Former temporary residents

The super benefit of a former resident becomes unclaimed when the person has departed Australia but has not claimed their benefit from their super provider within a specified period of time.

The law

You will find the provisions governing the payment to the Commissioner of unclaimed superannuation of former temporary residents in Part 3A of the Superannuation (Unclaimed Money and Lost Members) Act 1999 (SUMLMA).

Under subsection 20C(1), the Commissioner must give a super provider for a fund a written notice if the Commissioner is satisfied that:

• there are reasonable grounds for believing the person has a super interest in the fund, and
• the person is a former temporary resident.

A person is a former temporary resident if:

• they held a temporary visa that has ceased to be in effect (except a visa prescribed in the regulations – Regulation 4B of the Superannuation (Unclaimed Money and Lost Members) Regulations 1999 prescribe subclass 405 (Investor Retirement) and Subclass 410 (Retirement) visas)
• they left Australia after starting to hold the visa (regardless of whether their visa ceased to have effect before, when or after they left Australia)
• at least six months has passed since the later of either
  • the visa ceased to be in effect.
  • the person left Australia.
   
• they are not an Australian or New Zealand citizen
• they do not hold a current temporary visa or permanent visa
• they do not have an undetermined application for a permanent visa.

Reporting and payment

When you receive a section 20C notice from the Commissioner, you are required to report and pay the amount to the Commissioner by the next scheduled statement day (31 October and 30 April each year).

You will receive a separate section 20C notice for each member account held by the former temporary resident that we are aware of. If you know that there are other member accounts for that former temporary resident, include the information in your response to the Commissioner.

You are required to respond to the Commissioner even if:

• the person for whom the Commissioner has given the section 20C notice does not have a super interest in the fund
• you are not required to pay an amount in respect of the person to the Commissioner.

Less than 28 days to the next scheduled statement

If it is less than 28 days to the next scheduled statement day when you receive the section 20C notice, you have until the following scheduled statement day to provide the required information and payment.

 

Request a deferral

You may request a deferral of your member reporting obligations.

You may receive a penalty if you do not lodge information by the scheduled statement day and have not obtained a deferral from the Commissioner.

Calculating the member’s super interest

When responding to a section 20c notice, you must also calculate and pay the identified member’s super interest if required. To do this you must work out the:

• timing for the calculation
• amount to be paid.

Timing of the calculation

You must calculate the member’s super interest immediately before you pay the amount to the Commissioner.

Amount to be paid

Once you determine the date on which the former temporary resident’s interest should be calculated, you work out the amount to be paid to the Commissioner using the:

• starting amount
• amount to be paid to member.

Apply the following formula as at the date on which the former temporary resident’s interest should be calculated:

Starting amount − amount to be paid to member = excess amount (payable to the Commissioner)

There is no minimum amount payable. You must pay us all amounts held for a member identified in a section 20C notice.

Starting amount

The starting amount is the notional amount that would have been paid to the member at the calculation time if they had requested payment.

The starting amount:

• excludes
  • any previous payments to the member
  • the departing Australia super payment (DASP) tax that would otherwise apply
   
• includes
  • any interest or earnings that would normally be included
   
• is reduced by
  • any fees or charges that would have been incurred if the member had asked for payment
  • any reduction related to a payment split under Part VIIIB of the Family Law Act 1975.
   

The starting amount will be reduced by any of the following:

• If the member has met a condition of release and requested an amount be paid to them, the starting amount is to be reduced by the amount to be paid.
• If the member has died, the starting amount is reduced by the amount that has been, or is required to be, paid to an entitled beneficiary because of the member's death.
• The amount that supports a super income stream.
• An amount (if any) worked out under the Regulations.

 

You must not withhold any tax from the amount paid to the Commissioner.

Revoking a notice

A section 20C notice must be revoked by the Commissioner if either the:

• notice should never have been given because the notice was given in error
• circumstances have changed since we issued the notice – that is, a notice is no longer relevant.

Examples include that the person:

• never held a temporary visa
• held a temporary visa, but have not left Australia
• is an Australian or New Zealand citizen
• is the holder of a current temporary or permanent visa, or has applied for a permanent visa
• held a visa prescribed by the Regulations. Regulation 4B of the SUMLMR currently prescribe subclass 405 (Investor Retirement) and subclass 410 (Retirement) visas.

We don't expect you to undertake extensive tests to verify whether a section 20C notice should have been issued, particularly if some of this information (such as citizenship) would not generally be available to you.

If you are in contact with the member and learn new information about their situation, or your records indicate the account is still receiving contributions, we will work with you to determine whether a section 20C notice should have been issued.

You can request a revocation by writing to the Commissioner and attaching any relevant documents. You must submit your request for revocation before responding to the section 20C notice for that member.

If the Commissioner agrees with your assessment:

• they will issue a written revocation notice (under section 20J of the SUMLMA) that revokes the original section 20C notice
• you will no longer need to respond to the notice or pay an amount to the Commissioner. However, if you want to respond to the notice you can do so using the relevant error code after revocation has been granted.

A revocation notice will have no effect if:

• the super provider made a payment to the Commissioner before the Commissioner revokes the original section 20C notice
• both of the following apply
  • the notice of revocation is given to the super provider less than 28 days before the provider is required to respond to the Commissioner (including deferred dates)
  • the super provider has responded or made payment (if required) by the due date.
   

This second condition allows super providers who have already started the process of responding to the Commissioner’s original section 20C notice to ignore the revocation notice and continue with their processing.

If it is apparent that a revocation will have no effect because of either of the conditions above, the Commissioner is not required to revoke the original section 20C notice.

Requesting a refund of an overpayment

If you have paid an amount because of a section 20C notice but the amount should not have been paid, or the amount paid was greater than it should have been, the Commissioner is required to refund that amount to you.

Examples of where an overpayment may occur include:

• An error was made in the calculation of the member’s interest and too much was paid to the Commissioner.
• The person’s interest was paid to the Commissioner, but it is later determined that the person does not meet the definition of a former temporary resident.

If you become aware of an overpayment to the Commissioner because you form the belief that a section 20C notice was incorrect, email supercrt@ato.gov.au with the following information:

• provider name
• provider Australian business number (ABN)
• member’s name
• member’s date of birth
• details about why the section 20C notice may have been incorrect (for example, dates of recent contributions).

We will help you by confirming whether the section 20C notice was incorrect.

If you made a calculation error, or you paid the interest of a person who was not identified in the section 20C notice, you may request an adjustment.

See also:

• Unclaimed superannuation money protocol

Fund reporting protocol for unclaimed superannuation money of former temporary residents.