Taxation Laws Amendment Act (No. 3) 1995 (Cth)
This compilation was prepared on 7 September 2010
taking into account amendments up to Act No. 75 of 2010
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section
Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra
CONTENTS
Section
1. Short title [
2. Commencement [
3. Schedules
SCHEDULE 1
AMENDMENT OF THE
PART 1 - FOREIGN INCOME
PART 2 - REBATABLE AND FRANKABLE DIVIDENDS
PART 3 - BANKRUPTCY AND LOSSES
PART 4 - REDUCTION OF PAYE EARLY REMITTER THRESHOLD
PART 5 - DEPRECIATION ON TRADING SHIPS
PART 6 - INFRASTRUCTURE BORROWINGS
SCHEDULE 2
AMENDMENTS RELATING TO GROUP CERTIFICATES AND OTHER PAYE PROVISIONS
PART 1 -
PART 2 -
PART 3 - VARIOUS ACTS
SCHEDULE 3
SUPERANNUATION GUARANTEE CHARGE
PART 1 - AMENDMENT OF THE
PART 2 - EXCESS BENEFITS
SCHEDULE 4
AMENDMENT OF THE
TAXATION LAWS AMENDMENT ACT (No. 3) 1995 No. 170 of 1995 - LONG TITLE
An Act to amend the law relating to taxation
TAXATION LAWS AMENDMENT ACT (No. 3) 1995 No. 170 of 1995
- SECT 1
Short title [
1. This Act may be cited as the Taxation Laws Amendment Act (No. 3) 1995.
TAXATION LAWS AMENDMENT ACT (No. 3) 1995 No. 170 of 1995
- SECT 2
Commencement [
2.(1) Subject to subsection (2), this Act commences on the day on which it
receives the Royal Assent.
(2) Schedule 4 is taken to have commenced immediately after the commencement
of the Taxation Laws Amendment (Drought Relief Measures) Act 1995.
TAXATION LAWS AMENDMENT ACT (No. 3) 1995 No. 170 of 1995
- SECT 3
Schedules
3. The Acts specified in the Schedules to this Act are amended in accordance
with the applicable items in the Schedules, and the other items in the
Schedules have effect according to their terms.
TAXATION LAWS AMENDMENT ACT (No. 3) 1995 No. 170 of 1995 - SCHEDULE 1
Section 3
AMENDMENT OF THE INCOME TAX ASSESSMENT ACT 1936
PART 1-FOREIGN INCOME
Division 1-CGT cost base uplift
1. Subsection 160M(12B):
Omit the definition of 30 June 1990 non-taxable Australian asset.
2. Subsection 160M(12B):
Insert the following definitions:
"commencing day has the same meaning as in Subdivision C of
Division 7 of Part X.
commencing day non-taxable Australian asset has the same meaning as
in Subdivision C of Division 7 of Part X.".
3. Subsection 405(1) (definition of 30 June 1990 non-taxable
Australian asset):
Omit the definition.
4. Subsection 405(1):
Insert the following definitions:
"commencing day has the meaning given by section 406.
commencing day non-taxable Australian asset has the meaning given by
section 406.".
5. Section 406:
Repeal the section, substitute:
Meaning of commencing day and commencing day non-taxable Australian
asset
"406.(1) For the purposes of applying this Act in calculating the
attributable income of the eligible CFC, the eligible CFC's
commencing day is:
if paragraph (b) does not apply-30 June 1990; or
if the eligible CFC was not a CFC at the end of 30 June
1990-the first day after 30 June 1990 at the end of which the
eligible CFC was a CFC.
"(2) For the purposes of applying this Act in calculating the
attributable income of the eligible CFC, a commencing day
non-taxable Australian asset of the eligible CFC is an asset (other
than a taxable Australian asset) owned by the eligible CFC at the
end of its commencing day.".
6. After section 408:
Insert:
before end of
commencing day
"408A. For the purposes of applying this Act in calculating the
attributable income of an eligible CFC, if the eligible CFC's
commencing day is after 30 June 1995, Part IIIA does not apply to a
disposal of an asset of the eligible CFC before the end of the
commencing day.".
7. Subsection 411(1):
Omit "on 30 June 1990", substitute "on its commencing day".
The heading to section 411 is replaced by the heading
"Commencing day non-taxable Australian assets taken to have been
acquired on commencing day".
8. Subsection 412(3):
Omit "before 1 July 1990" (wherever occurring), substitute "on or
before the eligible CFC's commencing day".
The heading to section 412 is replaced by the heading
"Cost base of commencing day non-taxable Australian asset".
9. Subsections 413(2), 414(2) and 415(2):
Omit "30 June 1990 non-taxable Australian assets", substitute
"commencing day non-taxable Australian assets".
10. Subsections 413(2) and (3):
Omit "at 30 June 1990", substitute "at the eligible CFC's commencing
day".
The heading to section 413 is altered by omitting "30 June
1990" and substituting "commencing day".
11. The whole of the Act:
Amend the Act in accordance with the following table, making
amendment number 1 before amendment number 2:
Amendment
number
Provisions to be amended
Amendment
Paragraph 102AAZBA(g), subsections 160M(12AA) and (12AB) and
411(1), paragraphs 412(2)(a) and 413(3)(a), subsections 416(2) and
417(2), paragraph 418A(1)(d) and subsection 418A(2).
Omit "30 June 1990 non-taxable Australian asset",
substitute "commencing day non-taxable Australian asset".
Paragraphs 102AAZBA(h) and 160M(12AB)(b), sub-subparagraphs
412(2)(a)(i)(A) and (B) and 412(2)(a)(ii)(A) and (B), paragraph
412(2)(b), subsection 412(3), paragraphs 413(2)(b) and (3)(b) and
414(2)(a) and (b), subsection 414(3), paragraphs 415(2)(a) and (b),
subsection 415(3), paragraphs 416(2)(a) and (b), subsection 416(3),
paragraphs 417(2)(a) and (b), subsection 417(3) and paragraph
418A(1)(e).
Omit "30 June 1990" (wherever occurring), substitute
"the eligible CFC's commencing day".
Paragraphs 102AAZBA(h) and 160M(12AB)(b), subsection 418(2)
and paragraphs 418A(1)(a) and (e).
Omit "1 July 1990", substitute "the day following the
eligible CFC's commencing day".
12. Application
The amendments made by this Division (other than item 6) apply to
the disposal of assets after 30 June 1995.
Division 2-Dissolution of CFCs
13. Section 319:
Add at the end:
"(6) If:
the company is a CFC at the beginning of what is,
disregarding this subsection, a statutory accounting period; and
the company ceases to exist before the end of the statutory
accounting period;
the statutory accounting period ends immediately before the company
ceases to exist.".
14. Paragraph 371(5)(a):
Omit the paragraph, substitute:
in a paragraph (1)(a) case where subsection 319(6)
does not apply to the statutory accounting period referred to in
that paragraph-at the end of the statutory accounting period; or
in a paragraph (1)(a) case where subsection 319(6)
applies to the statutory accounting period referred to in that
paragraph-at the beginning of the statutory accounting period; or".
15. Paragraph 375(3)(a):
Omit the paragraph, substitute:
in a paragraph (1)(a) case, or a paragraph (1)(da) case,
where subsection 319(6) does not apply to the statutory accounting
period referred to in that paragraph-at the end of the statutory
accounting period; or
(aa) in a paragraph (1)(a) case, or a paragraph (1)(da) case,
where subsection 319(6) applies to the statutory accounting period
referred to in that paragraph-at the beginning of the statutory
accounting period; or".
16. Application
The amendments made by this Division apply to companies that cease
to exist on or after 29 June 1995, where the winding up or other
process resulting in the company ceasing to exist begins on or after
that day.
Division 3-Refunds etc. of foreign tax
17. After subsection 6AB(5):
Insert:
"(5A) In spite of anything in this section, a taxpayer is taken,
for the purposes of this Act, not to have been personally liable
for, or to have paid, foreign tax if:
a refund of the foreign tax becomes liable to be made to the
taxpayer or any other person; or
any other benefit becomes liable to be provided to the
taxpayer or any other person, where:
the amount of the benefit is worked out by reference to
the amount of the foreign tax paid by the taxpayer alone; and
(ii) the benefit does not consist of a reduction in foreign
tax payable by the taxpayer or the other person.".
18. Application
The amendment made by this Division applies to refunds or other
benefits that become liable to be made or provided after 29 June
1995.
Division 4-Tainted income
19. Section 434:
Add at the end:
"(3) If the Commissioner considers that:
the consideration for the supply or acquisition of one or
more items of property would have been taken into account in working
out an amount described in any of the paragraphs of subsection (1)
as being that shown in the recognised accounts of the company for
the statutory accounting period; and
assuming the company were an eligible CFC whose attributable
income for the statutory accounting period were being calculated,
the Commissioner would make a determination under section 136AD in
relation to the supply or acquisition of the items; and
as a result of the determination, the consideration for the
supply or acquisition would have been different; and
if that different consideration had instead been taken into
account in working out the amount shown in the recognised accounts,
the amount shown in the recognised accounts would also have been
different;
then the different amount is substituted for the amount shown in the
recognised accounts.".
20. Application
The amendment made by this Division applies for statutory accounting
periods commencing after 30 June 1995.
PART 2-REBATABLE AND FRANKABLE DIVIDENDS
21. After section 46F:
Insert:
Rebate not allowable for dividends debited against certain accounts
"46G.(1) If:
a company pays a dividend in respect of which a rebate under
section 46 or 46A is allowable; and
the dividend is debited wholly or partly against either or
both of the following:
one or more disqualifying accounts (see subsection 46H(1))
of the company;
(ii) one or more non-disqualifying accounts (see subsection
46H(3)) of the company, to the extent that the debiting causes a
debit against the notional disqualifying account (see section 46I)
of the company in accordance with subsection 46I(5);
the rebate is, subject to subsection (2), not allowable to the
extent of the debit.
"(2) If:
the dividend consists to any extent of a distribution of
property other than money; and
the debiting in respect of that distribution of property is
to any extent against an amount in one or more reserves or accounts
that is attributable either directly, or indirectly as a result of
transfers of amounts from other reserves or accounts, to profits
arising from the revaluation of the property;
subsection (1) does not apply to the debiting to the extent that it
is so attributable.
Meaning of disqualifying account and non-disqualifying account
Disqualifying account
"46H.(1) Each of the following is a disqualifying account of a
company:
a share capital account;
an account consisting of shareholders' capital (as defined
in section 61 of the Life Insurance Act 1995) in relation to a
statutory fund of a life company (both within the meaning of that
Act);
a share premium account;
a reserve to the extent that it consists of profits from the
revaluation of assets of the company that:
have not been disposed of by the company; and
(ii) if the company is a life company within the meaning of the
Life Insurance Act 1995-are not assets of a statutory fund (within
the meaning of that Act) of the company.
Effect of tainting share premium accounts
"(2) If an account ceases to be a share premium account because
the thing mentioned in paragraph (a) or (b) of the definition of
share premium account in subsection 6(1) happens, the account does
not cease to be a disqualifying account.
Non-disqualifying account
"(3) Each account or reserve of a company that is not a
disqualifying account is a non-disqualifying account of the company.
Meaning of notional disqualifying account
"46I.(1) Every company has a notional disqualifying account.
Surplus
"(2) The notional disqualifying account has a surplus if the sum
of the amounts credited to it exceeds the sum of the amounts debited
against it.
Credit for transfer from disqualifying account
"(3) If the company transfers an amount from a disqualifying
account to a non-disqualifying account, then, except where the
transfer is an excluded transfer (see section 46J), the notional
disqualifying account is credited at the time of the transfer by the
amount transferred.
Debit for transfer to disqualifying account
"(4) If:
the company transfers an amount from a non-disqualifying
account to a disqualifying account; and
immediately before the transfer, the notional disqualifying
account has a surplus;
the amount transferred, to the extent that it does not exceed the
amount of the surplus in the notional disqualifying account, is
debited against the notional disqualifying account at the time of
the transfer.
Debit for dividend payment
"(5) If:
the company pays a dividend that is debited wholly or partly
against one or more non-disqualifying accounts of the company; and
immediately before the payment, the notional disqualifying
account has a surplus;
the notional disqualifying account is debited at the time of the
payment by the lesser of:
the sum of the debits against the non-disqualifying
accounts; and
the amount of the surplus in the notional disqualifying
account.
Excluded transfers
"46J.(1) For the purposes of subsection 46I(3), but subject to
subsection (5) of this section, the transfer of an amount from a
disqualifying account to a non-disqualifying account is an excluded
transfer if it is covered by subsection (2), (3) or (4).
Capital reduction for loss
"(2) One case for the purposes of subsection (1) is where:
the disqualifying account is a share capital account or a
share premium account; and
the transfer gives effect to a reduction in paid-up share
capital, or in share premiums, that have been permanently lost or
have permanently ceased to be represented by assets.
Reduction in value of assets
"(3) Another case for the purposes of subsection (1) is where:
the disqualifying account is a reserve to the extent
mentioned in paragraph 46H(1)(d); and
the transfer gives effect to a reduction in the value of an
asset.
Distribution to policy owners
"(4) Another case for the purposes of subsection (1) is where:
the disqualifying account is one mentioned in paragraph
46H(1)(b); and
the transfer is for the purpose of making a distribution
covered by paragraph 63(3)(c) of the Life Insurance Act 1995.
When certain transfers not excluded transfers
"(5) If the transfer of the whole or part of the amount in a
subsection (2), (3) or (4) case takes place in carrying out a
dividend payment or replacement arrangement (see subsection (6)),
the transfer of the whole or the part is not an excluded transfer.
Dividend payment or replacement arrangements
"(6) The transfer of an amount (the transferred amount) takes
place in carrying out a dividend payment or replacement arrangement
if, under the arrangement:
the company will pay a dividend either directly from the
transferred amount, or indirectly from the transferred amount as a
result of the transfer of amounts to other accounts; or
the transferred amount replaces directly an amount from
which a dividend was paid, or replaces indirectly, as a result of
the transfer of amounts to other accounts, an amount from which a
dividend was paid.
Debit for deemed dividends
"46K. If any provision of this Act (other than the definition of
dividend in subsection 6(1)) deems the company to have paid a
dividend as a result of a distribution, payment or crediting, the
dividend is taken for the purposes of sections 46G to 46M to have
been debited against the accounts against which the distribution,
payment, or crediting was debited, and to the same extent.
An example of a provision to which this section applies is
section 47.
Apportionment of debits for dividends paid on the same day
"46L.(1) For the purposes of sections 46G to 46M, if:
the company pays 2 or more dividends on the same day; and
disregarding section 46M, one or more (each of which is an
actually debited dividend) of the dividends is debited wholly or
partly against either or both of the following:
one or more disqualifying accounts of the company;
(ii) one or more non-disqualifying accounts of the company, to
the extent that the debiting causes a debit against the notional
disqualifying account of the company in accordance with subsection
46I(5);
then, subject to subsection (3):
each dividend paid by the company is taken to have been
debited against the account or accounts mentioned in paragraph (b);
and
the amount of each debiting is worked out using the formula
in subsection (2); and
each actually debited dividend is (except in accordance with
paragraph (c)) taken not to have been debited as mentioned in
paragraph (b).
"(2) For the purposes of subsection (1), the formula is:
x Sum of debits for each actually debited
dividend
Sum of amounts of all dividends paid on the day
"(3) If:
an actually debited dividend paid by the company on the day
consists to any extent of a distribution of property other than
money; and
the debiting mentioned in paragraph (1)(b) in respect of
that distribution of property is to any extent against an amount in
one or more reserves or accounts that is attributable either
directly, or indirectly as a result of transfers of amounts from
other reserves or accounts, to profits arising from the revaluation
of the property;
paragraph (1)(b) does not apply to the debiting to the extent that
it is so attributable.
Splitting of frankable dividends
"46M.(1) If:
the company pays a dividend (the original dividend) that,
apart from this section, is a frankable dividend as defined by
section 160APA; and
apart from this section, the original dividend is debited
wholly or partly against either or both of the following:
one or more disqualifying accounts of the company;
(ii) one or more non-disqualifying accounts of the company, to
the extent that the debiting causes a debit against the notional
disqualifying account of the company in accordance with subsection
46I(5);
then the following provisions apply for the purposes of:
sections 45Z to 46M; and
Part IIIAA and any other provision of this Act whose
operation depends on that Part.
"(2) If:
the original dividend consists to any extent of a
distribution of property other than money; and
the debiting in respect of that distribution of property is
to any extent against an amount in one or more reserves or accounts
that is attributable either directly, or indirectly as a result of
transfers of amounts from other reserves or accounts, to profits
arising from the revaluation of the property;
subsection (1) does not apply to the debiting to the extent that it
is so attributable.
"(3) If the original dividend is debited wholly as mentioned in
paragraph (1)(b):
it is not a frankable dividend; and
it is not a dividend to which paragraph 160AQF(1)(c) or
(1AA)(c) or section 160AQG applies.
"(4) If subsection (3) does not apply, the original dividend is
taken to consist of 2 separate dividends as follows:
one dividend that:
is not a frankable dividend; and
(ii) is not a dividend to which paragraph 160AQF(1)(c) or
(1AA)(c) or section 160AQG applies; and
is equal to the amount of the debit mentioned in
paragraph (1)(b); and
(iv) is debited against the one or more accounts, and to the
same extent as the debiting, mentioned in that paragraph; and
another dividend that:
is a frankable dividend; and
(ii) is equal to the remainder of the original dividend; and
is not debited against any disqualifying account, or any
non-disqualifying account so as to cause a debit against the
notional disqualifying account.".
22. Section 159GZZZMA:
Repeal the section.
23. Subsection 159GZZZP(3):
Omit the subsection.
24. Subsection 159GZZZQ(1):
Omit "Subject to subsection (2), where", substitute "If".
25. Subsection 159GZZZQ(2):
Omit the subsection.
26. Section 160APA (definition of frankable dividend):
Add at the end the following paragraph:
a dividend that is taken by subsection 46M(3) or
paragraph 46M(4)(a) not to be a frankable dividend.".
27. Subsections 160AQF(1) and (1AA):
Add at the end:
"Note: Because of subsection 46M(3) and paragraph 46M(4)(a),
paragraph (c) of this subsection does not apply to dividends that
are taken by subsection 46M(3) or paragraph 46M(4)(a) not to be
frankable dividends.".
28. Section 160AQG:
Add at the end:
"Note: Because of subsection 46M(3) and paragraph 46M(4)(a), this
section does not apply to dividends that are taken by that
subsection or paragraph not to be frankable dividends.".
29. Subsection 160ZA(4A):
Omit the subsection, substitute:
"(4A) An amount is excluded from paragraph (4)(b) if it has been,
or will be, included in the taxpayer's assessable income under a
provision having effect where:
the taxpayer recoups capital expenditure that was incurred
in respect of the asset; and
a deduction has been allowed or is allowable to the taxpayer
in respect of the capital expenditure.".
30. Subsection 160ZA(5A):
Omit the subsection, substitute:
"(5A) An amount is excluded from paragraph (5)(c) if it has been,
or will be, included in the partnership's assessable income under a
provision having effect where:
the partnership recoups capital expenditure that was
incurred in respect of the asset; and
a deduction has been allowed or is allowable to the
partnership in respect of the capital expenditure.".
31. Subsection 160ZL(5):
Omit the subsection.
32. Section 160ZLA:
Repeal the section.
33. Application
(1) Subject to item 34, the amendments made by this Part apply to
dividends that are paid after 7.30p.m. (the starting time), by legal
time in the Australian Capital Territory, on 9 May 1995 where, in
the case of dividends other than those that are deemed to be paid,
the dividends are declared after the starting time.
(2) Subject to item 34, credits arise under section 46I of the
Income Tax Assessment Act 1936 as amended by this Part for amounts
transferred by the company from accounts after the starting time.
Debits under section 46I will, as a result of subitem (1),
only arise in respect of the payment of dividends covered by that
subitem.
34. Excluded transitional arrangements
(1) The amendments made by this Part do not apply to dividends
paid by the company under an excluded transitional arrangement (see
subitem (3)) within the transitional period (see subitem (4)).
(2) Credits do not arise under section 46I of the Income Tax
Assessment Act 1936 as amended by this Part for amounts transferred
by the company from accounts under an excluded transitional
arrangement within the transitional period.
(3) An excluded transitional arrangement is an arrangement, plan
or proposal under which a reduction of capital of the company
occurs, where:
the reduction is confirmed by a Court order; and
the arrangement, plan or proposal:
is announced at a general meeting of the company, or by
written notice available to all shareholders in the company; and
(ii) begins to be implemented;
before 7.30p.m. (the starting time), by legal time
in the Australian Capital Territory, on 9 May 1995.
(4) The transitional period is the period beginning at the
starting time and ending 6 months afterwards.
PART 3-BANKRUPTCY AND LOSSES
35. After subsections 79E(8) and 79F(8):
Insert:
"(8A) If:
a taxpayer becomes a bankrupt, but the bankruptcy is later
annulled; and
disregarding the annulment, subsection (8) applies to the
bankruptcy; and
the annulment occurred under section 74 of the Bankruptcy
Act 1966; and
under the composition or scheme of arrangement concerned,
the taxpayer has been, will be or may be, released from any debts,
from which he or she would have been released if he or she had been
instead discharged from the bankruptcy;
then, for the purposes of subsection (8), the annulment is
disregarded.".
36. After subsection 80(4):
Insert:
"(4AA) If:
a taxpayer becomes a bankrupt, but the bankruptcy is later
annulled; and
disregarding the annulment, subsection (4) applies to the
bankruptcy; and
the annulment occurred under section 74 of the Bankruptcy
Act 1966; and
under the composition or scheme of arrangement concerned,
the taxpayer has been, will be or may be, released from any debts,
from which he or she would have been released if he or she had been
instead discharged from the bankruptcy;
then, for the purposes of subsection (4), the annulment is
disregarded.".
37. After subsection 80AAA(9):
Insert:
"(9A) If:
a taxpayer becomes a bankrupt, but the bankruptcy is later
annulled; and
disregarding the annulment, subsection (9) applies to the
bankruptcy; and
the annulment occurred under section 74 of the Bankruptcy
Act 1966; and
under the composition or scheme of arrangement concerned,
the taxpayer has been, will be or may be, released from any debts,
from which he or she would have been released if he or she had been
instead discharged from the bankruptcy;
then, for the purposes of subsection (9), the annulment is
disregarded.".
38. After subsection 80AA(6):
Insert:
"(6A) If:
a taxpayer becomes a bankrupt, but the bankruptcy is later
annulled; and
disregarding the annulment, subsection (6) applies to the
bankruptcy; and
the annulment occurred under section 74 of the Bankruptcy
Act 1966; and
under the composition or scheme of arrangement concerned,
the taxpayer has been, will be or may be, released from any debts,
from which he or she would have been released if he or she had been
instead discharged from the bankruptcy;
then, for the purposes of subsection (6), the annulment is
disregarded.".
39. After subsection 160ZC(4):
Insert:
"(4A) In spite of any other provision of this section, if, during
a year of income, a taxpayer:
has become a bankrupt; or
not having become a bankrupt, has been released from any
debts by the operation of an Act relating to bankruptcy;
then any net capital loss incurred by the taxpayer in the preceding
year of income is not allowed to be taken into account in
ascertaining whether a net capital gain accrued to the taxpayer, or
the taxpayer incurred a net capital loss, in respect of the year of
income.
"(4B) If:
a taxpayer becomes a bankrupt, but the bankruptcy is later
annulled; and
disregarding the annulment, subsection (4A) applies to the
bankruptcy; and
the annulment occurred under section 74 of the Bankruptcy
Act 1966; and
under the composition or scheme of arrangement concerned,
the taxpayer has been, will be or may be, released from any debts,
from which he or she would have been released if he or she had been
instead discharged from the bankruptcy;
then, for the purposes of subsection (4A), the annulment is
disregarded.
"(4C) If:
in a year of income (the loss year), a taxpayer incurs a net
capital loss (the denied loss) that, because of subsection (4A), is
not allowed to be taken into account as mentioned in that
subsection; and
the Commissioner is satisfied that a debt incurred by the
taxpayer was taken into account in working out the amount of the
denied loss; and
in a year of income (the payment year) after the loss year,
the taxpayer pays an amount in respect of the debt;
then the taxpayer is taken to have incurred in the payment year a
capital loss of the amount worked out under subsection (4D).
"(4D) The amount of the capital loss is the smallest of the
following:
the amount paid in respect of the debt;
so much of the debt as the Commissioner is satisfied was
taken into account in working out the amount of the denied loss;
the amount of the denied loss, reduced by the sum of any
capital losses taken by subseciton (4C) to have been incurred as a
result of previous payments in respect of debts that the
Commissioner was satisfied were taken into account in working out
the amount of the denied loss.".
40. Application
(1) The amendments made by items 35 to 38 apply to any annulment
of bankruptcy occurring after 25 February 1995.
(2) The amendment made by item 39 applies to:
any taxpayer who becomes a bankrupt after 25 February 1995;
and
any taxpayer who, not having become a bankrupt, has been
released after 25 February 1995 from any debts by the operation of
an Act relating to bankruptcy.
PART 4-REDUCTION OF PAYE EARLY REMITTER THRESHOLD
41. Paragraph 221EC(1)(a):
Omit "$5 million", substitute "$1 million".
42. Subparagraph 221EC(1)(b)(ii):
Omit "$5 million", substitute "$1 million".
43. Application
The amendments made by this Part apply in relation to deduction
months (within the meaning of subsection 221EC(1) of the Income Tax
Assessment Act 1936) that begin on or after 1 December 1995.
PART 5-DEPRECIATION ON TRADING SHIPS
44. Paragraph 57AM(4)(ba):
Omit "1 July 1997", substitute "1 July 2002".
PART 6-INFRASTRUCTURE BORROWINGS
45. Paragraph 159GZZZZG(1)(d):
Omit "33%", substitute "36%".
46. Paragraph 159GZZZZG(2)(e):
Omit "33%", substitute "36%".
47. Paragraph 159GZZZZG(3)(e):
Omit "33%", substitute "36%".
48. Paragraph 159GZZZZG(4)(e):
Omit "33%", substitute "36%".
49. Application
The amendments made by this Part apply to assessments in respect of
income of the 1995-96 year of income and of all later years of
income.
TAXATION LAWS AMENDMENT ACT (No. 3) 1995 No. 170 of 1995 - SCHEDULE 2
Section 3
AMENDMENTS RELATING TO GROUP CERTIFICATES AND
OTHER PAYE PROVISIONS
PART 1-INCOME TAX ASSESSMENT ACT 1936
1. Subsection 221A(1) (definition of group certificate):
Omit the definition, substitute the following definition:
"group certificate means a group certificate form that has been
completed in accordance with this Division.".
2. Subsection 221A(1) (definitions of tax check, tax check sheet,
tax deduction sheet, tax stamp, tax stamps certificate and tax
stamps sheet):
Omit the definitions.
3. Subsection 221A(1):
Insert the following definitions:
"group certificate form means a document in a form authorised by
the Commissioner for the purposes of this definition.
PAYE deduction obligation means an obligation on an employer under
this Division to make a deduction.
PAYE obligation means any obligation on an employer under this
Division.
quarter means any quarter of a financial year, where the quarter
begins on 1 July, 1 October, 1 January or 1 April.
tax voucher means a document of that name purchased under section
221K.".
4. Paragraph 221EAA(1)(b):
Omit the paragraph, substitute:
"(b) an amount equal to 16% per annum of so much of the
undeducted amount as remains unpaid, worked out from the normal due
time (see subsection (1A)).".
5. After subsection 221EAA(1):
Insert:
"(1A) In paragraph (1)(b), normal due time means the end of the
period within which the employer would, if the employer had deducted
the amount required by this Division, have been required to pay the
amount deducted to the Commissioner.".
6. Paragraph 221EC(7)(a):
Omit "subparagraph 221F(5)(a)(i)", substitute "paragraph
221F(5)(a)".
7. Paragraphs 221EC(8)(a) and (b):
Omit "paragraph 221F(5)(a) (including that paragraph as varied under
subsection 221F(7))", substitute "subsection 221F(5) (including that
subsection as varied under subsection 221F(7))".
8. After section 221ED:
Insert the following sections:
Becoming a small remitter
"221EDA.(1) This section provides that an employer may in certain
circumstances become a small remitter.
Application required
"(2) In order to become a small remitter, the employer must apply
in writing to the Commissioner, in a form authorised by the
Commissioner for the purpose.
Contents etc. of application
"(3) The application (the small remitter application) must specify
either:
the year of income in which the small remitter application
is made; or
the next year of income after that year of income;
as the financial year (the commencing year) in which the employer
wishes to become a small remitter. If the employer is not a group
employer, the small remitter application must be accompanied by an
application, in a form authorised by the Commissioner, for
registration as a group employer.
Requirements for accepting application
"(4) Subject to subsection (5), the Commissioner must accept the
small remitter application if:
the employer has PAYE deduction obligations of less than
$10,000 for the financial year before the commencing year; or
the employer estimates in the small remitter application
that he or she will have PAYE deduction obligations of less than
$10,000 for the commencing year.
Rejection of application
"(5) The Commissioner must not accept the small remitter
application if:
the employer has, on one or more occasions within the 12
months before the application would be accepted, not complied with
his or her PAYE obligations; and
the Commissioner considers that, because of the non-compliance,
it is not appropriate that the employer should be a small remitter.
Notice
"(6) The Commissioner must give the employer written notice of the
Commissioner's decision whether to accept the small remitter
application.
Effect of notice
"(7) If the Commissioner's decision is to accept the small
remitter application, the employer is a small remitter at all times
after the notice of the Commissioner's decision is given, other than
any quarter in relation to which a revocation of the decision has
effect (see subsection 221EDB(3)).
Effect of rejection on future applications
"(8) If the Commissioner's decision is not to accept the
application, the employer must not make another small remitter
application:
until, at the earliest, the financial year after the one in
which the decision is made; and
unless the employer's PAYE deduction obligations for the
financial year before the year specified in that other small
remitter application as the commencing year are less than $10,000.
Ceasing to be a small remitter
"221EDB.(1) This section provides that an employer who is a small
remitter may in certain circumstances lose that status.
Revocation of decision
"(2) The Commissioner may at any time, by notice in writing given
to the employer, revoke a decision under section 221EDA to accept a
small remitter application, if:
after the decision is made, the employer does not comply
with one or more of the employer's PAYE obligations and, because of
this, the Commissioner considers that it is no longer appropriate
for the employer to be a small remitter; or
the Commissioner is satisfied that the employer's PAYE
deduction obligations for the financial year in which the revocation
is to take place are likely to be $10,000 or more.
Effect of revocation
"(3) If the Commissioner revokes the decision, the revocation has
effect in relation to all quarters after the quarter in which notice
of the revocation is given.
Revocation not otherwise allowed
"(4) Except as mentioned in subsection (2), the Commissioner must
not revoke or vary a decision under section 221EDA.
Effect of revocation on future applications
"(5) If a decision under section 221EDA to accept an application
is revoked, the employer must not make another application to become
a small remitter:
until, at the earliest, the financial year after the one in
which the decision is revoked; and
unless the employer's PAYE deduction obligations for the
financial year before the year specified in that other application
as the commencing year are less than $10,000.
Review of decisions under sections 221EDA and 221EDB
"221EDC. An employer who is dissatisfied with:
a decision of the Commissioner under subsection 221EDA(5)
not to accept an application by the employer; or
a notice given to the employer under subsection 221EDB(2);
may object against the decision or notice in the manner set out in
Part IVC of the Taxation Administration Act 1953.".
9. Subsection 221F(1):
Omit the subsection, substitute:
"(1) An employer of one or more employees who, at the start of the
28th day after the day on which Schedule 2 to the Taxation Laws
Amendment Act (No. 3) 1995 commences, is not already registered as a
group employer must, within a further 14 days after that 28th day,
apply to the Commissioner, in a form authorised by the Commissioner,
for registration as a group employer.".
10. Subsection 221F(2):
Omit "employment 10 or more", substitute "or her employment one or
more".
11. Subsection 221F(2A):
Omit "commencing on or after 1 July 1983, has made 10", substitute
", has made one".
12. Subsection 221F(2A):
Omit "(whether before or after the commencement of this
subsection)".
13. Subsections 221F(5) to (6):
Omit the subsections, substitute:
"(5) An employer must pay to the Commissioner the amount of any
deductions that the employer makes:
if the deductions were made during the first 14 days of a
month and the employer is an early remitter (see section 221EC) in
relation to that month-not later than the 21st day of that month;
and
if paragraph (a) does not apply and the employer was a small
remitter (see section 221EDA) when the deductions were made-not
later than the 7th day after the end of the quarter in which the
deductions were made; and
in any other case-not later than the 7th day after the end
of the month in which the deductions were made.
"(5A) Subject to subsection (5E), an employer must, not later than
14 July in each year, complete a group certificate form in respect
of each employee and give the employee 2 copies of the completed
form.
"(5B) In completing the form, the employer must set out (in
addition to any other matter required by the form):
if the employee has, for the purposes of Part VA, quoted his
or her tax file number in an employment declaration given to the
employer-the tax file number; and
the total salary or wages paid by the employer to the
employee during the period of 12 months that ended on 30 June in the
same year (other than amounts set out in a previous group
certificate); and
if deductions from the salary or wages of the employee have
been made by the employer during that period-the total of the
deductions (other than amounts set out in a previous group
certificate).
"(5C) Subject to subsection (5E), an employer must, within 7 days
after an employee ceases to be employed by the employer, complete a
group certificate form in respect of the employee and give 2 copies
of the completed form to the employee.
"(5D) In completing the form, the employer must set out (in
addition to any other matter required by the form):
if the employee has, for the purposes of Part VA, quoted his
or her tax file number in an employment declaration given to the
employer-the tax file number; and
the total salary or wages paid by the employer to the
employee (other than amounts set out in a previous group
certificate); and
if deductions from the salary or wages of the employee have
been made by the employer-the total of the deductions (other than
amounts set out in a previous group certificate and amounts deducted
from eligible termination payments).
"(5E) Subsection (5A) or (5C) does not apply if all of the
following conditions are met:
all of the salary or wages that the employee received, or
was entitled to receive, for the period were atypical (see
subsection (5F)); and
the salary or wages that the employee received, or was
entitled to receive, in respect of any week or part of a week within
the period of 12 months did not exceed the minimum amount of
atypical salary or wages in respect of which the employer was
required to make deductions; and
at no time in the period of 12 months was the employee a
prescribed non-resident.
"(5F) For the purposes of subsection (5E), the salary or wages are
atypical if they do not relate to employment in, or in connection
with, a trade, business, profession or undertaking carried on by the
employer.
"(5G) If:
an employer is required to state an employee's tax file
number when completing a group certificate form; and
the employee has not quoted his or her tax file number in an
employment declaration given to the employer; and
because of the application of subsection 202CB(2) or (4),
the employee is to be taken, for the purposes of Part VA, to have
quoted his or her tax file number;
the employer is taken to have stated the number in the group
certificate form if, in the space provided on the form for the
inclusion of the number, the employer includes, as the case
requires:
the notation approved by the Commissioner as being
appropriate in cases to which subsection 202CB(2) applies; or
the notation approved by the Commissioner as being
appropriate in cases to which subsection 202CB(4) applies.
"(5H) An employer must, within 7 days after making an eligible
termination payment to an employee, complete a group certificate
form in respect of the employee and give 2 copies of the completed
form to the employee.
"(5I) In completing the form, the employer must set out (in
addition to any other matter required by the form):
if the employee has, in accordance with the regulations,
quoted his or her tax file number in an employment declaration given
to the employer in relation to that eligible termination payment-the
tax file number; and
the amount of the eligible termination payment paid by the
employer to the employee; and
if a deduction from the eligible termination payment has
been made by the employer as a group employer-the amount of the
deduction.
"(5J) An employer must, not later than 14 August in each year,
send to the Commissioner:
each group certificate completed by the employer in respect
of salary or wages paid by the employer to any employee during the
period of 12 months that ended on 30 June in that year; and
a statement in a form authorised by the Commissioner, signed
by the employer, reconciling the total deductions shown in each of
the group certificates with the total amounts paid to the
Commissioner in respect of those deductions.".
The heading to section 221F is altered by adding at the
end ", group certificates etc.".
14. Subsection 221F(7):
Omit "a paragraph of subsection (5) or any of the requirements of
subsection (5A), (5B), (5C) or (5D)", substitute "subsections (5) to
(5D) and (5H) to (5J)".
15. Subsections 221F(8), (9), (10) and (11):
Omit the subsections.
16. Subsection 221F(12):
Omit "a group employer other than the Commonwealth by virtue of
paragraph (5)(a) (including that paragraph as varied under
subsection (7)) or under subsection (9)", substitute "an employer
other than the Commonwealth because of subsection (5) (including
that subsection as varied by subsection (7))".
17. Paragraphs 221F(12)(a) and (b):
Omit "group" (wherever occurring).
18. Subsection 221F(14):
Omit "by virtue of paragraph (a) of that subsection", substitute
"(including that subsection as varied by subsection (7))".
19. Subsection 221F(15):
Omit all the words from and including "contravene" to and including
"subsection (6)", substitute "contravene any of subsections (5A) to
(5D) and (5H) to (5J) (including any of those subsections as varied
by subsection (7))".
20. Subsection 221F(16):
Omit the subsection.
21. Section 221G:
Repeal the section.
22. Subsection 221H(1):
Omit "any tax stamps sheet and any group certificate issued to the
employee", substitute "one copy of each group certificate given to
the employee".
23. After subsection 221H(1):
Insert:
"(1A) A person who purchases tax vouchers during a year of income
must send them to the Commissioner with the return that the person
is required under section 161 to furnish in respect of the year of
income.".
24. Subsections 221H(2) to (5):
Omit the subsections, substitute:
"(2) Subsections (3) to (5) apply if:
an employer has made any deductions in respect of an
employee under this Division, or a person has purchased one or more
tax vouchers, during a year of income; and
an assessment has been made of the tax payable, or the
Commissioner is satisfied that no tax is payable, by the employee or
purchaser in relation to the year of income.
"(3) If the sum of the deductions or amounts of purchases is less
than or equal to the tax payable, the Commissioner must credit the
sum in payment or part payment of the tax.
"(4) If the sum is more than the tax, the Commissioner must:
credit so much of the sum as is required in payment of:
firstly, the tax; and
(ii) secondly, any other liability of the employee or purchaser
to the Commonwealth that arises under or because of an Act of which
the Commissioner has the general administration; and
pay to the employee or purchaser an amount equal to any
excess.
"(4A) If there is no tax payable, the Commissioner must:
credit so much of the sum as is required in payment of any
other liability of the employee or purchaser to the Commonwealth
that arises under or because of an Act of which the Commissioner has
the general administration; and
pay to the employee or purchaser an amount equal to any
excess.
"(4B) The employee or purchaser is taken to have paid any amount
credited by the Commissioner in payment of the tax or other
liability, at the time at which the Commissioner credits the sum or
at any earlier time that the Commissioner determines.
"(5) If the amount paid, or sum credited, by the Commissioner
exceeds the amount to which the employee or purchaser is entitled,
the Commissioner may recover the excess as if it were income tax due
and payable by the employee or purchaser.".
25. Paragraph 221H(5A)(a):
Omit the paragraph, substitute:
a deduction has been made by an employer from an eligible
termination payment that a person has received, or was entitled to
receive; and".
26. Subsections 221H(5B), (6) and (7):
Omit the subsections.
27. Section 221K:
Repeal the section, substitute:
Tax vouchers
"221K. A taxpayer who is not an employee may purchase at any time
a document called a tax voucher from a person authorised by the
Commissioner to sell such documents.
A taxpayer who purchases a tax voucher is entitled to a
credit etc. under section 221H against the taxpayer's tax for the
purchase price.".
28. Sections 221L and 221M:
Repeal the sections.
29. Subsection 221N(1):
Omit ", sub-subparagraph 221F(12)(b)(ii)(B), paragraph 221G(4A)(c)
or subparagraph 221G(4A)(d)(ii)", substitute "or sub-subparagraph
221F(12)(b)(ii)(B)".
30. Subsection 221N(2):
Omit ", sub-subparagraph 221F(12)(b)(ii)(A) or subparagraph
221G(4A)(d)(i)", substitute "or sub-subparagraph
221F(12)(b)(ii)(A)".
31. Paragraphs 221NA(1)(c) and (d):
Omit ", sub-subparagraph 221F(12)(b)(ii)(B), paragraph 221G(4A)(c)
or subparagraph 221G(4A)(d)(ii)", substitute "or sub-subparagraph
221F(12)(b)(ii)(B)".
32. Subsection 221NA(2) (paragraphs (d) and (e) of definition of
principal amount):
Omit the paragraphs.
33. Sections 221P and 221Q:
Repeal the sections.
34. Subsection 221S(4):
Omit all the words after "paid to the Commissioner".
35. Section 221T:
Repeal the section.
36. Paragraphs 221V(d) and (e):
Omit the paragraphs.
37. Subparagraphs 221V(f)(i) and (ii):
Omit the subparagraphs, substitute:
a copy of a group certificate, or document purporting to
be a copy of a group certificate, other than a copy duly given to
him or her in respect of the amount shown in the copy; or
(ii) a tax voucher, or document purporting to be a tax voucher,
other than a tax voucher duly purchased by him or her.".
38. Section 221Y:
Repeal the section.
39. Paragraph 221YAB(1)(a) (subparagraph (iv) of definition of
credited amounts):
Omit ", or applied under section 221Q,".
40. Paragraph 221YAB(1)(a) (subparagraph (v) of definition of
credited amounts):
Omit the subparagraph.
41. Paragraph 221YAB(1)(b) (subparagraph (iv) of definition of PAYE
deductions):
Omit ", or applied under section 221Q,".
42. Paragraph 221YAB(1)(b) (subparagraph (v) of definition of PAYE
deductions):
Omit the subparagraph.
43. Paragraphs 221YHJ(4)(a) and (b):
Omit "221P(1) or" (wherever occurring).
44. Paragraph 221YHJ(4)(b):
Omit "as the case requires,".
45. Paragraphs 221YHZD(4)(a) and (b):
Omit "221P(1) or" (wherever occurring).
46. Paragraph 221YHZD(4)(b):
Omit "as the case requires,".
47. Subsection 222AFB(1) (definition of due date):
Omit ", or affix tax stamps of a face value equal to the amount of
the deduction, as the case requires".
48. Subsection 222AFB(1) (paragraph (a) of definition of remittance
provision):
Omit "and section 221G (except subsection 221G(4A))".
49. Subsection 222AGF(5):
Omit the subsection, substitute:
"(5) For each amount (if any) paid or applied for the purpose of
complying with that Division in relation to the deductions (if any)
that the person so made, the declaration must specify the amount and
the day on which it was so paid, applied or spent.".
50. Division 2 of Part VI:
Amend the Act in accordance with the following table:
Amendment No.
Provisions to be amended
Amendment
Subsections 221C(2), 221D(2), 221F(2A), 221F(3), 221F(7),
221H(5A), 221S(2) and 221W(4)
After "he" (wherever occurring) insert "or she".
Subsections 221E(4), 221F(3), 221F(4) and 221S(2) and paragraph
221V(c)
After "his" (wherever occurring) insert "or her".
Paragraph 221C(2)(b) and subsections 221E(3) and (4)
After "him" (wherever occurring) insert "or her".
51. Application
(1) The amendments made by this Part, in so far as they apply in
relation to group certificates, apply to the completion of group
certificates or group certificate forms, and the doing of other
things in relation to group certificates or group certificate forms
that are required to be completed, on or after the 28th day
following the day on which this Part commences.
(2) The amendments made by this Part, in so far as they apply in
relation to tax deduction sheets, do not apply in relation to the
keeping of such sheets, and the doing of other things in relation to
such sheets that were required to be kept, before the 28th day
following the day on which this Part commences.
(3) Section 221H of the Income Tax Assessment Act 1936 as amended
by this Part applies:
in relation to deductions made either before or after the
commencement of this Part, other than deductions to which section
221H of that Act, as in force before its amendment by this Part,
continues to apply because of subitem (1) or (2); and
in relation to tax vouchers purchased after the commencement
of this Part.
(4) The amendment made by item 10 applies in relation to employers
who commence to carry on business, or become employers, on or after
the 28th day following the day on which this Part commences.
(5) The amendments made by items 11 and 12 apply in relation to
eligible termination payments made during any period of 12 months
beginning on or after 1 July 1995.
(6) The amendments made by item 33 (in so far as it repeals
section 221P of the Income Tax Assessment Act 1936) and items 43 to
46 do not apply to amounts that became payable under that section
before the commencement of this Part.
52. Transitional-item 8
If, immediately before the commencement of this Part, a group
employer was, in accordance with a notice served on the group
employer under subsection 221F(7) of the Income Tax Assessment Act
1936, a quarterly remitter, section 221EDA of that Act as amended by
this Part has effect as if the group employer were a small remitter
in accordance with a notice given to the group employer on the day
on which this Part commences.
53. Transitional-items 27, 40 and 42:
(1) In spite of the repeal of section 221K of the Income Tax
Assessment Act 1936 by item 27, subsection 221K(2) of that Act
continues to apply in relation to the surrender of tax stamps
purchased before the commencement of this Part.
(2) In spite of the amendments made by items 40 and 42, the Income
Tax Assessment Act 1936 continues to apply in relation to amounts
credited or applied against income tax under section 221K of that
Act, as continued in force by subitem (1), as if the amendments made
by those items had not been made.
PART 2-BANKRUPTCY ACT 1966
54. Paragraph 139U(3)(b):
Omit "group certificate", substitute "copy of a group certificate".
55. Paragraph 139U(3)(b):
Omit "or tax stamps sheet".
56. Application and transitional-item 54
(1) The amendment made by item 54 applies to contribution
assessment periods beginning on or after 1 July 1995 and ending 28
days or more after the day on which this Part commences.
(2) If a contribution assessment period begins before 1 July 1995
and ends 28 days or more after the day on which this Schedule
commences, paragraph 139U(3)(b) of the Bankruptcy Act 1966 applies
as if the reference in that paragraph to any group certificate that
relates in whole or in part to the contribution assessment period
included a reference to any copy of a group certificate that relates
in whole or in part to so much of the period as occurs after 30 June
1995.
PART 3-VARIOUS ACTS
Division 1-Bankruptcy Act 1966
57. Paragraph 109(1A)(b):
Omit "section 221P,"
Division 2-Child Support (Registration and Collection) Act 1988
58. Paragraphs 50(2)(a) and (b):
Omit "221P(1),".
Division 3-Crimes (Taxation Offences) Act 1980
59. Subsection 3(1) (paragraph (d) of definition of income tax):
Omit ", subparagraph 221F(12)(b)(ii) or paragraph 221G(4A)(d)",
substitute "or subparagraph 221F(12)(b)(ii)".
60. Subsection 3(1) (paragraph (e) of definition of income tax):
Omit the paragraph.
Division 4-Crown Debts (Priority) Act 1981
61. Section 4:
Omit "221P,".
Division 5-Taxation (Interest on Overpayments and Early Payments)
Act 1983
62. Subsection 3(1) (paragraph (a) of definition of income tax
crediting amount):
Omit "221K,".
63. Subsection 3(1)(paragraph (ba) of definition of relevant tax):
Omit ", sub-subparagraph 221F(12)(b)(ii)(A) or subparagraph
221G(4A)(d)(i)", substitute "or sub-subparagraph
221F(12)(b)(ii)(A)".
Division 6-Application of Part
64. Application
The amendments made by this Part do not apply to:
amounts that became payable under section 221F or 221P of
the Income Tax Assessment Act 1936 (the Tax Act) before this Part
commenced; or
amounts payable under section 221G of the Tax Act in
relation to tax deduction sheets that were required to be kept
before the 28th day after the day on which this Part commences; or
amounts credited or applied against income tax under section
221K of the Tax Act as continued in force by subitem 53(1).
TAXATION LAWS AMENDMENT ACT (No. 3) 1995 No. 170 of 1995 - SCHEDULE 3
Section 3
SUPERANNUATION GUARANTEE CHARGE
PART 1-AMENDMENT OF THE SUPERANNUATION GUARANTEE (ADMINISTRATION)
ACT 1992 RELATING TO NOTIONAL EARNINGS BASE
1. Subsection 13(1):
Omit the subsection, substitute:
"(1) This section deals with the meaning of the expression
notional earnings base in relation to an employee (the current
employee) at a particular time (the current time) if at the current
time:
the current employee is a member of a superannuation fund
(the current fund); and
the current employee's employer (the current employer) is
contributing to the current fund, in accordance with an applicable
authority (see subsection (5)), for the benefit of the current
employee in relation to a contribution period; and
subsection (1A) applies.
"(1A) This subsection applies at the current time if the current
employer, or an employer who is, at the current time, a predecessor
employer (see subsection (4A)) of the current employee, was,
immediately before 21 August 1991, contributing to:
the current fund; or
another fund that, at the current time, is a predecessor
fund (see subsection (4D)) in relation to the current employer or
the predecessor employer, as the case may be;
in accordance with the applicable authority, for the benefit of the
current employee or another employee.
"(1B) The simplest case to which subsection (1) applies is the
following:
Diagram 13.1-the simplest case
(DIAGRAM OMITTED)
The meaning of the expression notional earnings base, in relation to
the current employee at the current time, is determined under this
section because:
- Immediately before 21 August 1991, the current employer was:
- employing the current employee; and
- contributing to the current fund, in accordance with the
applicable authority, for the benefit of the current employee in
relation to a contribution period.
- This situation has continued until the current time.
"(1C) An example of a typical case to which subsection (1) might
apply is the following:
Diagram 13.2-a typical case
(DIAGRAM OMITTED)
The meaning of the expression notional earnings base, in relation to
the current employee at the current time, is determined under this
section because:
- Immediately before 21 August 1991, the current employer was:
- employing an employee other than the current employee; and
- contributing to a fund in accordance with an applicable award, for
the benefit of that other employee, in relation to a contribution
period.
- After 3.55p.m. on 28 June 1994, an employee's benefits were
transferred to the current fund, meeting the requirements of
subsection (4E), and causing the fund, under subsection (4D), to be
a predecessor fund at the current time in relation to the current
employer.
- At the current time, the current employer is:
- employing the current employee; and
- contributing to the current fund, in accordance with an applicable
authority, for the benefit of the current employee, in relation to a
contribution period.".
The heading to section 13 is replaced by the heading
"Interpretation: notional earnings base where superannuation
contributions made for benefit of certain employees immediately
before 21 August 1991".
2. Subsection 13(2):
Before "employee" (wherever occurring) insert "current".
3. Subsections 13(2) and (4):
Omit "award, arrangement, law or scheme", substitute "applicable
authority".
4. After subsection 13(4):
Insert:
"(4A) For the purposes of this section, an employer (the test
employer) is a predecessor employer of another employer (the primary
employer) in relation to an employee of the primary employer at a
particular time (the test time), if subsection (4B) or (4C) applies
at that time.
"(4B) This subsection applies at the test time if, after 3.55p.m.,
by legal time in the Australian Capital Territory, on 28 June 1994
and before the test time:
the test employer transferred to the primary employer, for
market value consideration, the whole of the business or other
undertaking, or an asset of the business or other undertaking, in
which the employee was employed by the test employer immediately
before the transfer; and
immediately after the transfer, the employee was employed by
the primary employer solely or principally in the transferred
business or other undertaking, or in utilising the asset in the
business or other undertaking of the primary employer.
"(4C) This subsection applies at the test time if, because of
subsection (4B), the test employer is at that time, in relation to
the employee, a predecessor employer of another employer who,
because of an application of subsection (4B) or this subsection, is
at that time, in relation to the employee, a predecessor employer of
the primary employer.
"(4D) For the purposes of this section, a fund (the test fund) is
a predecessor fund of another fund (the primary fund) in relation to
an employer at a particular time (the test time) if subsection (4E)
or (4F) applies at that time.
"(4E) This subsection applies at the test time if:
during the period beginning at 3.55p.m., by legal time in
the Australian Capital Territory, on 28 June 1994 and ending at the
test time, the test fund transferred to the primary fund some or all
of the benefits, of one or more employees of the employer, in the
test fund; and
the primary fund conferred, on all of the employees whose
benefits were transferred during the period, rights, in respect of
all the benefits, that were substantially the same as, or better
than, those conferred on the employees by the test fund; and
before the transfer of each of the benefits, a written
agreement was in force between the trustee of the primary fund and
the trustee of the test fund that the primary fund would confer
those rights on the employees.
"(4F) This subsection applies at the test time if:
because of subsection (4E), the test fund is at the test
time a predecessor fund, in relation to the employer, of another
fund that is not the primary fund; and
because of an application of subsection (4E) or of this
subsection, that other fund is at the test time a predecessor fund,
in relation to the employer, of the primary fund; and
the test fund became a predecessor fund of the other fund
before the other fund became a predecessor fund of the primary fund.
"(4G) The simplest case to which subsection (4F) applies is the
following:
Diagram 13.3-the simplest case
(DIAGRAM OMITTED)
The test fund is a predecessor fund of the primary fund at the test
time in relation to the employer because:
S A transfer of an employee's benefits occurs between the test fund
and the other fund:
- meeting the requirements of subsection (4E); and
- causing the test fund, under subsection (4D), to be a predecessor
fund of the other fund at the test time in relation to the employer.
As a result, paragraph (4F)(a) is satisfied.
- Later, a transfer of employee benefits occurs between the other
fund and the primary fund:
- meeting the requirements of subsection (4E); and
- causing the other fund to be a predecessor of the primary fund at
the test time in relation to the employer.
As a result, paragraph (4F)(b) is satisfied.
S As the transfer of employee benefits from the test fund to the
other fund happened before the transfer from the other fund to the
primary fund, paragraph (4F)(c) is satisfied.".
5. Subsection 13(5) (paragraph (a) of definition of reference
earnings):
Omit "kind referred to in paragraph (1)(ab)", substitute
"Commonwealth, a State or a Territory".
6. Subsection 13(5):
Insert the following definition:
"applicable authority means any of the following:
an industrial award;
an occupational superannuation arrangement;
a law of the Commonwealth, a State or a Territory;
the applicable superannuation scheme.".
7. Subsection 14(1):
Omit "This", substitute "Subject to subsection (1A), this".
The heading to section 14 is replaced by the heading
"Interpretation: notional earnings base where superannuation
contributions not made for the benefit of certain employees
immediately before 21 August 1991".
8. Paragraphs 14(1)(a), (ab) and (b):
Omit "but was not so contributing immediately before 21 August 1991
for the benefit of any employee".
9. After subsection 14(1):
Insert:
"(1A) This section does not apply if the meaning of the expression
notional earnings base in relation to the employee is dealt with in
section 13 or 13A.".
10. Application
The amendments made by this Part apply for the purpose of
determining the notional earnings base of the current employee in
relation to the current employer and the current fund in relation to
any contribution period that commences after 30 June 1995.
PART 2-EXCESS BENEFITS
Division 1-Superannuation Guarantee (Administration) Act 1992
11. After section 15:
Insert in Part 2:
Interpretation: Entitlement amount
"15A.(1) An employee has an entitlement amount in relation to a
benefit body at a particular time (the test time) in accordance with
this section.
Lump sum from complying approved deposit fund
"(2) If at the test time:
the benefit body is a complying approved deposit fund; and
the employee has a benefit in the body in the form of a
present or future entitlement to a lump sum;
the employee has an entitlement amount in relation to the body at
the test time equal to the resignation RBL amount in relation to the
benefit at that time.
Deferred annuity from life assurance company or registered
organisation
"(3) If at the test time:
the benefit body is a life assurance company or a registered
organisation; and
the employee has a benefit in the body in the form of a
present or future entitlement to a deferred annuity;
the employee has an entitlement amount in relation to the body at
the test time equal to the resignation RBL amount in relation to the
benefit at that time.
Lump sum, pension, or combination of lump sum and pension, from
complying superannuation fund
"(4) If at the test time:
the benefit body is a complying superannuation fund; and
the employee has a benefit in the body in the form of:
a present or future entitlement to a lump sum; or
(ii) an entitlement to a pension that has not become payable;
or
(iii) any combination of the entitlements covered by subparagraphs
(i) and (ii);
whether or not the applicable entitlement is at the election of the
employee;
the employee has an entitlement amount in relation to the body at
the test time in accordance with subsection (5).
"(5) For the purposes of subsection (4), the entitlement amount
is:
(a) if the applicable entitlement is at the election of the
employee-the greatest possible amount, being a resignation RBL
amount or the sum of 2 resignation RBL amounts, in respect of the
applicable entitlement at the test time; or
in any other case:
if subparagraph (4)(b)(i) applies-the resignation RBL amount
in relation to the lump sum at the test time; or
(ii) if subparagraph (4)(b)(ii) applies-the resignation RBL
amount in relation to the pension at the test time; or
if subparagraph (4)(b)(iii) applies-the sum of the
resignation RBL amount in relation to the lump sum and the
resignation RBL amount in relation to the pension at the test time.
"(6) In this section:
benefit body means a complying superannuation fund, a complying
approved deposit fund, a life assurance company or a registered
organisation.
deferred annuity has the meaning given by section 140C of the Income
Tax Assessment Act 1936.
ETP has the meaning given by section 140C of the Income Tax
Assessment Act 1936.
life assurance company has the meaning given by subsection 27A(1) of
the Income Tax Assessment Act 1936.
pension has the same meaning as in section 10 of the Superannuation
Industry (Supervision) Act 1993.
registered organisation has the meaning given by subsection 27A(1)
of the Income Tax Assessment Act 1936.
resignation RBL amount, in relation to a benefit that exists at a
particular time in a benefit body, means:
if the benefit is in the form of a present or future
entitlement, of an employee, to a lump sum-the RBL amount (worked
out under section 140ZH of the Income Tax Assessment Act 1936) of
the ETP that would be payable to the employee if he or she resigned
at the particular time; or
if the benefit is in the form of a present or future
entitlement, of an employee, to a deferred annuity-the RBL amount
(worked out under section 140ZI of the Income Tax Assessment Act
1936) of the ETP that would be payable to the employee if he or she
commuted the entitlement at the particular time; or
if the benefit is in the form of an entitlement, of an
employee, to a pension that has not become payable-the RBL amount
(worked out under section 140ZK of the Income Tax Assessment Act
1936) of the pension that would be payable to the employee if he or
she resigned at the particular time.".
12. Subsection 19(2):
Omit "An", substitute "Subject to subsection (4), an".
13. Section 19:
Add at the end:
"(4) An employer's quarterly shortfall in respect of an employee
for a quarter, and for all later quarters, is nil if, during the
quarter, the employee gives the employer:
a statement in writing by the employee electing that the
employer should not be liable to superannuation guarantee charge in
respect of the employee; and
statements for the purposes of this paragraph in relation to
the employee, where:
the sum of the amounts specified in all of the statements;
exceeds:
(ii) the pension RBL, under section 140ZD of the Income Tax
Assessment Act 1936, for the year of income (within the meaning of
that Act) in which the statements are given.
"(5) The election is irrevocable.
"(6) For the purposes of paragraph (4)(b), one statement that may
be given is a statement in writing by the Commissioner specifying
the sum of the adjusted RBL amounts of previous benefits (within the
meaning of section 140ZA of the Income Tax Assessment Act 1936)
received by the employee before the time when the statement is
given.
"(7) For the purposes of paragraph (4)(b), another statement that
may be given is a statement in writing, by the trustee or manager of
a benefit body (within the meaning of section 15A) specifying the
entitlement amounts (within the meaning of that section) of the
employee in relation to the benefit body at the time the statement
is given.".
14. Application
The amendments made by this Division apply in relation to any
quarter commencing after the commencement of this Division.
Division 2-Income Tax Assessment Act 1936
15. After subsection 82AAT(1E):
Insert:
"(1F) If a person has given his or her employer statements under
subsection 19(4) of the Superannuation Guarantee (Administration)
Act 1992, the person is not entitled to a deduction under this
section, in his or her assessment for the year of income, in respect
of any contribution made to a complying superannuation fund during:
the contribution period (within the meaning of that Act) in
which the statements are given; or
any later contribution period.".
16. Application
The amendment made by this Division applies in respect of elections
made at any time after the commencement of this Division.
TAXATION LAWS AMENDMENT ACT (No. 3) 1995 No. 170 of 1995 - SCHEDULE 4
Section 3
AMENDMENT OF THE TAXATION LAWS AMENDMENT
(DROUGHT RELIEF MEASURES) ACT 1995
1. Section 2:
Repeal the section, substitute:
Commencement
"2.(1) Subject to this section, this Act commences on the day on
which it receives the Royal Assent.
"(2) Item 8 of Schedule 1 is taken to have commenced immediately
after the commencement of item 9 of Schedule 2 to the Tax Law
Improvement (Substantiation) Act 1995.".
2. Item 8 of Schedule 1:
Omit the item, substitute:
"8. Subsection 170(10):
After `subsection 221YRA(2)' insert ', Part XII'.".
The
Act No. 170, 1995 amended as indicated in the Tables below.
Act | Number and year | Date of Assent | Date of commencement | Application, saving or transitional provisions |
170, 1995 | 16 Dec 1995 | |||
75, 2010 | 28 June 2010 | Schedule 6 (item 63): 29 June 2010 | — |
am. = amended rep. = repealed rs. = repealed and substituted | |
Provision affected | How affected |
Part 7....................................... | rep. No. 75, 2010 |
Item 50.................................... | rep. No. 75, 2010 |
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0
0