House of Representatives

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon Peter Costello MP)

Chapter 6 - Self-managed superannuation funds

Outline of chapter

6.1 Schedule 5 to this Bill amends the Superannuation Industry (Supervision) Act 1993 and other Acts to enhance the regulation of self-managed superannuation funds and to ensure that self-managed superannuation funds comply with their legislative obligations.

6.2 Key changes include:

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streamlined reporting arrangements and the application of administrative penalties for late returns and false or misleading statements;

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clarification of trustee and auditor requirements; and

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other changes to the regulation of self-managed superannuation funds.

6.3 Schedule 5 to the Bill also amends the Fringe Benefits Tax Assessment Act 1986 to remove fringe benefits tax (FBT) from in specie employer contributions to superannuation funds.

Context of amendments

6.4 Trustees of self-managed superannuation funds are required to comply with obligations under superannuation and taxation laws. These include lodging returns, complying with rules on member contributions and benefit payments, and complying with rules on superannuation investments. However, differing requirements under the various laws have resulted in inefficiencies and anomalies in relation to self-managed superannuation funds.

Reporting arrangements

6.5 Under current law, trustees of self-managed superannuation funds are required to lodge two separate returns or statements on different dates. They also pay the self-managed superannuation fund annual supervisory levy separately from their fund's income tax liability.

6.6 Administrative penalties for late returns and for making false or misleading statements do not apply to self-managed superannuation fund regulatory returns.

Trustee and auditor requirements

6.7 Trustee rules do not permit individual trustees of self-managed superannuation funds to receive remuneration for the performance of trustee duties or services. They also prevent a disqualified person from appointing a legal personal representative as a trustee of a self-managed superannuation fund. These trustee rules do not currently apply to directors of a corporate trustee of a self-managed superannuation fund.

6.8 Approved auditors are required to report actual and possible contraventions of the superannuation laws to the Regulator where the contraventions may affect the interests of fund members or beneficiaries. As a result, auditors may be uncertain about which matters should be reported to the Regulator.

Other regulatory changes

6.9 The regulatory provisions of the superannuation laws do not include relevant provisions of the taxation laws.

6.10 The Commissioner of Taxation (Commissioner), as Regulator of self-managed superannuation funds, cannot regulate funds which cease to be self-managed superannuation funds.

Fringe benefits tax

6.11 Employer contributions in cash to superannuation funds for the benefit of an employee are not subject to FBT. However, in specie contributions made by an employer are subject to FBT.

Summary of new law

6.12 The Government's superannuation reforms, Simplified Superannuation , announced on 5 September 2006 included specific proposals relating to the regulation of self-managed superannuation funds.

6.13 The number of self-managed superannuation funds has increased significantly over the past decade. Effective regulation of self-managed superannuation funds is crucial to the effective administration of Simplified Superannuation in the context of the growing number and size of such funds.

6.14 Improvements to the regulatory processes for self-managed superannuation funds will make their administration easier and simpler for trustees, reduce compliance costs and enhance self-managed superannuation fund compliance with both the current superannuation laws and the Simplified Superannuation reforms.

Reporting arrangements

6.15 Trustees of self-managed superannuation funds will lodge a single annual return and will make a single payment for both the supervisory levy and their fund's income tax liability.

6.16 Administrative penalties will apply to self-managed superannuation funds for failure to lodge documents on time and for making false or misleading statements on approved forms.

Trustee and auditor requirements

6.17 Trustee rules in respect of remuneration and legal personal representatives that apply to individual trustees will apply consistently to directors of a corporate trustee of a self-managed superannuation fund.

6.18 The reporting obligations of approved auditors will be clarified, so that auditors report on specified matters to the Regulator.

Other regulatory changes

6.19 The regulation of self-managed superannuation funds is improved by including provisions of the taxation laws, concerning both false or misleading statements and also superannuation fund reporting obligations, as regulatory provisions of the Superannuation Industry (Supervision) Act 1993 .

6.20 The Commissioner will continue to regulate funds which have ceased to be self-managed superannuation funds until a person who holds a registrable superannuation entity licence is appointed as trustee of the fund.

Fringe benefits tax

6.21 FBT is being removed from in specie contributions to superannuation funds made by an employer for the benefit of its employees.

Comparison of key features of new law and current law

Detailed explanation of new law

Reporting arrangements

Definition of 'taxation law'

6.22 Amendments to the definition of 'taxation law' in the Income Tax Assessment Act 1997 (ITAA 1997) and the Taxation Administration Act 1953 (TAA 1953) facilitate the streamlined arrangements for self-managed superannuation funds, including:

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lodgement of a single annual return;

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collection and recovery of the supervisory levy; and

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application of administrative penalties to self-managed superannuation funds.

6.23 Prior to these amendments, the definition of 'taxation law' in the ITAA 1997 and the TAA 1953 referred to any Act of which the Commissioner has the general administration.

6.24 Most of the legislative obligations of self-managed superannuation funds are contained in the Superannuation Industry (Supervision) Act 1993 , and the Commissioner has the general administration of the Superannuation Industry (Supervision) Act 1993 to the extent it relates to self-managed superannuation funds (paragraphs 6(1)(e) and (f) of the Superannuation Industry (Supervision) Act 1993 ). It has long been considered that these specified provisions of the Superannuation Industry (Supervision) Act 1993 are taxation laws for the purposes of the ITAA 1997 and the TAA 1953.

6.25 However, to avoid doubt, the definition of 'taxation law' in the ITAA 1997 is being amended to include a part of an Act to the extent to which the Commissioner has the general administration of that Act, and regulations under such a part of an Act. [ Schedule 5, items 6 and 7, subsection 995 - 1(1 ) of the ITAA 1997 ]

6.26 These amendments clarify that the previous definitions of taxation law in the ITAA 1997 and the TAA 1953 included the Superannuation Industry (Supervision) Act 1993 to the extent that the Commissioner had general administration of that Act. To avoid the implication that there has been a substantive change in the meaning of taxation law, the amended definition is to be disregarded when interpreting the provision as it applied before the 2007-08 income year. [ Schedule 5, item 8 ]

6.27 The definition of 'taxation law' in the TAA 1953 is replaced by the amended definition in the ITAA 1997. This ensures that there is only one definition of 'taxation law'. [ Schedule 5, item 31, subsection 2(1 ) of the TAA 1953 ]

6.28 To avoid the implication that there has been a substantive change in the meaning of 'taxation law', the amended definition in the TAA 1953 is to be disregarded when interpreting the provision as it applied before the 2007-08 income year. [ Schedule 5, item 32 ]

6.29 A definition of 'self-managed superannuation fund' is also being inserted into the ITAA 1997 which refers to the definition of 'self-managed superannuation fund' in the Superannuation Industry (Supervision) Act 1993 . [ Schedule 10, item 66, subsection 995 - 1(1 ) of the ITAA 1997 ]

Single annual return

6.30 Trustees of a self-managed superannuation fund are required to lodge a single annual return. The single annual return consists of the fund's income tax return, regulatory return, and a member contribution statement in respect of each member. This will result in a single lodgement date for the combined income tax return, regulatory return and member contribution statement.

6.31 The rationalisation of multiple reporting requirements is expected to reduce compliance costs for self-managed superannuation fund trustees, increase self-managed superannuation fund lodgement compliance, improve the quality of data provided to the Commissioner on the return and contribute to the effective administration of the contributions caps under the Simplified Superannuation reforms (see Chapter 7).

Supervisory levy

6.32 All superannuation funds, including self-managed superannuation funds, are subject to an annual supervisory levy designed to fund the regulatory costs of ensuring funds comply with their superannuation obligations. Administrative changes enable the payment of the supervisory levy to be incorporated into the payment of the fund's income tax liability.

6.33 The amended definition of 'taxation law' confirms that the collection and recovery provisions of the TAA 1953 apply to the supervisory levy, consistent with the processes for the self-managed superannuation fund's income tax liability.

6.34 The current penalty for the late payment of the supervisory levy is being repealed and replaced by the general interest charge (GIC). [ Schedule 5, item 26, section 15DC of the Superannuation ( Self Managed Superannuation Funds ) Taxation Act 1987 ]

6.35 The GIC provisions are contained in the TAA 1953. The supervisory levy is included in an index of provisions of Acts under which the GIC arises, other than provisions in the ITAA 1936. [ Schedule 5, item 33, subsection 8AAB(5 ), item 13A in the table of the TAA 1953 ]

6.36 The application of the GIC to the late payment of the supervisory levy is consistent with the treatment of the late payment of the fund's income tax liabilities and is collected in the same way.

6.37 The reduction of multiple payment obligations eliminates the need for self-managed superannuation fund trustees to make two separate payments, while the streamlining of the late payment arrangements encourages timely payment of the supervisory levy. Both these initiatives are expected to result in simpler administration for trustees and reduced compliance costs.

6.38 As the late payment penalty for the supervisory levy is repealed, the following consequential amendments are required:

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The definition of 'late payment penalty' is repealed [ Schedule 5, item 25, section 15DAA of the Superannuation ( Self Managed Superannuation Funds ) Taxation Act 1987 ].

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The definition of 'general interest charge' is inserted [ Schedule 5, item 24, section 15DAA of the Superannuation ( Self Managed Superannuation Funds ) Taxation Act 1987 ].

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The reference to the late payment penalty is removed from the levy recovery provision [ Schedule 5, item 27, section 15DD of the Superannuation ( Self Managed Superannuation Funds ) Taxation Act 1987 ].

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References to the late payment penalty are removed from the levy payment provision [ Schedule 5, items 28 and 29, section 15DE and Note of the Superannuation ( Self Managed Superannuation Funds ) Taxation Act 1987 ].

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The reference to the late payment penalty is removed from the levy remission provision [ Schedule 5, item 30, section 15DF of the Superannuation ( Self Managed Superannuation Funds ) Taxation Act 1987 ].

6.39 These consequential amendments to remove references to the penalty for the late payment of the levy do not preclude the Commissioner's general recovery power under the TAA 1953.

Administrative penalties

6.40 Administrative penalties in the TAA 1953 for failing to meet certain obligations apply to trustees of self-managed superannuation funds. Administrative penalties enable the Commissioner to take timely and effective action for breaches of a trustee's obligations.

Penalty for failing to lodge documents on time

6.41 An administrative penalty for failing to lodge documents on time applies to trustees of self-managed superannuation funds. The penalty will apply, for example, where the trustee of a self-managed superannuation fund fails to lodge the fund's single annual return on time. [ Schedule 5, item 34, subsection 286 - 75(5 ) of the TAA 1953 ]

6.42 Where the penalty is imposed on a corporate trustee, the directors of the body corporate at the time the body corporate becomes liable to the penalty are jointly and severally liable to pay the amount of the penalty. [ Schedule 5, item 34, subsection 286 - 75(6 ) of the TAA 1953 ]

6.43 The current penalty for the late lodgement of a self-managed superannuation fund's regulatory return is being repealed. [ Superannuation ( Self Managed Superannuation Funds ) Supervisory Levy Amendment Bill 2006 ]

6.44 The amendments extend the administrative penalty for the late lodgement of documents under taxation laws to self-managed superannuation funds and enable the Commissioner to collect the administrative penalty from the trustees or the directors of the corporate trustee. The amendments are expected to improve self-managed superannuation fund lodgement compliance.

Penalty for false or misleading statements

6.45 The current administrative penalty in the TAA 1953 for making false or misleading statements is imposed where the statement results in a tax shortfall. This penalty is not appropriate for self-managed superannuation funds, where false or misleading statements in relation to obligations under the Superannuation Industry (Supervision) Act 1993 may not result in a tax shortfall.

6.46 An administrative penalty for false or misleading statements, including where the statements do not result in a tax shortfall, is being introduced for trustees of self-managed superannuation funds. [ Schedule 5, item 35, section 288 - 85 of the TAA 1953 ]

6.47 The penalty applies where the trustee makes a false or misleading statement in relation to the fund in an approved form given to the Commissioner or to another entity. The statement must be false or misleading in a significant way, either because of what is included in the statement or because of information omitted from the statement. [ Schedule 5, item 35, subsection 288 - 85(2 ) of the TAA 1953 ]

6.48 The penalty may be imposed on a trustee of a self-managed superannuation fund or on a trustee of a former self-managed superannuation fund which remains under the Commissioner's regulation (see paragraphs 6.69 to 6.76). [ Schedule 5, item 35, subsection 288 - 85(1 ) of the TAA 1953 ]

6.49 The maximum penalty is 20 penalty units. [ Schedule 5, item 35, subsection 288 - 85(2 ) of the TAA 1953 ]

6.50 Where a penalty is imposed on a corporate trustee, the directors of the body corporate at the time the body corporate becomes liable to the penalty are jointly and severally liable to pay the amount of the penalty. [ Schedule 5, item 35, subsections 288 - 85(3 ) and ( 4 ) of the TAA 1953 ]

6.51 The amendments enable the Commissioner to impose an administrative penalty on trustees of self-managed superannuation funds for making false or misleading statements on approved forms where the statements do not result in a tax shortfall. The penalty is expected to ensure the accuracy of information reported to the Commissioner and to other entities and to provide the Commissioner with greater flexibility in administering the law.

Trustee and auditor requirements

Trustee requirements

6.52 Directors of a corporate trustee cannot receive remuneration for the performance of trustee duties or services. This rule applies to directors of a corporate trustee of single member funds and of funds with more than one member. [ Schedule 5, items 11 to 14, paragraphs 17A(1 )( g ) and ( 2 )( d ) of the Superannuation Industry ( Supervision ) Act 1993 ]

6.53 A person, in the capacity of legal personal representative of a disqualified person, cannot be a director of a body corporate that is a trustee of a self-managed superannuation fund. [ Schedule 5, item 15, subsection 17A(10 ) of the Superannuation Industry ( Supervision ) Act 1993 ]

6.54 These amendments extend the rules which apply to individual trustees to directors of a corporate trustee, ensuring consistent treatment in respect of trustee remuneration and legal personal representatives between individual trustees and directors of a corporate trustee.

6.55 The trustee rules relating to trustee remuneration and legal personal representatives form part of the basic conditions which a superannuation fund must satisfy in order to be a self-managed superannuation fund under section 17A of the Superannuation Industry (Supervision) Act 1993 . A self-managed superannuation fund which breaches these rules may cease to be a self-managed superannuation fund (see paragraphs 6.69 to 6.76).

Auditor requirements

6.56 Approved auditors and actuaries of self-managed superannuation funds are required to report to the Regulator on matters specified in the approved form. [ Schedule 5, item 22, paragraph 129(3 )( c ) of the Superannuation Industry ( Supervision ) Act 1993 ]

6.57 This provision replaces the requirement under which approved auditors and actuaries of self-managed superannuation funds reported matters that may affect the interests of fund members or beneficiaries.

6.58 The approved form may refer to a class or classes of matters, rather than specific matters. [ Schedule 5, item 23, subsection 129(3AA ) of the Superannuation Industry ( Supervision ) Act 1993 ]

6.59 An example of a class of matters would be matters relating to specific time periods. This would enable the Regulator to include in the approved form, for example, matters to be reported in relation to the fund's first year (or first full year) of operation. Targeting self-managed superannuation funds at, or very shortly after, their establishment would reduce the risk of non-compliance during the fund's future operations and allow the Regulator to take appropriate action at an earlier stage.

6.60 The matters able to be specified in the approved form are limited to contraventions of the Superannuation Industry (Supervision) Act 1993 and its regulations and to matters relating to the annual audit of the fund's accounts.

6.61 These amendments apply only to self-managed superannuation funds and do not apply to approved auditors and actuaries of other regulated superannuation funds. [ Schedule 5, item 20, paragraph 129(3 )( b ) of the Superannuation Industry ( Supervision ) Act 1993 ]

Other regulatory changes

Regulatory provisions

6.62 The false or misleading statement provisions (see paragraphs 6.45 to 6.51) and the superannuation fund reporting requirements of the TAA 1953 are included (but only for self-managed superannuation funds) as regulatory provisions of the Superannuation Industry (Supervision) Act 1993 . [ Schedule 5, item 16, paragraph 38A(ab ) of the Superannuation Industry ( Supervision ) Act 1993 ]

6.63 A contravention of these provisions is a contravention of a regulatory provision regardless of whether it is an offence or a contravention of a civil penalty provision. [ Schedule 5, item 18, paragraph 39(1 )( c ) of the Superannuation Industry ( Supervision ) Act 1993 ]

6.64 A trustee of a self-managed superannuation fund is considered to contravene the false or misleading statement provisions by making false or misleading statements. [ Schedule 5, item 19, subsection 39(1B ) of the Superannuation Industry ( Supervision ) Act 1993 ]

6.65 That is, conduct which may result in a penalty for false or misleading statements, regardless of whether the penalty is actually imposed by the Commissioner, is treated as a contravention of the false or misleading statement provisions of the TAA 1953.

6.66 The superannuation fund reporting requirements under Simplified Superannuation are explained in Chapter 7 of this explanatory memorandum. In relation to self-managed superannuation funds, trustees are required to lodge a member contribution statement in respect of each member. The member contribution statement will be included as part of the fund's single annual return. Trustees of self-managed superannuation funds may also be required to report to other entities, for example for roll-over purposes.

6.67 The Regulator may take appropriate action in response to a contravention of the regulatory provisions, including removing a fund's complying status under section 42A of the Superannuation Industry (Supervision) Act 1993 .

6.68 The inclusion of the false or misleading statement provisions and the superannuation fund reporting requirements in the regulatory provisions supports the effective administration of the Simplified Superannuation reforms relating to member contributions and the contributions caps for self-managed superannuation funds.

Regulation of former self-managed superannuation funds

6.69 A superannuation fund is a self-managed superannuation fund if it satisfies certain conditions specified in section 17A of the Superannuation Industry (Supervision) Act 1993 . Under current law, if the fund no longer satisfies any of these conditions, it ceases to be a self-managed superannuation fund six months after it failed to meet the condition, and is no longer regulated by the Commissioner (it ceases to be a self-managed superannuation fund immediately if the breach relates to the admission of a new member). The Australian Prudential Regulation Authority (APRA) becomes the regulator of the former self-managed superannuation fund.

6.70 A fund which has ceased being a self-managed superannuation fund will continue to be treated as a self-managed superannuation fund, for the purposes of sections 6, 42 and 42A of the Superannuation Industry (Supervision) Act 1993 . The fund will continue to be treated as a self-managed superannuation fund for the purposes of these provisions until a person who holds a registrable superannuation entity licence is appointed as trustee. [ Schedule 5, item 9, subsection 10(1 ) and item 10, subsection 10(4 ) of the Superannuation Industry ( Supervision ) Act 1993 ]

6.71 The application of section 6 of the Superannuation Industry (Supervision) Act 1993 to former self-managed superannuation funds enables the Commissioner to continue to regulate such funds, removing the need to change regulators to APRA and allowing the Commissioner to take timely and appropriate action where necessary.

6.72 The complying superannuation fund provisions (sections 42 and 42A of the Superannuation Industry (Supervision) Act 1993 ) determine whether a fund is a complying superannuation fund. Different compliance tests apply to self-managed superannuation funds and non-self-managed superannuation funds. In particular, the compliance test applying to self-managed superannuation funds requires all trustees to comply with the regulatory provisions. This test will now apply to all funds regulated by the Commissioner, including former self-managed superannuation funds.

6.73 A former self-managed superannuation fund will remain subject to all remaining provisions of the Superannuation Industry (Supervision) Act 1993 that apply to regulated superannuation funds that are not self-managed superannuation funds.

6.74 A former self-managed superannuation fund remains under the Commissioner's regulation until a registrable superannuation entity licensee is appointed as trustee. At the time that a registrable superannuation entity licensee is appointed as trustee, APRA becomes the fund's regulator.

6.75 Alternatively, the trustees of the former self-managed superannuation fund may decide to wind up the fund.

6.76 If a registrable superannuation entity licensee is not appointed as trustee, and the fund is not wound up, the Commissioner, as Regulator, may take appropriate action. The Commissioner's actions could include suspending or removing a trustee and appointing an acting trustee, or removing a fund's complying status. The fund's complying status may be able to be removed because the trustees are in breach of the registrable superannuation entity provisions in the Superannuation Industry (Supervision) Act 1993 .

Example 6.1

Demelza-Rose and John are members of their self-managed superannuation fund. Demelza-Rose resigns her position as a trustee of the fund, but remains a member.

The self-managed superannuation fund has breached one of the basic conditions of being a self-managed superannuation fund by having a member who is not a trustee.

The fund continues to be a self-managed superannuation fund until six months after Demelza-Rose ceased to be a trustee (subsection 17A(4) of the Superannuation Industry (Supervision) Act 1993 ). At the end of the six months, the fund will continue to be regulated by the Commissioner until the fund either appoints a registrable superannuation entity licensee as trustee or is wound up.

The fund may rectify the breach by Demelza-Rose becoming a trustee again, so that the fund again satisfies the conditions to be a self-managed superannuation fund. Alternatively, the fund may appoint a registrable superannuation entity licensee as trustee, in which case the Commissioner's regulation ceases.

If the fund takes no action, the Commissioner may take appropriate action, including:

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suspending or removing a trustee and appointing an acting trustee; or

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making the fund non-complying under section 42A of the Superannuation Industry (Supervision) Act 1993 .

Fringe benefits tax

6.77 The definition of 'fringe benefit' in the Fringe Benefits Tax Assessment Act 1986 in respect of a resident superannuation fund is amended to refer to 'contribution' rather than 'payment of money' or 'payment'. [ Schedule 5, items 1 and 2, subparagraph 136(1 )( j )( i ) of the Fringe Benefits Tax Assessment Act 1986 ]

6.78 The definition is also amended in respect of a non-resident superannuation fund. [ Schedule 5, items 3 to 5, subparagraph 136(1 )( j )( ii ) of the Fringe Benefits Tax Assessment Act 1986 ]

6.79 These amendments ensure that contributions made by an employer to a resident superannuation fund or to a non-resident superannuation fund for the benefit of an employee are specifically excluded from the definition of 'fringe benefit'. Consequently, such contributions are not subject to FBT.

6.80 A contribution may be either money or an in specie contribution, for example shares or real property.

6.81 The amendments provide consistent FBT treatment between employer contributions made in the form of money and in specie contributions made by employers.

6.82 Trustees of superannuation funds, and particularly self-managed superannuation funds, need to ensure that, in accepting in specie employer contributions, they do not contravene the investment rule that prohibits the intentional acquisition of an asset from a related party of the fund, including a member of the fund.

Application

6.83 The majority of the amendments apply to the 2007-08 income year, and later income years. For most self-managed superannuation funds, the 2007-08 income year commences on 1 July 2007, however, there may be some self-managed superannuation funds whose 2007-08 income year commences after 1 July 2007. [ Schedule 5, item 36 and Superannuation ( Self Managed Superannuation Funds ) Supervisory Levy Amendment Bill 2006 ]

6.84 The amendments providing an exemption from FBT for in-specie contributions to superannuation, the extension of the lodgement penalties to directors of corporate trustees, and the false and misleading statement provisions apply from 1 July 2007. [ Schedule 5, item 36 ]