Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) This section applies in relation to a person if the Commissioner is satisfied, on application in the approved form or on the Commissioner's own initiative, that:
(a) either:
(i) the person has been identified in a notice under section 20C; or
(ii) the person was, under the Migration Act 1958 , the holder of a temporary visa, except a visa prescribed by the regulations, that ceased to be in effect at least 6 months ago, and the person left Australia at least 6 months ago but after starting to be the holder of the visa; and
(b) the total of:
(i) the amounts (if any) paid to the Commissioner under subsection 17(1) (before, on or after the commencement of this section) in respect of the person; and
(ii) the amounts (if any) paid to the Commissioner under subsection 20F(1) in respect of the person; and
(iiaa) the amounts (if any) paid to the Commissioner under section 20QD in respect of the person; and
(iiab) the amounts (if any) paid to the Commissioner under section 21C in respect of the person; and
(iiac) the amounts (if any) paid to the Commissioner under section 22 in respect of the person; and
(iia) the amounts (if any) paid to the Commissioner under section 24E in respect of the person;
exceeds the total of:
(iii) the amounts (if any) paid by the Commissioner under subsection 17(2) (before, on or after the commencement of this section) in respect of the person; and
(iv) the amounts (if any) paid by the Commissioner under all the earlier operations (if any) of subsections (2) and (3) of this section in respect of the person (disregarding an amount paid under subsection (3), to the extent the amount was attributable to interest that would have been payable under subsection (2A) apart from subsection (3)); and
(v) the amounts (if any) paid by the Commissioner under section 20K in respect of the person; and
(va) the amounts (if any) paid by the Commissioner under subsection 20QF(2) in respect of the person; and
(vb) the amounts (if any) paid by the Commissioner under subsection 21E(2) in respect of the person; and
(vc) the amounts (if any) paid by the Commissioner under subsection 22B(2) in respect of the person; and
(vi) the amounts (if any) paid by the Commissioner under subsection 24G(2) in respect of the person.
(2) The Commissioner must pay the excess:
(a) to the person; or
(b) to a single fund that is a complying superannuation plan (within the meaning of the Income Tax Assessment Act 1997 ), if the person directs the Commissioner to pay to the fund and the Commissioner is satisfied that the person is:
(i) an Australian citizen; or
(ii) a New Zealand citizen; or
(iii) under the Migration Act 1958 , the holder of a permanent visa or a visa prescribed by the regulations; or
(ba) to a single KiwiSaver scheme provider, if the person directs the Commissioner to pay to the provider and the matters (if any) prescribed by the regulations are satisfied; or
(c) to the person's legal personal representative, if the person has died.
(2AAA) Despite paragraph (2)(b), the Commissioner must not pay the excess to a single fund if the excess includes a New Zealand - sourced amount and either:
(a) the fund is a self managed superannuation fund; or
(b) the superannuation provider for the fund has not notified the Commissioner, in the approved form, that the fund accepts New Zealand - sourced amounts.
(2AA) If the Commissioner makes a payment under subsection (2) on or after 1 July 2013, the Commissioner must also pay to the person, fund, KiwiSaver scheme provider or legal personal representative the amount of interest (if any) worked out in accordance with the regulations.
(2AB) Regulations made for the purposes of subsection (2AA) may prescribe different rates for different periods over which the interest accrues. For this purpose, rate includes a nil rate.
(2A) If the Commissioner makes a payment under subsection (2) before 1 July 2013, the Commissioner must also pay to the person, fund or legal personal representative the amount (if any) of interest worked out under subsection (2B), if the Commissioner is satisfied that:
(a) the person is (or was just before dying) an Australian citizen or, under the Migration Act 1958 , the holder of a permanent visa; and
(b) after 30 June 2007 either:
(i) the person left Australia; or
(ii) the person was, under the Migration Act 1958 , the holder of a temporary visa.
(2B) Work out, in accordance with the regulations, the amount of interest:
(a) on so much (if any) of the excess as is attributable (directly or indirectly) to one or more amounts paid to the Commissioner under subsection 20F(1) and not to payments to or by the Commissioner under subsection 17(1) or (2), section 20QD or subsection 20QF(2), section 21C or subsection 21E(2), section 22 or subsection 22B(2), or section 24E or subsection 24G(2); and
(b) at a rate equal to the annual yield on Treasury bonds with a 10 - year term or, if another rate is prescribed by the regulations, that other rate.
Note: The regulations may provide for various matters relevant to working out the interest, such as working out the periods for which particular rates apply to particular amounts of principal (which will affect any compounding of the interest, among other things).
(2C) Regulations for the purposes of subsection (2B) may prescribe different rates for different periods over which the interest accrues, including a nil rate for any period starting when the person turns 65. This does not limit the ways in which the regulations may provide for working out the amount of interest under that subsection.
(3) However, if the person has died and the Commissioner is satisfied that one or more superannuation providers that made any of the payments described in subparagraphs (1)(b)(i), (ii), (iiaa), (iiab), (iiac) and (iia) would, if they had not made those payments, have been required because of the person's death to pay an amount to one or more other persons (the death beneficiaries ), the Commissioner must pay each death beneficiary:
(a) the total of the amounts the Commissioner is satisfied the superannuation providers would have been required to pay the death beneficiary; or
(b) if the total of the excess and any interest that would be payable under subsection (2AA) or (2A) apart from this subsection is less than the sum of the totals described in paragraph (a) for all the death beneficiaries--the amount worked out for the death beneficiary using the formula in subsection (4).
Note: Money for payments under this section is appropriated by section 16 of the Taxation Administration Act 1953 .
(4) The formula is:
Withholding tax from payment
(5) For the purposes of subparagraph (1)(b)(iv), an amount withheld under Division 12 in Schedule 1 to the Taxation Administration Act 1953 from a payment under this section is taken to have been paid by the Commissioner.
(6) To avoid doubt, subsection (2) has effect subject to Division 12 in Schedule 1 to the Taxation Administration Act 1953 .
Note: Division 12 in Schedule 1 to the Taxation Administration Act 1953 requires entities paying departing Australia superannuation payments and excess untaxed roll - over amounts to withhold amounts from those payments.