OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS 1987 (REPEALED)

PART IA - REASONABLE BENEFIT LIMITS  

Division 1 - Preliminary  

REGULATION 4B   SPECIAL RULES RELATING TO HAS  

4B(1)   [ Salary not earned during 3 consecutive years ]  

For the purposes of the definition of HAS in subregulation 4A(1) , where a person has earned salary but not during 3 consecutive financial years, that definition applies to:

(a) if the person has earned salary for at least 2 full consecutive financial years - the person ' s average salary for those 2 years; or

(b) if the person has earned salary for at least one full financial year but less than 2 full consecutive financial years - the person ' s salary for that financial year; or

(c) in any other case - the person ' s final annualised salary.

4B(2)   [ Indexation of HAS ]  

Subject to subregulations (4) and (5), where the Commissioner is to calculate a person ' s reasonable benefit limits in relation to a benefit paid, or commencing to be paid, to the person at a particular time (in this subregulation called the commencement time ), the person ' s HAS is to be indexed in accordance with subregulation (3) if any of the following paragraphs applies to the person:

(a) the person had reached the age of 55 years on or before 1 July 1990;

(b) the person had, after reaching the age of 55 years, been engaged in gainful employment during each of at least 3 consecutive financial years;

(c) the person had not, before reaching the age of 65 years:

(i) received an ETP, other than:

(A) an ETP that was paid before 16 February 1990; or

(B) an ETP that was paid on or after that day and before 1 July 1990 from an employer of whom the person was not an associate; or

(C) an ETP that consisted wholly of undeducted contributions, concessional components or non-qualifying components or wholly of a combination of undeducted contributions, concessional components and non-qualifying components;

(D) an ETP that is a result of the commutation of a deferred annuity and is paid within 7 days of the person ' s 65th birthday; or

(E) an ETP that is a result of the commutation of a superannuation pension or annuity the commencement day of which is before 16 February 1990; or

(F) an ETP paid on or after 1 July 1992 to which subsection 27A(12B) or (12E) of the Tax Act applies; or

(G) an ETP paid on or after 1 July 1992 that the Commissioner determines to be in excess of reasonable benefit limits;

that the person has not rolled-over; and

(ii) commenced to receive a superannuation pension or annuity, other than:

(A) a superannuation pension or annuity the commencement day of which is before 16 February 1990; or

(B) a pension or annuity that meets the pension and annuity standards;

(d) the person has received or become entitled to receive an invalidity payment, a disability superannuation pension or a disability annuity;

(e) the person has received or become entitled to receive an approved early retirement scheme payment or a bona fide redundancy payment.

4B(3)   [ Method of indexation ]  

Subject to subregulation (3A), the HAS of a person to whom subregulation (2) applies is to be indexed by:

(a) if paragraph (2)(a) applies - multiplying the person ' s HAS by the index number for the quarter 2 quarters before the quarter in which:

(i) the ETP was paid; or

(ii) the commencement day of the pension or annuity falls;

as the case may be, (in this subregulation called the end quarter ) and dividing the product by:

(iii) the index number for the March quarter in the last financial year on which the person ' s HAS was based; or

(iv) if that year is before the financial year in which the person reached the age of 55 years - the index number for the March quarter in the financial year in which the person reached that age; or

(b) if paragraph (2)(b) applies - multiplying the person ' s HAS by the index number for:

(i) if the person had ceased to be engaged in gainful employment before the financial year in which the benefit was paid or commenced to be paid - the March quarter in the last of the years referred to in that paragraph; or

(ii) if the person is in gainful employment in the financial year when the benefit was paid or commenced to be paid - the end quarter;

(iii) the index number for the March quarter in the last financial year on which the person ' s HAS was based; or

(iv) if that year is before the financial year in which the person reached the age of 55 years - the index number for the March quarter in the financial year in which the person reached that age; or

(c) if paragraph (2)(c) applies - multiplying the person ' s HAS by the index number for the end quarter and dividing the product by the index number for the March quarter in the last financial year on which the person ' s HAS was based; or

(d) if paragraph (2)(d) applies and the benefit was paid before 1 July 1992 - multiplying the person ' s HAS by the index number for the end quarter and dividing the product by the index number for the March quarter in the financial year when the person received, or became entitled to receive, the payment; or

(e) if paragraph (2)(d) applies and the benefit was paid on or after 1 July 1992 - multiplying the person ' s HAS on the day when the benefit is paid or became payable by the index number for the end quarter and dividing the product by the index number for the March quarter in the financial year in which the person received, or became entitled to receive, the payment; or

(f) if paragraph (2)(e) applies and the benefit was paid before 1 July 1992 - multiplying the person ' s HAS by the index number for the end quarter or the March quarter for the financial year 5 years after the financial year in which the person received, or became entitled to receive, the payment, whichever is the earlier, and dividing the product by the index number for the March quarter in the financial year in which the person received, or became entitled to receive, the payment; or

(g) if paragraph (2)(e) applies and the benefit was paid on or after 1 July 1992 - multiplying the person ' s HAS on the day when the benefit is paid, or became payable, by the index number for the end quarter or the March quarter for the financial year 5 years after the financial year in which the person received, or became entitled to receive, the payment (whichever is the earlier) and dividing the product by the index number for the March quarter in the financial year in which the person received, or became entitled to receive, the payment.

4B(3A)   [ HAS where salary decreases ]  

If:

(a) any of the paragraphs of subregulation (2) applies to a person; and

(b) at any time the person ' s salary in respect of a year of income decreases by at least 20 % in relation to a previous year of income; and

(c) the RBL referable to the person ' s HAS before the decrease is greater than the RBL referable to the person ' s HAS after the decrease;

a reference in subregulation (3) to HAS is a reference to the person ' s HAS immediately before the decrease.

4B(4)   [ Indexation not applicable ]  

Subregulation (3) does not apply to a person in relation to a benefit paid or commencing to be paid if:

(a) in a case to which paragraph (2)(b) or (c) applies - the benefit was paid within, or the commencement day of the benefit occurred within, 12 months of the end of the last financial year on which the person ' s HAS was based; or

(b) in a case to which paragraph (2)(d) or (e) applies - the benefit was paid within, or the commencement day of the benefit occurred within, 12 months of the person receiving or becoming entitled to receive the payment referred to in that paragraph; or

(c) that subregulation would result in a reduction of the person ' s HAS.

4B(5)   [ Applicable method of indexation ]  

If more than one of the paragraphs of subregulation (2) applies to a person, the person ' s HAS is to be indexed under the applicable paragraph of subregulation (3) that produces the higher or highest amount.

4B(6)   [ Indexed HAS a multiple of $ 10 ]  

Where an amount worked out under subregulation (3) is not a multiple of $ 10, it is to be increased to the nearest multiple of $ 10.