Social Security (Family Actual Means Test) Regulations 1998 (Cth)
made under the
Consolidated as in force on 10 January 2000
(includes amendments up to SR 1999 No. 340)
Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra
made under the
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These Regulations are the
Social Security (Family Actual Means Test) Regulations 1998 .
These Regulations commence on 1 July 1998.
The objects of these Regulations are:
(a) for point 1067G-G2 of the Act, to specify the kind of person to whom the family actual means test applies; and
(b) for point 1067G-G2A of the Act, to identify the appropriate tax year for a youth allowance payment period; and
(c) to specify how to work out:
(i) for point 1067G-G3 of the Act, the actual means of a person’s family; and
(ii) for point 1067G-G3A of the Act, the person’s family actual means free area; and
(iii) for point 1067G-G4 of the Act, the person’s reduction for family actual means.
In these Regulations, unless the contrary intention appears:
Act means theSocial Security Act 1991 .
actual means , in relation to a person,has the meaning given by regulation 14.
AIC scheme means the Commonwealth scheme known as the Assistance for Isolated Children Scheme.
appropriate tax year has the meaning given by regulation 10.
base tax year ,in relation to a youth allowance payment period, has the same meaning as in point 1067G-F5 of the Act.
business , has the meaning given by point 1067G-F19A of the Act.
calculator means the Youth Allowance Rate Calculator in section 1067G of the Act.
combined parental income has the meaning given in point 1067G‑F10 of the Act.
designated parent has themeaning given by regulation 5.
income assistance has the meaning given by regulation 6.
interest , in relation to a trust:
(a) includes:
(i) the interest of a settlor in property subject to the trust; and
(ii) a power of appointment under the trust; and
(iii) a power to rescind or vary a provision of, or the effect of the exercise of a power under, the trust; and
(iv) an interest that is conditional, contingent or deferred; but
(b) does not include:
(i) the interest of a person as an agent or creditor of the trustee; or
(ii) the interest of a person as a person employed by the trustee.
liquid assets means assets that, under subsection 14A (1) of the Act, are liquid assets for Parts 2.11, 2.11A, 2.12 and 2.14 of the Act.
member of a person’s family has the same meaning asfamily member has under subsection 23 (15) of the Act.
net passive business loss , in relation to a person,means a loss that, under subpoint 1067G-F11 (4) of the Act, is net passive business loss for Module F of the calculator.
parent has the same meaning as in paragraph (b) of the definition of parent in subsection 5 (1) of the Act.
passive business , in relation to a person, means a business that, under point 1067G-F19A of the Act, is a passive business for subpoint 1067G-F11 (4) of the Act.
savings has the meaning given by regulation 7.
secondary course means a course that is determined, under section 5D of theStudent Assistance Act 1973 , to be a secondary course for the purposes of that Act.
secondary student means a person who is receiving youth allowance and undertaking full-time study in respect of a secondary course.
trust does not include:
(a) a trust in relation to an account held in a bank or other financial institution only for the benefit of a dependent child of the trustee; or
(b) a trust under which property of the estate of a deceased person, or a person who is insolvent under administration, is distributed; or
(c) a trust in relation to a superannuation fund within the meaning of the
Superannuation Industry (Supervision) Act 1993 that is not an excluded fund within the meaning of that Act; or(d) a public unit trust in which units are held by 50 or more persons who are not members of the trustee’s family, or are offered for subscription or purchase to the public; or
(e) the trust for a trust account that the trustee is required by a law to establish; or
(f) a charitable trust; or
(g) a trust created by operation of law.
Note Some words and expressions used in these Regulations that are defined in the Act have the same meaning in these Regulations as they do in the Act (seeActs Interpretation Act 1901 , s 46 (1) (a)). For example:
• subsection 8 (1) contains the definitions
income andordinary income • subsection 10A (2) contains the definitions
loan andarm’s length loan • subsection 23 (1) contains the definitions
decision ,officer andtax year • subsection 541B(1) contains the definition
undertaking full-time study • section 1067A contains the definition
independent .
(1) A parent of a person (the relevant person) is a
designated parent for a youth allowance payment period if:
(a) within 10 years before 1 January in the calendar year in which the youth allowance payment period ends, the parent first entered Australia under a permanent visa or entry permit within the meaning of the
Migration Act 1958 for the grant of which a criterion or requirement was that the parent demonstrate skills in business; or(b) the parent has an interest (the value of which is $2,500 or more) in assets outside Australia and its external territories; or
(c) in the appropriate tax year, the parent had an interest in a proprietary company, an unlisted public company or a trust; or
(d) in the appropriate tax year, the parent derived income of $2,500 or more from a source outside Australia and its external territories (except Norfolk Island) that does not consist only of income from a pension or similar payment, and that was either:
(i) ordinary income; or
(ii) an amount included in the relevant person’s combined parental income; or
(e) in the appropriate tax year, the parent derived income from a salary or wage and has claimed, or will claim, a tax deduction for a business loss (whether for that year or a previous year) that does not consist only of a net passive business loss; or
(f) in the appropriate tax year, the parent was a member of a partnership; or
(g) in the appropriate tax year, the parent was a self‑employed person (except a self-employed person who was wholly or mainly engaged in a primary production business owned by the person).
(2) In paragraph (1) (g):
self-employed person means a person who works for gain or reward other than under a contract of employment or apprenticeship, whether or not the person employs 1 or more other persons.
A payment received by a person is
income assistance if it is:
(a) a youth allowance received by a person who is undertaking full-time study; or
(b) an austudy payment; or
(c) a payment under the Act (except a family tax payment), or the
Veterans’ Entitlements Act 1986 , that is exempt from income tax under Division 1AA of Part 3 of theIncome Tax Assessment Act 1936 or Subdivision 52-A, 52-B or 52-C of theIncome Tax Assessment Act 1997 ; or(d) a payment under:
(i) a Student Financial Supplement Scheme; or
(ii) the scheme known as the ABSTUDY scheme; or
(iii) the AIC scheme; or
(e) an AUSTUDY allowance; or
(f) a payment under a scholarship; or
(g) a payment by a State or Territory, or a State or Territory authority, to assist the primary, secondary or tertiary education of a student.
For these Regulations, the
savings of a person include the following amounts:
(a) the person’s share in any profit retained by a company of which the person is a director, or shareholder, who has a substantial influence over whether company profit is distributed to:
(i) the person or a member of the person’s family; or
(ii) another company, or a partnership or trust, in which the person or any other member has an interest;
(b) the person’s share in any profit retained by a partnership of which the person is a member who has a substantial influence over whether partnership profit is distributed to:
(i) the person or a member of the person’s family; or
(ii) another partnership, or a company or trust, in which the person or any other member has an interest;
(c) any undistributed trust profit attributable to the person under a trust or, if no amount is so attributable, the total amount of any undistributed trust profit, if the person is a trustee or beneficiary of the trust who has:
(i) a power of appointment under the trust; or
(ii) a power to rescind or vary a provision of, or the effect of the exercise of a power under, the trust; or
(iii) a substantial influence over whether trust profit is distributed to:
(A) the person or a member of the person’s family; or
(B) another trust, or a company or partnership, in which the person or any other member has an interest.
Subject to regulation 9, the kind of person to whom the family actual means test applies is a person who:
(a) claims or receives youth allowance; and
(b) is not independent; and
(c) has a parent who is a designated parent.
(1) The family actual means test does not apply to a person:
(a) while a member of the person’s family is receiving exceptional circumstances relief payment; and
(b) for so much of the calendar year in which the relief payment is received as follows the ending of the relief payment.
(2) In this regulation:
exceptional circumstances relief payment means:
(a) exceptional circumstances relief payment under the
Farm Household Support Act 1992 ; or(b) drought relief payment under that Act as in force immediately before the commencement of the
Farm Household Support Amendment (Restart and Exceptional Circumstances) Act 1997 .
The
appropriate tax year for a youth allowance payment period is:
(a) the base tax year for that period; or
(b) if regulation 11 applies, the tax year determined by the Secretary.
(1) This regulation applies to a person who claims or receives youth allowance:
(a) to whom, except for this regulation, youth allowance:
(i) is not payable, because, under the Act, the rate of youth allowance is calculated to be nil; or
(ii) is, under the Act, calculated to be payable at a reduced rate; and
(b) who gives to the Secretary, in writing:
(i) evidence, or an estimate, that the amount of the actual means of the person’s family for the tax year following the base tax year is substantially less than it was in the base tax year:
(A) because of an event that is beyond the control of the person and family members; or
(B) because the person or a member of the person’s family is undertaking full-time study in the tax year following the base tax year; or
(C) because a designated parent of the person has ceased to be a parent of the kind described in paragraph 5 (1) (c), (d), (e), (f) or (g); and
(ii) evidence of the circumstance relied on for subparagraph (i); and
(iii) in the case of an estimate — an agreement that the person’s rate of youth allowance for that tax year will be recalculated if the actual means of the person’s family for that tax year exceed the amount of the estimate; and
(c) whose family’s actual means are unlikely to increase beyond the amount evidenced, or estimated, under subparagraph (b) (i) for the 2 years following the later of:
(i) 1 January in the tax year following the base tax year; or
(ii) the day on which the amount of the family’s actual means was reduced.
(2) The person may request the Secretary, in accordance with a form approved by the Secretary, to make a determination under subregulation (3).
(3) If so requested by the person, the Secretary must determine, subject to regulation 12, that the appropriate tax year for the person is the tax year following the base tax year if the youth allowance payment period concerned ends on or after the later of:
(a) the day on which the request is made; or
(b) 1 January in a year.
(4) For sub-subparagraph (1) (b) (i) (A), an expected decrease in the profitability of a business is not ordinarily to be taken to be an event that is beyond control.
If a request under regulation 11 is based on an estimate, the Secretary may make a determination under subregulation 11 (3) only if the Secretary is satisfied that the estimate given by the person or a member of the person’s family is current and reasonable.
To work out the actual means of a person’s family, first calculate, in accordance with this Division, the actual means of the person and of each other person who is a member of that person’s family, and then apply the formula in regulation 19 to the results of those calculations.
(1) Subject to regulation 15, the
actual means of a person for an appropriate tax year is an amount equal to the total spending and savings of the person in that tax year.(2) An amount of spending or savings is taken to have been spent or saved in the appropriate tax year if the Secretary considers that the amount should be so taken.
(1) This regulation applies in working out the actual means, for an appropriate tax year, of a person who claims or receives youth allowance, and of each other person who is a member of that person’s family.
(2) In working out actual means, the following amounts spent or saved in that tax year by the person are not included:
(a) spending or savings from any income assistance received by the person in that tax year;
(b) spending for the maintenance of:
(i) a child of the person if the person does not have legal responsibility for the day-to-day care, welfare and development of the child; or
(ii) a former partner of the person;
(c) if the person spent an amount in the appropriate tax year in boarding away from home any family member — an amount of $5,274 for each such family member who fulfilled either or both of the following conditions at any time during the year:
(i) the family member qualified for the boarding allowance under the AIC scheme;
(ii) the family member was a secondary student who was not independent and was required to live away from home;
(e) if the person has a disability — spending to acquire, or modify, property to assist the person to cope with the disability;
(f) spending or savings from any arm’s length loan received by the person in that tax year;
(g) spending to repay a loan received by the person in that tax year, that is not an arm’s length loan, or to pay interest on the loan;
(h) spending or savings from the proceeds of any liquidation of assets of the person held at the beginning of that year;
(i) spending or savings from the amount of any windfall gain that is not a gift to the person;
(j) spending or savings, of not more than $6,000, from income that is exempt income under paragraph 23 (s) of the
Income Tax Assessment Act 1936 , or item 1.4 of section 51-5 of theIncome Tax Assessment Act 1997 ;(k) spending or savings from any part of a lump sum compensation payment made to the person on which tax is not payable under the
Income Tax Assessment Act 1936 orIncome Tax Assessment Act 1997 .(3) In addition, in working out actual means for that tax year, the following amounts are not included:
(a) subject to subregulation (4), an amount of assumed spending equal to the amount of the income or resources of a business of the person that is deductible under the
Income Tax Assessment Act 1936 orIncome Tax Assessment Act 1997 because the amount was, or will be, necessarily incurred in carrying on the business;(b) an amount of assumed spending equal to the amount of any reduction in liquid assets of the person held at the beginning of that year and not accounted for by spending of a kind mentioned in subregulation (2).
(4) The amount mentioned in paragraph (3) (a) does not include:
(a) the amount of any losses from the business that are carried forward from a tax year before the tax year in respect of which actual means are being worked out; or
(b) the amount of a contribution to a superannuation fund, in relation to the business, that exceeds:
(i) for an employee — the minimum contribution for the employee under the
Superannuation Guarantee (Administration) Act 1992 ; or(ii) for a person engaged other than as an employee — the lesser of $3,000 and the total amount of the contributions for the person, and each member of the person’s family, for the appropriate tax year.
In working out the actual means, for an appropriate tax year of a member of a person’s family, being a member of a kind described in subparagraph 23 (15) (b) (i), (ii) or (iii) of the Act, there is not included spending or savings from any income of the member from employment except so much of such spending or savings as exceeds $6000.
(1) If the Secretary considers that an amount of spending that is reported for this Division does not represent the fair market value of the matter the subject of the spending:
(a) the Secretary must assess the fair market value of the matter; and
(b) spending equal to the assessed value is taken to be the amount of the spending.
(2) If the Secretary considers that spending by a person, other than the person whose actual means are being assessed (
the relevant person ), is spending for the benefit of the relevant person:
(a) the Secretary must assess the fair market value of the spending; and
(b) spending equal to the assessed value is taken to be spending by the relevant person.
(1) The actual means of a person’s family is the amount calculated using the formula:
where:
AM is an amount equal to the total amounts of the actual means, for the appropriate tax year, of:
(a) the person; and
(b) each other person who is a member of the person’s family.
T is the sum of the amountsof income tax, before any rebates, and without regard to any increase occurring in the tax free threshold because of section 20C or 20D of theIncome Tax Rates Act 1986 , that would be notionally payable for the year by each parent to achieve an after-tax income of .
M is the sum of the amounts of Medicare levy that, in the circumstance mentioned in subregulation (2), would be notionally payable by each parent for the appropriate tax year to achieve an after-tax income of .
FTI is 20% of the amount calculated, in respect of each parent, under section 20C (without regard to section 20K) of theIncome Tax Rates Act 1986 .
NPBL is the net passive business loss (if any) of each parent in the appropriate tax year.
(2) The circumstance, for the definition of
M in subregulation (1),is the assumption that a child described in paragraph 23 (15) (b) of the Act has no separate net income, within the meaning of subsection 159J (6) of theIncome Tax Assessment Act 1936 , in the appropriate tax year.
For this Division, a child is not a dependent child of a person’s parent if the parent pays maintenance for the child.
A person’s family actual means free area for an appropriate tax year is the sum of:
(a) $23,400 (or that amount as indexed under regulation 24); and
(b) any additional amounts under regulation 22 or 23 for any children (other than the person) of a parent of the person.
For paragraph 21 (b), unless an additional amount applies under regulation 23, an additional amount applies for a child of a parent of the person who is wholly or substantially dependent on the parent, as follows:
(a) $3,700 for a child who:
(i) is at least 16 years of age but has not yet attained the maximum age for youth allowance under section 543B of the Act (disregarding subsection (2) of that section); and
(ii) is not independent; and
(iii) is not receiving a pension, benefit or allowance referred to in Module L of the calculator;
(b) $3,700 for a dependent child in respect of whom a boarding allowance or second home allowance is payable under the AIC scheme;
(c) $1,200 for a dependent child who:
(i) is under 16 years of age; and
(ii) is not a child referred to in paragraph (b);
(d) $2,500 for a dependent child who:
(i) is under 16 years of age; and
(ii) is additional to the child referred to in paragraph (c); and
(iii) is not a child referred to in paragraph (b).
For paragraph 21 (b), an additional amount of $7,400 applies for a child of a person’s parent if:
(a) the child is a student who:
(i) is at least 16 years of age but is not yet 25 years of age; and
(ii) is undertaking full-time study at a higher education institution within the meaning of subsection 3 (1) of the
Student Assistance Act 1973 ; and(iii) is not independent; and
(iv) is required to live away from home; and
(b) the parent has one or more other children in respect of whom subparagraphs (i), (ii), (iii) and (iv) apply.
(1) The amount of $23,400 mentioned in paragraph 21 (a) is to be indexed on each indexation day and, if indexation results in an amount different to $23,400, that different amount must be substituted for $23,400 in working out a person’s family actual means free area for the appropriate tax year concerned.
(2) Indexation must be carried out as set out in subsection 1192 (2) and sections 1193 and 1194 of the Act, using:
(a) as the reference quarter, the most recent quarter ending in June preceding the indexation day; and
(b) as the base quarter, the most recent quarter ending in June preceding the reference quarter.
(3) In this regulation:
indexation day means 1 January 1999 or 1 January in a later year.
(1)For point 1067G-G4 of the Act, a person’s reduction for family actual means for an appropriate tax year is the amount obtained by dividing by 26 the person’s annual family actual means excess for that tax year.
(2) A person’s
annual family actual means excess is the amount obtained by dividing by 4 the difference between:
(a) the actual means of the person’s family for the appropriate tax year; and
(b) the person’s family actual means free area for that year.
(3) If the amount obtained:
(a) is an amount of dollars and cents, the amount of cents is to be disregarded; or
(b) is less than $1, the amount is taken to be nil.
Chapter 6 of the Act applies to a decision under these Regulations.
The Secretary may delegate, in writing, a power (except this power of delegation) or function of the Secretary under these Regulations to:
(a) an officer of the Department; or
(b) the Chief Executive Officer of the Commonwealth Services Delivery Agency, in accordance with service arrangements (within the meaning of section 7 of the
Commonwealth Services Delivery Agency Act 1997 ).
The
1998 No. 159 | 25 June 1998 | 1 July 1998 | |
1999 No. 340 | 22 Dec 1999 | 1 Jan 2000 | — |
am. = amended rep. = repealed rs. = repealed and substituted | |
R.4........................................... | am. 1999 No. 340 |
R. 15........................................ | am. 1999 No. 340 |
R. 16........................................ | am. 1999 No. 340 |
R. 17........................................ | rep. 1999 No. 340 |
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