Tax Laws Amendment (2009 Measures No. 2) Act 2009 (42 of 2009)

Schedule 1   Tax treatment of payments under financial claims scheme

First Home Saver Accounts Act 2008

9   After section 128

Insert:

128A Special provisions applying if financial claims scheme entitlements arise in relation to FHSAs

Application

(1) This section applies if an entitlement under Division 2AA (Financial claims scheme for account-holders with insolvent ADIs) of Part II of the Banking Act 1959 arises in connection with an FHSA (the old FHSA ) held by a person.

Some contributions treated as transfers from old FHSA

(2) If a contribution to another FHSA is made for the purposes of:

(a) meeting the entitlement (wholly or partly); or

(b) paying a distribution attributable to the old FHSA from the liquidation of the provider of the old FHSA;

this Act applies as if the contribution were by way of a transfer from the old FHSA to the other FHSA.

Note: The effects of this include the contribution being covered by paragraph 11(3)(a), so that the contribution is not a personal FHSA contribution, does not count against the limit on contributions set by section 27 and does not count for working out the amount of a Government FHSA contribution for the person under section 38.

Old FHSA does not affect whether person meets FHSA eligibility requirements

(3) For the purposes of determining whether the person meets the FHSA eligibility requirements after the entitlement arises, disregard the old FHSA for the purposes of paragraphs 15(1)(e) and (f).

Note: This ensures that the holding and closure of the old FHSA after the entitlement arises cannot prevent the person from meeting the FHSA eligibility requirements.

Opening of new FHSA to meet entitlement

(4) Subsection 19(1) does not apply to the opening of an FHSA:

(a) under section 16AH of the Banking Act 1959 for the purposes of meeting the entitlement (wholly or partly); or

(b) under section 16AR of that Act for the purposes of paying a distribution attributable to the old FHSA from the liquidation of the provider of the old FHSA.

Note: A defendant in a prosecution for an offence against section 19 bears an evidential burden in relation to the matter in subsection (4) of this section: see subsection 13.3(3) of the Criminal Code.

Notice of person not meeting the FHSA eligibility requirements

(5) If:

(a) an FHSA (the new FHSA ) is opened:

(i) under section 16AH of the Banking Act 1959 for the purposes of meeting the entitlement (wholly or partly); or

(ii) under section 16AR of that Act for the purposes of paying a distribution attributable to the old FHSA from the liquidation of the provider of the old FHSA; and

(b) before the new FHSA was opened, circumstances arose resulting in the person not meeting the FHSA eligibility requirements; and

(c) after the opening of the new FHSA, the person continues not to meet the FHSA eligibility requirements;

section 20 applies to the person as the holder of the new FHSA in relation to the provider of the new FHSA, but so as to require the person to give notice within 30 days after notice is sent to the person of the opening of the new FHSA.

Payment connected with right given to APRA by the Banking Act 1959

(6) Nothing in this Act or the regulations prevents the provider of the old FHSA from paying an amount out of the FHSA in connection with a right to be paid an amount by the provider that APRA had in connection with the old FHSA because of section 16AI of the Banking Act 1959.

Note: Section 16AI of the Banking Act 1959 gives APRA the right (or part of the right) the holder of the old FHSA had to be paid an amount by the provider of the old FHSA in connection with the old FHSA.