Taxation Laws Amendment (Superannuation) Act 1992 (208 of 1992)
Part 2 AMENDMENT OF THE INCOME TAX ASSESSMENT ACT 1936
Division 11 Amendments relating to reasonable benefit limits (RBLs)
60 Before Division 15 of Part III of the Principal Act the following Division is inserted
"Division 14-Reasonable benefit limits (RBLs)
"Subdivision A-Objects, simplified outline and example
Objects of Division
"140. The objects of this Division are:
(a) to provide for a system of reasonable benefit limits (RBLs) applicable to certain eligible termination payments (ETPs), superannuation pensions and annuities; and
(b) to require the payer of such an ETP, pension or annuity to give the Commissioner information about the ETP, pension or annuity; and
(c) to provide for the Commissioner to determine the extent to which the ETP, pension or annuity exceeds the recipient's RBLs; and
(d) in the case of an ETP which exceeds the recipient's RBLs-to generate an excessive component, which is included in assessable income under subsection 27B(3) and not subject to any concessional tax treatment; and
(e) in the case of a pension or annuity which exceeds the recipient's RBLs-to generate an excessive amount, which is used to work out the proportion (if any) of the pension or annuity that is rebatable under Subdivision AAB of Division 17.
Simplified outline (Outline)
"140A.(1) The following is a simplified outline of the scheme of this Division.
(Step 1-payer of ETP, pension or annuity notifies Commissioner)
"(2) The payer of an ETP, superannuation pension or annuity must give the Commissioner information about the ETP, pension or annuity (section 140M). The payer is not required to notify the Commissioner if the ETP, pension or annuity does not count towards the recipient's RBLs. Section 140ZC sets out the benefits which count towards the recipient's RBLs. The payer is taken not to have paid an ETP to the extent to which the ETP is rolled-over (section 140D).
(Step 2-Commissioner determines extent to which the ETP, pension or annuity exceeds the recipient's RBLs)
"(3) Subdivision D provides for the Commissioner to determine the extent to which the ETP, pension or annuity exceeds the recipient's RBLs.
(Step 3-Method of determining extent to which the ETP, pension or annuity ('current benefit') exceeds the recipient's RBLs)
Current benefit in excess of recipient's RBLs
TABLE OMITTED
Current benefit not in excess of recipient's RBLs
TABLE OMITTED
"(4) The method of determining the extent to which the ETP, pension or annuity ('current benefit') exceeds the recipient's RBLs is set out in section 140ZA.
The method may be summarised as follows:
(a) work out the RBL amount of the ETP, pension or annuity (see Subdivision H);
(b) work out the sum of the adjusted RBL amounts of previous benefits (see subsections 140ZA(4) and (5));
(c) work out whether the ETP, pension or annuity is to be assessed against the recipient's lump sum RBL or the recipient's pension RBL (see subsection 140ZA(3) and section 140ZF);
(d) work out the amount of whichever of the lump sum RBL or the pension RBL is applicable (see Subdivision G);
(e) apply the RBL formula set out in subsection 140ZA(3), namely:
RBL amount of current benefit + Sum of adjusted RBL amounts of previous benefits – Applicable RBL
(f) if the amount ('formula amount') calculated using the RBL formula exceeds 0, then:
(i) the ETP, pension or annuity exceeds the recipient's RBLs; and
(ii) the amount of that excess is equal to so much of the RBL amount of the ETP, pension or annuity as does not exceed the formula amount;
(g) if the formula amount does not exceed 0, the ETP, pension or annuity is not in excess of the recipient's RBLs.
Example of how to determine whether a benefit is in excess of the recipient's RBLs
(Typical example)
"140B.(1) This section sets out how to determine whether a benefit exceeds the recipient's RBLs in a typical case involving a 61-year old person who receives a retirement lump sum (ETP) from an employer-sponsored superannuation fund. The person retires on31 December 1994 at the end of a 10-year period of employment. All contributions to the superannuation fund were made by the person's employer. The amount of the ETP is $500,000. The ETP consists wholly of the taxed element of the post-June 83 component of the ETP. The person has not received any previous benefits which count towards the person's RBLs.
The person is considering the following options:
(a) taking the whole of the ETP (and not rolling-over any of the ETP);
(b) rolling-over the whole of the ETP in the purchase from a life assurance company of an annuity which meets the pension and annuity standards.
(Option (a)-taking the whole of the ETP (and not rolling-over any of the ETP))
"(2) If the person takes the whole of the ETP (and does not roll-over any of the ETP), the RBL amount of the ETP is $500,000(section 140ZH). The ETP will be assessed against the person's lump sum RBL ($400,000 for 1994-95). The result of applying the RBL formula is as follows:
$500,000 + 0 - $400,000 = $100,000
$100,000 exceeds 0, so the ETP is in excess of the person's RBLs. The amount of that excess is $100,000.
(Option (b)-rolling-over the ETP in the purchase from a life assurance company of an annuity which meets the pension and annuity standards)
"(3) If the person rolls-over the ETP in the purchase from a life assurance company of an annuity which meets the pension and annuity standards, the benefit to be assessed against the person's RBLs is the annuity instead of the ETP. The RBL amount of the annuity is $500,000, that is, the amount of the ETP rolled-over to purchase the annuity (section 140ZM). The annuity is assessed against the person's pension RBL ($800,000 for 1994-95). The result of applying the RBL formula is as follows:
$500,000 + 0 - $800,000 = -$300,000
Since the amount calculated using the RBL formula does not exceed 0, the annuity is not in excess of the person's RBLs.
"Subdivision B-Interpretation
Interpretation
"140C. In this Division, unless the contrary intention appears:
'ADF' means an approved deposit fund within the meaning of section 27A;
'annuity' means an annuity (within the meaning of section 3 of the Occupational Superannuation Standards Act 1987) purchased wholly or partly with rolled-over amounts;
'associate' has the same meaning as in section 26AAB;
'benefit', in relation to a person, means:
(a) a superannuation pension payable to the person; or
(b) an annuity payable to the person; or
(c) an ETP made in relation to the person;
'capital value' has the meaning given by sections 140ZO and 140ZP;
'commencement day', in relation to a superannuation pension or an annuity, means the first day of the period to which the first payment of the pension or annuity relates;
'continuously non-complying ADF' has the same meaning as in section 27A;
'data processing device' means any article or material (for example, a disc) from which information is capable of being reproduced with or without the aid of any other article or device;
'deferred annuity' means an annuity that is not presently payable;
'disability superannuation pension' means a superannuation pension payable to a person because of the disability of the person, where 2 legally qualified medical practitioners have certified that the disability is likely to result in the person being unable ever to be employed in a capacity for which the person is reasonably qualified because of education, experience or training;
'eligible service period', in relation to an ETP, has the same meaning as in section 27A;
'eligible service period', in relation to a superannuation pension payable to a person by the trustees of a superannuation fund, means:
(a) except where paragraph (b) (which deals with roll-overs) applies-the period:
(i) beginning on whichever is the earlier of:
(A) the day on which the person joined the fund; or
(B) the first day of the period of employment to which the pension relates (including any qualifying period before the person was able to join the fund and any period during which the person was not a member of the fund); and
(ii) ending at the end of the commencement day of the pension; or
(b) if:
(i) the whole or a part of the capital value of the pension is attributable to an ETP the whole or a part of which had been rolled-over into the fund; and
(ii) the eligible service period of the ETP begins on an earlier day than the beginning of the period that would be the eligible service period of the pension under paragraph (a);
the period:
(iii) beginning on that earlier day; and
(iv) ending at the end of the commencement day of the pension;
'employment' includes the holding of any office, and 'employee' and
'employer' have corresponding meanings;
'ETP' means an eligible termination payment within the meaning of section 27A, but does not include an ISC-directed commutation payment within the meaning of that section as in force immediately before the commencement of this section;
'excessive amount', in relation to a superannuation pension or an annuity, means so much of the RBL amount of the pension or annuity as the Commissioner has determined under subsection 140R(1) exceeds the recipient's RBLs;
'excessive component', in relation to an ETP, means so much of the ETP as the Commissioner has determined under subsection 140R(1) exceeds the recipient's RBLs;
'final determination' means a determination under subsection 140R(1);
'immediate annuity' means an annuity that is presently payable;
'index number', in relation to a quarter, means the amount of the full-time adult average weekly ordinary time earnings first published by the Australian Statistician for the middle month of that quarter;
'interim determination' means an interim determination under section 140T;
'life assurance company' has the same meaning as in section 27A;
'lump sum RBL' has the meaning given by sections 140ZD and 140ZE;
'non-qualifying component' has the same meaning as in section 27A;
'payer' means a person or other entity (other than a continuously non-complying ADF) that makes, or is liable to make, a payment of a benefit;
'pension' has the same meaning as in section 3 of the Occupational Superannuation Standards Act 1987;
'pension and annuity standards' has the meaning given by section 140L;
'pension RBL' has the meaning given by sections 140ZD and 140ZE;
'pension valuation factor' means the factor ascertained in accordance with the regulations;
'qualifying portion' has the meaning given by section 140ZG;
'quarter' means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December;
'RBL amount', in relation to a benefit, has the meaning given by whichever provision of Subdivision H is applicable;
'rebatable ETP annuity' has the same meaning as in section 159SJ;
'rebatable proportion' has the same meaning given by section 140ZQ;
'rebatable superannuation pension' has the same meaning as in section 159SJ;
'recipient':
(a) in relation to an ETP-means the person in relation to whom the ETP is made; or
(b) in relation to a superannuation pension or an annuity-means the person to whom the pension or annuity is payable;
'registered organisation' has the same meaning as in section 27A;
'residual capital value' has the same meaning as in section 27A;
'rolled-over' has the same meaning as in section 27A;
'rolled-over amount' has the same meaning as in section 27A;
'superannuation fund' has the same meaning as in section 27A;
'superannuation pension' means a pension payable from a superannuation fund;
'tax file number' has the same meaning as in Part VA;
'trustee' includes a person who is a trustee for the purposes of Part IX;
'undeducted purchase price' has the same meaning as in section 27A.
Payer deemed not to make an ETP to the extent to which ETP is rolled-over
"140D. For the purposes of this Division (other than section 140Q), a person is taken not to make an ETP in relation to another person to the extent to which the ETP is rolled-over.
ETPs taken to be paid from superannuation fund
"140E. Subsection 27A(17) applies for the purposes of this Division in a corresponding way to the way in which it applies for the purposes of Subdivision AA of Division 2.
ETPs-retained amounts
"140F.(1) Subject to subsection (2) of this section, section 27AC applies for the purposes of this Division in a corresponding way to the way in which it applies for the purposes of Subdivision AA of Division 2.
"(2) Section 27AC has effect for the purposes of this Division as if it applied to ETPs made before 1 July 1992.
Excessive component of ETP to be ignored in working out other components
"140G. A reference in this Division to:
(a) the taxed element of the retained amount of the post-June 83 component of an ETP; or
(b) the untaxed element of the retained amount of the post-June 83 component of an ETP; or
(c) the retained amount of the post-June 83 component of an ETP; or
(d) the retained amount of the pre-July 83 component of an ETP;
is a reference to that element or component worked out as if paragraph 27AA(1)(ca), subsection 27AA(3) and subparagraph 27AC(2)(e)(iv) had not been enacted.
Components of rolled-over ETP
"140H. For the purposes of this Division, if the whole or a part of an ETP is rolled-over:
(a) a reference to the taxed element of the post-June 83 component of the amount rolled-over is a reference to so much of the ETP as is taken, because of section 27D, to consist of an amount to which sub-subparagraph 27D(1)(b)(iii)(A) applies; and
(b) a reference to the untaxed element of the post-June 83 component of the amount rolled-over is a reference to so much of the ETP as is taken, because of section 27D, to consist of an amount to which sub-subparagraph 27D(1)(b)(iii)(B) applies; and
(c) a reference to the pre-July 83 component of the amount rolled-over is a reference to so much of the ETP as is taken,because of section 27D, to consist of an amount to which sub-subparagraph 27D(1)(b)(iii)(BA) applies; and
(d) a reference to the undeducted contributions is a reference to so much of the ETP as is taken, because of section 27D, to consist of an amount to which sub-subparagraph 27D(1)(b)(iii)(C) applies; and
(e) a reference to the concessional component of the amount rolled-over is a reference to so much of the ETP as is taken,because of section 27D, to consist of an amount to which sub-subparagraph 27D(1)(b)(iii)(D) applies; and
(f) a reference to the post-June 1994 invalidity component of the amount rolled-over is a reference to so much of the ETP as is taken, because of section 27D, to consist of an amount to which sub-subparagraph 27D(1)(b)(iii)(E) applies.
When pension or annuity commences to be paid
"140J. For the purposes of this Division, a superannuation pension or an annuity commences to be paid at the beginning of the commencement day of the pension or annuity.
When benefit previously received by recipient
"140K. In determining whether a benefit ('current benefit') is in excess of the recipient's RBLs, the recipient is taken to have previously received another benefit if, and only if:
(a) in any case-the other benefit counts towards the recipient's RBLs; and
(b) if the other benefit was an ETP-that other benefit was previously made in relation to the person; and
(c) if the other benefit was a superannuation pension or an annuity-the other benefit was payable to the person and the commencement day of the other benefit occurred before the day on which the current benefit was paid or commenced to be paid.
Pension and annuity standards
"140L. For the purposes of this Division, a pension or an annuity meets, and is taken to have met, the pension and annuity standards if, and only if, under the regulations, the pension or annuity is treated as meeting those standards.
"Subdivision C-Payers' notification obligations
Payers of benefits to give certain information to Commissioner
(Notice to be given)
"140M.(1) If:
(a) any of the following applies:
(i) both:
(A) a payer makes an ETP in relation to a person on or after 1 July 1994; and
(B) if the payer is the person's employer or the trustee of a superannuation fund-the amount of the ETP exceeds $5,000;
(ii) a payer commences to make payments of a superannuation pension to a person on or after 1 July 1994;
(iii) a payer commences to make payments of an immediate annuity to a person on or after 1 July 1994; and
(b) the ETP, pension or annuity counts towards the person's RBLs; the payer must give to the Commissioner a notice containing such information as is specified in the regulations.
(Type of information in notice)
"(2) The information specified in the regulations must:
(a) concern the ETP, pension or annuity; or
(b) be necessary to enable a final determination to be made in relation to the recipient's RBLs.
(Form and lodgment of notice)
"(3) The notice must:
(a) be in the form approved in writing by the Commissioner; and
(b) be given to the Commissioner before:
(i) if the payer is informed by the recipient, on or before the 10th day of the month after the month ('payment month') in which the benefit was paid or commenced to be paid, that:
(A) the recipient had applied to the Commissioner for the issue of a tax file number; and
(B) the Commissioner had neither granted nor refused that application;
the end of the 14th day of the second month after the payment month; or
(ii) in any other case-the end of the 14th day of the month after the payment month;
or before the end of such further period as the Commissioner allows.
(Notice may be given in writing or on a data processing device)
"(4) An approval of a form may require or permit a notice to be given:
(a) in writing; or
(b) in accordance with specified software requirements, on a specified kind of data processing device.
Quotation of tax file numbers
(Quotation of tax file number to payer of benefit)
"140N.(1) If:
(a) an ETP is made in relation to a person; or
(b) the first payment of a superannuation pension is made to a person; or
(c) the first payment of an annuity is made to a person;
the person may quote his or her tax file number to the payer.
(Method of quotation)
"(2) A person quotes a tax file number to the payer by informing the payer of the number in a manner approved by the Commissioner.
(Person quoting)
"(3) The payer may be so informed by the person or by another person acting for that person.
Payer of benefit to provide copy of notice to recipient
"140P.(1) If a payer of a benefit gives the Commissioner a notice ('section 140M notice') about the benefit under section 140M, the payer must give the recipient a notice containing the information set out in the section 140M notice.
"(2) The notice must be given before the end of the period specified in paragraph 140M(3)(b).
Roll-overs to be notified to Commissioner
(Notice to be given)
"140Q.(1) If:
(a) a person becomes entitled to receive payment of an ETP; and
(b) the entitlement arose on or after 1 July 1994; and
(c) either:
(i) the entitlement arises out of the commutation of a superannuation pension or an immediate annuity; or
(ii) the ETP represents the residual capital value of a superannuation pension or annuity; and
(d) the person rolls-over the whole or a part of the ETP;
the payer of the ETP must give to the Commissioner a notice containing such information as is specified in the regulations.
(Type of information)
"(2) The information specified in the regulations must concern the ETP, pension or annuity.
(Form and lodgment of notice)
"(3) The notice must:
(a) be in the form approved in writing by the Commissioner; and
(b) be given to the Commissioner before:
(i) the end of the 14th day of the month after the month in which the entitlement to the ETP arose; or
(ii) the end of such further period as the Commissioner allows.
(Information may be given in writing or on a data processing device)
"(4) An approval of a form may require or permit a notice to be given:
(a) in writing; or
(b) in accordance with specified software requirements, on a specified kind of data processing device.
"Subdivision D-Determination of whether a benefit is in excess of recipient's RBLs
Determination of whether a benefit is in excess of recipient's RBLs
(Commissioner to make final determination)
"140R.(1) Subject to subsection (4) (which deals with non-quotation of tax file numbers), if the Commissioner receives a notice under subsection 140M(1) in relation to:
(a) an ETP made in relation to a person; or
(b) the commencement of payment to a person of a superannuation pension or an annuity;
the Commissioner must determine:
(c) whether the ETP, pension or annuity is in excess of the person's RBLs; and
(d) if the ETP, pension or annuity is in excess of the person's RBLs:
(i) the extent to which it is in excess of the person's RBLs; and
(ii) in the case of a rebatable superannuation pension or a rebatable ETP annuity-the rebatable proportion of the pension or annuity.
(Final determination)
"(2) A determination made under subsection (1) is called a 'final determination'.
(Final determination to be made within 60 days)
"(3) The Commissioner must make a final determination within 60 days after receiving the notice.
(No final determination if tax file number not provided)
"(4) The Commissioner must not make a final determination if the payer failed to provide the recipient's tax file number to the Commissioner under subsection 140M(1).
Revision of final determination
(Commutation of pension or annuity)
"140S.(1) If:
(a) the Commissioner has made a final determination in relation to the commencement of payment to a person of a superannuation pension or an annuity; and
(b) the person elects to commute the whole or a part of the pension or annuity within 6 months after the commencement day of the pension or annuity;
the Commissioner must, within 60 days after receiving notice of the commutation, revise the determination so that it takes the ETP arising from the commutation into account.
(Reduction of ETP)
"(2) If:
(a) the Commissioner has made a final determination in relation to the payment of an ETP in relation to a person; and
(b) the Commissioner has reduced the amount of the ETP under subsection 27A(4) or (4A);
the Commissioner must, within 60 days after the reduction, revise the determination so that it takes the reduction into account.
(Correction of errors etc.)
"(3) The Commissioner may, at any time, revise a final determination by making any alteration that the Commissioner thinks necessary in order to:
(a) correct any error made by the Commissioner in making the determination; or
(b) take into account any further material or information that has become available since the determination was made.
(Revised determination taken to be a final determination)
"(4) For the purposes of this Division, if a final determination is revised under this section, it is taken, as so revised, to be a final determination.
(Limitation on revised determination)
"(5) A final determination as revised under this section must not be a determination that the Commissioner is not empowered to make under subsection 140R(1).
(Revision deemed to be amendment for objection purposes)
"(6) A revision of a final determination is taken to be an amendment of the final determination for the purposes of section 14ZV of the Taxation Administration Act 1953.
Interim determinations
(Commissioner to make interim determination)
"140T.(1) Subject to subsection (2) (which deals with non-quotation of tax file numbers), if:
(a) the Commissioner, having received a notice under subsection 140M(1):
(i) is required to make a final determination in relation to an ETP or the payment of a superannuation pension or an annuity; or
(ii) would have been required to make such a final determination if subsection 140R(4) (which deals with tax file numbers) had not been enacted; and
(b) either:
(i) the Commissioner does not have sufficient information to make the determination; or
(ii) the notice does not specify the tax file number of the person whose tax file number may be quoted to the payer concerned under section 140N;
the Commissioner must, within 60 days after receiving the notice, make an interim determination of:
(c) whether the ETP, pension or annuity is in excess of the recipient's RBLs; and
(d) if the ETP, pension or annuity is in excess of the recipient's RBLs:
(i) the extent to which it is in excess of the recipient's RBLs; and
(ii) in the case of a rebatable superannuation pension or a rebatable ETP annuity-the rebatable proportion of the pension or annuity.
(Where tax file number not specified)
"(2) If the notice does not specify the recipient's tax file number, then, in spite of any other provision of this Division, the Commissioner's interim determination must be to the effect that:
(a) the whole of the RBL amount of the ETP, pension or annuity is in excess of the recipient's RBLs; and
(b) in the case of a rebatable superannuation pension or a rebatable ETP annuity-the rebatable proportion of the pension or annuity is 0.
(Interim determination that benefit is not in excess of RBLs to take effect as final determination)
"(3) If an interim determination is to the effect that a benefit is not in excess of the recipient's RBLs, the interim determination has effect as if it were a final determination.
Interim determination may be made on certain assumptions
"140U. In making an interim determination:
(a) if the Commissioner does not know:
(i) whether a reversion applies to a superannuation pension payable to a person; or
(ii) the level of a reversion that applies to a superannuation pension payable to a person;
the Commissioner is to assume that a reversion of 85% applies to the pension; and
(b) if the Commissioner does not know the rate (if any) at which a superannuation pension is indexed-the Commissioner is to assume that the pension is indexed in a year at the standard indexation rate determined under section 140V; and
(c) if the Commissioner does not know whether a superannuation pension is a rebatable superannuation pension-the Commissioner is to assume that it is; and
(d) if the Commissioner does not know whether a benefit has been, or is being, paid as a result of the death of another person-the Commissioner is to assume that it has not been, or is not being, so paid; and
(e) if the Commissioner does not know whether a superannuation pension or annuity meets the pension and annuity standards-the Commissioner is to assume that it does not; and
(f) if the Commissioner does not know whether an ETP is made as a result of the commutation of, or the residual capital value of, a superannuation pension or annuity that had commenced to be paid-the Commissioner is to assume that it is not; and
(g) if the Commissioner does not know whether a superannuation pension or an annuity payable to a person as the result of the death of another person is payable as a reversion of another superannuation pension or annuity that was already payable to the other person-the Commissioner is to assume that it is not; and
(h) if the Commissioner does not know if a superannuation pension is payable for life-the Commissioner is to assume that it is.
Commissioner may determine standard indexation rate
"140V. Before a particular financial year, the Commissioner may determine the standard indexation rate applicable to that financial year for the purposes of this Division.
Notification of determinations
(Determination that benefit is in excess of a person's RBLs)
"140W.(1) If the Commissioner makes a final determination or an interim determination that a benefit made in relation to a person is in excess of the person's RBLs, the Commissioner:
(a) in any case-must give a copy of the determination, and a written statement setting out the basis on which the determination was made, to the person; and
(b) in the case of an interim determination-must include with the material mentioned in paragraph (a) a notice:
(i) stating that the person may, during the period specified in subsection 140X(2), apply to the Commissioner for an amendment of the interim determination; and
(ii) stating what additional information the Commissioner needs in order to make a final determination and advising the person of the manner (as approved by the Commissioner) in which the person may provide that additional information; and
(iii) if the additional information is, or includes, the person's tax file number-advising the person that, because the Commissioner has not been notified of the person's tax file number, the interim determination is to the effect that:
(A) the whole of the RBL amount of the benefit is in excess of the person's RBLs; and
(B) if the benefit is a rebatable superannuation pension or a rebatable ETP annuity-the rebatable proportion of the pension or annuity is 0.
(Determination that benefit is not in excess of a person's RBLs)
"(2) Whenever the Commissioner makes a final determination or an interim determination to which subsection (1) does not apply, the Commissioner may, if the Commissioner thinks it desirable, give to the recipient of the benefit to which the determination relates the documents mentioned in paragraphs (1)(a) and (b).
Amendment of determinations
(Application for amendment of interim determination)
"140X.(1) If:
(a) a person applies, within the period set out in subsection (2), for an amendment of an interim determination; and
(b) the Commissioner obtains any additional information necessary for the making of a final determination;
the Commissioner may, within 60 days after receiving the application, amend the interim determination in such manner (if any) as the Commissioner thinks necessary.
(Application period)
"(2) The period during which a person may apply for an amendment of an interim determination is the period:
(a) beginning on the day on which a copy of the determination was given to the person; and
(b) ending:
(i) if the Commissioner determined that a benefit made in relation to the person was not in excess of the person's RBLs-at the end of the first financial year after the financial year in which the benefit was paid or commenced to be paid; or
(ii) in any other case-60 days after a copy of the determination was given to the person;
or at the end of such further period as the Commissioner allows.
(Form of application)
"(3) An application under subsection (1) for an amendment of an interim determination must:
(a) be in writing; and
(b) be in the form approved in writing by the Commissioner.
(Interim determination to have effect as if it were a final determination)
"(4) If the Commissioner makes an interim determination and:
(a) no application under this section for an amendment of the interim determination is made within the period specified in subsection (2); or
(b) the Commissioner has not received, within that period:
(i) the additional information required under subparagraph 140W(1)(b)(ii); or
(ii) additional information that the Commissioner has agreed is sufficient to enable the Commissioner to make a final determination; the interim determination has effect as if it were a final determination.
(Tax file number not provided)
"(5) An agreement by the Commissioner under subparagraph (4)(b)(ii) must not involve the Commissioner agreeing that sufficient information has been received to enable the Commissioner to make a final determination if the tax file number of the person concerned has still not been provided to the Commissioner.
(Amended interim determination to have effect as if it were a final determination)
"(6) If an interim determination is amended under subsection (1), the interim determination has effect as if it were a final determination.
(Amendment in special circumstances)
"(7) If:
(a) the Commissioner makes an interim determination; and
(b) because of subsection (4), the interim determination has effect as if it were a final determination; and
(c) the person applies in writing for an amendment of the final determination; and
(d) both:
(i) the person was prevented, because of circumstances beyond the person's control, from making an application for amendment of the interim determination within the period specified in subsection (2); and
(ii) the person is able to provide relevant information that was not available to the Commissioner when the Commissioner made the interim determination;
the Commissioner may amend the final determination in such manner (if any) as the Commissioner thinks necessary.
(Notice of amended determination)
"(8) If the Commissioner amends a determination under this section, the following provisions have effect:
(a) if the determination, as amended, is a determination that a payment is in excess of the recipient's RBLs-the Commissioner must give a copy of the amended determination, and a written statement setting out the basis on which the determination was amended, to the recipient;
(b) in any other case-if the Commissioner thinks it desirable, the Commissioner may give the recipient the documents mentioned in paragraph (a).
(Amended final determination to have effect as if it were a final determination)
"(9) If a final determination is amended under this section, it is taken, as so amended, to be a final determination.
(Limitation on amended interim determination)
"(10) If an interim determination is amended under this section, the interim determination, as so amended, must not be an interim determination that the Commissioner is not empowered to make under section 140T.
(Limitation on amended final determination)
"(11) If a final determination is amended under this section, the final determination, as so amended, must not be a final determination that the Commissioner is not empowered to make under subsection 140R(1).
Objections
"140Y. A person to whom an interim determination or final determination relates who is dissatisfied with the interim determination or final determination may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953.
Person may request copy of previous determination
(Request)
"140Z.(1) A person may request the Commissioner to give to the person a copy of a final determination or an interim determination in relation to:
(a) an ETP made in relation to the person; or
(b) the payment of a superannuation pension or an annuity to the person.
(Fee)
"(2) The request must be accompanied by such fee (if any) as is specified in the regulations.
(Commissioner to comply with request)
"(3) If the Commissioner receives such a request, the Commissioner must give a copy of that determination, and a statement setting out the basis on which the determination was made, to the person.
"Subdivision E-When benefits exceed recipient's RBLs
When benefits exceed recipient's RBLs
(When benefits not in excess of recipient's RBLs)
"140ZA.(1) If:
(a) a benefit ('current benefit') does not count towards the recipient's RBLs; or
(b) the amount calculated in relation to the current benefit using the RBL formula in subsection (3) does not exceed 0;
the benefit is not in excess of the recipient's RBLs.
(When benefits in excess of recipient's RBLs)
"(2) If:
(a) section 140M applies to a benefit ('current benefit'); and
(b) the amount calculated in relation to the current benefit using the RBL formula in subsection (3) exceeds 0; then:
(c) the current benefit is in excess of the recipient's RBLs; and
(d) the amount of that excess is equal to so much of the RBL amount of the current benefit as does not exceed the amount calculated using that formula.
(RBL formula)
"(3) This is the RBL formula mentioned in subsections (1) and (2):
RBL amount of current benefit + Sum of adjusted RBL amounts of previous benefits – Applicable RBL
where:
'RBL amount of current benefit' means the RBL amount of the current benefit;
'Sum of adjusted RBL amounts of previous benefits' has the meaning given by subsection (4);
'Applicable RBL' means:
(a) if the current benefit is to be assessed against the recipient's lump sum RBL for the year of income in which the current benefit was paid or commenced to be paid-that lump sum RBL; or
(b) in any other case-the recipient's pension RBL for the year of income in which the current benefit was paid or commenced to be paid.
(Sum of adjusted RBL amounts of previous benefits)
"(4) The sum of the adjusted RBL amounts of previous benefits is worked out by:
(a) calculating the following amount for each benefit that was previously received by the recipient:
RBL amount * (Index number for second-last quarter / Index number for payment quarter
where:
'RBL amount' means the RBL amount of the benefit, reduced by any excessive component or excessive amount;
'Index number for second-last quarter' means the index number for the quarter 2 quarters before the quarter in which the current benefit was paid or in which the commencement day of the current benefit occurred;
'Index number for payment quarter' means the index number for the quarter in which the previous benefit was paid or in which the commencement day of the previous benefit occurred; and
(b) by adding the amounts calculated under paragraph (a).
(No indexation if previous benefits paid within 12 months of current benefit)
"(5) If the current benefit is paid or commences to be paid within 12 months of the payment of a previous benefit or of the commencement day of a previous benefit, the formula in paragraph (4)(a) applies to the previous benefit as if both of the index numbers were 1.
Discretion to treat benefits as within recipient's RBLs
"140ZB. If:
(a) the whole or a part of an ETP, a superannuation pension or an annuity would, apart from this section, exceed the recipient's RBLs; and
(b) the Commissioner is satisfied that, because of the special circumstances of the case, the whole or a part of the ETP, pension or annuity should be treated as if it were not in excess of the recipient's RBLs;
the Commissioner may make a final determination or an interim determination accordingly.
"Subdivision F-Benefits which are to be counted towards a person's RBLs
Benefits which are counted towards a person's RBLs
(Benefits which are to be counted)
"140ZC.(1) Except as provided by subsection (2), each of the following benefits are to be counted towards a person's RBLs:
(a) an ETP made in relation to the person on or after 16 February 1990;
(b) a superannuation pension where the commencement day was on or after 16 February 1990;
(c) an annuity where the commencement day was on or after 16 February 1990.
(Benefits which are not to be counted)
"(2) None of the following benefits are to be counted towards a person's RBLs:
(a) an ETP made before 1 July 1990 by the person's employer, where the person was not an associate of the employer when the ETP was made;
(b) an ETP made in relation to the person as a result of the commutation of, or the residual capital value of, a superannuation pension or annuity where:
(i) the commencement day for the pension or annuity is before 1 July 1990; or
(ii) the pension or annuity did not meet the pension and annuity standards;
(c) a residual pension or residual annuity payable on partial commutation of another superannuation pension or annuity where:
(i) the commencement day for the other pension or annuity is before 1 July 1990; or
(ii) the other pension or annuity did not meet the pension and annuity standards;
(d) a superannuation pension or annuity that:
(i) is payable to the person as the result of the death of another person; and
(ii) is a reversion of another pension or annuity that was already payable to the other person;
(e) an ETP arising from the commutation of a superannuation pension or annuity to which paragraph (d) applies;
(f) an ETP made in relation to the person as a result of the death of the person;
(g) an ETP paid to a charitable or religious body;
(h) a superannuation pension or an annuity paid to a person under 18 years of age because of:
(i) the death of another person; or
(ii) a disability of another person that 2 legally qualified medical practitioners have certified is likely to result in that other person being unable ever to be employed in a capacity for which the other person is reasonably qualified because of education, experience or training;
(i) an ETP paid as a result of the commutation of a superannuation pension or annuity where:
(i) the pension or annuity was payable as a result of the death of another person; and
(ii) the ETP is made to a spouse or child of the other person before whichever is the later of the following:
(A) the end of the period of 6 months after the death of the other person;
(B) the end of the period of 3 months after the grant of probate of the will of the other person or of letters of administration of the estate of the other person.
"Subdivision G-Lump sum RBLs and pension RBLs
Lump sum RBLs and pension RBLs
(Lump sum RBL)
"140ZD.(1) A person's lump sum RBL for a year of income is:
(a) if the year of income is the 1994-95 year of income-whichever of the following amounts is applicable:
(i) if the benefit against which the RBL is being assessed is:
(A) an ETP that was made in relation to the recipient on a day ('ETP day') before the recipient's 55th birthday; or
(B) a superannuation pension or annuity that does not meet the pension and annuity standards, where the commencement day occurred before the recipient's 55th birthday;
$400,000, discounted by 2.5% for each whole year in the period:
(C) beginning on the birthday of the recipient immediately before the ETP day or the commencement day or, if the ETP day or the commencement day falls on a birthday of the recipient, on that birthday; and
(D) ending immediately before the day that will be the recipient's 55th birthday;
(ii) in any other case-$400,000; or
(b) if the year of income is the 1995-96 year of income or a later year of income-the amount worked out under paragraph (a) subject to the indexation arrangements set out in subsection (3).
(Pension RBL)
"(2) A person's pension RBL for a year of income is:
(a) if the year of income is the 1994-95 year of income-$800,000; or
(b) if the year of income is the 1995-96 year of income or a later year of income-the amount worked out under paragraph (a) subject to the indexation arrangements set out in subsection (3).
(Indexation)
"(3) Subsections (1) and (2) apply for the 1995-96 year of income or a later year of income as if each indexable amount were replaced by the amount worked out using the formula:
Indexation factor * Previous indexable amount
where:
'Indexation factor' means the indexation factor for the year of income worked out under section 159SG;
'Previous indexable amount' means the indexable amount for the previous year of income.
(Meaning of "indexable amount")
"(4) In subsection (3):
'indexable amount' means:
(a) an amount of $400,000 or $800,000 specified in subsection (1) or (2); or
(b) if that amount has previously been altered under subsection (3)-the altered amount.
(Section has effect subject to section 140ZE)
"(5) This section has effect subject to section 140ZE.
Transitional lump sum RBLs and transitional pension RBLs
(Transitional lump sum RBL)
"140ZE.(1) In spite of section 140ZD, the regulations may provide for a special method of calculating a person's lump sum RBL for a year of income if the calculation results in a greater amount than would be applicable under section 140ZD.
(Transitional pension RBL)
"(2) In spite of section 140ZD, the regulations may provide for a special method of calculating a person's pension RBL for a year of income if the calculation results in a greater amount than would be applicable under section 140ZD.
(Regulations to be made for transitional purposes)
"(3) Regulations made for the purposes of this section may only be made for transitional purposes.
Assessment of benefits against lump sum RBL
(ETPs)
"140ZF.(1) An ETP made in relation to a person in a year of income is to be assessed against the person's lump sum RBL for the year of income if the sum of:
(a) the amount of the ETP (other than any part of the ETP that consists of the retained amount of the undeducted contributions, the retained amount of the concessional component, the retained amount of the post-June 1994 invalidity component or then on-qualifying component); and
(b) the qualifying portions of any ETPs previously received by the person; and
(c) the qualifying portions of any superannuation pensions or annuities previously received by the person, where the pensions or annuities did not meet the pension and annuity standards;
is more than:
(d) if the ETP was made before the person's 55th birthday-whichever is the lesser of:
(i) 50% of the sum of:
(A) the qualifying portions of all benefits previously received by the person; and
(B) the amount referred to in paragraph (a); or
(ii) the person's lump sum RBL for the year of income; or
(e) in any other case-50% of whichever is the lesser of:
(i) the sum of:
(A) the qualifying portions of all benefits previously received by the person; and
(B) the amount referred to in paragraph (a); or
(ii) the person's pension RBL for the year of income.
(Superannuation pension or annuity meeting the pension and annuity standards)
"(2) A superannuation pension or annuity that commences to be paid to a person in a year of income and that meets the pension and annuity standards is to be assessed against the person's lump sum RBL for the year of income if the sum of:
(a) the amount that is:
(i) the capital value of the pension; or
(ii) the amount of the ETP rolled-over to purchase the annuity (other than any part that consists of the undeducted contributions, the concessional component or the post-June 1994 invalidity component);
as the case requires; and
(b) the qualifying portions of any superannuation pensions or annuities previously received by the person that met the pension and annuity standards;
is less than:
(c) if the commencement day of the pension or annuity occurred before the person's 55th birthday-whichever is the lesser of:
(i) 50% of the sum of:
(A) the qualifying portions of all benefits previously received by the person; and
(B) the amount referred to in paragraph (a); or
(ii) the person's lump sum RBL for the year of income; or
(d) in any other case-50% of whichever is the lesser of:
(i) the sum of:
(A) the qualifying portions of all benefits previously received by the person; and
(B) the amount referred to in paragraph (a); or
(ii) the person's pension RBL for the year of income.
(Superannuation pension and annuity not meeting the pension and annuity standards)
"(3) A superannuation pension or annuity that commences to be paid to a person in a year of income and that does not meet the pension and annuity standards is to be assessed against the person's lump sum RBL for the year of income if the sum of:
(a) the amount that is:
(i) the capital value of the pension; or
(ii) the amount of the ETP rolled-over to purchase the annuity (other than any part that consists of the undeducted contributions, the concessional component or the post-June 1994 invalidity component);
as the case requires; and
(b) the qualifying portions of any superannuation pensions or annuities previously received by the person, where the pensions or annuities did not meet the pension and annuity standards; is more than:
(c) if the commencement day of the pension or annuity occurred before the person's 55th birthday-whichever is the lesser of:
(i) 50% of the sum of:
(A) the qualifying portions of all benefits previously received by the person; and
(B) the amount referred to in paragraph (a); or
(ii) the person's lump sum RBL for the year of income; or
(d) in any other case-50% of whichever is the lesser of:
(i) the sum of:
(A) the qualifying portions of all benefits previously received by the person; and
(B) the amount referred to in paragraph (a); or
(ii) the person's pension RBL for the year of income.
(Special overriding rule)
"(4) If:
(a) apart from this subsection, a benefit ('current benefit') is to be assessed against the recipient's lump sum RBL for a year of income; and
(b) the sum of the qualifying portions of all superannuation pensions or annuities previously received by the recipient, where the pensions or annuities met the pension and annuity standards, is greater than 50% of the recipient's pension RBL for the year of income;
then, in spite of subsections (1), (2) and (3), the current benefit is not to be assessed against the recipient's lump sum RBL for the year of income.
Qualifying portion of benefits
(Qualifying portion)
"140ZG.(1) In determining whether a benefit ('current benefit') is to be assessed against a person's lump sum RBL, the qualifying portion of a benefit previously received by the person is worked out using the formula:
Capital amount * (Index number for second-last quarter / Index number for payment quarter)
where:
'Capital amount' means:
(a) if the benefit is an ETP-the amount of the ETP (other than the retained amount of the undeducted contributions, the retained amount of the concessional component, the retained amount of the post-June 1994 invalidity component, the non-qualifying component and the excessive component); or
(b) if the benefit is a superannuation pension-the capital value of the pension, reduced by any excessive amount; or
(c) if the benefit is an annuity-the amount of the ETP rolled-over to purchase the annuity, reduced by:
(i) the undeducted contributions, the concessional component and the post-June 1994 invalidity component; and
(ii) any excessive amount in relation to the annuity;
'Index number for second-last quarter' means the index number for the quarter 2 quarters before the quarter in which the current benefit was paid or in which the commencement day of the current benefit occurred;
'Index number for payment quarter' means the index number for the quarter in which the previous benefit was paid or in which the commencement day of the previous benefit occurs.
(No indexation if current benefit paid within 12 months of previous benefit)
"(2) If the current benefit is paid or commences to be paid within 12 months of the payment of the previous benefit or of the commencement day of the previous benefit, the formula in subsection (1) applies to the previous benefit as if both of the index numbers were 1.
"Subdivision H-RBL amounts
RBL amount-ETP paid by superannuation funds or ADFs
"140ZH. The RBL amount of an ETP made in relation to a person by the trustees of a superannuation fund or an ADF is the sum of:
(a) 100% of the retained amount of the pre-July 83 component of the ETP; and
(b) 100% of the taxed element of the retained amount of the post-June 83 component of the ETP; and
(c) 85% of the untaxed element of the retained amount of the post-June 83 component of the ETP.
RBL amount-ETP paid by life assurance company or registered organisation
"140ZI. If:
(a) an ETP in relation to a person is paid by a life assurance company or a registered organisation; and
(b) either:
(i) the ETP was the result of the commutation of the whole or part of an annuity that met the pension and annuity standards; or
(ii) the ETP was the result of the commutation of a deferred annuity;
the RBL amount of the ETP is the whole of the ETP, other than any part of the ETP that consists of:
(c) the retained amount of the undeducted contributions; or
(d) the retained amount of the concessional component; or
(e) the retained amount of the post-June 1994 invalidity component; or
(f) the non-qualifying component.
RBL amount-ETP paid by employer
(RBL amount)
"140ZJ.(1) If an ETP in relation to a person, being an employee, is paid by the employer of the employee, the RBL amount of the ETP is:
(a) if the employee is an associate of the employer-the sum of:
(i) 100% of the retained amount of the pre-July 83 component of the ETP; and
(ii) 85% of the retained amount of the post-June 83 component of the ETP; or
(b) in any other case-85% of that part of the retained amount of the post-June 83 component of the ETP worked out using the following table:
Percentage of retained
amount of the
Financial year in which post-June 83 component
ETP is made to be considered
1990-91 20%
1991-92 40%
1992-93 60%
1993-94 80%
1994-95 and later years 100%
(Extended meaning of "employee")
"(2) In this section:
'employee' includes:
(a) in relation to a body corporate-a director or other officer (however described) of the body corporate; and
(b) in any case-a person engaged under a contract for services; and
'employer' has a corresponding meaning.
RBL amount-superannuation pension (other than disability superannuation pension)
"140ZK. The RBL amount of a superannuation pension (other than a disability superannuation pension) payable to a person is:
(a) if the pension is a rebatable superannuation pension-the capital value of the pension; or
(b) in any other case-the amount worked out using the formula:
Capital value * ((Pre-July 83 eligible service period + (0.8 * Post-June 83 eligible service period)) / Total eligible service period)
where:
'Capital value' is the capital value of the pension;
'Pre-July 83 eligible service period' means the number of whole days in so much of the eligible service period for the pension as occurred before 1 July 1983;
'Post-June 83 eligible service period' means the number of whole days in so much of the eligible service period for the pension as occurred on or after 1 July 1983;
'Total eligible service period' means the number of whole days in the eligible service period for the pension.
RBL amount-disability superannuation pension
(RBL amount)
"140ZL.(1) The RBL amount of a disability superannuation pension payable to a person is:
(a) if the pension is a rebatable superannuation pension-the accrued retirement benefit component of the pension; or
(b) in any other case-the amount worked out using the formula:
Accrued retirement benefit component * (Pre-July 83 eligible service period + (0.8 * Post-June 83 eligible service period)) / Total eligible service period
where:
'Accrued retirement benefit component' means the accrued retirement benefit component of the pension (worked out under subsection (2));
'Pre-July 83 eligible service period' means the number of whole days in so much of the eligible service period for the pension as occurred before 1 July 1983;
'Post-June 83 eligible service period' means the number of whole days in so much of the eligible service period for the pension as occurred on or after 1 July 1983;
'Total eligible service period' means number of whole days in the eligible service period for the pension.
(Accrued retirement benefit component)
"(2) For the purposes of this section, the accrued retirement benefit component of a disability superannuation pension is worked out using the formula:
Capital value – (Capital value / Accrual days) * Pension days
where:
'Capital value' is the capital value of the pension as at the commencement day of the pension;
'Pension days' means:
(a) if the commencement day of the pension occurs before the person's 65th birthday-the number of whole days in the period:
(i) beginning on the commencement day of the pension; and
(ii) ending at the end of the person's 65th birthday; or
(b) in any other case-0;
'Accrual days' means the number of whole days in the period:
(a) beginning on the first day of the eligible service period for the
pension; and
(b) ending at the end of the person's 65th birthday.
RBL amount-annuity
"140ZM. The RBL amount of an annuity ('current annuity') payable to a person is:
(a) if the current annuity did not commence to be paid as the result of the partial commutation of another annuity that met the pension and annuity standards-the sum of the following amounts in relation to the amount of the ETP rolled-over to purchase the current annuity:
(i) 100% of the pre-July 83 component;
(ii) 100% of the taxed element of the post-June 83 component;
(iii) 85% of the untaxed element of the post-June 83 component; or
(b) if the current annuity commenced to be paid as the result of the partial commutation of another annuity that met the pension and annuity standards-the sum of the following amounts in relation to the amount of the ETP rolled-over to purchase the current annuity:
(i) 100% of the pre-July 83 component;
(ii) 100% of the taxed element of the post-June 83 component;
(iii) 85% of the untaxed element of the post-June 83 component;
reduced by the RBL amount of the ETP that arose as the result of that commutation.
Reduction of ETP taken into account in working out RBL amount of annuity-roll-overs
(Pre-1 July 1992 roll-overs or commutations)
"140ZN.(1) If, before 1 July 1992:
(a) a person rolls-over an amount that represents the whole or a part of the residual capital value of an annuity that has commenced to be paid; or
(b) a person commutes the whole or a part of an annuity that has commenced to be paid and rolls-over the whole or a part of the resulting ETP;
then, in working out the RBL amount of the annuity, the amount of the ETP rolled-over to purchase the annuity is to be reduced by the amount rolled-over as mentioned in paragraph (a) or (b) (other than the undeducted contributions and the concessional component).
(Post-30 June 1992 roll-overs or commutations)
"(2) If, on or after 1 July 1992:
(a) a person rolls-over an amount that represents the whole or a part of the residual capital value of an annuity that has commenced to be paid; or
(b) a person commutes the whole or a part of an annuity that has commenced to be paid and rolls-over the whole or a part of the resulting ETP; then, in working out the RBL amount of the annuity, the ETP rolled-over to purchase the annuity is to be reduced by:
(c) if the amount rolled-over as mentioned in paragraph (a) or (b) is rolled-over within 12 months of the commencement day of the annuity-the amount rolled-over as mentioned in paragraph (a) or (b) (other than the undeducted contributions, the concessional component and the post-June 1994 invalidity component); or
(d) in any other case-the amount worked out using the formula:
Amount rolled-over * (Index number for payment quarter / Index number for second last quarter)
where:
'Amount rolled-over' means the amount rolled-over as mentioned in paragraph (a) or (b) (other than the undeducted contributions, the concessional component and the post-June 1994 invalidity component);
'Index number for payment quarter' means the index number for the quarter in which the commencement day for the annuity occurs;
'Index number for second-last quarter' means the index number for the quarter 2 quarters before the quarter in which the roll-over occurred.
"Subdivision J-Capital value of superannuation pension
Capital value of superannuation pension
(Capital value-basic rule)
"140ZO.(1) Subject to subsections (2) and (3), the capital value of a superannuation pension that has commenced to be paid is worked out using the formula:
Pension
Annual value * valuation factor - Undeducted purchase price + Residual capital value
where:
'Annual value' means the annual value of the pension;
'Pension valuation factor' means the pension valuation factor applicable to the pension;
'Undeducted purchase price' means the undeducted purchase price of the pension;
'Residual capital value' means the present value of the residual capital value, if any, of the pension.
(Capital value-pension not payable for life)
"(2) The capital value of a superannuation pension that is not payable for life is the amount calculated in accordance with a method determined by the Commissioner in writing in relation to the pension.
(Capital value-substituted pension)
"(3) The capital value of a superannuation pension that is payable to a person as a result of an arrangement under which that person:
(a) ceases to be entitled to a superannuation pension (the 'old pension') that has commenced to be paid to the person from a superannuation fund; and
(b) becomes entitled to be paid a superannuation pension (the 'new pension') from another superannuation fund;
is the amount worked out using the formula:
Excess annual value * Pension valuation factor – Excess undeducted purchase price + Excess residual capital value
where:
'Excess annual value' means the amount by which the annual value of the new pension exceeds the annual value of the old pension;
'Pension valuation factor' means the pension valuation factor applicable to the pension;
'Excess undeducted purchase price' means the amount by which the undeducted purchase price of the new pension exceeds the undeducted purchase price of the old pension;
'Excess residual capital value' means the amount by which the present value of the residual capital value (if any) of the new pension exceeds the present value of the residual capital value (if any) of the old pension.
(Meaning of "present value of the residual capital value of a pension")
"(4) For the purposes of this section, the present value of the residual capital value (if any) of a pension is to be worked out in accordance with a method determined by the Commissioner in writing.
(Meaning of "annual value")
"(5) In this section:
'annual value', in relation to a pension, means the amount worked out by multiplying:
(a) the greatest number of payments of the pension that could be made in respect of the 12-month period beginning on the commencement day of that pension; by:
(b) the amount of the first regular payment of the pension.
Reduction of capital value of superannuation pension-roll-overs
(Pre-1 July 1992 roll-overs or commutations)
"140ZP.(1) If, before 1 July 1992:
(a) a person rolls-over an amount that represents the whole or a part of the residual capital value of a superannuation pension that has commenced to be paid; or
(b) a person commutes the whole or a part of a superannuation pension that has commenced to be paid and rolls-over the whole or a part of the resulting ETP;
the amount of the capital value of the pension is to be reduced by the amount rolled-over (other than the undeducted contributions and the concessional component).
(Post-30 June 1992 roll-overs or commutations)
"(2) If, on or after 1 July 1992:
(a) a person rolls-over an amount that represents the whole or a part of the residual capital value of a superannuation pension that has commenced to be paid; or
(b) a person commutes the whole or a part of a superannuation pension that has commenced to be paid and rolls-over the whole or a part of the resulting ETP; the capital value of the pension is to be reduced by:
(c) if the amount rolled-over is rolled-over within 12 months of the commencement day of the superannuation pension-the amount rolled-over (other than the undeducted contributions, the concessional component and the post-June 1994 invalidity component); or
(d) in any other case-the amount worked out using the formula:
Amount rolled-over * (Index number for payment quarter / Index number for second-last quarter)
where:
'Amount rolled-over' means the amount rolled-over (other than the undeducted contributions, the concessional component and the post-June 1994 invalidity component);
'Index number for payment quarter' means the index number for the quarter in which the commencement day of the pension occurs;
'Index number for second-last quarter' means the index number for the quarter 2 quarters before the quarter in which the roll-over occurred.
"Subdivision K-Rebatable proportion of rebatable superannuation pension or rebatable ETP annuity
Rebatable proportion of rebatable superannuation pension or rebatable ETP annuity
(When rebatable proportion is 1)
"140ZQ.(1) If:
(a) a rebatable superannuation pension or a rebatable ETP annuity does not count towards the recipient's RBLs; or
(b) the Commissioner makes a final determination that a rebatable superannuation pension or a rebatable ETP annuity is not in excess of the recipient's RBLs;
the rebatable proportion of the pension or annuity is 1.
(When rebatable proportion is 0-no final determination)
"(2) If:
(a) section 140M applies to a rebatable superannuation pension or a rebatable ETP annuity; and
(b) the Commissioner does not make a final determination in relation to the recipient's RBLs and in relation to the pension or annuity; the rebatable proportion of the pension or annuity is 0.
(When rebatable proportion is 0-whole of RBL amount is excessive amount)
"(3) If the whole of the RBL amount of a rebatable superannuation pension or a rebatable ETP annuity is an excessive amount, the rebatable proportion of the pension or annuity is 0.
(Rebatable proportion in other cases)
"(4) In any other case, the rebatable proportion of a rebatable superannuation pension or a rebatable ETP annuity is worked out using the formula:
(RBL amount - Excessive amount) / RBL amount
where:
'RBL amount' means the RBL amount of the pension or annuity;
'Excessive amount' means the excessive amount in relation to the pension or annuity.".