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Family Assistance Amendment (Further 2008 Budget Measures) Bill 2009

Schedule 2 Non-payment of family tax benefit for non-lodgment of tax returns

   

A New Tax System (Family Assistance) (Administration) Act 1999

1  Subsection 23(6)

After “subject to”, insert “Subdivision CA of this Division,”.

2  Subsection 24(4)

After “subject to”, insert “Subdivision CA of this Division,”.

3  After Subdivision C of Division 1 of Part 3

Insert:

Subdivision CA Non-payment of family tax benefit for non-lodgment of tax returns

32AA   Non-payment of family tax benefit for non-lodgment of tax returns

                   If the Secretary varies a determination under subsection 28(2) in relation to a claimant, the Secretary must not make a payment of family tax benefit (worked out on the basis referred to in subsection 20(1), (2A) or (3)) to:

                     (a)  the claimant during a prohibited period for the claimant (see section 32AB); and

                     (b)  the claimant’s partner (if any) (the relevant partner ) mentioned in subparagraph 28(1)(b)(iii) during a prohibited period for that partner (see section 32AC).

32AB   Prohibited periods for claimant

First kind of prohibited period

             (1)  There is a prohibited period for the claimant if:

                     (a)  the claimant was required to lodge an income tax return for the cancellation income year concerned but the claimant has not done so by the end of the grace period; or

                     (b)  the claimant and the relevant partner are members of the same couple at the end of the grace period, and that partner was required to lodge an income tax return for the cancellation income year concerned but has not done so by the end of the grace period.

Note:          For relevant partner see section 32AA. For grace period see subsection (8).

             (2)  The prohibited period referred to in subsection (1):

                     (a)  begins on the day after the end of the grace period; and

                     (b)  ends when subsection (3), (4) or (7) applies (whichever occurs first).

             (3)  This subsection applies if:

                     (a)  if the claimant was required to lodge an income tax return for the cancellation income year concerned—the claimant lodges or has lodged the return; and

                     (b)  if the relevant partner was required to lodge an income tax return for the cancellation income year concerned—that partner lodges or has lodged the return.

             (4)  This subsection applies if:

                     (a)  the claimant and the relevant partner cease to be members of the same couple at any time after the end of the grace period; and

                     (b)  if the claimant was required to lodge an income tax return for the cancellation income year concerned—the claimant lodges or has lodged the return.

Second kind of prohibited period

             (5)  There is a prohibited period for the claimant if:

                     (a)  the claimant and the relevant partner cease to be members of the same couple on or after the day the variation mentioned in section 32AA is made; and

                     (b)  the claimant and that partner become members of the same couple again on a day (the applicable day ) that is after the end of the period applicable under paragraph (a) of the definition of grace period in subsection (8); and

                     (c)  that partner was required to lodge an income tax return for the cancellation income year concerned but has not done so by the applicable day.

             (6)  The prohibited period referred to in subsection (5):

                     (a)  begins on the day determined by the Secretary (which must not be earlier than the applicable day); and

                     (b)  ends when:

                              (i)  the relevant partner lodges an income tax return for the cancellation income year concerned; or

                             (ii)  the claimant and the relevant partner cease to be members of the same couple again; or

                            (iii)  subsection (7) applies;

                            whichever occurs first.

Prohibited period may end in special circumstances

             (7)  This subsection applies if the Secretary, by writing, determines that the prohibited period concerned ends. The Secretary may make the determination only if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

Grace period

             (8)  In this section:

grace period means:

                     (a)  the period of 75 days, or such longer period as the Secretary determines under subsection (9), beginning on the day the variation mentioned in section 32AA is made; or

                     (b)  if subsection (7) has applied in relation to a previous prohibited period—the period of 14 days, or such longer period as the Secretary determines under subsection (9), beginning on the day the determination mentioned in subsection (7) is made.

Note:          The effect of paragraph (b) of the definition is that there may be another prohibited period for the claimant under subsection (1).

             (9)  The Secretary may, by writing, determine a period for the purposes of paragraph (a) or (b) of the definition of grace period in subsection (8) if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

Determinations are not legislative instruments

           (10)  A determination made under paragraph (6)(a) or subsection (7) or (9) is not a legislative instrument.

32AC   Prohibited periods for relevant partner

First kind of prohibited period

             (1)  There is a prohibited period for the relevant partner if:

                     (a)  the claimant and that partner are members of the same couple at the end of the grace period; and

                     (b)  either or both of the following apply:

                              (i)  the claimant was required to lodge an income tax return for the cancellation income year concerned but has not done so by the end of the grace period;

                             (ii)  that partner was required to lodge an income tax return for the cancellation income year concerned but has not done so by the end of the grace period.

Note:          For relevant partner see section 32AA. For grace period see subsection (10).

             (2)  The prohibited period referred to in subsection (1):

                     (a)  begins on the day after the end of the grace period; and

                     (b)  ends when subsection (3), (4) or (9) applies (whichever occurs first).

             (3)  This subsection applies if:

                     (a)  if that partner was required to lodge an income tax return for the cancellation income year concerned—that partner lodges or has lodged the return; and

                     (b)  if the claimant was required to lodge an income tax return for the cancellation income year concerned—the claimant lodges or has lodged the return.

             (4)  This subsection applies if the claimant and that partner cease to be members of the same couple at any time after the end of the grace period.

Second kind of prohibited period

             (5)  There is a prohibited period for the relevant partner if:

                     (a)  the claimant and that partner cease to be members of the same couple on or after the day the variation mentioned in section 32AA is made; and

                     (b)  the claimant and that partner become members of the same couple again on a day (the applicable day ) that is after the end of the period applicable under paragraph (a) of the definition of grace period in subsection (10); and

                     (c)  either or both of the following apply:

                              (i)  the claimant was required to lodge an income tax return for the cancellation income year concerned but has not done so by the applicable day;

                             (ii)  that partner was required to lodge an income tax return for the cancellation income year concerned but has not done so by the applicable day.

             (6)  The prohibited period referred to in subsection (5):

                     (a)  begins on the day determined by the Secretary (which must not be earlier than the applicable day); and

                     (b)  ends when subsection (7), (8) or (9) applies (whichever occurs first).

             (7)  This subsection applies if:

                     (a)  if that partner was required to lodge an income tax return for the cancellation income year concerned—that partner lodges or has lodged the return; and

                     (b)  if the claimant was required to lodge an income tax return for the cancellation income year concerned—the claimant lodges or has lodged the return.

             (8)  This subsection applies if the claimant and that partner cease to be members of the same couple again.

Prohibited period may end in special circumstances

             (9)  This subsection applies if the Secretary, by writing, determines that the prohibited period concerned ends. The Secretary may make the determination only if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

Grace period

           (10)  In this section:

grace period means:

                     (a)  the period of 75 days, or such longer period as the Secretary determines under subsection (11), beginning on the day the variation mentioned in section 32AA is made; or

                     (b)  if subsection (9) has applied in relation to a previous prohibited period—the period of 14 days, or such longer period as the Secretary determines under subsection (11), beginning on the day the determination mentioned in subsection (9) is made.

Note:          The effect of paragraph (b) of the definition is that there may be another prohibited period for the relevant partner under subsection (1).

           (11)  The Secretary may, by writing, determine a period for the purposes of paragraph (a) or (b) of the definition of grace period in subsection (10) if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

Determinations are not legislative instruments

           (12)  A determination made under paragraph (6)(a) or subsection (9) or (11) is not a legislative instrument.

32AD   Prohibited periods for new partner

                   If:

                     (a)  on or after the day the variation mentioned in section 32AA is made, the claimant becomes a member of a couple and the claimant’s partner (the new partner ) is not the relevant partner; and

                     (b)  the claimant was required to lodge an income tax return for the cancellation income year concerned but has not done so when the claimant becomes a member of that couple;

then, during a prohibited period for the claimant and while the claimant and the new partner are members of the same couple, the Secretary must not make a payment of family tax benefit (worked out on the basis referred to in subsection 20(1), (2A) or (3)) to the new partner.

Note:          For relevant partner see section 32AA.

4  Section 32AA

Before “If”, insert “(1)”.

5  At the end of section 32AA

Add:

             (2)  This section is subject to section 32AE.

6  At the end of Subdivision CA of Division 1 of Part 3

Add:

32AE   Non-entitlement to payment of family tax benefit after 3 variations under subsection 28(2)

             (1)  This section applies if 3 variations under subsection 28(2) have been made in relation to a claimant.

Claimant

             (2)  The claimant is not entitled to be paid family tax benefit (worked out on the basis referred to in subsection 20(1), (2A) or (3)) in respect of a period in which either or both of the following apply:

                     (a)  if the claimant was required to lodge an income tax return for one or more of the cancellation income years concerned—the claimant has not lodged each of those returns;

                     (b)  if the claimant is a member of a couple and the claimant’s partner is a relevant partner in relation to one or more of the cancellation income years concerned and that partner was required to lodge an income tax return for one or more of those years—that partner has not lodged each of those returns.

Note:          For relevant partner see section 32AA.

Partner

             (3)  If the claimant is a member of a couple, the claimant’s partner is not entitled to be paid family tax benefit (worked out on the basis referred to in subsection 20(1), (2A) or (3)) in respect of a period in which either or both of the following apply:

                     (a)  if the claimant was required to lodge an income tax return for one or more of the cancellation income years concerned—the claimant has not lodged each of those returns;

                     (b)  if the claimant’s partner is a relevant partner in relation to one or more of the cancellation income years concerned and that partner was required to lodge an income tax return for one or more of those years—that partner has not lodged each of those returns.

7  Application—amendment commencing on 1 July 2009

(1)       The amendment made by item 3 applies in relation to a variation made under subsection 28(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 before, on or after the commencement of that item (regardless of whether the determination being varied was made before, on or after that commencement).

(2)       However, subitem (1) does not apply in relation to a variation made before the commencement of this item if each person mentioned in subparagraph 28(1)(b)(iii) of the A New Tax System (Family Assistance) (Administration) Act 1999 and required to lodge an income tax return for the cancellation income year concerned had lodged the return before that commencement.

(3)       In relation to a variation made before the commencement of this item to which subitem (1) applies, the period referred to in paragraph (a) of the definition of grace period in subsection 32AB(8) or 32AC(10) of the A New Tax System (Family Assistance) (Administration) Act 1999 is taken to begin on 1 July 2009 (instead of the day the variation is made).

8  Application—amendment commencing on 1 July 2010

(1)       The amendment made by item 6 applies in relation to a variation made under subsection 28(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 before, on or after the commencement of that item (regardless of whether the determination being varied was made before, on or after that commencement).

(2)       However, subitem (1) does not affect a person’s entitlement to be paid family tax benefit before that commencement.

(3)       If more than 3 variations had been made before the commencement of this item in relation to a claimant, section 32AE of the A New Tax System (Family Assistance) (Administration) Act 1999 , as inserted by this Act, applies in relation to all of those variations (instead of 3 of those variations).

(4)       Subitems (1) and (3) do not apply in relation to a variation made before the commencement of this item if each person mentioned in subparagraph 28(1)(b)(iii) of the A New Tax System (Family Assistance) (Administration) Act 1999 and required to lodge an income tax return for the cancellation income year concerned had lodged the return before that commencement.