95Secretary may write off debt

#### 95 Secretary may write off debt (1) The Secretary may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise, but only if subsection (2), (4A) or (4B) applies. Secretary may write off debt if debt irrecoverable or debt will not be repaid etc. (2) The Secretary may decide to write off a debt under subsection (1) if: (a) the debt is irrecoverable at law; or (b) the debtor has no capacity to repay the debt; or (c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or (d) it is not cost effective for the Commonwealth to take action to recover the debt. (3) For the purposes of paragraph (2)(a), a debt is taken to be irrecoverable at law if, and only if: (b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or (c) the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or (d) the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt. (4) For the purposes of paragraph (2)(b), if a debt is recoverable by means of: (a) deductions under section 84; or (aa) deductions under section 1231 of the Social Security Act 1991; or (b) setting off under section 84A family assistance; or (c) application of an income tax refund under section 87; or (d) setting off under section 87A against a payment referred to in paragraph 82(1)(c) (child care service payments); the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship. Secretary may write off subsection 28(2) or (6) debt if claimant and partner separate (4A) The Secretary may, under subsection (1), decide to write off a debt arising because of subsection 28(2) or (6) (which deal with when income tax returns have not been lodged) if the following conditions are met: (a) the claimant and the partner mentioned in subparagraph 28(1)(b)(iii) (the ex‑partner) ceased to be members of the same couple after the end of the income year after the cancellation income year mentioned in subsection 28(1); (b) if the claimant was required to lodge an income tax return for the cancellation income year—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; (c) 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 the time when the claimant and the ex‑partner ceased to be members of the same couple. Debt arising because of CCS reconciliation conditions not being met if claimant and partner separate (4B) The Secretary may, under subsection (1), decide to write off a debt arising because of subsection 105E(2) (review if CCS reconciliation conditions not met) in relation to an income year (the relevant income year) if: (a) the debtor, and an individual who was a TFN determination person for the purposes of a determination under Division 3 of Part 3A for the claimant in relation to sessions of care provided in CCS fortnights starting in the relevant income year, ceased to be members of the same couple after the end of the income year after the relevant income year; and (b) if the debtor was required to lodge an income tax return for the relevant income year—the Commissioner of Taxation has made an assessment of the taxable income for the relevant income year of the debtor; and (c) the other individual was required to lodge an income tax return for the relevant income year but had not done so at the time the debtor and the other individual ceased to be members of the same couple. When decision under subsection (1) takes effect (5) A decision made under subsection (1) takes effect: (a) if no day is specified in the decision—on the day on which the decision is made; or (b) if a day is specified in the decision—on the day so specified (whether that day is before, after or on the day on which the decision is made). Debt that has been written off may be recovered (6) Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section.