128CSuperannuation contributions made to defeat creditors—contributor is a third party

128C  Superannuation contributions made to defeat creditors—contributor is a third party

 (a) a person (the transferor) transfers property to another person, (the transferee); and

 (b) the transfer is by way of a contribution to an eligible superannuation plan for the benefit of a person who later becomes a bankrupt (the beneficiary); and

 (c) the transferor did so under a scheme to which the beneficiary was a party; and

 (d) the property would probably have become part of the beneficiary’s estate or would probably have been available to creditors if the property had not been transferred; and

 (e) the beneficiary’s main purpose in entering into the scheme was:

 (i) to prevent the transferred property from becoming divisible among the beneficiary’s creditors; or

 (ii) to hinder or delay the process of making property available for division among the beneficiary’s creditors; and

 (f) the transfer occurred on or after 28 July 2006;

the transfer is void against the trustee in the beneficiary’s bankruptcy.

 (2) For the purposes of paragraph (1)(b), disregard a benefit that is payable in the event of the death of a person.

Showing the beneficiary’s main purpose in entering into the scheme

 (3) The beneficiary’s main purpose in entering into the scheme is taken to be the purpose described in paragraph (1)(e) if it can reasonably be inferred from all the circumstances that, at the time when the beneficiary entered into the scheme, the beneficiary was, or was about to become, insolvent.

 (4) In determining whether the beneficiary’s main purpose in entering into the scheme was the purpose described in paragraph (1)(e), regard must be had to:

 (a) whether, during any period ending before the scheme was entered into, the transferor had established a pattern of making contributions to one or more eligible superannuation plans for the benefit of the beneficiary; and

 (b) if so, whether the transfer, when considered in the light of that pattern, is out of character.

 (5) For the purposes of paragraph (4)(a), disregard a benefit that is payable in the event of the death of a person.

Other ways of showing the beneficiary’s main purpose in entering into a scheme

 (6) Subsections (3) and (4) do not limit the ways of establishing the beneficiary’s main purpose in entering into a scheme.

 (7) For the purposes of this section, a rebuttable presumption arises that the beneficiary was, or was about to become, insolvent at the time the beneficiary entered into the scheme if it is established that the beneficiary:

 (a) had not, in respect of that time, kept such books, accounts and records as are usual and proper in relation to the business carried on by the beneficiary and as sufficiently disclose the beneficiary’s business transactions and financial position; or