Explanatory Statement
Issued by the Authority of the Minister for Revenue and Assistant TreasurerSuperannuation Industry (Supervision) Act 1993
Superannuation Industry (Supervision) Amendment Regulations 2001 (No. 2)
Section 353 of the Superannuation Industry (Supervision) Act 1993 (the Act) provides that the GovernorGeneral may make regulations for the purpose of the Act.
The Act and the Superannuation Industry (Supervision) Regulations 1994 (Principal Regulations) provide for the regulation of certain superannuation funds, approved deposit funds and pooled superannuation trusts (PSTs) by the Australian Prudential Regulation Authority (APRA), the Australian Securities and Investments Commission and the Australian Taxation Office.
The purpose of these Regulations is to amend the Principal Regulations to provide APRA with discretion to extend the time given to accept forms from trusts that confirm their intention to be recognised as a PST.
PSTs receive concessional taxation treatment and also adhere to specific requirements such as special disclosure requirements and the appointment of an approved trustee.
On 12 July 2000, the Principal Regulations were amended by the Superannuation Industry (Supervision) Amendment Regulations 2000 (No.3) to insert paragraph 1.04(5)(c) in the Principal Regulations. That provision required the trustee of a unit trust that sought to be a PST, or to continue to be treated as a PST, to lodge a 'confirmation of intention' form with APRA. The timeframe for lodging these forms was set in subparagraph 1.04(5)(c)(iii) and was the due date for the first annual return of the PST due after the commencement of the amending regulations (in other words the due date of the first return to be lodged after 12 July 2000). Transitional subregulation 4(3) of the Superannuation Industry (Supervision) Amendment Regulations 2000 (No.3) provided that an entity would cease to be a PST if it failed to lodge its confirmation of intention by the date specified in subparagraph 1.04(5)(c)(iii). APRA believed they knew all the PSTs in existence and therefore would not require a discretion to accept late lodgment.
However, a number of PSTs did not submit 'confirmation of intention' forms within the required timeframe, thereby technically losing their PST status and resultant taxation concessions. In some cases, this was because APRA had failed to notify them of the need to lodge the form.
These amendments provide APRA with the discretion to receive late confirmation of intention forms from those trusts that choose to register as a PST, but did not lodge the forms within the timeframe defined in the original version of subparagraph 1.04(5)(c)(iii).
The Regulations will set out transitional arrangements which apply to trusts which lodge late confirmations of intention.
If a late confirmation of intention was lodged before the proposed Regulations commence, it will be treated under subregulation 4(2) as having effect on and from the date of commencement, and the trust will be regarded as satisfying subparagraph 1.04(5)(c)(iii) from that date. In addition, under subregulation 4(3), the trust will be treated as satisfying subparagraph 1.04(5)(c)(iii) during the period between the date it originally should have lodged its notice of confirmation, under the original version of subparagraph 1.04(5)(c)(iii), and the date of commencement of these Regulations. However the trustee may elect not to be covered for that earlier period if it does not wish the unit trust to be treated as a PST during the period.
If a late confirmation of intention is lodged within a time accepted by APRA after these Regulations commence, then under subregulation 4(2) it will take effect from the date it is lodged, assuming APRA agrees to extend the time for lodgment under the amended regulation. Under subregulation 4(3) the confirmation of intention will also have effect back to the date it originally should have been lodged, unless the trustee chooses that it not apply retrospectively in this way.
Subsection 49(2) of the Acts Interpretation Act 1901 provides that a regulation, or a provision of regulations, which purports to take effect retrospectively (that is prior to the date of notification) will have no effect, unless it can be shown that it will not disadvantage any person (other than the Commonwealth or an authority of the Commonwealth).
No person will be disadvantaged by these Regulations, which commenced on Gazettal.
Details of the Regulations are set out in the Attachment.
Authority: Section 353 of the Superannuation Industry (Supervision) Act 1993.
Proposed Amendments to the Superannuation Industry (Supervision) Regulations 1994
Regulation 1 - Name of Regulations
Regulation 1 provides that these Regulations are the Superannuation Industry (Supervision) Amendment Regulations 2001 (No. 2).
Regulation 2 provides that these Regulations commence on gazettal.
Regulation 3 provides that Schedule 1 amends the Superannuation Industry (Supervision) Regulations 1994 (the Principal Regulations).
Regulation 4 sets out transitional arrangements for trustees which lodge late confirmations of intention under paragraph 1.04(5)(c) of the Regulations, whether they did so before or after the commencement of these regulations.
If a late confirmation of intention was lodged before these the proposed Regulations commence, then the confirmation will be treated as having effect on and from the date of commencement of the Regulations, and the trust will be regarded as satisfying subparagraph 1.04(5)(c)(iii) (which specifies the time for lodgment of the notice of confirmation of intention) from the date of commencement. Under a separate provision, the trust will also be treated as satisfying subparagraph 1.04(5)(c)(iii) during the period between the date it ought to have lodged its notice of confirmation, under the unamended version of subparagraph 1.04(5)(c)(iii), and the date of commencement of the present regulations, unless the trustee elects not to be covered for that period.
If a late confirmation of intention is lodged after the proposed Regulations commence then it will take effect from the date it is lodged, assuming APRA agreed to extend the time for lodgment under the amended regulation. It will also have effect back to the date it originally should have been lodged, unless the trustee chooses that it not apply retrospectively in this way.
Item [1] - Definition of Pooled Superannuation Trust
Item 1 adds a discretionary power to APRA to extend the time given to trusts to lodge forms confirming their intention to be pooled superannuation trusts.