28Variation of instalment and past period entitlement determinations where income tax return not lodged

#### 28 Variation of instalment and past period entitlement determinations where income tax return not lodged (1) This section applies if: (a) a determination under section 16 or 17 is in force at, or was in force before, a particular time; and (b) there are one or more days (the cancellation days) before the particular time in respect of which the following conditions are satisfied: (i) the cancellation days occur in the income year (the cancellation income year) that began 2 years before the beginning of the income year in which the particular time occurs; (ii) the claimant is entitled to be paid family tax benefit under the determination for the cancellation days; (iii) the claimant, or the claimant’s partner at the particular time (if he or she was also the claimant’s partner at some time in the cancellation income year), or both, are required to lodge an income tax return for the cancellation income year but have not done so by the particular time; (iv) by the particular time, an assessment has not been made under the Income Tax Assessment Act 1936 of the taxable income for the cancellation income year of everyone to whom subparagraph (iii) applies. Consequence of section applying (2) If this section applies, the Secretary must vary the determination so that it has the effect that the claimant is not, and never was, entitled to family tax benefit for the cancellation days. Consequence where income tax returns are later lodged (3) If: (a) after the Secretary varies the determination under subsection (2) or (6), an assessment is made under the Income Tax Assessment Act 1936 for the cancellation income year for everyone (the taxpayers involved): (i) who was required to lodge an income tax return as mentioned in subparagraph (1)(b)(iii); and (ii) in respect of whom an assessment had not been made before the determination was varied; and (b) the Secretary is satisfied that the claimant was eligible for an amount (the recalculated amount) of family tax benefit for the cancellation days; and (ba) subsection (4) (which is about when the claimant and the claimant’s partner separate after the determination is varied) does not apply; the Secretary must again vary the determination so that it has the effect that, for the cancellation days, the claimant is entitled to be paid: (c) if each of the taxpayers involved lodged an income tax return with the Commissioner of Taxation: (i) before the end of the income year after the cancellation income year; or (ii) within such further period as the taxpayer is allowed under Subdivision D of Division 1 of this Part; the recalculated amount; or (d) in any other case—the lesser of: (i) the recalculated amount; and (ii) the amount that the claimant was entitled to be paid before the variation under subsection (2) was made. Consequence where claimant and partner separate after determination varied (4) After the Secretary varies the determination under subsection (2) or (6), the Secretary must again vary the determination if the following conditions are met: (a) the claimant and the partner mentioned in subparagraph (1)(b)(iii) (the ex‑partner) ceased to be members of the same couple during the further period that the Secretary has allowed, under Subdivision D of Division 1 of this Part, within which the ex‑partner may lodge an income tax return; (b) at the time when the Secretary would vary the determination under this subsection, the claimant and the ex‑partner are not members of the same couple; (c) if the claimant was required to lodge an income tax return for the cancellation income year: (i) the claimant has lodged an income tax return for the cancellation income year before the end of the first income year after the cancellation income year, or of the further period that the Secretary has allowed, under Subdivision D of Division 1 of this Part, within which the claimant may lodge an income tax return; and (ii) an assessment is or has been made under the Income Tax Assessment Act 1936 of the claimant’s taxable income for the cancellation income year; (d) in any case—the ex‑partner was required to lodge an income tax return for the cancellation income year but still had not done so by: (i) if paragraph (c) applies—the later of the time when the claimant and the ex‑partner last ceased to be members of the same couple and the time when the assessment of the claimant’s taxable income is made; or (ii) otherwise—the time when the claimant and the ex‑partner last ceased to be members of the same couple; (e) the Secretary is satisfied that the claimant was eligible for an amount (the recalculated amount) of family tax benefit for the cancellation days. (5) The Secretary must vary the determination under subsection (4) so that it has the effect that, for the cancellation days, the claimant is entitled to be paid the recalculated amount. Consequence where claimant and ex‑partner reconcile after separation (6) If: (a) after the Secretary varies the determination under subsection (4), the claimant and the ex‑partner become members of the same couple again; and (b) the ex‑partner has still not lodged an income tax return for the cancellation income year by the time when the claimant and the ex‑partner become members of the same couple; the Secretary must vary the determination so that it has the effect that the claimant is not, and never was, entitled to family tax benefit for the cancellation days.