Income Tax Assessment (1997 Act) Regulations 2021

CHAPTER 3 - SPECIALIST LIABILITY RULES  

PART 3-30 - SUPERANNUATION  

Division 292 - Excess non-concessional contributions  

Subdivision 292-C - Excess non-concessional contributions tax  

SECTION 292-90.02   ALLOCATIONS FROM RESERVES - ALLOCATIONS THAT AREN ' T INCLUDED IN YOUR NON-CONCESSIONAL CONTRIBUTIONS  

292-90.02(1)    
For the purposes of paragraph 292-90.01(2A)(c) , this section applies in relation to the allocation of an amount in a complying superannuation plan for you for a financial year from a reserve if any of subsections (2) to (6) of this section applies.

Note:

The result of this section applying in relation to an allocation is that the allocation does not satisfy the condition in subsection 292-90.01(2A) for inclusion in your non-concessional contributions for a financial year.

292-90.02(2)    
This subsection applies if:

(a)    the allocation of the amount for you is part of the allocation, in a fair and reasonable manner, of amounts to accounts for:

(i) every member of the complying superannuation plan; or

(ii) if you are member of a class of members of the complying superannuation plan, and the reserve relates only to that class of members - every member of the class; and

(b)    the total amount that is allocated for you for the financial year as part of allocations to which paragraph (a) applies is less than 5% of the value of your interest in the complying superannuation plan at the time of allocation; and

(c)    the amount would not be assessable income of the complying superannuation plan if it were made as a contribution.

292-90.02(3)    
This subsection applies if:

(a)    the reserve is a pension reserve of the complying superannuation plan; and

(b)    the amount is allocated from the reserve for you to satisfy a pension liability; and

(c)    that liability is paid during the financial year.

292-90.02(4)    
This subsection applies if:

(a)    the reserve is a pension reserve of the complying superannuation plan; and

(b)    the reserve is used to discharge all or part of a liability of the plan to pay a superannuation income stream benefit from a superannuation income stream of which you are the recipient; and

(c)    the superannuation income stream is commuted or ceases; and

(d)    the commutation or cessation is not a result of the death of the primary beneficiary; and

(e)    the amount is allocated from the reserve for you as a result of you having been (before the commutation or cessation) the recipient of the superannuation income stream; and

(f)    if the reserve relates to more than one superannuation income stream - the allocation is fair and reasonable having regard to:

(i) for each superannuation income stream that has not been commuted or ceased - the value of the interest that supports the superannuation income stream; and

(ii) for each superannuation income stream that has been commuted or ceased - the value of the interest, that supported the superannuation income stream, immediately before the superannuation income stream was commuted or ceased.

292-90.02(5)    
This subsection applies if:

(a)    the reserve is a pension reserve of the complying superannuation plan; and

(b)    the amount is allocated from the reserve for you as a result of the commutation of a superannuation income stream; and

(c)    the commutation is a result of the death of the primary beneficiary; and

(d)    you are a death benefits dependant of the primary beneficiary; and

(e)    the amount is allocated from the reserve for you:

(i) to discharge liabilities of the plan in respect of a superannuation income stream benefit that is payable by the plan as a result of the death of the primary beneficiary; and

(ii) as soon as practicable on or after the commutation.

292-90.02(6)    
This subsection applies if:

(a)    the reserve is a pension reserve of the complying superannuation plan; and

(b)    the amount is allocated from the reserve for you as a result of the commutation of a superannuation income stream; and

(c)    the commutation is a result of the death of the primary beneficiary; and

(d)    as soon as practicable on or after the commutation, the amount is:

(i) allocated for you; and

(ii) paid as a superannuation lump sum and a superannuation death benefit.

Meaning of pension reserve

292-90.02(7)    
A reserve is a pension reserve of a complying superannuation plan at a particular time if the reserve is used at that time solely for the purpose (the pension liability purpose ) of enabling the plan to discharge all or part its pension liabilities (contingent or not) as soon as they become due.

292-90.02(8)    
To avoid doubt, for the purposes of subsection (7) , if:

(a)    a reserve of a complying superannuation plan is used for the purpose of enabling the plan to discharge all or part of a liability of the plan to pay a superannuation income stream benefit from a superannuation income stream; and

(b)    the superannuation income stream is commuted or otherwise ceases; and

(c)    an amount is allocated from the reserve for a person as a result of the person having been (before the commutation or cessation) the recipient of the superannuation income stream; and

(d)    immediately before the commutation or cessation, the reserve was a pension reserve;

the allocation is taken to be a use of the reserve for the pension liability purpose.