Section 1073BB — Social Security Act 1991: Anti-avoidance

(1) This section applies if: (a) a person’s (the relevant person’s) rate of payment of a social security pension or a social security benefit is worked out with regard to the income test module of a rate calculator in this Chapter; and (b) a person (the employee) who is: (i) the relevant person; or (ii) the relevant person’s partner; earns or derives employment income during the whole or a part of an instalment period of the relevant person; and (c) one or more entities (who may be, or may include, the relevant person or the relevant person’s partner) enter into, commence to carry out, or carry out, a scheme to defer the payment of that employment income; and (d) it would be concluded that the entity, or any of the entities, who entered into, commenced to carry out, or carried out, the scheme did so for the sole or dominant purpose of obtaining a social security advantage for a person (who may be the relevant person or the relevant person’s partner or may be the entity or one of the entities). (2) The Secretary may determine that the employee is taken to have received an amount of employment income, equal to the amount of employment income referred to in paragraph (1)(b), over the period determined by the Secretary. (3) The period determined by the Secretary must begin on the first day of the instalment period referred to in paragraph (1)(b). (4) Subject to subsection (5), for each day in the period determined by the Secretary, the employee is taken to have received an amount of employment income worked out by dividing the total amount of the employment income referred to in paragraph (1)(b) by the number of days in that period. (5) If the employee is taken, under subsection (4), to have received employment income (the attributed employment income) during a part, but not the whole, of a particular instalment period, the employee is taken to receive on each day in that instalment period an amount of employment income worked out by dividing the total amount of the attributed employment income by the number of days in the instalment period. (6) Sections 1073A, 1073B and 1073BA do not apply in relation to the payment of the employment income referred to in paragraph (1)(b). (7) A determination under subsection (2) has effect accordingly. Employee ceases to be recipient’s partner (7A) Despite the previous subsections, if: (a) the employee is or was the recipient’s partner; and (b) the employee is taken, under subsection (4) or (5), to have received an amount of employment income on a day; and (c) the employee and the recipient are not members of a couple on that day; that amount is taken to be nil. Obtaining a social security advantage (8) For the purposes of this section, an entity has a purpose of obtaining a social security advantage for a person (who may be the entity) if the entity has a purpose of: (a) enabling the person to obtain any of the following: (i) a social security pension; (ii) a social security benefit; (iii) a service pension; (iv) income support supplement; (v) a veteran payment; (vi) a payment under a current special educational assistance scheme; or (b) enabling the person to obtain any of the following at a higher rate than would otherwise have been payable: (i) a social security pension; (ii) a social security benefit; (iii) a service pension; (iv) income support supplement; (v) a veteran payment; (vi) a payment under a current special educational assistance scheme. Definitions (9) In this section: entity means any of the following: (a) an individual; (b) a company within the meaning of the Income Tax Assessment Act 1997; (c) a trust; (d) a partnership within the meaning of the Income Tax Assessment Act 1997; (e) any other unincorporated association or body of persons; (f) a corporation sole; (g) a body politic. scheme means: (a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or (b) any scheme, plan, proposal, action, course of action or course of conduct, whether there are 2 or more parties or only one party involved.