Treasury Laws Amendment (Reuniting More Superannuation) Act 2021 (24 of 2021)

Schedule 2   Payment of other amounts to the Commissioner

Superannuation (Unclaimed Money and Lost Members) Act 1999

27   After Part 3C

Insert:

Part 3D - Payment of other amounts to the Commissioner

Division 1 - Payments by superannuation providers

22 Superannuation provider may pay amounts to Commissioner

(1) A superannuation provider may pay to the Commissioner an amount that it holds if:

(a) it holds the amount on behalf of:

(i) a member of the superannuation fund, approved deposit fund or RSA for which the superannuation provider is the trustee or RSA provider; or

(ii) a former member of that superannuation fund, approved deposit fund or RSA; or

(iii) a non-member spouse of that member or former member; and

(b) it reasonably believes that paying the amount to the Commissioner would be in the best interests of the member, former member or non-member spouse; and

(c) at the same time as making the payment, it gives the Commissioner a statement that complies with subsection (2).

(2) The statement must be a statement, in the approved form, of information relevant to either or both of the following:

(a) the amount;

(b) the administration of any of the following in connection with the amount:

(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.

(3) The amount paid must be the amount that would have been payable by the superannuation provider if:

(a) the amount had constituted an account that the superannuation provider held for the member, former member or non-member spouse; and

(b) the member, former member or non-member spouse had requested that the balance held in the account be rolled over or transferred to a complying superannuation fund (within the meaning of the SIS Act).

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

(a) assume that the request were made before the time of the payment; and

(b) assume that the member, former member or non-member spouse had not died before the time of the payment.

(5) This section does not apply to:

(a) an amount that is unclaimed money, and that was unclaimed money on the most recent unclaimed money day; or

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

(c) an amount that is held in an inactive low-balance account, and that was held in such an account on the most recent unclaimed money day; or

(d) an amount that is held in an account of an eligible rollover fund member, unless the payment under this section is made before 1 June 2021; or

(e) an amount that is held in a lost member account, and that was held in such an account on the most recent unclaimed money day.

Note 1: Unclaimed money is payable to the Commissioner under subsection 17(1).

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 under this section, the superannuation provider is discharged from further liability in respect of that amount.

22A Errors or omissions in statements

(1) A superannuation provider who becomes aware of a material error, or material omission, in any information in a statement of the superannuation provider under subsection 22(2) must give the corrected or omitted information to the Commissioner.

(2) The corrected or omitted information must be given:

(a) in the approved form; and

(b) 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 2 - Payments by Commissioner

22B Payments by Commissioner in respect of persons for whom amounts have 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 22 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 (4) 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 this paragraph applies (see subsection (3)).

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

(3) Paragraph (2)(d) applies if:

(a) subparagraph (2)(a)(ii) does not apply; and

(b) any of the following subparagraphs apply:

(i) the person has reached the eligibility age;

(ii) the amount is less than $200;

(iii) a terminal medical condition (within the meaning of the Income Tax Assessment Act 1997) exists in relation to the person; and

(c) the person has not died.

(4) 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:

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

(5) If:

(a) the Commissioner makes a payment under subsection (2) to a fund, a legal personal representative or a person; and

(b) the payment is in accordance with paragraph (2)(a), (c) or (d);

the Commissioner must also pay to the fund, legal personal representative or person the amount of interest (if any) worked out in accordance with the regulations.

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

(6) If:

(a) the Commissioner makes a payment under subsection (2) to a death beneficiary; and

(b) the payment is in accordance with paragraph (2)(b);

the Commissioner must also pay to the death beneficiary the amount of interest (if any) worked out in accordance with the regulations.

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

(7) Regulations made for the purposes of subsection (5) or (6) may prescribe different rates for different periods over which the interest accrues. For this purpose, rate includes a nil rate.

(8) 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 subsection 20H(2) or (3).

Note: Subsections 20H(2) and (3) provide for payment by the Commissioner of amounts equal to amounts paid to the Commissioner under subsections 17(1), 20F(1), 20QD(1), 21C(1), 22(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.

22C Refund of overpayment made by superannuation provider

If the Commissioner is satisfied that an amount a superannuation provider for a fund (the first fund ) has paid to the Commissioner under section 22 in respect of a person exceeded the amount (if any) that was payable under that section in respect of the person, 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 this section is appropriated by section 16 of the Taxation Administration Act 1953.

Division 3 - Various rules for special cases

22D Prescribed public sector superannuation schemes

Section 6, subsections 19(1) to (3), this Part and subsection 25(3A) apply as if:

(a) a public sector superannuation scheme that:

(i) is prescribed for the purposes of this section; and

(ii) in the case of a Commonwealth public sector superannuation scheme - is not a fund;

were a fund; and

Note: The regulations may prescribe a scheme by reference to a class of schemes: see subsection 13(3) of the Legislation Act 2003.

(b) the trustee of the scheme were the superannuation provider; and

(c) a member of the scheme were a member of the fund.

22E Commissioner may recover overpayment

(1) 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;

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

(2) 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 the person's 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.

(3) 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.

(4) Despite subsections (1) and (2), if the Commissioner gives a notice described in paragraph (3)(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.

(5) The Commissioner may revoke a notice described in paragraph (3)(a).

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

(7) A notice described in paragraph (3)(a) is not a legislative instrument.

22F Superannuation provider to return payment from Commissioner that cannot be credited

(1) If:

(a) a payment (the Commissioner's payment ) is made to a fund under subsection 22B(2) or (5) 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;

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.

(2) 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.

(3) If any of the amount the superannuation provider is liable to repay under subsection (1) 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.