Income Tax Assessment (1997 Act) Regulations 2021

CHAPTER 3 - SPECIALIST LIABILITY RULES  

PART 3-30 - SUPERANNUATION  

Division 307 - Key concepts relating to superannuation benefits  

Subdivision 307-B - Superannuation lump sums and superannuation income stream benefits  

SECTION 307-70.02   MEANING OF SUPERANNUATION INCOME STREAM  

307-70.02(1)    
For the purposes of subsection 307-70(2) of the Act, a superannuation income stream is:

(a)    an income stream that is taken to be:

(i) an annuity for the purposes of the SIS Act in accordance with subregulation 1.05(1) of the SIS Regulations; or

(ii) a pension for the purposes of the SIS Act in accordance with subregulation 1.06(1) of the SIS Regulations; or

(iii) a pension for the purposes of the RSA Act in accordance with regulation 1.07 of the RSA Regulations; or

(b)    an income stream that:

(i) is an annuity or pension within the meaning of the SIS Act; and

(ii) commenced before 20 September 2007; or

(ba)    

an income stream in respect of which these conditions are satisfied:

(i) the income stream is a defined benefit pension within the meaning of regulation 1.03 of the SIS Regulations; and

(ii) the income stream commenced on or after 20 September 2007; and

(iii) the income stream is provided by a defined benefit fund (within the meaning of regulation 1.03 of the SIS Regulations), or an exempt public sector superannuation scheme (within the meaning of the SIS Act); and

(iv) if the income stream is provided by a defined benefit fund (within the meaning of regulation 1.03 of the SIS Regulations) that is not a public sector superannuation scheme - the fund or scheme has more than 6 members, or had more than 6 members at any time on or before the day the income stream commenced; and

(v) the income stream is not invalidity pay within the meaning of the Defence Force Retirement and Death Benefits Act 1973 ; and

(vi) the income stream is not an invalidity pension under the superannuation scheme established under the Military Superannuation and Benefits Act 1991 ; or

(c)    a deferred superannuation income stream that is taken to be:

(i) an annuity for the purposes of the SIS Act in accordance with subregulation 1.05(1) of the SIS Regulations because the contract for the provision of the income stream meets the standards of subregulation 1.06A(2) of the SIS Regulations; or

(ii) a pension for the purposes of the SIS Act in accordance with subregulation 1.06(1) of the SIS Regulations because the rules for the provision of the income stream meet the standards of subregulation 1.06A(2) of the SIS Regulations; or

(d)    for the purposes of sections 295-385 , 295-390 , 295-395 , 320-246 and 320-247 of the Act - one or more rights (whether contingent or not), to the extent that they are covered by subsection (3) .

307-70.02(1A)    

Paragraphs (1)(a) and (ba) do not apply to any of the following:

(a)    a pension payable under subsection 39(1) of the Defence Force Retirement and Death Benefits Act 1973 if:

(i) that pension is payable because invalidity pay (within the meaning of that Act) was payable to the deceased member mentioned in that subsection; and

(ii) that invalidity pay commenced on or after 20 September 2007;

(b)    a pension payable under subsection 42(1) of the Defence Force Retirement and Death Benefits Act 1973 if:

(i) that pension is payable because invalidity pay (within the meaning of that Act) was payable to a member (as mentioned in subsection 42(3)); and

(ii) that invalidity pay commenced on or after 20 September 2007;

(c)    a pension payable under subsection 43(1) of that Act if:

(i) that pension is payable because invalidity pay (within the meaning of that Act) was payable to a member (as mentioned in subsection 43(3)); and

(ii) that invalidity pay commenced on or after 20 September 2007;

(d)    a pension payable under subrule 42(1) or (3) of the Rules (within the meaning of the Military Superannuation and Benefits Act 1991 ) if:

(i) the deceased retirement pensioner ' s pension mentioned in that subrule was an invalidity pension (within the meaning of those Rules); and

(ii) that invalidity pension commenced on or after 20 September 2007;

(e)    a pension payable under subrule 46(1) of those Rules if the deceased person ' s notional pension mentioned in that subrule was a pension covered by paragraph (d) .

307-70.02(2)    
Subsection (3) applies if:

(a)    immediately before the death of a person (the deceased ), a superannuation interest was supporting a superannuation income stream payable to the deceased; and

(b)    the superannuation income stream did not automatically revert to another person on the death of the deceased; and

(c)    one or more other persons each have a right (whether contingent or not) to be paid an amount that will be a superannuation benefit from the superannuation interest; and

(d)    each such right arises on the death of the deceased, and ceases to exist immediately after the payment of the amount mentioned in paragraph (c) .

307-70.02(3)    
For the purposes of paragraph (1)(d) , this subsection covers each such right, to the extent that the value of the superannuation interest has not increased (other than through investment earnings) on or after the deceased ' s death.

307-70.02(4)    
Subsections (5) and (6) apply if:

(a)    immediately before the death of a person (the deceased ), a superannuation interest was supporting a superannuation income stream payable to the deceased; and

(b)    the superannuation income stream did not automatically revert to another person on the death of the deceased; and

(c)    one or more persons each have a right (whether contingent or not) to commence a new superannuation income stream using an amount applied from the superannuation interest; and

(d)    each such right arises on the death of the deceased, and ceases to exist at the time the relevant new superannuation income stream commences (disregarding paragraph (5)(a) ); and

(e)    each of the new income streams is of a kind mentioned in paragraph (1)(a) .

307-70.02(5)    
For the purposes of sections 295-385 , 295-390 , 295-395 , 320-246 and 320-247 of the Act, in applying paragraph (1)(a) :

(a)    treat each new superannuation income stream mentioned in paragraph (4)(c) as commencing on the death of the deceased; and

(b)    during the period:

(i) starting on the death of the deceased; and

(ii) ending at the time the new superannuation income stream commences (disregarding paragraph (a) );

take account of the value of the superannuation interest only to the extent that the value has not increased (other than through investment earnings) on or after the deceased ' s death.

307-70.02(6)    
For the purposes of subsections (2) and (3) , disregard a right mentioned in paragraph (4)(c) .