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

Schedule 3   AMENDMENTS RELATING TO SUPERANNUATION

Part 4   SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993

Division 2   Amendments relating to contraventions that are taken into account in determining 'complying superannuation fund' status

111   After subsection 42(1)

Insert:

"(1A) For the purposes of subparagraph (1)(b)(ii), an entity fails the culpability test in relation to a particular contravention of this Act or the regulations if:

(a) both:

(i) all of the members of the entity were in any way directly or indirectly knowingly concerned in, or party to, the contravention; and

(ii) the Commissioner, after considering:

(A) the taxation consequences that would arise if the entity were to be treated as a non-complying superannuation fund for the purposes of Part IX of the Income Tax Assessment Act 1936 in relation to the year of income concerned; and

(B) the seriousness of the contravention; and

(C) all other relevant circumstances;

thinks that a notice should be given stating that the entity is not a complying superannuation fund in relation to the year of income concerned; or

(b) all of the following conditions are satisfied:

(i) one or more members of the entity were in any way directly or indirectly knowingly concerned in, or party to, the contravention;

(ii) one or more members of the entity (the 'innocent members') were not in any way directly or indirectly knowingly concerned in, or party to, the contravention;

(iii) none of the innocent members would suffer any substantial financial detriment if the entity were to be treated as a non-complying superannuation fund for the purposes of Part IX of the Income Tax Assessment Act 1936 in relation to the year of income concerned;

(iv) the Commissioner, after considering:

(A) the taxation consequences that would arise if the entity were to be treated as a non-complying superannuation fund for the purposes of Part IX of the Income Tax Assessment Act 1936 in relation to the year of income concerned; and

(B) the seriousness of the contravention; and

(C) all other relevant circumstances;

thinks that a notice should be given stating that the entity is not a complying superannuation fund in relation to the year of income concerned.

"(1B) For the purposes of subsection (1A), if there is a question whether a person was in any way directly or indirectly knowingly concerned in, or party to, a particular contravention, that question may be decided on the balance of probabilities.".