there are any contributed amounts for a financial year in relation to a member other than a member of a defined benefits superannuation scheme; and

the constitutionally protected superannuation fund is a complying superannuation fund for the purposes of the year of income comprising the financial year;

the surchargeable contributions of the member for the financial year are the sum of:

(c) so much of the amounts referred to in subparagraph (a)(i) of the definition of contributed amounts in section 38 as:

are taxable contributions under subparagraph 274(1)(a)(i), (b)(ii), (ba)(i) or (ba)(iv) or paragraph 274(1)(d) or (e) of the Income Tax Assessment Act; or

are allowed as deductions to the member under section 82AAT of that Act; or

(iii) subject to subsection (3), constitute amounts accrued after 20 August 1996 that are eligible termination payments under paragraph (a) of the definition of eligible termination payment in subsection 27A(1) of that Act and are rolled-over on or after 1 July 1997; and

(d) any amounts referred to in subparagraph (a)(ii) or (iii) of the definition of contributed amount in section 38.

if paragraph (b) does not apply—the amount that is the member’s annual salary for the financial year; or

if another amount is taken to be the member’s annual salary for the purposes of the scheme as it applies to the member for the financial year—that other amount.

notional surchargeable contributions factor means the factor applying to the member for the financial year worked out by an eligible actuary in accordance with:

the method set out in Superannuation Contributions Ruling SCR 97/1; or

(b) if the Commissioner approves in writing another method as being appropriate in relation to the member for the financial year, being a method that excludes contributions made by the member for which the member is not entitled to an income tax deduction under the Income Tax Assessment Act or under the Income Tax Assessment Act 1997—the method so approved.

Value of benefits and expenses—1999-2000 financial year or a later financial year

(a) the method set out in the regulations, being a method that excludes Government co-contributions made under the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 and contributions made by the member for which the member is not entitled to an income tax deduction under the Income Tax Assessment Act or under the Income Tax Assessment Act 1997; or

(b) if the Commissioner approves in writing another method as being appropriate in relation to the member for the financial year, being a method that excludes Government co-contributions made under the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 and contributions made by the member for which the member is not entitled to an income tax deduction under the Income Tax Assessment Act or under the Income Tax Assessment Act 1997—the method so approved.

Regulations

an eligible termination payment is made to the member in the financial year from the constitutionally protected superannuation fund; and

the eligible termination payment has an excessive component.

if the number of cents is less than 50—the amount is to be rounded down to the nearest whole dollar; or

otherwise—the amount is to be rounded up to the nearest whole dollar.

Indexation factor

the member’s name, the address of the member’s place of residence or place of business or employment, the date of the member’s birth and, if given to the provider in connection with the operation or the possible future operation of this Act, the member’s tax file number; and

the particulars referred to in subsection (5); and

any other matters required by the regulations.

Superannuation provider that pays out contributed amounts

to the member; or

to the member, or to a person other than a member, under a payment split;

then the provider must, not later than the notification date for the financial year in which the payment was or is made or such later date (if any) as the Commissioner allows, give the Commissioner a statement setting out:

the member’s name, the address of the member’s place of residence or place of business or employment, the date of the member’s birth and, if given to the provider in connection with the operation or the possible future operation of this Act, the member’s tax file number; and

the particulars referred to in subsection (5); and

the date of the payment; and

any other information required by the regulations.

Information to be given to member

if the request asked for them to be given in writing—in writing; or

otherwise—in such manner as the superannuation provider considers appropriate.

Particulars to be included in statements

if the statement is given by a superannuation (accumulated benefits) provider:

(i) if any of those amounts are amounts referred to in subparagraph (a)(i) of the definition of contributed amounts in section 38—the total of so much of those amounts as are taxable contributions referred to in subparagraph 9(2)(c)(i); and

the total of any of those amounts that are amounts referred to in subparagraph (a)(ii) or (iii) of that definition; and

if the statement is given by a superannuation (defined benefits) provider—the amount of the surchargeable contributions of the member for the financial year.

(a) a superannuation benefit (within the meaning of the Income Tax Assessment Act 1997) becomes payable by a superannuation provider for the benefit of a member; or

a payment split applies to a splittable payment in respect of an interest that a person has as a member;

(being a member who was a member at any time after 7.30 pm by legal time in the Australian Capital Territory on 20 August 1996 and before 1 July 2005), then the provider must give the Commissioner a statement setting out:

the member’s name, the address of the member’s place of residence or place of business or employment, the date of the member’s birth and, if given to the provider in connection with the operation or the possible future operation of this Act, the member’s tax file number; and

the date on which the superannuation benefit became payable; and

the particulars in relation to the benefits referred to in paragraph 15(6)(b) or (6AA)(d) (as the case requires); and

any other information required by the regulations.

Particulars to be included in statement under subsection (6)

(a) if the provider is informed by the member, on or before the tenth day of the month after the month (the payment month) in which the lump sum was paid or the pension began to be paid, that:

the member had applied to the Commissioner for the issue of a tax file number; and

the Commissioner had neither granted nor refused the application;

the end of the 14th day of the second month after the payment month; or

otherwise—the end of the 14th day of the month after the payment month;

or before the end of such further period as the Commissioner allows.

Definitions

calculates the member’s adjusted taxable income; and

if the adjusted taxable income is greater than the surcharge threshold:

calculates the surchargeable contributions; and

calculates the rate of surcharge that applies to the member; and

specifies the amount of the surcharge payable or, if no surcharge is payable, states that a nil amount of surcharge is payable; and

if the adjusted taxable income is equal to or less than the surcharge threshold—states that a nil amount of surcharge is payable.

What happens if member dies

a member has died, whether before or after the commencement of this subsection; and

after the death an assessment was or is made of surcharge on the member’s surchargeable contributions for the financial year in which the member died or a later financial year;

the assessment is taken not to have been made.

Notice of assessment

if paragraph (b) does not apply—to the member; or

if the assessment:

relates to the period when the relevant superannuation fund was a constitutionally protected superannuation fund; and

is made after that superannuation fund ceases to be a constitutionally protected superannuation fund;

to the superannuation provider.

No notice if nil amount assessed

if any Treasury bonds with that term were issued on that day—the annual yield on those bonds; or

otherwise—the annual yield on Treasury bonds with that term, as published by the Reserve Bank of for that day.

Payment to be made when benefit becomes payable

the amount by which the account is in debit; or

the total of the following amounts:

15% of the employer-financed component of any part of the benefits payable to the member that accrued between 20 August 1996 and 1 July 2003;

14.5% of the employer-financed component of any part of the benefits payable to the member that accrued in the 2003-2004 financial year;

12.5% of the employer-financed component of any part of the benefits payable to the member that accrued in the 2004-2005 financial year.

(6AA) If:

a payment split applies to a splittable payment in respect of an interest that a person has as a member; and

the splittable payment becomes payable in circumstances where the member’s surcharge account is in debit;

then the member is liable to pay to the Commissioner the lesser of:

the amount by which the account is in debit; and

the total of the following amounts:

15% of the employer-financed component of any part of the benefits that would have been payable to the member but for the payment split and that accrued between 20 August 1996 and 1 July 2003;

14.5% of the employer-financed component of any part of the benefits that would have been payable to the member but for the payment split and that accrued in the 2003-2004 financial year;

12.5% of the employer-financed component of any part of the benefits that would have been payable to the member but for the payment split and that accrued in the 2004-2005 financial year.

Payment to be made if fund ceases to be a constitutionally protected superannuation fund

the amount by which the account is in debit; or

the total of the following amounts:

15% of the employer-financed component of any part of the value of the age retirement benefits of the member when the fund ceased to be a constitutionally protected superannuation fund that accrued between 20 August 1996 and 1 July 2003;

14.5% of the employer-financed component of any part of the value of the age retirement benefits of the member when the fund ceased to be a constitutionally protected superannuation fund that accrued in the 2003-2004 financial year;

12.5% of the employer-financed component of any part of the value of the age retirement benefits of the member when the fund ceased to be a constitutionally protected superannuation fund that accrued in the 2004-2005 financial year.

a person is liable to pay an amount to the Commissioner under subsection (6) or (6AA); and

(b) a superannuation benefit (within the meaning of the Income Tax Assessment Act 1997) is not payable by the superannuation provider for the benefit of the person because the person has become:

a member of another superannuation fund; or

a member of an approved deposit fund; or

the holder of an RSA; or

the purchaser of an annuity from a life assurance company or from a registered organisation;

the person may direct the trustee of the other superannuation fund or the approved deposit fund, the RSA provider, the life assurance company or the registered organisation to pay to the Commissioner the whole or a part of the amount referred to in paragraph (a) and to make any necessary reductions in the benefits to which the person would otherwise be entitled from the other superannuation fund, the approved deposit fund, or the RSA or to the amount of the annuity to which the person would otherwise be entitled.

Member of former constitutionally protected superannuation fund may direct superannuation provider to pay amount to Commissioner

(8AA) If a person is liable to pay an amount to the Commissioner under subsection (6A), the person may direct the superannuation provider to pay to the Commissioner the whole or a part of that amount and to make any necessary reductions in the benefits to which the person would otherwise be entitled.

Superannuation provider to comply with direction

acknowledge receipt of the payment to the member; and

credit the payment to the surcharge debt account; and

notify the member of the revised balance of the surcharge debt account.

Definitions

an assessment has been amended in any particular in a way that effected a reduction in the amount of surcharge payable; and

for the purposes of making the amendment, the Commissioner accepted a statement made by or on behalf of a member;

the Commissioner may, within 4 years from the date of service of the notice of the amended assessment, further amend the assessment in, or in respect of, that particular in a way that increases the amount of the surcharge payable to the extent that the Commissioner considers necessary.

Period where avoidance of surcharge

if the Commissioner is of the opinion that the avoidance of surcharge is due to fraud or evasion—at any time; or

in any other case—within 4 years from the date upon which the surcharge became due and payable under the assessment;

amend the assessment by making such alterations or additions as the Commissioner thinks necessary to correct the assessment.

Period where amendment reduces surcharge

the Commissioner has begun an examination of the affairs of a member; and

the examination was not completed within the period within which the Commissioner may amend an assessment to which the examination relates under subsection (3) or, if that period has been extended by any previous order or orders of the Federal Court of Australia made under subsection (6), or by any previous consent or consents of the member given under subsection (7), within that period as so extended;

the Commissioner may, before the end of the period referred to in paragraph (b) of this subsection, apply to the Federal Court for an order extending, or request the member to consent to the extension of, the period within which the Commissioner may amend the assessment under paragraph (3)(b).

Court may extend period

an application for an amendment of an assessment is made by a member within 4 years from the date upon which surcharge became due and payable under the assessment; and

the member has given to the Commissioner within that period all information needed by the Commissioner for the purpose of deciding the application;

the Commissioner may amend the assessment when he or she decides the application even though that period has elapsed.

How application for amendment is to be made

the amendment of an assessment in order to give effect to the decision upon any appeal or review; or

the amendment of an assessment by way of reduction in the amount of surcharge payable pursuant to an objection made against the assessment or pending any appeal or review; or

the amendment of an assessment under section 16.

an assessment of surcharge on the surchargeable contributions of a member for a financial year has been made; and

the member did not, before the assessment was made, quote his or her tax file number to the Commissioner in connection with the operation or the possible future operation of this Act and the Commissioner did not know the tax file number when the assessment was made; and

the assessed amount was more than it would have been if the member had quoted the tax file number to the Commissioner; and

after the assessment was made:

the member quoted the tax file number to the Commissioner in connection with the operation or the possible future operation of this Act; or

the Commissioner found out the tax file number.

Amendment of assessment

the member’s adjusted taxable income for the financial year is increased or reduced and the increase or reduction affects the member’s liability to pay the surcharge; or

the amount of the contributions is greater or less than the amount that was taken to be the amount of the contributions for the purposes of the assessment; or

the Commissioner is required or permitted under any other provision of this Act to amend the assessment.

Additional application

(a) under an assessment of surcharge on a member’s surchargeable contributions for a financial year, the rate of surcharge that applies to the member on particular surchargeable contributions for the financial year was assessed to be nil because paragraph 5(4)(e) of the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 applied to the member; and

the rate of surcharge that applies to the member on those contributions for that financial year is afterwards determined to be greater than nil.

Commissioner may amend assessment

the Commissioner must debit the member’s surcharge debt account for the amount of the increase if none of the following has become payable by the relevant superannuation provider for the benefit of the member:

a lump sum;

a pension;

(iii) a superannuation benefit (within the meaning of the Income Tax Assessment Act 1997); or

if paragraph (a) does not apply—the amount of the increase is payable by the member within 3 months after the day on which the assessment is amended or within such further period as the Commissioner allows.

Amendment reducing surcharge

the Commissioner must credit the account with the amount by which the surcharge is reduced if none of the following has become payable by the relevant superannuation provider for the benefit of the member and the member’s surcharge debt account is in debit:

a lump sum;

a pension;

(iii) a superannuation benefit (within the meaning of the Income Tax Assessment Act 1997); or

if paragraph (a) does not apply:

the amount by which the surcharge is reduced is to be applied in reduction of any liability of the member under this Act; and

any amount remaining is to be repaid to the member.

Section subject to section 15A

started at the beginning of 15 June in the financial year; and

finishes at the end of the day before the amended assessment is made.

Amendment of nil assessment

the Commissioner has calculated that no surcharge is payable by a member on the member’s surchargeable contributions for a financial year; and

the Commissioner afterwards makes an assessment of surcharge payable by the member on those contributions for the financial year;

the assessment referred to in paragraph (b) is taken to be an amended assessment.

an assessment of surcharge on a member’s surchargeable contributions is made; and

the member is dissatisfied with the assessment;

the member may object against the assessment in the way set out in Taxation Administration Act 1953.Part IVC of the

Matters on which Commissioner may rely in deciding an objection

the latest assessment of the member’s taxable income under the Income Tax Assessment Act; and

the latest statement of the member’s surchargeable contributions given to the Commissioner by the superannuation provider.

started at the beginning of the day by which the surcharge was due to be paid; and

finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:

the surcharge;

general interest charge on any of the surcharge.

Commissioner’s right to sue not affected

in writing in the English language or so as to enable the records to be readily accessible and convertible into writing in the English language; and

so that any liability under this Act of a member of a constitutionally protected superannuation fund of which the provider is the trustee can be readily worked out.

Period for retention of records

(b) The Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 was amended by Schedule 1 (items 327–341) only of the Taxation Laws Amendment Act (No. 3) 1999, subsection 2(3) of which provides as follows:

(c) The Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 was amended by Schedule 5 (item 2) only of the A New Tax System (Fringe Benefits Reporting) Act 1999, subsection 2(1) of which provides as follows:

(d) The Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 was amended by Schedule 7 (items 221–224) only of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999, subsections 3(1), (2)(e) and (16) of which provide as follows:

subject to subsection (12), Schedule 7, other than items 43, 44, 118, 205 and 207 (the commencement of those items is covered by subsections (10), (11) and (13)).

(e) The Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 was amended by Schedule 2 (items 1–24) only of the Superannuation Contributions and Termination Payments Taxes Legislation Amendment Act 1999, subsections 2(1) and (3) of which provide as follows:

(f) The Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 was amended by Schedule 1 (items 895–897) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:

(g) The Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 was amended by Schedule 2 (items 73–75) only of the A New Tax System (Tax Administration) Act 1999, subsection 2(1) of which provides as follows: