Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures No. 1) Act 2017 (132 of 2017)

Schedule 1   First home super saver scheme

Part 1   Determinations and release authorities

Division 1   First home super saver determinations

Taxation Administration Act 1953

1   At the end of Part 3-20 in Schedule 1

Add:

Division 138 - First home super saver scheme

Table of Subdivisions

Guide to Division 138

138-A First home super saver determination

138-B FHSS maximum release amount

Guide to Division 138

138-1 What this Division is about

If you have had voluntary contributions into superannuation, you may be eligible to have those contributions and their associated earnings released for the purposes of purchasing or constructing your first home.

Subdivision 138-A - First home super saver determination

Guide to Subdivision 138-A

138-5 What this Subdivision is about

If you satisfy particular criteria, you may request that the Commissioner make a determination stating your FHSS maximum release amount and the components that make up that amount.

Table of sections

Operative provisions

138-10 First home super saver determination

138-15 Review

Operative provisions

138-10 First home super saver determination

(1) A first home super saver determination is a written determination stating:

(a) your *FHSS maximum release amount; and

(b) the amount of each of the following components that make up your FHSS maximum release amount:

(i) your *concessional contributions;

(ii) your *non-concessional contributions;

(iii) your associated earnings.

(2) You may request the Commissioner, in the *approved form, to make a *first home super saver determination if:

(a) you have never held:

(i) a freehold interest in real property in Australia; or

(ii) a lease of land in Australia (including a renewal or extension of such a lease) as described in paragraph 104-115(1)(b) of the Income Tax Assessment Act 1997; or

(iii) a company title interest (within the meaning of Part X of the Income Tax Assessment Act 1936) in land in Australia; and

(b) you are 18 years or older; and

(c) you have not previously requested a release authority under Division 131 in relation to a first home super saver determination that has been made in relation to you.

(2A) If the Commissioner determines that you have suffered a financial hardship, you are taken to have satisfied paragraph (2)(a).

(2B) The regulations may specify the circumstances in which the Commissioner is to determine that a person has suffered a financial hardship for the purposes of subsection (2A).

(3) If you make a valid request under subsection (2), the Commissioner must make a *first home super saver determination in relation to you.

(4) The Commissioner may amend or revoke a *first home super saver determination at any time before a release authority relating to the determination is issued under Division 131.

(5) Notice of a determination given by the Commissioner under this section is prima facie evidence of the matters stated in the notice.

138-15 Review

If you are dissatisfied with:

(a) a *first home super saver determination in relation to you; or

(b) a decision the Commissioner makes not to make a determination under subsection 138-10(2A);

you may object against the determination, or the decision, as the case requires, in the manner set out in Part IVC.

Subdivision 138-B - FHSS maximum release amount

Guide to Subdivision 138-B

138-20 What this Subdivision is about

Your FHSS maximum release amount comprises your eligible non-concessional contributions, 85% of your eligible concessional contributions, and your associated earnings.

There are limits on the amount of contributions that may be eligible for release.

Table of sections

Operative provisions

138-25 FHSS maximum release amount

138-30 FHSS releasable contributions amount

138-35 Eligible contributions

138-40 Associated earnings

Operative provisions

138-25 FHSS maximum release amount

Your FHSS maximum release amount is the sum of:

(a) your *FHSS releasable contributions amount worked out under section 138-30; and

(b) your associated earnings worked out under section 138-40.

138-30 FHSS releasable contributions amount

(1) Your FHSS releasable contributions amount is the sum of the following amounts for each *financial year that starts on 1 July 2017 or a later 1 July:

(a) your *FHSS eligible non-concessional contributions for the financial year;

(b) 85% of your *FHSS eligible concessional contributions for the financial year.

Order of counting contributions

(2) In determining which contributions are to be counted towards your *FHSS releasable contributions amount, contributions are to be counted in the order in which they were made (from earliest to latest).

(3) For subsection (2):

(a) if an *FHSS eligible concessional contribution, and an *FHSS eligible non-concessional contribution, is made in respect of you at the same time, the FHSS eligible non-concessional contribution is taken to have been made first; and

(b) if, for a particular *financial year, you personally made both *FHSS eligible concessional contributions and *FHSS eligible non-concessional contributions, the FHSS eligible non-concessional contributions are taken to have been made first.

Example: For paragraph (b), in the 2018-2019 financial year, you made voluntary contributions of $1,000 each fortnight, up to a total of $25,000. At the end of the financial year, you claim a deduction for $15,000 (leaving $10,000 of the contributions as non-concessional contributions).

If all of the non-concessional contributions are eligible to be released under section 138-35, the first 10 contributions made for the financial year are taken to have been the non-concessional contributions, and the later contributions are taken to be the concessional contributions.

138-35 Eligible contributions

Limits on amount of eligible contributions

(1) For the purposes of this Subdivision:

(a) the maximum amount of contributions that may be eligible to be released is $30,000; and

(b) the maximum amount of contributions made in a particular *financial year that may be eligible to be released is $15,000.

Eligible contributions

(2) A *concessional contribution, or *non-concessional contribution, for a *financial year is not eligible to be released unless it:

(a) is made in respect of you in the financial year; and

(b) is:

(i) an employer contribution that is not a mandated employer contribution (within the meaning of Part 5 of the Superannuation Industry (Supervision) Regulations 1994); or

(ii) a member contribution (within the meaning of that Part) that is made by you;

other than a contribution to the extent it is required to be made because of a law of the Commonwealth or of a State or Territory, or the rules of the relevant *superannuation fund; and

(c) is not a contribution made in respect of a *defined benefit interest; and

(d) is not a contribution to a *constitutionally protected fund.

(3) If:

(a) you have *excess concessional contributions for a *financial year ( your excess amount ); and

(b) your excess amount is greater than your *concessional contributions for the financial year that are not eligible to be released under subsection (2) ( your non-eligible contributions );

concessional contributions that are equal to the difference between your excess amount and your non-eligible contributions are not eligible to be released.

(4) If:

(a) you have *non-concessional contributions for the *financial year that exceed your non-concessional contributions cap for the financial year ( your excess amount ); and

(b) your excess amount is greater than your non-concessional contributions for the financial year that are not eligible to be released under subsection (2) ( your non-eligible contributions );

non-concessional contributions that are equal to the difference between your excess amount and your non-eligible contributions are not eligible to be released.

(5) For the purposes of this section, disregard paragraph 292-90(1)(b) of the Income Tax Assessment Act 1997.

Note: Under paragraph 292-90(1)(b) of the Income Tax Assessment Act 1997, your non-concessional contributions for a financial year would include the amount of your excess concessional contributions (if any) for the financial year.

138-40 Associated earnings

(1) You are taken to have associated earnings equal to the sum of the amounts worked out under subsection (2) for each contribution counted in your *FHSS releasable contributions amount.

(2) The amount for a contribution is equal to the sum (rounded down to the nearest dollar) of the amounts worked out under the following formula for each of the days during the period mentioned in subsection (3).

where:

amount of contribution means the amount of the contribution that is counted in your *FHSS releasable contributions amount.

shortfall interest charge rate means the rate, worked out under subsection 280-105(2), for the day.

sum of earlier daily proxy amounts means the sum of the amounts worked out for the contribution under the formula for each of the earlier days (if any) during the period for the contribution.

(3) The period starts:

(a) if the contribution is made in the *financial year starting on 1 July 2017 - on 1 July 2017; and

(b) if the contribution is made in the financial year starting on 1 July 2018, or a later financial year - on the first day of the month in which the contribution is made or taken to have been made (see subsection 138-30(2));

and ends on the day the Commissioner makes the *first home super saver determination for which the associated earnings are being worked out.