Superannuation (Government Co-contribution for Low Income Earners) Act 2003 (Cth)

Superannuation (Government Co‑contribution for Low Income Earners) Act 2003 No. 110, 2003 Compilation No. 28 Compilation date: 1 July 2018 Includes amendments up to: Act No. 132, 2017 Registered: 8 August 2018 About this compilation This compilation This is a compilation of the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 that shows the text of the law as amended and in force on 1 July 2018 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Act binds Crown 4 Geographical application of Act 5 Overview of the Act Part 2—Government co‑contribution in respect of low income earners Division 1—Government co‑contribution 6 Person in respect of whom Government co‑contribution payable 7 Contributions that attract matching Government co‑contributions 8 Total income for income year Division 2—Amount of the Government co‑contribution 9 Basic rule—Government co‑contribution matches personal contributions 10 Taper based on total income for the income year 10A Increases in lower and higher income threshold 11 Minimum Government co‑contribution 12 Government co‑contribution increased by interest amount if paid late in certain circumstances 12A Amount of the Government co‑contribution for 2005‑06 income year Part 2A—Low income superannuation tax offset 12B Reference to Government co‑contribution includes reference to low income superannuation tax offset 12C Person entitled to low income superannuation tax offset 12E Amount of low income superannuation tax offset 12F Consequences if estimates no longer accurate 12G Reports on this Part Part 3—Determination that Government co‑contribution payable 13 Commissioner's determination 14 Matters Commissioner has regard to in making determination Part 4—Payment of the Government co‑contribution 15 Commissioner to determine where the Government co‑contribution payment is to be directed 16 Superannuation provider to return Government co‑contribution that cannot be credited to account 17 Payment of Government co‑contribution 18 Commissioner to give information if co‑contribution paid Part 5—Underpayments and overpayments Division 1—Underpayments 19 Underpayment determinations 20 Superannuation provider to return underpaid amount that cannot be credited to account 21 Government co‑contribution increased by interest amount if underpaid amount paid late in certain circumstances 22 Government co‑contribution increased by interest amount if underpaid amount due to administrative error 23 Small underpayments Division 2—Recovery of overpayments 24 Recovery of overpayment of Government co‑contribution in respect of a person Part 5A—General interest charge 25 When general interest charge payable Part 6—Enforcement Division 1—Record keeping obligations 32 Records to be kept and retained by superannuation provider Division 2—Infringement notices 33 When an infringement notice can be served 34 Matters to be included in an infringement notice 35 Withdrawal of infringement notice 36 What happens if penalty is paid 37 More than one infringement notice may not be served for the same offence 38 Infringement notice not required to be served 39 Commissioner may extend period for payment of penalty Part 7—Administration Division 1—General administration 46 Commissioner to have general administration of the Act 47 Decisions to be in writing 48 Commissioner may arrange for use of computer programs to make decisions Division 2—Review of decisions 49 Review of decisions 50 Authorised review officers 51 Withdrawal of review applications Division 3—Other administrative matters 52 Tax file numbers 54 Reports Part 8—Miscellaneous 55 Regulations Part 9—Dictionary 56 Dictionary Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to provide for contributions to be made towards the superannuation of low income earners, and for related purposes Part 1—Preliminary 1 Short title This Act may be cited as the Superannuation (Government Co‑contribution for Low Income Earners) Act 2003. 2 Commencement This Act commences on the day on which it receives the Royal Assent. 3 Act binds Crown (1) This Act binds the Crown in each of its capacities. (2) However, this Act does not make the Crown liable to be prosecuted for an offence. 4 Geographical application of Act This Act extends to: (a) Norfolk Island; and (b) the Territory of Cocos (Keeling) Islands; and (c) the Territory of Christmas Island. 5 Overview of the Act (1) This Act provides for Government co‑contributions to be made towards the superannuation of low income earners. Note: The Government co‑contributions replace the rebates that used to be provided for in Subdivision AAC of Division 17 of Part III of the Income Tax Assessment Act 1936. (2) The following is a simplified explanation of this Act: • Part 2 (sections 6 to 12) tells you who are the people in respect of whom a Government co‑contribution is payable. It also tells you how much the co‑contribution is. • Part 2A (sections 12B to 12G) tells you who are the people entitled to a low income superannuation tax offset. It also tells you how much the low income superannuation tax offset is. • Part 3 (sections 13 and 14) tells you how the Commissioner of Taxation determines whether a Government co‑contribution is payable in respect of a person. • Part 4 (sections 15 to 18) tells you how the Government co‑contribution is paid. • Part 5 (sections 19 to 24) tells you what happens if there is an overpayment or an underpayment of a Government co‑contribution. • Part 5A (section 25) sets out circumstances in which general interest charge is payable. • Part 6 (sections 32 to 39) sets out record keeping obligations and provides for infringement notices). • Parts 7 and 8 (sections 46 to 55) provide for administrative matters. • Part 9 (section 56) sets out the terms that are defined to have a particular meaning when used in this Act. Part 2—Government co‑contribution in respect of low income earners Division 1—Government co‑contribution 6 Person in respect of whom Government co‑contribution payable (1) A Government co‑contribution is payable under this Act in respect of a person for an income year of the person if: (a) the person makes one or more eligible personal superannuation contributions during the income year; and (b) 10% or more of the person's total income for the income year is attributable to either or both of the following: (i) the person engaging in activities covered under subsection (2); (ii) the person carrying on a business (within the meaning of the Income Tax Assessment Act 1997); and (c) the person's total income for the income year is less than the higher income threshold; and (d) an income tax return for the person for the income year is lodged; and (da) the person's non‑concessional contributions for the financial year corresponding to the income year do not exceed the person's non‑concessional contributions cap for the financial year; and (db) immediately before the start of that financial year, the person's total superannuation balance is less than the general transfer balance cap for that financial year; and (e) the person is less than 71 years old at the end of the income year; and (f) the person: (i) is not the holder of a temporary visa under the Migration Act 1958 at any time in the income year; or (ii) at all times when he or she holds such a temporary visa during the income year, is a New Zealand citizen or the holder of a visa prescribed for the purposes of subsection 20AA(2) of the Superannuation (Unclaimed Money and Lost Members) Act 1999. (2) A person engages in activities covered under this subsection if: (a) the person engages in any of these activities in the income year in which the person makes the contribution: (i) holding an office or appointment; (ii) performing functions or duties; (iii) engaging in work; (iv) doing acts or things; and (b) the activities result in the person being treated as an employee for the purposes of the Superannuation Guarantee (Administration) Act 1992 (assuming that subsection 12(11) of that Act had not been enacted). 7 Contributions that attract matching Government co‑contributions (1) A contribution a person made or makes is an eligible personal superannuation contribution if: (a) the contribution was or is made on or after 1 July 2003 to: (i) a fund that is a complying superannuation fund in relation to the income year of the fund in which the contribution was or is made; or (ii) an RSA the person holds; and (b) the contribution was or is made for the purpose of providing superannuation benefits for the person (regardless whether the benefits are payable to the person's dependants if the person dies before or after becoming entitled to receive the benefits); and (c) the contribution is not any of the following: (i) a roll‑over superannuation benefit (within the meaning of the Income Tax Assessment Act 1997); (ii) a superannuation lump sum that is paid from a foreign superannuation fund (within the meaning of the Income Tax Assessment Act 1997); (iia) an amount transferred from a KiwiSaver scheme to a complying superannuation fund as mentioned in section 312‑10 of the Income Tax Assessment Act 1997; (iii) a directed termination payment (within the meaning of section 82‑10F of the Income Tax (Transitional Provisions) Act 1997); (iv) an amount transferred from a scheme mentioned in paragraph 290‑5(c) of the Income Tax Assessment Act 1997. (2) However, the contribution is an eligible personal superannuation contribution only to the extent that the Commissioner has not allowed the contribution as a deduction for the person. 8 Total income for income year (1) The person's total income for the income year is the sum of: (a) the person's assessable income for the income year, disregarding the person's assessable FHSS released amount (within the meaning of the Income Tax Assessment Act 1997) for the income year; and (b) the person's reportable fringe benefits total for the income year; and (c) the total of the person's reportable employer superannuation contributions (within the meaning of the Income Tax Assessment Act 1997) for the income year. (1A) For the purposes of paragraph (1)(c) of this section, reduce (but not below zero) the reportable employer superannuation contributions by any excess concessional contributions (within the meaning of the Income Tax Assessment Act 1997) included in the person's assessable income under paragraph 291‑15(a) of that Act for the income year. (2) However, the person's total income for the income year is reduced by amounts (if any) for which the person is entitled to a deduction as a result of carrying on a business (within the meaning of the Income Tax Assessment Act 1997). (3) Subsection (2) does not apply for the purposes of paragraph 6(1)(b). Division 2—Amount of the Government co‑contribution 9 Basic rule—Government co‑contribution matches personal contributions (1) The amount of the Government co‑contribution in respect of a person for an income year is: (a) for the 2003‑04 income year—an amount equal to the sum of the eligible personal superannuation contributions the person makes during the income year; and (b) for the 2004‑05 income year, the 2005‑06 income year, the 2006‑07 income year, the 2007‑08 income year or the 2008‑09 income year—an amount equal to 150% of the sum of the eligible personal superannuation contributions the person makes during the income year; and (c) for the 2009‑10, 2010‑11 and 2011‑12 income years—an amount equal to the sum of the eligible personal superannuation contributions the person makes during the income year; and (d) for the 2012‑13 income year or a later income year—an amount equal to 50% of the sum of the eligible personal superannuation contributions the person makes during the income year. (2) Subsection (1) has effect subject to sections 10, 10A, 11, 12, 21, 22 and 23. 10 Taper based on total income for the income year (1) The amount of the Government co‑contribution in respect of a person for the 2003‑04 income year must not exceed the maximum amount worked out using the following table: Maximum Government co‑contribution Item Person's total income for the income year Maximum amount 1 the lower income threshold or less $1,000 2 more than the lower income threshold but less than the higher income threshold $1,000 reduced by 8 cents for each dollar by which the person's total income for the income year exceeds the lower income threshold (1A) The amount of the Government co‑contribution in respect of a person for the 2004‑05 income year, the 2005‑06 income year, the 2006‑07 income year, the 2007‑08 income year or the 2008‑09 income year must not exceed the maximum amount worked out using the following table: Maximum Government co‑contribution Item Person's total income for the income year Maximum amount 1 the lower income threshold or less $1,500 2 more than the lower income threshold but less than the higher income threshold $1,500 reduced by 5 cents for each dollar by which the person's total income for the income year exceeds the lower income threshold (1B) The amount of the Government co‑contribution in respect of a person for the 2009‑10 income year, 2010‑11 income year or 2011‑12 income year must not exceed the maximum amount worked out using the following table: Maximum Government co‑contribution Item Person's total income for the income year Maximum amount 1 the lower income threshold or less $1,000 2 more than the lower income threshold but less than the higher income threshold $1,000 reduced by 3.333 cents for each dollar by which the person's total income for the income year exceeds the lower income threshold (1C) The amount of the Government co‑contribution in respect of a person for the 2012‑13 income year or a later income year must not exceed the maximum amount worked out using the following table: Maximum Government co‑contribution Item Person's total income for the income year Maximum amount 1 the lower income threshold or less $500 2 more than the lower income threshold but less than the higher income threshold $500 reduced by 3.333 cents for each dollar by which the person's total income for the income year exceeds the lower income threshold (2) Subsections (1), (1A), (1B) and (1C) have effect subject to sections 10A, 11, 12, 21, 22 and 23. 10A Increases in lower and higher income threshold (1) This section provides for: (a) indexation of the lower income threshold for the 2007‑08 income year and later income years (apart from the 2010‑11, 2011‑12 and 2012‑13 income years); and (b) increases in the higher income threshold for the 2007‑08 income year and each later income year (apart from the 2010‑11, 2011‑12 and 2012‑13 income years) equal to the indexation increase in the lower income threshold for that year. (2) The lower income threshold for an income year is: (a) for the 2003‑04 income year—$27,500; or (b) for the 2004‑05 income year or a later income year before the 2007‑08 income year—$28,000; or (c) for the 2007‑08 income year—$28,000 multiplied by the indexation factor for that income year; or (d) for a later income year—the amount of the lower income threshold for the previous income year multiplied by the indexation factor for that later income year. (3) The higher income threshold for an income year is: (a) for the 2003‑04 income year—$40,000; or (b) for the 2004‑05 income year or a later income year before the 2007‑08 income year—$58,000; or (c) for the 2007‑08 income year or a later income year before the 2012‑13 income year—the sum of: (i) the lower income threshold for that income year; and (ii) $30,000; or (d) for the 2012‑13 income year or a later income year—the sum of: (i) the lower income threshold for that income year; and (ii) $15,000. (4) If the lower income threshold for an income year is an amount of dollars and cents: (a) if the number of cents is less than 50—the lower income threshold is to be rounded down to the nearest whole dollar; or (b) otherwise—the lower income threshold is to be rounded up to the nearest whole dollar. (5) The indexation factor for an income year is the number calculated, to 3 decimal places, using the formula: where: current year means the period of 12 months ending on 31 December immediately before the income year for which the lower income threshold is being calculated. index number, for a quarter, means the estimate of full‑time adult average weekly ordinary time earnings for the middle month of the quarter published by the Australian Statistician. previous year means the period of 12 months immediately before the current year. (5A) Despite subsection (5), the indexation factor for the 2010‑11, 2011‑12 and 2012‑13 income years is 1. (6) If the number calculated under subsection (5) for a financial year would, if it were worked out to 4 decimal places, end with a number greater than 4, the number so calculated is increased by 0.001. (7) If at any time, whether before or after the commencement of this Act, the Australian Statistician has published or publishes an index number for a quarter in substitution for an index number previously published for the quarter, the publication of the later index number is to be disregarded. (8) The Commissioner must publish before, or as soon as practicable after, the start of the 2007‑08 income year, and before the start of each later income year, the lower income threshold and the higher income threshold for the income year. 11 Minimum Government co‑contribution If the amount of the Government co‑contribution in respect of a person for an income year, as calculated under sections 9 and 10 would be less than $20, the amount of the co‑contribution is to be increased to $20. 12 Government co‑contribution increased by interest amount if paid late in certain circumstances (1) The amount of the Government co‑contribution in respect of a person for an income year is increased by the amount of interest worked out under subsection (2) if the Commissioner pays none of the Government co‑contribution on or before the payment date for the co‑contribution. (2) The interest is to be calculated: (a) on the amount of the Government co‑contribution; and (b) for the period from the payment date for the Government co‑contribution until the day on which the Commissioner first pays an amount in satisfaction of the Government co‑contribution; and (c) on a daily basis; and (d) at the base interest rate for the day on which the interest is calculated. 12A Amount of the Government co‑contribution for 2005‑06 income year (1) This section applies for the purposes of working out the amount of the Government co‑contribution in respect of a person for the 2005‑06 income year. (2) Despite sections 9, 10, 10A and 11, that amount is double the amount worked out under those sections in respect of the person for the 2005‑06 income year. (3) Subsection (2) has effect subject to sections 12, 21, 22 and 23. (4) For the purposes of working out an amount of interest under section 12, 21 or 22 in relation to the Government co‑contribution in respect of a person for the 2005‑06 income year: (a) disregard subsection (2); and (b) treat an amount paid by the Commissioner as not including any amount paid by the Commissioner because of subsection (2). Part 2A—Low income superannuation tax offset 12B Reference to Government co‑contribution includes reference to low income superannuation tax offset (1) A law of the Commonwealth applies in relation to a low income superannuation tax offset in the same way as it applies in relation to a Government co‑contribution. (2) Subsection (1) does not apply to: (a) the following provisions: (i) Part 2 of this Act (other than section 12); (ii) this Part; (iii) section 23 of this Act; (iv) section 54 of this Act; and (b) any other law of the Commonwealth, to the extent that the other law relates to a provision mentioned in paragraph (a) of this subsection. (3) Paragraph 14(1)(a) (Commissioner to have regard to income tax return) does not apply in deciding whether to make a determination under section 13 that a low income superannuation tax offset is payable under subsection 12C(2) in respect of a person for an income year. (4) Subsections 24(3) and (4) have an operation in respect of low income superannuation tax offsets that is separate to their operation in respect of Government co‑contributions. 12C Person entitled to low income superannuation tax offset (1) A low income superannuation tax offset is payable under this subsection in respect of a person for an income year of the person if: (a) the person's concessional contributions for the financial year that corresponds to the income year are for a financial year starting on or after 1 July 2017; and (b) the person's adjusted taxable income for the income year (worked out in accordance with Schedule 3 to the A New Tax System (Family Assistance) Act 1999 (disregarding clauses 3 and 3A of that Schedule)) does not exceed $37,000; and (c) the requirement in paragraph 6(1)(b) is satisfied in respect of the person in relation to the income year; and (d) the requirement in paragraph 6(1)(f) is satisfied in respect of the person in relation to the income year. (2) A low income superannuation tax offset is payable under this subsection in respect of a person for an income year of the person if: (a) the person's concessional contributions for the financial year that corresponds to the income year are for a financial year starting on or after 1 July 2017; and (b) 12 months after the end of the income year, the Commissioner reasonably believes there is insufficient information to decide whether to make a determination under section 13 that a low income superannuation tax offset is payable under subsection (1) in respect of the person for the income year; and (c) the Commissioner estimates that: (i) the person's adjusted taxable income for the income year (worked out in accordance with Schedule 3 to the A New Tax System (Family Assistance) Act 1999 (disregarding clauses 3 and 3A of that Schedule)) does not exceed $37,000; and (ii) 10% or more of the person's total income for the income year (disregarding subsections 8(2) and (3)) is attributable to the person engaging in activities covered under subsection 6(2); and (d) the requirement in paragraph 6(1)(f) is satisfied in respect of the person in relation to the income year. (3) For the purposes of paragraph (1)(c), disregard the words "in which the person makes the contribution" in paragraph 6(2)(a). (4) For the purposes of subparagraph (2)(c)(i), treat the person as having total deductions of $300 for the income year unless the Commissioner has information to the contrary. (5) For the purposes of subparagraph (2)(c)(ii), disregard the words "in the income year in which the person makes the contribution" in paragraph 6(2)(a). 12E Amount of low income superannuation tax offset (1) This section applies if a low income superannuation tax offset is payable under subsection 12C(1) or (2) in respect of a person for an income year. (2) The amount of the person's low income superannuation tax offset for the income year is: (a) unless paragraph (b) or (c) applies—15% of the total of the person's concessional contributions for the financial year that corresponds to the income year; or (b) if the amount worked out under paragraph (a) exceeds $500—$500; or (c) if the amount worked out under paragraph (a) is less than $10—$10. (3) For the purposes of paragraph (2)(a), disregard: (a) contributions or amounts covered by paragraph 291‑370(1)(a) of the Income Tax Assessment Act 1997 (about contributions or amounts in relation to constitutionally protected funds); and (b) any other amounts covered by paragraph 291‑165(1)(c) of that Act. (4) If, apart from this subsection: (a) there would be an underpaid amount as mentioned in section 19 in respect of the person's low income superannuation tax offset for the income year; and (b) the underpaid amount would be less than $10; decrease the amount of that low income superannuation tax offset by that underpaid amount. (5) If, apart from this subsection: (a) there would be an amount overpaid as mentioned in section 24 in respect of the person's low income superannuation tax offset for the income year; and (b) the amount overpaid would be less than $10; increase the amount of that low income superannuation tax offset by that amount overpaid. 12F Consequences if estimates no longer accurate (1) Treat a low income superannuation tax offset as never having been payable under subsection 12C(2) in respect of a person for an income year if: (a) the Commissioner obtains information after making the determination under section 13 that the tax offset was so payable; and (b) the Commissioner decides that, had the Commissioner obtained that information before making the determination, the Commissioner would not have made the determination. Note: The tax offset will be recoverable under section 24. (2) The Commissioner must give the person written notice of the Commissioner's decision under paragraph (1)(b). 12G Reports on this Part (1) After the end of each quarter the Commissioner must give the Minister a report, for presentation to the Parliament, on the working of this Part during the quarter. The report must include, for the quarter to which the report relates, the prescribed details about beneficiaries of, and amounts of, low income superannuation tax offsets. (2) After the end of each financial year the Commissioner must give the Minister a report, for presentation to the Parliament, that: (a) is on the working of this Part during the financial year; and (b) includes, for the financial year to which the report relates, the prescribed details about beneficiaries of, and amounts of, low income superannuation tax offsets. Part 3—Determination that Government co‑contribution payable 13 Commissioner's determination (1) The Commissioner must determine that a Government co‑contribution is payable in respect of a person for an income year if the Commissioner is satisfied that the co‑contribution is payable in respect of the person for the income year. (2) The regulations may prescribe the time within which determinations under this section are to be made. 14 Matters Commissioner has regard to in making determination (1) In deciding whether to make a determination under section 13, the Commissioner must have regard to: (a) the income tax return lodged for the person for the income year; and (b) information about the contributions made to a complying superannuation fund, or an RSA, during the income year by, or in respect of, the person contained in: (i) statements given to the Commissioner by superannuation providers under the Superannuation Contributions Tax (Assessment and Collection) Act 1997; and (ii) statements given to the Commissioner by superannuation providers under the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997; and (iii) statements given to the Commissioner under Division 390 in Schedule 1 to the Taxation Administration Act 1953; and (c) information provided to the Commissioner in relation to the income year in response to requirements by the Commissioner under paragraph 353‑10(1)(a) in Schedule 1 to the Taxation Administration Act 1953 for the purpose of the administration or operation of this Act; and (d) any other information that: (i) is held or was obtained by the Commissioner under or for the purposes of a taxation law (within the meaning of the Income Tax Assessment Act 1997); and (ii) the Commissioner considers is reasonably necessary to make the determination. (2) Paragraph (1)(b) does not apply if: (a) the person dies during the income year; and (b) the trustee of the person's estate requests the Commissioner to make a determination before the statements referred to in that paragraph are given to the Commissioner. Part 4—Payment of the Government co‑contribution 15 Commissioner to determine where the Government co‑contribution payment is to be directed (1) If the Commissioner makes a determination under section 13 that a Government co‑contribution is payable in respect of a person for an income year, the Commissioner must determine whether the co‑contribution is to be paid: (a) to the trustee of a complying superannuation fund for crediting to an account of the person within that fund; or (b) to the provider of an RSA that the person holds for crediting to the RSA; or (c) to the person; or (d) to the person's legal personal representative; or (e) into an account of the person in the Superannuation Holding Accounts Special Account. (2) If the Commissioner makes a determination under paragraph (1)(a) or (b), the Commissioner must also determine which particular account the Government co‑contribution is to be paid into. (3) The Commissioner must make determinations under subsections (1) and (2) in accordance with the regulations made for the purposes of this section. (4) The Commissioner may revoke a determination made under this section if the Commissioner is satisfied that: (a) payment of the Government co‑contribution cannot be effected in accordance with the determination; or (b) it is otherwise appropriate in the circumstances to revoke the determination. (5) The regulations may prescribe the time within which determinations under this section are to be made. 16 Superannuation provider to return Government co‑contribution that cannot be credited to account (1) If: (a) a Government co‑contribution in respect of a person is paid: (i) to the trustee of a complying superannuation fund for crediting to an account of the person within that fund; or (ii) to the provider of an RSA that the person holds for crediting to the RSA; and (b) the trustee or the provider has not credited the co‑contribution to an account of that kind by the end of the 28th day after the day on which the co‑contribution was paid to the trustee or the provider; the trustee or the provider: (c) is liable to