15Whether or not to give waiver notices

15 Whether or not to give waiver notices

(1) Subject to subsection (2), the Secretary may decide to give a waiver notice to the trustees of a trust if the Secretary is satisfied of the following matters: (a) the requirement of Division 1 of Part 3.18A of the Act that has been contravened in relation to the trust is a requirement in one of the following provisions of the Act: (i) for a trust created before 1 January 2011 in relation to which the trust deed cannot be varied—section 1209N, section 1209P or subsection 1209S(1) or (3) of the Act; (ii) for any other trust—section 1209N or subsection 1209S(1) or (3) of the Act; (b) the contravention of the requirement does not involve fraudulent conduct; (c) for a contravention of a requirement in subsection 1209S(1) of the Act—the contravention was not caused by the trustees of the trust; (d) for a contravention of a requirement to only use income that the trust derives, and the assets of the trust, for the purposes mentioned in subsection 1209N(1) or (2) of the Act: (i) the total use of income that the trust derives, and assets of the trust, for a purpose other than a purpose mentioned in subsection (2) of this section does not amount to more than $5,000 for the financial year during which the contravention occurs; and (ii) having regard to all the circumstances, including the nature of the contravention and the frequency of any other such contraventions in relation to the trust, the requirement should be waived. (2) For the purposes of subparagraph (1)(d)(i), the purposes are any of the following: (a) to meet reasonable care and accommodation needs of the principal beneficiary; (b) for purposes, ancillary to meeting the reasonable care and accommodation needs of the principal beneficiary, that are necessary or desirable to facilitate the meeting of those needs; (c) for other purposes that are primarily for the benefit of the principal beneficiary. (3) For the purposes of subparagraph (1)(d)(ii), contraventions are considered frequent if Services Australia is proposing to notify the trustees of the trust of a contravention of a kind referred to in paragraph (1)(d) in relation to the trust and the trustees of the trust have previously been notified of another such contravention in relation to the trust either: (a) in the same financial year; or (b) in the previous financial year. (4) The Secretary may decide to give a waiver notice to the trustees of a trust created on or after 20 September 2006 and before 1 January 2011 in relation to which the trust deed cannot be varied, if the Secretary is satisfied that the trust has complied with section 1209N of the Act. (5) Subject to subsection (6), the Secretary may decide to give a waiver notice to the trustees of a trust in relation to a contravention of paragraph 1209R(1)(b) of the Act if the Secretary is satisfied that: (a) the contravention occurred as a result of court proceedings relating to the transferred asset; or (b) the contravention occurred because: (i) the transferor transferred the asset within the timeframe under paragraph 1209R(1)(b) of the Act to a trust intended to be a special disability trust (the first trust); and (ii) the first trust is not a special disability trust because of a contravention of a requirement of Division 1 of Part 3.18A of the Act; and (iii) the asset is transferred by the transferor to a special disability trust; or (c) the transferor: (i) transferred the asset to a trust intended to be a special disability trust after the end of the 3 year period mentioned in paragraph 1209R(1)(b) of the Act; and (ii) can show there was an intention to transfer the asset to the trust before the end of that 3 year period. (6) The Secretary may decide to give a waiver notice to the trustees of a trust in the circumstances set out in subsection (5) if the Secretary is satisfied of the following matters: (a) the contravention does not involve fraudulent conduct; (b) the contravention in relation to the first trust does not involve fraudulent conduct; (c) having regard to all the circumstances, including the nature of the contravention in relation to the first trust, the requirement should be waived. (7) Section 17 does not apply to a waiver notice given in accordance with this section. (8) This section does not limit the circumstances in which the Secretary may decide to give a waiver notice under section 1209U of the Act.