Taxation Laws Amendment Act (No. 4) 1994 (181 of 1994)

Schedule 3   AMENDMENTS RELATING TO SUPERANNUATION

Part 2   INCOME TAX ASSESSMENT ACT 1936

Division 1   Resident and non-resident superannuation funds

11   Before section 6F

Insert:

Resident superannuation funds and non-resident superannuation funds

Resident superannuation fund at a particular time

"6E. (1) For the purposes of this Act, a fund is a resident superannuation fund at a particular time (the 'relevant time') if, and only if:

(a) the fund is a provident, benefit, superannuation or retirement fund at the relevant time; and

(b) either of the following conditions is satisfied:

(i) the fund was established in Australia;

(ii) any asset of the fund at the relevant time is situated in Australia; and

(c) at the relevant time, the central management and control of the fund is in Australia; and

(d) in respect of a fund that, at the relevant time, has at least one active member - the percentage worked out using the following formula is not less than 50%:

(Total of accumulated entitlements of resident active members at the relevant time / Total of accumulated entitlements of active members at the relevant time) * 100

where:

'accumulated entitlement', in relation to an active member of the fund at the relevant time, means:

(a) in respect of a member who, at that time, is an active member without defined benefits - so much of the value of the assets of the fund at that time as is attributable to:

(i) contributions made to the fund before that time by or in respect of that member; and

(ii) income or accretions arising from those contributions; or

(b) in respect of a member who, at that time, is an active member with defined benefits - the amount that would be payable at that time to or in respect of that member if he or she voluntarily ceased to be a member.

Non-resident superannuation fund at a particular time

"(2) For the purposes of this Act, a fund is a non-resident superannuation fund at a particular time if, and only if, the fund:

(a) is a provident, benefit, superannuation or retirement fund at that time; and

(b) is not a resident superannuation fund at that time.

Resident superannuation fund in relation to a year of income

"(3) For the purposes of this Act, a fund is a resident superannuation fund in relation to a year of income if, and only if:

(a) the fund is a provident, benefit, superannuation or retirement fund at all times during the year of income when the fund is in existence; and

(b) the fund is a resident superannuation fund at any time during the year of income when the fund is in existence.

Non-resident superannuation fund in relation to a year of income

"(4) For the purposes of this Act, a fund is a non-resident superannuation fund in relation to a year of income if, and only if, the fund:

(a) is a provident, benefit, superannuation or retirement fund at all times during the year of income when the fund is in existence; and

(b) is not a resident superannuation fund in relation to the year of income.

Definitions

"(5) In this section:

'active member', in relation to a fund at the relevant time, means:

(a) a member of the fund who at that time is a contributor to the fund; or

(b) a member of the fund on behalf of whom another person has made before that time, or makes at or after that time,

contributions to the fund in respect of the year of income in which that time occurs;

'active member with defined benefits', in relation to a fund at the relevant time, means an active member of the fund at that time in relation to whom the fund is a defined benefit scheme;

'active member without defined benefits', in relation to a fund at the relevant time, means an active member of the fund at that time in relation to whom the fund is not a defined benefit scheme;

'contributions', in relation to a fund, includes:

(a) payments of shortfall components within the meaning of the Superannuation Guarantee (Administration) Act 1992; and

(b) amounts paid to the fund that are taken to be rolled over for the purposes of Subdivision AA of Division 2 of Part III;

'defined benefit scheme' has the meaning that 'defined benefit superannuation scheme' would have for the purposes of the Superannuation Guarantee (Administration) Act 1992 if subsections 6A(2) to (4) of that Act had not been enacted;

'value' has the same meaning as in the Superannuation Industry (Supervision) Act 1993.".