Commonwealth Numbered Regulations

1992 No. 194 BANKRUPTCY RULES (AMENDMENT) - RULE 10

  10.1   After rule 45A, insert:


"Division 4B - Collection of money payable by a bankrupt
under subsection 139P (1) or 139Q (1) of the Act Interpretation

"45B. In this Division:
'contribution' means a contribution payable by a bankrupt under subsection
139P (1) or 139Q (1) of the Act. Payment of contribution in person

"45C. (1) If the amount of a contribution is paid to the trustee in person,
the trustee is not required to accept the payment unless it is made:

   (a)  at the trustee's place of business as a trustee; and

   (b)  by cash or cheque.

"(2) A payment by cheque is taken not to have been made until the trustee
collects the amount for which the cheque is drawn. Payment of contribution by
mail

"45D. (1) If an amount is sent to the trustee as payment of a contribution,
the trustee is not required to accept the payment unless it is in the form of:

   (a)  a bank draft payable to the trustee; or

   (b)  a cheque payable to the trustee; or

   (c)  a money order payable to the trustee; or

   (d)  a postal order payable to the trustee.

"(2) For the purposes of subrule (1), the payment is taken not to have been
made until the trustee collects the amount.

"(3) If the trustee pays a delivery charge or postage, or a postal surcharge,
in relation to the payment of a contribution, the trustee may deduct from the
amount of the contribution the amount of the payment that he or she has made.
Payment of contribution by bank deposit

"45E. (1) The amount of a contribution may be paid by depositing the amount to
the credit of the trustee's trust account.

"(2) The payment is taken not to have been made until the amount deposited is
credited to the trustee. Certificate that an amount is due as a contribution

"45F. (1) The trustee may prepare a certificate in relation to a person who is
a bankrupt:

   (a)  stating that the person is bankrupt; and

   (b)  stating that the trustee has made an assessment of the bankrupt's
        income, under subsection 139W (1) or (2) of the Act, in respect of a
        period referred to in the certificate; and

   (c)  setting out the findings of the assessment; and

   (d)  stating that notice of the assessment was given to the bankrupt under
        subsection 139W (4) of the Act; and

   (e)  stating that the amount set out in the certificate is the amount of
        contribution payable by the bankrupt.

"(2) In proceedings against the bankrupt for recovery of the amount of a
contribution, the certificate is evidence of the matters stated in the
certificate. Notice under section 139ZL of the Act not to refer to money that
is protected from garnishment or encumbrance

"45G. A notice by the Official Receiver under section 139ZL of the Act must
not refer to money that is protected, under a law of the Commonwealth, a State
or a Territory, from garnishment or encumbrance. Notice that the bankrupt is
no longer employed by an employer

"45H. (1) This rule applies if:

   (a)  the Official Receiver gives a notice under section 139ZL of the Act to
        an employer of a bankrupt (in this rule referred to as 'the
        employer'); and

   (b)  the bankrupt ceases to be employed by the employer while the notice is
        in force.

"(2) The employer must give a notice to the bankrupt's trustee, within 21 days
after the bankrupt ceases the employment, stating:

   (a)  that the bankrupt is no longer employed by the employer; and

   (b)  the date on which the bankrupt ceased to be employed.

"(3) If the bankrupt commences other employment after ceasing the employment
referred to in subrule (1), the bankrupt must notify his or her trustee in
writing, within 21 days after commencing the employment, of:

   (a)  the name and address of the bankrupt's new employer; and

   (b)  the address of the place where the bankrupt is employed; and

   (c)  the amount of the bankrupt's gross weekly income from that employment.

"(4) A person who fails, without reasonable excuse, to comply with subrule (2)
or (3) commits an offence. Penalty: $200.

"Division 4C - Application for permission to travel outside
Australia by a bankrupt who is liable to pay a contribution
under subsection 139P (1) or 139Q (1) of the Act Procedure for hearing
application for permission to leave Australia

"45J. (1) An application under subsection 139ZU (1) of the Act must give
reasons why the application should be approved.

"(2) In hearing the application, the Court:

   (a)  is not bound to apply the rules of evidence; and

   (b)  may determine the application without undue formality.

"(3) If:

   (a)  the hearing involves the participation of the bankrupt or the trustee
        by telephone; and

   (b)  before the hearing commence, a party participating in the hearing
        wishes to raise a matter at the hearing; the hearing must not proceed
        until that party has served a copy of his or her arguments in relation
        to the matter, in accordance with section 309 of the Act, on each
        party participating in the hearing.

"(4) As soon as practicable after the Court grants permission for a bankrupt
to leave Australia, the Registrar must inform the Secretary to the Department
of Foreign Affairs and Trade that permission has been granted.

"Division 4D - Application of the
Fringe Benefits Tax Assessment Act 1986 Interpretation

"45K. In this Division:
'the FBT Act' means the Fringe Benefits Tax Assessment Act 1986. Modification
of the Fringe Benefits Tax Assessment Act 1986
  "45L. (1)   For the purposes of paragraph (e) of the definition of 'income'
in section 139L of the Act, the following modifications of the FBT Act apply:

   (a)  references to a year of tax are taken to be references to a
        contribution assessment period;

   (b)  references to the taxable value of a benefit are taken to be
        references to the value of that benefit for the purposes of the Act;

   (c)  references to the declaration date are taken to be references to the
        date that occurs 21 days after the end of the contribution assessment
        period referred to in subsection 139U of the Act in relation to a
        bankrupt;

   (d)  references to a declaration to be given to the employer are taken to
        be references to a declaration to be given to the trustee;

   (e)  references to a form to be approved by the Commissioner are taken to
        be references to a form to be approved by the Inspector-General.

"(2) For those purposes, the further modifications of the FBT Act set out in
Schedule 1B apply. Assessment of value of car benefits based on return made
under the Fringe Benefits Tax Assessment Act 1986
  "45M. (1)   If:


   (a)  a bankrupt who is an employee receives from his or her employer a
        benefit that is a car fringe benefit under the FBT Act in relation to
        the bankrupt in relation to the employer of the bankrupt; and

   (b)  the employer of the bankrupt has made a return to the Commissioner of
        Taxation in relation to that benefit in relation to a year of tax; the
        value of that benefit for the purposes of the Act in relation to a
        contribution assessment period that coincides with that year of tax is
        the taxable value of the benefit assessed by the Commissioner.

"(2) If:

   (a)  a bankrupt is employed, and

   (b)  the employer provides to the bankrupt or an associate of the bankrupt
        a benefit of the kind referred to in paragraph (1) (a); and

   (c)  the employer of the bankrupt has not, in relation to that benefit,
        made a return to the Commissioner of Taxation; the value of that
        benefit for the purposes of the Act is to be determined in accordance
        with section 9 of the FBT Act as modified by this Division.

"(3) If a bankrupt is not employed, the value for the purposes of the Act of a
benefit provided to the bankrupt or an associate of the bankrupt that would,
if provided by an employer, be a car fringe benefit for the purposes of the
FBT Act, is to be determined in accordance with section 9 of the FBT Act as
modified by this Division.

"(4) For the purposes of subrules (2) and (3), a reference in section 9 of the
FBT Act to documentary evidence to be given to an employer is taken to be a
reference to documentary evidence to be given to the trustee.

"(5) In this rule, 'associate' has the same meaning in relation to a person
who is a bankrupt as that expression has in subsection 26AAB (14) of the
Income Tax Assessment Act 1936 in relation to a person referred to in that
definition as a taxpayer. Assessment of value where the taxable value of a
fringe benefit payment would be reduced by an 'otherwise deductible' rule
  "45N. (1)   This rule applies to the following kinds of benefits, being
benefits forming part of the income of a bankrupt:

   (a)  a benefit that:

        (i)    is a fringe benefit for the purposes of the FBT Act; and

        (ii)   has a taxable value that would be reduced under section 19, 24,
               34 or 52 of the FBT Act;

   (b)  a benefit that is not provided by an employer of the bankrupt, but
        would be a benefit of the kind referred to in paragraph (a) if it had
        been provided by an employer of the bankrupt.

"(2) Subject to subrules (3) and (4), the value of a benefit to which this
rule applies is to be reduced under section 19, 24, 34 or 52 of the FBT Act,
as the case requires.

"(3) The reduction in value of a benefit of the kind referred to in paragraph
(1) (b) is to be worked out as if the benefit had been provided by an employer
of the bankrupt.

"(4) For the purposes of paragraph (e) of the definition of 'income' in
section 139L of the Act, the following provisions of the FBT Act, in their
application under subrules (2) and (3), are modified as follows:

   (a)  sections 19, 24, 34 and 52-references to Division 14 of Part III of
        that Act are to be disregarded;

   (b)  subsection 24 (1)-omit subparagraph (b) (i) and sub-subparagraphs (h)
        (ii) (A), (j) (v) (A), and (k) (iv) (A);

   (c)  subparagraph 24 (1) (b) (ii) and sub-subparagraphs 24 (1) (h) (ii)
        (B), (j) (v) (B), (k) (iv) (B)-omit 'external';

   (d)  omit subsection 24 (6).".