Commonwealth Numbered Regulations

1992 No. 194 BANKRUPTCY RULES (AMENDMENT) - RULE 36

  36.1   After Schedule 1, insert:

                          SCHEDULE 1A                       Rule 35

MODIFICATIONS OF DIVISION 5 OF PART IV OF THE ACT
IN ITS APPLICATION TO MEETINGS OF CREDITORS
UNDER DIVISION 6 OF PART IV OF THE ACT
1.    Section 64B (Certain matters to be included in notice of
meeting)
1.1   Add at the end:


"(6) The trustee must attach to the notice:

   (a)  the documents referred to in subsection 73 (2); and

   (b)  if the meeting is the first meeting of creditors held during the
        administration of the estate-a copy of the bankrupt's statement of
        affairs.".
2.   Section 64E (Notice about voting by proxy)

2.1   Omit the section, substitute:
Notice-proxy voting and voting on bankrupt's proposal

"64E. (1) The trustee must attach to the notice a form for use in:

   (a)  appointing a proxy; and

   (b)  expressing under subsection 73 (5) the creditor's assent to, or
        dissent from, the bankrupt's proposal.

"(2) The notice must tell the creditors that if a creditor wishes to appoint
a person to represent the creditor at the meeting as the creditor's proxy, the
creditor must complete the form of appointment of proxy and either:

   (a)  arrange for the proxy to give the completed form to the trustee before
        the meeting; or

   (b)  send the completed form with the statement given by the creditor to
        the trustee in accordance with section 64d.

"(3) The notice must tell creditors that if a creditor wishes to use the form
to express his or her assent to or dissent from the bankrupt's proposal, the
creditor must arrange for the form to be given to the trustee before the
meeting.".
  3.   Section 64G (Agenda to be set out in notice of meeting)

  3.1   Paragraph 64G (g)
Omit the paragraph, substitute:

"(g) consideration of the bankrupt's proposals for a composition or scheme of
arrangement;".
  3.2   Paragraph 64G (k)
Omit the paragraph, substitute:

"(k) proposal of:

   (i)  a special resolution accepting the bankrupt's proposal for a
        composition or a scheme of arrangement; or

   (ii) any other relevant motion;".
  4.   Section 64R (Tabling of bankrupt's statement of affairs)

  4.1   Omit the section, substitute:
Provision of bankrupt's statement of affairs, bankrupt's proposal and
trustee's report

"64R. (1) The President must then ask whether each creditor, or representative
of a creditor, at the meeting has with him or her a copy of:

   (a)  the bankrupt's proposal; and

   (b)  the trustee's report on the proposal.

"(2) If the meeting is the first meeting of the creditors, the President must
also ask each creditor or representative whether the creditor or
representative has a copy of the bankrupt's statement of affairs with him or
her.

"(3) If a creditor or representative indicates that he or she does not have a
copy of the proposal, the report or the statement of affairs with him or her,
the trustee must give the creditor or representative, as soon as practicable,
a copy of the proposal, report or statement, as the case requires.

"(4) If the trustee cannot give a creditor or representative a copy of the
proposal, report or statement of affairs within a reasonable time, the meeting
is to be adjourned to a time and place decided by the meeting.".
  5.   Section 64S (Statements and questions)

  5.1   Subsection 64S (1)
Omit the subsection, substitute:

"(1) The President must then invite the bankrupt to make a statement outlining
his or her proposal to the meeting.

"(1A) The President must then ask the trustee to comment on his or her report
on the bankrupt's proposal.".
  6.   Section 64T (Motions)

  6.1   Omit the section, substitute:
Motions

"64t. (1) The President must then call for a motion for a special resolution
to approve the bankrupt's proposal for a compromise or scheme of arrangement.

"(2) If a motion is:

   (a)  not proposed; or

   (b)  proposed but not passed; the President may close the meeting.".
  7.   Section 64U (Remuneration of registered trustee)

  7.1   Subsection 64U (1)
Omit the subsection, substitute:

"(1) If:

   (a)  a special resolution, accepting the bankrupt's proposal, has been
        passed at the meeting; and

   (b)  a registered trustee has consented to be the trustee of the
        composition or scheme of arrangement; and

   (c)  the President has told the creditors and representatives at the
        meeting that provision for remuneration of the trustee may be included
        in the instrument setting out the terms of the composition or scheme;
        the President must then ask the trustee of the composition or scheme
        of arrangement to state the basis on which the trustee wishes to be
        remunerated.".
  7.2.   Subsection 64U (8)
Omit the subsection, substitute:

"(8) If:

   (a)  a special resolution, accepting the bankrupt's proposal, has been
        passed at the meeting; and

   (b)  the trustee of the bankruptcy is a registered trustee; the President
        must ask the trustee to lay before the meeting a statement of the
        amount of remuneration drawn by the trustee form the funds of the
        bankrupt's estate before the meeting was held.

"(9) The trustee must comply with the President's request.".
  8.   Section 64V (Appointment of committee of inspection)

  8.1   Omit the section.

  9.   Section 64W (Other business)

  9.1   Omit the section.

  10.   Section 64X (Next meeting)

  10.1   Omit the section.

  11.   Section 64ZB (Manner of voting)

  11.1   After subsection 64ZB (1), insert:


"(1A) A creditor may, in a written vote given to the trustee at least 2 days
(not including a Saturday, a Sunday or a public holiday) before the meeting is
held, vote on a special resolution to accept a proposal by a bankrupt for a
composition or scheme of arrangement.".
  12.   Section 64ZE (Joint bankruptcies)

  12.1   Omit the section.

SCHEDULE 1B Subrule 45l (2)
MODIFICATIONS OF THE FRINGE BENEFITS TAX ASSESSMENT ACT 1986
  1.   Section 9 (Taxable value of car fringe benefits-statutory
formula)
  1.1   Paragraph 9 (2) (c):
Omit the paragraph, substitute:

"(c) the statutory fraction is:

   (i)  for the first contribution assessment period:

   (a)  where the annualised number of whole kilometres travelled by the car
        during the year preceding the bankruptcy was more than 40,000-0.06;

   (b)  where the annualised number of whole kilometres travelled by the car
        during the year preceding the bankruptcy was not less than 25,000 and
        not more than 40,000-0.1;

   (c)  where the annualised number of whole kilometres travelled by the car
        during the year preceding the bankruptcy was not less than 15,000 and
        not more than 24,999-0.18; or

   (d)  in any other case-0.24;

   (ii) for each subsequent contribution assessment period:

   (a)  where the annualised number of whole kilometres travelled by the car
        during the previous contribution assessment period was more than
        40,000-0.06;

   (b)  where the annualised number of whole kilometres travelled by the car
        during the previous contribution assessment period was not less than
        25,000 and not more than 40,000-0.1;

   (c)  where the annualised number of whole kilometres travelled by the car
        during the previous contribution assessment period was not less than
        15,000 and not more than 24,999-0.18; or

   (d)  in any other case-0.24;".
1.2   Paragraph 9 (2) (d):
Omit the paragraph, substitute:

"(d) the annualised number of whole kilometres travelled by the car during a
contribution assessment period is:

   (i)  if the bankrupt holds records showing the number of kilometres
        travelled by the car during the previous year-that number of
        kilometres; or

   (ii) if the bankrupt does not hold records of that kind- the number
        calculated in accordance with the formula
A B
C
where:
A is the number of whole kilometres travelled by the car during that part of
the contribution assessment period for which the car was held by the provider
(in this subsection referred to as the 'holding period');
B is the number of days in the contribution assessment period; and
C is the number of days in the holding period; and". (NOTE: The reference to a
car "held by the provider" is to a car held by the provider of the benefit but
made available to the bankrupt. See subsection 9 (1) of the FBT Act, from
which the usage is derived.)
  1.3.   Sub-subparagraph 9 (2) (e) (ia) (B):
Omit the sub-subparagraph.
(Example 9.1.   Assessment in the first contribution assessment
period. A car is purchased in June 1990 for the use of a bankrupt. The
purchase price of the car is $20,000. During the period up till 30 June 1991,
the bankrupt uses the car on 200 days and travels 10,000 kilometres in that
period. The Bankruptcy Amendment Act 1991 and Division 4B of Part III of the
Bankruptcy Rules commence on 1 July 1992. Since the Bankrupt was already a
bankrupt on 1 July 1992, the first contribution assessment period commences on
that date During the first contribution assessment period, the bankrupt's
contribution to expenses is $300. The annualised number of kilometres
according to the formula A B
C is:
10,000 x 365
                              200        = 18250 kilometres.
The figures to be inserted in the formula for calculating the value of the car
benefit are: A (base value): $20,000; B (statutory fraction (for 18,250 km):
0.18; C (days when benefit provided): 365; D (days in contribution assessment
period): 365; E (bankrupt's contribution): $300. The value of the car benefit,
according to the formula ABC
D - E is: 20,000 x 0.18 x 365
                         365           - 300 = $3,300.

Example 9.2.   Assessment in the second contribution assessment
period. Suppose the same car is provided in the second contribution assessment
period for the use of the bankrupt, and that during the first contribution
assessment period the car travelled 40,000 kilometres. The annualised number
of kilometres for the second contribution assessment period is then 40,000
kilometres. Suppose the bankrupt's contribution remains $300. All figures will
remain the same except the statutory fraction, which will be 0.1. According to
the formula, the value of the benefit in the second contribution assessment
period is:
20,000 x 0.1 x 365
                          365            - 300 = $1,700.)

2.   Section 10 (Taxable value of car fringe benefits-cost basis)

2.1   Omit the section.

3.   Section 10A (No reduction of operating cost in a log book year
of tax unless log book records and odometer records are maintained)
3.1   Omit the section.

4.   Section 10b (No reduction of operating cost in a non-log book
year of tax unless log book records and odometer records are maintained in log
book year of tax)
4.1   Omit the section.

5.   Section 10C (Nominated business percentage to be reduced if it
exceeds business percentage established during applicable log book period or
if it is unreasonable)
5.1   Omit the section.

6.   Section 12 (Depreciated value)

6.1   Omit the section.

7.   Section 22A (Taxable value of in-house expense payment fringe
benefits)
7.1   Omit the section.

8.   Section 23 (Taxable value of external expense payment fringe
benefits)
8.1   Omit "external".

9.   Section 26 (Taxable value of non-remote housing fringe
benefits)
9.1   Omit the section, substitute:
Taxable value of housing fringe benefits "26. Subject to this Part, the value
of a housing fringe benefit in relation to a contribution assessment period is
the portion of the market value of the recipient's current housing right that
exceeds the recipient's rent.".
10.   Section 28 (Indexation factor for valuation purposes-non-
remote housing)
10.1   Omit the section.

11.   Section 29 (Taxable value of remote area accommodation)

11.1   Omit the section.

12.   Section 29A (Indexation factor for remote area accommodation)

12.1   Omit the section.

13.   Section 31 (Taxable value of living-away-from-home allowance
fringe benefits)
13.1   Add at the end:


"(2) For the purposes of this section, 'deducted home consumption expenditure'
referred to in the definition of 'exempt food component' in section 136 is to
be taken to be:

   (a)  in relation to a person of the age of 12 years or over-$42; and

   (b)  in relation to a person under the age of 12 years-$21.".
(Example 31.1   Calculation of the value of a living-away-from-home
allowance. Assume that a bankrupt living away from his or her family is given
a living-away-from-home allowance of $220 a week. Of this amount, $100
represents reasonable compensation for the cost of accommodation
(i.e. the "exempt accommodation component" is $100), and $80 represents
reasonable compensation for the cost of food. The remaining $40 is
compensation for the disadvantage of living away from home in a town where
facilities that would be available at home are not available. Under subsection
31 (2) of the FBT Act as modified, the exempt food component is $80 minus $42
(i.e. the compensation for increased food cost less the deducted home
consumption expenditure). The value of the benefit is:
$220 - 100 - (80 - 42) = $82.)
14.   Section 32: (Airline transport benefits)

14.1   Sub-subparagraph 32 (b) (ii) (b):
Omit "and".
14.2   Paragraph 32 (c):
Omit the paragraph.
15.   Section 36 (Taxable value of board fringe benefits)

15.1   Omit the section, substitute:


"36. Subject to this Part, the value of a board fringe benefit is:

   (a)  in relation to a contribution assessment period beginning:

   (i)  on 1 July 1992; or

   (ii) during the year beginning on 1 July 1992; $35; or

   (b)  in relation to a later contribution assessment period-a sum worked out
        according to the formula: 35 x CPI where:
CPI is the increase in the All Groups Consumer Price Index number that is the
weighted average of the 8 capital cities published by the Australian
Statistician in respect of the period that commences on 1 July 1992 and ends
immediately before the start of the financial year in which the contribution
assessment period commences.".
16.   Section 37 (Reduction of taxable value-"otherwise deductible"
rule)
16.1   Omit the section.

17.   Division 11 of Part III (Property fringe benefits)

17.1   Omit the Division.

18.   Section 46 (Year of tax in which residual benefits taxed)

18.1   Omit the section, substitute:
Contribution assessment period in which residual fringe benefits are to be
assessed

"46. A residual fringe benefit that is provided during a period which extends
over two or more contribution assessment periods is subject to assessment for
income contribution in each of those periods.".
19.   Section 48 (Taxable value of in-house non-period residual
fringe benefits)
19.1   Omit the section.

20.   Section 49 (Taxable value of in-house period residual fringe
benefits)
20.1   Omit the section.

21.   Section 50 (Taxable value of external non-period residual
fringe benefits)
21.1   Omit the section, substitute:
Value of residual fringe benefits

"50. Subject to this Part, the value of a residual fringe benefit in relation
to a contribution assessment period is the cost to the provider of providing
the benefit, reduced by the amount of the recipient's contribution.".
22.   Section 51 (Taxable value of external period residual fringe
benefits)
22.1   Omit the section.

23.   Division 14 (Reduction of taxable value of miscellaneous
fringe benefits)
23.1   Omit the Division.

24.   Division 14A (Amortisation of taxable value of fringe benefits
relating to remote area home ownership schemes)
24.1   Omit the Division.

25.   Division 14B (Reducible fringe benefits relating to remote
area home ownership repurchase schemes)
25.1   Omit the Division.

26.   Section 136 (Interpretation)

26.1   Subsection 136 (1):
Insert the following definition: " 'contribution assessment period' has the
same meaning as in the Bankruptcy Act 1966;".
26.2   Subsection 136 (1) (definition of "family member"):
Omit the definition, substitute: " 'family member', in relation to:

   (a)  a benefit provided to a employee, or to an associate of a employee,
        means:

   (i)  the employee; or

   (ii) the spouse of the employee; or

   (iii) a child of the employee; and

   (b)  a benefit provided to a bankrupt, or to an associate of a bankrupt,
        means:

   (i)  the bankrupt; or

   (ii) the spouse of the bankrupt; or

   (iii) a child of the bankrupt.".