESS interest *under an employee share scheme to which Subdivision 83A-B or 83A-C of the Income Tax Assessment Act 1997 applies.

79   Subsection 250-10(2) in Schedule 1 (after table item 95)

Insert:

80   After subsection 286-75(2B) in Schedule 1

Insert:

(2BA) You are also liable to an administrative penalty if:

(a) you are required under Division 392 (Employee share scheme reporting) to give a statement to an entity (other than the Commissioner) in the *approved form by a particular day; and

(b) you do not give the statement in the approved form to the entity by that day.

81   Paragraph 286-80(2)(a) in Schedule 1

After "(2B)", insert ", (2BA)".

82   Subsection 446-5(6) in Schedule 1 (table item 5)

Omit "section 130-90", substitute "section 130-80".

Part 3   Application provisions

Income Tax (Transitional Provisions) Act 1997

83   At the end of Part 2-40

Add:

Division 83A - Employee share schemes

Table of Subdivisions

83A-A Application of Division 83A of the Income Tax Assessment Act 1997

83A-B Application of former provisions of the Income Tax Assessment Act 1936

Subdivision 83A-A - Application of Division 83A of the Income Tax Assessment Act 1997

Table of sections

83A-5 Application of Division 83A of the Income Tax Assessment Act 1997

83A-5 Application of Division 83A of the Income Tax Assessment Act 1997

(1) Division 83A of the Income Tax Assessment Act 1997 applies in relation to an ESS interest if:

(a) the interest was acquired on or after 1 July 2009; and

(b) the relevant share or right (within the meaning of Division 13A of Part III of the Income Tax Assessment Act 1936, as in force at the time (the pre-Division 83A time ) occurring just before Schedule 1 to the Tax Laws Amendment (2009 Budget Measures No. 2) Act 2009 commenced, ( former Division 13A )) was not acquired (within the meaning of former Division 13A) before 1 July 2009.

(2) Furthermore, Subdivision 83A-C of the Income Tax Assessment Act 1997 (and the rest of Division 83A of that Act, to the extent that it relates to that Subdivision) also applies in relation to an ESS interest if:

(a) all of the following subparagraphs apply:

(i) at the pre-Division 83A time, subsection 139B(3) of the Income Tax Assessment Act 1936 applied in relation to the interest;

(ii) the interest was acquired (within the meaning of former Division 13A) before 1 July 2009;

(iii) the cessation time mentioned in subsection 139B(3) of the Income Tax Assessment Act 1936, as in force at the pre-Division 83A time, for the interest did not occur before 1 July 2009; or

(b) all of the following subparagraphs apply:

(i) at the pre-Division 83A time, section 26AAC of the Income Tax Assessment Act 1936, as in force at that time, ( former section 26AAC ) applied in relation to the interest;

(ii) the interest was acquired (within the meaning of former section 26AAC) before 1 July 2009;

(iii) an amount has not been included in a person's assessable income under former section 26AAC in relation to the interest before 1 July 2009.

(3) Subsection (2) applies despite section 83A-105 of the Income Tax Assessment Act 1997.

(4) If Subdivision 83A-C of the Income Tax Assessment Act 1997 applies in relation to an ESS interest because of subsection (2):

(a) do not include an amount in your assessable income under subsection 83A-110(1) of that Act in relation to the ESS interest to the extent that the amount relates to your employment outside Australia; and

(b) subject to subsection 83A-115(3) or 83A-120(3) of that Act, whichever is applicable, treat the ESS deferred taxing point for the interest as being:

(i) if paragraph (2)(a) of this section applies - the cessation time mentioned in subparagraph (2)(a)(iii); or

(ii) if paragraph (2)(b) applies - the earliest time at which an amount is included in a person's assessable income under former section 26AAC in relation to the interest; and

(c) treat the reference in subsection 83A-115(3) or 83A-120(3) (30 day rule for ESS deferred taxing point), whichever is applicable, of that Act to the time worked out under subsection 83A-115(2) or 83A-120(2) of that Act as being a reference to the time worked out under paragraph (b) of this subsection; and

(d) treat the requirements in paragraphs 83A-310(a), (b) and (c) of that Act as being satisfied in relation to the interest if, and only if:

(i) if paragraph (2)(a) applies - the 2 requirements mentioned in section 139DD of the Income Tax Assessment Act 1936 (as in force at the pre-Division 83A time) are satisfied in relation to the interest; or

(ii) if paragraph (2)(b) applies - the requirements in paragraphs (8D)(a), (b) and (c) of former section 26AAC are satisfied in relation to the interest; and

(e) Subdivision 14-C in Schedule 1 to the Taxation Administration Act 1953 (about TFN withholding tax (ESS)) does not apply to the ESS interest; and

(f) if paragraph (2)(a) applies:

(i) for the purposes of Division 115 of the Income Tax Assessment Act 1997 (Discount capital gains and trusts' net capital gains), treat the ESS interest as having been acquired by an individual when the individual acquired the legal title in the share or right of which the ESS interest forms part; and

(ii) for the purposes of Division 392 in Schedule 1 to the Taxation Administration Act 1953 (Statements), disregard any election made under former section 139E of the Income Tax Assessment Act 1936; and

(g) if paragraph (2)(b) applies - paragraph 82-135(m) of the Income Tax Assessment Act 1997 does not apply in relation to the ESS interest.

Subdivision 83A-B - Application of former provisions of the Income Tax Assessment Act 1936

Table of sections

83A-10 Savings - continued operation of former provisions

83A-15 Indeterminate rights

83A-10 Savings - continued operation of former provisions

(1) This section applies if:

(a) at the time (the pre-Division 83A time ) occurring just before Schedule 1 to the Tax Laws Amendment (2009 Budget Measures No. 2) Act 2009 commenced:

(i) Division 13A of Part III of the Income Tax Assessment Act 1936, as in force at that time, ( former Division 13A ) applied in relation to a share or right (within the meaning of former Division 13A); or

(ii) section 26AAC of that Act, as in force at that time, applied in relation to a share or right (within the meaning of that section as in force at that time); and

(b) if there is a beneficial interest in the share or right that is an ESS interest - Division 83A of the Income Tax Assessment Act 1997 does not apply in relation to the interest under section 83A-5.

(2) If subparagraph (1)(a)(i) applies, to avoid doubt, former Division 13A continues to apply (in spite of its repeal) to the share or right.

(3) If subparagraph (1)(a)(ii) applies, to avoid doubt, sections 26AAC and 26AAD of the Income Tax Assessment Act 1936, as in force at the pre-Division 83A time, continue to apply (in spite of their repeal) to the share or right.

83A-15 Indeterminate rights

(1) This section applies if:

(a) you acquired a beneficial interest in a right before 1 July 2009; and

(b) on or after 1 July 2009, the right becomes a right to acquire a beneficial interest in a share.

(2) Division 13A of the Income Tax Assessment Act 1936 is taken to have applied as if the right had always been a right to acquire the beneficial interest in the share.

84   At the end of Division 703

Add:

703-35 Employee share schemes

Despite the amendments of section 703-35 of the Income Tax Assessment Act 1997 made by Schedule 1 to the Tax Laws Amendment (2009 Budget Measures No. 2) Act 2009, subsection (4) of that section continues to apply, from the commencement of that Schedule, to each share and membership interest that it applied to just before that commencement.

85   At the end of Subdivision 719-B

Add:

719-30 Employee share schemes

Despite the amendment of section 719-30 of the Income Tax Assessment Act 1997 made by Schedule 1 to the Tax Laws Amendment (2009 Budget Measures No. 2) Act 2009, subsection (2) of that section continues to apply, from the commencement of that Schedule, to each share and membership interest that it applied to just before that commencement.

86   Application of other amendments

The amendments made by this Schedule (other than items 1, 83, 84 and 85) apply in relation to the ESS interests mentioned in subsections 83A-5(1) and (2) of the Income Tax (Transitional Provisions) Act 1997, as inserted by this Schedule.

87   Transitional - regulations

Despite subsection 12(2) of the Legislative Instruments Act 2003, regulations that:

(a) are made for the purposes of Division 83A of the Income Tax Assessment Act 1997, added by this Schedule; or

(b) are made for the purposes of a taxation law (within the meaning of that Act) and relate to the amendments made by this Schedule;

may take effect from any time on or after 1 July 2009, if the regulations are made before the end of the period of 3 months commencing on the day this Schedule commences.

Schedule 2   Non-commercial losses

Income Tax Assessment Act 1997

1   Section 35-1

Omit:

It sets out a series of tests to determine whether a business activity is treated as being non-commercial.

The deferred losses may be offset in later years against profits fromthe activity or, if one of the tests is satisfied or the Commissioner exercises a discretion, against other income.

Substitute:

It sets out an income requirement and a series of tests to determine whether a business activity is treated as being non-commercial.

The deferred losses may be offset in later years against profits from the activity. They may also be offset against other income if the income requirement and one of the other tests are satisfied, or if the Commissioner exercises a discretion.

2   Paragraph 35-10(1)(a)

Repeal the paragraph, substitute:

(a) you satisfy subsection (2E) for that year, and one of the tests set out in any of the following provisions is satisfied for the business activity for that year:

(i) section 35-30 (assessable income test);

(ii) section 35-35 (profits test);

(iii) section 35-40 (real property test);

(iv) section 35-45 (other assets test); or

3   Subsection 35-10(2) (note)

Repeal the note, substitute:

Note 1: There are modifications of this rule if you have exempt income (see section 35-15) or you become bankrupt (see section 35-20).

Note 2: This rule does not apply if your excess is solely due to deductions under Division 41 (see section 35-10 of the Income Tax (Transitional Provisions) Act 1997).

4   Paragraph 35-10(2A)(a)

Repeal the paragraph, substitute:

(a) you satisfied subsection (2E), and one of the tests set out in any of the following provisions was satisfied for the business activity:

(i) section 35-30 (assessable income test);

(ii) section 35-35 (profits test);

(iii) section 35-40 (real property test);

(iv) section 35-45 (other assets test); or

5   After subsection 35-10(2D)

Insert:

Income requirement

(2E) You satisfy this subsection for an income year if the sum of the following is less than $250,000:

(a) your taxable income for that year;

(b) your *reportable fringe benefits total for that year;

(c) your *reportable superannuation contributions for that year;

(d) your *total net investment losses for that year.

For the purposes of paragraph (a), when working out your taxable income, disregard any excess mentioned in subsection (2) for any *business activity for that year that you could otherwise deduct under this Act for that year.

6   Subsection 35-55(1)

After "may", insert ", on application,".

7   Subsection 35-55(1)

After "one or more income years", insert "(the excluded years )".

8   Paragraph 35-55(1)(a)

Omit "that or those income years", substitute "the excluded years".

9   Paragraph 35-55(1)(b)

Omit "the business activity has started to be carried on and, for that or those income years:", substitute "for an applicant who carries on the business activity who satisfies subsection 35-10(2E) (income requirement) for the most recent income year ending before the application is made - the business activity has started to be carried on and, for the excluded years:".

10   Paragraph 35-55(1)(b) (note)

Repeal the note.

11   At the end of subsection 35-55(1)

Add:

; or (c) for an applicant who carries on the business activity who does not satisfy subsection 35-10(2E) (income requirement) for the most recent income year ending before the application is made - the business activity has started to be carried on and, for the excluded years:

(i) because of its nature, it has not produced, or will not produce, assessable income greater than the deductions attributable to it; and

(ii) there is an objective expectation, based on evidence from independent sources (where available) that, within a period that is commercially viable for the industry concerned, the activity will produce assessable income for an income year greater than the deductions attributable to it for that year (apart from the operation of subsections 35-10(2) and (2C)).

Note: Paragraphs (b) and (c) are intended to cover a business activity that has a lead time between the commencement of the activity and the production of any assessable income. For example, an activity involving the planting of hardwood trees for harvest, where many years would pass before the activity could reasonably be expected to produce income.

12   Subsection 35-55(2)

After "may", insert ", on application,".

13   At the end of section 35-55

Add:

(3) An application for a decision by the Commissioner under this section must be made in the *approved form.

Income Tax (Transitional Provisions) Act 1997

14   After Division 34

Insert:

Division 35 - Deferral of losses from non-commercial business activities

Tableof sections

35-10 Deductions for certain new business investment

35-20 Application of Commissioner's decisions

35-10 Deductions for certain new business investment

The rule in subsection 35-10(2) of the Income Tax Assessment Act 1997 does not apply for an income year to a business activity if:

(a) apart from that rule, you could otherwise deduct amounts under Division 41 of that Act for that income year; and

(b) the total of those amounts is more than or equal to the excess worked out under that subsection for the business activity for the income year.

35-20 Application of Commissioner's decisions

A decision of the Commissioner made under section 35-55 of the Income Tax Assessment Act 1997:

(a) before the commencement of Schedule 2 to the Tax Laws Amendment (2009 Budget Measures No. 2) Act 2009; and

(b) for one or more income years;

continues to have effect, after that commencement, for those income years despite the amendments made by that Schedule.

15   Application

The following apply in relation to the 2009-2010 income year and later income years:

(a) the amendments made by items 1 to 13 of this Schedule;

(b) section 35-10 of the Income Tax (Transitional Provisions) Act 1997 (as inserted by this Schedule).

Schedule 3   Lost members' superannuation

Part 1   Amendment of the Superannuation (Unclaimed Money and Lost Members) Act 1999

1   Paragraph 6(a)

Repeal the paragraph, substitute:

(a) the keeping of registers of details relating to:

(i) unclaimed money; and

(ii) certain amounts relating to superannuation of persons ( former temporary residents ) who used to be holders of temporary visas under the Migration Act 1958 and have left Australia; and

(iii) certain amounts relating to superannuation of persons who used to be lost members;

so that the money and amounts can be claimed by persons entitled to them; and

2   Paragraph 6(ca)

Repeal the paragraph.

3   Paragraphs 6(e) and (ea)

Repeal the paragraphs, substitute:

(e) the payment to the Commissioner of:

(i) unclaimed money; and

(ii) certain amounts relating to superannuation of former temporary residents; and

(iii) certain amounts relating to superannuation of lost members; and

(ea) the safekeeping of such money and amounts paid to the Commissioner until the Commissioner can pay the money and amounts to persons entitled to them; and

4   Section 7

Omit:

Superannuation providers must pay to the Commissioner of Taxation any unclaimed money they hold. If the Commissioner is satisfied he or she has received such a payment in respect of a person, the Commissioner must pay the amount he or she has received to the person, to a fund identified by the person or, if the person has died, to the person's death beneficiaries or legal personal representative.

Substitute:

Superannuation providers must pay to the Commissioner of Taxation any unclaimed money they hold. Later, the Commissioner must, if satisfied that it is possible to do so, pay the amount he or she has received in respect of a person to:

(a) the person; or

(b) to a fund identified by the person; or

(c) if the person has died - to the person's death beneficiaries or legal personal representative.

5   At the end of section 7

Add:

Superannuation of lost members

At the times determined by the Commissioner, superannuation providers must give the Commissioner of Taxation details relating to:

(a) small accounts of lost members; and

(b) inactive accounts of unidentifiable lost members.

Superannuation providers must pay to the Commissioner of Taxation the value of any such accounts. Later, the Commissioner must, if satisfied that it is possible to do so, pay an amount he or she has received in respect of a person:

(a) to a fund identified by the person; or

(b) if the person has reached eligibility age or the amount is less than $200 - to the person; or

(c) if the person has died - to the person's death beneficiaries or legal personal representative.

6   Section 8

Insert:

account , in a fund, has a meaning affected by subsection 24B(3).

7   Section 8

Insert:

lost member account has the meaning given by section 24B.

8   Section 8

Insert:

non-member spouse has the same meaning as in Part VIIIB of the Family Law Act 1975.

9   Section 8

Insert:

payment split means a payment split under Part VIIIB of the Family Law Act 1975.

10   Section 8 (paragraph (a) of the definition of scheduled statement day )

After "Part 3", insert "or 4A".

11   Section 8

Insert:

splittable payment has the same meaning as in Part VIIIB of the Family Law Act 1975.

12   Paragraph 12(1)(c)

Omit "for at least 2 years", substitute "within the last 2 years".

13   Subsections 12(3) and 13(1B)

Repeal the subsections.

14   Paragraph 14(c)

Omit "for at least 2 years", substitute "within the last 2 years".

15   Paragraph 15A(a)

After "this Part", insert "and Part 4A".

16   Paragraph 15A(b)

After "this Part, insert "or Part 4A".

17   At the end of subsection 19(1)

Add:

; and (e) amounts paid to the Commissioner under section 24E (lost member accounts); and

(f) each person in respect of whom there is an amount referred to in paragraph (e) of this subsection.

18   At the end of subparagraph 20H(1)(b)(ii)

Add "and".

19   After subparagraph 20H(1)(b)(ii)

Insert:

(iia) the amounts (if any) paid to the Commissioner under section 24E in respect of the person;

20   At the end of paragraph 20H(1)(b)

Add:

; and (vi) the amounts (if any) paid by the Commissioner under section 24G in respect of the person.

21   Paragraph 20H(2B)(a)

After "section 17", insert ", 24E or 24G".

22   Subsection 20H(3)

Omit "and (ii)", substitute ", (ii) and (iia)".

23   Part 4 (heading)

Repeal the heading, substitute:

Part 4 - Information about lost members

24   After Part 4

Insert:

Part 4A - Payment of lost member accounts to the Commissioner

Division 1 - Preliminary

24A Object of Part

The object of this Part is to set out a procedure for dealing with:

(a) small accounts of lost members; and

(b) inactive accounts of unidentifiable lost members.

24B Meaning of lost member account

Small accounts

(1) An account in a fund is taken to be a lost member account if:

(a) the member on whose behalf the account is held is a lost member; and

(b) the balance of the account is less than $200; and

(c) the account does not support or relate to a defined benefit interest (within the meaning of section 292-175 of the Income Tax Assessment Act 1997).

Note: The balance of an account does not reflect any earnings, fees or charges that have not yet been credited to, or debited from, the account.

Inactive accounts of unidentifiable members

(2) An account in a fund is also taken to be a lost member account if:

(a) the member on whose behalf the account is held is a lost member; and

(b) the superannuation provider has not received an amount in respect of the member within the last 5 years; and

(c) the superannuation provider is satisfied that it will never be possible for the provider, having regard to the information reasonably available to the provider, to pay an amount to the member; and

(d) the account does not support or relate to a defined benefit interest (within the meaning of section 292-175 of the Income Tax Assessment Act 1997).

RSAs

(3) A reference to an account in a fund that is an RSA is a reference to:

(a) if the RSA is an account - that account; or

(b) if the RSA is a policy (within the meaning of the RSA Act) - that policy.

Division 2 - Statement of lost member accounts

24C Statement of lost member accounts

Superannuation provider must give statement to Commissioner

(1) A superannuation provider must, for each unclaimed money day, give the Commissioner a statement, in the approved form, of information relevant to either or both of the following:

(a) each lost member account as at the end of the day;

(b) the administration of any of the following in connection with each lost member account:

(i) this Part;

(ii) the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007;

(iii) the Income Tax Assessment Act 1997, Part 3AA of this Act, and Chapters 2 and 4 in Schedule 1 to the Taxation Administration Act 1953, so far as they relate to this Part or the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007.

Note 1: For State or Territory public sector superannuation schemes, see section 24H.

Note 2: The Taxation Administration Act 1953 provides for offences and administrative penalties if the statement required under subsection (1) includes false or misleading information: see sections 8K, 8M, 8N and 8R of that Act and Division 284 in Schedule 1 to that Act.

Note 3: The approved form may also require the statement to include certain tax file numbers: see subsection 25(4) of this Act.

(2) If, at the end of the unclaimed money day, there are no lost member accounts, the statement must say so.

Note: If the fund is a regulated superannuation fund that has fewer than 5 members, see subsection (4).

(3) The statement must also contain information, required by the approved form, relevant to any account that ceases to be a lost member account because the member ceases to be a lost member during the period that:

(a) starts on the unclaimed money day; and

(b) ends on the day on which the statement is given to the Commissioner.

(4) This section does not apply if, at the end of the unclaimed money day:

(a) the fund is a regulated superannuation fund that has fewer than 5 members; and

(b) there are no lost member accounts.

When statement must be given

(5) The superannuation provider must give the Commissioner the statement by the end of the scheduled statement day for the unclaimed money day.

Note 1: The Commissioner may defer the time for giving the statement: see section 388-55 in Schedule 1 to the Taxation Administration Act 1953.

Note 2: The Taxation Administration Act 1953 provides for offences and administrative penalties if the statement is not given when it must be: see sections 8C and 8E of that Act and Division 286 in Schedule 1 to that Act.

Relationship to rest of Act

(6) This section does not apply in relation to:

(a) an amount that is unclaimed money at the end of the unclaimed money day; or

(b) amounts payable to a person identified in a notice the Commissioner has given the superannuation provider under section 20C.

Note: Section 16 requires the superannuation provider to give the Commissioner a statement about unclaimed money.

Note 2: Section 20E requires the superannuation provider to give the Commissioner a statement about the superannuation interest of a person identified in a notice given to the provider under section 20C (which is about notices identifying former temporary residents).

24D Error or omission in statement

Scope

(1) This section applies if:

(a) a superannuation provider gives the Commissioner a statement under section 24C; and

(b) the superannuation provider becomes aware of a material error, or material omission, in any information in the statement.

Superannuation provider must give information

(2) The superannuation provider must, in the approved form, give the Commissioner the corrected or omitted information.

(3) Information required by subsection (2) must be given no later than 30 days after the superannuation provider becomes aware of the error or omission.

Note 1: The Commissioner may defer the time for giving the information: see section 388-55 in Schedule 1 to the Taxation Administration Act 1953.

Note 2: The Taxation Administration Act 1953 provides for offences and administrative penalties if the information is not given when it must be: see sections 8C and 8E of that Act and Division 286 in Schedule 1 to that Act.

Division 3 - Payment in respect of lost member accounts

24E Payment in respect of lost member accounts

Provider must pay Commissioner

(1) A superannuation provider must pay the Commissioner (for the Commonwealth) the amount worked out under subsection (2) in respect of a person if:

(a) an account is a lost member account as at the end of an unclaimed money day; and

(b) the account is held by the provider on behalf of the person; and

(c) the person is still a lost member at the time (the calculation time ) immediately before the earlier of:

(i) the time (if any) the payment is made; and

(ii) the time at which the payment is due and payable, (assuming that the payment must be made).

The amount is due and payable at the end of the scheduled statement day for the unclaimed money day.

Note 1: For State or Territory public sector superannuation schemes, see section 24H.

Note 2: Subsection 24F(2) makes it an offence not to comply with a requirement under this subsection.

Note 3: The amount the superannuation provider must pay the Commissioner is a tax-related liability for the purposes of the Taxation Administration Act 1953. Division 255 in Schedule 1 to that Act deals with payment and recovery of tax-related liabilities. Division 284 in that Schedule provides for administrative penalties connected with such liabilities.

Note 4: The Commissioner may defer the time at which the amount is due and payable: see section 255-10 in Schedule 1 to the Taxation Administration Act 1953.

Note 5: Section 24J provides for refunds of overpayments by the superannuation provider to the Commissioner.

Amount of payment

(2) The amount payable in respect of the lost member is the amount that would have been payable by the superannuation provider if the lost member had requested that the balance of the account be rolled over or transferred to a complying superannuation fund (within the meaning of the SIS Act).

(3) For the purposes of subsection (2):

(a) work out the amount that would have been payable at the calculation time; and

(b) assume that the request were made before the calculation time; and

(c) assume that the lost member had not died before the calculation time.

Family Law payment splits

(4) If, as a result of a payment split that applies in relation to the account, the non-member spouse (or his or her legal personal representative if he or she has died) is, or could in the future be, entitled to be paid an amount, then:

(a) for the purposes of subsection (2), take account only of the lost member's entitlement to payment remaining after any reduction by the payment split (disregarding subsection 90MB(3) of the Family Law Act 1975); and

(b) the superannuation provider must also pay an amount (the non-member spouse amount ) to the Commissioner in respect of the non-member spouse; and

(c) the non-member spouse amount is due and payable at the same time as the amount payable under subsection (1); and

(d) the amount of the non-member spouse amount is the amount of the reduction mentioned in paragraph (a).

Note 1: Part VIIIB of the Family Law Act 1975 is about splitting amounts payable in respect of a superannuation interest between the parties to a marriage. Subsection 90MB(3) of that Act provides that the Part has effect subject to this Act.

Note 2: Subsection 24F(2) makes it an offence not to comply with a requirement under this subsection.

Miscellaneous

(5) This section does not require the superannuation provider to pay the Commissioner:

(a) an amount that is unclaimed money at the end of the unclaimed money day; or

(b) an amount payable to a person identified in a notice the Commissioner has given the provider under section 20C.

Note 1: Unclaimed money is payable to the Commissioner under section 17.

Note 2: An amount mentioned in paragraph (5)(b) is payable to the Commissioner under section 20F.

(6) Upon payment to the Commissioner of an amount as required under this section, the superannuation provider is discharged from further liability in respect of that amount.

(7) For the purposes of this section, ignore accounts with nil balances, or balances below nil, as at the calculation time mentioned in subsection (1).

24F Payment in respect of lost member accounts - late payments

General interest charge on late payment

(1) If any of the amount a superannuation provider must pay under section 24E remains unpaid after it is due and payable, the superannuation provider is liable to pay general interest charge on the unpaid amount for each day in the period that:

(a) starts at the time it is due and payable; and

(b) ends at the end of the last day on which either of the following remains unpaid:

(i) the amount unpaid when it is due and payable;

(ii) general interest charge on any of the amount.

Offence of failing to make payment to Commissioner

(2) A person commits an offence if:

(a) the person is subject to a requirement under subsection 24E(1) or (4); and

(b) the person engages in conduct; and

(c) the person's conduct breaches the requirement.

Penalty for an offence against subsection (2): 100 penalty units.

24G Payment by Commissioner in respect of person for whom an amount has been paid to Commissioner

(1) This section applies in relation to a person if:

(a) a superannuation provider paid an amount to the Commissioner under section 24E in respect of the person; and

(b) the Commissioner is satisfied, on application in the approved form or on the Commissioner's own initiative, that it is possible for the Commissioner to pay the amount in accordance with subsection (2).

(2) The Commissioner must pay the amount:

(a) to a single fund if:

(i) the person has not died; and

(ii) the person directs the Commissioner to pay to the fund; and

(iii) the fund is a complying superannuation plan (within the meaning of the Income Tax Assessment Act 1997); or

(b) in accordance with subsection (3) if:

(i) the person has died; and

(ii) the Commissioner is satisfied that, if the superannuation provider had not paid the amount to the Commissioner, the provider would have been required to pay an amount or amounts (death benefits) to one or more other persons (death beneficiaries) because of the deceased person's death; or

(c) to the person's legal personal representative if the person has died but subparagraph (b)(ii) does not apply; or

(d) to the person if:

(i) subparagraph (a)(ii) does not apply; and

(ii) the person has reached the eligibility age or the amount is less than $200; and

(iii) the person has not died.

Note: Money for payments under subsection (2) is appropriated by section 16 of the Taxation Administration Act 1953.

(3) In a case covered by paragraph (2)(b), the Commissioner must pay the amount under subsection (2) by paying to each death beneficiary the amount worked out using the following formula:

[Amount payable under subsection (2) x [Death benefit for the deather beneficiary / Total death benefits]]

Note: If there is only one death beneficiary, the whole of the amount is payable to that beneficiary.

(4) This section does not apply to an amount that is to be, is or has been, taken into account in determining whether the Commissioner must make a payment under section 20H.

Note: Section 20H provides for payment by the Commissioner of amounts equal to amounts paid to the Commissioner under subsections 17(1), 20F(1) and 24E(1) in respect of a person who:

(a) is identified in a notice under section 20C; or

(b) used to be the holder of a temporary visa.

Division 4 - Various rules for special cases

24H Payment in respect of lost member accounts - State or Territory public sector superannuation schemes

Sections 24C and 24E do not apply to a superannuation provider in relation to an unclaimed money day if, because of section 18, the superannuation provider does not have to comply with subsection 16(1) or 17(1) in relation to the unclaimed money day.

24J Refund of overpayment made by superannuation provider

(1) This section applies if:

(a) a superannuation provider for a fund (the first fund ) has made a payment to the Commissioner under section 24E in respect of a person; and

(b) the Commissioner is satisfied that the amount paid exceeded the amount (if any) that was payable under that section in respect of the person.

(2) The Commissioner must pay the excess:

(a) to the superannuation provider; or

(b) to a superannuation provider for another fund if the Commissioner is satisfied that:

(i) the first fund no longer exists; and

(ii) the other fund provides rights relating to the person equivalent to those provided by the first fund.

Note: Money for payments under subsection (2) is appropriated by section 16 of the Taxation Administration Act 1953.

24K Commissioner may recover overpayment

(1) This section applies if:

(a) the Commissioner makes a payment in respect of a person under, or purportedly under, this Part; and

(b) the amount paid exceeds the amount (if any) properly payable under this Part in respect of the person.

(2) The Commissioner may recover all or part of the excess from a person (the debtor ) described in subsection (3) as a debt due by the debtor to the Commonwealth if the conditions specified in subsection (4) are met.

(3) The persons from whom the Commissioner may recover are as follows:

(a) the person to whom the payment was made (whether the payment was made to the person in his or her own right or as the legal personal representative of someone else who had died);

(b) the superannuation provider for the fund to which the payment was made;

(c) if the payment, or an amount wholly or partly attributable to that payment, was transferred to another fund - the superannuation provider for that other fund.

(4) The conditions for recovery are that:

(a) the Commissioner gave the debtor written notice, as prescribed by the regulations, of the proposed recovery and the amount to be recovered; and

(b) at least 28 days have passed since the notice was given; and

(c) the amount recovered is not more than the amount specified in the notice.

(5) Despite subsections (2) and (3), if the Commissioner gives a notice described in paragraph (4)(a) to a superannuation provider for a fund, and the fund does not hold an amount attributable to the payment, the Commissioner cannot recover from the superannuation provider.

(6) The Commissioner may revoke a notice described in paragraph (4)(a).

(7) The total of the amounts recovered from different debtors in relation to the same excess must not be more than the excess.

(8) A notice described in paragraph (4)(a) is not a legislative instrument.

24L Superannuation provider to return payment from Commissioner that cannot be credited

Scope

(1) This section applies if:

(a) a payment (the Commissioner's payment ) is made to a fund under section 24G in accordance with a person's direction; and

(b) the superannuation provider for the fund has not credited the payment to an account for the benefit of the person by the time (the repayment time ) that is the end of the 28th day after the day on which the Commissioner's payment was made.

Repayment

(2) The superannuation provider is liable to repay the Commissioner's payment to the Commonwealth. The repayment is due and payable at the repayment time.

Note: The amount the superannuation provider is liable to repay is a tax-related liability for the purposes of the Taxation Administration Act 1953. Division 255 in Schedule 1 to that Act deals with payment and recovery of tax-related liabilities.

(3) The superannuation provider must give the Commissioner, in the approved form, information relating to the Commissioner's payment when repaying it.

Note: The Taxation Administration Act 1953 provides for offences and administrative penalties if the form is not given when it must be or includes false or misleading information: see sections 8C, 8K and 8N of that Act and Divisions 284 and 286 in Schedule 1 to that Act.

General interest charge

(4) If any of the amount the superannuation provider is liable to repay under subsection (2) remains unpaid by the superannuation provider after the repayment time, the superannuation provider is liable to pay general interest charge on the unpaid amount for each day in the period that:

(a) starts at the repayment time; and

(b) ends at the end of the last day on which either of the following remains unpaid:

(i) the amount unpaid at the repayment time;

(ii) general interest charge on any of the amount.

24M Compensation for acquisition of property

(1) If the operation of this Part would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

(3) In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

25   At the end of section 25

Add:

Lost member accounts statements

(4) The approved form of statement by a superannuation provider for the purposes of section 24C may require the statement to contain the tax file number of:

(a) the superannuation provider; and

(b) the fund; and

(c) a member of the fund if:

(i) the statement relates to an account, in the fund, held on behalf of the member; and

(ii) the member has quoted his or her tax file number to the superannuation provider.

26   Paragraph 29(1)(aa)

After "subsection 20H(1)", insert "or 24G(1)".

Part 2   Other amendments

Financial Transaction Reports Act 1988

27   Paragraph 18(4B)(ca)

Omit "Part 3 or 3A", substitute "Part 3, 3A or 4A".

Income Tax Assessment Act 1997

28   Section 301-125

After "section 20H", insert "or 24G".

29   Section 301-225

Before "Despite", insert "(1)".

30   At the end of section 301-225

Add:

(2) Despite anything else in this Division (apart from Subdivision 301-D), a *superannuation member benefit that you receive is not assessable income and is not *exempt income if:

(a) the benefit is a *superannuation lump sum; and

(b) the benefit is paid to you under subsection 24G(2) of the Superannuation (Unclaimed Money and Lost Members) Act 1999 in a case covered by paragraph (d) of that subsection; and

(c) the amount of the benefit is less than $200.

31   Subsection 307-5(1) (cell at table item 5, column 2)

After "section 20H", insert ", 24E or 24G".

32   Subsection 307-5(1) (cell at table item 5, column 3)

Omit "or 20H", substitute ", 20H or 24G".

33   Paragraph 307-120(2)(e)

After "section 20H", insert "or 24G".

34   Subsection 307-142(1)

After "section 20H", insert "or 24G".

35   Subsection 307-142(2) (method statement, at the end of the note to step 1)

Add:

A payment made under section 24G of that Act is attributable to a single unclaimed amount set out in item 4 of the table.

36   Subsection 307-142(3) (at the end of the table)

Add:

37   Subsection 307-300(1)

After "section 20H", insert "or 24G".

38   Subsection 307-300(2) (method statement, at the end of the note to step 1)

Add:

A payment made under section 24G of that Act is attributable to a single unclaimed amount set out in item 4 of the table.

39   Subsection 307-300(3) (at the end of the table)

Add:

40   Subsection 307-350(2B)

Omit "section 20H", substitute "sections 20H and 24G".

Taxation Administration Act 1953

41   Subsection 8AAB(5) (after table item 13C)

Insert:

42   Subsection 250-10(2) in Schedule 1 (table items 68 and 69)

Omit "section".

43   Subsection 250-10(2) in Schedule 1 (after table item 69)

Part 3   Application and saving provisions

44   Application

The amendments made by this Schedule apply in relation to:

(a) the last unclaimed money day (within the meaning of the Superannuation (Unclaimed Money and Lost Members) Act 1999) occurring before 1 July 2010; and

(b) later unclaimed money days.

45   Saving - regulations

If, just before the commencement of this item, regulations made for the purposes of paragraph 18B(4)(a) of the Superannuation (Unclaimed Money and Lost Members) Act 1999 were in force, the regulations have effect, from that commencement, as if they had also been made for the purposes of paragraph 24K(4)(a) of that Act, as inserted by this Schedule.