Commonwealth Consolidated Acts Commonwealth Consolidated ActsExplanation of section
(1) This section makes provision for the deferment of the liability of a member of a constitutionally protected superannuation fund to pay surcharge, and for interest to accrue on the deferred amount.
Accounts to be kept
(2) The Commissioner is to keep a surcharge debt account for each member of a constitutionally protected superannuation fund.
Account to be debited for surcharge
(3) The Commissioner is to debit the account for surcharge assessed to be payable on the member's surchargeable contributions.
Interest to be debited
(4) If the member's account is in debit at the end of a financial year, the Commissioner is to debit the account for interest on the amount by which the account is in debit, calculated at the Treasury bond rate for the last day of the financial year for bonds with a 10 year term.
Rate of interest
(5) The Treasury bond rate for the last day of a financial year for bonds with a 10 year term is:
(a) if any Treasury bonds with that term were issued on that day--the annual yield on those bonds; or
(b) otherwise--the annual yield on Treasury bonds with that term, as published by the Reserve Bank of Australia for that day.
Payment to be made when benefit becomes payable
(6) Subject to subsection (6AA), when a superannuation benefit (within the meaning of the Income Tax Assessment Act 1997 ) becomes payable by a superannuation provider for the benefit of a member whose surcharge debt account is in debit, the member is liable to pay to the Commissioner the lesser of:
(a) the amount by which the account is in debit; or
(b) the total of the following amounts:
(i) 15% of the employer - financed component of any part of the benefits payable to the member that accrued between 20 August 1996 and 1 July 2003;
(ii) 14.5% of the employer - financed component of any part of the benefits payable to the member that accrued in the 2003 - 2004 financial year;
(iii) 12.5% of the employer - financed component of any part of the benefits payable to the member that accrued in the 2004 - 2005 financial year.
(6AA) If:
(a) a payment split applies to a splittable payment in respect of an interest that a person has as a member; and
(b) the splittable payment becomes payable in circumstances where the member's surcharge account is in debit;
then the member is liable to pay to the Commissioner the lesser of:
(c) the amount by which the account is in debit; and
(d) the total of the following amounts:
(i) 15% of the employer - financed component of any part of the benefits that would have been payable to the member but for the payment split and that accrued between 20 August 1996 and 1 July 2003;
(ii) 14.5% of the employer - financed component of any part of the benefits that would have been payable to the member but for the payment split and that accrued in the 2003 - 2004 financial year;
(iii) 12.5% of the employer - financed component of any part of the benefits that would have been payable to the member but for the payment split and that accrued in the 2004 - 2005 financial year.
Payment to be made if fund ceases to be a constitutionally protected superannuation fund
(6A) If a superannuation fund ceases to be a constitutionally protected superannuation fund at a time when a member's surcharge debt account is in debit, the member is liable to pay to the Commissioner the lesser of:
(a) the amount by which the account is in debit; or
(b) the total of the following amounts:
(i) 15% of the employer - financed component of any part of the value of the age retirement benefits of the member when the fund ceased to be a constitutionally protected superannuation fund that accrued between 20 August 1996 and 1 July 2003;
(ii) 14.5% of the employer - financed component of any part of the value of the age retirement benefits of the member when the fund ceased to be a constitutionally protected superannuation fund that accrued in the 2003 - 2004 financial year;
(iii) 12.5% of the employer - financed component of any part of the value of the age retirement benefits of the member when the fund ceased to be a constitutionally protected superannuation fund that accrued in the 2004 - 2005 financial year.
(7) If a member becomes liable to pay an amount to the Commissioner under subsection (6), (6AA) or (6A), the Commissioner must give the member a notice stating that the member is liable to pay the amount. The notice must contain the date on which it is issued.
(8) The amount is payable within 3 months after the date of issue of the notice and the notice is to state that the amount is so payable. Payment of the amount results in a nil balance in the account.
Note: For provisions about collection and recovery of superannuation contributions surcharge and other related amounts, see Part 4 - 15 in Schedule 1 to the Taxation Administration Act 1953 .
Person may direct superannuation provider to pay amount to Commissioner
(8A) If:
(a) a person is liable to pay an amount to the Commissioner under subsection (6) or (6AA); and
(b) a superannuation benefit (within the meaning of the Income Tax Assessment Act 1997 ) is not payable by the superannuation provider for the benefit of the person because the person has become:
(i) a member of another superannuation fund; or
(ii) a member of an approved deposit fund; or
(iii) the holder of an RSA; or
(iv) the purchaser of an annuity from a life assurance company or from a registered organisation;
the person may direct the trustee of the other superannuation fund or the approved deposit fund, the RSA provider, the life assurance company or the registered organisation to pay to the Commissioner the whole or a part of the amount referred to in paragraph (a) and to make any necessary reductions in the benefits to which the person would otherwise be entitled from the other superannuation fund, the approved deposit fund, or the RSA or to the amount of the annuity to which the person would otherwise be entitled.
Member of former constitutionally protected superannuation fund may direct superannuation provider to pay amount to Commissioner
(8AA) If a person is liable to pay an amount to the Commissioner under subsection (6A), the person may direct the superannuation provider to pay to the Commissioner the whole or a part of that amount and to make any necessary reductions in the benefits to which the person would otherwise be entitled.
Superannuation provider to comply with direction
(8B) A superannuation provider to whom a direction is given under subsection (8A) or (8AA) must comply with the direction.
Surcharge debt may be reduced
(9) The member may make payments to the Commissioner for the purpose of reducing the amount by which the surcharge debt account is in debit.
What happens if debt reduced
(10) If a member makes a payment under subsection (9), the Commissioner is to:
(a) acknowledge receipt of the payment to the member; and
(b) credit the payment to the surcharge debt account; and
(c) notify the member of the revised balance of the surcharge debt account.
(11) In this section:
"payment split" means a payment split within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 .
"splittable payment" means a splittable payment within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 .