Superannuation (Departing Australia Superannuation Payments Tax) Amendment Act 2008
No. 152, 2008
An Act to amend the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedule(s)
Schedule 1—Amendments
Superannuation (Departing Australia Superannuation Payments Tax) Act 2007
Superannuation (Departing Australia Superannuation Payments Tax) Amendment Act 2008
No. 152, 2008
An Act to amend the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007, and for related purposes
[Assented to 11 December 2008]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Superannuation (Departing Australia Superannuation Payments Tax) Amendment Act 2008.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 11 December 2008 |
2. Schedule 1 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | 1 April 2009 (see F2008L04639) |
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
Superannuation (Departing Australia Superannuation Payments Tax) Act 2007
1 Section 3
Insert:
excess untaxed roll‑over amount has the same meaning as in the Income Tax Assessment Act 1997.
2 Section 3
Insert:
roll‑over superannuation benefit has the same meaning as in the Income Tax Assessment Act 1997.
3 Section 5
Before “The”, insert “(1)”.
4 Paragraph 5(b)
Omit “30%”, substitute “35%”.
5 Paragraph 5(c)
Omit “40%”, substitute “45%”.
6 At the end of section 5
Add:
(2) However, if the departing Australia superannuation payment is a roll‑over superannuation benefit paid under section 20H of the Superannuation (Unclaimed Money and Lost Members) Act 1999, the amount of the tax for the element untaxed in the fund of the taxable component of the payment is:
(a) for the amount (if any) of the element that is not an excess untaxed roll‑over amount—45%; and
(b) for the amount (if any) of the element that is an excess untaxed roll‑over amount—nil.
Note: The tax for the excess untaxed roll‑over amount is set at nil to avoid double taxation of that amount, which is also subject to tax under the Superannuation (Excess Untaxed Roll‑over Amounts Tax) Act 2007.
7 Application of amendments of section 5
The amendments of section 5 of the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007 made by this Schedule apply to departing Australia superannuation payments made on or after the commencement of this Schedule, except payments made as a result of requests made before that commencement.
Note: Section 5 of the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007 as in force before the commencement of this Schedule continues to apply to payments made on or after that commencement as a result of requests made before that commencement.
[Minister’s second reading speech made in—
House of Representatives on 25 September 2008
Senate on 10 November 2008]
Overview
The Superannuation (Departing Australia Superannuation Payments Tax) Amendment Act 2008 was enacted by the Parliament of Australia to amend the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007. This legislation addresses gaps and issues that arose after the initial Act was introduced, aiming to refine the tax framework for superannuation payments made by individuals departing Australia. The policy objective is to ensure that the tax rates and definitions are consistent with other relevant tax acts, such as the Income Tax Assessment Act 1997, and to prevent double taxation on certain elements of superannuation payments. The Act received Royal Assent on 11 December 2008 and its amendments commenced on 1 April 2009. The Act includes specific amendments to tax rates and definitions to align with other tax legislation and to address specific scenarios such as the taxation of excess untaxed roll-over amounts under the Superannuation (Excess Untaxed Roll-over Amounts Tax) Act 2007.
Scope and Application
The Superannuation (Departing Australia Superannuation Payments Tax) Amendment Act 2008 is a Commonwealth Act that amends the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007, primarily to adjust the tax rates for departing Australia superannuation payments. This Act applies to individuals or entities making superannuation payments to individuals leaving Australia, and it modifies the tax rates for such payments. The amendments apply to superannuation payments made on or after the commencement of the Act, except for payments made in response to requests made before the commencement. Notably, the Act ensures that there is no double taxation for certain amounts by setting the tax rate for excess untaxed roll-over amounts at nil, thereby aligning with the provisions of the Superannuation (Excess Untaxed Roll-over Amounts Tax) Act 2007. The Act’s jurisdictional reach is national, applying uniformly across Australia, and it extends its application through subordinate instruments such as the commencement schedule provided within the Act itself.
Key Provisions
The Superannuation (Departing Australia Superannuation Payments Tax) Amendment Act 2008 amends the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007. Key provisions of the amendment include re-defining terms such as "excess untaxed roll-over amount" and "roll-over superannuation benefit" to have the same meanings as defined in the Income Tax Assessment Act 1997 (Schedule 1, items 1 and 2). Additionally, the Act increases the tax rates on departing Australia superannuation payments from 30% and 40% to 35% and 45% respectively (Schedule 1, items 4 and 5). Moreover, if the payment is a roll-over superannuation benefit under the Superannuation (Unclaimed Money and Lost Members) Act 1999, the tax for the untaxed element in the fund of the taxable component of the payment is set at 45% for amounts that are not excess untaxed roll-over amounts, and nil for amounts that are excess untaxed roll-over amounts (Schedule 1, item 6). These amendments apply to payments made on or after the commencement of this Schedule, which is set to be a single day fixed by Proclamation, but no later than 1 April 2009 (Section 2).
The Act imposes several obligations on parties involved in departing Australia superannuation payments. Trustees of superannuation funds must ensure that the correct tax rates are applied to such payments as per the amended rates stipulated in the Act (Schedule 1, item 6). If the payment is a roll-over superannuation benefit under the Superannuation (Unclaimed Money and Lost Members) Act 1999, trustees must further distinguish between amounts that are excess untaxed roll-over amounts and those that are not, applying a nil tax rate to the former and a 45% tax rate to the latter (Schedule 1, item 6). These obligations are in addition to the existing duties of trustees under the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007 and other relevant legislation.
Failure to comply with the provisions of this Act could result in civil or criminal consequences, although the Act does not explicitly state the penalties for non-compliance. However, considering the context and the nature of the legislation, it is likely that breaches could attract penalties under related acts such as the Income Tax Assessment Act 1997 or the Superannuation (Excess Untaxed Roll-over Amounts Tax) Act 2007. For instance, penalties for non-compliance with tax laws can include fines and, in severe cases, imprisonment. Given the specific nature of the tax rates and definitions introduced by this amendment, trustees and other affected parties must ensure strict adherence to avoid any potential repercussions.